Lawfare is a term that has increasingly been used since the turn of this century to describe the use or misuse of courts and legal institutions to achieve a desired political or military objective.
The term has been employed to denote the use of law and legal systems against indigenous populations of the United States of America.
It has also been used in the international military context to characterise/demonise legal actions brought against military actions of the USA and Israel.
While a more traditional understanding of lawfare denotes powerful actors delegitimising the less powerful who are seeking rights and accountability, in India, lawfare could assume another dimension.
A slew of recent such judicial actions would make this clearer.
On October 5, the Punjab and Haryana High Court directed the Central Bureau of Investigation (CBI) to register a criminal case to probe corruption allegations involving Punjab Chief Minister Bhagwant Mann's office.
What is noteworthy is that the order was passed on a public interest litigation (PIL) filed by advocate Nikhil Saraf. He told the Court that the Punjab Police had failed to take appropriate action on the letters written by the Enforcement Directorate (ED) for a probe into the allegations against Chief Minister Bhagwant Singh Mann's Officer on Special Duty (OSD) Rajbir Singh Ghuman.
Under our Constitutional scheme, law and order is a State subject handled by the State Police. With a few exceptions, law and order matters, including those related to corruption, rests with State investigating agencies. The CBI usually comes in when Central government officers are involved in the offence or if a court calls for its interference.
Lately, the ED, a central agency tasked with investigating money laundering offences, has been writing letters or making recommendations under Section 66 of the Prevention of Money Laundering Act (PMLA) to State agencies to probe matters or register FIRs.
The reason is not far-fetched. The ED comes into the picture only if there is an underlying predicate offence. Once the ED's jurisdiction kicks in, it can exercise vast powers including keeping an accused in jail as an undertrial prisoner without bail. However, for the ED to assume jurisdiction, there has to be a predicate offence, usually registered by the concerned State agency. The ED's hands are tied until then. When the political dispensation at the Centre and the State level are different, it is not easy for the ED to assume jurisdiction.
And that is where the courts come in.
The ED writes a letter recommending registration of an FIR. The court is then set in motion through a PIL or a petition by a complainant. The court then directs registration of an FIR, paving the way for the ED's entry.
On the one hand, various courts, including the Supreme Court, have voiced concerns that the ED has been violating the federal structure and targeting political opponents. In May 2025, a bench of then Chief Justice of India BR Gavai and Justice Augustine George Masih said that the agency was crossing all limits and acting in violation of the Constitution and federal structure by initiating action against a government body.
On the other hand, the courts have also enabled this targeting.
A similar episode is currently playing out in Kerala, where the ED recommended that a case be registered against former Chief Minister Pinarayi Vijayan. After the ED sent a communication to that effect to the Kerala police, a petition was immediately filed by a lawyer (who was additional private secretary to late former CM VS Achuthanandan) before the Kerala High Court seeking action against Vijayan.
The High Court ordered the police to lodge an FIR. The ED had argued that the police is bound to lodge an FIR.
Section 66 of PMLA empowers ED to share information with other agencies which, in the opinion of ED, is necessary for such other agency to perform its functions under the relevant law.
The provision also specifies the agencies to which the ED may share such information. The agencies include those performing functions under any law relating to imposition of any tax, duty or cess or to dealings in foreign exchange, or prevention of illicit traffic in the narcotic drugs and psychotropic substances. The ED can also share information with any other officer, authority or body performing functions under any other law as the Central government may, by notification in gazette, specify.
While the provision clearly empowers the ED to share information with other agencies for effective performance of their duties, interpreting the same as a mandate to act upon such information, especially when it comes to a State agency, goes against the Constitutional framework.
However, this was precisely what the Supreme Court did in its 2022 judgment in Vijay Madanlal Choudhary vs. Union of India, which makes it mandatory on the part of a State agency to register an FIR based on the ED's recommendation.
Paras 53 and 60 of the Vijay Madanlal case, which say so, have been relied upon in such cases to order FIR.
The Kerala High Court also relied upon the same to order an FIR against the ex-CM. An appeal against the same was dismissed by a division bench of the High Court.
The matter then came up before Supreme Court which, even as it acknowledged the law set out in Vijay Madanlal, expressed doubts about how the judgment has been interpreted by courts.
"Our problem is now we read judgments like statutes. Vijay Madanlal Choudhary has now been conflated to become a mandate on the State to the agency under Section 66(2). The judgment says it will be information to the agency as per law. Now what is "as per law" is for the agency to decide. Neither Vijay Madanlal Choudhary addresses that issue, nor will the PMLA be the super-administrator mandating everything everywhere," Justice Joymalya Bagchi remarked.
The Court also took objection to what it perceived as the ED exceeding its statutory domain.
"Go ahead with your prosecution. Don't extend your hand beyond your statutory limits. We are making it very clear. Don't use the process of statutory powers to meddle into the statutory domain of other entities. Okay? We are fully clear what you have done, what the High Court has done. We will maintain the FIR, but no investigation until and unless these issues are decided by the appellate forum," the top court remarked.
An instance similar to the Kerala case was seen in 2021. Back then, the Bombay High Court allowed the CBI to probe then Home Minister Anil Deshmukh in response to a petition filed by Param Bir Singh, former Commissioner of Mumbai Police alleging corruption. Besides Singh, other third parties had also moved the High Court demanding a CBI probe against Deshmukh.
The Court found it fit to allow the CBI to conduct a preliminary enquiry based on a letter written by Singh raising various allegations. This was at a time when the State had already taken steps for a probe by a high-level committee into the matter. Subsequently, the CBI conducted a preliminary inquiry and found it fit to register an FIR against Deshmukh on the basis of a complaint by one of the PIL petitioners. This eventually paved the way for the ED to enter the fray. Deshmukh, meanwhile, resigned as Home Minister and had to spend over a year in jail before securing bail.
The excessive interference by courts in political matters is not limited to money laundering or corruption cases.
Recently, the Punjab and Haryana High Court ordered that the Punjab government shall not resort to large-scale advertising campaigns in print or social media, until it clears pending instalments of dearness allowance/dearness relief (DA/DR) to all its employees and pensioners.
While an order to clear pending dues to employees is a laudable measure, halting the State from advertising its achievements goes far beyond the Court's judicial mandate.
Another glaring instance of courts overstepping their role was seen in the controversial West Bengal special intensive revision (SIR) case before the Supreme Court.
The petitions before the Court challenged the validity of the SIR exercise and also sought a stay on the process, arguing that it would end up being a hurried exercise. The Court had two options - either to stay the SIR or not. However, it went beyond that. It refused to stay the SIR but did not stop there. It decided that to ensure neutrality in the SIR exercise, the judiciary itself has to conduct it.
Hence, in an unprecedented move, the Court roped in more than 500 judges from West Bengal, Odisha and Jharkhand to complete the exercise. While a total of 5.23 crore cases remain pending in courts across the country, the Indian judiciary found it fit to depute judges to do the executive work of election authorities.
Trying to destabilise elected governments through courts is a tested method in our country, first employed in 1975 by unseating a Prime Minister who had been elected by a whopping majority. Back then, the Prime Minister pushed back against courts by declaring national emergency.
Courts must be circumspect when dealing with petitions, especially PILs, against elected officials. Judicial powers should be exercised to protect and augment fundamental rights, not to impinge upon federalism and defeat the people's electoral mandate by entertaining politically motivated petitions.