The Supreme Court did not approve. It was expected that the Supreme Court, while hearing a petition challenging the unlimited powers of the Foreign Office, ED, was expected to take note of its earlier judgments and give a rationalization of its powers. But the court upheld every right of it. His right to raid, arrest and confiscate property was considered absolute by the Supreme Court. It cannot be challenged. Along with this, the court also supported the strict conditions of bail of a person arrested under the Prevention of Money Laundering Act (PMLA). Keep in mind that this is such a law, in which it is the responsibility of the accused to gather evidence of his innocence. In other cases, the police or the enforcement agency collects the evidence to prove the accused guilty but in this the accused has to collect the evidence of innocence. There is a provision of bail only if such evidence comes to the fore.
A two-judge bench of the Supreme Court had considered this provision of bail to be wrong and raised questions on it. Five years ago, a bench of Justice Rohinton Norriman and Justice Sanjay Kishan Kaul had held the provision of bail in the PMLA case as arbitrary and unconstitutional. Both the judges had said that we should not forget that the basic concept of justice is to treat an accused as innocent till his guilt is proved. That is, every accused is innocent until proven guilty. This is not the only case in which the Supreme Court has made such remarks on the laws related to ED. In September 2021, the Supreme Court gave an important decision regarding the head of the Enforcement Directorate. In fact, the one-year extension of the Director of Enforcement was challenged in the court, hearing which the bench of Justice L Nageswara Rao said that there are two months left for the extension of the period of service, so he was allowed to remain in the post. But the government should not give them further extension of service. He had also said that it is the right of the government to extend the service but it should be done only in very special circumstances.
Even after that order of the Supreme Court, the Central Government not only gave extension of service to the Director of Enforcement, but also made a new law for extension of service, under which an officer of any agency will be given one year each for five years after the end of his service. service may be extended. Then it was expected that in the light of two separate judgments of Justice Norriman and Justice Nageswara Rao, the bench of Justice AM Khanwilkar would consider the powers of the ED and make some reductions in it so as to prevent it from being used as a weapon against the opposition parties. But the three-judge bench upheld the absolute authority of the ED.
On one hand the ED has the power to raid, arrest, confiscate property and keep the accused in custody for a long time without showing any paper, while on the other hand the government has the power to head this agency for one year each. By giving extension of service, keep a particular officer seated. Think how much this changes. The job of an officer working on the extension of service is on the edge of the sword. It can be removed at any time. As soon as he retires, his guaranteed service ends, then he continues to serve at the mercy of the political head who extended the service. Therefore, the expectation of him to obey the law in an objective manner becomes less. That is why it is not accidental that today the ED has become the most talked about agency of the country. There will hardly be any opposition party in the country, against whose leaders ED action is not going on.
In fact ED is easier and more effective to use than CBI or any other agency. Remember how two years ago in 2020, about eight states of the country withdrew the general consent given to the CBI. This meant that the CBI could not go and investigate in those states on its own. So, the use of CBI became difficult. Another agency is the Income Tax Department, but its use is not as effective as it does not have the authority to take coercive action. Compared to these two, ED is easy to use and is also very effective. The central government is also making effective use of it. Then Rajasthan Chief Minister Ashok Gehlot said that the ED has created terror in the whole country.
Now the question is, who made the weapon named ED? Who gave so many powers to an agency investigating economic offences? Who made provisions for such a harsh punishment for economic offences? And the biggest question is, who started using a central agency as a weapon? The answer to all these questions is Congress. The ED was formed in 2002 during the government of Atal Bihari Vajpayee. But the Congress did the work of making it a weapon, unbridled and giving it unlimited rights. Recall how between 2009 and 2012 the Congress used this agency against its own leaders from Madhu Koda in Jharkhand to Jagan Mohan Reddy in Andhra Pradesh and from the Karunanidhi family in Tamil Nadu to Maharashtra. The Congress can complain that the BJP central government is committing excesses. But the question is not more or less. Congress started its use by giving unlimited powers to an agency investigating economic crime and the BJP government is following the same path. The Congress had formed the NIA in its second term under P Chidambaram as Home Minister and had given similar powers to it. Today NIA is also being used as a weapon. The Congress had strengthened these agencies by giving them the right to suppress the rights given to the citizens by the Constitution and today the entire opposition is bearing the brunt of the same.