ED’s Questionable Credibility
By Poonam I Kaushish
What is it about yesterday’s Central Bureau of Investigation (CBI) and today’s Enforcement Directorate (ED) that it is always in the eye of the storm? That too, for all the wrong reasons. Last week Chief Justice Gavai strongly rebuked ED for “crossing all limits” while conducting investigations into some recent cases.
The case pertains to a Special Leave Petition (SLP) filed by Tamil Nadu State Marketing Corporation (TASMAC) challenging a Madras High Court dismissing three writ petitions filed by the State and TASMAC to declare as illegal ED’s search and seizure in connection with a money laundering case.
Questioning ED’s legality of action, particularly its decision to register a case against a Corporation. “How can you register a case against a corporation? You may register against individuals, but how against a corporation? Where is the predicate offence? ED’s intervention seems unnecessary and infringement of the federal principle.”
“The State Government has already filed 40 FIRs against official accused of taking bribes for allotment of liquor outlets. Why has ED jump into the fray?” Refusing to buy Government’s line of doing “nothing wrong,” as it was an alleged multi-crore money laundering case, the Court added, “ED has been overreaching its powers recently.”
But this is not the first time, nor will it be the last when the Supreme Court has pulled up ED for violating red lines and misusing the Prevention of Money Laundering Act (PMLA). Earlier too the Court expressed concern that the agency made allegations of money laundering in “umpteen cases …. this is the pattern — just make allegations without any reference to anything without backing them with proof or evidence.”
In February too, the court had pulled up ED for using PMLA to keep an accused in jail and questioned if the provision was “being misused.” In January it called out the agency for “high handedness and inhuman conduct” by questioning a Haryana ex-MLA for over 15 hours. Last year the Court disapproved of how PMLA was being used to keep individuals jailed without trial for an unreasonably long time.
In fact, the top court has progressively placed guardrails around ED’s considerable powers. This has played out against the backdrop of a political fight between Opposition Parties that blame BJP for using investigative agencies for political vendetta and the Government which accuses its rivals of corruption.
Over the years ED, which comes under the Finance Ministry has fatal attraction for hit-ins, clean chits, political cover-ups and fool proof surety for law enforcers to become law breakers legitimizing crime and corruption. Remember how Modi as Gujarat Chief Minister had lambasted CBI for being biased and targeting the people of Gujarat. “Why are we being treated like an enemy State?” he had queried. Today the boot is on the other foot. As Prime Minister he is being accused of selective targeting of political opponents.
Unsurprisingly, it raises doubts about ED’s honesty and integrity of purpose to weed out the corrupt. What to speak of making a mockery of Modi’s procrastinations of the agency’s so-called ‘autonomy’, and ‘independence’. Sic.
It is open secret ED is besmirched by playing handmaiden to its political mai-baaps tune. After all, what better tool to help friends and settle political scores with opponents. Never mind if it raises serious doubts about its honesty and integrity of purpose to weed out the corrupt.
Allegations abound how the agency is being used to intimidate and cow-down opponents. Be it during Congress era or Modi Sarkar. From political partisanship, raids on susceptible opponents, often with a little help of ‘partners’ ED and Income Tax Department, filing of FIRs, hours of questioning to charge-sheets, favouring some, cracking down on others, going slow on key cases, messing up investigations, left half-way or not done at all.
Think. Over the last ten years the ED’s conviction rate has been less than one per cent. Yet the agency continues to use “process as punishment.” According to a report has selectively targeted of Opposition leaders over the years. A recent report reveal 95% politicians probed by the agency came from Opposition ranks.
The Government’s response, “We did not make PMLA or ED. They were there. It’s just that they were completely useless… did no work. All these allegation of using ED against rivals is wrong. During Congress regime ED confiscated a mere Rs 34-36 lakhs. We were in Opposition. But since NDA came to power over Rs 2200 has been seized. How can they defame ED when heaps of notes are recovered on TV.”
According to ED, it has registered 775 PMLA cases, 333 prosecutions filed, 1773 cases under trail and conviction of 34 secured from courts this year. It has issued 461 attachment orders valued at Rs 30,036 crores up from 441 last year.
Regrettably, as oft happens, our netagan continue in legitimizing crime and corruption. Such is the nasha of power that all conveniently choose to merrily make political capital. Raising a moot point: Is the ED more sinned against than sinning? Are politicians the main culprit? Is the pot calling the kettle black?
The truth is mid-way. Both work in tandem in furthering their own interest. Consequently, the system becomes self-perpetuating. Over the years, the threatened political elite have given more and more powers to ED to get their way and have their say. Its merit and investigative skills don’t really matter. What counts is loyalty and trustworthiness to the leader.
Unsurprisingly, investigation suffers as there is no “scientific investigation or procedures.” A recent report shows conviction rate is as low as one per cent in the past ten years. Worse, it used “process as punishment.” Thereby, sullying the agency’s reputation, replete with its “failure” to back up charges with required evidence.
It is nobody’s case that accountability for corruption should not be fixed. However scrupulous adherence to due procedures and zero compromise on transparency should be the guiding principles. But, knowing our polity and its hypocritical culture, we will no doubt continue to hear noises or even be treated to some cosmetic measures. It is absurd nonsense to say that the ED cannot deliver.
What next? Prime Minister Modi has oft spoken about ushering in transparency in governance. It is high time ED stops being His Masters Voice and prevents abuse of power. Undoubtedly this would be a formidable task given that the agency needs purging of “yes men” and cleansed of backdoor instructions. There is no point in initiating a biased investigation which does not guarantee a fair probe.
As the country’s premier financial crime agency it has a responsibility to be tough and uncompromising and investigate grubby deals without fear or favour. Certainly, in high stake cases there will be some setbacks. But today, the perception of political bias threatens to strain its efforts. If its probes are seen as biased it is not good it or its reputation. It needs to imbibe greater transparency to dispel for fog of bias. Time for it to introspect and course correct.
At the end of the day, the powers-that-be must desist from playing havoc with the CBI. They need to answer two pointed questions: Will ED be guided by the law of the land only or by the Government of the day? Questionably, who will cast the first stone? Kiski laathi aur kiski bhains? — INFA