Mumbai: Last week, Rahul Gandhi, the leader of the Opposition (LoP), took to social media platform X to express his apprehension about a possible raid at his residence by the Enforcement Directorate (ED), the country’s premier investigating agency. Gandhi, attributing the information to his “sources,” claimed that the government did not like his speech during the recent Budget discussion and hence planned the raid.
Although Gandhi’s residence has not yet been raided, such an act is not implausible. In recent years, under the leadership of Narendra Modi, the ED, which is mandated to investigate money laundering and foreign exchange violations, has carried out a record number of raids on Opposition voices, even sending a few, including two state chief ministers, behind bars. The Opposition has consistently accused the agency of being weaponised against them, and Indian courts too have steadily pointed to the extent of the ED’s misuse.
Here is the list of a few recent court orders and observations criticising the ED for failing to act independently. The courts have from time to time also rebuked the agency for violating the rights of accused persons in their custody.
Earlier this year, the central agency invoked a stringent provision of the Prevention of Money Laundering Act (PMLA) to record the statement of a doctor whom one of the accused in a PMLA case had consulted. In April, when the hearing of the accused Amit Katyal’s interim bail application came up before a special court in Delhi, Special Judge Vishal Gogne of the Rouse Avenue Courts came down heavily on the agency. Katyal, an accused in the land-for-jobs case, is allegedly a close associate of former Bihar deputy chief minister Tejashwi Yadav and was arrested in November last year.
Also read: ED Lodged 132 Money Laundering Cases Against Politicians Since 2019, Conviction in Only 1 Instance
Although Judge Gogne declined the extension of his interim bail, he observed:
“The ED, as an investigative agency, is bound by the rule of law and cannot be seen as acting mighty against the ordinary citizen who is not even a suspect. If there are any lessons to be learned from history, it would be observed that ‘strong’ leaders, laws, and agencies generally come back to bite the very citizens they vow to protect. After the masculinity of the law has been expressed against the stated targets, such laws are invariably alleged to have been employed against average citizens.”
In the same case, in June, the court directed the joint director ED to appear with relevant case records and apprise the court of the status of the investigation. The court also criticised the ED for seeking more time to file the supplementary chargesheet.
While the Delhi court was miffed by the agency’s overreach and invasion of an individual’s privacy, the Bombay high court too pulled up the agency in another case for not taking enough steps in a long-pending investigation. After a local police investigation into an alleged cheating case involving Rs 175 crore, the ED had taken over the investigation against Tops Group, a company providing security guards. The ED charged the company under the Prevention of Money Laundering Act following allegations by the Mumbai Metropolitan Region Development Authority (MMRDA) that the company had duped the government agency of over Rs 175 crores. However, the ED later began dragging its feet.
One of the obvious connections to make here is the prime accused and businessman Rahul Nanda’s close association with Shiv Sena (Eknath Shinde faction) MLA Pratap Sarnaik. Nanda and his daughter Rasshi Nanda have been absconding since the case was registered in 2020. At that time, the residence of Sarnaik, who was still with the undivided Sena under Uddhav Thackeray’s leadership, was raided by the agency. Sarnaik switched allegiances, and since then, he has been untouched by the ED.
The high court observed:
“Despite giving directions to ED and the Special Public Prosecutor (SPP), no active and effective steps are being taken in respect of cases relating to scheduled offences.”
The special public prosecutor was given specific directions to ensure that the high court’s directions were followed.
It is not always the cases with obvious political connections. In recent months, the ED was also criticised for its “high-handedness,” inexplicable delays in investigations, and harassment of accused persons and witnesses during interrogations.
An accused person, Ram Kotumal Issrani, was arrested in a money laundering case by the agency. Before the arrest, the agency summoned Issrani to record his statement, which continued until 3:30 am.
Issrani, summoned under section 50 of the PMLA, was yet to be named as an accused. A division bench of the Bombay high court comprising Justices Manjusha Deshpande and Revati Mohite Dere observed that when a person is not yet deemed an accused, he cannot be deprived of his basic human right to sleep by the agency beyond a reasonable time.
“Voluntary or otherwise, we deprecate the manner in which the petitioner’s statement was recorded so late in the night, continuing post-midnight until 3:30 am,” the court said.
The Supreme Court in October last year had rebuked the agency for its vindictiveness while handling the case of directors of Gurugram-based realty group. The accused persons — Basant Bansal and Pankaj Bansal — were summoned by the agency in connection with one case for questioning and were arrested in another on the same day.
“Every action of the ED is expected to be transparent, above board and conforming to pristine standards of fair play in action,” the Supreme Court said, while setting aside their arrests.
“ED is not expected to be vindictive in its conduct and must be seen to be acting with utmost probity and with the highest degree of dispassion and fairness,” the judges had observed.
A special court had also recently remarked that people wanted in economic offence cases such as Nirav Modi, Vijay Mallya and Mehul Choksi were able to flee India because of the failure of investigating agencies to arrest them in proper time. The remarks were made on May 29 by Special Judge M.G. Deshpande as the court was hearing an objection raised by the ED to an application filed by an accused seeking permission to travel abroad.
