SC urges caution in reviewing arrests under special acts

New Delhi: The Supreme Court on Thursday ruled that the top court and high courts should exercise their power of judicial review to examine the legality of arrests made under special acts "very cautiously and in rare circumstances to balance individual liberty with the interest of justice and of the society at large".

The SC was referring to special acts like Prevention of Money Laundering Act (PMLA), UAPA, Foreign Exchange, Customs Act and GST Acts, etc.

Justice Bela M Trivedi in her concurring judgement held that when it comes to examining the legality of arrests made under such special acts "the court should be extremely loath in exercising its power of judicial review".


Justice Trivedi was part of a three-member bench headed by Chief Justice Sanjiv Khanna which delivered a judgement on Thursday upholding the constitutional validity of the provisions granting powers to Customs and Goods and Services Tax (GST) officials to make arrests.

Vide a separate judgement, Justice Trivedi held "in such cases (arrests under special acts), the exercise of the power should be confined only to see whether the statutory and constitutional safeguards are properly complied with or not, namely to ascertain whether the officer was an authorised officer under the act".

The SC judge said that the special acts are enacted to achieve specific purposes and objectives. Her judgement added: "Any liberal approach in construing the stringent provisions of the special acts may frustrate the very purpose and objective of the acts. It hardly needs to be stated that the offences under the PMLA or the Customs Act or FERA are the offences of very serious nature affecting the financial systems and in turn the sovereignty and integrity of the nation. The provisions contained in the said acts, therefore, must be construed in the manner which would enhance the objectives of the acts, and not frustrate the same".

In what may come as a shot in the arm for probe agencies, especially the Enforcement Directorate, the judgement said, "Frequent or casual interference of the courts in the functioning of the authorised officers who have been specially conferred with the powers to combat the serious crimes, may embolden the unscrupulous elements to commit such crimes and may not do justice to the victims, who in such cases would be the society at large and the nation itself".