Supreme Court agrees to review two aspects of PMLA judgment

Following a review plea by 250-odd petitioners seeking a review of July’s Prevention of Money Laundering Act (PMLA) ruling, the Supreme Court issued a notice to the Centre on Thursday, August 25.

The apex court has agreed to reconsider last month’s PMLA ruling on two aspects, the Enforcement Directorate (ED) not needing to reveal case information copy (ECIR) to the accused and the burden of proof lying with the accused while the investigating agency not having to prove guilt.

“After reading the judgment, two aspect prima facie, that is non-providing of ECIR and the reversal of burden of proof and presumption of innocence, require reconsideration,” Chief Justice NV Ramana said.

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“There has to be error apparent on record for review. And this is not a standalone act, but it is as per India’s international commitments,” Solicitor General Tushar Mehta, who represented the Centre, said.

“So the proceeds from 1999 can be an offence, even if it was not a scheduled offence in 1999 and he can be proceeded now on ground of concealing proceeds of crime. That is the issue,” veteran lawyer Kapil Sibal, representing the petitioner, said.

The PMLA also gives ED several other powers that are not under review, such as special powers to arrest, seize and search without the need of a warrant, interrogation statements as admissible evidence in court and also the fact that the PMLA can be used retrospectively.

The Supreme Court upheld several provisions of the PMLA on July 27, 2022. The SC judgement was challenged by Congress’s Karti Chidambaram, the son of former Union minister P Chidambaram, who has sought a stay on it. The ED is investigating an alleged money laundering case in which Karti Chidambaram has been named. Petitioners had presented the argument that the power to arrest an accused without revealing the reason for arrest or evidence is unconstitutional. However, the SC maintained that an ECIR copy is not obligatory in every instance because it is an internal document in its ruling, before rejecting the petitioners’ challenge.

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However, in the July 27 verdict, the SC had maintained that the direction under Section 8(4) for taking possession of the property in question before passing down a formal order of confiscation should be an exception, not a rule.

Section 8(4) grants the ED with special power to take possession of the attached property at the stage of confirmation of provisional attachment made by the adjudicating authority.

The petitioners also argued that leaving the accused with the burden of proof defies fundamental rights, which the Centre described as justified. The SC put these two matters under review before issuing a notice to the Centre.