New Delhi: Tensions ran high in the Supreme Court of India during an 18 August 2025 hearing on the Tamil Nadu government’s standoff with the Directorate of Enforcement (ED) regarding a state liquor-sales investigation. 

Additional solicitor general S V Raju made an unusual plea to the bench—headed by Chief Justice B R Gavai and Justices K Vinod Chandran and N V Anjaria.

Raju warned that the Court’s criticism of the 69-year-old ED was “percolating” beyond the media and influencing “also the judiciary.” Solicitor general Tushar Mehta, supporting him, added that such criticism was impacting “especially the lower courts”.

Their remarks referred to Chief Justice Gavai’s comments on 22 May 2025, when he stated in the same case that “the ED is crossing all limits.” The case concerns Tamil Nadu’s appeal against the ED’s raids and probe into the state-run liquor retailer, Tamil Nadu State Marketing Corporation (TASMAC). The agency alleges large-scale financial irregularities, including overpricing, tender manipulation, and bribery—causing losses exceeding Rs 1,000 crore.

“How can a [state] corporation commit an offence?” Chief Justice Gavai asked, before staying the investigation. “The ED is crossing all limits… You are totally violating the federal structure of the country.”

During the 18 August hearing, the union government’s top law officers urged the court to temper its criticism of the ED’s conduct. “Of course, we don’t hold anything against anyone… we are only on the facts,” the Chief Justice responded.

Raju and Mehta’s plea did not arise in isolation—it came amid growing judicial concern, from trial courts to the Supreme Court itself, over the ED’s practices.

Patterns of Concern

Over the past three years, judges in at least a dozen orders—and many more oral observations—in cases lodged between 2021 and now have strongly criticised the ED’s “overreach.” An Article 14 analysis of 20 Prevention of Money Laundering Act (PMLA, 2002) cases between 2021 and now reveals a pattern: from illegal arrests and “inhuman” interrogations to procedural sleights.

The language used by courts has been unusually blunt: judges have called the ED “vengeful”, “vindictive”, “oppressive”, stated it is “not a super cop”, and even warned it “can’t act like a crook.”

These judicial critiques have sharpened focus on gaps in oversight and accountability under the PMLA, which is the main law that gives the ED its powers to investigate money laundering, trace assets, confiscate properties derived from illicit funds, and prosecute offenders.

Legal experts consulted by Article 14 said the ED’s conduct at times skirts legal boundaries, exploiting procedural gray areas unlikely to withstand scrutiny. 

Senior Advocate Devadatt Kamat observed: “As a prosecuting agency, the ED is legally required to act neutrally and fairly, though that does not always appear to be the case. The agency has often acted beyond the scope of its powers.”

The courts, too, have sometimes intervened to narrow the agency’s powers, though some critics argued that the higher judiciary has not always gone far enough.

‘Shocking State of Affairs’

Courts have repeatedly criticised the ED for “high-handed” actions infringing upon basic human rights and dignity. Even fundamental liberties—like the right to sleep and freedom from coercion—have been cited as often disregarded by the ED.

On 2 January 2025, the Supreme Court rebuked the ED for “inhuman” conduct towards former Haryana Congress member of legislative assembly Surender Panwar, subjected to a 15-hour overnight interrogation in an illegal mining and money-laundering probe. 

The Punjab & Haryana High Court had, in a 29 September 2024 order, declared Panwar’s arrest illegal and called overnight questioning “against the dignity of a human being,” directing the ED to “sensitise” officers and ensure “fair investigation… as per basic human rights established by the United Nations”.

Upholding that ruling, Supreme Court Justices Abhay S Oka and Augustine George Masih on 2 January 2025 expressed their dismay. “This is not the way to treat people,” Justice Oka said in court. “You have virtually forced a person to make a statement… shocking state of affairs,” 

In another case, a Bombay High Court bench on 15 April 2024 chastised the ED for violating an accused’s right to sleep—a “basic human requirement”. Courts directed the agency to issue new guidelines ensuring respect for individuals’ basic rights.

Beyond The Law

Courts have also flagged procedural overreach. 

On 30 April 2024, a Delhi PMLA special court judge criticised the ED for summoning and recording statements of people not even accused in the case, calling it an “entirely high-handed act,” and warning that a law-enforcement agency “cannot arrogate powers unto itself”.

Some courts have imposed costs to “send a strong message”. For example, the Bombay High Court in January 2025 found the ED’s conduct “a classic case of oppression in the garb of implementation of PMLA,” ordering the agency to pay Rs 100,000 in costs, although the Supreme Court later waived the penalty.

Nipun Saxena, a Supreme Court advocate, said there was “a consistent pattern of the ED infringing on people’s fundamental rights… the process is the punishment,” as he cited a 10 December 2024 union government response in Parliament, revealing a 6.4% conviction rate in ED cases between January 2019 and October 2024.

The ED argued it had a conviction rate of “over 94%”, basing this claim on 50 convictions in 53 cases decided by special PMLA Courts. According to the agency, this rate was “the highest among all agencies in India and also globally”. 

Expansive Powers 

The Supreme Court has yet to decide key review petitions challenging its 2022 Vijay Madanlal Choudhary verdict, which upheld the broad provisions of the PMLA and contentious ED powers, including secrecy of an Enforcement Case Information Report or ECIR—the PMLA equivalent of a first information report or FIR—reversing the burden of proof to the accused instead of prosecuting agency, and wide arrest/search powers.

Under general criminal law, an accused is provided a copy of the FIR as soon as it is demanded, allowing them to challenge it in a court and defend themselves. The withholding of the ECIR, which the 2022 verdict held to be an “internal document” of the ED, hampers this right. 

The delay in adjudication allows, as Saxena put it, “every ED official to become a walking police station”. Fresh legal questions keep emerging, further burdening the accused, as seen in the National Herald and Amtek Auto Group-Arvind Dham cases.

In the National Herald probe—which originated from a private criminal complaint rather than an FIR—defence lawyers described the ED’s approach as “strange and unprecedented”.

Saxena warned, “If private complaints are treated at the same level as a chargesheet filed by a duly qualified investigating agency, the draconian PMLA can be invoked far more frequently and arbitrarily.”

Similarly, the arrest of Amtek Group of Companies’s ex-promoter Arvind Dham on 9 July 2024 by the ED in Gurgaon, Haryana—where his companies are accused of defrauding banks by Rs. 27,000 crore—and being produced and remanded to custody by a PMLA special court in  Delhi raised legal questions: Could the ED lawfully arrest a person in one state and produce them in another?

The ED had also transferred ECIRs in Amtek Auto’s case from its Delhi Zone to Gurgaon Zone, which raised another legal question: Could the ED lawfully transfer a criminal case from one state to another, something that only the Supreme Court is empowered to do?

Moreover, the ED was found to have cited Supreme Court’s orders out of context to justify Dham’s arrests, prompting the justices to clarify their intent from the bench.

Legal experts Article 14 spoke with  observed that these questions impact federalism and jurisdiction of courts and continue to remain unsettled due to the delay in Supreme Court’s review of the Vijay Madanlal Choudhary verdict. 

“They risk undermining citizens’ fundamental rights in such cases,” Saxena said.

Opposition Arrests: 95%

In September 2022, The Indian Express reported that since 2014, 121 prominent politicians had been investigated by the ED. Of these, at least 115—or about 95%—were from opposition parties and had been booked, raided, questioned, or arrested by the ED.

Kamat pointed out that the current bail provision in the PMLA, which requires judges to presume guilt for bail purposes, has resulted in the ED “being used as a political tool”.

Saxena blamed this weaponisation on a 2018 parliamentary amendment to the PMLA. 

“The draconian twin conditions for the grant of bail under section 45, which were previously struck down by the Supreme Court in Nikesh Tarachand Shah vs Union of India for violating rights to equality, life, and liberty, were reintroduced through the Finance Act 2018 amendment,” said Saxena. “This shows that the legislation has been weaponised to give greater leeway to ED to do as it deems fit.”

Our analysis reveals that, alongside these “draconian” bail provisions, the agency uses procedural manoeuvres to prolong an accused person’s incarceration—sometimes alarming even the courts.

For instance, in May 2025, during a bail hearing related to the ED’s probe into an alleged Rs 3,200 crore Chhattisgarh liquor scam under ex-Congress chief minister Bhupesh Baghel (2019–2023), Justices Oka and Bhuyan remarked on a persistent “pattern” in ED cases. 

“You just make allegations without any evidence,” Justice Oka observed.

The bench noted that the ED had filed three voluminous chargesheets but still maintained that the investigation remained “incomplete”—effectively keeping the accused imprisoned for an indefinite period. 

“The investigation will go on at its own speed. It will go on till eternity… You have made the process a punishment,” the judges said.

Another Supreme Court bench urged the ED to act in a “transparent, above-board” manner and “not vindictive”, upholding the need for “pristine standards of fair play”.

‘Don’t Ask Us To Open Our Mouths’

In recent months, Chief Justice Gavai has repeatedly cautioned the ED against becoming a political instrument. “Mr Raju, please don’t ask us to open our mouths… Let the political battles be fought before the electorate. Why are you being used as a…,” he remarked to ED’s counsel.

This pattern is so pronounced that a bench led by Justice Kant even called for a “vendetta detection” mechanism to distinguish genuine corruption cases from those that may have political motivations.

Although solicitor general Mehta stated at a 21 July 2024 hearing that “there is a concerted effort to create a narrative against an institution [the ED],” the agency’s own officers have, at times, fueled such perceptions. Examples include being caught accepting bribes—whether to initiate or close investigations (here, here, here, here)—and circulating “misleading” social media posts that harm the reputation of accused individuals. 

The agency’s credibility has at times suffered so much that ASG Raju, in a Supreme Court bail matter, had to disown the ED’s counter-affidavit, stating there was “something hanky-panky… fishy… something wrong with the ED”.

Further, some officers have sought voluntary retirement to join private companies closely aligned with the ruling regime—raising classic “revolving door” concerns.

(Saurav Das is an investigative journalist who writes on law, judiciary, crime, and policy.)

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