Supreme Court

J0udgements

JULY 2022
CORRUPTION CHALLENGES - LOKPAL, POCA, ETC
SC upholds powers of arrest
raid under PMLA for ED
Governance | GS2: Governance, Transparency & Accountability, Citizens Charters
Note4Students | From UPSC perspective, the following things are important :
Prelims level : ED, PMLA
Mains level : Read the attached story
The Supreme Court upheld the core
amendments made to the Prevention of Money
Laundering Act (PMLA), which gives the
government and the Enforcement Directorate
(ED) virtually unbridled powers of summons,
arrest, and raids, and makes bail nearly
impossible while shifting the burden of proof
of innocence on to the accused rather than the
prosecution.
Did the judgement say?
• The Supreme Court called the PMLA a law
against the scourge of money laundering and
not a hatchet wielded against rival politicians
and dissenters.
• M oney laundering is an offence against the
sovereignty and integrity of the country. It is
no less a heinous offence than the offence of
terrorism, the court noted.
Why in news?
• The verdict came on an extensive challenge
raised against the amendments introduced in
2002 Act by way of Finance Acts.
• The three-judge Bench said the method of
introduction of the amendments through
Money Bills would be separately examined by
a larger Bench of the top court.
What were the petitions?
• P etitions were filed against the amendments,
which the challengers claimed would violate
personal liberty, procedures of law and the
constitutional mandate.
• The petitioners included many veteran
politicians who all claimed that the process
itself was the punishment.
• There were submissions that the accuseds
right against self-incrimination suffered
when the ED summoned them and made
them sign statements on threats of arrest.
• But the court said these statements were
recorded as part of an inquiry into the
proceeds of crime.
• A person cannot claim right against self-
incrimination at a summons stage.
About Enforcement Directorate (ED)
• It goes back to May 1, 1956, when an
Enforcement Unit was formed in the
Department of Economic Affairs.
• It then aimed for handling Exchange Control
Laws violations under the Foreign Exchange
Regulation Act (FERA).
• The ED today is a multi-dimensional
organisation investigating economic offences
under the Prevention of Money Laundering
Act (PMLA), Fugitive Economic Offenders
Act, Foreign Exchange Management
Act and FERA.
From where does the ED get its powers?
• When proceeds of crime (property/money)
are generated, the best way to save that
money is by parking it somewhere, so one is
not answerable to anyone in the country.
• Therefore, there was a need to control and
prevent the laundering of money.
• The PMLA was brought in for this exact
reason in 2002, but was enacted only in 2005.
• The objective was to prevent parking of the
money outside India and to trace out the
layering and the trail of money.
• So as per the Act, the ED got its power to
investigate under Sections 48 (authorities
under act) and 49 (appointment and powers
of authorities and other officers).
At what stage does the ED step in when a
crime is committed?
• Whenever any offence is registered by a
local police station, which has generated
proceeds of crime over and above 1 crore,
the investigating police officer forwards the
details to the ED.
• Alternately, if the offence comes under the
knowledge of the Central agency, they can
then call for the First Information Report (FIR)
or the chargesheet if it has been filed directly
by police officials.
• This will be done to find out if any laundering
has taken place.
What differentiates the probe between the
local police and officers of the ED?
Case study:
• If a theft has been committed in a
nationalised bank, the local police station will
first investigate the crime.
• If it is learnt that the founder of the bank
took all the money and kept it in his house,
without being spent or used, then the crime
is only theft and the ED wont interfere
because the amount has already been seized.
• But if the amount which has been stolen
is used after four years to purchase some
properties, then the ill-gotten money is
brought back in the market.
• O r if the money is given to someone else
to buy properties in different parts of the
country, then there is laundering of money.
• H ence the ED will need to step in and
look into the layering and attachment of
properties to recover the money.
• If jewellery costing 1 crore is stolen, police
officers will investigate the theft. The ED,
however, will attach assets of the accused to
recover the amount of 1 crore.
What are the other roles and functions of
the ED?
• The ED carries out search (property) and
seizure (money/documents) after it has
decided that the money has been laundered,
under Section 16 (power of survey) and
Section 17 (search and seizure) of the PMLA.
• O n the basis of that, the authorities will
decide if arrest is needed as per Section 19
(power of arrest).
WOMEN EMPOWERMENT ISSUES - JOBS,RESERVATION AND EDUCATION
Women have Right to
Safe Abortion: SC
Polity | GS2: Indian Constitution - historical underpinnings, evolution, features, amendments,
significant provisions and basic structure
Note4Students | From UPSC perspective, the following things are important :
Prelims level : Right to Safe Abortion
Mains level : MRTP Act
Denying an unmarried woman the right to a
safe abortion violates her personal autonomy
and freedom, the Supreme Court held in
an order.
What did the SC say?
• A womans right to reproductive choice is
an inseparable part of her personal liberty
under Article 21 of the Constitution.
• S he has a sacrosanct right to bodily integrity,
the court quoted from precedents.
• The court said forcing a woman to continue
with her pregnancy would not only be a
violation of her bodily integrity but also
aggravate her mental trauma.
Indispensable clause of safety
• The court ordered a medical board to be
formed by the AIIMS to check whether
it was safe to conduct an abortion on the
woman and submit a report in a week.
What is the case?
• A Bench led by Justice D.Y. Chandrachud was
hearing the appeal of a woman who wanted
to abort her 24-week pregnancy after her
relationship failed and her partner left her.
• U nder Section 50, the ED can also directly
carry out search and seizure without calling
the person for questioning.
• It is not necessary to summon the
person first and then start with the search
and seizure.
• I f the person is arrested, the ED gets 60
days to file the prosecution complaint
(chargesheet) as the punishment under
PMLA doesnt go beyond seven years.
• If no one is arrested and only the property
is attached, then the prosecution complaint
along with attachment order is to be
submitted before the adjudicating authority
within 60 days.
Can the ED investigate cases of money
laundering retrospectively?
• If an ill-gotten property is acquired before
the year 2005 (when the law was brought
in) and disposed off, then there is no case
under PMLA.
• T he lower court had taken an unduly
restrictive view that her plea for a safe
abortion was not covered under the Medical
Termination of Pregnancy Act.
• This was since the pregnancy arose from a
consensual relationship outside wedlock.
What was the last amendment?
• The court noted that an amendment to
the Act in 2021 had substituted the term
husband with partner, a clear signal that
the law covered unmarried women within
its ambit.
Reiterating the live-in recognition
• C hastising the lower court, the Bench
said live-in relationships had already been
recognised by the Supreme Court.
• There were a significant number of people
in social mainstream who see no wrong in
engaging in pre-marital sex.
• The law could not be used to quench notions
of social morality and unduly interfere in
their personal autonomy and bodily integrity.
• But if proceeds of the crime were possessed
before 2005, kept in storage, and used after
2005 by buying properties, the colour of the
money is still black and the person is liable
to be prosecuted under PMLA.
Under Section 3 of PMLA, a person shall be
guilty of money-laundering, if such person is
found to have directly or indirectly attempted
to indulge or knowingly assist a party involved
in one or more of the following activities:
• Concealment; possession; acquisition; use; or
projecting as untainted property; or claiming
as untainted property in any manner etc.
Also read:
https://www.civilsdaily.com/burning-issue-
enforcement-directorate-ed-dreaded-
nightmare-of-indian-politicians-businessmen/
Back2Basics: Medical Termination of
Pregnancy (MTP) Act
• Abortion in India has been a legal right
under various circumstances for the last
50 years since the introduction of the
Medical Termination of Pregnancy (MTP)
Act in 1971.
• The Act was amended in 2003 to
enable womens access to safe and legal
abortion services.
• Abortion is covered 100% by the
governments public national health insurance
funds, Ayushman Bharat and Employees
State Insurance with the package rate for
surgical abortion.
The idea of terminating your pregnancy
cannot originate by choice and is purely
circumstantial. There are four situations
under which a legal abortion is performed:
• If continuation of the pregnancy poses
any risks to the life of the mother or
mental health
• If the foetus has any severe abnormalities
• If pregnancy occurred as a result of failure of
contraception (but this is only applicable to
married women)
• If pregnancy is a result of sexual
assault or rape
These are the key changes that the Medical
Termination of Pregnancy (Amendment)
Act, 2021, has brought in:
• The gestation limit for abortions has been
raised from the earlier ceiling of 20 weeks
to 24 weeks, but only for special categories
of pregnant women such as rape or incest
survivors. But this termination would need
the approval of two registered doctors.
• A
 ll pregnancies up to 20 weeks require one
doctors approval. The earlier law, the MTP
Act 1971, required one doctors approval for
pregnancies upto 12 weeks and two doctors
for pregnancies between 12 and 20 weeks.
• W
 omen can now terminate unwanted
pregnancies caused by contraceptive
failure, regardless of their marital status.
Earlier the law specified that only a married
woman and her husband could do this.
• There is also no upper gestation limit for
abortion in case of foetal disability if so
decided by a medical board of specialist
doctors, which state governments and union
territories administrations would set up.