Supreme Court Lists Review Petitions Against Judgment Upholding PMLA Provisions On Oct 16-17

The Supreme Court today adjourned the hearing of the review petitions pending against the Vijay Madanlal Choudhary judgement, which upheld various provisions of the Prevention of Money Laundering Act (PMLA), to October 16-17.

In the morning session, the matter was mentioned before a bench of Justices Surya Kant, Dipankar Datta and Ujjal Bhuyan by Solicitor General Tushar Mehta, who requested for time saying that out of 9 review petitions, the Union had copy of only 1.

"There are two issues, apart from the fact that we need some time to prepare...out of 9 review petitions, only 1 is with us...we don't have the 8...we will take a copy, we are not raising issue on that...they may have served on central agency, there is some problem...", he said.

The request was strongly opposed by Senior Advocate Kapil Sibal (for review petitioners), saying that "this has been going on for two long". The senior counsel also claimed that what the SG was referring to were mere impleadment applications and the petitioners were ready to argue.

At this juncture, the SG pointed out that today was only the second date of listing.

Expressing that the counsels' submissions were putting the court in an embarrassing situation, Justice Kant said to Sibal that he may as well face a situation in future where he wants an adjournment. On this, the senior counsel replied that he always seeks the consent of the other side.

Be that as it may, the matter was directed to be listed on October 3, with Sibal stressing that no further adjournments may be given.

At 2 PM, however, the matter was taken up again and Justice Kant apprised the counsels that Justice CT Ravikumar (who is also presiding over the petitions seeking review of VMC judgment) would be on leave from 27 September to 13 October. As such, the Court is inclined to fix two dates (16 October and 23 October) for the hearing of the matter.

In consultation with Sibal and the SG, the bench finally listed the matter on October 16 and 17.

It may be recalled that a three-judge bench of Justices Kant, CT Ravikumar and Bhuyan is hearing the review petitions. Today, the matter was fixed for hearing at 2 PM. However, it was mentioned and got re-listed at the request of the Union.

To recap, the VMC judgment was delivered on July 27, 2022 by a bench comprising Justices AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar. Vide this judgment, certain provisions of the Prevention of Money Laundering Act, 2002 (PMLA) were upheld. These included -

(i) Sections 5, 8(4), 15, 17 and 19 of PMLA, relating to Enforcement Directorate's power of arrest, attachment, search and seizure;

(ii) Section 24 of PMLA, relating to reverse burden of proof (in this regard, the Court said the provision had "reasonable nexus" with the objects of the Act);

(iii) Section 45 of PMLA, which provides "twin-conditions" for bail (in this regard, it was said that the Parliament was competent to amend the provision in 2018 even after the Supreme Court's judgment in Nikesh Tarachand Shah, which struck down the conditions).

Subsequent to this decision, the instant review petitions (8 in number) were filed. With the retirement of Justice Khanwilkar, then CJI NV Ramana presided over the bench to consider the petitions.

While issuing notice on August 25, 2022, CJI Ramana-led bench orally observed that at least two conclusions of the judgment required relook - first, that the copy of the Enforcement Case Information Report (ECIR; equivalent of FIR in money laundering cases) need not be given to the accused, and second, the upholding of the reversal of presumption of innocence.

Thereafter, the Court allowed an application for open court hearing of the review petitions. Since the issuance of notice, the petitions were listed for hearing for the first time on August 7. On this date, the matter had to be adjourned at request of SG Mehta, who sought some time to prepare and argue.

(Note: The report was amended after the Court changed the date of listing in the afternoon session)

Case Title : Karti P Chidambaram v. The Directorate of Enforcement | RP(Crl) 219/2022 (and connected cases) 

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