1. Introduction

With the increasing involvement of the Enforcement Directorate (ED) in high-profile financial investigations, particularly under the Prevention of Money Laundering Act, 2002 (PMLA), many individuals find themselves receiving summons for questioning. A pressing legal question arises in such situations: Can a person legally choose to remain silent when summoned by the ED?
This blog unpacks the nuances of this issue, exploring constitutional protections, statutory duties under the PMLA, and how the Indian judiciary has interpreted the scope of silence in the context of ED summons.

2. What the PMLA Says: Section 3 and Section 50

The PMLA defines money laundering under Section 3 as the process of concealing, possessing, or using proceeds of crime and attempting to project them as untainted property. Investigations under this law are conducted by the ED, which derives its procedural powers from Section 50 of the Act.

Section 50 grants ED officials the authority to summon individuals for evidence collection. These powers are broad, allowing the agency to demand the attendance of any person who may have information relevant to an investigation. Importantly, while these summons are binding, they are generally not aimed at individuals in the capacity of accused persons. Most are summoned as witnesses to assist in the inquiry.
This distinction—between being a witness and being an accused—plays a critical role in determining what rights apply during questioning.

3. Right to Silence: The Scope of Article 20(3)

The Indian Constitution under Article 20(3) guarantees that no person accused of an offence shall be compelled to be a witness against themselves. This is a crucial safeguard rooted in the principles of fair trial and protection against self-incrimination.
However, its protection is not absolute or automatic. Article 20(3) is specifically triggered when two conditions are met: (1) the person is formally accused of an offence, and (2) the person is compelled to provide testimonial evidence. Therefore, someone who is merely under investigation or summoned as a witness does not immediately enjoy the right to remain silent under this provision.
When individuals are summoned by the ED without being formally named as accused, they are legally obligated to answer questions truthfully and cooperate with the investigation.

4. When Does the Right to Silence Apply?

You can invoke the constitutional right to remain silent only when you are formally designated as an accused in a criminal proceeding. Once this status is assigned—especially in situations involving arrest or custodial interrogation—the right under Article 20(3) becomes enforceable.
At that stage, any compelled testimony that could incriminate the individual is constitutionally protected. Additionally, rights under the Code of Criminal Procedure, 1973 (CrPC) also come into play, including the right to consult with legal counsel.

However, if the person remains a witness—despite being questioned rigorously—they are bound to answer the ED’s queries. The failure to do so can attract penalties.

5. Judicial Perspective: The Pankaj Bansal Case and Beyond

The interpretation of these rights has been refined by the Indian judiciary over time. In the landmark case of Vijay Madanlal Choudhary & Ors. v/s Union of India & Ors. (2022), the Supreme Court emphasized that officers under the PMLA, while granted significant investigative authority, are not equivalent to traditional police officers.
This distinction matters because under Section 25 of the Indian Evidence Act, 1872, confessions made to police officers are inadmissible unless made before a magistrate. However, since ED officers are not deemed police officers, the statements made to them—unless obtained through coercion—are generally admissible.
The Court in Pankaj Bansal v/s Union of India & Ors. (2023) clarified that failing to respond to a summons does not automatically justify arrest. More importantly, it ruled that any arrest under Section 19 of the PMLA must be accompanied by a written disclosure of the grounds of arrest, rather than a mere oral intimation. This was a significant procedural protection reinforced by the judiciary.

6. What Happens If You Refuse to Cooperate?

Non-cooperation with the ED can carry serious consequences. Section 63 of the PMLA penalizes individuals who give false information, refuse to answer questions, or otherwise obstruct the investigation. Penalties may include fines, prosecution, or arrest—especially if the refusal is interpreted as obstruction or intent to mislead.
Additionally, courts may draw adverse inferences from a person’s refusal to answer questions, especially if no formal accusation has yet been made. This can complicate matters further and potentially shift the individual’s legal status from witness to suspect.
In essence, unless you are already an accused and under custodial interrogation, your silence could legally be viewed as non-compliance, rather than a protected right.

7. How to Navigate an ED Summons

If you receive a summons from the ED, it’s critical to approach the situation carefully:

• First, clarify your legal status. Are you being questioned as a witness, or have you been formally accused?
• Second, comply with the summons. Appear on the given date, and answer questions honestly.
• Third, consult a legal professional before attending the hearing. A lawyer can help you understand what information you are required to disclose and where you might invoke your rights.
• Finally, keep a record of the interaction. If you believe that your rights are being infringed or you are being coerced, this documentation could be essential later.

8. Conclusion: A Right with Boundaries

The right to remain silent is an essential component of a fair justice system, but it is not without boundaries. In the context of ED summons under the PMLA, this right only becomes active after formal accusation and custody. Until then, you are legally required to assist the investigation.
As financial laws tighten and regulatory scrutiny increases, understanding the interplay between your constitutional protections and statutory obligations is more important than ever. Responding to summons with informed cooperation—backed by legal advice—is your best path forward.