Editorial: Rein in the ED

Weaponising the Central investigating agencies to target political opponents and crush dissent has been a troubling trend. The NDA government has been blatantly misusing the probe agencies to go after the rivals in a manner that is transparently unethical and immoral. The Enforcement Directorate (ED) has been turned into a tool to torment the opposition […]

Weaponising the Central investigating agencies to target political opponents and crush dissent has been a troubling trend. The NDA government has been blatantly misusing the probe agencies to go after the rivals in a manner that is transparently unethical and immoral. The Enforcement Directorate (ED) has been turned into a tool to torment the opposition leaders in the name of fighting corruption. The time has come for an honest review of the sweeping powers of the ED relating to arrest, investigation and attachment of property. The Supreme Court’s decision to review its own earlier verdict upholding the powers of the economic intelligence agency is a welcome development. The move came after Congress MP Karti Chidambaram sought an open court hearing of his petition to review the apex court’s last month verdict upholding the constitutional validity of the stringent provisions of the Prevention of Money Laundering Act (PMLA) and the powers accorded to the ED. Hopefully, the CJI-led bench, which has allowed the review application for hearing, would take a balanced view of the issue and suggest ways to prevent the abuse of powers. If investigative agencies, at the behest of the government, undermine due process, it is the task of the courts to rein them in. It is a disturbing trend that laws are becoming more and more draconian which threatens the foundational values of the Constitution. There is a surge in the use of the ED against political opponents — cases registered under the PMLA by the ED increased by more than five times in the first three years of the second term of the NDA government, as compared with the corresponding period in its first term — from 489 between 2014-15 and 2016-17 to 2,723 between 2019-20 and 2021-22.

Under the PMLA, statements made before the officers of the ED are admissible in court and bail provisions place a reverse burden of proof on the accused, requiring them to show lack of guilt even before the trial commences. This gives sweeping powers to the Central agency. The ED can even take possession of a property before trial in exceptional cases. The successive governments are guilty of weaponising the probe agencies to settle the political scores. As a result, arbitrary laws have come into effect. The PMLA was brought in by the NDA government in its first tenure and made more stringent by amendments during the UPA regime. This can have far-reaching implications for democracy especially when governments are anchored in political vendetta. Several petitions have been filed across the country questioning the blanket powers assigned to the ED under the PMLA for searching, seizing, investigating and attaching assets considered to be proceeds of crimes. Moreover, the conviction rate of the ED under the PMLA is very low, despite thousands of cases being registered. Between 2014-15 and 2021-22, only 23 cases were under conviction.

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