Opinion DC Comment 29 Jul 2022 DC Edit | Larger ben ...

DC Edit | Larger bench should review legality of ED's wide powers

DECCAN CHRONICLE. | DECCAN CHRONICLE
Published Jul 29, 2022, 7:19 am IST
Updated Jul 29, 2022, 9:35 am IST
The court also did not find that the power of the officers of ED, under Section 50, in which they record the response or statements of the accused violates the principle that no person can be compelled to bear evidence or act as a witness against himself. — PTI
 The court also did not find that the power of the officers of ED, under Section 50, in which they record the response or statements of the accused violates the principle that no person can be compelled to bear evidence or act as a witness against himself. — PTI

It was a landmark observation made by the Supreme Court of India when, while reflecting on the argument of the Central government that a canon of natural justice on presumption of innocence was not a constitutionally guaranteed fundamental right, it said that the principle of innocence of an accused could be interdicted by a law made by the Centre or a state.

It was on the basis of this observation which sets aside, legally, a principle that any accused is innocent till proven guilty, one oft-regarded as an inviolable human right, that the apex court upheld the constitutional validity of the Prevention of Money Laundering Act (PMLA), 2002. The highest court of the land thus upheld the powers of the Enforcement Directorate (ED) to search, attach, arrest and seize properties in cases dealing with money-laundering.

Further, the Supreme Court also did not agree with the petitioner on another question of the procedure to be adhered to by the law enforcement agencies during arrest, saying it was “not compulsory” for the ED to give a copy of the Enforcement Case Information Report (ECIR) to the accused before the arrest, because the ECIR was not equal or same as a First Information Report (FIR). The Supreme Court said it would suffice if the officials of the ED merely disclosed the grounds of such an arrest.

The court did not agree with the batch of petitions, which argued that ECIR, as a provision, was opaque arbitrary and draconian, or that it violates the basic rights of an accused and was against the basic principles of the criminal justice system, or the guarantees enshrined in Articles 14, 20 and 21 of the Constitution.

The observations and directive of Supreme Court Justices A.M. Khanwilkar, Dinesh Maheshwari and C.T. Ravikumar have several far-reaching consequences for both law making houses as well as the courts, because another crucial legal aspect raised by the petition was of consequent onus of proving guilt. Did it lie with the law enforcement agency? The Supreme Court found no fault with Section 24 of the Act which put the burden on the accused to prove that the proceeds of the crime were “untainted property”.

Similarly, the court also did not find that the power of the officers of ED, under Section 50, in which they record the response or statements of the accused violates the principle that no person can be compelled to bear evidence or act as a witness against himself.

The court, reflecting upon the amendments to the Act, including the provisions of laying down conditions for bail under Section 45, which the Supreme Court itself struck down five years ago, went against its own wisdom, saying it was, “…open to the Parliament to cure the defect noted by this court”.

Recognising the seriousness and extent of money laundering, the highest court of the land called it a “scourge” and an offence “against the sovereignty and integrity of the country”, and put an end to the argument of political witch-hunts through misuse of the PMLA, because if the disease was as serious, its cure could not be dubbed “a hatchet” wielded against rival politicians. A seven-judge bench may review some of the aspects related to the legality of the passing of these amendments.

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