New Delhi: In a sense, the hearing by the Supreme Court’s Special Bench, which agreed to revisit its 2022 judgment upholding the Prevention of Money Laundering Act (PMLA) was doomed from the start, with the Union government questioning its legitimacy. Yet, Justice S.K. Kaul, who led the three-judge bench also comprising Justices Sanjiv Khanna and Bela M. Trivedi, sought to go ahead with the hearing initially, dismissing the Union government’s contentions against the bench’s jurisdiction to hear the case with the hope that it would be able to complete the hearing and deliver a verdict before Justice Kaul’s last day in office on December 16, prelude to his retirement on December 25.
On November 23, Thursday, the second day of the hearing, however, the bench understood the futility of hearing the case, with the Union government continuing to obstruct the hearing. Solicitor general Tushar Mehta, who realised that he could not persuade the bench not to hear the case, sought more time to respond to the arguments of the petitioners, who he alleged, had “expanded their challenge to the 2022 verdict beyond the issues they had initially raised”.
On Wednesday and Thursday, the petitioners’ senior counsel, Kapil Sibal, made detailed submissions before the bench, which in retrospect, seemed to be in vain. Senior counsel Abhishek Manu Singhvi, who made submissions on behalf of another petitioner Sanjay Chabbaria on Thursday, vehemently protested against Mehta’s plea for more time to respond, saying the petitioners had not raised any new points, and were not pressing their amendments.
Notwithstanding the waste of judicial time, Mehta’s plea landed the bench in a quandary. Justice Kaul pleaded helplessness, by saying he was adjourning the hearing, and placing the case before the Chief Justice of India for constituting a new bench to hear it, in view of his impending retirement. “I am doing this with a little heavy heart,” he said, while dictating the order.
In response to Mehta’s plea for more time to respond to new points in the amended petition, Justice Kaul said tongue-in-cheek: “We know everything. But sometimes, things must be left unsaid.” He continued: “On this side, we see and hear many things, but we don’t say many things. On a lighter note, I will have that privilege from January 1.”
Background
The case before the special bench sought a reference of the court’s previous decision in Vijay Madanlal Choudhary vs Union of India (2022) to a larger bench. The 2022 judgment was rendered by a three-judge bench comprising Justices A.M. Khanwilkar, Dinesh Maheshwari and C.T. Ravi Kumar. The judgment, authored by Justice Khanwilkar two days before his retirement, upheld the wide powers of the Directorate of Enforcement (ED) to issue summons, record statements, make arrests and search and seize property. It was also held that the Act, which imposes its own bail conditions, is not a penal law.
Mehta opposed the hearing by the special bench – also comprising three judges – on the ground that reconsideration of a coordinate bench decision was an ‘abuse of the process of law’. Mehta also opposed it on the ground that a review petition against the 2022 judgment was pending before the court.
The Justice Kaul-led bench, however, rejected the contention by relying on precedents to justify the reconsideration of a judgment by a coordinate bench of similar strength. The bench reserved its right to consider whether the case should be referred to a larger bench.
On Wednesday, Sibal contended before the bench that the 2022 judgment erroneously upheld provisions which breached personal liberty under Article 21. On Thursday, Singhvi sought to substantiate that amendments to Section 45 of the PMLA – relating to cognisable and non-bailable offences – were wrongfully upheld in the 2022 judgment.
The composition of the new bench, to be constituted by the CJI, to hear the case, will indicate whether the case will at all be heard by a larger bench.
