A public petitioner appealed before the Honorable Supreme Court, seeking its judicial activism on Enforcement Directorate (ED) Chief Sanjay Mishra’s questionable tenure extension for the third time under the BJP Government.
The Supreme Court bench headed by Justice B.R. Gavai, Justice Vikram Nath, and Justice Sanjay Karol had to ask the Center’s Solicitor General Tushar Mehta if the fated retirement of a senior bureaucrat would bring the entire agency’s functioning to a pause. Yet, there was a mild apprehension in his answer to the question.
Sanjay Mishra, the former Chief Commissioner of the Delhi Income Tax Department, was elected as the ED Chief in 2018 for two years. Amidst severe allegations posed by the Opposition Parties against his functioning with the agency, the Government gave the senior bureaucrat a one-year extension in 2020. An NGO sensed foul play and filed a petition before the Supreme Court, but it got ratified.
In November 2021, the Modi Government strategically introduced the controversial “Central Vigilance Commission Act” to further extend Mishra’s tenure. As of now, Sanjay Mishra’s chair is immune till November 2023, but the Supreme Court has issued strict orders against extending his tenure beyond that.
There is something peculiar about the Center’s devotion to this agency in general and this man in particular. The Opposition parties seem united in their criticism against the ED as a “Vendatta Tool” used by the Mo-Shah Government to indulge in “political witchhunts.” Let us delve into the curious case of ED and exhume why it enjoys greater power than any other Investigating Agencies in India.
The Birth of the Enforcement Directorate
In May 1956, the Department of Economic Affairs under the Ministry of Finance (MoF) set up an agency called the Enforcement Unit. It got tasked with regulating fraudulent cases related to the Foreign Exchange Regulations Act 1947.
In 1957, this agency got renamed to Enforcement Directorate (ED), with the Department of Revenue (MoF) supervising it. Ever since then, the powers of the ED have only increased.
The ED’s responsibilities increased under the newfound Foreign Exchange Management Act of 1999. Then, in 2005, the Prevention of Money Laundering Act (PMLA) got introduced. PMLA aimed at countering narco-terrorism and money laundering as the two offenses operated through the circulation of “black money.”
ED’s powers got further extended by the Fugitive Economic Offenders Bill (FEOB) in 2018. Presently, the agency has more than two thousand officers working under its emblem.
The gradual increase in the powers of ED
Between 2009 to 2012, the UPA Government kept evolving the stature of ED. Invigorated by 30 laws, it got empowered to investigate up to 140 scheduled offenses. The quantum of its authority got extended by many folds.
For example, the felony of Copyright Violation, whose previous penalty could extend to a maximum INR 50,000 fine, has now been brought under ED’s authority. ED now dictates a person committing the felony will get jailed (with no provision for bail).
The former Finance Minister P Chidambaram had been the first to use ED as a tool for his political machinery. Using the reformed provisions under the PMLA, Chidambaram went on a spree to confiscate disputed properties belonging to his political opponents. The UPA Government used ED to investigate many eminent cases:
- Madhu Koda case;
- Aircel-Maxis case;
- The CWG Case;
- Sahara Case;
- Bellary Mining Case, involving the BJP’s Reddy brothers;
- Jagmohan Reddy Case;
- Baba Ramdev Case.
During the UPA’s regime, the BJP and other opposition parties started alleging ED’s one-sided investigations. However, since 2014, as a bizarre coincidence, all these cases could not see the light of day! Neither the BJP Government nor the ED officials have uttered a word when asked about the course of these cases.
Today, ED is the only agency in India that violates Article 20 of India’s Constitution by allowing “self-incrimination.” It can summon anyone without paperwork or a charge sheet. Once reeled in by ED, there is no provision for a magisterial oversight, and an accused’s property can get confiscated even before a charge gets filed.
All these provisions have made ED more formidable than any other public agency in India.
A Tale of Two EDs
Notwithstanding the misuse of the ED during the UPA era, the BJP has invigorated ED to an unprecedented extent. Before 2014, the ED had conducted a total of 112 raids, a statistic that has increased by an absurd 26 times under the Modi regime! Even the prosecution complaints have gotten eight times higher.
Before one points out the benefits associated with the hyperactivity of ED, let us present a piece of data to reveal the efficacy of ED’s functioning. In the last 27 years, only 23 people have gotten convicted. In eight years, the cases under ED have transcended 3000. Hence, the conviction rate (the only measure of ED’s efficiency) is microscopically small.
The UPA Government indeed had used ED as a tool for a political witchhunt, but the BJP regime has shattered all the limits to use the ED as an extended part of their political machinery.
The curious case of Hemanta Biswa Sharma and Sanjay Raut:
During the scandalous Saradha Group Financial Scam, its founder Sudipta Sen had revealed in broad daylight that the Chief Minister of Assam, Hemanta Biswa Sharma, had accepted a hefty bribe from him. The ED charge-sheeted numerous leaders from the Trinamool Congress (TMC) based on Sudipta Sen’s claims but deliberately exempted Hemanta Biswa Sharma. Sharma’s wife got quizzed by the ED once, but soon after he left Congress to shake hands with BJP, ED conveniently let him be.
On the flip side, in February 2022, Rajya Sabha MP Sanjay Raut wrote to the chairman of the Rajya Sabha that officials from the ED had been threatening to take “actions” against him if he refrained from plotting against the MVA Government in Maharashtra. Fast forward to June of that year, BJP made away with Eknath Shinde and other members to topple Uddhav Thackeray’s MVA Government.
Apart from these shady shenanigans, the ED reached Rajasthan Chief Minister Ashok Gehlot’s brother’s office without a charge sheet. Before the Punjab Vidhan Sabha elections, the former Chief Minister C. S. Channi’s office got raided too.
The role of ED in excavating scams in non-BJP-run States vs. their action against the accused leaders of BJP is so stark that political experts have termed the ED as “Election Destroyers” or BJP’s washing machine.
What lies ahead?
One of the most effective tools employed by the British to curtail the growth of the Indian National Movement was the boosting of their executive domain through the rampant use of “sedition charges” and the infamous “Rowlatt Act.” At face value, these devices promised to safeguard national integrity by penalizing miscreants, but in reality, they got used to hush the thriving sense of solidarity among Indian revolutionaries.
Seventy-five years after India’s hard-earned independence, history is repeating itself as the colonial crown has gotten replaced by India’s “democratic” Sengol, and in ‘Amritkal‘ the tool for mass suppression has rejuvenated itself as the Prevention of Money Laundering Act (PMLA). Though it is a Hyperbole, as it is a grave insult to draw a comparison between the selfless freedom fighters and the contemporary Indian politicians, the shady nuances associated with ED and its exercising of PMLA reverberate a similar mournful tune.
The unfairness in ED’s modulus operandi is apparent, and the Mo-Shah Government does not shy away from allegations regarding the misuse of this taxpayer-funded agency. It is high time that the Supreme Court scrutinized the extent of the power of this agency and demanded answers from the Government regarding its shady dealings. Until then, we cannot help but watch how this fool’s paradise descends into anarchy.