Prem Shankar Jha
Eight years into government by Narendra Modi, it is no longer possible to pretend that India’s multi-ethnic, multi-religious democracy is not in acute danger. The reason is the collapse of the judiciary, the only pillar of democracy that had remained standing after the second victory of the Modi-led Bharatiya Janata Party (BJP) in 2019.
History will remember Justice A. M. Khanwilkar’s two last authored judgments for the barely veiled hostility they showed towards civil society and their disregard for the fundamental rights and the presumption of innocence until proven guilty enshrined in the constitution.
Khanwilkar began the demolition of these rights on June 25, when he not only dismissed Zakia Jafri’s appeal for justice with contempt but also incited the Modi government to punish those who had helped her to file it.
His demolition project was completed on July 27, just two days before he retired, by rubbishing no fewer than 242 petitions against the draconian powers appropriated by the executive branch of the government to harass, impoverish and imprison those merely accused of money ‘laundering’ – hiding ill-gotten gains from taxation through laws against economic crimes given to specially created agencies by a succession of laws such as the Serious Fraud Investigation Office (SFIO), the Directorate of Revenue Intelligence (DRI) and the Enforcement Directorate (ED).
Eighty of these petitions were specifically against amendments to the Prevention of Money Laundering Act (PMLA), which had reversed the burden of proof, placing it upon the accused – who had to prove their innocence – instead of on the government having to prove their guilt.
This made it possible for the ED’s interrogators to heap charge after charge on an individual without requiring even prima facie substantiation, to interrogate them endlessly in order to force more and more information out of them, in the hope of tripping them up with inconsistencies that could become the grounds for further interrogation or sending them to jail.
The PMLA had been enacted by the Atal Bihari Vajpayee government and substantially amended by the Manmohan Singh government in 2012, but both were aware of the dangers that reversing the burden of proof entailed. So they had launched investigations with great caution. Between 2002 and 2014, the Enforcement Directorate lodged only 112 cases in all and made an equal number of searches.
But this changed dramatically after Modi came to power, for in less than eight years between June 2014 and the end of March 2022, the Enforcement Directorate launched 5,310 cases, conducted 3086 searches, attached Rs 104,702 crore (1.4 trillion) worth of assets (calling these the “proceeds of crime”) and filed 880 charge sheets.
However, it secured only 23 convictions! By any yardstick, therefore, the PMLA has been a miserable failure as a deterrent to financial and economic crimes. So, why is the Modi government so determined to retain it in precisely the form in which it has so spectacularly failed?
Consolidation of power at all costs
The answer is that since 2015, and in particular, since it added no fewer than eight more amendments in 2019, Modi has been using the Act for an altogether different purpose. This is to tame or destroy, the myriad opposition parties that make up India’s political mosaic, and turn India into a one-party state.
From his first day as prime minister, Modi made no secret of his determination to do this and remain India’s leader till the end of his natural life. In his first speech after being sworn in as prime minister in 2014, he spoke expansively about all that he hoped to achieve in the next 10 years. Ten, not five! Modi was already looking beyond the next general election on that first day in power.
Since then, his every action has reeked of hubris, and a savage determination to put his personal, indelible, stamp on Indian history, no matter what the cost. Nothing exemplifies this better than his casual destruction of the Central Vista lawns in New Delhi to build not only a grand new parliament building that the country does not need, but also a palatial new house for the prime minister, which he rather obviously intends to live in till 2034 if not longer.
In 1933 Adolf Hitler took advantage of a fire in the Reichstag – the German parliament – that he may well have instigated, to get himself declared chancellor for life by Von Hindenburg, the then German President. Modi has found a better way to achieve the same end. This is to use a combination of stick and carrot to destroy the opposition parties one by one, till the BJP’s dominance of Indian democracy is assured.
In the open-ended powers that earlier government had unwisely heaped upon the police and central investigative agencies, he has found all the means that he needs, and more, to achieve his goal. For the past eight years, he has been using these to divide political parties, dismantle non-BJP governments in the states by securing defections, and destroy powerful political leaders in the opposition who fail to respond to his threats and blandishments.
For this purpose, his earlier weapon was the CBI – the Central Bureau of Investigation. But since 2019, it has become the National Investigative Agency (NIA), buttressed by changes in the Unlawful Activities Prevention Act at the political end of the spectrum, and the Enforcement Directorate, bolstered by no fewer than eight amendments to the PMLA in 2019, at the economic.
Abuse of ED and PMLA
In the past two years, Modi has relied more heavily on the PMLA and the ED to break or tame the opposition. The reason is that while the Code of Criminal Procedure puts limits upon the CBI’s capacity to act arbitrarily against those whom the government targets, the PMLA does not.
Under the constitution, the CBI can only investigate a crime with interstate ramifications after obtaining the consent of the state governments concerned. This required states to provide a general consent under the Delhi Police Act. But, even then, this had to be exercised “with the support of the state Police”.
But, under the PMLA, the Enforcement Directorate can call anyone from anywhere in the country for interrogation without having to give a reason why; question them for hours on end, record everything they say without a defence lawyer present, and use even minor discrepancies in their statements as grounds for arresting and incarcerating them. In this respect, its power goes far beyond that of the CBI and state police, who cannot use a self-incriminatory statement, unless it is repeated, and recorded, before a magistrate.
The PMLA also does not require the Enforcement Directorate to furnish a copy of the Enforcement Case Information Report (ECIR), its version of the police’s First Information Report, to the person being arrested. Finally, bail is far more difficult to get under the PMLA than it is under criminal law because the ED has routinely argued that the defendant has the money not only to influence witnesses but also to flee the country and live a luxurious life elsewhere.
The Modi government’s transformation of a bad law into an instrument of oppression has taken place in stages.
The first phase came when Modi launched a campaign to destroy the Aam Admi Party (AAP). When the BJP was routed in the Delhi assembly elections in December 2014, Modi unleashed a barrage of attacks upon Kejriwal’s government that virtually paralysed it. The harassment was so intense and so incessant that, to bring it to an end, Kejriwal had to claim, in a 10-minute televised interview given at the end of July 2016, that Modi was bent upon getting him killed.
Middle-class India treated this as hyperbole but in the months that followed, Modi – acting through then Lt. Governor Najib Jung – paralysed the Delhi government.
Among the weapons he used were the CBI, which called in around 150 members of the Union territory cadre of officers, serving in Delhi, for protracted interviews that turned into thinly veiled warnings to keep the Union government informed of everything that Kejriwal was doing and planning. Among the instruments he used was a case of corruption lodged by the CBI against Kejriwal’s personal secretary Rajendra Kumar, an officer with an unimpeachable reputation, that disappeared from Modi’s radar after he resigned from his post.
The BJP also launched cases of slander and defamation against Kejriwal simultaneously in 33 courts across the country. When this did not break the government, the Delhi police began arresting AAP MLAs on a variety of grounds. By July 2016, 11 out of AAP’s 67 MLAs were in custody.
Modi’s next target was Mamta Bannerjee’s Trinamool Congress government in Bengal. His principal weapon was videotapes obtained in a Tehelka-financed sting operation that showed 13 persons accepting money from chit fund owners. Twelve of them were top members of the Trinamool Congress, who promptly became the subjects of a central CBI/ED investigation. This operation had taken place in 2014, but for reasons that remain unexplained, was uploaded by a private TV channel, Narada TV in 2016, two years later, only weeks before the Assembly elections.
When the Bengal and Kolkata Police took no action against the 12, in February 2019, 40 CBI officers descended without waiting with a warrant to arrest no less senior a police officer than the Kolkata Police Commissioner and whisk him away to Delhi for interrogation. Thanks to a quick-witted policeman on duty at the commissioner’s house, the CBI officers found themselves surrounded by the Kolkata Police, virtually arrested and held in informal custody until Delhi agreed to call them back.
This ‘invasion’ by the Union government led to three states – West Bengal, Andhra Pradesh and Chhattisgarh – withdrawing their General Consent under the Delhi Police Act. They were followed rapidly by others: by March 2022, six more states had withdrawn their consent from the CBI, and other central agencies. These were Mizoram, Rajasthan, Maharashtra, Kerala, Jharkhand, Punjab and Meghalaya.
From CBI to ED
The CBI’s searing experience in Kolkata did not discourage the Modi government but only made it turn to the Prevention of Money Laundering Act of 2002 to bring the opposition to heel. His first target was Uddhav Thackeray’s Congress-Shiv Sena government which had wrested Maharashtra from the BJP in the state elections of November 2019.
In November 2021 and February 2022, the Enforcement Directorate arrested and jailed two senior leaders of the Shiv Sena, Anil Deshmukh and Nawab Malik, on charges of money laundering. Six and eight months later the two are still struggling to get bail.
Shiv Sena MLAs got the message. In June this year, when the BJP turned its attention to the destruction of Uddhav Thackeray’s government, it found little difficulty in weaning 40 Shiv Sena MLAs and 12 MPs away and ‘persuading’ them to join the breakaway group of Eknath Shinde. This may not have been as difficult as it sounds because the near-criminal antecedents of many of its members made them especially vulnerable to the BJP’s methods of “persuasion”.
For Modi, the destruction of the Congress -Shiv Sena combine in Maharashtra was not enough. On June 30, the Enforcement Directorate arrested Sanjay Raut, Uddhav Thackeray’s right-hand man and searched his premises for nine hours for evidence it could use against him. of raids at his residence. Raut had earlier been accused of making a great deal of money over the ‘redevelopment’ of a chawl in Mumbai. But the search unearthed only Rs 11.75 lakh in cash, which the ED seized as ‘evidence’.
But evidence of what? With apartment prices in central Mumbai ranging from Rs.23,044 to Rs.36,195 per square foot, 11.75 lakh could buy at most 3 to 4.6 square metres of built-up living space – not even enough for a bathroom, in a central Mumbai apartment! The allegation is therefore laughable but, five weeks later, Raut is still in jail.
These are not the only states on which Modi has unleashed the PMLA. Jharkhand and Bengal have come next on Modi’s list.
In West Bengal, Partha Chatterjee, Mamata’s closest ally, has also been sent to jail by the ED, which say it has recovered more than Rs 100 crore from the apartment of his alleged “accomplice” Arpita Mukherji. The ED claims that the flat actually belongs to Chatterjee. Mamata’s nephew, Abhishek Banerjee has been interrogated by the ED many times on this issue to break his will.
Guns trained on AAP again
Modi’s most recent assault on India’s political pluralism has taken place at the scene of the first: New Delhi. After nearly six years of uneasy coexistence, he has turned his guns once more on the Aam Admi Party.
Realising that directly assaulting Kejriwal would rebound on the BJP, as it did in February 2020, he has turned the Enforcement Directorate onto Delhi’s health minister Satyendar Jain and now deputy chief minister Manish Sisodia. The reason is almost childishly obvious. After its victory in Punjab, AAP is no longer perceived as a local, purely urban party, but as a national party capable of challenging and defeating both the Congress and the BJP in assembly elections as well.
With elections looming in Himachal and, more importantly, in Modi’s home state Gujarat, an attempt to destroy the party’s credibility by painting it to be as corrupt as the rest of them had become inevitable.
But Modi reserved his crowning assault for the Gandhi family. The purpose behind the ED’s three summons to Sonia Gandhi, its more than 50 hours’ interrogation of Rahul Gandhi, and its sealing of the offices of Young India in the National Herald building is to humiliate the Gandhi family and destroy the last shreds of the aura that once surrounded Jawaharlal Nehru and Indira Gandhi and complete the elevation of Modi to the status of India’s new supremo.
Justice Khanwilkar must read the daily newspapers and watch TV. So, he could not but have become aware, while writing the bench’s 545-page judgment, that the purpose of the PMLA in its present form is not justice but political intimidation. The most charitable interpretation one can put on it is that in his preoccupation with the letter of the law, he was blind to its purpose.
Prem Shankar Jha is a veteran journalist.