March 19, 2023

ED: Weapon against Opposition

HERALDING a new offensive against the opposition by the Modi government, there has been a spate of activities by the central agencies – the Central Bureau of Investigation (CBI) and the Enforcement Directorate (ED).

In the past two weeks, the CBI summoned for questioning Manish Sisodia, deputy chief minister of Delhi, and arrested him.  Since then, while he was in jail, he has been arrested again by the ED. The CBI has also questioned RJD leader Rabri Devi, wife of Laloo Prasad Yadav at Patna; this was followed by questioning of Laloo Prasad Yadav in Delhi in the so-called land for jobs scam, which is supposed to have occurred more than a decade ago.

The CBI move has been followed up by the ED, which raided the house of Tejashwi Yadav in Delhi and other family members and associates in 24 locations. This is the modus operandi – the CBI files an investigation report and leaning on this, the ED get into the act by invoking the Prevention of Money Laundering Act (PMLA).  The PMLA provisions are draconian and give the ED sweeping powers to arrest, search and seize property and keep people in jail with their getting bail extremely difficult.

The Modi government has weaponised the central agencies, particularly the ED, against the opposition.  The use of the ED and CBI as instruments is politically motivated. They serve a dual purpose.  On the one hand, it is used to suppress opposition parties by targeting its key leaders who are put away in jail for long periods without any trial or conviction.  The process itself becomes the punishment.  The other aim is to break an opposition party by winning over selected leaders to join the BJP by the threat of CBI/ED action.

In the current situation, the AAP has been one of the main targets as the BJP has found it difficult to politically defeat it in Delhi.  The recent instance was the AAP’s victory in the municipal corporation election in December 2022.  Satyendar Jain, health minister in the AAP government, was arrested in May 2022 on money laundering charges and he is still in jail nine months later.  Now the second minister and key AAP leader, Manish Sisodia, has been jailed in the alleged liquor scam and with the ED supplementing the arrest by the CBI, making it more difficult for him to get bail. 

The assembly elections in Telangana are due by the end of the year. The BJP is making concerted efforts to achieve a breakthrough in the state.  The ED’s summons to K Kavitha, BRS leader and daughter of chief minister K Chandrashekar Rao, for involvement in the liquor scam in Delhi is a pointer of how the BJP aims to use the central agencies for its electoral purposes. 

In the case of Bihar, the revival of an old case against Laloo Prasad Yadav and his family members is directly connected to the political development in the state where the joining of Nitish Kumar and JD(U) in the mahagatbandhan has isolated the BJP.  The BJP hopes to use the central agencies on the issue of corruption to try and destabilise the alliance. 

The other purpose of the use of central agencies has also yielded dividends for the BJP which is to coerce and lure leaders of various opposition parties to defect and join the BJP.  A prime example of this is the present chief minister of Assam, Himanta Biswa Sarma, who, while in the Congress party faced investigation by the CBI in the Saradha scam. After joining the BJP, there were no further proceedings against him.  Similarly, there are the examples of Suvendu Adhikari in West Bengal who switched from the TMC to the BJP and Narayan Rane from Maharashtra.

The downfall of the MVA government in Maharashtra due to the split in the Shiv Sena can also be partly attributed to the systematic work put in by the ED.  Shiv Sena MLAs like Pratap Sarnaik, Yamini Jadhav and Bhawana Gawali, member of parliament and others were incentivised to join the Eknath Shinde group after having cases filed by the ED and attachment of properties. 

The glaring and partisan misuse of the central agencies and its one-sided nature has been graphically illustrated by the recent case of corruption in Karnataka.  Here, under the BJP government, the son of a ruling party MLA, Prashanth Madal, was caught red-handed by the Lokayukta police for accepting a bribe. Altogether, Rs 6.73 crores was recovered from the office and his residence.  The bribes were taken for favors from the corporation, in which the MLA Madal Virupakshappa was the chairman. Surprisingly, within 24 hours, the MLA was given anticipatory bail by the High Court and no follow-up action has been taken. If it had been an opposition party leader, the CBI and the ED would have got into the act immediately. 

As it is, 95 per cent of all the cases filed by the ED against politicians are against opposition leaders and elected representatives. It remains to be found out whether the remaining 5 per cent cases were ever pursued diligently. 

The ED has become a unique instrument of the authoritarian regime. The amendments to the PMLA, which were made in 2020, provided for sweeping powers to arrest, search, seize and attach properties. Unfortunately, a Supreme Court bench headed by Justice AM Khanwilkar, in July 2022 upheld these amendments, including the provision that the Enforcement Case Information Report (ECIR), which is equivalent to an FIR, is not to be given mandatorily in every case to the concerned person. 

Not satisfied with this, just last week on March 7, a gazette notification by the department of revenue under the ministry of finance was issued, whereby politically exposed persons (PEPs) and NGOs could be brought under the purview of the PMLA.  This would mean that in the case of senior politicians, government, judicial or military officers, the ED can access the financial history of such individuals and organisations. This presages a more wide-ranging targeting and attack on opposition politicians and leaders of non-governmental organisations. 

While there is a growing awareness of the threat posed by the misuse of central agencies, some positions taken by certain parties detract from building a strong unity of purpose and action.  When the AAP leader Manish Sisodia was arrested by the CBI, the Congress party, particularly its Delhi unit, not only welcomed the arrest but demanded action be taken against chief minister Kejriwal too.  Further, on the issue of the AAP government having set-up a Feed Back Unit (FBU), Congress leaders wrote to the Lt. Governor that it is not sufficient to give sanction to the CBI to prosecute Sisodia in the FBU case under the Prevention of Corruption Act, but that AAP leaders be prosecuted for sedition and the Unlawful Activities Prevention Act be used against them.  The AAP responded by asking why Rahul Gandhi has not been arrested in an open and shut National Herald case even after the registration of an FIR, ten years ago?

Each party is willy-nilly asking the BJP government to use the central agencies against each other. It is natural that parties within the opposition will have conflicting politics and interests and in a democratic set-up, they are free to compete against each other. But faced with the authoritarian-fascistic onslaught of the Modi government, the least that can be expected is that they would rise above their differences to protect democracy and the rights of the opposition. Any other stance is self-defeating. 

However, the common threat faced by the entire opposition has brought most of the opposition parties together during the resumption of the budget session of parliament.  Eighteen opposition party MPs attempted to march to the Enforcement Directorate demanding an end to targeting and harassment and to investigate the Adani-Hindenburg issue.  It is good that the parties which have been at cross-purposes like the Congress, AAP and BRS were part of the joint protest.

Along with this united opposition, the Supreme Court should be urgently approached to review the draconian provisions of the PMLA, so that the ED cannot misuse these extra-legal and arbitrary provisions.

(March 15, 2023)