SC Issues Notice On Congress Leader's Plea Challenging Vires Of Sections 50 & 63 Of PMLA, Seeking Quashing Of ED Summons

The Supreme Court, today, issued notice on a Writ Petition under Article 32 seeking to declare Section 50 and Section 63 of the Prevention of Money Laundering Act, 2002 as ultra vires the Constitution of India. The plea also challenges the Enforcement Directorate's (ED) summons issued to the petitioner Congress leader.

After considering the submissions made by Senior Advocate Kapil Sibal, a Bench of Justice Sanjay Kishan Kaul, Justice Ahsanuddin Amanullah and Justice Aravind Kumar issued notice in the matter and posted it for consideration after six weeks.

At the outset, Sibal submitted, "this is an ECIR in which we don't even know in what capacity I am being called in... we are challenging Sections 50 and 63 of the Act."

The petitioner sought interim protection from coercive action by the Enforcement Directorate. The Bench responded by saying that it is a matter which will require some hearing and issued notice in the petition as well as the application seeking interim protections.

Leader of the opposition and Congress MLA in Madhya Pradesh, Dr. Govind Singh, in the petition moved through AOR Sumeer Sodhi, states that "the challenge is based upon the Directorate of Enforcement to summon any person to record his statement under Section 50 of the act and requiring that person to speak the truth in such statements is violative of Article 20(3) and 21 of the Constitution of India."

The plea states that "petitioner is conscious of the recent judgement of this Court whereby a challenge to vires of Section 50 of the PMLA has been turned down in the case of Vijay Madanlal Chaudhary & Ors. v. Union of India & Ors. reported as 2002 SCC Online SC 929. However, the petitioner being an informed citizen of this country has certain grounds to urge as to why the said judgement in Vijay Mandal (supra) deserves to be held as per incuriam".

The petitioner has also stated that the Vijay Mandal judgement (supra) deserves to be settled by a larger Constitution Bench in terms of Article 145(3) of the Constitution. The plea states that PMLA is essentially a criminal law and the person investigating would essentially be a police officer. Hence the investigation under Section 50 should be subject to safeguards provided under the CrPC, Evidence Act and the Constitution.

The plea further reads that neither the petitioner has been supplied with a copy of the ECIR nor have any details of the same been provided, keeping the petitioner completely unaware of the scope of the investigation or the allegations being investigated. It states that without being aware of such details, it would be futile to join such an investigation.

The petitioner has sought reference of Vijay Mandal's judgement to a Constitution bench and states that in the judgement the Court ought to have created a harmonious balance between the power of ED to inquire vis-a-vis an individual's right against self-incrimination. It also states that as per the information available, Review Petition (Crl.) No. 219 of 2022 in Transferred Case (Crl.) No. 4/2018 is currently pending adjudication before this Court against Vijay Mandal's judgement.

The petition state that the impugned summons was issued out of malice and sheer political vendetta with an intent to coerce, harass and intimidate the petitioner who is an elected member of the Madhya Pradesh Legislative Assembly and that the powers under the PMLA are to be used for controlling the menace of the money laundering, and not prevent public servants from fulfilling their duties to stifle the opposition.

The Court will take up the matter after six weeks.

Cause Title: Govind Singh v. Union of India and Anr. W.P. (Crl.) No. 65 of 2023