PMLA needs to be ringfenced from the executive

The PMLA judgment has resulted in stellar commentary by some very credible voices. A core concern that merits greater attention is the invidious threat to democracy that the agency poses post this Supreme Court judgment. This is not a presumption but a stark reality. Consider the following: In August of last year, the Supreme Court asked the Narendra Modi government how many legislators were being investigated under the PMLA. Of the 122 sitting and ex-legislators, barely three names belonged to the ruling BJP. Does this represent an absence of offenders in the ruling party? Of course not. What it represents is the selective misuse of the agencies.

A similar number of cases is pending with the CBI against leaders of the opposition. Also consider the cases filed by the Enforcement Directorate (ED) and CBI that go into cold storage as soon as the leaders in question join the ruling party. Innumerable examples stood out in West Bengal, Assam, Arunachal Pradesh, Maharashtra, Andhra Pradesh, Uttar Pradesh, Gujarat, Karnataka, Goa and so on. This establishes how the draconian abuse of process by the ED has come to the point of being a punishment in itself.

The cardinal constitutional duty of the Supreme Court is to defend the Constitution against the might of the administrative executive as well as the abuse of legislative majority to cripple fundamental constitutional guarantees. Abuse of the PMLA and its creature, the ED, does both. A simple question to ask is: Did the Court redress this diabolical attack on changing the scales of democracy by the grossest abuse of the PMLA law by the ruling government? The answer is clearly no.

What the Court failed to realize is that the ED has become a tool in the hands of a regime to consolidate and remain in power as also to seek revenge. Recall the raids on former Punjab Chief Minister Charanjit Singh Channi’s relatives around the time of the Punjab election. Or the raids on (and arrest of) DK ​​Shivakumar around the time the government in Karnataka was topped. Or on Shiv Sena leader Sanjay Raut as the government in Maharashtra was illegally topped. The wholly unfounded harassment and questioning of Congress President Sonia Gandhi and Rahul Gandhi for days together, illegal barricading of their houses and the arrest of former Home Minister P Chidambaram in the past are glaring examples of revenge-seeking for actions taken in Gujarat during the UPA government. That this context was factored into the Court’s reasoning is very unfortunate.

Another point the Supreme Court has failed to realize is these agencies can move much faster and cause far more devastation than what courts can remedy with immediate action. Courts can only intervene post an action. What happens in cases like National Herald where the agency has been investigating the allegations for the better part of a decade? Over 100 questions have been asked and answered in over 50 hours of questioning. Yet no FIR has been produced, no ECIR, no charge sheet. What can the leaders who are being harassed seek as relief from the courts?

Also consider the abysmal rate of convictions. Only 23 persons have been convicted by the agency, leading to a reported conviction rate of just 0.5 per cent. Review this in the context of the massive jump in ED actions. There have been over 3,010 ED raids between 2014, when this government came to power, and now, in contrast to 112 raids in the 10 years of the UPA government. So many valuable public resources are deployed with little to no result. The argument that the process is slow holds little water when you consider the dedicated resources the ED has and the special courts (adjudicating authority and the PMLA appellate tribunal) constituted to hear just the matters before it. It is a different matter that the government has not appointed a judge to head the PMLA appellate tribunal for the last two years. This is because conviction is not the objective. Intimacy is the end goal.

This is part of a larger and more sinister design. Last December, the Modi government introduced a law that allowed the Center to extend the terms of the directors of ED and CBI up to a total of five years each. However, these extensions would be given in episodic and piecemeal increments of one year at a time. This would rob the officers of total autonomy and render them entirely vulnerable to the whims of the executive. BR Ambedkar had emphasized the importance of fixed tenures to ensure that the officer could not be influenced by the threat of removal or inducement of reward. This principle was reiterated in the Vineet Narain and Alok Verma judgments of the Supreme Court. What was even more brazen about this law was that it was brought about to defeat a Supreme Court judgment, which specifically directed that the term of the current ED director could not be extended. I challenged this law and the Supreme Court is currently examining it.

Due process requires accountability. It requires that an agency answers for excesses and that its processes be subject to the disinfectant of sunlight. In the case of the ED, with its draconian powers of seizure and arrest, deployed at the singular command of a government inebriated on power, the court hath, in effect, permitted them to draw a veil over their activities. This is a cancerous tumor for a healthy democracy.

The law needs to be ringfenced, perhaps even repeated, now that we have seen what it can do in the hands of a government which so brazenly prizes its political survival over national interest. We realize our error in believing that the law would always be open to judicial scrutiny as it was in our time. We hope that the Supreme Court realizes its error before it is too late.

The writer is a Member of Parliament and general secretary of the Indian National Congress

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