Introduction

Criminal law in India lies at the fraught intersection of state authority and individual rights, functioning as both a mechanism of justice and a potential tool of political control. Recent legislative developments—specifically proposals to constitutionally mandate the removal of ministers, including the Prime Minister and Chief Ministers, upon arrest—have revived complex debates. These include the alleged misuse of investigative agencies, the erosion of political ethics, and the growing need for structural reforms in the criminal justice system. At the heart of this debate is a vital question: should criminal law be wielded as an instrument of justice or manipulated for consolidating power?

Criminal Law and the Exercise of Discretion

Criminal law, in its practical application, often reflects the weight of state power more than the ideal of justice. It is subject to the political climate, where acts can be criminalised or decriminalised depending on prevailing priorities. In practice, the police hold vast discretionary power, particularly in the context of arrests based merely on suspicion. This unchecked authority has tangible consequences: as of 2022, an alarming 76% of India’s prison population consisted of under-trials, a statistic that underscores how the power to arrest is frequently misused. The system, rather than presuming innocence, often imposes punishment before conviction.

The Government’s Proposal and Its Political Implications

The current proposal by the Government of India seeks to introduce constitutional provisions for the removal of ministers upon arrest. Articles 75(5A) and 164(4A) have been proposed to cover Union and State ministers respectively. While these changes are framed as measures to promote the decriminalisation of politics, they were seemingly triggered by the former Delhi Chief Minister’s decision not to resign while incarcerated. The Delhi High Court had noted at the time that there was no legal provision requiring a Chief Minister to step down under such circumstances. Though this initiative is being marketed as a progressive reform, its political context and selective application invite scrutiny. The symbolism of including the Prime Minister in this framework mirrors the Lokpal Act of 2013—arguably more of a political gesture than a structural commitment to accountability.

Investigative Agencies and the Crisis of Credibility

The misuse of investigative agencies has long been a matter of judicial concern. In 2013, Justice R.M. Lodha famously described the Central Bureau of Investigation (CBI) as a "caged parrot" echoing its political master. More recently, Chief Justice of India B.R. Gavai criticised the Enforcement Directorate (ED), remarking during a case involving a raid on Tamil Nadu''s State Marketing Corporation that the agency had "crossed all limits." Several high-profile cases point to systemic flaws. Jharkhand’s former Chief Minister Hemant Soren was detained for six months over allegations of land fraud before receiving bail. Similarly, Delhi Chief Minister Arvind Kejriwal''s prolonged judicial custody prevented him from participating in critical phases of an election campaign. The problem is compounded by laws such as the Unlawful Activities (Prevention) Act (UAPA) and the Prevention of Money Laundering Act (PMLA), which include stringent bail provisions. These laws, by design, convert arrests into instruments of punishment before any judicial verdict is delivered.

Corruption, Political Expediency, and Ethical Lapses

The nexus between crime, politics, and business has been longstanding. The 1993 Vohra Committee Report exposed the entrenchment of criminal elements in political systems. Despite this awareness, parties continue to embrace corrupt candidates, driven by calculations of electoral “winnability.” Judicial attempts to curb this culture have met with mixed success. In Lily Thomas v. Union of India (2013), the Supreme Court barred convicted politicians from contesting elections. However, earlier precedents such as the Jan Chaukidar case (2004), which prohibited jailed individuals from contesting, were eventually overturned by Parliament. The gap between legal reform and political will continues to weaken ethical standards in governance.

Enforcement Agencies and Public Trust

The dismal track record of the Enforcement Directorate further damages its legitimacy. Between 2014 and 2024, the ED initiated 193 cases against politicians—yet secured only two convictions. Notably, 71% of these cases were registered in the last five years alone. The Supreme Court has voiced concern over this low conviction rate, which reinforces public perception that enforcement agencies are politically driven rather than evidence-based. Such perceptions erode institutional credibility and undermine the legal process itself.

The Political Strategy Behind Legislative Reform

The introduction of the 130th Constitutional Amendment Bill, even without the support of a two-thirds majority, signals a political rather than purely reformist agenda. The ruling party’s move appears calculated to position itself as a crusader against corruption while framing the Opposition as protectors of tainted leaders. The Opposition, in turn, has accused the government of weaponising investigative agencies for partisan gains. The proposed inclusion of the Prime Minister in the amendment, rather than ensuring accountability, appears to function as a symbolic shield—meant to neutralise criticism while maintaining control over the political narrative.

Risks of Over-Criminalisation

The Bharatiya Nyaya Sanhita (BNS) 2023 exemplifies the risk of excessive criminalisation. Of its 358 sections, 181 prescribe imprisonment of over five years, suggesting a punitive orientation. Such sweeping criminal provisions offer greater scope for abuse, especially in political contexts. The judiciary has long maintained that bail, not jail, should be the norm—except in cases of serious crime. However, in practice, arrest is often used as a tool to curtail liberty, silence opposition, or delay political participation.

A Roadmap for Reform and Justice

Addressing these issues requires a multi-pronged approach. Investigative agencies like the CBI and ED must be granted genuine autonomy, with leadership appointments made through bipartisan consensus. Judicial safeguards must be strengthened to ensure that arrests are not arbitrarily used as instruments of coercion and that bail remains a viable and accessible right. Constitutional amendments—particularly those involving disqualification or removal from office—must emerge from broad political consensus, not tactical manoeuvring. In parallel, the fight against corruption must be grounded in institutional reforms and ethical leadership, not ad-hoc purges timed for political advantage.

Conclusion

India stands at a critical juncture where the use of criminal law must be re-evaluated through the lens of justice rather than power. True reform lies not in symbolic legislation or selective prosecutions, but in building institutions that are independent, transparent, and trustworthy. By safeguarding civil liberties, ensuring due process, and fostering bipartisan consensus on legal reforms, the country can transform its criminal justice system into a genuine instrument for cleansing public life. Only then can criminal law function not as a means of political retaliation but as a foundation for democratic accountability and the rule of law.