Criminal law is the most direct expression of the relationship between a state and its citizens. Nowhere in the legal field is more at stake for the community or the individual. Unfortunately, “crimes” originate in government policy and, therefore, criminal law reflects the idea of power rather than justice. The state, in its discretion, designates certain acts as crimes as per its electoral or other needs. It may decide to criminalise and decriminalise almost anything. Thus, Emperor Claudius of Rome, who wanted to marry his brother’s daughter, procured an amendment to the crime of incest that permitted a marriage between a niece and her paternal uncle, leaving the law unaltered as to other marriages between uncles and nieces or aunts and nephews.
The criminal justice system is permeated by discretion, where the police have the power to arrest people even on mere suspicion. In 2022, 76 per cent of prisoners were under-trials. Can politicians who spend just 30 days in custody constitute a valid class protected by Article 14 to be treated differently? Can police powers not be used by central or state governments to get political leaders removed from their high constitutional offices? Can an arrest itself be converted into a punishment prior to conviction? These are legitimate questions that require public debate.
The Narendra Modi government’s proposal in the recently tabled Bills was seemingly necessitated by the former Delhi Chief Minister’s refusal to resign after spending weeks in jail and the Delhi HC’s observation that there is nothing in law envisaging a CM’s resignation in such circumstances. Indeed, the new provision of removal of ministers including the Prime Minister — insertion in Article 75(5A) — and ministers and Chief Ministers in states — insertion in Article 164(4A) — to protect our democratic set up would, in normal circumstances, have been widely acclaimed as a historic and bold move towards the decriminalisation of politics. However, the functioning of our investigating agencies in the recent past has created doubts not only in the minds of people but also among the judges of the apex court. On the raid at the Tamil Nadu State Marketing Corporation, CJI B R Gavai on May 22 said that the Enforcement Directorate (ED) has “crossed all limits”. In 2013, during the UPA government, Justice R M Lodha famously called the Central Bureau of Investigation (CBI) a “caged parrot speaking in the master’s voice”. While granting bail to Delhi’s then Chief Minister in 2024, the SC had reiterated the importance of the CBI shedding its image as a caged parrot.
Jharkhand CM Hemant Soren, who, unlike Arvind Kejriwal, resigned on his arrest, had to spend some six months in custody on the allegations of a so-called land scam before the Jharkhand High Court concluded that in the “overall conspectus of the case, there is no likelihood of the petitioner committing a similar nature of offence”. Subsequently, the SC refused to interfere with Soren’s bail order. As a result of his arrest, Soren could not campaign in the 2024 Lok Sabha elections. Kejriwal, too, lost some seven weeks during the Lok Sabha elections, and when the SC granted him bail on May 10, 2024, just 18 days were available for him to campaign. With bail made extremely difficult under laws like the UAPA and PMLA, the provision is likely to be misused.
The first step in the decriminalisation of politics should be to grant substantial autonomy to the CBI and ED with directors selected through consensus. Let people trust their investigation and the arrests they make. Without doing so, the removal or deemed resignation of a minister, PM or CM may lead to the misuse of the criminal justice system.
Corruption in politics is a serious problem. The Vohra Committee (1993) was appointed by the Government of India to look into this issue, but we have not been able to make much progress. Lately, our politics has become devoid of ethics, and as a result, we see the willing embrace of and alliances with corrupt political leaders after leaders of a particular party have been publicly ridiculed. In ticket distribution, the autocratic high commands of all political parties reward such corrupt leaders, and very often, the “winnability” of candidates is the only consideration.
The Supreme Court has done a remarkable job in reducing political corruption through several landmark judgments. In Lily Thomas (2013), it barred convicted political leaders from contesting elections. In Jan Chaukidar (2004), it had even prohibited those in jail from contesting, but Parliament overturned this order. The UPA government did come up with an ordinance to overturn the disqualification of convicted political leaders, but Rahul Gandhi famously and publicly opposed the move. Years later, he was disqualified under that very law.
The mischief that the three Bills propose to deal with is political corruption. In March 2025, Minister of State for Finance Pankaj Chaudhary informed the Rajya Sabha that “in the last 10 years, as many as 193 cases against politicians have been registered by the ED in which only two convictions (both former ministers from the Jharkhand government) have been made”. Of the total cases, 138 or a whopping 71 per cent have been registered in the last five years. There are reasons, therefore, to be apprehensive about the ED’s credibility. Even the Supreme Court had expressed its anguish over the low conviction rates.
If the NDA government intends to divert attention from the ongoing debate about the integrity of electoral rolls, the bills are a smart move, as the 130th Constitutional Amendment Bill is unlikely to be passed because the ruling alliance does not have a two-thirds majority. Such reforms must ideally be preceded by consensus-building. Since the Opposition is against these bills, the BJP may create a narrative that it is trying to protect corrupt leaders. The inclusion of the PM, too, may be intended to score a political point, as years were lost in the debate on the Lokpal over the same issue. But finally, the UPA government’s Lokpal Act, 2013, did include the PM (Section 14(1)(a).
Under the Bhartiya Nyaya Sanhita (BNS) 2023 alone, about 181 sections (out of 358) provide for five years or more imprisonment. If special laws and local laws are added, this will go up drastically. Since criminal law’s promise as an instrument of safety is matched only by its power to destroy, let us not use it for petty political interests. Let us make bail a rule except in heinous violent crimes so that the new provisions have wider acceptability.
The writer is vice chancellor of Chanakya National Law University. Views are personal
