SC to first test maintainability for reopening 2022 PMLA verdict

Hindustan Times

a day ago

New Delhi The Supreme Court on Thursday said it will first examine whether the review petitions filed against its 2022 judgment in the Vijay Madanlal Choudhary case, which upheld the Enforcement Directorate's sweeping powers under the Prevention of Money Laundering Act (PMLA), are legally maintainable before proceeding to consider the substantive issues raised by the petitioners. The bench posted the matter for hearing on August 6, making it clear that the preliminary objections raised by ED must be addressed first. (ANI PHOTO)
A three-judge bench led by Justice Surya Kant emphasised that the scope of a review jurisdiction hinges on certain fixed parameters and therefore, the petitioners demanding a reconsideration of the 2022 judgment must cross the first hurdle of maintainability.
'Since the proposed issues are arising in the review proceedings, we propose to first hear the parties on the issue of maintainability of the review petitions followed by a hearing on the questions proposed to be raised on behalf of the review petitioners. Eventually, the questions that would finally arise for consideration will also be determined by us if we hold that the review petitions are maintainable,' noted the bench, also comprising justices Ujjal Bhuyan and N Kotiswar Singh, hearing a bunch of petitions seeking a complete review of the impugned judgment.
The bench posted the matter for hearing on August 6, making it clear that the preliminary objections raised by ED must be addressed first. 'Review has limitations…You will (petitioners) proceed on the premise as if the entire matter has been reopened... but they (ED) are justified in raising preliminary issues… first what we will suggest is you address preliminary issues,' the bench told senior advocates Kapil Sibal, Abhishek Manu Singhvi and Vikram Chaudhri, leading counsel for the petitioners in the matter.
The court's observation came during a brief hearing on the clutch of review petitions filed against the Vijay Madanlal Choudhary ruling, a decision that has since become a constitutional flashpoint for its endorsement of the ED's broad powers related to arrest, search, seizure and the attachment of property.
ED, represented by Additional Solicitor General SV Raju, argued that the review jurisdiction of the court is narrow and cannot be used as a backdoor to file an appeal. Raising three preliminary objections, the ASG contended that the review petitions must be dismissed unless they clearly demonstrate an 'error apparent on the face of the record' in the 2022 verdict.
He read out the three objections framed by the agency -- Whether the review petitions meet the threshold of an 'error apparent on the face of the record; whether the petitions amount to an appeal in disguise and whether the review can be confined only to two issues, as mandated by the court's August 25, 2022 order. By the August 2022 order, the top court had agreed to take a re-look at only two issues -- the supply of the Enforcement Case Information Report (ECIR) to the accused and the constitutionality of the reverse burden of proof under Section 24 of the PMLA. The 2022 order issuing notice in the review petition, filed by Congress lawmaker Karti Chidambaram, had noted that these two issues required reconsideration.
During the hearing, Sibal contested the ED's claim that the review was limited to two issues, pointing out that no such restriction was recorded in the August 2022 order. He also urged the bench to tag a separate but related batch of cases, where the correctness of the Vijay Madanlal verdict had been raised, with the current review proceedings. That batch had remained dormant following the retirement of Justice Sanjay Kishan Kaul in December 2023. In this batch of petitions, sections 50 and 63 of the PMLA have been assailed, besides a reconsideration of the entire 2022 judgment. These sections relate to the Enforcement Directorate's (ED) powers to summon witnesses, extract confessions and prosecute for providing false information.
Responding, Justice Kant advised Sibal to mention the matter before the Chief Justice of India to seek listing of that batch.
The petitioners, in their list of 13 issues submitted to the court, have sought reconsideration of key aspects of its 2022 ruling, arguing that the judgment diluted the offence of money laundering by misreading a pertinent provision, retrospectively applied the law in violation of fundamental rights, and wrongly upheld the ED's powers to compel statements under Section 50, undermining protections against self-incrimination. They have also challenged the court's classification of ED officers as non-police personnel, non-supply of the ECIR to the accused, constitutional validity of the reverse burden of proof for securing bail, which, they claim, strips accused persons of basic due process safeguards.