A Special Bench of the Supreme Court headed by Justice Surya Kant on Wednesday (September 18, 2024) scheduled back-to-back hearings on October 16 and October 17 to review a two-year-old judgment which gave unbridled powers to the Directorate of Enforcement (ED) to arrest and summon individuals and raid private property under the Prevention of Money Laundering Act (PMLA).
The case was listed for hearing at 2 p.m. on September 18. However, one of the three members of the Bench, Justice C.T. Ravikumar, was unavailable.
Justices Kant and Ujjal Bhuyan, the third judge on the Bench, assembled post-lunch and adjourned the case to mid-October.
Senior advocates Kapil Sibal and A.M. Singhvi, the lead lawyers for the petitioners, who include Karti Chidambaram, and Solicitor General Tushar Mehta, for the Union government, agreed to the scheduled dates that would guarantee an uninterrupted hearing for the whole of the two days.
The court has, however, made it clear that the re-look at the July 2022 judgment must not be deciphered as an intra-court appeal.
The petitioners have alleged that the apex court’s July 27, 2022 judgment deprived an accused person of basic rights, which include even a copy of the Enforcement Case Information Report (ECIR). The core amendments to which the judgment gave its stamp of approval had virtually transferred the burden of proof of innocence onto the shoulders of the accused instead of the prosecution.
The 545-page judgment, authored by Justice (now retired) A.M. Khanwilkar, had upheld the PMLA’s controversial “twin conditions” for bail.
These conditions provided that a PMLA-designated trial court was required to give bail only if the accused could prove his innocence against money laundering charges. On the slim chance the accused did get bail, he had to establish that he was “not likely to commit any offence while on bail”.
For an undertrial, who is under incarceration and with whom the ED has not shared the Enforcement Case Information Report, to prove that he is not guilty, to say the least, may prove to be a herculean if not an impossible task, the review petitions had argued.
“The apex court had called the PMLA a law against the ‘scourge of money laundering’ and not a hatchet wielded against rival politicians and dissenters,” the petitions said.
“This is a sui generis [unique] legislation… The Parliament enacted the Act as a result of international commitment to sternly deal with the menace of money laundering of proceeds of crime having transnational consequences and on the financial systems of the countries,” the 545-page judgment had said.
The 2022 judgment was based on an extensive challenge raised against the amendments introduced to the 2002 Act by way of a Finance Act in 2019. Over 240 petitions were filed against these amendments, which the challengers claimed violated personal liberty, procedures of law, and the constitutional mandate. The petitions that led to the 2022 judgment had argued that the process itself had transformed into the punishment.
Published - September 18, 2024 11:57 am IST
