Supreme Court Issues Notice On Congress MLA's Plea Challenging Constitutionality Of Sections 50 & 63 Of PMLA

The Supreme Court on Tuesday issued notice in a plea challenging Section 50 and Section 63 of the Prevention of Money Laundering Act (PMLA), 2022.

A bench led by Justices Sanjay Kishan Kaul, Aravind Kumar and Ahsanuddin Amanullah was considering a petition filed by Dr Govind Singh, who is a Leader of Opposition in Madhya Pradesh (MP) Legislative Assembly and is an elected MLA from the Lahar constituency belonging to the Indian National Congress (INC).

On 24th January 2023, Singh received summons by the Directorate of Enforcement (ED). As per Singh, as on the present date, there are no criminal cases or FIRs registered against him in any part of the country, to the best of his knowledge. Approaching the Supreme Court against the said summons, the petitioner argues that the provisions of the PMLA allowing an officer of the ED to summon any person to record his statement under Section 50 of the Act and requiring that person to speak truth in such statements was violative of Articles 20(3) and 21 of the Indian constitution. Section 50 of the PMLA empowers an ED officer to summon a person and record their statement. Such a record is admissible in law as evidence. As per Section 63, giving a false statement is an offence.

The petition further argues that the judgement in Vijay Madanlal Choudhary v. Union of India was passed without due regard and the issue pertaining to legality of Section 50 and Section 63 of the PMLA needed to be settled by a larger constitutional bench of the Supreme Court. In Vijay Mandala, the Supreme Court upheld the provisions of PMLA which relate to the power of arrest, attachment and search and seizure conferred on the ED. It may be noted that the court issued notice in a review petition filed against the Judgment by Karti Chidambaram.

Primarily, the following contentions have been raised through the petition – 

1. Due to the PMLA being a criminal law, investigation of any offence under the Act would be by police officers. Thus, the proceedings under section 50 of the PMLA should be considered as an investigation and safeguards provided under the CrPC and the Constitution of India should be made available to a person summoned under PMLA. 

2. Section 65 of the PMLA makes provisions of CrPC applicable to the PMLA. 

3. Section 50 of PMLA is in direct contravention to the fundamental right against self-incrimination as per Articles 20(3) of the Indian constitution.

4. No procedure in criminal jurisprudence allows for summoning a person without informing them as to what capacity they are being summoned. 

5. In Vijay Madanlal, the court ought to have created a harmonious balance between the powers of ED to enquire vis-a-vis individuals right against self-incrimination. However, the same was not done. 

6. The summons issued to Singh are cryptic and vague in nature with no details of the Enforcement Case Information Report (ECIR) or the alleged predicate offence. The summons do not even clarify the purpose of attendance of the petitioner required by the ED. 

The petition states that–

"Asking an elected member of the Madhya Pradesh Legislative Assembly, like the petitioner herein, to leave his public duties, and to appear before the Directorate of Enforcement in New Delhi with less than a 72 hour notice, that too without providing any details of the alleged offence/investigation, is blatant and gross abuse of the process of law."

This petition comes in shorty after the move of 14 political parties approaching the Supreme Court against alleged arbitrary use of central investigating agencies such as ED and CBI in arresting opposition leaders. 

The present petition also argues that the summons have been issued out of malice and "sheer political vendetta" with an intent to cause, harass, and intimidate the petitioner as part of a larger ploy to muzzle the opposition leaders from speaking out their thoughts against the government and its policies in the poll bound state of Madhya Pradesh. 

Senior Advocate Kapil Sibal and Advocate-on-Record Sumeer Sodhi appeared for the petitioner.

Case : Govind Singh vs Union of India | W.P.(Crl.) No. 65/2023