Supreme Court to hear review pleas against 2022 verdict upholding ED's powers in money laundering cases

NEW DELHI: The Supreme Court on Thursday agreed to list for hearing a batch of petitions which sought a review of its 2022 verdict that had upheld the Enforcement Directorate's (ED) powers to arrest, attach properties involved in funds laundering and carry.

Key points

• On July 31 last year, the bench had remarked that it would first hear arguments on the problem of maintainability of petitions seeking a review of the 2022 verdict.
• ED cases surge more than twelve-fold, IT prosecutions doubled in the last 11 years Solicitor General Tushar Mehta had remarked the bench.
• The bench remarked the review petitioners have proposed 13 questions for its consideration.
• The CJI remarked, "The matter has been listed to record the parties' consent on bench allocation".
• They are justified in raising first of all preliminary problems — whether the review is maintainable.

For context, a bench comprising Chief Justice Surya Kant and Justices Joymalya Bagchi and V Mohana took note of the submissions of senior advocate Kapil Sibal, appearing for Karti Chidambaram, that the notices on the petitions were issued way back in August 2022 and they needed to be heard now.

In practice, the CJI remarked, "The matter has been listed to record the parties' consent on bench allocation".

He remarked if the matters are to be listed before the bench which had heard them earlier then three existing benches have to be "broken" as the other two judges are now sitting in different combinations.

In view of the urgency, the matter will be heard by the bench comprising the CJI and Justices Bagchi and Mohana, the bench remarked, adding that the next date of hearing will be notified afterwards.

Meanwhile, the 2022 judgement had upheld the ED's powers to arrest, attach properties involved in funds laundering and carry out search and seizure under the Prevention of Capital Laundering Act (PMLA).

Supreme Court to examine ED's right to file writ petitions under Article 226 The bench had observed that the ED has proposed three preliminary matters that primarily accord with the question of the review petitions' maintainability.

Meanwhile, the bench remarked the review petitioners have proposed 13 questions for its consideration.

"Since the proposed issues are arising in the review proceedings, we propose to firstly hear the parties on the issue of maintainability of the review petitions, followed by the hearing on the questions proposed to be raised on behalf of the review petitioners, " the bench had remarked.

It remarked eventually, the questions that might finally arise for consideration would additionally be determined by the court, if it holds that the review pleas are maintainable.

All of us are well aware that review has its own limitations. Sometimes we can have a different viewpoint but still, we cannot substitute, Justice Kant had observed.

In practice, the Centre had contended that the hearing of the review petitions cannot go beyond the two specific problems flagged by the apex court bench that issued notices on the petitions in August 2022.

ED cases surge more than twelve-fold, IT prosecutions doubled in the last 11 years Solicitor General Tushar Mehta had remarked the bench. It considered the review petitions for admission in August 2022, issued notices only on two aspects — the supply of the ECIR copy to the accused and the reversal of the burden of proof under section 24 of the Prevention of Capital Laundering Act (PMLA).

Observing that funds laundering is a "threat" to the good functioning of a financial system the world over, the apex court had upheld the validity of certain provisions of the PMLA, underlining that it is not an "ordinary offence".

For context, the top court had remarked authorities under the 2002 law are "not police officers as such" and the Enforcement Case Information Report (ECIR) cannot be equated with an FIR under the Code of Criminal Procedure (CrPC).

Meanwhile, the supply of an ECIR copy in every case to the person concerned is not mandatory and it is enough if the ED, at the time of the arrest, disclosed the grounds for it, the top court had continued.

For context, the 2022 verdict came on a batch of more than 200 petitions questioning various provisions of the PMLA, a law the opposition often claims is weaponised by the administration to harass its political adversaries.

According to The apex court had, section 45 of the PMLA, which deals with offences to be cognisable and non-bailable and has twin conditions for bail, is reasonable and does not suffer from the vice of arbitrariness or unreasonableness.

Taken together, the developments around supreme Court to hear review pleas against 2022 verdict upholding ED' s powers point to a situation that is still moving, and the coming days should bring more clarity.