The Shadow of the State, Weaponizing Investigative Agencies and the Judiciary’s Role in Restoring Institutional Health

The Shadow of the State, Weaponizing Investigative Agencies and the Judiciary’s Role in Restoring Institutional Health

In the theatre of Indian democracy, a troubling new narrative has taken center stage over the past decade. The instruments of state accountability—the Enforcement Directorate (ED), the Central Bureau of Investigation (CBI), and the Income Tax Department—once envisioned as impartial arbiters of law, are now widely perceived as central characters in a political drama. As former diplomat and MP Pavan K. Varma articulates in his analysis, these agencies are accused of operating not with the blindfold of justice, but with the strategic foresight of political operatives. The pattern is stark: a deluge of raids, summons, and cases against Opposition leaders and parties, particularly as elections loom, contrasted with a conspicuous lack of similar scrutiny for those aligned with the ruling dispensation. This perceived asymmetry strikes at the very heart of democratic fairness, creating what Varma terms a “perception of bias” that “goes to the heart of equitable democratic engagement.” The question is no longer just about individual guilt or innocence, but about the integrity of the institutions that define India’s democratic contest.

The Pattern: Coincidence or Design?

The government and the agencies offer a theoretically sound defense: the law must take its course irrespective of the electoral calendar. Corruption cannot be granted a holiday simply because votes are being sought. This argument holds water in principle. However, as Varma and numerous independent analyses point out, the empirical evidence suggests a pattern that is difficult to dismiss as mere coincidence.

Since 2014, data indicates that a staggering 95% of cases registered by the ED and CBI have targeted Opposition politicians. The operational tempo of the ED has exploded, from around a hundred raids in the decade before 2014 to several thousand in the decade since. While one could argue this reflects a newfound vigor in fighting corruption, the targeting is overwhelmingly one-sided. Recent examples crystallize the pattern:

• West Bengal (2024): Raids on the political consultancy IPAC, which advises the Trinamool Congress (TMC), just before state elections.

• Delhi/Punjab: Coordinated, relentless action by the ED and CBI against the Aam Aadmi Party (AAP) and its leadership across multiple state and national election cycles, centering on the now-repealed Delhi excise policy.

• Tamil Nadu (2021): Income Tax searches on the family of DMK chief M.K. Stalin during the state assembly elections, followed by ED scrutiny of DMK ministers.

The timing of these actions is politically consequential. An investigation, especially one covered breathlessly by segments of a pliant media, creates a cloud of suspicion that can cripple a campaign. It forces leaders off the stump and into courtrooms, shifts the narrative from governance to graft, and demoralizes party workers. Whether a conviction ever follows is almost secondary; the process inflicts its political punishment in real-time.

The “Washing Machine” Phenomenon and the Crisis of Credibility

Perhaps the most damning evidence against the claim of impartiality is the colloquial “washing machine” effect. Politicians facing serious corruption charges, vociferously highlighted by the BJP itself when they were in the Opposition, see those charges mysteriously fade, stall, or become dormant upon switching allegiance to the ruling party. Figures like Himanta Biswa Sarma, Narayan Rane, and several others who crossed over from the Congress, or leaders from regional parties who joined the NDA fold, appear to have benefited from a dramatic cooling of investigative zeal.

This phenomenon puts a glaring question mark on the independence of the process. It reinforces the public perception that the agencies are not chasing corruption; they are chasing political alignment. The target is not the crime, but the critic. This transforms the ED and CBI from law-enforcement bodies into tools of political management—instruments to coerce, intimidate, and engineer defections, thereby consolidating power.

Furthermore, the composition of the Union Council of Ministers itself raises uncomfortable questions. As Varma notes, nearly 40% of ministers (29 out of 72, as of mid-2025) have declared criminal cases against them in their election affidavits, including serious charges like murder, attempt to murder, and kidnapping. The public is left to wonder: have these cases against powerful ruling-party figures been pursued with the same alacrity and media spectacle as those against an Opposition chief minister?

The Corrosive Impact on Democratic Trust

Perception in politics is reality. When millions of voters believe the electoral field is tilted, the legitimacy of the democratic outcome is fundamentally compromised. The “sense of fairness” that underpins a healthy democracy erodes. Citizens begin to see the state not as a neutral referee but as a player wearing one team’s jersey. This breeds deep-seated cynicism, disengagement, and a dangerous narrative that the system is rigged.

The charge of agency misuse, therefore, transcends individual cases. It is a crisis of institutional credibility. Trust in the impartiality of the state’s coercive apparatus is a foundational pillar of a constitutional democracy. When that trust is broken, every action of the government, however benign, is viewed with suspicion. The social contract frays, and political discourse becomes dominated by allegations of persecution and vendetta rather than policy and performance.

The Judiciary as the Sentinel: Last Resort and Institutional Bulwark

In this climate, the judiciary emerges as the most critical, albeit overburdened, sentinel. As Varma argues, for those at the receiving end of potentially partisan investigations, “knocking at the door of the judiciary” is often the only hope. The courts have, at times, acted as a crucial check. They have granted bail, made pointed observations about the motives behind investigations, and struck down laws or actions that overreach. The judiciary’s power to uphold due process and protect individual liberty from arbitrary state action is the primary counterbalance to executive overreach.

However, the judicial remedy is fraught with limitations:

• The Tardy Pace of Justice: The Indian judicial system is notoriously slow. A case can take years, even decades, to resolve. In the political arena, an election is lost long before a court delivers a clean chit.

• The Process as Punishment: Laws governing agencies like the ED, such as the Prevention of Money Laundering Act (PMLA), are draconian. They make securing bail exceptionally difficult, ensuring that even an innocent accused can spend months or years in custody. The process itself—the arrest, the media trial, the incarceration—becomes the punishment, achieving a political objective regardless of the judicial outcome.

• Selective Judicial Activism: The judiciary’s intervention has been inconsistent. While some judges have questioned agency motives, others have appeared reluctant to scrutinize the executive’s use of investigative tools, often citing the “majesty of the law” and the seriousness of the charges.

For the judiciary to effectively restore institutional health, it must move beyond adjudicating individual cases to laying down robust, general principles that govern agency behavior. This includes:

1. Strict Scrutiny of Timing: Establishing a strong presumption against initiating major investigative actions (raids, arrests) against political candidates and parties in the immediate run-up to elections (e.g., six months prior), barring extraordinary circumstances of imminent evidence destruction.

2. Enforcing Transparency in Case Selection: Mandating that agencies disclose, to a constitutional body or the court itself, the criteria and triggering factors for opening cases against public representatives to demonstrate an absence of pattern-based targeting.

3. Liberalizing Bail in Political Cases: Interpreting bail provisions more liberally in cases where the primary allegation is financial and the accused is a public figure with deep roots in the community, to prevent the process from being used as a tool of pre-trial political detention.

4. Monitoring the “Washing Machine” Effect: Taking suo motu cognizance of cases that see a dramatic change in pace or direction after an accused politician changes political affiliation, demanding explanations from the agencies.

The Path to Structural Reform: Beyond the Judiciary

While judicial oversight is vital, it is a corrective, not a cure. The systemic illness requires structural reform to insulate investigative agencies from political control. Varma rightly calls for this. Key reforms must include:

• Independent Appointment and Tenure Security: The heads of the CBI, ED, and CVC must be appointed by a bipartisan, apolitical committee (including the Prime Minister, Leader of Opposition, Chief Justice, and an independent expert). They should have fixed, secure tenures removable only through a stringent, impeachment-like process.

• Operational Autonomy: The agencies must have statutory protection against being compelled to report on ongoing investigations to the political executive. The “prior permission” requirement for investigating certain classes of officials should be scrapped.

• Transparent Prosecutorial Guidelines: Clear, publicly available guidelines should govern the initiation of cases, especially against elected officials, with a focus on objective evidence thresholds rather than political intelligence.

• A Cooling-Off Period for Election-Related Actions: A statutory “election silence period” for agencies, akin to the model code of conduct, preventing new raids, arrests, or charge sheets from being filed against candidates from the announcement of elections until the conclusion of voting.

Conclusion: The Soul of Indian Democracy at Stake

The debate over the misuse of central agencies is not a partisan squabble. It is a debate about the soul of Indian democracy. Can India’s institutions be powerful yet impartial? Can the state wield its formidable investigative machinery without it becoming an instrument of partisan politics?

The current trajectory, as illuminated by Pavan K. Varma, is perilous. It risks converting India’s democracy into a “managed democracy,” where electoral competition exists but is systematically skewed by the abuse of state power. This erodes the legitimacy of the government, weakens the Opposition’s ability to hold power accountable, and ultimately disillusions the citizenry.

The judiciary stands as the most immediate guardrail against this decline. By actively enforcing procedural fairness, questioning motives, and protecting liberties, it can curb the worst excesses. However, the long-term solution lies in bipartisan political will to enact structural reforms that truly liberate the CBI and ED from the clutches of the ruling party of the day. The health of India’s democratic institutions depends on whether the country can muster the courage to make its watchdogs independent, or consign them to being perceived forever as the ruling party’s attack dogs. The choice will define the quality of Indian democracy for generations to come.

Q&A: Delving Deeper into Agency Bias and Institutional Reform

Q1: The article cites data that 95% of ED/CBI cases target the Opposition. Could there be an alternative, non-partisan explanation for this lopsided statistic, such as the Opposition being disproportionately corrupt or the ruling party having better legal vetting?

A1: While theoretically possible, this explanation strains credulity and fails several logical tests:

• The “Washing Machine” Test: If corruption were the sole criterion, politicians joining the BJP would not see their cases disappear; they would be prosecuted with equal vigor. The fact that charges evaporate upon defection directly contradicts the “Opposition is more corrupt” thesis and points to political utility as the deciding factor.

• The Ministerial Affidavit Data: Nearly 40% of sitting Union Ministers have declared serious criminal cases. If the agencies were truly impartial and active, a significant number of these ministers should be under investigation. The near-total absence of high-profile action against them suggests selectivity.

• Historical Comparison: While corruption is a pan-Indian issue, the drastic shift in the pattern of targeting—from a more diffuse scatter pre-2014 to a sharply focused beam on the Opposition post-2014—aligns too neatly with a single party’s uninterrupted tenure to be explained by a sudden, exclusive explosion of corruption in Opposition ranks.

• The Timing with Elections: If the goal was simply to punish corruption, actions would be distributed across the electoral cycle. The clustering of raids and arrests just before polls strongly indicates an objective beyond mere law enforcement: influencing electoral outcomes.

Q2: The author suggests the judiciary is the “only hope.” What specific types of judicial interventions (writs, bail rulings, monitoring) have been most effective in curbing agency excess, and what are their limitations?

A2:

• Bail Rulings (Under Article 21): Liberal bail grants, especially in PMLA cases where bail is notoriously tough, are a direct check. The Supreme Court’s observations in cases like Satendar Kumar Antil v. CBI (2022) emphasized that bail is the rule, jail the exception. Limitation: Bail is case-specific. Courts often hesitate to comment on the merits or motive of the investigation at the bail stage, focusing only on flight risk or witness tampering. A politician may still suffer months in custody and irreversible campaign damage before bail is granted.

• Writs of Habeas Corpus and Mandamus: These can secure release from illegal detention or compel agencies to follow due process. Limitation: They react to actions already taken. They don’t prevent the initial, politically damaging arrest or raid.

• Monitoring Investigations: In rare cases, courts have taken the extraordinary step of monitoring an investigation (e.g., the 2G spectrum case monitoring by the Supreme Court) to ensure fairness. Limitation: This is a massive judicial overhead. Courts are reluctant to micromanage investigations and do so only in the most egregious cases of perceived bias or inertia.

• Striking Down Procedural Provisions: The judiciary can invalidate laws that give unbridled power. For instance, parts of the PMLA’s bail conditions and the presumption of guilt have been challenged. Limitation: This is a slow, constitutional process. Legislatures can often re-enact amended versions of the same laws.

The core limitation is that judiciary is reactive, slow, and inconsistent. It cannot pre-empt a politically timed raid; it can only provide relief after the fact, by which time the political harm is often done.

Q3: The “washing machine” effect is described. What legal or procedural mechanisms could be instituted to make this kind of politically convenient exoneration more difficult and transparent?

A3: To combat the “washing machine,” institutional firewalls are needed:

• Independent Prosecutorial Commission: Establish a statutorily independent body (with members appointed by a bipartisan committee) that must approve the closure or significant dilution of any case against a sitting or former MP/MLA. The reasons for closure must be published in a detailed report.

• Mandatory Judicial Review for Closure: Make it mandatory for the investigating agency to seek approval from a special court (like a Prevention of Corruption Act court) before filing a closure report in any case involving a public representative. The court would test the reasoning for closure against the evidence collected.

• Public “Case Status” Dashboard: A real-time, publicly accessible dashboard for all cases involving politicians, showing key milestones (FIR date, chargesheet date, court hearings, bail status). This would bring sunlight to cases that go dormant.

• “No-U-Turn” Policy for Serious Charges: Enact a rule that if an agency has gathered sufficient evidence to file a chargesheet, the case cannot be closed or withdrawn without the explicit consent of the prosecuting agency’s independent head (secured through the independent commission above), regardless of the accused’s political affiliation.

Q4: The article calls for structural reforms like independent appointments. What would a truly bipartisan, transparent appointment process for the CBI/ED Director look like, and are there any existing international or domestic models to emulate?

A4: A robust model would be a collegium system insulated from executive monopoly. It could be structured as follows:

• The Appointment Committee: Comprising the Prime Minister (or Home Minister), the Leader of the Opposition in Lok Sabha, the Chief Justice of India (or a Supreme Court judge nominated by them), the Chairperson of the Lokpal (when functional), and a retired head of a central investigative agency chosen by the other four members.

• Transparent Selection Criteria: Publicly advertised eligibility criteria (minimum years of service, integrity record, investigative experience). The committee would shortlist candidates based on a secret ballot.

• Public Vetting and Hearing: Shortlisted candidates could undergo a confirmation hearing before a parliamentary committee (like the US Senate hearings for FBI Director), where their vision and commitment to independence are questioned.

• Fixed and Secure Tenure: A single, non-extendable tenure of 3-5 years, with removal only by a super-majority of the same Appointment Committee on grounds of proven misconduct or incapacity.

Domestic Model: The selection process for the Chief Election Commissioner and Election Commissioners (post-2023 law) involves a committee with the Prime Minister, a Union Cabinet Minister, and the Leader of Opposition—a start, but still executive-heavy. A better model would be the now-defunct collegium for appointing the Central Vigilance Commissioner which included the PM, Home Minister, and Leader of Opposition. An improved version should include judicial and expert members.

International Model: The appointment of the FBI Director in the USA requires Senate confirmation, providing a level of bipartisan scrutiny. While not perfect, it ensures the nominee is vetted by representatives of both major parties.

Q5: Beyond legal and institutional fixes, what is the role of the media, civil society, and an informed citizenry in resisting the perception and reality of weaponized agencies?

A5: These actors form the essential ecosystem for accountability:

• Media: Its role is dual. Investigative Journalism: Digging into the merits of cases, exposing weak evidence, and highlighting the “washing machine” phenomenon through data-driven reporting. Responsible Reporting: Avoiding becoming a megaphone for agency leaks by critically examining the timing and narrative of raids, giving equal space to the accused’s defense, and contextualizing actions within political cycles. The media must resist being an unwitting tool of political strategy.

• Civil Society and Academia: Think tanks, legal aid groups, and universities can play a crucial role by:

  • Maintaining and Publicizing Data: Creating independent databases tracking political cases, their timelines, and outcomes.

  • Legal Advocacy: Filing public interest litigations (PILs) to challenge systemic abuse and demand reforms.

  • Public Awareness Campaigns: Educating citizens about their rights, the importance of institutional neutrality, and how to critically evaluate political use of agencies.

• Informed Citizenry: Ultimately, the power lies with voters. An informed electorate must:

  • Reward and Punish at the Ballot: Support parties that champion institutional reform and demonstrate a commitment to fair play. Skepticism towards politicians who loudly decry agency bias only to use the same tools when in power is essential.

  • Demand Transparency: Use social media and public forums to demand answers from representatives about specific cases and the need for reform.

  • Value Institutional Integrity: Internalize that a weaponized ED/CBI is not a victory for “their side” but a loss for democracy itself, as the same tools can be turned against anyone in the future.

The battle is not just in courtrooms or Parliament; it is in the public consciousness. Rebuilding trust requires not just changing laws, but changing the narrative—from one of partisan victory to one of preserving the impartial foundations of the state itself.