Ecostani | As ED action continues against opposition leaders during code of conduct, where is the level playing field

On Monday, ED in Kejriwal’s remand application claimed that Vijay Nair, former communication in-charge of AAP and an accused in the case, used to report to Delhi ministers, Atishi Marlena and Saurabh Bhardwaj. Kejriwal was sent to Tihar Jail by the court on Monday. More than a dozen AAP leaders have either been arrested or questioned by the ED in the alleged scam. K Kavitha, daughter of former Telangana chief minister K Chandrashekar Rao, was also arrested in the Delhi excise case.

After the elections were announced on March 15, the ED issued a summons to Shiv Sena (Uddhav Thackeray) faction leader Amol G Kirtikar who will contest the Lok Sabha polls under the Indian National Developmental Inclusive Alliance (INDIA) bloc. Kirtikar was questioned in the alleged “khichdi” scam hours after he was nominated as party candidate for Mumbai's north-west Lok Sabha seat. The “khichdi” scam pertains to alleged irregularities in providing food to patients during the Covid-19 pandemic. He has been asked to appear before the ED on April 8.

The ED has also registered a case against Kerala chief minister Pinayari Vijayan’s daughter, Veena Vijayan, and some others for money laundering. They claim that money was paid by a mining firm to her IT company. The ED filed the case on the basis of a complaint from the Central government’s Serious Fraud Investigation Office (SFIO), which conducted an initial inquiry against Veena on the basis of a complaint by a Kerala Bharatiya Janata Party leader. She is likely to be summoned by ED in April. Kerala is going to Lok Sabha polls in the second phase on April 26.

Most of the ED’s action against opposition leaders, since 2014 when Prime Minister Narendra Modi took over from Congress’ Manmohan Singh, has been targeted at opposition leaders, especially in states where the opposition is or has been, in power. In January, Jharkhand’s former chief minister Hemant Soren was arrested by the agency in an alleged land purchase scam. Shiv Sena (UBT) leader Sanjay Raut, former Maharashtra home minister, Anil Deshmukh and Nationalist Congress Party senior leader Nawab Malik, were other opposition leaders arrested by the ED. None have been convicted so far in the money laundering cases lodged against them.

As per an Indian Express report, there has been a four-fold jump in ED cases against politicians in the past eight years as compared to the United Progressive Alliance (UPA)’s 10 years of power between 2004-2014. The ED operates under the Directorate of Revenue, Government of India. Between 2014 and 2022, of the 121 leaders raided by ED, 115 were opposition leaders, the daily reported. During the UPA regime, 29 politicians were probed by ED, of which 14 were from opposition parties.

The opposition parties have also claimed that the ruling BJP was using the ED to break opposition parties and make their leaders join the BJP. The federal agency probes have slowed down on investigation against opposition leaders who joined the BJP.

The latest example is former civil aviation minister Praful Patel, against whom a corruption case was closed by the Central Bureau of Investigation (CBI) on March 27, almost four months after his faction of NCP joined the Eknath Shinde-led government in Maharashtra. The ED, which had initiated its probe against Patel based on the CBI investigation, may not have any grounds to inquire further into the money laundering charges. With Patel getting the clean chit, his assets seized by ED are likely to be released, too.

The ED probe has also not progressed much against Assam chief minister, Himanta Biswa Sarma, who was being investigated for Saradha chit fund scam when he was in the Congress party. There have also been no further developments in cases against former TMC leaders Suvendu Adhikari and Mukul Roy in the Narada sting operation case since they joined the BJP before the West Bengal assembly polls in 2017.

However, ED action continues even when the Election Commission’s model code is in force. The model code is the period when all powers of the administration get vested with the Election Commission and nothing which can possibly disturb the electoral level playing field can be carried out without the EC’s permission.

The ED’s actions and the Income Tax department’s recovery notices to opposition parties, the Congress and the Communist Party of India, threatening freezing of accounts, violates the level playing field. The Congress has received cumulative notice to submit ₹1,800 crore and CPI, ₹11 crore, in the middle of election season.

The EC has not spoken on whether the ED or Income Tax department has sought its permission before initiating action against opposition party leaders. If not, it is a violation of the model code and the EC can use its powers under Article 324 of the Constitution, to reign in these agencies. The article vests all officers of Central and State under the commission and gives it the power to issue “binding” directions to them. If the EC wants the election to be fair, it needs to use its constitutional powers, or else, be prepared to fail the Indian democratic process.

Chetan Chauhan, national affairs editor, analyses the most important environment and political story in the country this week