A number of Opposition parties have sought a review of the July 27 Supreme Court ruling, which has upheld the search and seizure powers exercised by the Enforcement Directorate (ED) under the Prevention of Money Laundering Act (PMLA). There is much about this legislation that is arguably discomfiting. The procedure under the PMLA, does not appear to observe a basic tenet of natural justice, namely, presumption of innocence until proven guilty. The contentious provisions in this regard are Sections 22, 23 and 45, which compromise right to a fair trial as they put the onus on the accused to prove innocence. This is violative of the rights enshrined in Part III of the Constitution, in particular Articles 14, 20 and 21. To be granted bail, the accused must prove that they were not guilty, and satisfy the Court that they will not commit any further offence. These ‘twin bail conditions’ under PMLA had been declared “unconstitutional” in Nikesh Tarachand Shah v Union of India(2017) by the Supreme Court itself. They have been revived in 2018. The accused must prima facie prove with the Enforcement Case Information Report (ECIR) which would disclose to him the extent of the charge/s against him. There is no visible sign of the mandatory protections under the Criminal Procedure Code against police’s power of search and arrest. Throughout the process, the accused could well be unaware of the allegations against him. Based on ECIR, the ED can summon accused persons and seek details of financial transactions. An order of attachment of property under PMLA is considered legal. Despite such sweeping provisions, the number of convictions secured by the ED in the last six years is 23 out of 888 chargesheets filed i.e. approximately 2.59 per cent. The Centre informed Parliament last week that raids carried out by the ED have jumped nearly 27 times to 3,000 in 2022 as compared to a mere 112 in 2014.

That said, the Opposition cannot shrug off the tag of observing double standards. Similar laws have been cynically deployed by the Congress when it was in power. The now-repealed Terrorists and Disruptive Activities (Prevention) Act (TADA) or the Prevention of Terrorism Act (POTA) resulted in disproportionate number of prosecutions and miniscule convictions. It is perhaps true that the ED’s charges against some senior politicians are not prima facie baseless. But guilt should be established through due process. Rather than merely throw the ball back to the courts, the Opposition should force the issue in Parliament and get the draconian provisions off the statute book. The Opposition should debate the brass-tacks, instead of merely raising a din over ED raids on their leaders.

PMLA provisions do not sit well in post-liberalisation India – a period that freed business from the shackles of an overweening state. To give officials the powers to get after businesses marks a throwback to the dark days of the control era under the Congress. A drive to clean up political and economic corruption is unexceptionable. But it should not turn into, or be seen as, a political witch hunt.