A three-judge Bench of the Supreme Court headed by Chief Justice of India Justice Surya Kant will hear the review petitions challenging the Court’s landmark July 2022 judgment that upheld the constitutional validity of several provisions of the Prevention of Money Laundering Act (PMLA).
The Bench will comprise CJI Surya Kant and Justices Joymalya Bagchi and V Mohana. The decision to reconstitute the Bench was taken on Thursday after all parties consented to the new composition.
The review pleas were earlier listed before a Bench comprising CJI Surya Kant and Justices Ujjal Bhuyan and N K Singh.
However, the CJI said the matter could not be heard by the original Bench as Justices Bhuyan and Singh are now part of other Benches. Listing the case before them would require breaking up three existing Benches, he said.
Solicitor General Tushar Mehta, appearing for the Enforcement Directorate, and Senior Advocate Kapil Sibal, representing the petitioners, agreed to the new arrangement. The Court said the matter would be heard by the new Bench owing to its urgency and that a date would be fixed separately.
The review petitions seek reconsideration of the judgment in Vijay Madanlal Choudhary v Union of India, in which a three-judge Bench had upheld the validity of several key PMLA provisions. The 2022 ruling came on a batch of 241 petitions challenging the anti-money laundering law.
The judgment upheld provisions dealing with the definition of money laundering, attachment of property, search and seizure, arrest, the reverse burden of proof, trial of offences and the stringent twin conditions for bail. It also upheld the power of the Enforcement Directorate to record statements under Section 50 of the Act.
The Court had further held that an Enforcement Case Information Report (ECIR) need not be furnished to an accused as a matter of right. It ruled that the ECIR is an internal document of the ED and cannot be treated as equivalent to an FIR.
The judgment had also overturned the 2017 ruling in Nikesh Tarachand Shah v Union of India, in which the Supreme Court had struck down the twin conditions for bail under Section 45(1) of the PMLA. The 2017 judgment had held the conditions unconstitutional.
Section 45(1) of the Prevention of Money Laundering Act (PMLA), 2002, establishes that all offences under the Act are cognisable and non-bailable. To secure bail, an accused must fulfil strict “twin conditions”: the court must allow the public prosecutor to oppose the release, and be satisfied there are reasonable grounds that the accused is not guilty and will not re-offend.
The review petitioners have questioned several aspects of the 2022 verdict, including the validity of the reverse burden of proof under Section 24, the refusal to treat the ECIR on the same footing as an FIR and the stringent bail requirements under Section 45.
The ED has, however, raised preliminary objections to the maintainability of the review petitions. It has questioned whether the petitioners have demonstrated an “error apparent on the face of the record”, or whether the review pleas effectively seek a rehearing of the case in the guise of a review.
The agency has also relied on the Supreme Court’s August 25, 2022, order to contend that the scope of the review should be confined to two issues: whether an accused is entitled to a copy of the ECIR and the constitutional validity of the reverse burden of proof under Section 24.
The new Bench will now consider these issues and determine the scope of the review proceedings.
