Context:

• Criminal law reflects the delicate balance between state authority and citizens’ rights.
• The recent proposals by the Government of India to provide a constitutional framework for the removal of ministers (including the PM and CMs) on arrest, have reignited debates on misuse of investigative agencies, political corruption, and the need for systemic reforms.

Criminal Law and Discretionary Power:

• Nature of criminal law: It reflects the idea of state power rather than justice, as governments can criminalise or decriminalise acts depending on political needs.
• Discretion in policing: Police enjoy wide powers of arrest even on mere suspicion.
• Under-trials in India: 76% of prisoners in 2022 were under-trials, highlighting misuse of arrest powers.

Government’s Recent Proposal:

• Provisions introduced:
  • Article 75(5A): Removal of Union Ministers including the PM.
  • Article 164(4A): Removal of State Ministers/CMs.
• Trigger event:
  • The government’s proposal in the recently tabled Bills was seemingly necessitated by the former Delhi CM’s refusal to resign after spending weeks in jail.
  • Then, the Delhi HC held that there is nothing in law envisaging a CM’s resignation in such circumstances.
• Objective: Projected as a bold move towards decriminalisation of politics.

Challenges of Investigative Agency Misuse:

• Judicial criticism:
  • In 2013, Justice R M Lodha famously called the Central Bureau of Investigation (CBI) a “caged parrot speaking in the master’s voice”.
  • On the raid at the Tamil Nadu State Marketing Corporation, CJI B R Gavai said that the Enforcement Directorate (ED) has “crossed all limits”.
• Case studies:
  • Jharkhand CM Hemant Soren (who resigned on his arrest) had to spend six months in custody on the allegations of a so-called land scam, before bail.
  • Arvind Kejriwal lost critical election campaigning time due to delayed bail.
• Tough bail provisions: UAPA, PMLA make bail rare, converting arrests into punishment before conviction.

Political Corruption and Ethical Concerns:

• Vohra committee (1993): Highlighted nexus of politics, crime, and business.
• Erosion of political ethics: Parties embrace corrupt leaders for electoral “winnability”.
• Judicial interventions:
  • Lily Thomas v. Union of India (2013): Barred convicted political leaders from contesting elections.
  • Jan Chaukidar case (2004): It had even prohibited those in jail from contesting, but Parliament overturned this order.

Credibility Crisis of Enforcement Agencies:

• ED’s track record (2014–2024): 193 cases against politicians, but only 2 convictions.
• Concerns raised:
  • 71% of ED cases filed in the last 5 years.
  • SC’s anguish over low conviction rate.
• Public perception: Agencies appear politically motivated.

Political Context of the Recently Introduced Bills:

• Electoral strategy: The ruling party introduced the 130th Constitutional Amendment Bill despite lacking 2/3rd majority.
• Opposition stand: Accusing ruling party of weaponising agencies.
• Inclusion of PM: Possibly a symbolic move to score political points (parallels with Lokpal Act, 2013).

Concerns with Over-Criminalisation:

• Bharatiya Nyaya Sanhita (BNS) 2023: Out of 358 sections, 181 prescribe over 5 years of imprisonment.
• Risk: Expansive criminalisation increases misuse for political purposes.
• Judicial principle: Bail should be the rule except in heinous crimes.

Way Forward:

• Autonomy of agencies: CBI, ED should be made independent with directors chosen by consensus.
• Judicial safeguards: Ensure bail is accessible and arrest is not misused as punishment.
• Consensus building: Constitutional amendments must be based on political consensus, not partisan gains.
• Ethics in politics: For reasons other than political expediency, strengthen institutional measures to combat corruption.

Conclusion:

• If India ensures genuine autonomy of investigative agencies, upholds bail as a rule, and builds political consensus on reforms, criminal law can truly serve justice rather than power.
• In the future, such measures may transform the criminal justice system into a tool for cleansing politics of corruption while safeguarding democratic rights.