A Supreme Court Bench headed by Justice Surya Kant scheduled for August 28 a series of petitions seeking a review of a July 2022 judgment of the apex court, which gave unbridled powers to the Enforcement Directorate (ED) to arrest and summon individuals and raid private property under the Prevention of Money Laundering Act (PMLA).
The Bench, also comprising Justices C.T. Ravikumar and Ujjal Bhuyan, however, made it a point on Wednesday (August 7, 2024) to note that review in open court should not take the tone of an appeal against a Supreme Court judgment.
Justice Ravikumar asked whether, even if a judgment had “gravely erred”, review proceedings would still partake the character of an appeal. There is no appeal against a judgment of the final court. Exercise of review and curative jurisdictions of the apex court are rare and entertained in case of apparent errors or biases in the verdict.
“Let us see if this is an appeal in disguise?” Justice Ravikumar asked senior advocates Kapil Sibal, A.M. Singhvi, Menaka Guruswamy and other lawyers for the various petitioners, including Karti Chidambaram.
The review petitions had 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.
PMLA’s ‘twin conditions‘ for bail
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 the 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 was not guilty, to say the least, may prove to be a herculean if not an impossible task, the review petitions 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.
“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 the amendments which, the challengers claimed, violated personal liberty, procedures of law, and the constitutional mandate. The petitioners had claimed “the process itself was the punishment”.
