130th CONSTITUTIONAL AMENDMENT BILL: PROVISIONS, SIGNIFICANCE, CONCERN, WAY FORWARD

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Picture Courtesy:  THE HINDU

Context

The proposed Constitution (130th Amendment) Bill aims to address political corruption by removing jailed ministers, however concern raised over its broad scope.

Background of the Bill

Constitutional gap: Under current law, no provision automatically removes a minister upon arrest.  Articles 75 (Union Ministers), 164 (State Ministers) and 239AA (Delhi) govern appointment and tenure. They require ministers (including PM/CM) to be MPs/MLAs within six months, and say they hold office “during the pleasure” of the President/Governor.  

• There is no clause about arrest or detention. Elected officials are disqualified only after conviction: Section 8 of the Representation of People Act 1951 bars MPs/MLAs sentenced 2+ years to imprisonment. Until conviction, the law respects the presumption of innocence under Article 21.
• This left a vacuum when elected executives (PM/CM/ministers) faced lengthy custody without bail.

Kejriwal & other cases: The issue surfaced when Delhi CM Arvind Kejriwal spent 5+ months in ED custody (liquor policy case) in 2024. The Supreme Court granted him bail but barred him from official duties; he later resigned.

• Tamil Nadu Minister V Senthil Balaji (arrested in a money-laundering case) was directed by the SC to choose “freedom or office”; he resigned after bail.
• These cases exposed the “loophole” that a leader could run government from jail unless convicted.

Criminalisation of politics: Corruption and crime among politicians have long been concerns.

• An ADR report (2025) finds 45% of state legislators (MLAs) face criminal charges, with 29% facing serious offences (murder, rape, kidnapping, etc.).
• Over 46% of MPs have pending cases, with 43% have criminal cases against them.
• Until now, system assumed “innocent until proven guilty,” so ministers under trial could retain office. The 130th Bill aims to change this.

Provisions of the Amendment Bill

Proposed Amendment: The Bill inserts new clauses into three Articles.

• In Article 75 (Union Council of Ministers), a new clause 5A is added; Article 164 (State Council of Ministers) gets clause 4A; and Article 239AA (Delhi Council of Ministers) gets clause 5A.
• These empower the President/Governor to remove ministers under defined conditions.

Mechanism: Any PM, CM, or Union/State minister arrested for a “serious” crime (defined as offences punishable by ≥5 years’ jail) and held in custody for 30 consecutive days will lose office.  

• By the 31st day, the PM (for Union ministers) or CM (for State ministers) must advise removal; if not, the minister “ceases to hold office” automatically on that day.  
• For example, if a minister under PMLA stays in pre-trial custody for 30 days, they will be dismissed on day 31.

Removal procedures: For Union ministers (including PM), the President removes the minister on the PM’s advice by day 31 of custody. For a detained Prime Minister, he must resign by the 31st day or else his office automatically falls vacant.  

• At the State level, the Governor removes a detained state minister on the CM’s advice by day 31; the detained Chief Minister must resign by that time or is deemed to have vacated office.
• In Delhi, the President acts on the CM’s advice under Article 239AA.

Re-appointment: The Bill allows a removed minister to return after release. If bail is secured within 30 days, no action is taken. If removal happens, the person may be re-appointed once out of custody.

Government Justifications: The Statement of Objects and Reasons of the Bill emphasizes “constitutional morality and good governance.”

• Ministers must be “beyond suspicion” and maintain the “constitutional trust reposed by the people”.
• Aim to ensure that officials accused of grave crimes cannot continue to wield power from jail.  
• Applying equally to all (including ruling party leaders) to uphold “constitutional morality”.

Parliamentary procedure: Constitutional amendment requires a special majority (two-thirds of members present and voting). Both Houses send the Bill to a Joint Parliamentary Committee (JPC) for detailed scrutiny. The JPC (with members from all parties) will examine it.

Complementary legislation: To extend the reform uniformly, the government introduced two sister bills.  

• The Government of Union Territories (Amendment) Bill, 2025 and the Jammu & Kashmir Reorganisation (Amendment) Bill, 2025 apply the same removal rules to UTs (like Puducherry) and J&K respectively.  

Challenges and Criticisms

Against Parliamentary procedure: Critics note the act of introducing it last-minute – bypassing normal notice rules – was seen as undemocratic.

Constitutional & legal issues: Critics argue it undermines the presumption of innocence by removing someone before any conviction.

• It also blurs separation of powers: the executive (President/Governor) acting on a PM/CM’s advice punishes suspects without trial.
• Constitutional experts raise concern that it could invite legal challenges.

Conflict with the Doctrine of Pleasure: The bill modifies the "doctrine of pleasure," by creating a provision for automatic removal, it introduces a statutory limitation on this doctrine, shifting power from a political decision to a condition based on the actions of law enforcement agencies.

Practical implementation issues: Ambiguities remain. What exactly qualifies as a “serious offence” (≥5-year punishment)? Some financial crimes or POCSO offences carry 5-year terms but vary widely in gravity.  

• Bail proceedings vary, for example under PMLA, section 45 denies bail, leading long term custody, directly triggering removal. However, in many serious offence person get bail easily within 30 days. For example, Beeda Madhuri (2024 Hit-and-Run Case).
• If many ministers are detained simultaneously (e.g. after major raids), governments could be destabilized. Rapid judicial oversight or fast-track hearings would be needed to prevent blanket removals.

Democratic process concerns: Concern raised that by forcing resignations mid-term, the voters’ choice (especially when a CM is removed) is indirectly toppled.

• It pressures parties to expel detained leaders without a verdict.
• Critics argue that solving political criminality through political means could erode democratic norms.
• In most established democracies, disqualification is linked to conviction for serious crimes, not pre-trial detention. 

Way Forward

Tightening definitions: Bill defines “serious offences (≥5 years)” and detention (30 days) to limit scope. Lawmakers must ensure clarity to prevent loopholes or overreach.

Judicial safeguards: The amendment could be refined to trigger removal not upon arrest, but only after a court has framed charges against the minister. This would introduce a layer of judicial scrutiny, aligning with the recommendations of the 170th and 244th Law Commission Reports."

Strengthening the Role of the Governor/President: Current proposal makes the removal automatic or based on prime ministerial/chief ministerial advice.

• An alternative could be to grant the Governor/President a carefully circumscribed discretionary power, to be exercised in the "rarest of rare" cases, based on the gravity of the charges.

Electoral Reforms as the Root Solution: While this bill is a potential cure, preventing the entry of candidates with criminal backgrounds through electoral reforms is the more sustainable, long-term solution.  

Political accountability: Parties should screen candidates more strictly; disfavor those under serious investigation.

• Transparency measures – like routine disclosures of criminal cases by ministers – and binding codes of conduct could deter wrongdoing.
• Parliamentary ethics committees might be empowered to supervise ministers’ conduct and recommend action in egregious cases.

Bipartisan dialogue: Given federal concerns, the Joint Parliamentary Committee (JPC) studying the bill should consider states’ views. Constructive debate may yield provisions to limit political use.

Sunset or review clauses: The new rules could be revisited after a trial period to assess impact. For example, if courts find many wrongful disqualifications, Parliament could refine the law.  

Police and Investigative Reforms: The core issue is the lengthy pre-trial detention, which need a broader criminal justice reforms, such as those recommended by the Malimath Committee, to ensure speedier trials. If trials are completed in a time-bound manner, the need for such a bill would be diminished.

Conclusion

The amendment bill aim – cleaner, more ethical leadership – has wide appeal, but its design must guard against collateral damage to the rule of law and federal balance. Close parliamentary scrutiny, possible judicial review, and complementary reforms in the criminal justice system (e.g. faster trials, stronger anti-corruption enforcement) will be key to making this amendment effective and fair. 

Source: THE HINDU