According to the Congress Sandesh dated: 08th August, 2022, in the article titled: ‘The Legal Empowerment of Political Enforcement Directorate (2022)’, the Indian National Congress posited the question:
“Was further weaponizing, by conferring it (ED) with such draconian powers, needed when we have reason to believe that the power is only being abused by the ED for the last couple of years?”
In the same Congress Sandesh (2022), the Indian National Congress expressed:
“The Constitution of India under article 21 permits curtailment of personal liberty only through ‘procedure established by law’- which has been held to mean that the procedure ‘Must’ be ‘right and just and fair’ and ‘not arbitrary, fanciful or oppressive’ otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied” as held in Maneka Gandhi vs Union of India. Presumption of innocence and the right to silence are not ‘mere procedure’. They are vital rights affecting life and liberty which have been upheld by numerous constitutional courts…”
Some of the main issues of concern with respect to the recent amendments made to the provisions of the Prevention of Money Laundering Act, 2002, have been enunciated by the Indian National Congress in their Congress Sandesh (2022) which is as follows:
- “The first concern arises out of the fact that a person accused under the PMLA does not have access to the Enforcement Case Report, as the court has held that recording an ECIR is not mandatory and, therefore, does not know why he is being investigated or whether he is being summoned as a witness or an accused.”
- “Further exacerbating the concern is the fact that the PMLA provides for a statement, at times coerced, to be recorded under Section 50 (including those which may be self-incriminating), which may be an admissible evidence in the court of law. It allows ED to lodge a criminal case against the person for what the statement reveals.”
- “There is no right of silence, no scope for volition, and no direction about the manner of the use of such statements in a criminal prosecution or as to their evidentiary status.”
- “ED’s power to carry out arrests without the ECIR and the provisions of securing bail under Section 45 of the PMLA mandates extremely onerous conditions for bail. The accused has to virtually prove his or her innocence and assure the court s/he will not commit any offence while on bail.”
- “...the ED, under Sections 17 or 5 of the PMLA, is authorized to freeze/attach any movable or immovable property of any person if it feels that the property is involved in money laundering or constitutes ‘Proceeds of Crime’ for a lengthy span of time. Though, any such order by the ED is subject to confirmation by the Adjudicating Authority.”
- “Once the Adjudicating Authority confirms such attachment, the property will remain attached for the entire duration of the trial for money laundering before a criminal court because the burden of proving that the property attached does not constitute proceeds of crime, is upon the accused.”
- “But because there is no mandate to maintain a written record of the entire investigation, in the absence of an ECIR, any broad-based reasons and some semblance of a connection with the main offence would suffice, thus making the safeguard a nullity in effect.”
According to the noted international Magazine, The Week, in their article by their Staff which was titled: The IRS as a political weapon, which was last updated on: 9th January, 2015,
“The Internal Revenue Service, which has admitted selectively auditing conservative groups, has a long history of scandal.”
In the same article by The Week’s Staff (2015), the reminiscence of a historical event at the US White House almost appears to be metaphorically similar to the discourse between the functionaries under the PMLA and the Constitutional head of the Cabinet of Union Ministers:
“The White House tapes recorded Nixon urging aide John Ehrlichman in 1971 to get the IRS to dig into the tax returns of possible Democratic presidential candidates Sens. Edmund Muskie, Hubert Humphrey, and Ted Kennedy. “I can only hope that we are, frankly, doing a little persecuting,” Nixon said. “There’s a lot of gold in them thar hills.” In 1969, the Nixon administration set up an IRS unit called the Special Service Staff, which used tax records to assemble dossiers on more than 11,000 groups and individuals. After the 1972 election, Nixon staffers gave the IRS a list of 576 supporters of Democrat George McGovern. In 1974, one of the articles of impeachment against Nixon charged him with seeking “confidential information contained in income tax returns for purposes not authorized by law.”.”
Sutirtha Bagchi (2015) in her Research Article entitled: ‘The Political Economy Of Tax Enforcement: A Look At The IRS From 1978“2010’, has considered the relevant questions with respect to the Internal Revenue Service (IRS) in the USA:
“Do party ideologies matter for tax administration? Does Democratic control of the Presidency and Congress induce the allocation of more resources on tax administration and enforcement relative to Republican control? Furthermore, does the allocation of greater resources to the IRS translate to outcomes of interest such as audits?”
According to Mattos (1997):
“In 1997 during the presidency of Bill Clinton, the IRS came under scrutiny when a series of conservative nonprofit organizations like the Heritage Foundation and Citizens Against Government Waste were the targets of audits, prompting a bipartisan effort in the Senate to investigate the accusation that a political motivation was behind such audits.”
Sutirtha Bagchi (2015) contemporaneously observed that: “The revelation by IRS exempt organizations division chief, Lois G. Lerner, that IRS employees singled out applications from “Tea Party” groups for 501c(4) tax-exempt status for additional scrutiny, has raised questions about the possibility that the President or Congress may try to alter the priorities of the agency in order to have it serve his (or their) political goals.”
