Extraordinary Powers, Ordinary Rights: ED–Mamata Banerjee Tussle and the Deeper Crisis in PMLA Law

The ongoing confrontation between West Bengal Chief Minister Mamata Banerjee and the Enforcement Directorate (ED), now playing out before the Supreme Court, is not merely a political flashpoint. At its core, it exposes a deeper constitutional unease surrounding the Prevention of Money Laundering Act, 2002 (PMLA) and the extraordinary powers it confers upon the ED. While the immediate controversy revolves around ED searches, seizures, and alleged overreach in West Bengal, the legal questions raised have implications far beyond one State or one political party.

The PMLA was enacted to combat the serious and transnational problem of money laundering. Few would dispute the legitimacy of this objective. However, over time ,particularly through successive amendments the Act has evolved into a legal framework that is heavily tilted in favour of the enforcement agency, often at the cost of individual liberty, procedural fairness, and transparency. The current tussle brings these concerns into sharp focus.

Section 17 and the Problem of Unchecked Search and Seizure

At the centre of the West Bengal controversy is Section 17 of the PMLA, which empowers the ED to conduct searches and seizures without a traditional judicial warrant, based on internal “reasons to believe.” While the statute requires such reasons to be recorded, they are rarely disclosed to the person affected. This creates a situation where political offices, party data, and personal devices can be seized with minimal external oversight.

Mamata Banerjee's objection that ED raids on Trinamool Congress-linked entities were opaque and politically motivated resonates with a broader constitutional concern: when coercive powers operate in secrecy, accountability becomes elusive. Section 17 is not an isolated provision; it is part of a larger matrix of exceptional powers under the PMLA that collectively weaken procedural safeguards.

Bail as Punishment: The Reverse Presumption under Section 45

One of the most controversial aspects of the PMLA is its bail regime under Section 45. Unlike ordinary criminal law, where an accused enjoys the presumption of innocence, the PMLA flips this principle on its head. To obtain bail, the accused must satisfy the court that there are reasonable grounds to believe that they are not guilty and that they will not commit any further offence.

In 2017, the Supreme Court struck down these “twin conditions” as unconstitutional. However, Parliament reintroduced them in a modified form in 2018, and in 2022, the Court upheld the amended provision. The practical consequence is stark: bail under PMLA is exceptionally difficult, leading to prolonged pre-trial incarceration. For many accused, detention becomes the punishment, even before guilt is established.

In politically sensitive cases such as those involving opposition leaders—this bail regime fuels the perception that the process itself is being used as a tool of coercion.

Presumed Guilty Until Proven Innocent: Section 24

The imbalance deepens at the trial stage. Section 24 of the PMLA shifts the burden of proof onto the accused by presuming that the property in question constitutes “proceeds of crime.” It is for the accused to prove that the property is untainted.

This reverse burden deviates sharply from the foundational principle of criminal jurisprudence: that the State must prove guilt beyond reasonable doubt. While such clauses exist in certain special statutes, their use under the PMLA is particularly troubling given the scale, complexity, and secrecy of ED investigations. The difficulty is compounded by the fact that, as clarified in recent jurisprudence (including Sarla Gupta, 2025), courts cannot ordinarily look beyond the prosecution's material at the stage of charge, even when crucial documents are withheld.

Self-Incrimination and Statements to the ED

Perhaps the most constitutionally unsettling feature of the PMLA is Section 50, which empowers ED officers to summon individuals and record statements under oath. These statements are admissible in evidence even if they amount to confessions because ED officials are not treated as “police officers” for the purposes of the Evidence Act.

In practical terms, a person summoned by the ED is legally compelled to answer questions, with refusal attracting criminal consequences for non-cooperation. Yet, the answers given can later be used to prosecute them. Unlike police interrogations, ED questioning is not accompanied by safeguards such as the right to counsel or the procedural protections under the CrPC.

Critics argue that this framework seriously undermines the constitutional right against self-incrimination. The concern is not hypothetical; allegations of coercive questioning routinely surface in high-profile PMLA cases.

Opaque Investigations: ECIRs and the Secret ED Manual

Another structural issue highlighted by the West Bengal raids is the opacity of ED investigations. Unlike the FIR in ordinary criminal cases, the Enforcement Case Information Report (ECIR) is not furnished to the accused. The ED treats it as an internal document, a practice upheld by the Supreme Court on the condition that the accused is informed of the “grounds of arrest.”

However, being told vague allegations is not the same as knowing the precise case one must defend. In the Kolkata raids, it remains unclear whether the individuals affected were clearly informed of the predicate offences or transactions under investigation fuelling claims of arbitrariness.

Adding to this opacity is the ED Manual, which governs internal procedures but remains confidential. The Supreme Court has described it as an internal document not meant for public disclosure. As a result, those investigated are subjected to rules they cannot see, let alone challenge.

The Larger Constitutional Question

Taken together, the PMLA framework enables pre-trial asset attachment, prolonged custody, reverse burdens of proof, admissible compelled statements, and minimal disclosure. It is hardly surprising that individuals across political, corporate, and professional lines have approached constitutional courts challenging these provisions.

While the Supreme Court has, for now, upheld most aspects of the PMLA, it has also expressed unease. Review petitions are pending on critical issues such as the twin bail conditions and non-supply of ECIRs. Notably, judges have repeatedly cautioned the ED that it “cannot act arbitrarily” and must remain within constitutional bounds.

Rule of Law Overrule by Fear

The ED–Mamata Banerjee tussle is not about weakening India's fight against money laundering. That fight is necessary and legitimate. The real issue is whether, in pursuing that objective, the State can create an enforcement regime so powerful and opaque that it erodes the rule of law itself.

In a constitutional democracy, no agency however well-intentioned should operate with unchecked authority. History shows that extraordinary powers, once normalised, are rarely confined to exceptional cases. The ongoing judicial scrutiny of the PMLA is therefore not a threat to governance, but a reaffirmation of constitutional balance.

Ultimately, the question before the Supreme Court is not who wins a political standoff, but whether India's legal system can reconcile effective enforcement with fundamental rights. That answer will shape the future of criminal justice far beyond the present controversy.

The Author Is A Law Student At Jindal Global Law School. Views Are Personal