New Delhi: The Enforcement Directorate (ED) has been in the eye of a storm for excessive powers it appears to have amassed, and opposition parties have been up in arms over selective action, targeted action and no action, often depending on where those being attacked stand, politically. In just recent times, The Wire’s Sukanya Shantha found that there was a strong coincidence of leaders leaving for the Bharatiya Janata Party and having faced ‘agency’, mostly ED, action.
As data of bond donations and companies has emerged, multiple news reports have found on analysis that top electoral bond purchasers include companies raided or under the scanner. The pattern was so stark that the BJP’s top leadership, so far embarrassed into silence, was forced to come out on being asked a question. Speaking at The India Today Conclave 2024, finance minister Nirmala Sitharaman tried to defend the Modi government and said it was a “huge assumption” that the money was given by firms after an ED visit. “For all you know, that money was given earlier and yet, we went knocking at their door. Am I making sense? No?!… What if the companies gave the money and after that, we still went and knocked at their doors through the ED… Is that a probability or not?” she said.
The last two years have been particularly eventful for the ED.
A controversial director, now only ‘acting’
The term of the last director, Sanjay K. Mishra, ended on September 15, 2023. But not after fireworks in the top court as it forced his departure, terming his many extensions “illegal” though later relenting, letting him continue till September 15, 2023 “taking into consideration the larger public interest”.
The Union government had insisted that it was important for Mishra to continue in his post because a country review of the UN’s Financial Action Task Force for India is currently underway – a claim that experts had contested. Despite the Union government’s assertions on the importance of the ED director’s role in this process, it has not named Mishra’s successor, a full-time director, so far, continuing with one who is “acting”.
“Acting” and “extensions” for constitutional posts or important, powerful positions is something the Modi government has been under tight scrutiny over. Vacancies have also been high; consider the three-year term Law Commission being vacant for over two and a half years or information commissioner vacancies lingering for years.
Rahul Navin is the acting director of the ED since Mishra’s term ended.
The Appointments Committee of the Cabinet approved the “upgradation of Navin as special director of the Directorate of Enforcement (ED) in the rank and pay of additional secretary,” in January 2024, according to an order issued by the Union personnel ministry.
An opposition skew
A report by Scroll in 2022 on the ED’s record of going after Opposition politicians pointed out the data and urgency with which the Opposition was gone after. “If the timing of ED investigations appears suspect in several cases involving the Opposition, conversely, it is hard not to notice the lack of similar alacrity in cases involving BJP leaders”, it wrote. Government data it cited revealed how cases under the Prevention of Money Laundering Act had zoomed since 2017.
Another investigation found that 95% of ED cases since the BJP came to power in 2014 were against Opposition leaders.
A report by The Indian Express “showed that between 2014 and September 2022, 121 prominent leaders came under ED radar, 115 of them Opposition leaders; the list has grown since”.
The Wire reported last year that ED had turned into an “Excessive Directorate” by vastly extending its own scope.
Judging ED’s powers
After amendments to the Prevention of Money Laundering Act (PMLA) were controversially upheld by the Supreme Court last year by a bench headed by Justice A.M. Khanwilkar’s bench, two days before his retirement. As reported earlier, this bench upheld the wide powers of the ED to issue summons, record statements, make arrests and search and seize property.
There was then a hearing by the Supreme Court’s Special Bench, which agreed to revisit its 2022 judgment upholding the PMLA. But it was doomed from the start, with the Union government questioning its legitimacy. Yet, Justice S.K. Kaul, who led the three-judge bench also comprising Justices Sanjiv Khanna and Bela M. Trivedi, sought to go ahead with the hearing initially, dismissing the Union government’s contentions against the bench’s jurisdiction to hear the case with the hope that it would be able to complete the hearing and deliver a verdict before Justice Kaul’s last day in office on December 16, prelude to his retirement on December 25.
On November 23, 2023, the second day of the hearing, the Union government continued to obstruct the hearing. Solicitor General Tushar Mehta, who realised that he could not persuade the bench not to hear the case, sought more time to respond to the arguments of the petitioners, who he alleged had “expanded their challenge to the 2022 verdict beyond the issues they had initially raised”.
This bench abandoned the endeavour. Now, the composition of the new bench to hear the case, to be constituted by the chief justice, will indicate whether the case will at all be heard by a larger bench.
Justice (retd) A.M. Khanwilkar was appointed as the Lokpal on March 10, 2024, days before the model code of conduct kicked in.
Then there was also a petition filed by 14 opposition parties jointly alleging ED and CBI bias, but the Supreme Court decided to not hear it last year on April 5, 2023.
ED’s denial
The ED, in a response to The Wire’s queries in 2023, denied all allegations and said that “in all the cases, all actions taken by the ED have been approved by the concerned jurisdictional court from time to time. Moreover, as the questions posed by you pertain to sensitive cases and would amount to disclosing facts in pending cases where matter is sub-judice and also may pertain to disclosing investigating facts, which would not be proper. Wherever, the question regarding arrest etc. of accused have been raised in any judicial forum ED has adequately responded to the same by providing the correct information which have been accepted by the courts. It therefore appears that you have also not studied the applications filed by the accused in the other matters and replies filed by the ED and have posed unwarranted queries to ED. It may be so that you are being used by some persons with vested interest to propagate their biased views and also to elicit sensitive information from ED through you under the garb of investigative journalism. You are requested to go through the public record of the case as is available with various courts, the answers will be provided therein.”
