This story first appeared in The Wire

An ex-chief election commissioner says some machines being defective is routine, but 6.5 lakh is too high a number and is a “serious” matter. Experts have called for more transparency. The Election Commission is yet to respond to our queries.

New Delhi: The Wire has learnt that the Election Commission of India (ECI) has flagged over 6.5 lakh VVPAT machines as ‘defective’. These are now being sent back to the manufacturers for rectifying the defects. Notably, these are the newest machines, the latest M3 generation machines introduced for the first time in 2018. To put this in perspective, in the 2019 Lok Sabha elections, a total of 17.4 lakh VVPATs were notified for use for the Lok Sabha polls and also the assembly elections being held simultaneously.  This means that over one-third (37%) of these machines have now been found to be defective by the Election Commission.

What is even more surprising is that entire series of VVPATs are being replaced. For instance, among machines that will be sent to the Electronics Corporation of India Limited, Hyderabad, the series beginning EVTEA 0001 to EVTEA 99999 have been marked as ‘defective’. So also are the rest of the series, namely, EVTEB, EVTEC, EVTED each comprising a batch of 99999 machines.

The story is the same for machines that are being sent back to Bharat Electronics Limited (BEL), Bangalore. Series like BVTAK 00001 to BVTAK 30000,  BVTEA 00001 to BVTEA 30000 and BVTEC 05001 to BVTEC 75000 among others, are all batches that have been marked as ‘defective’. In all, 25,3500 machines from BEL have been found to be defective of which the series BVTEH 00001 to BVTEH 68500 are to go to BEL, Panchkula.

“These series were first introduced in 2018 and have been used in subsequent elections ever since. The machines were picked up from across the country and the new replaced machines have now almost reached all districts,” sources said.

What happens to ‘defective’ machines?

Any machine that is under litigation has been excluded. The directions from Election Commission’s headquarters at New Delhi’s Nirvachan Sadan were sent on January 27, 2022. The defective VVPATs were awaiting repairs following a decision taken by the ECI on October 8, 2021. The Wire has learnt that instructions have not been sent to the union territories of Andaman and Nicobar islands, Lakshadweep and Daman and Diu.

While the directions to the CEOs say recognised national and state political parties shall be invited to remain present at the time of opening and closing of warehouses, a member of an opposition political party said, “We were informed in December that the VVPATs would be moved out and were asked to give our consent. When we asked what was wrong with the machines and why entire series of the machines were being moved out, no explanation was given. For instance, what does T1 to T4 rectification mean, which is being cited as the reason for the machines being sent back. There are no answers.”

Transparency is the need of the hour: Experts

Experts have raised an alarm at the high number of defective machines and that too in a series. “Normally in an election, around 4000 EVMs are found to be defective. The corresponding number of VVPATS, which have higher chances of damage as these are electro mechanical devices, could be a maximum of 10 times that figure. But if what you are saying is correct that over 6.5 lakh are defective, then this is very serious,” says S.Y. Qureshi, former Chief Election Commissioner who was in office when the 2014 general elections were held.

As per ECI’s standard operating procedure, a first set of checks is required to be carried out at the level of the district electoral officer. The EVMs/VVPATs rejected at this First Level Check (FLC) are required to be sent to the manufacturers for repair within seven days of completion of the FLC in the district in coordination with the Chief Electoral Officer (CEO) concerned. Going by ECI correspondence we have reviewed, the instructions have been sent top down to the districts. The defective machines have been lying in ECI custody for over a year now.

Professor of computer science at IIT Kanpur Sandeep Shukla says, “Claims of sturdiness of VVPATs and EVMs have been made by the manufacturers and the Election Commission. Ideally, these machines should be given to a diverse set of experts to test for themselves. The lack of transparency and cloak of secrecy is the problem.”

Professor Subhashish Banerjee from IIT Delhi and a member of Citizens Commission for Elections says, “Was there an audit done for these machines? Were they matched with the EVMs and if so, what was the result? A 30% rate of defect is too high a figure.” Banerjee said he was speaking in his personal capacity.

A detailed set of questions have been sent to the Election Commission on April 10, 2023. This article will be updated once a response comes in.

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This story first appeared in The Wire

The Supreme Court may have refused to hear a collective petition by multiple political parties for directions on the work of central agencies, but in many matters, The Wire found incongruities and serious questions that need answering.

This is the second article in a two-part series. Read the first part here.

New Delhi: Last week, the Supreme Court has refused to entertain a plea filed by 18 political parties accusing the government of trying to “crush the entire opposition” using investigative agencies like the Central Bureau of Investigation (CBI) and the Enforcement Directorate (ED) on the ground that it cannot lay down guidelines in abstract without the factual context of individual cases.

The Wire looked at some ED cases which have stayed consistently in the headlines over the past nine years or where the politician – invariably from the Opposition – is in jail.

At least one lower court judge has made strong comments about the ED’s working. “There has to be an effective check against unscrupulous exercise of power by the ED in seeking casual extensions of judicial custody,” Mumbai special judge M.G. Deshpande had said last year while giving bail to two Mumbai builders. “This court strongly feels that it cannot join hands with [a] vengeful complainant like [the] ED to humiliate accused persons by continuing their judicial custody that too, in utter disregard to the recent law of the land.” [PDF]

The case of Nawab Malik, NCP

Judge Deshpande’s words chime with the goings on in the Nawab Malik case. The NCP leader has been in jail since February 23, 2022 for a land deal in what’s called the Gaowala compound in the Kurla area of Mumbai. A copy of the summons and the arrest memo were given to Malik after he was arrested in the ED office.

Malik’s family members say they purchased land in the Gaowala compound in two transactions in 2003 and in 2005 for Rs 10 lakh and Rs 15 lakh.  One of these transactions was executed between the Maliks and the owners of the Gaowala compound, Maryambai Fazleabbas Gaowala, through Salim Patel. Coincidentally, Patel happened to be the driver of Haseena Parker, sister of underworld don, Dawood Ibrahim. The second transaction included Sardar Khan, the rent collector for Maryambai Fazleabbas Gaowala, as a party. Sardar Khan, an accused in the 1993 Mumbai bomb blast case, is in jail.

The ED’s case is that Gaowala’s daughter, Munira, has in a statement told the ED she did not sign the power of attorney which was fabricated by the Maliks to grab the property.

The Malik family got hold of records through an RTI which proved that the documents were signed in the Sub Registrar’s presence. The RTI also says the same document has been provided to the ED. The ED has not brought this document on the record and continues to say Malik has ‘grabbed’ the land. The ED also says Malik bought the land from the late Haseena Parker in 2005 even though the land was bought from her driver. The agency relies on a statement by Parker’s son who was 13 years old at that time.

The ED has relied on a statement of Sardar Khan that he was given Rs 5 lakh and not Rs 10 lakh as claimed, but bank statements reflect a payment of Rs 10 lakh. Khan is serving a life term in jail for the 1993 blasts and his statements therefore should not have much evidentiary value, says Malik’s lawyer, Rohan Dakshini.“The witness is not a credible witness and his statement can’t be the basis of keeping Mr Malik in jail,” he says.

What is even more interesting is that these statements have not been made before the ED in the Nawab Malik case. Instead, these were made in DHFL scam, which the ED has used against Nawab Malik.

Incidentally while the ED filed its complaint (equivalent to a chargesheet) within the mandatory 60 days, the court took cognisance only after five weeks, just before it broke for the summer. Malik’s bail plea came up once the court assembled after the break.  A copy of the complaint can be given to the accused only once the court takes cognisance. An accused can only then apply for bail. The court took five months thereafter to hear the bail plea. Malik has moved court three times for bail which in one case was rejected by the lower court that relied upon the statement of Sardar Khan, who is serving a life sentence.

Responding to The Wire’s query, the ED says, “In all the cases, all actions taken by the ED have been approved by the concerned jurisdictional court from time to time. Moreover, as the questions posed by you pertain to sensitive cases and would amount to disclosing facts in pending cases where matter is sub-judice and also may pertain to disclosing investigating facts, which would not be proper.”

Since the Prevention of Money Laundering Act (PMLA) requires a predicate offence, the ED relied on an NIA complaint filed just three weeks prior to the arrest of Malik. Coincidentally, the FIR against Dawood Ibrahim and others filed by the NIA 30 years after the blasts is the first attempt that the anti-terror agency has made to bring the don to book. The FIR was filed February 3, 2022, and that too following directions from the Union home ministry.

The ED says The Wire is posing “unwarranted queries…It may be so that you are being used by some persons with vested interest to propagate their biased views and also to elicit sensitive information from ED through you under the garb of investigative journalism… It appears that most of the queries are based either on the information provided by the accused or anyone interested in the accused and is made with the oblique purpose of the accused.”

The National Herald Case

In the National Herald case, the main petitioner, Subramaniam Swamy, has, unusually, taken a stay from the high court against his own petition. The main case has not been heard for the past 13 months.

As an agency, the ED was traditionally “hamstrung” by the fact that a predicate or “primary” offence needs to be established first by a law enforcement agency like the CBI or the police before it can act.  In 2015, a solution was found. ED’s acting director at the time, Karnail Singh, issued a circular which stated that if a court of law takes cognizance, the ED can move in. Citing the actions of a court therefore, allowed the ED to initiate a probe in the National Herald Case – which is based on a private complaint filed by Swamy. A trial court issued summons to the accused which the ED latched on to.

The ED told The Wire, “As far as ED is concerned, it can investigate cases, where a predicate offence exists. The existence of predicate offence need not necessarily be based on a FIR. It can also be based on a complaint filed in Court pertaining to predicate offence including the summoning order of the Court.” Except that in the National Herald case, there is no predicate offence. Only a private complaint filed by a politician.

Interestingly, the ED’s initial inquiry had been closed for want of a predicate offence but following the 2015 circular, the agency suddenly came into the picture in September that year.

In nine years, however, the ED probe has not moved beyond an ECIR, which is equivalent to an FIR. The ED has summoned Rahul Gandhi and Sonia Gandhi multiple times for recording their statements, with details of what they said being leaked to the media.

As for the original complaint, it was stayed at the pre-charge evidence stage itself. Swamy wanted to introduce income tax documents pertaining to the Gandhis which the court disallowed on the grounds that he had to be examined and cross examined before the documents could be brought on record. Under the Evidence Act, the person who is the “originator of the document” has to give witness, say lawyers for the Gandhis. Swamy wanted to bypass this. He also wanted to examine witnesses before his own cross examination could be completed. All of this was disallowed by the courts.

Thus, recording of pre-charge evidence started with the examination-in-chief of the complainant, i.e. Swamy, in July 2018. He sought six adjournments during this time and was cross examined on another four before he finally went to the high court and got a stay. But this was not before the additional chief metropolitan magistrate, Samar Vishal, had noted in his May 2018 order, “This is not serving any purpose but is in fact delaying the trail…the first date for leading prosecution evidence was 20.02.2016 and till now the evidence has not been started”.

In any case, even if the income tax violations as alleged by Swamy were proved to be true, the loss to the exchequer on account of the National Herald case would be Rs 39.86 lakh – much below the current threshold of Rs 1 crore for cases that should automatically trigger the ED’s involvement.

Vijay Agarwal, lawyer for the accused in the 2G scam, all of whom have now been acquitted, told The Wire, “All the time of the courts is being taken up in bail matters of the Enforcement Directorate and trials are pending endlessly. The ED itself admits it has managed a conviction in only 24 cases while the number of ECIRs recorded are 5906.”

The ever-curious case of Agusta Westland

In the Agusta Westland case, the first complaint was filed by the Congress government itself in 2013. The ED, which got involved in 2014, has since filed 11 supplementary complaints. Arms dealer Christian Michel has been in jail since December 2018, when he was extradited from Dubai where he was in detention for another four months. His bail application has been rejected six times while others similarly placed are on bail. His lawyer, Aljo K. Joseph, told the Supreme Court that 1280 documents and 250 witnesses need to be examined and the trial is unlikely to start for several years.

Interestingly, the UN Working Group on Arbitrary Detention has made some serious allegations against the governments of the UAE and India, stating that Michel was extradited “in return to Dubai by India of a high profile detainee” The reference is to Princess Latifa, the daughter of the prime minister of the UAE, who escaped to India while trying to flee her father in February 2018. She was forcibly detained by Indian Coast Guard and returned to her father. Michel was extradited December 4, 2018.

“The Working Group notes with concern the submission by the source, which has not been disputed by either government, that the approval by the United Arab Emirates of the extradition request made by India was a de-facto swap for the capture and return to Dubai of a high profile detainee, a swap reportedly authorised by the prime minister of India in March 2018…his deprivation of liberty lacks a legal basis.”

The main trial in this case is yet to begin. The ED told The Wire, “Wherever, the question regarding arrest etc. of accused have been raised in any judicial forum ED has adequately responded to the same by providing the correct information which have been accepted by the courts.”

‘Perfect recipe for curtailment of rights’

The Wire has reported on how the ED is exercising a lot of leeway in choosing what information it wishes to act on and what it would much rather ignore. While tracking the money trail in the Agusta case, the ED in its first and second complaints had mentioned that some of the funds were transferred to a Singapore based entity, Gudami International Pte Ltd, amongst others. Following a response from the Singapore government to a Letter Rogatory seeking details on some of these entities, while all other entities were pursued, the reference to Gudami International was quietly dropped. This company is said to be linked to Gautam Adani via his brother, and promoter of the Adani Group, Cypriot national Vinod Adani, whom The Wall Street Journal has termed an “elusive brother”  of the top businessman.

Senior lawyer Siddharth Luthra says, “If you arm an investigator with vast powers, reverse the burden of proof, add twin restrictive conditions on grant of bail, make statements admissible and reduce judicial oversight on investigators powers, you have a perfect recipe for curtailment of presumption of innocence and restrictions on rights.”

He also said, “Add to that, the fact that under the guise of money laundering being a ‘standalone offence’ the ED alone is paramount in determining the contours of its power. The minor tweaking done by the SC 3 judge bench is limited in its scope. Till Parliament intervenes, the last bastion of hope is the pending review in the SC. As well as some high courts that have interpreted the provisions with a libertarian point of view and dropped proceedings in the past. We can only hope for more such courts.”

The cases against AAP leaders in Delhi

The ED can investigate the proceeds of a predicate or a primary offence that has been filed by an agency like the CBI. In the case of Aam Aadmi Party’s former Delhi health minister Satyendra Jain, it has gone one step further. The CBI says Jain was a shareholder in a jewellery company in which an amount of Rs 4.80 crore was received from some Kolkata based entry operators. The CBI’s case is that Jain’s share is 1/3rd of this amount based on the shareholding pattern of the company. In other words, the ED’s remit would have been to investigate the proceeds of this ‘one-third’. It has however said in its complaint that the entire amount of Rs 4.80 crore was earned by Jain. Besides, his lawyers say that even going by the Registrar of Companies documents submitted by the CBI, Jain’s shareholding ranges from less than 2 per cent to 19 per cent, which makes the portion accruing to him to be Rs. 57 lakh, i.e. well below the ED’s Rs 1 crore threshold. The PMLA allows for immediate bail if the amount is less then Rs 1 crore. But Jain has been in jail since May 30 last year.

Interestingly, the law also says that anyone who assists in money laundering is equally culpable and should be made an accused. Here, the Kolkata entry operators have been made a witness to the case.

The ED told The Wire, “Remaining queries are also factually incorrect, however we cannot share the details because of the sensitive nature of matters.”

In the case of another AAP leader, Delhi education minister Manish Sisodia, his lawyers say that the now-scrapped liquor policy was a collective cabinet decision, vetted by the departments of excise and finance and signed off by none other than the lieutenant governor, a Modi government appointee. Sisodia has been in jail since February 26 this year. Interestingly, in the third complaint filed by the ED on April 7, Sisodia’s has not been named as an accused.

The ED’s contention is that the 12 per cent profit margin the private entities got as per the policy was never discussed at the Group of Ministers meetings.

Strategic use of transfer of cases?

The ED has also been accused of pushing the boundaries of the law and getting cases transferred to New Delhi –  to the Rouse Avenue court.

Anubrat Mondal, a close aide to Trinamool leader and West Bengal chief minister Mamata Banerjee , was booked for smuggling cattle across the border into Bangladesh. “The jurisdiction of the CBI case and the PMLA predicate offence is both Kolkata and yet the ED filed another money laundering case in Delhi and got the case transferred,” say Mondal’s legal team. Mondal is now lodged in Delhi’s Tihar jail.

Another case the ED wants shifted – from Chhattisgarh to Delhi’s Rouse Avenue – is the NAN scam of 2015 involving the erstwhile BJP government. After the Congress came to power, the ED waded in, in 2019, using the Chhattisgarh police’s FIR as a basis to file an ECIR. Now the ED wants the entire case transferred to Delhi. “The assumption of jurisdiction is misconceived and malafide,” says a lawyer for the Chhattisgarh government. The aim, he says, is to help the BJP by filing a closure and giving the BJP a clean chit.

The ED in its response to The Wire said, “As far as other cases are concerned, your allegations are incorrect. In all the cases, all actions taken by the ED have been approved by the concerned jurisdictional court from time to time. Moreover, as the questions posed by you pertain to sensitive cases and would amount to disclosing facts in pending cases where matter is sub-judice and also may pertain to disclosing investigating facts, which would not be proper. Wherever, the question regarding arrest etc. of accused have been raised in any judicial forum ED has adequately responded to the same by providing the correct information which have been accepted by the courts.”

Conclusion

In August 2021, the ED reportedly submitted a list of 122 elected representatives who are currently being investigated for money laundering charges to the amicus curiae, helping the Supreme Court in a matter related to delayed investigations against political representatives. Scroll.in reported that when it sought these details under the Right to Information Act, the ED declined to share them. However, The Times of India published a report featuring 52 names drawn from it. Nearly all belonged to Opposition parties.

The Indian Express reported in September 2022, that Since 2014, there had been a 4-fold jump in ED cases against politicians, with 95% being  from the ranks of the Opposition.

Given the Supreme Court’s recent endorsement and even extension of the PMLA’s most stringent provisions – which help load ‘money laundering’ cases even more heavily against those who appear in the Centre’s cross-hairs – the role of the ED and other central agencies is bound to remain a matter of interest and concern. Sooner or later, the Supreme Court will need to examine the ‘systemic’ questions which the ED’s actions will continue to throw up.

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This story first appeared in The Wire

The ED has cast its dragnet wide. It is using the interpretation of a circular issued by the agency itself in 2020 for this purpose. The circular was intended to define its role. But it has a clause giving its director enormous discretionary powers. 

New Delhi: In June 2018, the chief of the Research and Analysis Wing (RAW) at the time made an unusual representation to his boss, the cabinet secretary. The RAW chief’s office had just received a show cause notice from the Enforcement Directorate (ED) for alleged money laundering using a Kolkata based television channel involved in the Sarada Scam. Officials at India’s external Intelligence agency were in a tizzy. Not only was this needless interference by another government agency, but the notice threatened to compromise what was felt could be an ongoing RAW operation. The prime minister had to step in to defuse the crisis.

The Wire has learnt that one and a half years after this, the agency issued a “technical circular” on February 13, 2020. Though the rationale for the circular was to “ensure uniformity in selection of cases” it got involved in, it did not seek to limit or restrict the ED’s ambit or activities. If anything, it actually added to the powers of the organisation’s director.

When officially asked about the rationale behind the technical circular’s provisions, the ED denied its existence. However, The Wire has reviewed a copy of the document.

The ED chief, as per the circular, becomes virtually omnipotent as he can order a probe keeping “law and order, national security, diversity of cases, cross border nature of offences, complexity of case, traceability of proceeds of crime, larger public interest etc” in mind. In effect, a large enough brief to draw anyone and anybody into their net whom the regime may be interested in.

Muscle-flexing by ED?

Consider the monetary threshold for investigating cases. The ED’s circular says the agency should mandatorily take up cases where the amount involved is Rs 1 crore in Prevention of Corruption Cases and Rs 5 lakh in other cases. But in the National Herald case, the only agency that has so far established any loss to the exchequer is the Income Tax department which has pegged the alleged loss at Rs 39.86 lakh. Since the ED is still at the stage of investigating its Enforcement Case Information Report or ECIR (equivalent to an FIR), and even a predicate or primary offence has not been made out, it is unclear whether a case of money laundering can ever be established.

In the Karti Chidambaram-Chinese visa case, the ED itself has built a case of a Rs 50 lakh bribe and initiated a probe. As per the PMLA, in cases where the amount involved is less than Rs 1 crore, bail can be granted immediately. When questioned about this case, the ED said, “Your allegations about Karti Chidambaram’s case are also not correct as it is not based on the correct interpretation of circular.”

In the INX media case – also involving the Chidambarams – the CBI chargesheet says that Rs 9.96 lakh was paid into a company owned by Karti Chidambaram called Advantage Strategic Consulting Pvt Ltd. This is way below the normal threshold for the ED to begin a probe, but in its ECIR the ED said an amount of nearly Rs 3 crore had been paid to ASCPL as an alleged bribe in 2007. Sources close to the Chidambarams say, “Karti allegedly met Indrani Mukherjee (owner of INX media and on bail for the murder of her daughter) in 2008 as per the CBI chargesheet. How could a bribe have been paid in 2007?”

Geographical boundaries for probe?

Then, while the PMLA does not distinguish between geographical boundaries within India for demarcating which cases can be taken up and which cannot, the ED has done so. In the circular, it has set a benchmark of Rs 10 crore and above in the cities of “Delhi NCR …Mumbai, Kolkata, Ahmedabad, Chennai, Bengaluru and Hyderabad and Rs 1 cr and more in rest of the cities” for starting an investigation. This perhaps explains why, after a recent raid involving a BJP MLA and his son, also a public servant, where the Karnataka Lokayukta Police seized Rs 8 crore in alleged bribes in Bengaluru, no action was taken by the ED or the CBI.

Drug-related matters

Consider investigations for drug-related offences. “Cases shall be investigated in relation to money laundering where the accused has been found in possession of drugs or psychotropic substances in quantity equal to five times of the ‘commercial quantity’(as defined in the NDPS Act)”, says the circular. For example, an accused has to be caught with 500 gm of cocaine or 5 kg of cannabis or 100 kg of ganja for the ED to swing into action.

But Rhea Chakraborty, friend of the late actor Sushant Singh Rajput, was charge sheeted by the Narcotics Control Bureau which said she “received many deliveries of marijuana” from drug peddlars. While the ED is empowered to investigate drug-related cases as per the law, going by the chargesheet filed by the NCB, there is no suggestion that she was engaged with peddling “commercial quantities” which is the ED’s benchmark as per their circular. Yet, the ED registered a case against her.

“Irrespective of the quantity involved, the Narcotics Control Bureau can file a case and the ED can come in because this is a scheduled offence under PMLA. But then the ED violated its own guidelines it set for itself as per the circular,” said a former investigative official familiar with the case. This, despite the fact that the whole logic behind issuing the 2020 circular “was to prioritise cases”, keeping the ED’s paucity of resources and staff in mind.

What a trial court said about the ED recently

The Wire decided to investigate how well the ED measures up against its own circular as well as the cornerstone of the PMLA. In the Patra Chawl case involving Shiv Sena-UBT leader Sanjay Raut, the ED received a setback from the court. While granting Raut bail in November last year in the alleged Rs 1,000 crore scam, the observations made by the judge have been the most scathing so far by any judicial officer.

“The extraordinary pace with which the ED arrests [an] accused becomes not even a snail’s pace in conducting trials,” sessions judge M.G. Deshpande said in his order. “Once the applicant files bail applications, the ED takes at least three to four weeks or more to file their reply…in every matter it is noticed that, ED takes very, very long time to reply [to] the simple applications filed by any accused.”

The judge said that in the past one decade, the ED has not completed a trial in a single case. “Is ED not accountable for such modus operandi availed by them in not beginning and concluding a single trial?”

The ED told The Wire, “As far as other cases are concerned, your allegations are incorrect. In all the cases, all actions taken by the ED have been approved by the concerned jurisdictional court from time to time. Moreover, as the questions posed by you pertain to sensitive cases and would amount to disclosing facts in pending cases where matter is sub-judice and also may pertain to disclosing investigating facts, which would not be proper. Wherever, the question regarding arrest etc. of accused have been raised in any judicial forum ED has adequately responded to the same by providing the correct information which have been accepted by the courts.

“It therefore appears that you have also not studied the applications filed by the accused in the other matters and replies filed by the ED and have posed unwarranted queries to ED. It may be so that you are being used by some persons with vested interest to propagate their biased views and also to elicit sensitive information from ED through you under the garb of investigative journalism.

“You are requested to go through the public record of the case as is available with various courts, the answers will be provided therein.”

Multi-party petition

A multi-party petition on the role of central agencies filed in the Supreme Court last month had noted candidly that “political figures who have crossed over to the government side have mysteriously been given ‘clean chits’ or have seen investigative agencies go slow in proceedings against them”.

The matters they cited included:

• Assam chief minister Himanta Biswa Sarma, a former Congress leader who has now aligned himself with the Bharatiya Janata Party and is serving as the chief minister of Assam, was alleged by the BJP to have perpetrated a water supply scam in Guwahati, involving the American construction company Louis Berger. Court documents filed in the United States by the US Department of Justice under the country’s Foreign Corrupt Practices Act alleged that the company paid bribes to secure the water supply contract in Guwahati but the recipients were not named. The BJP initially alleged that the unnamed recipients of the bribes included Himanta Biswa Sarma, and sought an investigation. However, after he changed parties, no action was taken. A CBI case was registered only after a PIL was filed in Gauhati high court but no effort has been made to obtain the names of those who were illegally paid off by the US company. The ED has shown no interest in the existence of this predicate offence.
• Shivraj Singh Chouhan, senior BJP leader and the Chief Minister of Madhya Pradesh, was given a ‘clean chit’ by the CBI in the Vyapam scam, where according to some media reports, more than 40 witnesses have died.
• Somasekhara Reddy and G. Janardhana Reddy, former Ministers in the BJP Government in Karnataka and accused in a Rs 16500 crore mining scam, were given a ‘clean chit’ by the CBI just prior to the 2018 Karnataka Legislative Assembly elections.
• Narayan Rane, presently Union Minister of Micro, Small and Media Industries, formerly Shiv Sena and then Congress, now with the ruling party, was being probed by the Enforcement Directorate in the Avighna Housing scam case, while he was still a part of the Congress party. However, after he joined the BJP and became a Union Minister, no progress has been made in the probe.
• BJP West Bengal luminary Suvendu Adhikari was named an accused by the CBI in the Narada sting case. However, after he joined the BJP in 2020, the investigation against him appears to have been dropped.

The charge of the parties was that “investigation/arrest or threat thereof by agencies of the Central Government has been weaponised as a tool to coerce a change in the political landscape of the country in favour of the ruling dispensation”. The Supreme Court said it could not issue blanket guidelines, and said “you can come to us in an individual case. Come to us with one or more cases together. Our problem is, for Supreme Court to lay down guidelines in abstract without factual basis.”

But, says lawyer and parliamentarian Kapil Sibal, “the actions of the ED in targeting states not run by the BJP are destabilising the federal structure and polity. What makes the situation all the more serious is the ED has all India jurisdiction where predicate offences are concerned. And there is an urgent need to review the (Supreme Court retired Justice A.M.) Khanwilkar judgement.”

In 2022, a Supreme Court bench headed by Justice A.M. Khanwilkar upheld a very draconian version of the PMLA, which makes bail nearly impossible and puts the burden of proof squarely on the accused.

What the ED says

It is to be noted that the ED director has been in the eye of a storm with the Supreme Court making its displeasure with the repeated extensions he has been getting very clear. The Union government went out of its way to amend the law to keep him in the job for five years. He is set to retire now only in November 2023.

In the face of criticism, the ED maintains that it has a stellar track record.

According to its website, the agency has a conviction rate of 96%, politicians comprise only 3% of all cases and search warrants were issued in 8.99% of the cases.

But, the ‘conviction rate’ is based on 24 out of 25 cases in which a PMLA trial was completed. IANS quoting finance ministry sources reports that between 2018-19 and 2021-22, cases registered by ED rose by 505%, from 195 cases in 2018-19, to 1,180 in 2021-22. The number of searches the ED conducted rose by a huge 2,555% between 2004-14 and 2014-22. As per finance ministry’s own data, 112 searches were carried out by the ED between 2004-14 resulting in attachment of proceeds of crime worth Rs 5,346 crore.

The ED gave The Wire a three-page response to its queries, but some questions regarding the role of the agency remain unanswered:

How many cases has the investigation been completed so trial can commence?

How many cases have been registered and closed by way of discharge or quashing or acquittal?

How many accused have been discharged after a complaint was filed in court?

Of the properties attached, how many have been confiscated by the ED?

“The tenor and content of your letter shows that it is based not only on incorrect and misleading facts but also shows that you have not conducted proper research including checking the website of the ED. Otherwise, you have not put certain questions relating to statistics and asked for answers from us. It is clear that the purpose of this letter is to do a roving inquiry for an oblique purpose,” the ED said.

This is the first article in a two-part series. Read the second article here.

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