In a strongly worded criticism, Senior Advocate Dushyant Dave said that the judgment which upheld the provisions of the Prevention of Money Laundering Act was a "blackspot on the Supreme Court".
The senior lawyer was referring to the judgment delivered by a three-judge bench comprising Justices AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar on July 27 in which the vast powers of the Enforcement Directorate for arrests, raids, attachment and recording statements and the stringent conditions for bail and reverse burden of proof were upheld(Vijay Madanlal Choudhary & Others versus Union of India).
Speaking in an interview with Manu Sebastian, Managing Editor of Live, Dave said that the Supreme Court has "weaponised the enforcement directorate and has given them the handle which we know is being abused by the ED for the last couple of years". He said that the judges gave an interpretation to the Act which is against the basic tenets of criminal jurisprudence and that the judgment suffered from a series of flaws.
"I think the judgment is definitely a black spot on an otherwise good work that the Supreme Court has been doing from time to time and it will really be remembered for a long time as something that the Supreme Court has given to the citizens which it should not have given", Dave said. He called the judgment a "gift of suffering" which the Supreme Court has given to the citizens.
He was of the opinion that the judges should have taken note of the selective manner in which ED has been used to attack the political opposition. Stating that corruption should be dealt with strongly, Dave added that the problem was with the agency being selective in its investigation.
The two-time President of the Supreme Court Bar Association also said that the term of the present ED Director was extended by the Central Government despite the Supreme Court stating that he should not be given further extension. He said that the Centre brought a law to get over the Supreme Court judgment so as to give extension upto 5 years for the ED Director.
The exact words of Dushyant Dave are given below :
"I can only say one thing that wherever I have gone in the country in the last two weeks after the judgment was rendered- whomever I have interacted, whether in restaurants, golf courses, aircrafts, dinners- across the board, people are deeply concerned about this judgment, and they include business people, bureaucrats, sitting and retired, lawyer friends, retired judges and the common man. Everybody is seriously concerned.To my mind, the Supreme Court has weaponised the enforcement directorate and it has given them the handle which we know is being abused by the enforcement directorate for the last couple of years.
Are the judges blind to not see that the enforcement directorate is acting only against the opposition leaders? Is there corruption only in the opposition? Is there even a single person from the BJP leadership across the country or their friends who have been even investigated, much less arrested by ED? Are we to believe that there is no wrongdoing taking place in various BJP governments, various municipal and other authorities that the BJP controls? Are we so blind that we don't want to see the kind of wealth that is amassed by various BJP leaders across the country and their family members? Corruption runs across the political parties; unfortunately, it has gone into our veins. And it must be fought, the enforcement directorate must fight it! But it must fight it in a just manner. It must fight without any discrimination. Everybody who has amassed wealth must be investigated. We all know what is happening in the country. Very few people are even believed to pay their taxes today. And yer they live in palatial homes, the drive in the fanciest of the cars, they spend 100 or 200 crores in the wedding of their children. All that the ED is not seeing.
I feel it is not right for judges not to see. Judicial notice must be taken by judges. They can't say they live in ivory towers. That was in the good old days. Today judges are conscious of everything. And these judges, far from anything else, give interpretation to an Act which, to my mind, is against the basic tenets of criminal jurisprudence, in every which way. The judgment suffers from a series of flaws. But that apart - the judges are entitled to make a mistake-the question is if the judges had kept their eyes open and had seen what is happening in the country today, what ED is doing...You want to destroy opposition by launching CBI and ED against opposition leaders? I have no sympathy for anybody who is corrupt. Let me make that very clear. But I am certainly against this targeting of a section of politicians, leaving aside the majority of the politicians who are not even being investigated. What is troublesome is that the judges failed to see that and have come ahead and given a judgment giving such extraordinary powers to the enforcement directorate which are completely contrary to the fundamental principles of constitutional law, fundamental rights and basic human values. You just can't do this. And yet the judges have gone ahead and done it.
I feel the judges should have been deeply circumspect, deeply cautious, deeply concerned about the well-being of the citizens. Every citizen, even if he is guilty, is entitled to the protection of the law, he is under a rule of law and judges cannot give this kind of extraordinary powers to an authority. We all know who are being appointed to these authorities, and the officers being appointed are given long tenure. As regards the ED Director, the Supreme Court said that we hope his term will not be extended and the government comes out with a law and gives him appointment for five years? What does this show? And now for the three judges of the Supreme Court, particularly Justice Khanwilkar who has vast experience and knows criminal jurisprudence quite well, I am really disappointed (for having delivered the PMLA judgment). And I am equally disappointed that Justice Maheshwari and Justice Ravikumar agreed to this judgment. I think the judgment is definitely a black spot on an otherwise good work that the Supreme Court has been doing from time to time and it will really be remembered for a long time as something that the Supreme Court has given to the citizens which it should not have given. It is a gift of suffering that the Supreme Court has given and that is very, very disappointing".
In the 30-minute interview, Dave also discussed the Supreme Court's judgment in the Gujarat riots case, issues relating to Master of Roster system, and opaqueness of listing of cases by the Supreme Court registry. The full video of the interview can be watched here.