New Delhi: Days after Delhi High Court judge Sunil Gaur allowed the arrest of former Union minister P. Chidambaram in August, it was reported that he had been appointed chairperson of the Appellate Tribunal for the Prevention of Money Laundering Act (ATPMLA).
Gaur was supposed to take over as the head of the tribunal on 23 September, following the retirement of incumbent Justice Manmohan Singh. Gaur’s appointment, however, was not officially notified after the media reports.
It is mandated to consist of a chairperson, who has to be a retired Supreme Court or high court judge, and four members who can be from the fields of law or accounts, finance and management. But after Justice Singh’s retirement, another member, Ananya Ray, a former IRS officer, also completed her term and left the tribunal, leaving G.C. Mishra, a former joint secretary in the law ministry, as the sole remaining member and acting chairperson.
The tribunal is supposed to hear appeals against court orders in money laundering cases filed by the Enforcement Directorate, or authorities that enforce acts like SAFEMA, NDPS or PMLA. The scope ranges from forfeiture of property to illegal attachment of assets.
But with just one member currently on board, its functioning has been seriously hampered, even as the Modi government’s crackdown on corruption and money laundering makes headlines almost daily. It is left grappling with issues which need a thorough interpretation of law, according to lawyers arguing before it.
Sources in the tribunal registrar’s office told ThePrint that appointment process for the chairperson has been put on hold as of now, and that the tribunal has not received any communication from the finance ministry’s Department of Revenue on who would be appointed, thus providing no clarity to the lawyers appearing there.
ThePrint reached the Department of Revenue for comment on the problems the tribunal is facing but there was no response until the time of publishing this report.
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Long delays
In the last two months, most of the cases filed with the tribunal are appeals against ED court orders or those from lower courts hearing FEMA matters.
At the only functioning courtroom, acting chairperson Mishra has 91 cases listed before him for the day. But he is perturbed when the government fails to give advance information to the appellants in cases the government needs more time to reply.
“Why can’t you inform lawyers coming all the way from Chennai that you need more time? Agar dil saaf hai toh (If the heart is clean), why can’t you inform the appellants before. Why should they travel from so far? I have to impose cost otherwise,” he says to the three or four lawyers in his courtroom.
Mishra is now setting dates in May or June 2020 for hearings, since his diary is already filled with adjournments and hearings for January to April.
In one of the cases, where a party had challenged a show cause notice issued to it for the retention of its property confiscated in a raid by the ED, the tribunal adjourned the case, and scheduled it for hearing in the first week of May.
Points of law take a back seat
Other cases involve the attachment of properties by the ED, and “condonation of delay”, where parties have sought exception for filing an appeal beyond the statutory time period.
Lawyers say arguments on condonation of delay or maintaining a stay are heard “well” by acting chairperson Mishra, but arguments that require close interpretation of the PMLA to decide whether seizure of property is lawful or not, have taken a backseat due to the absence of a member from the judiciary.
S. Vasudevan, a lawyer with a Delhi-based law firm, told ThePrint that by having one member hearing cases, the basic objective of the tribunal stands defeated.
“This tribunal was envisaged as provisions of the PMLA had to be interpreted or substantive questions of law arising out of the acts could be decided. However, the acting chairperson is not from the judiciary, and thus, lacks substantive knowledge,” Vasudevan said.
“In this scenario, only technical issues are heard, and other cases are delayed to the next year. A chairperson who is a former judge of a high court or the Supreme Court is someone who can do justice to the role and interpret the law properly. Thus, the tribunal is right now creating a lot of delays.”
A senior lawyer appearing in an Enforcement Directorate case, who wished to remain anonymous, said “points of law” are taking a hit.
“A lot of complex legal issues were often listed before the division bench. Before Justice Manmohan Singh retired, it was always a bench of Justice Singh and either G.C. Mishra or Ananya Ray. However, now it’s only Mishra, and most of the cases which come on appeal challenging the ED court’s order on the basis of law are not heard, or are only given later dates,” said the lawyer.
Another lawyer added: “There are multiple issues which lawyers are facing at the moment. The acting chairperson is thorough with technical issues, and thus, any hearing to do with condonation of delay or stay is being heard and orders are being passed. But whenever there are questions of law, then cases are delayed.”
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