January 22, 2025

Supreme Court Rightly Agrees To Review Two Aspects Of Its Earlier PMLA Verdict

By Sunil Garodia
First publised on 2022-08-26 05:28:08

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Editor-in-Chief of indiacommentary.com. Current Affairs analyst and political commentator.

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The Supreme Court has decided to review two controversial aspects of its July 27 verdict on the PMLA Act and the powers of the Enforcement Directorate (ED) relating to providing Enforcement Case Information report (ECIR) to the accused and the reversal of presumption of innocence. The Supreme Court bench in its earlier order had held that it was not mandatory for the ED to provide the ECIR to the accused at the time of arrest. It had also held that the onus of proving his or her innocence was on the accused, making it difficult for them to secure bail.

It is good that the Supreme Court has decided to review these two aspects in its earlier order. It defies logic to prevent an accused from knowing for what he or she is being arrested. If the ECIR is not provided at the time of arrest, the accused would also not be able to prepare a legal defence as they would not know the reason of their arrest. It is against law, due process and legal conventions to deny the accused the right of defending themselves against the charges.

Further, it is a legally established principle that an accused is presumed to be innocent till a court finds him guilty. By shifting the onus of proving innocence on the accused, the earlier order had turned the principle on its head. It would have become extremely difficult for a person arrested under PMLA to get bail, once again going against the legal principle of bail not jail.

The court agreed that as per the plea the flagged issues needed a relook. The bench said that the object of the PMLA "is noble" but also said that "the procedural aspects, which you (the petitioners) are having objections to, prima facie we feel only these two areas - non-provision of ECIR and reversal of presumption of innocence - require relook". However, CJI NV Ramana added that "we are not opposing any of these actions of the government and its agencies to stop money laundering, or bringing back black money" which, he added, "are serious offences which have to be taken to their legal conclusion".

There is no doubt that money laundering, benami transactions and financial fraud are akin to financial terrorism and have the effect of destroying the economy of the nation. The Supreme Court has always held that these are serious offences and the accused deserve no sympathy. But by agreeing to review the said two aspects of its earlier order, the apex court has also recognized that the ED cannot be armed with draconian powers and the accused have the right to defend themselves against the charges and obtain bail. Also, the onus of proving them guilty must remain with the prosecution.