Keeping the ED impartial, apolitical

The Supreme Court (SC) backed the powers of the Enforcement Directorate (ED) under the 2002 Prevention of Money Laundering Act (PMLA) on Wednesday, holding that stringent provisions of attachment of property and arrest were constitutional and didn’t suffer from arbitrariness. The SC also said that supply of the Enforcement Case Information Report (ECIR) — the equivalent of the First Information Report (FIR) — in every case to the accused was not mandatory. This effectively rejects the contention of some petitioners that the ED acts as a police agency, and, thereby, should be held to the same standards of safeguards as established by the Code of Criminal Procedure.

Money laundering is, no doubt, a serious offence and gnaws at the foundation of a nation. But two aspects deserve to be noted. The first concerns the PMLA’s bail provisions, where the burden of proof is reversed. The SC has upheld this section, but in two earlier judgments this year, different benches have hinted that courts should resort to quicker adjudication in cases of special laws where the rigours of bail are harsher than the Indian Penal Code, and that bail is not automatically barred under such laws, especially when the trial is delayed or protracted. This indicates the need to strike a balance between the probe and the right to liberty. The second is about the dismal rate of conviction under the law. Parliament was told this week that in the 17 years this law has been in force, only 23 people have been convicted, even as the number of cases filed has ballooned in recent years (1,180, the highest, in 202122). This points to serious issues with the investigations, perhaps even the motives behind them.

Unfortunately, to reform this, and ensure that money-laundering probes remain apolitical and impartial, India needs strong political will and an inter-party consensus, both of which seem elusive today.