130th Amendment may make India first democracy with automatic ouster of PM, CMs: How other countries handle it

The Bill amends Articles 75, 164, and 239AA of the Constitution.

Article 75 governs the appointment and tenure of the Prime Minister and Union Ministers, including holding office at the pleasure of the President, and collective responsibility to the Lok Sabha. Article 164 applies similar provisions to Chief Ministers and State Councils of Ministers while Article 239AA covers governance in Delhi.

The amendment proposes new sub-clauses – 75(5A), 164(4A) and 239AA(4A) – mandating automatic secession of office on the 31st day of detention for offences punishable by 5 years or more.

Also to be noted, the Bill says that a minister or the Prime Minister removed or resigned because of an arrest for 30 days would be eligible for reappointment to their position by the president after their release from custody.

Law on disqualification of MPs, MLAs

Currently, the Constitution does not bar a prime minister, chief minister, or minister from holding office while in jail. Disqualification of Members of Parliament (MPs) and Legislative Assembly members is governed by Articles 102 and 191, and implemented through the Representation of the People Act, 1951. Conviction for certain offences results in disqualification if the sentence is two years or more, while mere arrest or ongoing investigation does not affect office-holding. There provisions for disqualification for defection under Tenth Schedule and Anti-Defection Law.

Why the Bill?

In his statement to Lok Sabha members, Home Minister Shah said that elected representatives must embody public trust and constitutional morality. Shah said their conduct should be above suspicion, and political interests must be set aside in favour of public welfare.

Talking specifically about former Delhi Chief Minister Arvind Kerjriwal, Shah defended the Bill saying if Kejriwal had resigned while he was in jail, the situation of bringing such an amendment would not have arisen.

The former Delhi CM had refused to resign from office despite being in jail for over five months in connection with the Delhi excise policy case. The Supreme Court had put a restrain on him from visiting the secretariat, while granting him interim bail to Kejriwal. In the Delhi High Court, a petition seeking his removal from the post was rejected with the High Court saying there was no legal provision for such interference by the court, adding it was supposed to be a voluntary act.

Shah said that in the past 75 years, many Chief Ministers and Ministers have gone to jail, and all of them resigned, however, for the first time in Delhi, a chief minister was running a government while in jail. "Hence, the question arises—should the Constitution be amended or not?" Shah said at the Manorama News Conclave in Kochi.

How do other democracies function on this aspect?

In most established democracies, leaders are not automatically removed from office upon arrest since the principle of 'innocent until proven guilty' is the norm. However, the removal of the top officials is done through political and legislative mechanisms such as impeachment, vote of no confidence, or political pressure, as is also the case with India. Such mechanisms require political will and reaching a certain degree of consensus (usually two-thirds majority) of the members of the legislative bodies.

The present Bill seeks to set a timeline for removal from post upon arrest and the process to be limited to the PM, the Governor, and the President.

In the U.S., the President and federal officials can only be removed through impeachment, which requires a House vote to impeach and a two-thirds Senate vote to convict. Arrest or detention does not trigger removal. Cabinet members, while not enjoying presidential immunity, typically resign voluntarily or at the President’s discretion.
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In the U.K., ministers serve at the pleasure of the Crown or Prime Minister. Criminal charges do not automatically remove officials, and resignation is largely driven by public opinion, party pressure, or parliamentary convention. The PM can be removed through political means. The most common method is a vote of no confidence in Parliament. If the House of Commons passes a vote of no confidence, they lose the support and resign.

In France, the Prime Minister and ministers can face legal proceedings, but removal is conventionally achieved through resignation or dismissal by the President, with investigation triggering immediate cessation of office. The National Assembly (lower House of Parliament) can force the PM to resign following a vote of no confidence. The French Constitution hasa  provision for the impeachment of the President.

In Israel, Basic Laws allow the Prime Minister or ministers to remain in office while under investigation. Removal occurs through resignation, parliamentary votes of no confidence, or post-conviction disqualification, and of ministers -- dismissal by the PM. Former Prime Minister Ehud Olmert resigned amid corruption allegations, while Benjamin Netanyahu has remained in office during ongoing trials, showing that indictment or investigation alone does not trigger removal.

Due to a legal precedent, Netanyahu relinquished ministerial portfolios facing criminal charges, except the prime ministership, which can only be done in case of conviction. Israeli cabinet ministers facing criminal indictment are required to resign from their cabinet posts, though no such explicit order is outlined in Israeli law for prime ministers, according to The Times of Israel.

In South Korea, the Constitution allows impeachment of the President, Prime Minister, or ministers for violating the Constitution or laws, with the National Assembly initiating proceedings and the Constitutional Court deciding removal.

Meanwhile, Brazil allows presidential suspension during trail; however, permanent removal requires a two-thirds vote in Congress. Germany and Hungary rely on formal legislative or judicial procedures, with arrest alone not resulting in cessation of office. In Sweden, removal typically of ministers occurs through votes of no confidence or dismissal by the Prime Minister, with criminal investigations for ministers or PM requiring authorisation of Constitutional Committee in the Riksdag, its Parliament. The PM can be removed by vote of no confidence and for ministers, similar votes can force resignations.