The 130th Amendment: A Procedural Shortcut or a Constitutional Fault-Line

Imagine a batsman being declared out for leg before wicket (LBW) without the umpire’s  decision merely because the ball touched the pad. Absurd and unjust, isn’t it? Yet, this is  precisely the logic that seems to underlie the 130th Constitutional Amendment Bill1. Tabled  in Parliament on August 20, 2025, the Bill seeks to remove ministers, including the Prime  Minister, who remain in detention for over 30 days on charges punishable with imprisonment  of five years or more. Ostensibly, it aims to uphold public morality and restore trust in  governance. However, beneath its moral facade lies a troubling legal shortcut, one that risks  equating mere detention with guilt and undermines the constitutional presumption of  innocence. The bill would force the ministers, even the Prime Minister, to resign from their  respective offices if they stay in custody for more than 30days for offences punishable by five  years or over. The bill proposes to insert provisions in Article 75, 164 and 239AA : 

1. If a Prime Minister, Chief Minister, or Minister is arrested and detained for 30 consecutive  days on allegations of an offence punishable with imprisonment of five years or more, they  shall cease to hold office from the 31st day. 
2. If the President or Governor does not act on advice by that date, cessation is automatic.  The Bill, however, allows reappointment once the person is released from detention. 

The office of a Minister embodies the public’s trust in its elected representatives, who are  expected to uphold integrity and prioritise the public interest over personal gain. It is  therefore imperative that constitutionally sound safeguards exist to preserve the sanctity of  such positions and to remove those who misuse their authority. However, the procedure  proposed in the 130th Amendment Bill departs from this principle by bypassing the  traditional legal stages of arrest, trial, and judicial determination of guilt. Although  presented as a measure to fortify political accountability, the Bill effectively treats detention  rather than conviction as the operative trigger for removal, thereby transforming an arrest  into automatic political disqualification. This approach directly contravenes the foundational  legal doctrine of the presumption of innocence. 

Furthermore, the Bill risks infringing Article 212 and 193 of the Constitution by depriving  Ministers of the right to a fair and reasonable procedure. In A.K. Gopalan v. State of  Madras4The Supreme Court underscored that personal liberty encompasses freedom from  unlawful or arbitrary detention. Later, in Maneka Gandhi v. Union of India5The Court held  that any procedure restricting personal liberty must be fair, just, and reasonable and cannot be  arbitrary, oppressive, or disproportionate. The proposed mechanism in the present context  fails to meet these constitutional standards. 

Articles 102(e)6 and 191(e)7 of The Constitution empowers the legislature to prescribe  additional grounds for the disqualification of Members of Parliament and State Legislatures.  However, these provisions have sometimes been employed less as instruments of  accountability than as tools to curb and weaken political rivals. This is not the first time such clauses have been used to enact laws that infringe the doctrine of the basic structure of  the Constitution and thus lie beyond its legitimate ambit. In 1975, the then government  passed the Constitution (Thirty‑Ninth Amendment) Act, 1975, which sought to exclude the  Prime Minister, the President and the Vice-President from judicial scrutiny of their elections8. Subsequently, after the end of the Emergency, the newly elected government reversed those  changes and restored the power of the courts to adjudicate election disputes. Similarly,  through the present Bill, the government proposes to shift the adjudicatory power from  courts to investigating agencies, thereby diluting the role of independent judicial review and  revisiting constitutional boundaries. 

According to the data presented by The Hindu931% of MPs and 29% of MLAs have  declared serious criminal charges against them and the share of MPs facing serious criminal  crimes have more than doubled in 15 years from 14% in 2009 to 31% in 2024, this data  posits a serious question on the sanctity of the post and the criminalization of politics in  India. There can be little dispute that a principled and effective mechanism is required to preserve the integrity and ethical standards of public office. Currently, the disqualification  regime only applies after a legislator has been convicted and sentenced to imprisonment for  two years or more, as mentioned in section 8(3)10 of the Representation of the People Act,  allowing the accused to continue exercising official functions until the final adjudication.  Given the well documented delays in the criminal justice process, this construct enables  office holders under serious criminal accusation to remain in post for extended periods, in  some cases even while detained, with deleterious effects on public perception, institutional  legitimacy, and democratic accountability. We have a prime example of Arvind Kejriwal who was the first sitting Chief Minister to be jailed, He was jailed in march 2024 and ran the  government till mid September thorough the lockup The resulting lacuna in the law, therefore permits prolonged occupancy of public office by persons subject to grave criminal  allegations, a situation that undermines both the appearance and reality of good governance. 

The Law Commission of India, in its 244th Report11, chaired by Justice A.P. Shah, also  deliberated extensively on this issue. It concluded that disqualifying a candidate merely upon  the filing of a chargesheet would be premature since, at that stage, the court has not yet  applied its judicial mind to determine guilt. The Commission emphasised that such a move  would go against the principles of natural justice, as the accused would not have had a fair  opportunity to defend themselves12. However, it did suggest that disqualification could  reasonably arise once charges are formally framed by a court, provided that sufficient  procedural safeguards exist to prevent misuse. This approach, according to the Commission,  strikes a balance between maintaining the integrity of public office and protecting individuals  from arbitrary or politically motivated disqualifications. 

The removal of ministers just on the account of arrests won’t serve well in the mission of  decriminalizing of politics rather it would be used to target and weaken the political rivals,  though there is a provision of reinstatement of ministers if the charges are dropped but  already a greater harm would be done, their personal and as well as their party’s image would  already be tainted. The removal, new appointment, and reinstatement would weaken a party’s internal governance, and this haphazardness would result in poor governance of the state, which would ultimately cause the party to lose the trust of the public. 

While the Bill may outwardly appear equitable since it includes the Prime Minister among  those subject to removal, it nonetheless raises serious concerns about misuse. Given that  major investigative agencies such as the Enforcement Directorate (ED) and the Central  Bureau of Investigation (CBI) are widely perceived to operate under the influence of the  Centre, the Bill could empower the central government to orchestrate politically motivated  arrests and sow seeds of chaos within rival parties, and thereby weaken their position in the  political arena. The historical reference for this danger is the period of the Emergency (India)  (1975-77), where arbitrary arrests of ministers and opposition figures were made on the  central government’s whim, undermining democracy and civil liberties. 

Most established democracies resolve ministerial removal as a political process, not by  automatic statutory cessation triggered by detention. The 130th Amendment’s novelty is  converting a criminal process event (detention for 30 days) into an automatic constitutional  consequence for executive office holders, a design that raises separation of powers and  presumption of innocence concerns. While the aim is laudable, the means adopted by the Bill  appear neither narrowly tailored nor respectful of institutional competencies, and the logic  behind the post thirty day incarceration lacks reasoning. Thus, the dismissal of a Minister  without adherence to due process would conflict not only with established constitutional  protections but also with the will of the people expressed through the Constitution itself. 

Ultimately, the 130th Constitutional Amendment Bill, though framed as a step toward  cleansing politics, risks corroding the very constitutional principles it seeks to defend. True  accountability cannot stem from shortcuts that bypass due process. Reform must strengthen  institutions, not sideline them, for the rule of law, not political expediency, is the only  foundation upon which a democracy can truly stand.

Referene(S):

1 The Constitution (one hundred and thirtieth amendment) bill, 2025, Bill No.111 of 2025.

2India Const. art. 21. 

3India Const. art. 19. 

4 A.K. Gopalan v. State of Madras, AIR 1950 SC 27 (1950) (India). 

5 Maneka Gandhi v. Union of India, AIR 1978 S.C. 597 (1978) (India). 

6India Const. art. 102(e). 

7India Const. art. 191(e). 

8 Swapnil Tripathi, The 39th Amendment and the Tribunal that tried the Prime Minister, Thebasicstructure.com(10 August,2020), https://thebasicstructure.com/2020/08/10/the-39th-amendment-and the-tribunal-that-tried-the-prime-minister/. 

9 About 30% of MPs and MLAs Face Serious Criminal Cases in India, The Hindu (Sept. 1, 2025),  https://www.thehindu.com/data/about-30-of-mps-and-mlas-face-serious-criminal-cases-in india/article69978922.ece.

10 Representation of the People Act, 1951, § 8(3). 

11 Prianka Rao, Law Commission Report Summary on Electoral Disqualifications, PRS Legislative Research  (Mar. 29, 2014), https://prsindia.org/policy/report-summaries/law-commission-report-summary-electoral disqualifications.  

12 Justice K. Chandru (Retd.), “History will absolve me”: What the 130th Constitution Amendment Bill truly  purports to achieve, The Leaflet (Aug. 26, 2025), https://theleaflet.in/criminal-justice/history-will-absolve-me what-the-130th-constitution-amendment-bill-truly-purports-to-achieve.