The Supreme Court, headed by Justice Surya Kant and comprising Justices C.T. Ravikumar and Ujjal Bhuyan, has fixed the series of petitions for review that were brought before it on July 22nd from the Supreme Court decision that gave ED excessive powers to arrest individuals and summon them as well as carry out searches on their premises under the PMLA.
However, on Wednesday (August 7), the bench clarified that review proceedings in an open court should not come across as an appeal against a Supreme Court judgment.
Justice Ravikumar asked if even when a judgment had “gravely erred”, would it be correct to say that reviews are appeal? There is no further appeal after finality of judgment at apex court level. Review jurisdiction or curative jurisdiction is very exceptional and presumed only when there are patent errors/bias in the verdict/order.
“Let us see if this is an appeal in disguise?” Justice Ravikumar asked senior advocates Kapil Sibal, A.M. Singhvi, Menaka Guruswamy and other lawyers for the various petitioners including Karti Chidambaram’s.
The judgments argued that by its decision of July 27th, 2022, which was relied upon by those involved in these cases; hence they were deprived basic rights such as a copy of the Enforcement Case Information Report (ECIR) itself.
This enabled amendments allowed by those judgments to virtually shift onto accused persons rather than prosecution once burdened with duties to provide evidence of innocence first.
PMLA’s ‘twin conditions‘ for bail
This opinion has been substantiated by a concurring judgment delivered by Justice A.M. Khanwilkar (since retired) who wrote comprehensively on PMLA’s controversial ‘twin conditions’ for bail imposed upon money launderers.
Those twin conditions required that bail may only be granted by a PMLA designated trial court if the accused could prove his innocence of money laundering charges. And even if bail was granted by some means, he had to demonstrate that he was not expected to commit any offense while on bail.
The review petitions argued that for an undertrial who is in custody and with whom the ED has never shared an ECIR, it would be a formidable task, to say the least, to establish innocence.
The apex court called this PMLA as “a law against scourge of money laundering” and not a weapon against political rivals or dissenters.
“This is a sui generis (unique) legislation… The Parliament enacted the Act as a result of international commitment to sternly deal with the menace of money laundering of proceeds of crime having transnational consequences and on the financial systems of the countries,” said the 545-page judgment.
The 2022 judgment arose out of extensive challenge raised against amendments which were introduced into 2002 Act through finance act 2019. Over 240 petitions were filed against amendments which allegedly violated personal liberty, procedures established under law and constitutional mandate claimed by petitioners. The punishment itself being due process was argued by those filing these cases.
