In a landmark judgment that underscores the importance of transparency and fairness in the functioning of India’s enforcement agencies, the Supreme Court has delivered a clear directive to the Enforcement Directorate (ED). On Tuesday, October 3, the apex court firmly stated that the ED is obligated to provide the accused with the grounds of their arrest in a written format at the time of the arrest itself.
The bench, consisting of Justices A.S. Bopanna and Sanjay Kumar, articulated their stance, asserting,
“We hold that it would be necessary, henceforth, that a copy of written grounds of arrest is furnished to the arrested person as a matter of course and without exception.”
This directive emphasizes the importance of procedural transparency and the rights of the accused in the legal process.
The context for this pivotal judgment was a plea by Pankaj Bansal and Basant Bansal, the Directors of the M3M real estate group. They had approached the Supreme Court after the Punjab and Haryana High Court declined to overturn their arrest by the ED under the Prevention of Money Laundering Act (PMLA). The Supreme Court, in its review, found that the ED had merely verbally communicated the reasons for their arrest, neglecting to provide a written account. The bench expressed its disapproval of this practice, describing it as one that
“reeks of arbitrariness.”
Delving deeper into the ED’s methods, the bench commented,
“This chronology of events speaks volumes and reflects rather poorly, if not negatively, on the ED’s style of functioning.”
They further clarified that the act of an investigating officer simply reading out the reasons for arrest does not align with the stipulations of Article 22(1) of the Constitution and Section 19(1) of the PMLA.
Highlighting the pivotal role and responsibility of the ED, the bench elaborated,
“Being a premier investigating agency charged with the onerous responsibility of curbing debilitating economic offence of money laundering in our country, every action of the ED in the course of such exercise is expected to be transparent, above board and conforming to the pristine standards of fair play in action. The ED, mantled with far-reaching powers under the stringent Act of 2002, is not expected to be vindictive in its conduct and must be seen to be acting with utmost probity and with the highest degree of dispassion and fairness.”
The judgment also delved into the broader implications and context of the ED’s powers. Under the current administration, the ED has seen a significant expansion of its powers through amendments to the PMLA. These enhanced powers have drawn criticism, with detractors suggesting that they provide the agency with the means to target political opponents. Distinctively, the ED operates without the typical checks and balances that other investigative agencies are subject to. For instance, the ED isn’t required to inform an individual about their status as a suspect or a witness. Additionally, the agency operates without magisterial oversight and isn’t mandated to provide the accused with a copy of the Enforcement Case Information Report (ECIR).
This detailed narrative, enriched with direct quotations, offers readers a comprehensive understanding of the Supreme Court’s recent directive to the ED, emphasizing the paramount importance of transparency, fairness, and the rights of the accused in the Indian legal system.
