'ED Being Misused Politically, PMLA Has Become Draconian Law' : Kapil Sibal & P Chidambaram Discuss

[Music] [Applause] [Music] in this episode of Dil say I'm going to have a conversation which with one of perhaps the tallest leaders of the country a man of great intellect a man who even if you don't like him you'll have to respect him he's a man of few words very sharp very measured and a man who has been in politics since 1972 held many portfolios he entered the Congress in 72 in 84 he became a minister Deputy minister of Commerce then he became a minister in a subsequent government in narim R's government he was held the ministry of Commerce twice in uh and and of course then he went on to become the Finance Minister gave a dream budget to this country in 1997 then uh became the Finance Minister in the UPA became home minister so a a lifespan in politics and an understanding of Economics that none can match and that man is Mr chamam thank you very much for being here good evening but we're going to talk not so much about um the various portfolios you held but on the pmla and the reason is that it's much in the news it's being misused on a daily basis by this government and they say that you brought in the law I have the book with me it says prevention of moneya laundering act 2002 it is act 15 of 2003 this is Mr vaj pai's government this law was passed in Mr vaj pai's government for whatever reason they did not notify it it received the asent of the president on 1712 2003 long before UPA came into office in the meanwhile pressure was exerted by the fatf financial action task force of which we are a member see why are you not not notifying the act so when we came into office in 2004 the pressure has mounted so much and there were even questions why is this act not being notified therefore we had no option but to notify the ACT but I did make a couple of amendments and then notified the act so this this is not my baby or the upa's baby this was inherited and little did we know at that time that this will be grossly misused there is a way of reading an act there's a way of applying an act uh a law has to be read reasonably fairly and applied reasonably and proportionally this law has been completely Mis used which is why I've been saying if the Congress comes back to Power we'll repeal this law and reenact a better law but that's a question of when and if well I don't know but this is on top of the agenda this law has vested arbitrary untrammeled power upon one investigating agency which is now more powerful than all the investigating agencies put together but let me ask you I think people don't know those who are watching this program will not know what is this fatf see it's a financial action task force a voluntary body of practically all the major economies of the world and U unless you become a member of the fatf and address the issue of money laundering they will not exchange information with you they will other countries which will place large restrictions upon Capital flows inflows outflows especially sharing of information we are now part of the global economy and we need information we need to give information take information we are nowhere near the scale of moneya laundering that happens in say Russia or even the United States uh those of on gargantuan proportions but Indians abroad nris Indians with businesses abroad have transactions and unless we fall in line with the internationally accepted Norms of money laundering and the law to curb money laundering we will be exclud included from the information exchange well you know since we are friends for a long time I can call you PC I just want to know from you the Genesis of this law is related to drug money yes being laundered and uh terrorist money being laed or or or uh uh mostly Drug Money mostly drug money and terrorist yes and human trafficking and human trafficking so these were the these are the major uh say businesses in which money is so if that's the Genesis of the law this schedule of the pmla Mak scheduled offenses means offenses which they consider scheduled offenses which involves perhaps every law in this country right including provisions of the code of of the Indian Penal Code yes like 400 420 which is cheating uh uh forgery of a document so the result is that in any any civil action or criminal action on cheating you can arrest a man and the bail Provisions are such that he will not be released on bail see this schedule has made this act worse but who made the schedule yeah all right the schedule was inserted initially in the original act it was a very short schedule it had part A and Part B and um the Lesser so-called lesser offenses were in part P but this schedule has been amended twice or more major amendments were made in 2013 and in 2018 2013 this act um came into force on 152 2013 again the schedule was amended um in 2018 the amendments to the schedule have made the matters worse and um this is because uh uh the pressure from the uh directorate of enforcement that unless these offenses are added it it's not possible for them to file a comprehensive complaint or a judge but if you if you have an offense like 420 that is cheating yes right and under ordinary law you can get bail the moment you add that in the schedule an ordinary action on cheating a criminal action on cheating also becomes a scheduled offense corre and people can't get bailed so so I mean why why should this have happened at all this was wrong there no question about it this was wrong and the schedule should have been kept short and tight the schedule should not have been extended but uh perhaps there was pressure from the F fatf to add more more offenses to the schedule I mean I can't remember now this happened um this exercise happened during the period I was away from the finance ministry but I will now admit that this enlargement of the schedule was clearly wrong because you were a finance minister from 2008 to 2012 yes right and then you became a home minister so why when this schedule was amended in 2013 no no 200 uh 8 to 2012 I was not finan yeah exactly you were financ of 2014 to 2008 2004 to8 so when you were Finance Minister in 2013 this amendment took place yes but this is an amendment the the the law is notified as act um um this was expanded schedule was expanded at that of 2013 uh but the schedule had been drawn up and I think uh the bill was introduced or passed uh earlier I know that but what I'm trying to say is that this expansion of the schedule took place during our time oh during UPS time about it but who was the Finance Minister introduce the bill um I can't remember it doesn't matter we have to take Collective responsibility for the schedule which is why I say I have no hesitation in admitting the enlargement of the schedule was wrong yeah but then of course the problem is then when this act was challenged and when the Supreme Court rendered that decision which I think we've been trying very hard to question it and say that look it should be referred to a larger bench uh and in the context what's been happening in this country by the misuse of this act uh we are not seeing uh the court actually looking at this whole law and the impact of it on the poity of the country see in my respectful view respect to the three judge bench which decided the challenge to the pmla that judgment is contrary to well settled principles of law and the review petition that is been filed is a comprehensive review petition which questions major conclusions unfortunately the review petition has not been posted for hearing remember your viewers should know that the review petition was admitted by a three judge bench of which chief justice Ram was the cor judge he clearly said in his order on two issues at least this judgment deserves to be reviewed correct uh he didn't specify the two issues but we all know what the two issues are subsequently benches of questioned one or other of conclusion and then when fresh R petitions were filed a three judge bench heard arguments led by you for almost um 2 or 3 days and they were pretty satisfied that the matter must be referred to a larger bench for review so I don't think the fact that the Supreme Court has pronounced this act by and large valid should inhibit us from discussing the weaknesses of the Judgment this must be reviewed and the sooner it's reviewed the better the danger of not reviewing is the following where the cusp of the 2024 Lo saah election if this law is not reviewed the manner in which this law is being used against every opposition leader in this country will in fact turn the tables as far as I have no doubt about it they have arrested ministers yes they've arrested a chief minister correct it's never happened in the country before it never happened and this was uh not the uh concept of federalism that um was thought of by the founders now imagine if the state government starts a arresting Union ministers this is a mous thought you can't state governments can't use that law unfortunately not under this law yeah every Minister belongs to a state he will have property there he'll have family there um you can always level a charge against a Sitting Union Minister and the state police can arrest him and throw him in jail this is completely destructive you see the right thing to do is for example when a when there's a charge against a judge the law today is you know better that you'll have to bring the material to the notice of the Chief Justice if the Chief Justice permits a loan you can do an investigation and before anything happens to him he will be persuaded to Tender his resignation so this is the Ed allegedly acting independently is um raiding ministers raiding Chief ministers questioning Chief ministers um if the tables are turned and if the state government does starts doing that under the regular criminal law and other state laws against uh Union ministers this country's uh Constitution will break down governance will break down I think it's already broken down if you ask me well it's already broken down uh um and uh what is left if the Ed goes only to the opposition States yes targets opposition leaders targets sitting Chief ministers right threatens to arrest them especially when we are in the cusp of 2024 election what's going to happen to our Po and then and then the other thing is that when you fight an election every every every candidate when he fights an election has to disclose what criminal charges are pending against him and there are if you go to the election commission's website you will find that many of the Ministers of the center and those who fought elections have several criminal charges including Chief ministers in various States so the Ed you know doesn't go to them doesn't doesn't doesn't as to the best of my knowledge Ed is not picked up an F in a scheduled offense against any Union minister of the BJP government but why doesn't the court take note of that fact well uh the court will say um uh you approach the Ed give information but the Ed won't do anything no I'm saying something else the court knows that only opposition leaders are being targeted all that the court has to do is to have Su Moto start an action yes tell the Ed to disclose to them all information regarding every minister or every candidate who has fought of all political parties who got an offense who got an offense pending against him and ask the Ed as to why they have not taken action against them and why are they taking action against the opposition leaders and the cattle out of the bag we'll know exactly how partisan this institution is I tweeted there are some um 30 uh 90 or so BJP MPS yes and I think all over the country there have um several thousand ml yes and especially the those of defected from other parties to the BJP which is why we call the BJP the great laundry machine washing machine yes political laundry not money laundering but political laundry moment you cross over all your offenses are all your sins are washed away all your sins are washed away I can name Chief ministers I can name Union ministers I can name State ministers who have got charges against them investigated by the BJP government CBI or any other agency and then once it even Ed has investigated them but once you cross over all files are so then what does it tell you about the Ed it shows that it's it's it's a completely politically driven a so why should the court not intervene it should it should I I hope um some judges uh some judge listens to your uh interview on this conversation and uh ask uh fellow judges why are we not intervening exactly the other big issue that that I think that needs to be discussed is that the three judge bench of the Supreme Court when dealing with the pmla said it's not a penal statute it's not a penal statute and these are not police officers that's a separate issue but first both both are important both are important uh if they are police officers this becomes a penal statute right if it's a penal statute officers will become police officers absolutely and today the only evidence which the Ed has in many many cases is to coers people to make statements sign it under Section 50 or so and then say you have made a confession absolutely which will be completely ruled out in any Criminal Court under criminal law and Indian Evidence Act but the Ed's best evidence is co statements or confessions from the accused or the accusers accomplice no the the the significant thing about this law is under the code of criminal procedure when you call somebody you call him either in his capacity as a witness when an offense is being investigated or is an accused if you call him in the capacity of a witness which you have to disclose yes then he has to make a statement yes if you call him in his capacity as an accused then he has to he seek the protection of the Constitution the right to in the pmla in the pmla you do not the the the the the Ed doesn't have to inform the person concerned who they call whether they are calling him in the capacity of an accused or in the capacity of a witness this is the point which uh Mr Arvin krial has raised and I have seen summons any number of summonses where information according to the schedule and the schedule is blank yes the schedule is blank you are summoned to uh bring information according to the schedule and the schedule is completely blank absolutely you don't know which is the predicate offense for which uh you being summoned you don't know the uh allegations which led to the Ed to start taking action you don't know what information you're supposed to bring what docu doents you're supposed to bring you go there with a blank mind and he can ask you any questions and I have not seen a case where Ed does not come out next day with a press statement 7 hours of grilling eight hours of grilling and U this is this is contrary to all fair procedure not only that I think it's a very serious issue for the reason I remember that uh that they made such scandalous allegations About Properties located outside of India yes right and since then several years have passed what's happened to those allegations it just shows they wanted to to defame individuals they wanted to destroy their reputation they had no evidence and they just wanted to incarcerate the person concerned now this is this is something that's unacceptable in a country governed by the rule of law that's why you see to undo the damage the only way is to repeal this law and constitute a group of uh jurists and experts to draft a proper prevention of money laundering law nobody is questioning that money laundering is a is a serious offense in this interconnected World money laundering must be made punishable but this is not this is not targeting money laundering this is targeting the alleged money launderer because he's a political person that's correct that's correct absolutely right now let me most people may not even know what's the difference between uh crime proceeds of crime and money laundry most people would not know but let me give a simple example if you have some dirty clothes in your home and you put it in a machine in a washing machine they come out clean so the difference between proceeds of crime is like dirty clothes and money laundering is you launder in those clothes in such a way in the the washing machine that they come out clean so if you have dirty money with you you launder it and to tell the public that this is clean money so if you take a bribe yes take a bribe invest it in property and show as if this money you already had you're laundering it right that's what the meaning is correct now the problem with this law is money laundering is the offense not proceeds of crime correct if money laundering is the offense and you are if you are convicted you are punished maximum of s years and in other cases 10 years how is not a penal statute no no it is obviously a penal statute obiously a penal statute because the the the the foundation of the statute is a crime has been money laundry crime has been committed yes under a predicate offense the0 cheating is a predicate offense predicate offense there's a crime has been committed now a crime can be committed without money involved correct you can murder somebody for rivalry but there's no money involved correct you can also murder somebody and burglar his house you can the second one gives rise to a proceeds of crime correct murder with burglary gives rise to proceeds or Ransom murder for ransom yes proceeds of crime that proceeds of crime if you want to charge somebody with money laundering he must convert that crime tainted money and to make it appear to be clean clean bu untainted Mone that he earned it as a lawyer or a doctor or a businessman if this that money is Tainted no question but only when he converts the money or projects the money or makes it appear that to the world that this money is not tainted he is guilty of money laundering now unfortunately the three judge bench lost this distinction and it went on to say which I think is plainly wrong that every proceeds of crime becomes money la la yes uh the distinction between a predicate offense and the special offense of money laundering has been completely obliterated by the Judgment which is but we hope uh new bench will understand and appreciate and but when but when I don't know you know better you you toil for 2 three days uh trying to convince bench but I think there were differences between the judges and one of the judges was retiring in um a couple of weeks thereafter and I think he he just gave up there but um uh I think um uh the presiding judge Justice Sanjay call ought to have persuaded his um Brethren that we must refer the matter and let a larger bench decide the matter well that matter is over now the other aspect on this act is something that again worries me is that Parliament amended certain provisions of this act by through the finance bill yes right and and and therefore the Amendments never went to the rajas saaba yes so under ordinary laws if you amend an act it goes to the Raja and the Raj disagrees then the ACT cannot be passed yes but because it was included in the finance bill and some very drastic amendments were made through the finance bill and they called it therefore a money Bill therefore this may went the Amendments never went to the rajas SAA that's created a lot of problems no no the key Provisions which which are being questioned today are all by money bills that's right the idea was that the rajas saaba should not scrutinize it let's not mince words the rajas saaba should not scrutinize it because of the rajas saaba had scrutinized it at that time the BJP did not have a majority clear majority it's possible that the bill would have been defeated or at least stalled so they deliberately avoided the rajas saaba and this question whether a money Bill uh amendments in ordinary law through the finance act can ever be a money Bill no you can if you are if you are if you are amending a finance bill that's different you can amend it by another finance bill which is a money Bill but when you amend such a law no if you're supposing that you're are amending the arbitration act and you included the the finance bill no no this is clearly wrong all the key Provisions will be struck down in fact the three judge bench your viewers should know your key three judge bench which uphel this law clearly said in the opening paragraphs that we are not going to question the money Bill if the money Bill argument is accepted many of these Provisions will go yes which is why we are anxious that the money Bill issue must be decided by the Supreme Court but we are trying for the last four five years that case is not being heard this is why people have been incarcerated unfairly prosecuted under the Amendments because of the Amendments which actually uh obliterates the difference between proceeds of crime and M laundering corre that's the amendment yes and the result is that people are being unfairly prosecuted and the court has sat for several years not to hear this matter now I believe that after after the next Constitution bench you will have U the issue of money Bill being decided by con this question has actually been decided in an earlier case uh what is a money Bill and whether you can amend a nonfinancial bill by money Bill is already been decided yes uh that law is um all all the judges agreed on that law uh the majority upheld that law by uh saying that one provision has been uh deleted and one provision has been uh read down but Justice chandrachud called it a fraud on the Constitution correct that's correct therefore now that Justice Chandra is a chief justice uh he should take the process forward and decide this question whether the key amendments to the pmla could be done by a money Bill that's right and going by um declared law so far I'm pretty confident that all these Provisions will be struck down in fact uh I have another concern assuming that the Supreme Court hears this matter yes say two weeks from now and after a week or 10 days or whatever it reserves orders by that time I think sometimes in uh March there'll be notifications issued yes uh for the loab which hope which is likely to commence in April sometime by the time the Judgment comes the period would have been over so what use is it to hear the matter when before the Lo Saba elections uh you might even not get a judgment no no the Judgment can't be held back for too long say no but I mean they've got so many constition bench matters where judgments have not been delivered so they will not hurry hurry up any particular judgment so the result will be even if the matter may be even if ultimately it's decided in our favor the damage is already done oh the damage is already done whether the Judgment comes to reverse some of the damage damage has already been done uh the point is at least future damage damage will not take place in the future because the key provisions of this in the me they'll keep on arresting people under this law this is the problem I afraid that um the next targets are visible on the radar and um who else is the target I can't say um no no they are in the South also they targeting people they are targeting ministers now uh they are not targeting a chief minister yet yet not yet a chief minister but they're coming pretty close to the family member of a chief minister yes I know in Kerala yes and um what about what about about West Bengal West Bengal another family member of the chief minister they're pretty close to that um the idea is to put fear yeah and um uh sort of put fear and intimidate them therefore they will stop their opposition to the BJP and um if somebody's uh Resolute in his opposition to the BJP like heon Surin they they just see the last time we had a Draconian law it was the PO I remember yes right but the PO affected individuals this particular law affects institutions affects the federal structure of this country affects governments affect governments and affects the federal structure of this country because you're using the law to bring down governments yes right P didn't have that effect p never had that effect so perhaps it is the most Draconian law in the history of this country undoubtedly one of the most Draconian laws Porta was equally Draconian because it may not have affected governments but it created huge amount of communal conflict that's true I was a home minister I had gone to Gujarat and looked at their P cases I asked the chief minister to give me a list of Po cases seven eight of 10 persons arrested on the Porta were Muslims yes that Port widened The Divide between Muslims and Hindus they don't need PO for that nowadays because you therefore I'm saying that PO is not necessary but I'm talking why I came back and said we have to repeal Porta yes we have to I support it you big time on that matter no but I'm saying is the the the uh the the the this particular law impacts the entire structure of government in this country and that's that's the real worry see today a state government the chief minister cannot peacefully rule a state if this pmla continues to hang over his or his ministers heads which is what has happened today no just not Chief ministers PC there's another issue there what they do is they target the chief minister later but they go to the bureaucrats under the chief minister right and then they call the bureaucrat supposing an i officer is posted in in Karnataka or in Andra or wherever they'll call him and they'll say tell us your returns for the last 10 years your return your wife's return your children's return we just want to know so the bureaucrat then thinks why should I get into all this yes right and they they then start threatening him in ways you know that we all know the result is the ad the administration comes to a stand still and so the the government doesn't move forward that impacts on the on on on the politic because people say look this government is doing nothing and uh and the administration is is is in freeze is frozen this has happened this has happened intisar chattis gar this has happened in jaran yes this is now happening in Tamil Nadu that's correct they are calling they theyve got a stay from the high court I think some kind of a stay they are calling District collectors uh they're calling um Revenue officials on alleged um charges of sand mining correct now the district collector may have left his district six years ago five years ago he has moved on to other jobs they're calling all those District collectors to say this sand mining took place when you were District collector this was the Dr this was the RDO the revenue officers and they are taking statements from him they are summoning him but on on what basis I mean there's no money laundering involved this is the predicate offense remember if you investigate something qu sand mining that's a predicate offense but that distinction is wiped out now the moment Ed steps in you see my experience of case I've looked at Ed investigates largely the predicate offense that's correct Ed is not investigating money laundry yes Ed take Ed records statements which the CBI does not record correct and in many cases Ed is added to the proceeds of crime identified by the CBI that's correct CBI says the proceeds of crime are 10 lakhs Ed adds some one CR 2 CR 10 can't do which can't do even under the present Judgment of the three judgment it can't do but Ed goes ahead and Ed does that and Ed shares his information with the CBI and uh I think encourages the CBI to expand its uh to charge sheet uh this is all the question is under what law can the Ed say you give me your returns for the last 10 years no it can't it can't in fact the only offense under Income Tax Act is one offense of making a a statement under o correct correct there's no other offense of income tax which is is part of the the schedule correct but the Ed but the Ed is asking for which the income tax does not ask right the Ed is now become a uh super super agency which has taken over all the powers of the sfio the income tax the Customs uh authorities the excise authorities the GST authorities the CBI uh it's it's taken over vast Powers the new God it's the new God which controls everything in this country no no which is which is uh completely destructive of the rule of law that we have understood right um I I I think I hope that the Supreme Court will uh wake up to the gravity of the situation the damage that is being caused all around and quickly hear the money Bill question and quickly hear the review petition and set this law right to the extent possible until a new government comes and repeals this law quite frankly the court should iMed set up a five bench five judge bench and say okay till such time as we decide all matters let this be on hold yes sedition is put on hold yes so there's no no harm in putting this not be used to to to to for the for furtherance of the prospects of a political party in the election and especially on the eve of election yes uh unless some restraint is applied by the Supreme Court I'm afraid this government the government of the day uh will uh will misuse this law more and more the next two months I think I fear huge misuse of those law well it's sad that we have reached this state and I hope that the Supreme Court realizes the gravity of the situation but thank you very much I hope so for being for being here with me today and having this great conversation thank [Applause] [Music] you

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Id: CJ8JGSF-uTI

Length: 39min 1sec (2341 seconds)

Published: Wed Feb 07 2024