"Something is rotten in the state of Denmark" is a famous line from William Shakespeare's play Hamlet. Today, one might be tempted to apply this line to India's premier agency for investigating the offence of money laundering, the Enforcement Directorate [ED], which is responsible for investigating economic offences and financial crimes in India in view of their conduct in handling PMLA matters.

The dismal state of affairs in handling the cases by ED is evident from the repeated reprimands from the constitutional as well as special courts constituted under PMLA for not adhering to the procedural safeguards and fundamental rights enshrined under the constitution. During the hearing of one of the cases in Pankaj Bansal v. Union of India [2023 LiveLaw (SC) 844], which alleged high-handedness on the part of ED during its investigations of a case, the Supreme Court went to the extent of terming the actions of ED as vindictive by observing that "every action of the ED in the course of such exercise is expected to be transparent, above board and conforming to pristine standards of fair play in action. The ED mantled with far-reaching powers under the stringent Act of 2002, is not expected to be vindictive in its conduct and must be seen to be acting with utmost probity and with the highest degree of dispassion and fairness." The allegations raised against ED before the SC were not in one matter, but they have been the subject matter of virtually every matter against ED in the courts.

Recently, a 64-year-old Petitioner ('Ram Kotumal Issrani v. Directorate of Enforcement' bearing Criminal Writ Petition (Stamp) No. 15417 of 2023) approached the Bombay High Court alleging that upon being summoned by the ED, he joined the investigation at 10.30 a.m in Delhi, whereupon his personal liberty was curtailed, his mobile phone was seized, and he was surrounded by ED officials who even followed him to the washroom. The Petitioner further alleged that he was interrogated throughout the night, which violated his 'right to sleep', which forms part of his right to life, enshrined under Article 21 of the Constitution. The division bench headed by Justice Revati Mohite Dere observed that the 'right to sleep' / 'right to blink' are basic human requirements, and not providing the same violates a person's rights as it may impair one's mental faculties and cognitive skills. The court held that statements must be recorded during earthly hours and not during the night when the person's cognitive skills might be impaired. The court sternly directed the ED to issue a circular/directions and frame timings for the recording of statements under Section 50. In compliance with the said directions, the ED issued detailed internal guidelines for the officer's inter-alia indicating the timings of recording such statements.

Similarly, in the recent case of Shashi Bala @ Shashi Bala Singh v. Directorate of Enforcement (Petition for Special Leave to Appeal (Crl.) No. 16260/2024), the Supreme Court bench comprising Justice Abhay S. Oka and Justice Ujjal Bhuyan has taken the ED to task, pulling no punches in its rebuke of the agency's courtroom conduct too. The court stated, "We will not tolerate conduct on the part of the Union of India to make submissions contrary to statute." This stern rebuke came after the ED attempted to argue that even if an accused is a woman, notwithstanding the proviso to sub-Section (1) of Section 45 of the PMLA, rigours of clause (ii) of sub-Section (1) of Section 45 of the PMLA will apply to the proviso to Section 45 of the PMLA, which exempts women from stringent bail conditions.

The seeming disrespect for procedural safeguards and constitutional rights by ED while calling and apprehending suspects has also become the basis of repeated criticism from the Supreme Court. The SC questioned the "tearing hurry" with which the ED summoned and arrested Anil Tuteja, a former IAS officer. While referring to the chronology of Tuteja's summons and subsequent arrest, the bench, headed by Justices Abhay S. Oka, expressed concerns about the agility shown by the ED to arrest the former IAS officer by observing, "This does not happen (even) in the case of terrorism or serious offences in the IPC", and reminded the ED officers that there is "something called Article 21 in the country (which guarantees right to life and liberty)."

In the case of Delhi Chief Minister Arvind Kejriwal, Justice Ujjal Bhuyan of the Supreme Court raised doubt on the necessity and intent behind Kejriwal's arrest. The observations by Justice Ujjal Bhuyan suggested that "a view may be taken that CBI's arrest was to frustrate bail in ED matter," pointing to a potentially coordinated effort between the investigating agencies to keep the accused in custody by hook or crook.

In a startling development in the case of Arun Pati Tripathi versus Directorate of Enforcement, SLP(Crl) No. 16219/2024, counsel appearing on behalf of the ED disowned an affidavit filed by the ED by describing it as "half-baked" and filed without proper vetting. The counsel appearing for ED admitted that "There is something wrong with the ED, which I must say." The comments of the ED's counsel suggest deep-rooted issues within the ED's functioning. ED has to consider that when your own team starts raising the white flag, it is time for some serious soul-searching.

As the Supreme Court and the High Courts warn of "coming down heavily on such practices," it is clear that the ED's approach in PMLA cases is not just unappreciated but actively opposed by the higher judiciary. ED is at a critical juncture, wherein, on the one hand, it has to keep fighting against financial crimes to comply with the international covenants and on the other hand, it must also realign its methods by adhering to procedural fairness and constitutional values, failing which it stands the risk of further erosion of its credibility in the eyes of the court and the public. The ED will have to take some positive steps to rectify its methods, as these steps will determine whether the ED can regain its credibility or continue down the slippery slope.