The recent Supreme Court’s rulings on the Enforcement Directorate's (ED) powers of arrest, specifically on the manner of informing the accused of the grounds for arrest, have introduced a level of complexity and uncertainty. On December 15, the Supreme Court, in a decision by Justices Bela Trivedi and Satish Chandra Sharma, declared that oral information suffices at the time of arrest, with a written explanation required within 24 hours. This ruling marks a departure from the October 3 decision that insisted on written communication during arrest and this is now destined to create confusion for the agency.
The framework of ED's powers of arrest:
To comprehend the impact of these rulings, it is essential to understand the legal framework governing the ED's powers of arrest. Section 19 of the Prevention of Money Laundering Act (PMLA) 2002 empowers authorised ED officials to arrest individuals based on credible evidence of their involvement in offenses punishable under the law. However, this authority comes with the obligation to record the reasons for such belief in writing and to inform the accused "as soon as may be." Notably, the arrested individual must be presented before a Special Court, Judicial Magistrate, or Metropolitan Magistrate within 24 hours. However, certain preventive detention laws, as outlined in Article 22(3)(b), exempt individuals from these safeguards.
Decoding the December 15 ruling:
The December 15 ruling, prompted by a plea from Ram Kishor Arora, founder of Supertech Limited, introduces a nuanced interpretation of the temporal aspect of informing the accused. Justices Trivedi and Sharma stressed that the phrase "as soon as may be" should be construed to mean "as early as possible," "without avoidable delay," or within a "reasonably requisite" period. The oral communication of arrest grounds is deemed sufficient at the time of arrest, with a subsequent requirement for a written explanation within 24 hours. This ruling is a marked departure from the October 3 decision, creating a potential conflict in legal interpretation.
Retrospective application and the Pankaj Bansal case:
Arora's plea contended that his arrest, based on oral intimation alone, violated Section 19(1) of the PMLA and his fundamental rights. The court's response to this argument hinged on the retrospective application of the October 3 ruling. The December 15 decision categorically stated that the Pankaj Bansal ruling, which mandated the written furnishing of arrest grounds at the time of arrest, cannot be applied retrospectively. The court justified this stance by highlighting that Arora's arrest occurred on June 26, approximately three months before the October 3 ruling. This temporal distinction becomes crucial in understanding the court's rationale.
Superseding Bench decisions: Vijay Mandanlal Choudhary's case:
The December 15 ruling further underscored its authority by invoking a subsequent decision in Vijay Mandanlal Choudhary vs. UOI, which was delivered on July 27. The court emphasised that since the October 3 ruling was by a two-judge Bench, it could easily be superseded by the July 27 decision, which involved a three-judge Bench. This hierarchical consideration brings forth the complexity of legal precedent when decisions of different strengths seemingly contradict each other.
Vijay Madanlal Choudhary's case and upholding Section 19:
On July 27, a Bench comprising Justice CT Ravikumar, along with now-retired judges AM Khanwilkar and Dinesh Maheshwari, upheld the validity of key provisions of the PMLA. The court's comprehensive ruling accepted the government's arguments on various contentious aspects, including the reversal of the presumption of innocence, the passage of amendments as a Money Bill, and the delineation of ED's powers. Notably, the validity of Section 19 was affirmed, emphasizing its reasonable nexus with the objectives of the PMLA.
Pankaj Bansal's case and the requirement for written grounds:
On October 3, Justices AS Bopanna and Sanjay Kumar, in the Pankaj Bansal case, mandated the furnishing of written grounds for arrest at the time of arrest. The court asserted that the word "henceforth" in its ruling implied its application to cases where the arrest took place after October 3, not before. This decision departed from the previous practice of oral communication alone and introduced a more stringent requirement for a written explanation during the arrest process.
Inconsistency between Benches of equal strength:
The divergence between the two rulings raises questions about the consistency and predictability of legal outcomes. While the rule of precedents is designed to provide a stable foundation for legal decisions, the situation becomes complicated when two Benches of equal strength arrive at different conclusions on the same legal issue. The 1989 ruling in UOI Vs Raghubir Singh established the principle that a statement of law by a Division Bench is considered binding on a Division Bench of the same or lesser number of judges. However, the 2002 ruling in Pradip Chandra Parija Vs Pramod Chandra Patnaik introduced the possibility of referring the matter to a higher Bench if two Benches of equal strength reach conflicting conclusions.
Conclusion:
The recent Supreme Court rulings on the ED's powers of arrest showcase the intricate interplay between legal interpretations, temporal considerations, and hierarchical authority within the judicial system. The December 15 decision, while providing clarity on the temporal aspect of informing the accused, introduces a potential conflict with the earlier ruling on written grounds during arrest. The retrospective application of precedent, as evident in the Pankaj Bansal case, further adds layers of complexity to the legal landscape. The dynamics of legal precedent and the potential for inconsistency between Benches of equal strength highlight the evolving nature of judicial interpretations. As the legal community navigates these nuances, the need for a cohesive and well-defined framework becomes increasingly evident to ensure the equitable application of justice and the protection of individual rights within the contours of the law.
(The writer is an advocate, Orissa High Court, Addl. Central Government Standing Counsel, CAT, Cuttack Bench, Consulting Editor-Legal Affairs and Public Policy, The Pioneer, Bhubaneswar, and a Distinguished Adjunct Professor of Law and Media Studies, School of Mass Communication, KIIT University. Views are personal)
