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Sonia and Rahul Gandhi argue in ED's illegal
In a significant legal development, Congress leaders Sonia Gandhi and Rahul Gandhi have told the
that the Enforcement Directorate’s (ED)
case against them in the National Herald matter is fundamentally flawed. The Gandhis argue that the case is the
"only instance in the entire country"
where the ED has initiated proceedings based on a
, a move they contend is contrary to the law and driven by extraneous considerations. Their detailed replies, filed on
, oppose the ED’s
challenging a trial court order that refused to take
of the agency’s
.
A Unique Prosecution
The core of the Gandhis’ argument rests on the statutory framework of the . They assert that the Act does not permit the ED to register an or file a solely on the basis of a by an individual. In their submission, the ED must have a —an FIR registered by a competent authority under a —before it can investigate allegations of . The Gandhis point out that the ED itself had consistently taken this position in other cases, making the National Herald matter a glaring exception.
The replies state:
"There is no question of a complaint by a private person for an offence… enabling the ED to assume jurisdiction."
They further note that the words "
" or
"complaint by a public person/citizen"
do not appear anywhere in the PMLA or its rules. By proceeding on a
filed by former Union Minister Subramanian Swamy in
, the ED has allegedly deviated from its own established practice and the law.
The Controversy
The National Herald case originated from a by Subramanian Swamy, accusing Sonia Gandhi, Rahul Gandhi, and others of cheating, criminal conspiracy, criminal breach of trust, and misappropriation of property in relation to the assets of , publisher of the National Herald newspaper. Swamy’s complaint was filed before a magistrate, not a police station. The ED, however, did not act on it immediately. It registered an ECIR only on —seven years after Swamy’s complaint. The Gandhis highlight this delay as evidence that the ED itself was unsure whether a could trigger PMLA proceedings.
On , the ED filed a against the Gandhis, Sam Pitroda, and others. However, the trial court, on , refused to take , holding that the complaint was "impermissible in law" because it was not founded on an FIR for a . The very next day, the ED challenged this order before the , a move the Gandhis describe as occurring at "lightning speed" and demonstrating "extraordinary interest" in the case.
Delay and ‘Extraneous Considerations’
The Gandhis’ replies contend that the ED’s conduct reveals extraneous considerations. They argue that the agency’s calculated silence over seven years—during which it did not register an ECIR on Swamy’s complaint—is consistent with its understanding that a alone could not trigger PMLA proceedings. The sudden reversal of that position, they say, shows that the National Herald case is being singled out.
The replies state:
"The calculated silence of the department [ED] before the Ld Trial Court during the course of arguments and even before this Hon’ble Court in the
, as to why the present case is being singled out by the department to take a different stand, contrary to law and international standards laid down by FATF, speaks volumes about the extraneous considerations surrounding the case."
The reference to the
is notable. The Gandhis argue that international standards require a
FIR before
investigations can begin. By ignoring this, the ED has allegedly acted in a manner that is
"totally antithetical to the scheme of the Act."
Legal Implications and Abuse of Process
The Gandhis have termed the ED’s
as an
"
"
and "
." They argue that the trial court’s order is
"perfectly legal and sound in law and does not suffer from any
,
,
or
."
The essence of their defence is that a
trial must follow a strictly separate legal track from a
trial. Using a
as the "
" would lead to a situation where the ED would have to investigate the
itself—something it is not empowered to do.
The replies emphasise:
"Prosecution under the PMLA [in this case] would lead to the contrary situation, where ED shall have to take the power of investigation of
, in the absence of any meaningful investigation, which would be totally antithetical to the scheme of the Act."
This argument strikes at the heart of the ED’s jurisdiction. If accepted, it could have far-reaching consequences for other cases where the ED has acted on private complaints or complaints that are not backed by an FIR. Legal experts note that the PMLA has been amended over the years to expand the definition of , but the requirement of a remains a cornerstone of the law.
The ED’s Position and Next Steps
The ED, in its , has argued that the trial court erred in refusing . The agency maintains that a can form the basis of a investigation, especially when the allegations disclose a . However, the Gandhis point out that the ED itself did not act on Swamy’s complaint for seven years, suggesting that the agency’s own interpretation of the law supported their view.
The case came up for hearing before Justice Sachin Datta on , but was adjourned to , to allow the ED to file a rejoinder. The High Court’s decision will be closely watched, as it could set a precedent on the scope of the ED’s powers under the PMLA. If the court upholds the trial court’s order, it may significantly limit the agency’s ability to act on complaints that do not originate from a police FIR.
Conclusion
The National Herald case has become a high-stakes legal battle, pitting the Gandhis against a powerful investigative agency. Their argument that the ED’s action is an isolated instance of proceeding on a raises serious questions about the agency’s consistency and adherence to the rule of law. As the prepares to hear the matter further, the legal community awaits clarity on whether the PMLA allows such a deviation. The outcome could reshape the landscape of prosecutions in India.
