Editorial: Review SC verdict on ED’s enhanced powers

The number of petitions filed against the verdict is a pointer to the misgivings that have arisen in the minds of the people

FPJ EditorialUpdated: Tuesday, August 23, 2022, 08:25 PM IST
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Supreme Court of India | PTI

Chief Justice of India NV Ramana’s readiness to list the petitions against the apex court’s verdict on the powers of the Enforcement Directorate under the Prevention of Money Laundering Act (PMLA) gives hope to all aggrieved persons and parties. It was on July 27, 2022, that a Bench, headed by Justice AM Khanwilkar, ruled in favour of strengthening the powers of the ED. In doing so, he rejected over 200 petitions that questioned the draconian powers granted to the quasi-police agency. The amendments in the PMLA granted the ED unbridled search and seizure powers. It could arrest and attach properties of anyone accused of violating the PMLA. The onus of proving innocence rested on the accused and the ED was not even required to give such a person the Enforcement Case Information Report (ECIR), unlike the First Information Report (FIR) in a criminal case.

All this was done in the name of fighting economic offences, which were described as no worse than terrorism. The judge’s “parting gift” to the government agency was tantamount to turning upside down one of the guiding principles of Indian jurisprudence that considered everyone as innocent till he or she was proved guilty. The judgement did not have a single word to console those who could be hauled up for the wrong reasons under the PMLA. The judge seemed to believe that the ED could do no wrong. If anyone fell prey to its overarching powers, he could do nothing but suffer in isolation for his properties could be attached and his bank accounts frozen. The verdict was against even natural justice and small wonder that it was compared to the Supreme Court verdict during the Emergency when it infamously decreed that even the citizen’s right to life stood suspended. Many years later, the apex court itself disowned the controversial verdict.

One reason why Justice Khanwilkar’s judgment caused considerable dismay among the general public is because it lost sight of the fact that the ED had over the years become a retributive tool in the hands of the government. On Monday last this newspaper highlighted the fact that while 112 raids were conducted by the ED between 2004 and 2014, the number of raids rose to over 3,000 during the 2014-2022 period. The ED replaced the CBI as the pre-eminent investigating agency of the Central government, despite the fact that it is not even a proper agency entrusted with the job of law and order. What’s worse, there is a discernible trend of the government using the ED against political rivals, while those in the ruling party or supporting it get away with corruption and money-laundering. The amendments in the PMLA should be seen as weaponising the law to serve petty, partisan, political ends. It is a time-tested saying that power corrupts and absolute power corrupts absolutely. The number of petitions filed against the verdict is a pointer to the misgivings that have arisen in the minds of the people. It is a fit case for the Supreme Court to take suo moto action and have the verdict reviewed by a larger Bench to uphold the principles of justice and fair play.

Advantage Governor in Kerala

When unequals fight, the outcome is predictable. Though there is the story of a tiny David felling a gigantic Goliath! The former was clever enough not to reach anywhere near the giant for he could have been crushed under his feet. That is why he stood afar and slung a stone at his head. Who does not know that even an elephant falls, if it loses balance? In the ongoing slugfest in Kerala, it is difficult to say who the underdog is. Governor Arif Mohammed Khan is more of a loner, particularly after he lost all hopes of being the President or the Vice-President. That is not the case with Chief Minister Pinarayi Vijayan, the first ever to win a second term. Had the Thrikkakara voters not ditched him, he could have been leading a contingent of 100 in a House of 140.

Vijayan is tired of Khan interfering in university appointments and wants a law to rid him of his powers. The Lokayukta in Kerala is the most powerful, as its verdict against a minister or the CM will lead to his immediate removal from office. Vijayan wants to un-fang both the Governor and the Lokayukta. With a steamroller majority, he can pass such Bills. Alas, they have to be signed by the Governor before they become law. He can delay the Bills for eternity, as there is no time bar for the Governor. In the meantime, he will remain Chancellor and the Lokayukta’s orders will remain deadly. Heads the Governor wins and tails the CM loses!

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