New Delhi: A special bench comprising three judges of the Supreme Court on Wednesday (October 18) appeared inclined to consider arguments in favour of referring the July 2022 judgment of the court in Vijay Madanlal Choudhary vs Union of India to a Constitution bench of five judges. The judgment upholding the constitutionality of the Prevention of Money Laundering Act, delivered by a three-judge bench led by Justice A.M. Khanwilkar who had since retired, was highly controversial in view of its adverse effects on citizens’ fundamental rights.
The Supreme Court already has review and curative jurisdictions to reconsider its judgments on specific grounds. But these jurisdictions have been found to be inadequate to consider challenges to the court’s judgments on substantial grounds.
The review jurisdiction enables the court to correct errors apparent on the face of the record, while the curative jurisdiction enables a litigant to challenge a judgment of the apex court on the ground of violation of natural justice. The Supreme Court generally discourages litigants from filing writ petitions to challenge judgments delivered by it earlier. The review and curative petitions are generally heard in chambers by judges who had given the verdict earlier, and if those judges had retired in the meantime, successor judges are nominated to hear them by the Chief Justice of India in his administrative capacity. Although most review and curative petitions get dismissed by the judges, some of them do get their approval for ‘open hearing’, when lengthy arguments are heard and decided.
The Supreme Court’s July 2022 judgment in Vijay Madanlal Choudhary vs Union of India delivered by a bench comprising Justices Khanwilkar, Dinesh Maheshwari and C.T. Ravikumar had upheld, among other things, the power of the Enforcement Directorate to arrest in money laundering cases. It upheld various contested provisions of the PMLA, on the ground that all the provisions have a reasonable nexus with the objects sought to be achieved by the Act in preventing money-laundering effectively.
On August 25, 2022, the court heard the review petitions in open court and observed that its judgment required reconsideration on two aspects: non-supply of the Enforcement Case Information Report (ECIR) – which is akin to the FIR in other cases – to the accused; and the reversal of the presumption of innocence of the accused under Section 45(1) of the PMLA. The review was heard by a three-judge bench comprising the then CJI, N.V. Ramana, and Justices Maheshwari and Ravikumar, as Justice Khanwilkar had retired in July 2022. Chief Justice Ramana had made it clear that his brother judges on the bench were not agreeable to examine issues other than the two aspects.
On Wednesday, with the review petition still pending before the court, the case was listed along with other cases before another three-judge bench, comprising Justices S.K. Kaul, Sanjiv Khanna and Bela M. Trivedi. Solicitor General Tushar Mehta vehemently protested against the hearing as in his view, it is tantamount to hearing an appeal over another coordinate bench and, therefore, would constitute an abuse of process of law.
Justices Kaul, Khanna and Trivedi, however, found nothing unusual in the hearing of the case, as in their view only if they found a prima facie ground for reconsidering the 2022 judgment would it be referred to a larger bench.
Mehta submitted that this new practice by the court would enable any litigant unhappy with a decision of the court to approach another bench of the court to reconsider it, thus skipping the court’s review jurisdiction.
Justice Kaul dismissed Mehta’s apprehension that there is reason for the court to be alarmed by this new practice. Justice Kaul’s answer was that the court was “alert” to this departure from the standard practice, but certainly not “alarmed”, as the court had sufficient powers to revisit its judgments to correct injustice.
Mehta then sought to persuade the bench to defer its hearing by a month, in view of the periodic evaluation by the Financial Action Task Force (FATF), a global money laundering and terrorist financing watchdog whose guidelines were a trigger to enact the PMLA. He invoked the ground of national interest to persuade the bench unsuccessfully. But the bench disagreed, saying that its hearing the case cannot be against the national interest. Frequent interruptions by Mehta and Additional Solicitor General S.V. Raju during the proceedings led to Justice Kaul reasserting the court’s power to hear the matter. As Justice Kaul is retiring on December 25, the government appeared to be keen on delaying the hearing, so that it could be listed before another bench which Justice Kaul may not be a part of.
The bench will hear the matter again on November 22, when the petitioners’ counsel are expected to articulate reasons why the court’s review jurisdiction is insufficient to reconsider the 2022 verdict, now under challenge on many constitutional grounds.
