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CONSTITUTION (ONE HUNDRED AND THIRTIETH) AMENDMENT BILL, 2025: A LEGAL ANALYSIS

Authored By: Kirti

Gitarattan International Business School (GGSIPU)

Abstract

The Constitution (One Hundred and Thirtieth) Amendment Bill, 2025, introduced in the Lok Sabha on 20 August 2025, stands to be one of the most contentious constitutional reforms attempted in recent years. Upon arrest and detention for a period of thirty consecutive days, the Prime Minister, Chief Ministers, and other Ministers shall be automatically removed from office under the provisions of this Bill, if the charges carry a minimum sentence of five years. Advocates assert that the Bill preserves constitutional morality by ensuring that no ministerial powers are exercised by people facing grave criminal charges and thus seeks to arrest public trust. Critics, however, have denounced the measure as draconian, claiming that it goes against the spirit of presumption of innocence, separation of powers, and the theory of federalism. This paper attempts to provide an in-depth analysis of the Bill from the perspective of its aims, provisions, political backdrop, constitutional ramifications, and possible challenges under the basic structure doctrine, with some comparative reflections from democracies around the world.

Introduction

The Constitution of India, as a living document, has undergone over one hundred amendments in order to meet the changing challenges of politics, society, and governance. The present Constitution (One Hundred and Thirtieth) Amendment Bill, 2025 represents a landmark change with controversial consequences, which propose to regulate the tenure of office of the Prime Minister, Chief Ministers, and other Ministers in serious criminal matters.

Ministerial accountability and constitutional morality are the twin pillars of this Bill, which leads to questions about the balance between good governance and due process of law. The issue is significant because it goes to the very heart of democratic legitimacy: should persons charged with serious crimes continue to wield executive power while in detention, or must they resign in order to uphold institutional integrity?

The Bill arose from instances where ministers continued to hold office, in essence governing from jail, a condition the critics allege erodes public trust and violates constitutional norms. Legislative history indicates that while the Constitution provided for disqualification of legislators upon conviction (Representation of the People Act, 1951), there was no such correlative provision for approach of removing ministers just on mere prolonged detention.

Thus, the thesis of this paper argues that while the 130th Amendment Bill sort of addresses a genuine gap in governance by codifying relevant standards of accountability, it poses a serious threat to fundamental constitutional protections: namely, the presumption of innocence, federal balance, and separation of powers, and thus, strongly invites scrutiny for its legitimacy and viability in the legal and political arenas.

The Bill has sparked intense debate, with supporters praising it as a decisive move to enhance accountability, while opponents condemn it as overly harsh, threatening core constitutional principles such as The principles of presumed innocence, division of powers, and federal structure.

Legislative Background & Procedural Status

  • The Bill was formally introduced on 20 August 2025, and after much uproar in the Lok Sabha, was referred to a Joint Parliamentary Committee (JPC) for detailed examination.
  • Parliamentary uproars were witnessed with Opposition MPs carrying out showdowns of tearing copies of the bill and confronting the treasury bench, deeming it as undermining of democratic norms.

Core Provisions of the Bill

Targeted Constitutional Articles

The Bill proposes amendments to:

  • Article 75 (Union Ministers, including the Prime Minister).
  • Article 164 (State Chief Ministers and Ministers).
  • Article 239AA (Ministers in the National Capital Territory of Delhi).

Mechanism of Removal

  • Arrest & Detention Clause:

A minister was arrested and held in custody for thirty consecutive days due to

offences punishable by imprisonment of five years or more is liable to removal, regardless of conviction.

  • Role of President, Governor, or Lieutenant Governor:
  1. Union context: The President, on the Prime Minister’s advice by the 31st day, removes the detained minister; if no advice is tendered, the minister ceases to hold office automatically.
  2. State context: The Governor, on advice of the Chief Minister by day 31, removes the detained CM or minister; failure to advise leads to automatic cessation.
  3. Delhi context: A similar removal framework is extended to NCT Delhi’s ministers, per Article 239AA.

Re-appointment Provision

Post-release, the removed minister may be re-appointed, as the Bill does not permanently bar reinstatement after release from custody.

Objectives and Justifications

According to the Statement of Objects and Reasons of the Bill:

To save constitutional morality, good governance, and public trust from serious felony charges being exercised by powers minister, while being in custody.

There have been cases where arrested ministers go to the extent of functioning from jail without moral accountability and, in turn, allegedly eroding institutional credibility—mentioning scenarios for some leaders being jailed while still holding office despite detention.

Prominent supporters like Prashant Kishor have hedged the Bill as preventing “governance from jail”, thereby closing a loophole not foreseen by the framers of the Constitution.

Opposition Arguments & Criticisms

Opposition leaders, constitutional scholars, and civil rights activists have mounted multifaceted opposition against the Bill. Broadly, the following issues emerge from these criticisms:

Presumption of Innocence and Due Process

The Bill punishes ministers on the basis of mere arrest and administrative detention and not due process or conviction thus destroying the long-held conviction of being innocent until proven guilty.

Separation of Powers & Executive Overreach

Asaduddin Owaisi criticized the Bill for undermining the separation of powers, arguing it allows executive agencies handling allegations to act as judge, jury, and executioner.

 The reliance over detention and not on judicial finding shakes the very spirit of constitutionalism and democratic process.

Threat to Federalism and State Autonomy

Critics hold that the Bill is centralizing in its tendencies and would therefore more likely be used against the non-BJP state governments; Kerala CM Pinarayi Vijayan called it the “neo-fascist strategy” to use central agencies to bring down opposition governments. The CPI(ML) termed it as destruction of federalism in essence making governance by non-BJP states almost impossible.

Erosion of Democratic Norms

Describing the Bill as “Hitlerian”, Mamata Banerjee said that it constituted a tool of “super-Emergency”.

MK Stalin, the CM of Tamil Nadu, termed it a “Black Bill” that strikes at the root of democracy with a warning that 30-day detention should not translate into no trial and removal.

Priyanka Gandhi Vadra dismissed it as undemocratic in being too convenient for removal of elected leaders through politically motivated arrests.

Political Vendetta Risks

Conjectures from various opposition sources have alleged misuse of agencies such as the ED and CBI to arrest political opponents, leading to an automatic dismissal of their party leaders without any reason. The absence of procedural safeguards and judicial review greatly increases such a possibility of political vendetta.

Legislative Procedure and Constitutional Safeguards

Amendment Process

A constitutional amendment must, according to Article 368 of the Constitution, be passed separately by both Houses of Parliament with majorities of total membership and two-thirds of those present and voting. Given the federal implications, some amendments may still have to be ratified by the state legislatures.

Role of the JPC

The Bill is with a 31-member Joint Parliamentary Committee (JPC), conducting an in-depth examination.While the JPC’s recommendations will be advisory, these could have a significant effect on the final recounting of the Bill.

Potential Legal Challenges

If adopted, the Bill will most likely engage in judicial review by the Supreme Court on grounds of violating the doctrine of basic structure, especially presumption of innocence, separation of powers, and the federal structure. Previous cases provide precedents where the Court has shown great willingness to strike down constitutional amendments on grounds of violation of basic structure-Janhit Abhiyan v. Union of India (103rd Amendment).

Comparative Perspectives & International Analogues

While direct parallel instances are rare, many democracies respect “presumption of innocence” and judicially verify before removal or disqualification. For instance-

  • Canada and the UK allow ministers to remain under investigation until they have been
  • France’s Constitutional Council has struck down executive powers that bypass judicial process.
  • In South Africa, while political ethics rules may pressure resignations, an arrest becomes an unconstitutional formal ground for removal.

The Indian Bill is faithfully aligned on automatic removal on detention from above, which is therefore a striking departure from international democratic convention.

Impact Assessment

On Governance

  • Positive: May induce accountability and prevent ministers from washing their hands off in detention.
  • Negative: Could dampen their entry into office for those under investigation and might cause disturbance in governance even for a short procedural arrest.

On Political Strategy

  • Might create an incentive for the political use of arrests.
  • Might defeat continuity of leadership, especially with prolonged processes of the judiciary.

On Democratic Norms

  • Destroys legal safeguards.
  • Destroys the citizen’s right to vote representation if leaders are ousted prior to conviction.
  • May also risk tanking any envisaged trust in fairness of legal and political institutions.

Conclusion & Recommendations

The Constitution (One Hundred and Thirtieth) Amendment Bill, 2025, indeed addresses a genuine governance issue whereby ministers should not be allowed to continue in office while being detained for serious crimes.

However, it puts in jeopardy the life of fundamental constitutional doctrines, i.e., presumption of innocence, separation of powers, judicial review, and federal autonomy, by circumventing judicial verdicts.

Recommendations:

  • Offer safeguards: Require a judicial certification or filing of a charge sheet to trigger removal.
  • Time-bound judicial process: Require expedited trial proceedings for charges that could lead to disqualification of a minister.
  • Clarity of state ratification: Request state assent for reinforcing federal legitimacy.
  • Sunset clause: Include a sunset clause to review the law after five years based on its actual outcomes.
  • Judicial powers: Give the courts such power to stay removal orders when an allegation of misuse is made.

In the end, constitutional reform must aim to create accountability without losing sight of due process. Any law that risks abusing criminal processes to remove elected leaders must be drafted very carefully, uphold solid procedural safeguards, and guarantee respect for existing principles of constitutionalism.

Reference(S):

Constitutional &Legislative Source

1.INDIA CONST. art. 75.

2.INDIA CONST. art. 164.

3.INDIA CONST. art. 102(1).

4.INDIA CONST. art. 368

5.INDIA CONST. art.239AA

6.The Constitution (One Hundred and Thirtieth Amendment) Bill No. 172 of 2025, Lok Sabha (India).

7.Representation of the People Act, No. 43 of 1951, INDIA CODE (1951).

Parliamentary debates & Official Documents

8.Lok Sabha Secretariat, Parliamentary Debates, Monsoon Session 2025.

9.Lok Sabha Secretariat, Report of the Joint Parliamentary Committee on the Constitution (One Hundred and Thirtieth Amendment) Bill, 2025.

Reports & Research Publications

10.PRS Legislative Research, Bill Summary: The Constitution (One Hundred and Thirtieth Amendment) Bill, 2025

11.Law Commission of India, Report on Electoral Disqualifications (2014).

News &Media Sources

12.Press Trust of Iandia, Amit Shah Tables Constitutional Amendment Bill to Bar Ministers in Custody for 30 Days, The Times of India (Aug. 20, 2025)

13.Indian Express, Explained: The 130th Amendment Bill, 2025 and Its Implications

 (  Aug.21, 2025).

14.The Hindu, Opposition Questions Government’s Intent on 130th Amendment Bill (Aug. 22,2025)

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