Introduction
Money laundering is more than a financial crime; it is a critical threat to national and international security. It enables terrorism, fuels corruption, and undermines economic integrity. To counter this, governments have adopted comprehensive legal frameworks aligned with international standards. In India, the Prevention of Money Laundering Act, 2002 (PMLA) serves as the cornerstone of anti-money laundering (AML) enforcement. However, the evolution and implementation of PMLA are deeply influenced by global regulatory bodies, particularly the Financial Action Task Force (FATF), and enforced domestically by the Enforcement Directorate (ED).
This article examines how international obligations, particularly FATF recommendations, shape India’s AML framework and how the ED operates within this structure. It also analyzes legal challenges and criticisms surrounding PMLA’s enforcement.
The Role of FATF: Global Standards for AML
What is FATF?
The Financial Action Task Force (FATF) is an intergovernmental body established in 1989 to develop policies to combat money laundering and terrorist financing. It issues 40 recommendations that serve as the global standard for AML and Countering the Financing of Terrorism (CFT).
FATF and India
India became a FATF member in 2010, which triggered significant legislative reforms, including:
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Strengthening PMLA to align with FATF recommendations
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Enhancing reporting obligations for financial institutions
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Expanding the definition of predicate offences
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Creating mechanisms for international cooperation and information exchange
Failure to comply with FATF norms can result in being placed on the grey list or black list, affecting a country’s financial credibility and access to international capital.
PMLA: India’s Legal Framework Against Money Laundering
Key Provisions of PMLA
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Section 3: Defines money laundering as an attempt to conceal, possess, acquire, or use proceeds of crime.
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Section 5: Allows for provisional attachment of property.
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Section 17 & 18: Empower the ED to conduct searches and seizures.
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Section 24: Reverses the burden of proof, requiring the accused to prove innocence.
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Schedule of Offences: Lists predicate offences under various laws (IPC, NDPS Act, etc.) that trigger PMLA provisions.
Enforcement by the ED
The Enforcement Directorate (ED) is the primary agency responsible for investigating and prosecuting offences under PMLA. It has the authority to:
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Attach assets derived from proceeds of crime
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Arrest individuals without prior judicial approval
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Initiate prosecution before designated PMLA courts
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Coordinate with foreign agencies for cross-border investigations
International Pressure and Policy Shaping
FATF Mutual Evaluations
FATF conducts mutual evaluations of member countries. India’s performance in these evaluations influences legislative and policy decisions. To meet FATF compliance, India has:
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Expanded the reporting entities under PMLA (e.g., real estate agents, jewelers, crypto exchanges)
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Introduced KYC/AML compliance rules for financial institutions
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Enhanced data-sharing agreements with international agencies
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Pressed for greater digitization and traceability in financial transactions
FATF Greylisting Threats
FATF has at times raised concerns over India’s low conviction rate under PMLA and limited inter-agency coordination. Such concerns can pressure the government to increase enforcement—even at the cost of civil liberties.
Criticism and Constitutional Scrutiny
Despite its global alignment, PMLA faces significant criticism in India:
1. Reversal of Burden of Proof
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Section 24 requires the accused to prove their innocence—departing from the principle of presumption of innocence.
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Critics argue this violates Article 21 of the Indian Constitution.
2. Lack of Procedural Safeguards
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ED can arrest and attach properties without FIR or chargesheet, raising concerns about arbitrariness.
3. Opaque Enforcement
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ED investigations are not subject to the Right to Information Act, and its proceedings lack transparency.
4. Low Conviction Rate
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As per ED’s own records, the conviction rate under PMLA is less than 1%, raising questions about selective targeting and political misuse.
Supreme Court Intervention
In Vijay Madanlal Choudhary v. Union of India (2022), the Supreme Court upheld the constitutionality of several PMLA provisions but acknowledged the need for procedural fairness and balance.
PMLA and Global Cooperation
To comply with FATF and tackle transnational money laundering, India has entered into:
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Mutual Legal Assistance Treaties (MLATs)
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Extradition agreements for economic offenders
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Information-sharing arrangements with Interpol, FinCEN, and other bodies
These tools help the ED track offshore accounts, shell companies, and cross-border networks.
Conclusion
India’s anti-money laundering regime sits at the intersection of international pressure and domestic enforcement. The FATF has undeniably driven India to create a robust legal and institutional framework through PMLA. However, the aggressive use of PMLA by the ED has raised legitimate concerns about civil liberties, due process, and political impartiality.
