Pavan K. Varma | Judiciary Key in Restoring the Health of Institutions

Are the Enforcement Directorate (ED), and other investigative agencies, selective in targeting the Opposition when elections are due? Prima facie, the ED’s response — and that of the BJP — has theoretical validity: Action in matters of corruption cannot be timed to electoral phases; if wrongdoing is apparent, it must be pursued regardless of the political calendar; the majesty of the law cannot be arbitrarily suspended to suit the convenience of anyone. But, is it only a coincidence then that, in a clear pattern, Opposition parties have been regularly targeted before elections, while the ruling party at the Centre has almost never been subjected to such coercive scrutiny? India’s Constitution mandates that investigative agencies act impartially, without fear or favour, serving their mandate rather than any one side’s political advantage. Yet in the unfolding political narrative of the past decade, a perception has grown that the ED and the Central Bureau of Investigation (CBI) act less as instruments of justice and more as tentacles of political strategy. Perception in politics shapes behaviour, confidence and the very sense of fairness that underpins democratic contestation. When millions of voters believe that the electoral field is tilted, the legitimacy of outcomes — and of the democratic spirit itself — is imperilled. The perception of bias in India’s Central agencies, therefore, is not an abstract complaint; it goes to the heart of equitable democratic engagement. In recent months, this perception has been sharpened by the raid on I-PAC, the political consultancy advising the Trinamul Congress (TMC) in West Bengal ahead of that state’s elections, and the matter is now sub judice. Similarly, the Aam Aadmi Party (AAP) was subjected to coordinated action by the ED and CBI in the midst of state and general election cycles. Elsewhere in Tamil Nadu, the Dravida Munnetra Kazhagam (DMK) has seen income tax searches on DMK chief M. K. Stalin’s family members during the 2021 elections, and further ED scrutiny of multiple DMK ministers. Over the past decade, the incidence of such actions is difficult to dissociate from electoral calendars. Investigative agencies, it appears, do not operate in a political vacuum. Their actions have real political consequences — whether intended or incidental — when they involve prominent politicians, especially in the phases immediately preceding polls. Since 2014, multiple analyses of available data indicate that a vast majority — roughly 95 per cent — of cases registered by the CBI and ED have been against Opposition politicians rather than those aligned with the ruling alliance. Moreover, the magnitude of enforcement actions has expanded dramatically — from around a hundred raids by the ED in the decade up to 2014 to several thousand in the decade since. One interpretation could be that the current dispensation is far more active in acting against corruption. But equally, another inference could be that, even if this is so, is corruption so overwhelmingly only the monopoly of the Opposition? It is valid to ask this, because in the current (as per mid-2025) Union council of ministers, 29 out of 72 ministers — roughly 40 per cent — have according to their sworn affidavits to the Election Commission, criminal cases against them, including murder, attempt to murder, kidnapping, theft and cheating. Have these been investigated as rigorously or expeditiously? There is also the colloquial description of the ruling party as the country’s biggest “washing machine”. Politicians against whom there are multiple cases of corruption, which have been systemically highlighted by the BJP itself, suddenly become laundry white after they switch sides to join the party. Cases against them are dropped, files closed, or at the very least, the heat of the investigative agencies goes down to an undiscernible simmer. This again puts a question mark on the independence and impartiality of the investigative process, reinforcing the impression that you will be targeted only if you are on the opposing side of the ruling dispensation. The short point is that a systemic predominance of scrutiny on one side of the political spectrum, even if it does not intrinsically prove intent, unquestionably nourishes the perception of asymmetry. In a polity where trust in institutions is already fragile, such perceptions ossify into deep seated scepticism about fairness in the democratic contest. It is often argued that those at the receiving end of this seemingly partisan investigation process, can always knock at the door of the judiciary. That is true, and often the only hope. Yet, the judicial process is tardy, and depending on the law against which a person is booked, both draconian — making bail extremely difficult — and so long drawn out that the process itself becomes the punishment. We are not debating here the merits of the allegations against the Opposition parties or leaders within it. Perhaps, they do require investigation. However, in any democracy, if one side enjoys the quiet advantage of institutional neutrality while the other is under a barrage of investigation — particularly in the campaign crucible — the level playing field is compromised. At its core, the charge of misuse of Central agencies is not simply about individual cases. It is about trust — trust in impartiality, trust in equal treatment under law, trust in the integrity of democratic competition. When that trust erodes, the entire democratic enterprise feels the strain. In this light, a democracy must ask itself a searching question: Can our institutions be both powerful and impartial? If they are not, there is an urgent need to take correctives. The judiciary can be a valuable sentinel in ensuring this. It is true that there is widespread corruption in the political system, and all political leaders feel that because of the power they wield they will be insulated against legal consequences. For investigative agencies to act against them in an independent, credible and impartial manner, there is an urgent need for structural reforms — clearer legal safeguards, independence of appointment processes, stronger judicial oversight and transparent protocols for action timelines vis-à-vis electoral processes. It is only then that the need to cleanse the system will be universal in scope, and not selective in application.