PMLA validity: 13 questions raised by review petitioners before Supreme Court

The Supreme Court on Thursday said it would first hear arguments on whether review petitions challenging the 2022 verdict in Vijay Madanlal Choudhary v Union of India are maintainable before proceeding to examine the substantive questions of law raised against the ruling [Karti P Chidambaram v. The Directorate of Enforcement]..A three-judge Bench of Justices Surya Kant, Ujjal Bhuyan and NK Singh was hearing a batch of review petitions challenging the July 2022 decision that upheld sweeping powers of the Enforcement Directorate (ED) under the Prevention of Money Laundering Act, 2002 (PMLA)..The Bench observed that since the matter arises in review, “certain limitations” exist on its scope. However, it said that it would keep “everything open” at this stage.“We suggest you first address the preliminary issues,” the Bench told Senior Advocate Kapil Sibal, appearing for the review petitioners. The matter is likely to be heard on August 6..The three preliminary objections raised by the ED are:Whether the review petition satisfies the threshold requirement of showing an “error apparent on the face of the record” in the final judgment? Whether the review petition is in substance an appeal in disguise and liable to be dismissed on that ground? Whether, in light of the 25 August 2022 order, only two issues - supply of the ECIR to the accused and the constitutional validity of the reverse burden of proof under Section 24 can be examined?.The petitioners primarily contest the constitutionality of the PMLA as upheld in Vijay Madanlal, especially its reverse burden clause, denial of procedural safeguards like providing accused the Enforcement Case Information Report (ECIR), and the stringent bail conditions under Section 45. They argue that the ruling fundamentally undermines the presumption of innocence in criminal law and dilutes protections under Article 21 of the Constitution..Acquittal on discharge in predicate offence, twin conditions for bail upheld: The Supreme Court's PMLA judgment explained.The petitioners have framed the following thirteen questions for the Court’s review:Whether the Court ought to have first decided if amendments to key PMLA provisions via Money Bills were unconstitutional, and whether they violated the Constitution? (a) Whether the Court erred in reading the word “and” in Section 3 (“projecting or claiming”) as “or”, thus diluting the offence of money laundering?(b). Whether this interpretation erased the legal distinction between committing a scheduled offence and committing money laundering? Whether the ruling that money laundering is a continuing offence retrospectively violates Articles 20 and 21? Whether the classification of PMLA as a sui generis legislation, rather than a penal law, was legally erroneous? Whether, by equating “investigation” and “inquiry” and allowing compelled testimony under Section 50, the judgment violates Articles 19, 20(3) and 21? Whether the Court erred in holding that ED officers are not police officers? Whether, under Section 65, CrPC provisions should apply to PMLA cases unless inconsistent, and whether the Court’s ruling to the contrary is erroneous? Whether the finding that the ECIR is an internal document not required to be supplied to the accused violates Article 21 and basic criminal law principles? Whether the judgment wrongly revived the twin conditions for bail under Section 45 despite the 2018 amendment not explicitly reviving them? Whether Section 45 should have been declared unconstitutional, as its twin conditions continue to violate Articles 14, 19, and 21? Whether the Court expanded Section 5’s scope by holding that property attachment can occur even without a registered scheduled offence? Whether upholding the reverse burden of proof resulted in manifest error causing irremediable injustice? Whether the interpretation of Explanation (i) to Section 44(1)(d), decoupling PMLA trials from the outcome of scheduled offence trials, was legally flawed?The Court today said that these questions would be examined only if the review petitions are found to be maintainable..In Vijay Madanlal, the Court upheld a range of ED powers including those pertaining to arrest, property attachment and search and seizure under the PMLA. The Court had held that ED officials were not “police officers” and that their actions were part of a sui generis inquiry, not governed by the Code of Criminal Procedure (CrPC).It also ruled that the ECIR, unlike an FIR, need not be shared with the accused. At the time, the Court justified this by saying that the ED only had to disclose grounds of arrest, not the ECIR itself. Bail provisions under Section 45, which require the accused to prove innocence and demonstrate they won’t commit another offence, were also upheld as constitutionally valid..[BREAKING] Review petition filed before Supreme Court against PMLA judgment.The ruling had come under intense criticism, especially from the opposition, which alleged misuse of the PMLA to target political rivals. Shortly after the ruling, multiple review petitions were filed, beginning with one by Congress MP Karti Chidambaram in August 2022..On August 25, 2022, a Bench led by then Chief Justice NV Ramana had agreed to review the judgment, noting that two issues - the ECIR and reverse burden - “prima facie” required reconsideration. Subsequently, review petitions were filed by other PMLA-accused including Amanpreet Singh Gandhi, Jagjit Singh Chahal (accused in a synthetic drug racket), Nama Seethaiah (bank fraud case), Congress leader Sarwan Singh Phillaur and Bharat Das Vaishnav. These were tagged together and listed for hearing multiple times between August 2024 and October 2024..[PMLA judgment] Not providing ECIR, reversal of presumption of innocence need relook: Supreme Court issues notice on review plea