Supreme Court seeks issues for consideration in review of 2022 PMLA ruling, final hearing on August 6-7

The Hindu

07-05-2025

The Supreme Court on Wednesday (May 7, 2025) gave petitioners seeking a review of a nearly three-year-old top court judgment, which confirmed amendments to the Prevention of Money Laundering Act 2002 (PMLA) giving extensive powers of arrest, summon and raid to the Directorate of Enforcement (ED), liberty to propose issues in consultation with the Centre's top law officers, who raised objections.
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Appearing before a three-judge Bench of Justices Surya Kant, Ujjal Bhuyan and N Kotiswar Singh, Solicitor General Tushar Mehta, for the Centre, said the review must be limited to only two aspects of the July 27, 2022, judgment.
Mr. Mehta said the Supreme Court itself had, while issuing formal notice to the Centre on August 25, 2022, in the review, restricted the ambit of the review to the dual aspects of depriving accused a copy of the Enforcement Case Information Report (ECIR) and transferral of the burden of proof of innocence onto shoulders of the accused instead of the prosecution. He said the Justice Kant Bench should limit the review to only these two issues. The Centre had also filed an affidavit the very next day confirming this arrangement. The petitioners had not objected to the affidavit.
However, senior advocate Kapil Sibal, for the petitioners including Karti Chidambaram, informed the Bench that a coordinate Bench of the court headed by Justice AS Oka has, in the meanwhile, pronounced a judgment that ECIR copies must be shared with the accused.
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The July 2022 verdict giving the ED unbridled powers under the PMLA had been delivered by a three-judge Bench headed by Justice A.M. Khanwilkar (now retired).
Mr. Sibal said the review, in the light of Justice Oka's conflicting judgment must go to a Constitution Bench for an authoritative pronouncement.
Justice Kant remarked that Mr. Sibal's submissions suggested a complete recall of the 2022 judgment. The Bench asked him to instead to broadly suggest issues in consultation with Mr. Mehta and Additional Solicitor General S.V. Raju and place it before the court first for its consideration.
The court fixed the case for firming up the issues on July 16 at 2 p.m. It then scheduled the case for final hearing of arguments on August 6, and if necessary, on August 7.
The review petitioners have alleged that the top court's 2022 judgment deprived an accused person 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.
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 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 is not guilty, to say the least, may prove to be a herculean if not an impossible task, the review petitions had argued.
The 2022 verdict was based on an elaborate 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 to violate personal liberty, procedures of law and the constitutional mandate. The petitioners had claimed that the 'process itself was the punishment' under the PMLA.