The bench expressed the need for a system that ensures the punishment of the actual culprits while also safeguarding against retaliatory arrests. There was sharp exchange of words between Solicitor General Tushar Mehta and Senior Advocate Kapil Sibal during the hearing of the plea
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NEW DELHI: Today(January 25), the Supreme Court of India expressed its intention to establish guidelines aimed at ensuring fair and transparent investigations in cases involving the Directorate of Enforcement (ED) and state government officials. This move comes in response to concerns about the potential for vindictive arrests and mala-fide witch-hunting, as the Court seeks to develop a pan-India mechanism to address these issues.
The bench, consisting of Justices Surya Kant and KV Viswanathan, was hearing a writ petition filed by the ED. This petition requested the transfer of a bribery case investigation involving ED officer Ankit Tiwari from the Tamil Nadu Directorate of Vigilance and Anti-Corruption (TNDVAC) to the Central Bureau of Investigation (CBI). The Court has issued a notice to the State of Tamil Nadu and has postponed the matter for two weeks, directing TNDVAC to halt its investigation against Tiwari and share all collected materials with the Court.
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There was sharp exchange of words between Solicitor General Tushar Mehta and Senior Advocate Kapil Sibal during the hearing of the plea.
Solicitor General of India Tushar Mehta, representing the ED, clarified that the agency’s intention was not to support the implicated officer but to ensure a fair investigation. He raised concerns about the Tamil Nadu Police’s reluctance to share FIRs related to scheduled offences, hindering the ED’s investigation in money laundering cases against state officials. Senior Advocate Kapil Sibal, representing the State, refuted these allegations.
Justice Viswanathan highlighted the need to address the “larger issue” of establishing best practices considering the federal nature of the country. He suggested that both parties collaborate to propose a mechanism. Justice Surya Kant also emphasized the need for a transparent investigation process.
During the hearing, Sibal argued that the ED was targeting only certain states, to which the SG objected, dismissing it as a political statement. Justice Viswanathan elaborated on the Court’s perspective, stressing the importance of distinguishing between genuine cases and those brought in mala fide. He suggested the need for a mechanism to balance the investigation of genuine cases and prevent mala fide witch-hunting.
The SG agreed on the necessity of such a mechanism but reiterated his grievance about the non-cooperation of the Tamil Nadu Police. Justice Kant questioned the secrecy surrounding FIRs, asking why they weren’t uploaded on the website. Sibal countered by questioning the ED’s entitlement to investigate without prima facie evidence of money laundering.
The Court proposed various solutions, including joint investigations by state anti-corruption bureaus and the ED under the supervision of retired officers or former judges. This mechanism could potentially be applied to other states as well.
The hearing saw heated exchanges between the lawyers, with the Tamil Nadu AAG questioning the ED’s lack of investigation in certain states, and the SG responding by labeling it a political submission. The SG also questioned the Tamil Nadu government’s involvement in the case, leading to further debate about political vendetta and the need for a transparent mechanism.
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The case, is set to continue as the Supreme Court seeks to establish guidelines that balance the need for thorough investigations with the protection against political misuse of power.
CASE TITLE:
Directorate of Enforcement v. State of Tamil Nadu W.P.(Crl.) No. 23/2024.
UPDATES FROM THE COURT
“While offenders should not go scot-free, vindictive arrests and mala-fide witch-hunting should also not take place,” – Supreme Court.
“The larger issue of best practices, considering the federal nature of the country… we will evolve a mechanism. You should sit together and give suggestions,” – Justice Viswanathan.
“The federal structure of the country is being jeopardised,” – Senior Advocate Kapil Sibal.
“The way the PIL was filed, the way the High Court entertained it and passed the order, we don’t want to comment on it now. But there is something which can be said about both sides. Better you come up with solutions, otherwise we will find out. The matter needs to be probed in a transparent manner,” – Justice Surya Kant.
“There may be genuine cases where ED may have to go in, there may be cases where they are brought into mala fide. Some kind of best practices we want. There has to be a mechanism where when a central agency, particularly when the ruling party is different between the Centre and the State. Something has to be evolved so that while genuine cases don’t go scot-free merely because it is being handled by the central agency, at the same time there is no mala fide witch-hunting,” – Justice Viswanathan.
“Mr.Sibal, aren’t the FIRs supposed to be uploaded on the website? Why the secrecy?” – Justice Kant.
“If you have registered an FIR against a public servant for corruption or illegal mining or disproportionate assets, what is the State propriety to say that we will not permit further investigation by the ED?” – Justice Kant.
“ED investigation can happen only if there are proceeds of crime and there are attempts to convert the proceeds of crime into legitimate money. Money laundering is the offence, not the proceeds of crime. So how are the ED entitled to investigate without prima facie money laundering?” – Kapil Sibal.
“We are not observing in the order. Please try to explore and tell us a mechanism which should be fair, and transparent. It should apply to all States. We will start with this State,” – Justice Kant.
“You can suggest a module. For example, let the matter be investigated by the State anti-corruption bureau as well as the ED by a joint team under the supervision of retired DGP officer, or a former judge of the High Court. Same mechanism can be applied to other States also,” – Justice Kant.
“You can suggest a mechanism, a body, which will look into the inter-state ramifications, punishing the really guilty at the same time preventing the vindictive arrest of others,” – Justice Viswanathan.
“If there is a vindictive arrest, there is a Court to look after,” – Solicitor General.
“Your offices are there all over India. ED offices, CBI offices. Imagine if it goes on, what will happen to our set up. We are not saying you are vindictive or they are vindictive. But suppose in a given scenario, there is a tit-for-tat reaction. Your officers are sitting in the States. If there is a vindictive action from their side as a tit-for-tat to what they perceive as a vindictive action, what will happen to the country,” – Justice Viswanathan.
“That is why, there has to be some kind of mechanism which should screen before action is set out,” – Justice Viswanathan.
“To eliminate the apprehension of political vendetta or actual political vendetta, we need to have a mechanism…therefore, let us find out some transparent mechanism, where the investigation can commence while these types of situations can be avoided…” – Justice Surya Kant.
“You should also not protect Ministers. Investigate all FIRs registered against the Chief Minister of Assam,” – Kapil Sibal.
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