From 1975 onwards—and more sharply between the early 1990s and 2014—the central democratic worry in India was judicial activism: courts intruding into policy-making and unsettling the separation of powers. Yet, for all its excesses, judicial activism played a corrective role. It restrained executive overreach and compensated for legislative inertia. That institutional equilibrium has now collapsed.

In its place has emerged a far more dangerous phenomenon: executive activism. This activism operates not through open defiance of the Constitution, but through investigative agencies, procedural pressure, and strategic litigation. Increasingly, it aligns with the political interests of the ruling party rather than neutral state objectives. Unlike judicial intervention—which was reasoned, transparent, and subject to review—this executive activism works from within the legal system itself, hollowing out democracy, federalism, and constitutional accountability in a far more insidious manner.

The recent confrontation involving the Enforcement Directorate (ED), the West Bengal government, and the judiciary illustrates this inversion with clarity. On January 8, the ED raided multiple locations in Kolkata, including the office of the Indian Political Action Committee (IPAC), a political consultancy engaged by the Trinamool Congress for election strategy, and the residence of its director, Pratik Jain. The ED claimed that IPAC was under investigation for allegedly transferring ?10–20 crore for election-related expenditure in Goa in 2022 through "hawala" transactions, and seized files and digital devices it claimed were relevant to a PMLA probe.

What followed transformed what should have been a routine investigative exercise into a constitutional flashpoint. West Bengal Chief Minister Mamata Banerjee visited the raided premises with state police officials and took possession of specific files and digital devices, asserting that they contained sensitive political material—campaign strategy, candidate lists, and electoral data for the forthcoming Assembly elections—and were unrelated to any ED investigation.

The state government registered FIRs against ED officials alleging theft of documents and data, while the Kolkata Police filed a separate FIR citing criminal intimidation and trespass. The ED responded with its own FIR alleging obstruction and rushed to the High Court seeking urgent directions.

Amid courtroom commotion, Justice Suvra Ghosh listed the matter for hearing on January 14. Ordinarily, this would have been procedurally unremarkable. What followed, however, was extraordinary. The very next day, the ED approached a Division Bench seeking not only an urgent hearing but also a change of judge. The acting Chief Justice, Sujoy Paul, who headed the Bench, declined, noting correctly that the posting of the case was a judicial order that could be interfered with only by the Supreme Court. The ED then moved the Supreme Court seeking a CBI probe against the Chief Minister for obstruction of investigation and the return of the seized items, while the TMC filed a caveat to prevent ex parte orders.

These developments raise three core concerns:

First, timing and target. The alleged coal scam spans the period from 2000 to 2015, with the CBI registering its FIR only in 2020. Yet the ED acted with urgency precisely as Assembly elections approached and Centre–state tensions over voter-roll revisions peaked. Equally troubling is the choice of target: not a shell company or financial intermediary, but a political consultancy central to election planning. In such circumstances, a judge declining an urgent hearing should have been entirely routine.

Second, pressure on the judicial process. The refusal was instead treated as a hurdle to be cleared, with the agency seeking a change of judge. This is constitutionally revealing. When investigative urgency begins to shape judicial process, courts risk being drawn into executive timelines, weakening constitutional checks through procedural pressure rather than overt defiance.

Third, erosion of federal norms. Mamata Banerjee's intervention may be legally questionable, but it reflects a deeper breakdown. Police complaints alleging failure to show warrants, obstruction of state officials, and unauthorised seizure of documents led to FIRs against ED officials. If substantiated, these actions point not merely to Centre–state friction, but to a serious erosion of cooperative federalism and the rule of law.

Taken together, these concerns exemplify a phase of hyper-executive activism and point to a deeper institutional shift. Judicial activism after the Emergency arose from institutional failure and democratic necessity. After the Supreme Court's abdication in ADM Jabalpur v. Shivkant Shukla, the judiciary consciously reimagined itself as a guardian of rights against executive abuse. Through Public Interest Litigation, relaxed standing rules, and expansive readings of Article 21, courts intervened where legislatures were inert and administrations indifferent.

Over the past decade, however, that equilibrium has decisively reversed. Courts—particularly in politically sensitive matters—have increasingly adopted restraint. Constitutional challenges are deferred, interim relief is rare, and scrutiny is postponed to final hearings that often arrive after political outcomes have already been settled. The executive, meanwhile, has not reciprocated with restraint. Instead, it has become more assertive and increasingly adept at shaping political outcomes through legality itself.

Central investigative agencies, especially the ED, sit at the centre of this transformation. Its mandate is legal, but its conduct and impact are unmistakably political. Investigations intensify at electorally sensitive moments. Opposition leaders are subjected to prolonged legal vulnerability. Arrests, raids, and summons shape political narratives long before courts assess evidence, as seen in the arrest of the Jharkhand Chief Minister in 2023 and earlier arrests of leaders from the AAP and the Congress.

Legislative amendments have enabled this architecture. Changes to the relevant law between 2018 and 2019 dramatically expanded the ED's powers—reversing the burden of proof, reinstating near-impossible bail conditions, permitting warrantless arrests and searches, and allowing the agency to operate without even sharing an ECIR.

What converted these powers from controversial into constitutionally entrenched was judicial validation. In Vijay Madanlal Choudhary v. Union of India—a ruling now under challenge but yet to be reconsidered—the Supreme Court upheld most of these amendments, proceeding largely on assumptions of executive good faith while declining to treat real-world patterns such as overwhelming opposition targeting, vanishingly low conviction rates, and years-long investigations without trial as constitutionally relevant.

Ironically, the same courts that validated this extraordinary concentration of power are now increasingly passing strictures against the ED for overreach and procedural abuse. Post-facto reprimands, however, cannot substitute for structural restraint. Once expansive discretion has been constitutionalised, judicial scolding does little to protect liberty or democracy; it merely records damage already done.

It is within this vacuum of effective judicial control that Mamata Banerjee's actions acquire broader significance. Her intervention is symptomatic of a deeper constitutional failure. When courts fail to act early and decisively to reaffirm constitutional limits, conflict migrates from courtrooms to the streets, undermining federalism. Worse, it sends a message to other opposition-ruled states that constitutional remedies may no longer offer protection, encouraging executive resistance of their own.

The democratic consequences are severe. Elections cannot be genuinely free when investigative agencies hover permanently over opposition parties, candidates, consultants, and finances in the run-up to polls. Voters are not merely choosing between political programmes; elections themselves are shaped by raids, arrests, and insinuation. When courts intervene only after elections conclude, democracy is reduced to a procedural ritual emptied of substantive choice.

This erosion is now most visible in the electoral sphere. Judicial inaction on challenges to the Special Intensive Revision (SIR) of electoral rolls effectively emboldened the Election Commission to operate with minimal accountability. In Bihar, despite petitions filed well in advance and widespread complaints of lakhs of legitimate voters being deleted, courts deferred substantive hearings and failed to issue timely corrective directions. The result was not merely an administrative error, but an electoral distortion.

The consequences were measurable. Investigations revealed that many seats won by the NDA were constituencies where arbitrary voter deletions averaged over 25,000 per constituency—far exceeding typical margins of victory. In closely contested races, these deletions were outcome-altering. Democracy was not subverted through overt rigging, but through administrative exclusion carried out under judicial silence and deference.

Equally troubling was the social profile of those removed from the rolls. The overwhelming majority belonged to lower castes, migrant communities, the urban poor, and religious minorities—groups least equipped to navigate complex documentation requirements or pursue legal remedies. Reports linking the SIR process to nearly seventy deaths, including suicides, underscore the human cost of questionable mass disenfranchisement.

India is witnessing something subtler and more enduring than an overt constitutional coup: constitutional hollowing. Institutions remain. Procedures function. Elections are held. Yet power quietly tilts as executive activism increasingly outpaces timely judicial intervention and correction. Courts are no longer perceived as immediate sentinels of the rule of law and the Constitution, but as distant arbiters whose judgments arrive after irreparable harm has been done.

The question India now confronts is not whether courts once went too far, but whether judicial quietude can coexist with an era of executive activism without surrendering the judiciary's constitutional role. If courts continue to retreat while the executive advances aggressively, the judiciary risks becoming a venue where power is processed rather than restrained.

What this moment demands is institutional correction. Courts must reclaim their role as real-time constitutional arbiters—through threshold intervention, pattern-based scrutiny, common-sense adjudication, and, where necessary, suo motu action. The judiciary must also revisit laws and practices that privilege executive agendas over democracy, federalism, and the Constitution. Without such course correction, unchecked executive activism risks expanding further—not by openly violating the Constitution, but by steadily eroding its democratic and federal content, to the nation's lasting detriment.