Written by: Yashovardhan Jha Azad, Rishav Ranjan
5 min readSep 10, 2025 11:31 AM IST
First published on: Sep 10, 2025 at 07:26 AM IST
There are many issues the authors of the Indian Constitution did not deliberate upon for the simple reason that they could never conceive of situations where bills would lie in the President’s or Governors’ offices without reason, or jailed chief ministers or prime ministers would run governments from prison. Those early decades saw Lal Bahadur Shastri resign over a railway accident, taking moral responsibility, and there was no question of a minister remaining in his post after being arrested.
As a former police officer, I consider the prospect of arresting a sitting chief minister daunting. There are sanction requirements under the Prevention of Corruption Act, prior approval under the Code of Criminal Procedure, and legislative privilege if a session is in progress. These are not shields of deference, but checks rooted in the spirit of the Constitution — an arrest of a person carrying the people’s mandate must never be casual. The Constitution (One Hundred and Thirtieth Amendment) Bill, 2025 raises concerns at three levels: It unsettles the Constitution’s basic structure, it ignores judicial precedents, and it weakens the collegial sanctity of the council of ministers.
The Bill provides that a Prime Minister, Chief Minister or minister who remains in custody for 30 consecutive days on charges carrying a punishment of five years or more, must be removed. The President or Governor is bound to act on the advice of the head of government, and if no advice is given, the office falls vacant automatically. Reappointment is technically allowed once custody ends.
Legislators are disqualified under the Representation of the People Act, but only after conviction. The Bill lowers that threshold to pre-trial detention. As observed with several Prevention of Money Laundering Act cases, bail is constrained by the notorious twin test under Section 45. Custody is then extended by repeated supplementary prosecution complaints filed by the Enforcement Directorate, which delays the trial indefinitely. A 30-day custody trigger is no marker of guilt, but only an example of how long investigations take and the state’s power to prolong detention.
The critical issue is the difficulty of getting relief or bail. In A K Gopalan (1950), the Supreme Court upheld the Preventive Detention Act without assessing the fairness of the law and implied favouring state power over individual liberty. This was rightly reversed in Maneka Gandhi (1978), where Article 22 was given a liberal interpretation — any act curbing life and liberty has to pass the test of fundamental rights under Articles 14 and 19. Yet, remedies to approach the Supreme Court or high courts may take longer than the 30-day deadline in the Bill. There is no remedy for a people’s mandate once dishonoured. Reappointment cannot restore the dignity damaged in public perception.
The Bill centralises power since only the PM or CM may advise removal. The collegial sanctity of the council of ministers is reduced to the discretion of one. The concern is not technical; it is constitutional. Concentration of such authority undermines the balance the framers envisaged.
A judicial review of the President’s or the Governor’s order for the removal of ministers is available. In S R Bommai (1994), SC held that while the advice of the PM to the President or CM to the Governor cannot be examined, the factual basis of action taken can be tested. Courts may therefore look at whether the 30-day custody condition was lawfully met. But that is little consolation. By the time courts decide, the elected leader is already removed and the people’s choice set aside.
In A R Antulay (1988), the Court struck down procedural shortcuts that bypassed the rights of an accused under Article 21. Removal on the basis of custody alone, without judicially tested thresholds such as framing of charges or conviction, is a constitutional shortcut.
The Bill thus weakens the basic structure of the Constitution. It shifts the decisive power from Parliament and courts to the unelected executive. This erodes parliamentary democracy and the rule of law and affects a dilution of judicial review, all of which the SC has protected as part of the Basic Structure.
The Joint Parliamentary Committee must now decide. If accountability is the goal, the remedy should be tied to judicial precedents, not to the power of an investigative agency. Without such safeguards, the amendment risks making equality before law a mask for executive overreach.
There is a dilemma before the nation. The Bill prima facie satisfies the concern that those in jail cannot be allowed to govern. After all, government officers under judicial or police custody for more than 48 hours face suspension. So should the Bill be scrapped only because of the dangers of misuse? The biggest charge against the CBI and ED is that they are active against Opposition politicians, sparing those from the ruling party. If cases are mounted against the Opposition, and with bail conditions being stringent, it’s quite possible that the threshold of 30 days will be crossed in most cases. But this Bill fails on both counts — not only is it liable to be misused given the precedent, but it is also bad in law. As the largest democracy, we cannot afford to have such an enactment.
Azad, former IPS officer, served as Central Information Commissioner, Secretary Security, GOI and Special Director, Intelligence Bureau. Ranjan is an advocate at the Supreme Court
The Bill provides that a Prime Minister, Chief Minister or minister who remains in custody for 30 consecutive days on charges carrying a punishment of five years or more, must be removed. 
Share
