SC decision to review PMLA verdict welcome, but no bar on Modi govt to continue weaponising ED

Any euphoria over the Supreme Court decision, on August 25, to review the judgment of a three-judge bench last month upholding the draconian amendments to the Prevention of Money Laundering Act (PMLA) is likely misplaced. The decision to review the order passed less than a month prior may seem remarkable on the face of it, but the three-judge bench, headed by CJI N.V. Ramana, sounded cautious and conciliatory even while admitting Congress MP Karti Chidambaram’s review petition. Notably, the court did not stay the operation of the amended law till the (partial) review it recommended of the new PMLA provisions can happen.

The optics of admitting the petition are right, though, given the clamour for a review. As many as 241 petitions were filed seeking a review of the July 27 order, in which the apex court had upheld sweeping new powers of search, seizure, arrest granted to the Enforcement Directorate. The amended PMLA even allows the ED to presume the guilt of the accused and puts the onus of proving their innocence on the accused themselves. This overturns an established principle of criminal jurisprudence, which presumes innocence till proven guilty, and puts the onus of proving the guilt on the prosecution. Under the amended law, the ED needn’t even state reasons for an arrest nor even share the ECIR (Enforcement Case Information Report) with the accused.

Clearly no immediate relief is in sight, nor the promise of a time-bound hearing to expedite the recommended PMLA review. A delayed review is especially meaningful in the current context, given how the incumbent Union government has gone after its political opponents, and directed the full might of central investigative agencies—the ED, in particular—against them. While in the 10 years between 2004 and 2014, the ED carried out 112 raids, in the past eight years, there have been 3,010 raids. And of the 5,400 PMLA cases it has registered in the 17 years of its existence since 2005, it has managed to secure only 23 convictions.

None of that seems to have influenced the opinion of the learned judges of the Supreme Court, who sounded keen to acknowledge the need for a stringent money laundering law even while asking for a limited review of two aspects of the PMLA judgment on July 27, which had upheld the waiver of a legal requirement to provide a copy of the ECIR to the accused and reversed the principle of presumption of innocence.

A PMLA court in Mumbai has been far more forthright in slamming the ED, which it described as a “vengeful complainant”. While discharging two accused from Aurangabad in a money-laundering case, the special court ruled that the Enforcement Directorate could not ‘eccentrically and whimsically’ seek extension of custody of the accused. “This court strongly feels that it cannot join hands with ED to humiliate accused persons by continuing their judicial custody in utter disregard [of] the law of the land,” the court is quoted as having observed.

The Supreme Court, if and when it decides to hear the review petitions, will hopefully question the ED’s record and ask some tough questions. If the recent drug hauls, worth thousands of crores of rupees, is any indication, serious money laundering thrives right under the ED’s nose.

The ED also needs to answer why its raids have been confined to states ruled by Opposition parties and Opposition leaders.

It also needs to explain why so many cases of alleged money laundering it is investigating date back 10-15 years and how the arrests and detention of the accused have helped the Directorate in its investigations. Above all, if the apex court means business, it needs to fast-track hearings.