Constitutional courts in India have of late taken upon themselves an onerous task — to teach the Enforcement Directorate (ED), an agency under the Ministry of Finance, government of India, the law and jurisprudence in this country. This is because of its unending abuse and misuse of a law, primarily brought in to rein in drug peddlers, to harass ordinary citizens and politicians who happen to be on the opposite side of the ruling dispensation.
The courts have been reminding the ED of its excesses for quite some time, but to no avail. Undeterred, the judiciary persisted with tutoring the ED in basic law, and the exercise in this academic year saw the Madras high court last week reading out the relevant sections of the Prevention of Money Laundering Act, 2002 (PMLA), and telling ED officers that they are not super cops to investigate anything and everything that comes their way. Section 66(2) of the Act enjoins on the ED to inform the relevant investigative agency if it comes across a breach of the law during its investigation, instead of transforming itself into that body, the court stated. It also read out the raison d’être of the agency, and its mandate: There should be a “criminal activity” which attracts the schedule to PMLA, and “proceeds of crime” on account of it for it to enter the scene. Elementary, one would presume, but this was necessary.
Then it was time for the Supreme Court, which must have been fed up watching the premier Central institution acting at the behest of the powers that be and harassing politicians. Refusing to intervene in an order of the Karnataka high court, which quashed a case under the PMLA against B.M. Parvathi, wife of Karnataka chief minister Siddaramaiah in the Muda scam controversy, the court told the ED in no uncertain terms: “Let political battles be fought by the electorate. Why are you being used?” The bitter experience the court has had with the ED forced it to give vent to its frustration: “Please don’t ask us to open our mouth; otherwise, we will be forced to make some harsh comments about the ED.”
The same bench, headed by the Chief Justice of India, had no hesitation in declaring that the ED was “crossing all limits” when it issued summons to two lawyers for offering legal advice or representing clients during investigations. The court also hinted at framing guidelines in such matter. The response of the government, the unseen mover of the ED from behind the curtains, was not very encouraging. While the attorney-general, the government’s chief law officer, acknowledged the issue and conceded that “what is happening is certainly wrong”, the solicitor general would have none of it and told the court not to go by news reports and interviews as “there is a concerted effort to target institutions”.
A review of the functioning of the ED for the last 10 years would reveal that it has miserably failed to implement the law and bringing lawbreakers to book. Instead, there is evidence galore about its misuse. Interventions by courts have also not borne fruit. In fact, the government circumvented the Supreme Court, striking down Section 45 of the PMLA which makes bail practically impossible by tweaking the law. It is time for either the judiciary to take a hard look at PMLA and its implementation and order the necessary changes, or for the Parliament to sit down and review the law it has made. Either option, preferably the latter, is imperative given that it has started making the lives of innocent people in this country a living hell.