Centre’s new Bill for removal of 'tainted' netas: What sets it apart from current laws on criminals holding office?

Union Home Minister Amit Shah is set to introduce three bills on Wednesday in Parliament

Union Home Minister Amit Shah introduced three bills on Wednesday in Parliament to ensure the removal of elected representatives arrested or detained on serious criminal charges, from office.

Shah tabled the 130th Constitutional Amendment Bill, which will introduce Section 5A to Article 239Aa to address the issue of the removal of elected representatives.

"The Bills for removal of PM, ministers, CMs held on serious criminal charges, will be referred to the Joint Committee," said Shah while addressing the Lok Sabha.

The proposed law will cover the Prime Minister, Union ministers, Chief Ministers and ministers of Union Territories. This bill will be tabled to reportedly avoid a situation when Arvind Kejriwal continued to be the chief minister while in custody. The former Delhi Chief Minister had not resigned for nearly six months when he lodged in Tihar jail in the alleged Delhi liquor scam case.

Even Tamil Nadu’s Senthil Balaji continued in the council even after his arrest.

The Home Minister will also introduce the Union Territory Administration Amendment Bill 2025, and the Jammu and Kashmir Reorganisation Bill, 2025.

 What changes does the bill propose?

The bill seeks to amend Articles 75, 164 and 239AA of the Constitution.

According to a report by News18, the 130th Constitutional Amendment Bill states, “In Article 239AA of the Constitution, after clause (5), the following clause shall be inserted, namely:—5A…."in case of the Chief Minister, who for any period of thirty consecutive days during holding the office as such, is arrested and detained in custody, on allegation of committing an offence under any law for the time being in force, which is punishable with imprisonment for a term which may extend to five years or more, shall tender his resignation by the thirty-first day after such arrest and detention, and if he does not tender his resignation, he shall cease to be the Chief Minister, with effect from the day falling thereafter."

However, there is also a proposed amendment for PMs, CMs, or ministers to return to their posts if released from custody.  “Nothing in this clause shall prevent such Chief Minister or Minister (or Prime Minister) from being subsequently appointed as the Chief Minister or a Minister, by the President, on his release from custody, as per clause (5)," stated the proposed amendment as quoted by News18.

The same provisions will apply in case of a state or UT CM. Even the ministers in the Council of States at Centre and in states/UTs will be bound by the same provisions.

What does current law say?

According to the provisions of the Code of Criminal Procedure 1973 (CrPC), a law enforcement agency can arrest any person against whom an arrest warrant has been issued by the court.

As per the existing law, an elected representative can be removed only if he or she is convicted.

Members of both the Houses of Parliament enjoy some immunity from arrests in certain cases. Under Section 135 of the Civil Procedural Code, they have protection from being arrested up to 40 days before, 40 days after, and during the period when the Parliament is in session. With three parliamentary sessions being around 70 days each, the immunity against arrest extends to nearly 300 days in a single year.

However, the protection only extends to civil cases. In matters of criminal nature or arrests on preventive grounds, there is no protection afforded to any member of the Rajya Sabha or Lok Sabha.

The only protection from arrests afforded to a governmental figure through the Constitution is the President, who is immune from civil and criminal proceedings until their term is over. Even the Prime Minister can be arrested if a criminal matter is registered against them.

In its 2013 judgement, the Supreme Court had struck down sub-section 4 of Section 8 of Representation of the People Act, under which incumbent MPs, MLAs and MLCs could avoid disqualification till pendency of the appeal against their conviction in a higher court.

The Manmohan Singh government then brought in an ordinance to provide relief to its ally RJD’s chief Lalu Prasad. However, in September 2013, Congress leader Rahul Gandhi publicly called the ordinance a “complete nonsense” that should be torn and thrown out. His public criticism of the ordinance made the government withdraw it.

 What does Congress say?

Congress leader Abhishek Manu Singhvi voiced the fears in a social media post.

“What a vicious circle! No guidelines for arrest followed! Arrests of opposition leaders are rampant and disproportionate. New proposed law removes incumbent #CM etc immly on arrest. Best way to destabilise opposition is to unleash biased central agencies to arrest oppo CMs and despite being unable to defeat them electorally, remove them by arbitrary arrests!! And no ruling party incumbent CM ever touched,” said Singhvi in a post on X.