The Twin Test Under Section 45 Of The Prevention Of Money Laundering Act, 2002: A Constitutional And Jurisprudential Study Of Bail Restrictions In Economic Offences Legislation, 2017–2026
Aditya Panwar, Vivekananda Institute of Professional Studies
ABSTRACT
Section 45 of the Prevention of Money Laundering Act, 2002 (“PMLA”) imposes what has come to be known as the ‘twin test’ or ‘twin conditions’ for the grant of bail: a court must be satisfied, first, that there are reasonable grounds for believing the accused is not guilty of the offence, and second, that the accused is not likely to commit any offence while on bail. This reverses the ordinary presumption of innocence at the pre trial stage and has generated one of the most contested constitutional debates in contemporary Indian criminal procedure. This paper traces the doctrinal life of the twin test from its origins in earlier special statutes, through its invalidation in Nikesh Tarachand Shah v. Union of India (2018), its legislative revival, its constitutional vindication in Vijay Madanlal Choudhary v. Union of India (2022), its judicial recalibration through the 2024 quartet of decisions, and its reaffirmation and further refinement between 2025 and 2026. It argues that the twin test now operates less as a rigid statutory bar and more as a structured, liberty sensitive threshold whose content is supplied as much by Article 21 jurisprudence on prolonged incarceration as by the bare text of Section 45. The paper concludes with a critical assessment of the test’s continuing tension with Articles 14 and 21 of the Constitution and offers observations on the direction of future reform.
