The Supreme Court of India has deferred the hearing of petitions seeking a review of its 2022 verdict on the Prevention of Money Laundering Act (PMLA), following a request from the central government and the Enforcement Directorate (ED). The case, which will now be heard by a new bench after at least two months, comes in the wake of Justice Sanjay Kishan Kaul’s impending retirement on December 25.
Also read- Supreme Court Addresses Bench Scrutiny And PMLA Powers: A Detailed Analysis (lawchakra.in)
Justice Kaul, who heads the bench, expressed his reluctance to let go of the matter, stating with a “heavy heart” that there would be insufficient time for him to write the final order due to the Centre and ED’s persistent request to defer the hearing. The bench, also comprising Justices Sanjiv Khanna and Bela M Trivedi, had been hearing the petitioners over the last two days but decided to adjourn the proceedings by eight weeks.
The 2022 verdict in question upheld the sweeping powers of the ED under PMLA, including summoning individuals, making arrests, conducting raids, and attaching properties of suspects. During the hearings, the court hinted at possibly referring the matter to a larger bench of five judges if it concluded that the July 2022 verdict needed re-examination. However, the Centre and ED vehemently opposed this and questioned the proceedings before the three-judge bench.
Senior counsel Kapil Sibal and Abhishek Manu Singhvi, leading the petitioners, described the deferment as “unfortunate,” noting a consistent effort from the other side to get the matter deferred. Justice Kaul remarked,
“On this side, we see and hear many things, but we don’t say many things,”
as he ordered the matter to be placed before the Chief Justice of India for setting up a new bench.
The bench had initially brushed aside the Centre’s protest against hearing the matter without first examining the latter’s objections.
“It’s not fair not to allow the court to proceed. Let the petitioners open the case and we will then see what is to be done…The limited ambit of this bench is to see whether there is a need to send it to a bench of five judges. This is not something new or being considered for the first time,”
the bench had stated.
Singhvi, on behalf of the petitioners, argued against the stringent bail conditions stipulated by PMLA, pointing out the reversal of the onus of proof. The bench questioned the Centre on how the Act could reverse the onus of proof when Section 19 of PMLA prescribes arrest based on material evidence of guilt.
“Under Section 19, the onus is on you. Can the onus completely shift after arrest? That’s something for you to answer,”
the bench told the Solicitor General.
The bench was dealing with petitions questioning the validity of sections 50 and 63 of PMLA, which pertain to ED’s power to summon witnesses, extract confessions, and press for punishment for giving false information. The 2022 judgment had affirmed these powers, stating that law enforcement agencies must be armed with effective mechanisms to safeguard the nation’s wealth from criminals.
The ruling had also held that an Enforcement Case Information Report (ECIR) does not have to be shared with the accused since it is an internal document of ED, and that informing a person about the grounds of arrest is sufficient. The judgment had further affirmed PMLA provisions invoking the principle of reverse burden of proof, contrary to the common law principle of “innocent until proven guilty.”
The Supreme Court’s decision to postpone the hearing reflects the complexities involved in reviewing the PMLA verdict, especially considering the constitutional implications and the need for a thorough examination by a new bench.