By Arun Srivastava
A famous Urdu poet (shayar) recently wrote, “What can a statute book do when the sections of the law books are sleeping in the pages!” It was not merely a satire on the existing judicial system. He was commenting on the state of affairs: how not only the executive system, but even the judiciary has ceased to work.
Of late, the role and attitude of the judiciary, especially the Supreme Court, has come under scrutiny not only among intellectuals, academics, the political opposition and social activists, but also, amid a significant disaffected chunk of the judicial system of the country.
At a time when the government has been ruthlessly rampaging the human rights and liberty of the citizens, when terms like transparency and probity in public life have lost their relevance, the people of India have been looking towards Supreme Court with the last vestiges of hope.
But to little avail. Supreme Court has to ensure that the provisions of the Constitution are rightly adhered to. However, its role is certainly not confined to that alone. Its prime task is to ensure that the human rights and liberty of the people are protected, and no one, irrespective of his power and might, tramples on the fundamental rights.
But it is disheartening to note that Supreme Court has not been reacting proactively to the ongoing government tyranny carried out through central agencies like the ED [Enforcement Directorate] and CBI [Central Bureau of Investigation] at the instruction of the ruling clique.
People are scared of the dubious machinations of the two agencies. They don’t know whom to approach. They have been witness to the dragging of even smallest cases for years at the lower courts. In most of the cases, the victims are sent to jails and left to languish for years without a fair trial. A closer look would unravel that these actions in most of the cases are taken to silence dissent and strike terror at the heart of the citizenry.
By now it has become crystal clear that Prime Minister Narendra Modi has been using the ED, through its director Sanjay Mishra, to unleash a reign of terror. As ED director, Mishra has been granted one extension after other only for carrying out Modi’s diktats. It is not that this design has not come to the notice of Supreme Court. A petition filed by the NGO Common Cause has exposed it. Common Cause had challenged Mishra’s extension as ED director for an additional year after his initial two-year tenure expired. The SC held that extensions could be granted in ‘rare and exceptional cases’ for a short period of time.
Even senior advocate K V Vishwanathan, who has just been sworn in as a Supreme Court justice, who is assisting the court as amicus curiae in adjudicating pleas against extension given to the ED director, told the Supreme Court recently that amendments made in laws by the Centre to extend the tenure and three extensions given to the present director of the ED are illegal and would compromise the independence and integrity of the investigating agency.
Vishwanathan also told a bench of Justices B R Gavai, Vikram Nath and Sanjay Karol that the amendment fall foul of rule of the law and such provision would be misused by succeeding governments by giving extension to its favourite person and said that he had come to “irresistible conclusion” that the extension granted to Mishra was illegal and amendment be set aside as it was in violation of SC’s order.
Nevertheless, insistence of the Modi government to grant extension to Mishra makes it explicit that he is simply supposed to carry out the diktat of his political master to harass and terrorise the opposition leaders. In their petitions, TMC leader Mahua Moitra and Congress leader Randeep Singh Surjewala had contended that ED was giving extension to Sanjay Mishra for toeing the line of the government and thus compromising with free and fair investigation in different cases. They said that extension was being given from time to time on the ground that “if you (the director) remain a good boy then you will get further extension”.
That Mishra is least bothered about the court proceedings is evident from ED’s recent action to frame the Chhattisgarh Chief Minister Bhupesh Baghel in a money laundering case. The design would not have got exposed if the state government had not brought it before a bench of Justices S K Kaul and A Amanullah. In a petition, the Chhattisgarh government said that several state excise department officials have complained that the ED is threatening them and their family members with arrest. The state government petition alleged that the officials are being told to implicate Baghel. The officers are so scared that they are not willing to work in the department. ED’s action has severely affected day-to-day functioning of the government.
Peeved at the ED action, the bench chastised it harsh words: “Don’t create an atmosphere of fear”. The Chhattisgarh government had alleged the probe agency is “running amok”. It is worth recalling that ED and CBI had raided the house of friends of CM Baghel just ahead of the plenary meet of the AICC in Chhattisgarh. Last month, Chhattisgarh became the first state to move the apex court challenging the constitutional validity of certain provisions of the Prevention of Money Laundering Act (PMLA), alleging that central investigating agencies are being misused to “intimidate, harass and disturb” the normal functioning of the non-BJP state governments.
The ED had kept the AAP minister Satyendar Jain in jail for nearly two years. Mishra had also summoned Congress leaders Sonia Gandhi and Rahul Gandhi in a money laundering case. The ED has been acting at the instruction of PM Modi is explicit from his February 2017 election speech wherein he had warned the Congress leaders, “I have your entire janampatri”, meaning entire dossiers, whether real or fabricated, with the intention of harassment, blackmail and intimidation.
Prevention of Money Laundering Act is the most common charge slapped on opposition politicians. But those who defect to the Bharatiya Janata Party (BJP) get to sleep soundly. The list of the arrested leaders is quite exhaustive. Any one daring to criticize the Modi government are framed and jailed, whether it is Shiv Sena minister, Anil Parab, or NCP minister of Maharashtra, Nawab Malik or Anil Deshmukh, former Maharashtra home minister from the NCP, or senor Congress leader DK Shivakumar, or Shiv Sena MP Sanjay Rout. It also implicated Sharad Pawar and his nephew Ajit Pawar in alleged money laundering cases.
Only three days back, Congress national president Mallikarjun Kharge lashed out at the BJP alleging that 95 per cent of raids conducted are on the opposition leaders, particularly of his party. The Congress general secretary Jairam Ramesh alleged, “The Prime Minister doesn’t unleash the ED where it is required. They have a fair and lovely scheme as those against whom the ED was unleashed in the past became innocent after joining BJP. Congress president described in Rajya Sabha, the BJP as a washing machine which was later expunged.” Probes against Suvendu Adhikari, who joined the BJP from the TMC in December 2020, at present leader of opposition, and Sovan Chatterjee, who switched over in August 2019, have been stalled.
There is no doubt that Mishra has been playing dirty game at the behest of his political master. A senior ED officer confided; “The pressure from top is always there, but it depends on the head of the agency to what extent he is ready to bend”. After what the amicus curiae KV Vishwanathan told the court, it was expected of the Supreme Court that it should put some mechanism in place to refrain the government and officials like Mishra from exploiting the rules and legal provisions to serve their political masters.
In absence any action, Mishra continues to indulge in nefarious play. Instead of ordering his removal, the court has even allowed him to complete his tenure. Obviously Mishra, taking advantage of the court’s view, has intensified his attack on the opposition. Ironically, even after Supreme Court expressing its reservation on his extension, Mishra continues with his gambit to terrorise and harass Baghel.
Since the Supreme Court is aware of the intrigues resorted to by the ED, which besides humiliating the individual has been using it to ruin the individuals and their families, which is also a mechanism to deny them the basic human rights, it should have evolved a mechanism to put a check on the arbitrary use of its powers. The court must seek a clarification from Mishra in this regard and get on record at whose behest is he acting as if there are no checks and balances on his unhinged behaviour.
It is an open secret most people framed under the money laundering cases are not in position to reach the apex court for justice. Even today, a number of scholars, academics and intellectuals along with social activists, are languishing in jails without proper trials. Even in the cases that are on trial, the ED hardly ever has no clinching evidence to substantiate its action. It is not clear how long the people of the country would watch the “tandav” dance of Enforcement Directorate.
There is no illusion about the true character and nature of ED. It is merely an instrument in the hands of Modi government to humiliate and terrorise its opponents and critics. The minister of state for finance Pankaj Chaudhary recently told Parliament that in the last 10 years, the ED registered the highest number of money laundering and foreign exchange violation cases during the 2021-22 financial year, 1,180 and 5,313 complaints.
That it has been a weapon to unleash terror got exposed only a week back in the wake of its naming the AAP MP Sanjay Singh in a money laundering case, Mishra and his two deputies at the ED apologised to Singh for naming him in its chargesheet “by mistake”. After this, the AAP national convener Arvind Kejriwal said it proved that the entire excise policy case was “fake”. “Does anyone get named in the chargesheet by mistake? It is clear from this that the entire (excise policy) case is fake. The Prime Minister is playing dirty politics to defame and stop the country’s most honest and fastest-growing party. It doesn’t suit him,” Kejriwal said. (IPA Service)