Both UPA and NDA armed ED with draconian powers. By not reining it in, SC deepens the disquiet

Parliament has the power to bring in restrictive laws, like anti-terror legislation, to deal with exceptional circumstances. It is disquieting that the SC ruling extends this exceptionalism to money laundering. In giving a free-pass to a law enforcement agency, the SC has lowered the bar drastically for the state to encroach on individuals’ fundamental rights. The government, led by Solicitor General Tushar Mehta, had argued that there is no constitutional guarantee for the presumption of innocence until proven guilty. Worryingly, the Court, which is the custodian of the constitutional letter and spirit, its check and balance, didn’t just agree with the executive — it also added that Parliament can interdict these basic tenets with a law. This is reminiscent of Emergency-era courtroom debates on whether Parliament can interdict the right to life without due process. Several judges agreed, with only Justice H R Khanna remaining steadfast to the cardinal principle in a constitutional democracy — that the rule of law is omnipresent, and cannot be written away by law.

Of course, the framing of laws that increase arbitrary state powers and their weaponisation to settle political scores is not new or unprecedented. All governments are guilty — the PMLA was brought in by an NDA government and made more stringent by amendments during the UPA regime, the same UPA that wraps itself in liberal finery. But this SC ruling comes in an especially fraught context: There is a surge in the use of the ED against political opponents — cases registered under PMLA by the ED increased by more than five times in the first three years of the second term of the BJP-led government (2019-20 to 2021-22) as compared to the corresponding period in its first term (2014-15 to 2016-17) — from 489 between 2014-15 to 2016-17 to 2,723 in 2019-20 to 2021-22. The recent recovery of stashes of cash from addresses connected to TMC leader Partha Chatterjee, arrested by the ED, does not detract from a pattern made more dismal by the court’s abdication. If investigative agencies, at the behest of the Government, undermine due process, it is the task of the Courts to rein them in. The SC had done this in 2017 when it struck down the restrictive PMLA bail provisions, calling them “manifestly arbitrary” — that ruling also now stands overturned. The Court extending the executive’s powers, giving it the benefit of every doubt, is a troubling trend that could return to haunt.