Opposition ire, numbers test and more: Rocky road ahead for Centre's ambitious Bill on 'tainted' ministers

The Bill introduced by Shah in Parliament on Wednesday proposes amendments to Articles 75, 164, and 239AA of the Constitution, which deal with the Union Council of Ministers, Council of Ministers in the states, and ministers in union territories, respectively.

The Statement of Objects and Reasons of the Bill says cites a need for a legal framework for the removal of a Minister arrested on serious criminal charges. Ministers facing such allegations “may thwart or hinder the canons of constitutional morality and principles of good governance”, which could “diminish the constitutional trust reposed by people”, it says.

The Bill also provides for the reinstatement of ministers following his or her release from custody. Crucially, the proposed law also brings the Prime Minister and Chief Ministers under its ambit.

The numerical test in Parliament

The passage of any constitutional amendment Bill requires a two-thirds majority in both Houses of Parliament before it goes to the President for assent. The two-thirds majority in the Lok Sabha, which currently has 542 members, stands at 361 as against the NDA's tally of 293. The NDA will require the support of a mainstream Opposition party like the Congress to get tyhe Bill passed in Lok Sabha, a development that appears unlikely.

The situation isn't much different in Rajya Sabha where the two-thirds mark stands at 160 in the 239-member House. The NDA, on the other hand, has only 132 votes, much lower than the target. The bottom line is that the Bill won't clear the Parliament without the Opposition's support.

Even if it the Bill manages to clear the Parliament, it will require the approval of at least half the states and Union Territories since it affects the federal structure of the country. Unlike the Parliament, this may not be a big challenge for the government since the NDA is in power in most states.

The legal framework and debate

Under the existing constitutional and legal framework, Section 8 of the Representation of the People Act, 1951, (RPA) bars legislators from contesting elections or continuing in office upon conviction for certain criminal offences, and being sentenced to imprisonment for at least two years.

The point to note here is that while the RPA sees conviction by a court as the yardstick for disqualification, the changes proposed by the government in the Bill seeks to change it to 30-day continuous detention for a serious offence for the Prime Minister, Cabinet Ministers, Chief Ministers and state ministers.

Since this change alters the existing scheme of the Constitution of India, which envisages the presumption of innocence for the accused, and puts the onus of proving the charges on the prosecution, the issue may also reach the Supreme Court.

The argument here is that the arrest and detention are only the preliminary step in a criminal investigation and removal from the post could raise a serious concern around due process.

What Law Commission said on disqualification?

The current government's proposal, however, isn't the first time that a view has emerged that the an MP/MLA/Minister facing allegations of corruption of serious offences be disqualified before the stage of conviction. The argument that the long wait for conviction defeats the purpose of disqualification has existed for several years with experts pointing out how only 27 sitting MPs and MLAs have been disqualified after being convicted for offences since 2013.

1999: The Law Commission of India, in its 170th report, proposed that the framing of a charge for offences punishable by up to five years’ imprisonment should be made an additional ground for disqualification, which should be for five years or until acquittal, whichever was earlier.

2004: This proposal was reiterated by the Election Commission of India, and by the Law Commission in its 244th report in 2014.

2014: The Law Commission’s 2014 report recommended that a legislator could be disqualified when charges were framed against them by a court, since this showed prima facie judicial satisfaction that there existed sufficient material against a person to put them to trial.

The report rejected suggestions that the filing of a chargesheet by police or of a court taking cognizance of an offence against a legislator were appropriate stages for disqualification. Disqualifying a person before the “application of judicial mind” would be “against the principles of natural justice”, and “would mean that a person is penalised without proceedings being initiated against him”, the Commission said in its report.

What Supreme Court has said on disqualification

The recommendations of the Law Commission report were discussed by a five-judge bench of the Supreme Court while considering a PIL filed by Public Interest Foundation seeking disqualification at the stage of framing of charges for serious offences.

While the court stated that it could not legislate or add new grounds for disqualification beyond what Parliament had provided, reiterating that making laws on disqualification rested solely in the Parliament's domain, it did observe that Parliament should enact a “strong law” making it mandatory for political parties to revoke the membership of those against whom charges have been framed for “heinous and grievous offences”, and to not give them tickets to contest elections.

In its 2014 judgment in Manoj Narula v Union of India, the Supreme Court said there is no bar against a person with criminal antecedents being appointed as minister. The court, however, suggested that the Prime Minister, as the “repository of constitutional trust”, should consider not choosing individuals with criminal antecedents, especially if charges have been framed for heinous or serious criminal offences or corruption, in his Cabinet.

The Supreme Court recently made some strong observations in the cases involving former Delhi Chief Minister Arvind Kejriwal and Tamil Nadu minister Senthil Balaji. Balaji was arrested by the Enforcement Directorate in 2023 in the alleged cash-for-jobs scam and remained in custody for 14 months. He was dropped as a minister after significant pressure from the Governor and the opposition.

In September 2024, the Supreme Court granted Balaji bail because the trial was likely to take several years. Within days of being released, Balaji was reinstated as a Cabinet Minister. The ED urged the SC to cancel his bail, arguing that from his position of authority, he might influence the case against him.

The SC observed that it had not taken into account his ministerial position, as he had resigned before his bail application was heard. Once he was reappointed after being released, the court said it was misled.

In April 2025, the court told Balaji to choose between “freedom or post”. Days later, Balaji stepped down, and the court allowed his bail to continue.

Similarly, Kejriwal was granted bail in the alleged liquor policy money laundering case, but the SC barred him from signing official documents, entering government offices, and interacting with witnesses and accessing files connected with the case.

The court, however, made it clear that it had no jurisdiction to compel an elected leader to step down; whether he should resign was left to Kejriwal’s discretion. Kejriwal continued on the post of Chief Minister despite his incarceration.

In September 2024, the court granted him regular bail, noting that prolonged incarceration without progress in the trial would be unjust. It refrained from issuing directions on his continuance in the office. Kejriwal voluntarily resigned soon after his release.