“Did you know that under India’s Constitution, a Chief Minister or even a Prime Minister could govern from jail? The Constitution (130th Amendment) Bill, 2025 aims to change that. On Wednesday, August 20, 2025, Union Home Minister Amit Shah tabled three bills to the Lok Sabha that would establish a legal framework for the removal of the Prime Minister, Union Ministers, Chief Ministers, and Ministers in States and Union Territories who have been “arrested and detained in custody on account of serious criminal charges.” According to the bills, if the Prime Minister, Chief Ministers, or Ministers of States and Union Territories are arrested and held in custody for 30 consecutive days on charges of committing a crime that carries a prison term of five years or more, they must be removed from office on the 31st day. However, the Bill was greeted with loud protests from the Opposition and is now sent to a joint committee for scrutiny.

Historical Context

The Constitution of India currently does not have any provision that explicitly talks or mentions about the removal of ministers merely upon arrest and detention on account of serious criminal charges.

However, Section 8 of the Representation of the People Act, 1951[1]which talks about Disqualification on conviction for certain offencesstates that any person convicted for specific serious offences such as promoting enmity, bribery, electoral offences, rape, cruelty to women, terrorism, corruption, and others listed by law, shall be disqualified from holding office. If the punishment is only a fine, the individual remains disqualified for six years after conviction; if sentenced to imprisonment, disqualification starts immediately and is extended for six years beyond their release. This provision ensures that those found guilty of grave criminal acts cannot participate in law making or represent the public until a substantial period has elapsed after their sentence but lacked provision to remove ministers simply for being arrested. In the landmark case of Lily Thomas v. Union of India (2013)[2], SC held that a conviction which carries a sentence of 2 years or more would result in the disqualification of a legislator from holding public office & contesting elections from the date of conviction. Thus, the Bill’s provisions would create a separate, lower standard for ministers.

What Prompted The Bill

According to Association Of Democratic Reforms report of 2024, 46% of Indian MPs (2024) face criminal charges against them[3], Public frustration peaked here as there are several cases where elected leaders continued in office despite being under serious criminal accusations and judicial custody.

Key Provisions Of The Bill

In effect, the Bill says that any minister who has been in jail for 30 days for a serious offence will lose his post. The bill states:

“A Minister, who for any period of thirty consecutive days during holding the office as such, is arrested and detained in custody, on allegation of committing an offence under any law for the time being in force, which is punishable with imprisonment for a term which may extend to five years or more, shall be removed from his office by the President on the advice of the Prime Minister to be tendered by the thirty-first day, after being taken in such custody. If the Prime Minister does not render such advice to the President by the 31st day, the Minister concerned shall automatically cease to hold office from the following day. This provision shall not bar the Minister from being appointed to the office by the President after release from custody.”[4]

The Constitution Amendment Bill aims to amend three articles in the Constitution of India: Articles 75, 164 and 239AA[5], Pertaining to the Union Council of Ministers, including the Prime Minister, State Council of Ministers, including the Chief Minister and  Council of Ministers of the National Capital Territory of Delhi. The bill states;

If a Minister (PM/CM/Minister) is arrested and detained for 30 consecutive days on charges punishable with five years or more imprisonment, then President (on advice of PM/directly) removes Union Ministers/PM, Governor (on CM’s advice) removes State Ministers and Governor (directly) removes Chief Minister of State.

Such a removal from office can be done purely based on an allegation and a conviction in the case is not required.[6]

What happens when the minister is released from jail?

The law also states that such a removal from the office does not prevent the individual from being reappointed to the high office after his release.

Under the provisions of the Bill, it is theoretically possible for the minister concerned to be re-appointed once they are out of prison.

The bill includes a provision that “ Nothing in this sub-section shall prevent such Chief Minister or Minister from being subsequently appointed as the Chief Minister or a Minister, by the President, on his release from custody, provided they are not disqualified under any other existing law.”[7]

Rationale In The Statement Of Objects And Reasons

According to the statement of objects and reasons attached to the Bill, “a minister who is facing allegations of serious criminal offences, arrested and detained in custody, may thwart or hinder the canons of constitutional morality and principles of good governance and eventually diminish the constitutional trust reposed by people in him.”

It also states that “elected representatives represent hopes and aspirations of the people of India. It is expected that they rise above political interests and act only in the public interest and for the welfare of the people; It is expected that the character and conduct of Ministers holding the office should be beyond any ray of suspicion”.

How Numbers Stack Up

A constitutional amendment Bill needs to be passed by a two-thirds majority in both Houses of Parliament before it goes to the President for assent[8]. Currently, the Lok Sabha has 542 members. For a two-thirds majority, a minimum of 361 votes are needed. This is quite a leap for the NDA, which has a strength of 293. Even if the non-aligned parties back the government, it still won’t have the required numbers.

In the Rajya Sabha, the situation is the same. The Upper House has 239 members now, and the Bill would need the support of 160 for a two-thirds majority. The NDA has 132 votes, much lower than the target. The bottom line is that the Bill won’t clear the Parliament without the Opposition’s support.

Hypothetically, even if the Bill clears the Parliament, there is a long road ahead. This Bill affects the federal structure of the country and will require the approval of at least half the states and Union Territories.

Parliamentary Scrutiny Through Joint Committee

A Joint Parliamentary Committee (JPC) is a special body formed by both Houses of Parliament to scrutinise complex Bills or subjects. It consists of members nominated by the Lok Sabha Speaker and Rajya Sabha Chairman. The JPC examining this Bill will have 31 members in total, 21 from Lok Sabha and 10 from Rajya Sabha  It will study the Bill in detail and submit recommendations. However, its findings are advisory and not binding on the government.

Democracy Under Debate: Criticism And Concerns

Why the Bill sparks Opposition uproar in Parliament? The Opposition, predictably, termed the legislation “draconian” and “unconstitutional” and alleged a plan by the ruling BJP to misuse central agencies, frame non-BJP Chief Ministers, put them in jail and destabilise state governments. However, the government maintained that the Bill had been brought to “elevate the declining moral standards” and maintain integrity in politics.

What are the criticisms of the provisions introduced by the Bill?

1. Violates Innocent Until Proven Guilty: The most significant worry is the bill’s contradiction of the ‘presumption of innocence’, a cornerstone of India’s legal system and a fundamental aspect of the Right to life and personal liberty as stipulated in Article 21[9] of the Constitution as the Bill punishes a minister merely on the basis of arrest rather than conviction. 
2. Targeting Political Opponents: A key fear is that the Bill could be weaponized by the ruling party at the Centre to destabilize opposition-ruled State governments. By using central investigative agencies, such as the Enforcement Directorate (ED) or the Central Bureau of Investigation (CBI), to arrest and detain a Chief Minister or a state minister for 30 days, the Centre could force their removal from office, leading to a political crisis
3. Lack of Safeguards: It results in the criticism of the bill for not providing any safeguards against its potential misuse. The decision to arrest and detain is entirely in the hands of the investigating agency, which opposition argue is not a neutral body.
4. Arbitrary Detention Period: The 30 days period for proving innocence is not enough, Opposition argued that there is no legal or logical basis for this specific duration, and it appears to be a number chosen to align with the standard period for judicial remand. This makes the law seem like a tactical, rather than a principled, reform.

The Way Forward

If enacted, the Bill could change India’s political landscape by pressuring ministers under investigation. The bill empowers the executive (through central agencies like the CBI and ED) to influence political outcomes and potentially destabilize governments, all without judicial oversight. Evidence indicates that independent agencies rarely targets the ruling party leaders; between 2015 and 2025, the ED registered 193 cases against opposition politicians, yet secured only two convictions which implies that it could become the easiest way for the ruling party to remove opposition from chair, thereby resulting in the political instability in the concerned state. Since 2015, out of nearly 5,900 cases registered under PMLA, only 15 cases led to conviction, a conviction rate of just 0.25%. This highlights a stark imbalance: the ED’s arrests and lengthy detentions rarely result in successful prosecution, which amplifies concerns about political targeting and procedural abuse, especially toward opposition leaders and activists.[10] Moreover, the power to remove a state-level minister on the basis of arrest may be vested in the Governor, who typically acts on the advice of the Chief Minister; however, in the event of the Chief Minister’s own arrest, the Governor exercises discretion. Since Governors are appointed by the Centre, this arrangement could be perceived as an indirect method for the Union government to interfere in state affairs, thereby impacting India’s federal structure. If the proposed constitutional amendment were enacted, these sweeping changes would establish a Viceroy-like control in the hands of Governors, Lieutenant Governors, and the President of India. The question then is why the government would spark uproar in Parliament and court a political storm by introducing a law it knows it can’t implement in its current form. The devil is in the details, and a closer look shows that this legislation may be aimed at a larger perception battle.

The Bill has also raised questions about its timing and wider constitutional effects. The fact that its presentation came during increased political conflict, including opposition protests over alleged issues with electoral roll has led some observers to suggest that the move might have goals beyond just legislative reform. Concerns have also been expressed that, if passed, the provision could be misused for animosity or partisan interests, which could disturb the balance of democratic governance.

From a constitutional view, the Bill requires careful examination under the doctrine of basic structure, especially regarding the principles of federalism, separation of powers, and judicial review, principles that even Parliament cannot override. If enforced, it may pose a significant threat to the Constitution. “Our Constitution is not the property of those in temporary seats of power. It belongs to the people of India,” 

Endnotes

[1] The Representation of the People Act, 1951, s. 8 (India).

[2] Lily Thomas v. Union of India, (2013) 7 SCC 653, AIR 2013 SC 2662

[3] Association of Democratic Reforms (ADR), “Record 46% of Newly-Elected Lok Sabha MPs Facing Criminal Cases,” June 5, 2024, http://adrindia.org/content/record-46-of-newly-elected-lok-sabha-mps-facing-criminal-cases (accessed August 29, 2025).

[4] The Constitution (One Hundred and Thirtieth Amendment) Bill, 2025, Bill No. 111 of 2025 (India).

[5] The Constitution of India, arts. 75, 164, 239AA.

[6] The Constitution (One Hundred and Thirtieth Amendment) Bill, supra note 4.

[7] The Constitution (One Hundred and Thirtieth Amendment) Bill, supra note 4.

[8] Constitution of India, art. 368.

[9] Constitution of India, art. 21.

[10] Vedika Mina, ‘India’s Slow March Back to ADM Jabalpur’, Virtuosity Legal, available at https://virtuositylegal.com/indias-slow-march-back-to-adm-jabalpur/ (last accessed August 31, 2025)