Court Observations Against Agencies Set A Trend Ahead Of Upcoming Review Petitions

By K Raveendran

The Supreme Court’s displeasure with the way the Centre is using its agencies to suppress criticism or force adversaries into submission is finding expression at increasing frequency.

“It can’t be a State that is run only through its agencies,” Justice Sanjay Kishan Kaul said while hearing a petition urging the court to establish safeguards against unreasonable interference by law enforcement agencies and create comprehensive guidelines for search and seizure of digital devices used by media persons. The court expressed serious concern over the arbitrary actions by the agencies in this regard.

Last month the apex court had questioned the manner in which enforcement agencies were going after adversaries of the ruling establishment. In the Delhi excise case, the court went to the extent of asking the probe agencies to show proof of deputy chief minister Manish Sisodia’s role in the alleged liquor policy scam, saying that the AAP leader didn’t appear to be involved and demanded to show evidence against the jailed minister.

In the present case of the alleged use of enforcement agencies by the Modi government to tame media houses that don’t toe the government line, the judges tore into the government argument that media cannot be above law and that the investigating agencies cannot be shut out completely from media. Justice Kaul promptly responded, saying powers of the agencies cannot be misused either.

The judge told additional solicitor general SV Raju that he found it very difficult to accept the kind of ‘all-within powers that the agencies have’ and asked the government to come up with proper guidelines to ensure that there is no misuse of powers.

A collective of media organizations under the banner of the Foundation of Media Professionals had in the wake of raids of journalists associated with ‘NewsClick’ written to the Chief Justice of India seeking guidelines on seizure of digital devices. The Foundation has highlighted the increasing reliance on personal digital devices for journalistic work, which often involves handling ‘confidential information of public value, private correspondence with sources and whistle-blowers, and remote collaboration to break news stories in the public interest’.

It also raised concerns over the ‘unsettling trend’ of law enforcement agencies conducting intrusive searches and seizures of personal digital devices, leading to a chilling effect on the exercise of constitutional freedoms, particularly within the journalist community.

The repeated warnings by the Supreme Court about the misuse of powers by the probe agencies assume special significance in view of the pending review of the apex court’s own decision earlier, upholding the constitutionality of the Prevention of Money Laundering Act (PMLA), under which the Enforcement Directorate enjoyed the power to make arrests in money laundering cases. It is to be noted that Justice Kaul is among the three-member bench constituted by Chief Justice D Y Chandrachud to hear the batch of review petitions.

The government has been desperately trying to delay the review on one pretext or the other. Solicitor General Tushar Mehta had raised procedural issues in a bid to prevent the bench from hearing the petitions, questioning the propriety of a new bench hearing appeal against another coordinate bench, arguing that it amounted to abuse of the process of law. But the judges found no merit in the argument and gave the green light to proceed with the hearing.

The Solicitor General then requested the bench to delay the hearing by a month in view of the periodic evaluation by the Financial Action Task Force (FATF) which is the global money laundering and terrorist financing watchdog that mandates laws like PMLA and invoked national security to press for his demand. The judges, however, rejected the claim and declared that the hearing of the review petitions can in no way be considered as against national interests.

The government seems to be keen to see that the bench hearing the review petitions does not include Justice Kaul, who is retiring on December 25 and that there would be another bench without him to hear the petitions. But it remains to be seen how the government manages to avert the judge’s presence as the bench is slated to take up the hearing on November 22. (IPA Service)