The proposed 130th Constitutional Amendment Bill, 2025 risks weaponising arrest, destabilising governments, and eroding the presumption of innocence in pursuit of political cleansing
Adv Zubair Bangroo
In a democracy governed by a written constitution like India, statecraft is shaped not only by the popular will but also by the constitutional limits within which power is exercised. Public trust and social morality often demand strong action against criminalisation of politics, yet the underlying ideas of the constitution require that such action must be in line with due process, separation of power and fundamental rights. The proposed 130th Constitutional Amendment Bill, 2025, brings this paradox into sharp focus.
Under the existing constitutional framework, the Constitution does not independently prescribe the qualification or disqualification of Ministers. Ministers are drawn from the legislature, and the disqualification applicable to the Members of Parliament and the State Legislatures under Articles 102 and 191, read with the Representation of the People Act, 1951, applies to them as well. Disqualification is thus linked to conviction, not mere accusation or arrest.
The proposed amendment seeks to insert additional clauses in Articles 75, 164, and 239AA, providing that if the Prime Minister, a Chief Minister, or any other minister is arrested or kept in custody for a continuous period of thirty days for a serious offence punishable with imprisonment of five years or more, such person shall automatically cease to hold ministerial office. According to the Statement of the Objects and Reasons, the objective of this Bill is to cleanse politics of criminality, restore public trust, and prevent the anomaly of “governance from jail”.
From the public policy perspective, the objective is legitimate. Public confidence in institutions is eroded when individuals facing serious criminal allegations continue to exercise executive authority. However, the policy design adopted by the Bill raises serious constitutional and governance concerns. An arrest is an executive act, not a judicial determination of guilt. Making arrest and prolonged custody as a basis for automatic removal effectively converts executive suspicion into constitutional punishment, undermining the presumption of innocence—a foundational principle of criminal jurisprudence and a core component of Article 21.
The 30-day threshold is particularly problematic. Under criminal procedure, safeguards such as judicial scrutiny at the stage of remand and the filing of a chargesheet—often within ninety days—serve as checks on arbitrary state action. The proposed changes aimed at bypassing these safeguards risk granting excessive leverage to investigative agencies, which in India have often been criticised for functioning under political influence. The ruling parties have often been accused of subverting opposition governments through such devices. In a competitive political environment, such a provision could be misused to destabilise elected governments through strategic arrests, thereby upsetting the federal and democratic balance.
In the case of Lily Thomas v. Union of India AIR 2013 SC 2662, the Supreme Court held that legislators can be disqualified only upon conviction, not on arrest or the framing of charges. Similarly, in Manoj Narula v. Union of India (2014) 9 SCC 321, the Court acknowledged the problem of criminalisation of politics but deliberately refrained from imposing judicially enforceable disqualifications, emphasising constitutional morality and democratic accountability. The proposed amendment departs from this settled constitutional position by substituting judicial determination with executive action.
If enacted, the Bill would also infringe several core constitutional principles, including the rule of law, non-arbitrariness, separation of powers, and federalism, which together form part of the basic structure of the Constitution. It would further require reconsideration of landmark constitutional jurisprudence such as Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461 and Maneka Gandhi v. Union of India (1978) 1 SCC 248, which emphasise constitutional supremacy, fairness, and reasonableness in State action.
A more balanced policy response would demand the pursuit of the same objective through constitutionally sound means. Fast-track courts with strict timelines for cases involving sitting ministers, mandatory public disclosure of criminal antecedents, and the creation of genuinely independent oversight mechanisms like election commission or Lokpal could strengthen integrity in public office without compromising due process. Such measures would enhance accountability while preserving the constitutional distinction between accusation and conviction.
In conclusion, while public trust and social morality demand decisive action against criminalisation in governance, they cannot override constitutional morality. Sustainable public trust is built not through populist shortcuts, but through institutional reforms that respect fairness, proportionality, and constitutional limits. The proposed 130th Constitutional Amendment Bill, in its present form, highlights the need for Parliament to design anti-criminalisation measures that deter wrongdoing without eroding the very constitutional safeguards they are entrusted to protect.
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