Will ED be more coercive ahead of 2024 elections?

The Supreme Court’s pronouncement to make illegal the extensions to the services of Enforcement Directorate director Sanjay Kumar Mishra has triggered a war of words between the BJP and the Congress. It is quite natural for the Congress and other opposition parties to be happy about this victory because the ED director has been creating havoc since Mishra took over in 2018. The role of the investigating agency has been dominating the political discourse of the country since Modi took over as Prime Minister of India. The agency that had earlier been limiting its activities to investigating important cases of money laundering has emerged as the most coercive instrument of the state under Modi’s rule. It has broken all the records of partiality and impropriety. A careful reading of contemporary history would tell us that no other organization could compete with it in notoriously playing into the hands of the ruling party.

It is not without reason that the Congress is rejoicing over the SC’s judgment to remove Mishra on July 31, 2023. The Court has deemed extensions of his service beyond one year illegal. This is certainly humiliating for a person who has identified with the ruling party too closely to separate his identity as an independent bureaucrat. Does the removal of an individual address the question of ensuring the independence of the institution? Does it address the question of prohibiting an institution from becoming a coercive instrument of the state by throwing all the norms to the wind?

The SC’s judgment literally, gives a free hand to the government to use institutions as it likes. The Court has upheld the amendments to the Central Vigilance Commission Act, the Delhi Special Police Establishment Act, and the Fundamental Rules enacted in 2021. Amendments empower the government to give three extensions of one year each beyond the fixed terms of two years for the directors of the ED and the CBI. Thus, the term of two years could be extended up to five years.

These changes had obviously been brought about by the government to retain Sanjay Mishra in the post when the Supreme Court passed a mandamus that government could not extend his term beyond one year after his superannuation. Mishra’s term of two years was extended to three years by amending his appointment order. He was appointed for two years in 2018. His term was extended just before he was to retire in 2020. The Court passed the mandamus in 2021. The amendments in the acts empowered the government to extend Mishra's term of service. The service of Mishra was extended in 2021 and 2022 for one year each. The Court, in its latest judgment, annulled the two extensions.

What the Court has actually done is uphold the mandamus. The Court has said that the government could change the basis on which the Supreme Court has ordered but could not change the direction given by the Court. If we forget the individual, Sanjay Mishra, the judgment has actually dealt a blow to the cause for which the petitioners sought the intervention of the Supreme Court. The Court has rejected the argument that the amendments to the CVC Act and the Delhi Special Police Amendment Act violate fundamental rights. They also argued that it went against earlier judgments of the Supreme Court that had mandated fixed two-year terms for the directors of the ED and the CBI to ensure the independence of these pioneering investigating agencies. The judgment is surprising in one more aspect: the amicus curiae appointed by the Court also argued against the amendments and said that piecemeal extensions would undermine the independence of the agencies as the government would use its power of extension as a carrot. Amicus Curiae KV Viswanathan, interestingly, has since joined the Supreme Court as a judge. The Congress and senior politician Kapil Sibal are interpreting the judgment as being against the government. They are saying that the government wanted Sanjay Mishra to complete his third term and that the Supreme Court has rejected it. Their argument is inspired by short-term political gains. Their argument, undeniably, has propaganda value, but it lacks substance. After a long legal and political battle, the Supreme Court mandated a fixed two-year term for the ED and CBI directors and ensured the independence of the heads of these two prime investigating agencies, so that they were not forced to leave when he is trying to bring a politically powerful person to justice.

The implications of the judgment could be seen in the tweet of Home Minister Amit Shah. He has declared in no uncertain terms that the government will go on using the ED against its opponents.

"Those rejoicing over the Hon'ble SC decision on the ED case are delusional for various reasons: The amendments to the CVC Act, which were duly passed by the Parliament, have been upheld. Powers of the ED to strike at those who are corrupt and on the wrong side of the law remain the same.

ED is an institution which rises beyond any one individual and is focused on achieving its core objective - i.e. to investigate offences of money laundering and violations of foreign exchange laws.

Thus, who the ED director is - that is not important because whoever assumes this role will take note of the rampant corruption of a cozy club of entitled dynasts who have an anti-development mindset," he says.

Is he not declaring that the government will go on its chosen path of intimidating politicians and protesters through ED raids, irrespective of who is heading the organization? He identifies his immediate target, the "cozy club of entitled dynasts who have an anti-development mindset". He is clearly hinting that the likes of Tejaswi Yadav, Abhishek Banerjee, and others will have to face a tough time ahead of the 2024 elections.

(The author is a senior journalist. He has experience of working with leading newspapers and electronic media including Deccan Herald, Sunday Guardian, Navbharat Times and Dainik Bhaskar. He writes on politics, society, environment and economy)