UPSC Syllabus Topic: GS Paper 2- Parliament and State legislatures—structure, functioning, conduct of business, powers & privileges and issues arising out of these. Constitution (130th Amendment) Bill and Issues Related.
Introduction
The Bill amends Articles 75, 164, and 239AA to link a Minister’s continuance in office to arrest and 30 days’ custody. It is before a Joint Parliamentary Committee. The core debate is whether custody-based removal—prior to trial—safeguards constitutional morality or risks misuse and disrupts governance.
Key Provision of Constitution (130th Amendment) Bill
- Articles targeted: It proposes amendments to Article 75, Article 164, and Article 239AA, covering the Union Council of Ministers, State Councils of Ministers, and the special administrative provisions for Delhi. .
- Removal mechanism and timelines
If a Minister is arrested and remains in custody for thirty consecutive days for an offence punishable with imprisonment of five years or more, removal follows.
The President (on advice of PM or directly) must remove a Union Minister or the Prime Minister.
The Governor (on advice of CM) must remove State Ministers.
The Governor (directly) must remove a Chief Minister.
For Union Territories (including Delhi and J&K), similar removal provisions will apply under amended Articles and relevant laws.
- Targeted Offices: The Bill applies to the Prime Minister and Union ministers at the central level, as well as Chief Ministers and state ministers in states and Union Territories.
- Focus on Detention, Not Conviction: A core and highly debated aspect is that the minister’s removal would be based on the duration of their detention, NOT on a final conviction in a court of law. The Bill’s “statement of objects and reasons” claims this is necessary to uphold constitutional morality and public trust in governance.
- Provision for Reappointment: The Bill does not prevent a minister who has been removed from being reappointed to the same office once they are released from custody, regardless of whether they have been acquitted.
Major Concern Related to Constitution (130th Amendment) Bill
- Subjectivity in bail decisions: Bail may also depend on the judge’s liberty stance under Article 21. This injecting subjectivity into a rule that directly affects democratic representation and executive continuity.
- Misalignment with default bail: Default bail is a right if the investigation is not completed within 60–90 days of custody (CrPC Section 167(2) / BNSS Section 187). The Bill triggers removal after 30 consecutive days in custody. Since courts commonly extend remand within the 60–90 day window, the 30-day trigger sits earlier than the default-bail safeguard, creating a mismatch.
- Removal before trial concludes: Courts decide bail using the triple test (flight risk, evidence tampering, witness intimidation). In practice, they also consider the gravity of the offence. This often keeps an accused in custody beyond short periods in heinous offences. Under the Bill, longer custody raises the chance of crossing 30 consecutive days, which activates removal from office, even before trial concludes.
- Undermining presumption of innocence: A significant criticism is that the bill equates arrest with guilt, removing the fundamental principle that an individual is innocent until proven guilty in a court of law.
- Political manipulation: There are concerns that the bill could be used to target political opponents, as the power to remove ministers could be influenced by executive and political considerations rather than strict legal grounds.
- Risk of executive overreach: Critics fear the bill gives too much power to the executive branch, as the removal of a minister depends on the advice of the Prime Minister or Chief Minister.
- Potential for arbitrary removal: The 30-day period is considered arbitrary and not based on a clear legal or policy rationale. It could also prompt strategic delays in bail hearings to trigger removal from office.
- Impact on the legal process: The bill may disregard specific legal protections and provisions, particularly for cases under special statutes with stringent bail conditions like the PMLA, where the burden of proof is reversed onto the accused.
- Risk to federalism: The bill could have an impact on the structure of union and state cabinets, raising concerns about federal principles and potentially enabling the destabilization of coalition governments.
- Influence of office and bail: If the Minister stays, courts may fear influence over the case, bail may be denied, and removal follows after 30 days’ custody. If the Minister resigns, bail may be easier, but the office is lost.
Varies judgement related to Minister Arrest
- Deenan v. Jayalalithaa (Madras HC, 1989)
In this case, the High Court held that “may arrest” in Section 41 CrPC denotes discretion, not compulsion, and refused to direct the police to arrest during investigation. - Joginder Kumar v. State of U.P. (SC, 1994)
In this case, the Supreme Court held that no arrest should be made merely because the power exists. The police must justify the arrest. - Amarawati v. State of U.P. (Allahabad HC, 2004)
In this case, the High Court, after examining Sections 41 & 157 CrPC, held that arrest in a cognisable offence is not mandatory. The police may investigate first and arrest only if required. - CrPC amendment, 2009 (legislative change)
Parliament tightened arrest conditions in Section 41 CrPC, distinguishing ≤7 years from >7 years offences. Section 41A CrPC still enables appearance by notice when custody is not necessary, irrespective of offence length. - Satender Kumar Antil v. CBI (SC, 2022)
In this case, the Supreme Court held that investigating agencies are bound to follow Section 41/41A CrPC safeguards. Non-compliance undermines personal liberty safeguards. - Arnesh Kumar v. State of Bihar (SC, 2014)
In this case, the Supreme Court mandated that the investigating officer must record reasons and material justifying arrest, and High Courts have objected to violations of these directions. - National Police Commission, 3rd Report (1977)
The Commission reported that nearly 60% of arrests were unnecessary or unjustified. This heightens concern about misuse of arrest—a crucial risk when the Bill’s 30-day custody trigger can remove Ministers from office before trial concludes.
Conclusion
The Bill creates a custody-based removal rule to protect constitutional morality, yet raises serious risks: discretionary arrests, bail-law frictions, special-statute burdens, and federal instability. Clarifying safeguards, aligning with default-bail timelines, and strict arrest-protocol compliance are essential to balance accountability and liberty.
For detailed information on Constitution (130th Amendment) Bill – Provisions & Criticisms read this article here
Question for practice:
Examine the major concerns related to the Constitution (One Hundred and Thirtieth) Amendment Bill.
Source: The Hindu
