Why ED presumes only Opposition Guilty?


The Prevention of Money Laundering Act, 2002, was enacted in the light of an international consensus that terrorists of all hues should not be able to finance their operations by exploiting the lacunae in the banking system. If the Act needs to be strengthened, Parliament has the powers to do so by bringing forward amendments in it. However, in this case, the government of the day used another stratagem to make the amendments. It used the mode of money bills to surreptitiously bring forward changes in the Act. After hearing nearly 200 petitions that challenged the process, a three-member Bench headed by Justice AM Khanwilkar decided to refer the process of making amendments through money Bills to a larger Bench. For the present, the apex court upheld the additional powers given to the Enforcement Directorate (ED) in the pursuit of money-laundering cases. The ED, which has emerged as one of the strongest weapons of the government, not necessarily in money-laundering cases alone, has become the ultimate weapon in its arsenal. Whether this is in the interest of democracy, when the chances of misuse of the ED are greater, is what should cause concern.

A significant change in the PMLA provisions is that the onus of proving innocence will be on the accused, instead of the prosecution, which is against the basic concept of law that the accused is presumed innocent till proven guilty. What’s worse, statements made before the ED at the time of arrest are admissible in a court of law. What it implies is that such statements, which the accused can be coerced to make and sign while he or she is in ED’s custody, can prove deadly for the accused in the course of trial. The law has always been clear that no person can be forced to incriminate himself in a case. In other words, the law supposes that a person’s primary interest is to protect himself and he cannot be forced to violate this principle. It is for the prosecution to prove that he committed the crime. A wife, for instance, may know certain things but she cannot be forced to provide evidence against her husband because they are considered one integral unit enjoying the right not to be incriminated. Alas, this principle has gone for a toss with statements made before the ED during interrogation becoming admissible evidence.

The ED also gets extensive, rather unbridled, powers to raid residential and business premises and also attach properties of those accused of violating the PMLA. In all this, the accused has no legal recourse to make. It will be nearly impossible to get bail. All this shows that the ED has become the most powerful weapon in the hands of the government. The court has gone by the simplistic premise that terrorism is an international evil and any steps against it have social and legal sanction, for terrorism imperils the safety and integrity of the nation. This presupposes that the ED would be judicious and even-handed in the pursuit of cases under the PMLA. Alas, no government agency functions in an idealistic situation as it has layers of control, ultimately, wielded by the highest political authority. It was in February last that a joint director in the ED sought and obtained last-minute voluntary retirement from service to contest the UP Assembly election on the BJP ticket. Incidentally, he was the one who led the ED’s investigation in many high-profile cases, involving political leaders. He was a closet politician who hobnobbed with those in power while he was in the ED.

It is a moot point whether giving law-enforcement agencies more power is the solution. Such powers can, indeed, make the officers lazy for they know that interrogation, arrest and attachment of properties will end up as the punishment. Also, many cases, described as money-laundering cases, are indeed corruption cases. For instance, what Partha Chatterjee is alleged to have done was to amass a fortune worth hundreds of crores of rupees as bribe from the aspirants for the job of teachers of government schools in West Bengal. A former chief minister of Haryana has been behind bars for involvement in a similar school jobs scam. In Chatterjee’s case, the involvement of a woman, from whose flats enormous quantities of currency and jewellery are seized, has made it sensational. Nobody would argue for leniency against them. In Delhi, a “minister”, accused of money-laundering, is in jail while the chief minister does not have the moral authority to sack him. Money-laundering is certainly a serious offence, as it seeks to challenge the fiscal systems in place. But to presume that only politicians and officials connected with the opposition indulge in money-laundering is to let the government use the ED as an instrument of coercion.


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