Source: The post India debates fairness in removing detained ministers has been created, based on the article “The new Constitution Bill, the need for a balancing act” published in “The Hindu” on 25th August 2025. India debates fairness in removing detained ministers.
UPSC Syllabus Topic: GS Paper 2- Parliament and State legislatures—structure, functioning, conduct of business, powers & privileges and issues arising out of these.
Context: On August 20, 2025, a Bill was introduced. It orders exit after 30 days in custody. It applies to offences punishable with five years or more. It covers Ministers, Chief Ministers, and the Prime Minister. It promises cleaner politics but raises constitutional concerns. Public trust has suffered when jailed leaders retain office.
For detailed information on Constitution (130th Amendment) Bill – Provisions & Criticisms read this article here
Constitutional foundations and intent
- Stated purpose and trigger: The Bill targets leaders in custody who still hold office. It treats continued detention as a ground for exit. It aims to rebuild trust in governance.
2. Articles and the pleasure doctrine: The plan rests on Articles 75, 164, and 239AA. These place ministers at the President’s or Governor’s pleasure. Courts have read this power within constitutional morality. It proposes Clause 5A after Article 75(5), Clause 4A after Article 164(4), and Clause 5A after Article 239AA(5).
3. Ethical aspiration: The proposal signals a push for integrity. It tries to limit executive tenure when custody follows serious allegations. It answers public demands for moral rectitude.
Judicial guidance and moral expectations
- Constitutional morality in governance: In S.R. Bommai, the Court stressed integrity and accountability. Democratic institutions must be protected by constitutional morality. The Bill cites that spirit.
2. Appointments and criminality: In Manoj Narula, the Court warned against assigning executive power to those facing grave cases. It did not order automatic removal. But it tied ministerial choice to ethics.
3. Legislative codification of signals:The proposal turns judicial signals into rules. It seeks to codify long standing moral expectations.
Due process, statutory alignment, and consistency
- Presumption of innocence: Removal on arrest conflicts with the presumption of innocence. Article 21 protects liberty and fair process. Action without conviction or even charges risks that core value.
2. RPA framework and Lily Thomas: Section 8(3) of the Representation of the People Act triggers disqualification only on conviction. In Lily Thomas, the Court made it immediate. It did not link it to arrest or detention.
3. Unequal standards: Lawmakers lose seats only after conviction. Ministers would exit on mere detention. A convicted legislator could still be appointed until disqualified, but a detained minister must go.
Political incentives and operational pitfalls
- Advice versus automatic removal: New clauses under Articles 75, 164, and 239AA mix advice with automatic exit. A Prime Minister or Chief Minister may advise removal. If advice is withheld, automatic removal starts after 30 days. Shielding allies or targeting rivals becomes easier.
2. Revolving door instability: Reappointment is allowed after release. Leaders could resign, get bail, and return. These cycles may unsettle governance without real ethical gain. A Chief Minister could resign after 31 days, get bail, and be reinstated.
3. Chilling effects on talent and governance: Harsher rules for ministers than legislators may deter talent. Fear of exit on unproven claims may weaken continuity.
A calibrated, fair reform path
- Scale of criminalisation: A 2024 ADR and NEW study found 46% of MPs had declared criminal cases. The share was 43% in 2019 and 30% in 2009. The rise is sharp and steady.
2. Better legal triggers: Tie exit to judicial milestones, such as framing of charges by a competent court. That filter screens out flimsy or politically driven arrests. Accountability remains intact.
3. Institutional safeguards: Create an independent review body to verify conditions. Use interim suspension of ministerial functions during trials. Limit the rule to offences of moral turpitude and corruption.
4. Constitutional balance and next steps: Citizens want clean politics, but fairness matters. The Bill now sits with the JPC. It needs due process and checks. Without them, accountability can become exclusion. Due process matters.
Question for practice:
Examine the constitutional, political, and ethical challenges posed by the Constitution (One Hundred and Thirtieth Amendment) Bill, 2025.
