The New Constitution Bill and the Need for a Balancing Act

Introduction

·       Indian voters consistently express the expectation that their elected representatives uphold high standards of moral and ethical integrity. However, this ideal stands in stark contrast to the enduring presence of political leaders with serious criminal charges occupying positions of executive authority. Seeking to resolve this long-standing contradiction, the Constitution (One Hundred and Thirtieth Amendment) Bill, 2025 was introduced in the Lok Sabha on August 20, 2025. The Bill proposes that Union Ministers, Chief Ministers, and even the Prime Minister must resign—or face automatic removal—if they remain in judicial custody for more than thirty consecutive days in connection with an offence carrying a potential punishment of five years or more.

·       While the Bill appears to advance the cause of political accountability, it also raises significant constitutional and political concerns. These include potential violations of legal principles such as the presumption of innocence, and the risk of increasing political manipulation. Thus, although motivated by legitimate concerns, the Bill’s approach may complicate rather than resolve the challenge it seeks to address.

Constitutional Foundations of the Bill

·       The legal grounding of the Bill rests on Articles 75, 164, and 239AA of the Indian Constitution, which govern the appointment and tenure of Ministers at the Union, State, and Delhi levels. These provisions have undergone extensive judicial scrutiny. In Shamsher Singh v. State of Punjab and Nabam Rebia v. Deputy Speaker, the courts clarified the scope of executive authority. In S.R. Bommai v. Union of India, the Supreme Court emphasised that constitutional morality is fundamental for sustaining democratic governance. Most significantly, in Manoj Narula v. Union of India, the Court observed that persons facing serious criminal charges should ideally be kept out of executive office, although it stopped short of mandating disqualification.

·       Drawing upon this jurisprudence, the 2025 Bill seeks to convert judicial suggestions into statutory obligation, thereby legislating ethical expectations into a binding framework. It represents an attempt to reconcile public morality with constitutional governance.

Constitutional and Political Pitfalls

1. Undermining the Presumption of Innocence: A major concern is that the Bill erodes the presumption of innocence—an essential element of Article 21’s guarantee of life and personal liberty. The proposal mandates removal not upon conviction, but merely upon prolonged detention. This diverges sharply from established jurisprudence. In Lily Thomas v. Union of India, the Supreme Court upheld the disqualification of legislators only after conviction, not upon arrest or detention. The Bill, by contrast, imposes a stricter standard on Ministers, thereby creating a constitutional asymmetry that penalises individuals before their guilt is proven.
2. Over-Reliance on Executive Discretion: The dual mechanism proposed in the Bill—removal either through executive advice or automatically after thirty days in custody—heightens the risk of politicisation. In practice, this structure offers ruling parties an opportunity to selectively apply the law. Political allies may be protected through delayed advice, while rivals may be subjected to the automatic provision. Far from insulating governance from political calculations, the Bill may entrench partisan manoeuvring under the guise of accountability.

Inconsistencies and Practical Dilemmas

·       The Bill’s approach also creates inconsistencies between legislators and Ministers. Legislators remain unaffected unless convicted, but Ministers may lose office based on pre-trial detention alone. While one might argue that executive office demands a higher standard, this uneven treatment risks disincentivising competent lawmakers from assuming ministerial responsibilities.

·       Moreover, the provision allowing reappointment once custody ends could destabilise governance. The potential for frequent resignations and reinstatements—particularly in cases where detention is short-lived or politically motivated—could create a revolving-door scenario, with adverse consequences for administrative continuity and institutional stability.

·       Additionally, the possibility of legal processes being misused for political ends cannot be ruled out. Weaponising arrests to engineer resignations could become a new tactic in electoral competition, undermining the very legitimacy the Bill seeks to uphold.

The Case for a More Nuanced Approach

·       Despite these pitfalls, the need for reform is undeniable. The Association for Democratic Reforms reports that nearly 46% of Members of Parliament elected in 2024 faced criminal charges—an alarming statistic that underscores the deep entrenchment of criminal elements in Indian politics. But while the moral imperative is strong, the Bill’s approach risks doing more harm than good by sacrificing due process in pursuit of ethical governance.

·       A more calibrated solution is needed—one that upholds both constitutional principles and democratic accountability. Removal from ministerial office could be tied to judicial thresholds such as the framing of charges, which ensures a basic level of court scrutiny before sanctions are applied. This would protect individuals from politically motivated arrests while maintaining the integrity of public office.

·       Oversight mechanisms should also be revised. Instead of relying solely on executive discretion, an independent judicial or quasi-judicial panel could evaluate cases of prolonged custody and recommend appropriate action. This would ensure procedural fairness and insulate decisions from political bias.

·       Further, instead of immediate removal, the law could provide for interim suspension from ministerial duties while legal proceedings are underway. Such a provision would preserve administrative functionality while respecting public concerns about criminality in high office.

·       Finally, the Bill’s scope should be narrowed to include only serious offences—such as those involving corruption or moral turpitude. This avoids penalising Ministers for politically motivated or relatively minor charges that do not reflect on their fitness for public office.

Conclusion

·       The Constitution (One Hundred and Thirtieth Amendment) Bill, 2025 represents a bold and timely attempt to address the moral deficit in Indian politics. Its intention—to promote integrity among those in positions of executive authority—is laudable and resonates with the public’s longstanding frustration with the criminalisation of politics. However, the Bill’s current form risks undermining constitutional safeguards, politicising the process of accountability, and destabilising governance.

·       To be effective, the legislation must strike a careful balance between ethical imperatives and the rule of law. Without due process protections, independent oversight, and clear thresholds, the Bill may fail to achieve its goals while creating new risks. It now falls upon the Joint Parliamentary Committee to revise and refine the proposal, ensuring that the final legislation delivers genuine reform without compromising constitutional values or democratic stability.