SC allows PMLA verdict review; flags burden of proof, sharing info

SC agrees to review its July PMLA verdict on two issues- sharing the ECIR and reversal of the presumption of innocence. Issues notice to govt on review filed by Karti Chidambaram @IndianExpress

— Apurva Vishwanath (@apurva_hv) August 25, 2022

“We are in full support of the prevention of black money. The intention is noble and the country cannot afford such offences. But when you read the judgment…we feel there are two aspects that require a relook,” the bench observed during the hearing.

On July 27, a three-judge bench, comprising Justices A M Khanwilkar (who has since retired), Dinesh Maheshwari, and C T Ravikumar, had ruled on a batch of over 240 petitions challenging the special law against money laundering.

That bench had accepted the government’s arguments on virtually every aspect that was challenged by the petitioners: from reversing the presumption of innocence while granting bail; retrospective operation of the law; to passing the amendments as a Money Bill under the Finance Act and defining the contours of the powers of the Enforcement Directorate (ED).

Crucially, apart from CJI Ramana — who retires Friday — the bench that allowed the review Thursday included Justices Maheshwari and Ravikumar who were part of the bench that delivered the verdict.

The bench said that “prima facie view can be taken” that the verdict’s underlining that the ED is not mandated to share a copy of the Enforcement Case Information Report with the accused and the upholding of the stringent bail provisions that reverse the presumption of innocence of an accused need to be revisited.

“My brothers are not agreeable. That is why we are limiting the review to these two grounds,” CJI Ramana observed when the petitioners cited other grounds for review. “After reading the judgment, two aspects prima facie…that is not providing ECIR and the reversal of burden of proof and presumption of innocence, require reconsideration.”

Several petitioners, including Congress MP Karti Chidambaram, had sought a review of the verdict. On August 24, making a rare exception, the Supreme Court agreed to hear the review in open court.

Except in cases of death penalty, review petitions are heard through “circulation” by judges in their chambers, and not in open court. Lawyers make their case through written submissions and not oral arguments.

Solicitor General Tushar Mehta, who appeared for the Centre, opposed the review and argued that questions on the legal validity of the PMLA could have international ramifications for India.

“This is not a standalone Act. This is part of India’s international commitments. The review must be based on an error apparent on the face of record. It cannot be an appeal or another round of litigation,” Mehta said.

The verdict in July upheld the vast powers of the ED to arrest individuals, search and seize and attach property. It also upheld the stringent provisions on bail that impose a twin condition: a reverse burden of proof on the accused and a requirement to prima facie satisfy the court that the accused is not guilty and unlikely to commit a similar offence when released.

The bench had also said an Enforcement Case Information Report (ECIR) cannot be equated with an FIR. It said that supplying an ECIR in every case to the person concerned is not mandatory and “it is enough if ED, at the time of arrest, discloses the grounds of such arrest”.