With the Central Bureau of Investigation arresting Delhi deputy chief minister Manish Sisodia in the excise policy case, the blatant targeting of opposition parties and leaders through central agencies has reached a new pinnacle.
The raids against the regime’s political opponents have become a regular and persistent aspect of our polity; they no longer surprise or shock us. The government dismisses any protest against these raids as meaningless brouhaha, and claims it is only the law taking its own course. It claims that it’s merely ensuring there are no holy cows immune from the rule of law. It claims it is just bringing the corrupt old guard to book. Finally, it dismisses the opposition as hypocritical as the opposition too deployed raids towards political ends when in power.
In the face of such stout perception management and prevailing public numbness and indifference to the politicisation of these raids, it is critical to examine what has changed in the relationship between raids and the polity under Narendra Modi, and why this weaponised enforcement machinery poses a fundamental threat to our democracy.
What has changed?
While raids were wielded as political tools against the opposition before Modi’s regime too, there are five changes which have transformed these irregular raids into a system of ‘Rule by Raids’.
First, there is a multifold rise in the number of such political cases and raids, with the Enforcement Directorate being the favourite hound dog of the regime. As seen from the table below on action under the Prevention of Money Laundering Act, 2002 (arguably the regime’s law of choice to prosecute opponents), there has been over a 27-fold rise in the searches carried out by the ED under Modi’s rule. This incredible rise has ensured that politically driven raids have transformed from being aberrations into a predictable system of political control.
Second, the raids now are startling in comprehensively targeting all sources of dissent and accountability using every conceivable instrument available before the state. Unlike earlier, the raids and cases have not just been against a few opposition leaders but also targeted critical media outlets (Alt News‘ Mohammed Zubair was jailed for over a month before being released by the Supreme Court; the Bhaskar group promoter was raided by the I-T department after it was critical of the government’s COVID-19 handling; NDTV too faced CBI raids), activists (raids on Harsh Mander and jailing of Testa Setalvad, to name a few), NGOs (Oxfam, Amnesty, Greenpeace, etc.) and academics and intellectuals (Bhima Koregaon case, raids on the Centre for Policy Research, etc.). Hitherto insulated or inactive agencies like the ED, Narcotics Control Bureau and National Investigation Agency have been expertly weaponised to expand the policing (and thereby harassment) possibilities for the Centre.
Third, brazen immunity is now afforded to members of the ruling regime. Top BJP leaders are seldom investigated, even when their is public outcry for investigations (Rafale case, the multiple corruption allegations against the Karnataka government, the mid-day meal scam charges in Madhya Pradesh, the allegations of horse-trading of MLAs by the BJP, etc.) and when forced to investigate the probe gathers dust (like in the Vyapam scam). Worse still, the investigations lose stream once the accused joins the BJP, as has been seen with Assam chief minister Himanta Biswas Sharma (accused in Ponzi scam investigations), BJP’s top gun in Bengal Suvendhu Adhikari (accused in the Narada scam) and Mukul Roy (accused in the Saradha scam). While earlier governments gave in to pressure for investigations as with then law minister Ashwin Kumar resigning or the investigation into the Commonwealth Games scam or the 2G spectrum scam, the present government seems immune from similar civil society pressure.
Fourth, there is an absence of critical public scrutiny of the implications of such raids and their public utility. Raids, like rallies, have become a recurring political spectacle – they help control the news cycle, and neutralise and penalise opponents by restricting their mobility and tarnishing their credibility.
Fifth, the present trend of rule by raids has been enabled by a judiciary that has faltered to ensure that the agencies are impartial in the cases they investigate, as they have refused to order the agencies to overcome the reluctance to investigate allegations against the regime. The courts also have been less than stringent in ensuring fair means are adopted during investigations. They have failed to prevent the process from becoming punishment by denying timely bail to the accused even in brazenly political cases.
The court has also held up or not examined questionable amendments (2019 amendment to PMLA, 2002 and 2019 amendments to the NIA) to the law that have entrusted the agencies with unbridled power. This has instilled a legal architecture more enabling for the Union government to persecute its opponents.
The PMLA amendments in 2009, 2012 and 2019 have widened the scope for money laundering proceedings as new schedule offences have been added (against the original 40 offences under six laws, now there are 140 offences under 30 laws). The law can be retrospectively applied as money laundering was made a continuing offence. The definition of money laundering was widened (by replacing “and” with “or” in Section 3 of PMLA, 2002, mere possession of proceeds of a crime has been rendered prosecutable without any safeguards regarding knowledge that the said property was a proceed of crime) and dispensing the requirement of prior FIR/chargesheet by other agencies for the ED proceedings to commence.
Further, the protection against misuse of the law has been weakened, as bail is permitted to be granted only when the accused is considered not guilty and when they are unlikely to commit a similar offence, thereby turning the legal maxim of innocent until proven guilty on its head and making jail and not bail the norm in proceedings under the PMLA, 2002. The amendments, combined with provisions making admissible in courts the statements made by the accused before the agency (thus denying the accused protection against self-incrimination), denying the right of the accused to be provided a copy of the ECIR (PMLA equivalent of an FIR that allows the accused to know the allegations made), absence of magisterial oversight of the investigation and attaching of properties without judicial oversight makes ED investigations a dreary death-nail for the accused.
Even still, what can be wrong with a war, albeit politicised and partisan, on corruption and organised crime? Shouldn’t such an onslaught be supported and promoted? I would argue on the contrary. Here are five reasons why such unchecked politicised raids and prosecutions pose a threat to the very edifice of our democracy.
1. Suppresses political freedom and distorts people’s choice
The targeted raiding of opponents violates the essence of democracy, as it imposes the cost of raids and prosecution for exercising the right of political speech and assembly. Democracies don’t punish their citizens for opposing the powers that be; criticism, dissent and discussion are considered vital for ensuring accountability, apart from being inviolable rights in themselves. But these raids send a chilling message to anyone seeking to hold the government to account.
When we applaud targeted raids against a political opponent of the regime, we in fact celebrate the diminishing of our democracy as by politicising raids and targeting the opposition systematically the level playing field is scarred, with the opposition being unfairly disadvantaged in presenting people with an alternative to the ruling party. Thus these raids temper with people’s ability to choose their government freely. Politics is subverted into rule by force instead of being a rule by discussion. It leads to politics by proxy with scarce state resources (comprising taxes of even opponents of the regime) being used to fulfil the partisan narrow aims of the regime. Further, when only opposition leaders are raided and prosecuted, isn’t the message clear that what is penalised is opposition to the regime instead of the purported crime itself?
2. Inimical to rule of law
By instilling terror for one’s politics, these raids defeat the purpose of rule of law to make people feel safe and create an orderly society. Instead by making people feel unsafe (at risk of persecution) for their politics, the state under Modi through its rule by raids has become a threat to the rule of law.
This trend also endangers another key aspect of rule of law: equality before the law. It creates two classes of people, those who are in support of the regime, having the additional right of immunity from prosecution even after committing offences, and the regime opponents, at risk of being persecuted even without crimes committed.
The third harm this trend does to rule of law is making the government invested in weakening the rule of law. As these raids cynically exploit the weakness in our judicial system to penalise opponents through the process of investigation, they thereby make the executive invested in perpetuating the broken system instead of fixing it . Thus the Modi government has more reasons to persist with the system of denial of bail as a norm, increasing the arbitrary powers of the state and keeping the judiciary understaffed and overwhelmed, as these enable persecution and harassment of the opposition.
3. Counterproductive in tackling corruption and improving governance
Even on their narrow stated aims of rooting out corruption and crime, the politicisation of these raids has proved to be counterproductive.
First, by providing immunity to the regime from raids and weakening the opposition and thereby its ability to hold the regime accountable for corruption, they encourage the BJP and its associates to be untempered in corruption, as can be seen with the Karnataka government being unconcerned by the growing allegations of corruption.
Second, these raids and prosecution by terrorising the opponents of the BJP have been an unmissable precursor to the horse-trading of the MLAs who are induced to destabilise the government to escape prosecution. Thus, these raids and prosecutions have enabled political corruption and created political instability where opposition governments are more busy safeguarding their MLAs than governing their states.
Third, the politicised raids and prosecution hurt the fight against corruption and crime by diverting scarce resources and public capacity from the really meaningful, watertight but less headline-worthy cases to the politically sensitive and high-profile cases. Further, these politicised cases have poor conviction rates.
Fourth, the politicised raids enable even the corrupt of a lot of accused to play the victim and thereby reduce the stigma around corruption as corruption proceedings are delegitimised. Further, the opposition parties are incentivised to stand with even the corrupt of their lot when they are prosecuted for inducing switchovers.
Finally, the proof of the pudding lies in the eating. Despite the meteoric rise in these raids, has corruption reduced? Have we become more law-abiding? Has conviction gone up? Has tax evasion been meaningfully curbed? Or instead, do we have more MLA switchovers, more policy capture by cronies, rising monopolisation of more and more sectors, reduced transparency and accountability of the government, and more opaque political funding? If it’s the latter, perhaps we need to be wary of a less ugly and less indisciplined but more organised and deleterious form of corruption taking root.
4. Perpetuates police raj, threatens the liberty of the people
It perpetuates a police state, weakening the rights of common citizens. The weakened safeguards (protections against arrest, the confiscation of properties, self-incrimination, etc.) against abuse of power leaves us vulnerable to being targeted by the government and its functionaries.
This rule by fear culture has led to citizens being jailed for merely criticising their leaders, journalists being jailed for bringing us news critical of the regime and activists being prosecuted for being on the wrong side of power, reflecting the dwindling space for free speech and the freedom of organisation.
5. Breeds a perverse adversarial political culture
This rule by raid eventually turns politics into a do-or-die battlefield. Opponents turn into enemies. It leads to a breakdown of cooperation between the opposition and the government and between the Centre and states, as cooperation and war can’t go side by side. Political survival and power trumps every consideration, as the cost of losing is not simply being out of power but also facing persecution. This is one of the reasons why autocracies seldom have a peaceful transfer of power, as transfer of power is the transfer of life itself while democracies are much more stable with a routine and peaceful transfer of power.
Thus, this ruling by raids not just restricts political freedom, hurts rule of law and promotes corruption, but it also doesn’t bode well for the stability of our democracy and if left unchecked will be deleterious to its very existence in the long run.
Praneet Pathak studies marketing at IMT and is a keen observer of Indian democracy.