Protect Democracy: Scrap PMLA, Defang ED
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THE election manifesto of the CPI(M) for the Lok Sabha elections has raised an important issue which has a vital bearing on India’s democracy and the fundamental rights of citizens. This concerns the Enforcement Directorate (ED) and how it operates under the jurisdiction of the Prevention of Money Laundering Act (PMLA).
The manifesto states “Replace PMLA with suitable law to prevent misuse. The ED must be divested of its law-enforcement powers”.
This is a timely and necessary prescription, if democracy and the rights of the opposition are to be protected. We have seen how the PMLA has been weaponised by the ED to target scores of opposition leaders. In the run-up to the elections, two chief ministers, Hemant Soren and Arvind Kejriwal, were arrested by the ED invoking the provisions of the PMLA.
The PMLA is a law which has been transformed completely from its original purpose. It was first adopted in 2005 as a response to the resolution adopted by the United Nations General Assembly in 1998 which called upon all member-countries to enact suitable legislations to effectively prevent the laundering of drug money.
However, over the years the scope of the PMLA was widened by amendments. Some amendments were made by the UPA government in 2009 and 2012 to make the law more stringent, but the most draconian ones were introduced by the BJP government in 2018. The law against laundering of drug money and associated offences began to encompass various other offences listed in the schedule through successive amendments. Many offences listed in the Indian Penal Code and other laws became part of the schedule of offences under the PMLA. By this, the ED acquired omnibus powers to look into a range of offences which have nothing to do with either drug money or money laundering.
The most obnoxious feature of the PMLA is the section on provision of bail. A fundamental principle of criminal law is that a person is presumed innocent until proven guilty. But Section 45 of the Act holds that a judge can give bail only when he or she is satisfied that the accused is innocent. Thus, the onus to prove innocence lies on the accused. Unfortunately, a three-member bench of the Supreme Court led by Justice Khanwilkar upheld all the amendments made which make the Act more draconian.
There is the Prevention of Corruption Act which deals with bribery or other malpractices concerning public servants. Offences under this Act were also brought into the schedule of the PMLA. This has given scope for the ED to go after politicians who are elected representatives or ministers and book them under the provisions of the draconian law. Cases under the Prevention of Corruption Act which were normally dealt by CBI are now being taken over by the ED. The ED can intervene in alleged offences under various laws including a number of offences under the Indian Penal Code such as criminal conspiracy, attempts to murder, extortion, kidnapping and so on. It can act on offences falling under the Information Technology Act and other laws.
The ED which began as an agency under the department of revenue in the ministry of finance and which had no charter like the Delhi Police Act for the CBI, has now become a lawless instrument for the government thanks to the PMLA. The ED is manned by officers of the Indian Revenue Service and other civil services unlike the CBI which is run by police officers. Thus, they are free from the constraints that police officers work under. For instance, the statement recorded of the accused by an ED officer can be produced in court which cannot be done by a police officer who works under the provisions of the Indian Penal Code. In fact, the Supreme Court judgement upheld this power of the ED officers with the justification that they are not police officers.
The role of the ED is not confined to targeting and hounding political opponents of the ruling party. The recent revelations of the electoral bond scheme have shown a darker side. The ED has been used to threaten and coerce companies and businessmen to cough up funds for the BJP through electoral bonds. This blatant use of a government agency for blackmail and extortion should result in those involved to be prosecuted for criminal offences.
The CPI(M)’s proposal in the manifesto is, therefore, eminently reasonable and relevant. Firstly, the PMLA has to be scrapped and a new law enacted which will deal strictly with drug money laundering and money laundering with international ramifications.
Secondly, the Enforcement Directorate must be defanged. It should cease to be an agency which has investigative and law enforcement powers. It must revert back to being a mere departmental outfit of the department of revenue whose work should be to keep track of flows of drug money and international money laundering. The intelligence and information that it collects must then be passed on to the concerned law enforcement agencies like the CBI for action.
The restoration of democracy and democratic rights in the country requires these twin tasks to be undertaken.
(April 3, 2024)
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