'Affects Right To Liberty' : Kapil Sibal Urges Supreme Court To Reconsider PMLA Judgment Upholding ED's Powers

Senior Advocate Kapil Sibal on Wednesday (November 22) urged the Supreme Court to refer to a larger bench to reconsider its Vijay Madanlal Choudhary ruling, which is known for bolstering the powers of the Directorate of Enforcement (ED). Raising concerns about the wide-ranging powers of the central agency, the senior counsel said – “The issues involved are very serious and affect the right to liberty. The judgment in ADM Jabalpur was set aside after 40 years. AK Gopalan was set aside in Minerva Mills after many years. Judgments are set aside because new paradigms emerge, and the court has to think of the consequences of those paradigms in the context of our Constitution and the liberty of the people.” Ahead of the Financial Action Task Force (FATF) mutual evaluation of India's anti-money laundering and terror financing mechanism, a Supreme Court bench of Justices Sanjay Kishal Kaul, Sanjiv Khanna, and Bela M Trivedi today began hearing a batch of applications challenging the interpretation of the Prevention of Money Laundering Act, 2002 given in the July 2022 Vijay Madanlal Choudhary case. In this case, the top court in July last year upheld the constitutional validity of several PMLA provisions relating to arrest, seizure, presumption of innocence, stringent bail conditions etc. It may be noted that a review of the controversial judgment is also pending before the Supreme Court. Last year in August, while issuing notice on the review petition, a bench led by then Chief Justice NV Ramana had observed that two aspects of the judgment prima facie required reconsideration – one, the finding that a copy of the Enforcement Case Information Report (ECIR) need not be supplied to the accused; and two, the reversal of the presumption of innocence. Preliminary Objections of the Enforcement Directorate On the last occasion, the court agreed to hear the clutch of petitions, despite objections raised by Solicitor General Tushar Mehta. Alleging an 'abuse of the process of law', the law officer had argued that the three-judge bench could not 'sit in appeal' over a judgment of a coordinate bench. He also pointed out that a separate petition seeking a review of the Vijay Madanlal ruling was pending. Finally, he urged the court to defer the hearing in view of the upcoming Financial Action Task Force (FATF) mutual evaluation, in which the national anti-money laundering statute will be assessed against global standards. The Justice Kaul-led bench noted the solicitor-general's objections but refused to defer the hearing of the batch of pleas. It also refused the law officer's contention that the bench did not have the prerogative to revisit the matter. At the same time, it clarified that the Enforcement Directorate would be allowed to address the court on the issue of maintainability on the next day. Today, Solicitor General Mehta doubled down on his efforts to oppose the batch of pleas, by, among other things, questioning an alleged lack of specific pleadings in the petitions challenging any PMLA provision other than Sections 50 and 63. He argued – “Possibly, they were tempted to have a wider argument. On the last day, therefore, the petitioners started arguing on a wide canvas – what is Section 3, how it is bad, etc. I objected to this saying that there are no pleadings in the petitions challenging the other provisions. We checked all the petitions and found that no other sections were challenged in any of the petitions.” The law officer also strongly objected to an amendment petition running into forty pages “challenging virtually everything”, including Sections 3, 19, and 45 of the Prevention of Money Laundering Act. “We are opposing that amendment. If the petitioners confine themselves to Sections 50 and 63, we have no difficulty. But if they are going to make the full argument, it is based on a proposed amendment to a petition and we will oppose that amendment. Something that they could not have done when they filed the petition cannot be done by way of an amendment. Secondly, it changes the entire structure of the petition by introducing five new prayers. If Your Lordships are persuaded to permit the amendment, then we would like to file a reply,” he told the bench. On behalf of the petitioners, senior advocates Kapil Sibal and Abhishek Manu Singhvi emphatically disputed the solicitor-general's claims. Singhvi said, “First of all, this is almost completely on the law point. Second, Sanjay Chhabria's petition has all the points. So this is covered in the ” Sibal told the court that the lead petition in the batch of 84 pleas was one preferred by the Enforcement Directorate against a high court judgment striking down several provisions of the PMLA. “In this one, the ED has raised all these points in their grounds because they lost in the high court.” “We have understood your point,” Justice Kaul told SG Mehta, before asking...

'Affects Right To Liberty' : Kapil Sibal Urges Supreme Court To Reconsider PMLA Judgment Upholding ED's Powers

Awstika Das

Tags