The directive of the Supreme Court to the Enforcement Directorate (ED) that it must henceforth furnish the grounds of arrest to the accused in writing without exception is a much-needed leash on the agency. Added to the directive was a suggestion that the anti-money laundering agency act with utmost probity and fairness and not be vindictive, and that it be “transparent, above board and conforming to pristine standards of fair play in action”.
The directions assume significance in the wake of allegations that the agency has become a tool in the hands of the Union government to harass people with dissenting views and that it is focusing on states which are ruled by political parties opposed to itself. The latest action of the agency which lends credence to this allegation is the high profile arrest of Aam Aadmi Party’s Member of Parliament Sanjay Singh in the Delhi excise policy case on Wednesday.
It may be a paradox that a country which runs per a democratic Constitution and vouches by the rule of law has for all these years let an investigating agency infringe on the fundamental right to liberty of citizens without offering them a reason. The Supreme Court, in fact, expressed surprise that the agency followed no consistent and uniform practice in supplying grounds of arrest to the accused.
The top court, while retaining the power of the agency to arrest people, however, made it amply clear that it cannot use this arbitrarily. Mere non-cooperation of a witness would not be enough to arrest him, the court has said.
The ED, working under the Union ministry of finance, is mandated primarily to chase money launderers and is vested with extraordinary powers under the Prevention of Money Laundering Act (PMLA), 2002. In 2017, the Supreme Court had declared Section 45(1), which stipulated impossible bail conditions, violative of the fundamental rights to equality, life and personal liberty guaranteed under the Constitution and struck it down.
The Union government restored the original provisions by an amendment to the law the following year. Challenges to it have not yet been successful, except that the Supreme Court had recently constituted a special bench to review its own order which reiterated the constitutionality of various sections of the law. The provision that accords evidentiary value on confessions made by an accused before an officer of a certain rank of the agency is still intact.
The legislative intent in conferring such powers on a professional agency is to enable it to act in the manner that the Supreme Court has now suggested. That the agency has successfully prosecuted only 25 of the 5,900-odd cases it has registered till now speaks volumes about the quality of the work it has done over the years. One can only hope that the Supreme Court’s new missive is taken in its true spirit by the agency and its handlers so that we get better service without the people’s basic rights being taken away.
