OPINION | Evaluating the 130th Amendment Bill: Legal perspectives

During a detailed interview with Moneycontrol, the three researchers elaborated on multiple aspects of the bill.

Some scholars argue that the Bill introduces a new ground for the disqualification of Cabinet Ministers. However, your Report concludes that it introduces cessation and not disqualification. Could you explain this distinction and its constitutional significance?

The Bill does not introduce a new ground for disqualification but a rule for cessation from ministerial office. The distinction is important. Disqualification is dealt with under Articles 102 and 191 of the Constitution and the Representation of the People Act, 1951. It applies to Members of Parliament and State Legislatures who can sit and vote in those Houses. A person who is disqualified loses their legislative seat and, in some cases, becomes ineligible to contest elections for a specified period.

The Bill, on the other hand, amends Articles 75, 164, and 239AA, which regulate the Council of Ministers at the Union, State, and NCT of Delhi levels. It provides that a Minister who is arrested and remains in custody for thirty consecutive days will temporarily cease to hold office. However, the person does not lose their seat and may be reappointed upon release.

In essence, disqualification affects a person’s membership of the House, while cessation affects their ability to be appointed as a Minister —a narrow but constitutional difference.

Was the idea of temporary cessation of ministerial office, on account of arrest or detention, ever envisaged by the framers of the Constitution?

The idea of temporary cessation of ministerial office on account of arrest or detention was not envisaged by the framers of the Constitution. The Constituent Assembly’s focus was limited to the qualifications and disqualifications of legislators, not Ministers, and it was clear that any disqualification would follow conviction, not mere accusation or arrest.

The Draft Memorandum prepared by B.N. Rau in 1947 proposed disqualification for conviction in offences involving imprisonment of two years or more. However, the Drafting Committee, led by Dr. B.R. Ambedkar, decided to omit this ground, retaining only structural disqualifications such as holding an office of profit, unsoundness of mind, or insolvency. Ambedkar explained that detailed disqualifications would unnecessarily burden the Constitution and should instead be determined by future legislation.

When Professor K.T. Shah proposed that convicted persons be barred from ministerial office, Ambedkar reasoned that such matters should be left to the judgment of the Prime Minister, the Legislature, and ultimately, the electorate.

Thus, while the framers emphasised personal integrity and moral character in public office, they consciously refrained from including provisions on ministerial disqualification within the Constitution. The 130th Amendment Bill therefore represents a departure from this original design.

How do other major democracies deal with the removal of Ministers facing criminal charges? Does the Bill align with global practice, or does it depart from it?

The Report examines seven jurisdictions — the United Kingdom, the United States, Germany, France, Australia, Canada, and South Korea — representing a range of constitutional systems. Across these models, a broad pattern emerges: removal of ministers is largely political, but anchored by legal safeguards.

In Westminster systems such as the UK, Canada, and Australia, ministers serve at the pleasure of the Prime Minister. They may be dismissed for loss of political confidence or breaches of ministerial codes, but automatic legal removal occurs only upon conviction for a serious criminal offence carrying a substantial sentence.

Civil law and hybrid systems, such as France and Germany, combine executive discretion with judicial oversight. In France, allegations of criminal misconduct in office are tried by a special court — the Cour de Justice de la République — ensuring impartial scrutiny.

Presidential systems such as the United States and South Korea employ impeachment procedures, where legislatures initiate removal and courts or senates adjudicate.

Across all systems, conviction — not arrest or detention — is the universal threshold. The 130th Amendment departs from this global norm by tying cessation to mere detention, without judicial finding of guilt.

One of the common arguments against the Bill is that it violates the principle of presumption of innocence. How does the Report address this concern?

The Report highlights that the Bill does not violate the principle of presumption of innocence. First, the principle operates primarily in the realm of criminal law to ensure that no person is punished or considered guilty without due process. However, it does not preclude temporary regulatory or administrative consequences flowing from arrest, provided these are directed at maintaining institutional integrity rather than determining guilt. Indian law already recognises this distinction. For instance, government servants, vigilance officers, and members of public service commissions are automatically suspended if detained beyond forty-eight hours—a rule consistently upheld by courts as a measure of propriety, not punishment.

Second, the Law Commission of India and the Supreme Court have both asserted that such provisions do not assess culpability but reflect a public resolve to ensure that those holding public office command confidence and integrity. For instance, the Supreme Court in its judgments in Public Interest Foundation (2013) and Manoj Narula (2014) respectively, observed that while the presumption of innocence governs criminal trials, it cannot be decisive in determining eligibility for ministerial office.

The Bill adopts this rationale. It does not declare a person guilty or permanently disqualify them; it merely provides for temporary cessation, allowing re-appointment upon release. This preserves both constitutional propriety and individual rights.

Your Report highlights that the thirty-day cessation rule is incongruent with criminal law timelines. Could you elaborate on why this inconsistency matters constitutionally?

The thirty-day cessation threshold prescribed by the Bill is incongruent with established criminal law timelines, particularly those under Section 187 of the Bharatiya Nagarik Suraksha Sanhita, 2023. Under the BNSS, an accused may be detained for up to 90 days in cases involving serious offences and 60 days for others before the right to default bail arises. In practice, custody extending well beyond thirty days is routine. Consequently, a Minister may cease to hold office long before the allegations are even tested or a charge-sheet is filed.

Although the law vests Magistrates with supervisory powers to authorise or refuse detention, the Supreme Court in Arnesh Kumar v. State of Bihar (2014) cautioned that these powers are “often exercised in a routine and casual manner.” The effect is prolonged detention due to procedural inertia rather than judicial scrutiny.

The concern is amplified under stringent statutes such as the Prevention of Money Laundering Act, 2002 (PMLA), where the law reverses the burden of proof and makes release on bail during investigation exceptionally difficult. In practice, prolonged detention under the PMLA is frequent, even as conviction rates remain low. If the thirty-day cessation rule were applied to such cases, Ministers would almost certainly lose office long before the allegations are tested in court. This would result in removal from the executive office on the basis of investigation alone, without any judicial finding of guilt—intensifying the risk of arbitrariness and undermining the safeguards central to the rule of law.

Does the Bill, in your view, violate the basic structure of the Constitution? If so, which principles of the basic structure are implicated?

The Report assesses the Bill against the features of the Constitution’s basic structure that are prima facie applicable, namely, parliamentary democracy; rule of law; federalism; and the equality code.

First, parliamentary democracy. The Bill has been critiqued for diluting the Prime Minister or Chief Minister’s discretion to appoint and retain Ministers. However, this discretion is not absolute. The Constitution already imposes multiple restrictions—such as the numerical limit on the size of the Council of Ministers (Articles 75(1A) and 164(1A)) and the rule under Articles 75(5) and 164(4) which stipulates that a Minister must be elected to the House within six months of appointment. Further, the Courts have also clarified that modifications to basic features are permissible, only abrogations are unconstitutional. The Bill merely introduces a temporary cessation mechanism during detention, without altering the structure of Cabinet government or collective responsibility. Hence, its effect on the parliamentary system is modificatory, not destructive, and therefore unlikely to amount to a violation of the basic structure.

Second, rule of law. The principle of the rule of law requires that all exercises of State power remain subject to law, oversight, and procedural safeguards. Under the Bill, cessation of ministerial office follows automatically once a Minister has been in custody for thirty consecutive days. This consequence is triggered entirely by the act of an investigative agency—what may be termed the non-political executive—without any meaningful judicial or legislative scrutiny. Unlike existing constitutional mechanisms such as Article 103, which require the President to act on the binding opinion of an independent body like the Election Commission, the Bill contains no comparable safeguard. The Prime Minister’s advice is rendered redundant by the automatic operation of law, and judicial oversight at the stage of remand remains limited in practice. The framework thus permits a significant constitutional consequence—the cessation of a Minister—without any intervening institutional check to ensure procedural fairness or balance.

Third, federalism. The Bill, by tying cessation of ministerial office to detention, introduces a mechanism that could, in certain contexts, be used in a manner that affects the functioning of opposition-led State governments. The absence of adequate judicial oversight makes it possible, though not inevitable, that executive agencies operating under the Union may influence political stability in the States through the arrest of key Ministers or Chief Ministers. It is, however, well settled that the mere potential for misuse is not a legal ground to strike down an amendment. Nevertheless, incorporating judicial thresholds and procedural safeguards would serve to minimise such risks and ensure that the federal balance envisaged by the Constitution remains intact.

Finally, what reforms or amendments does your Report recommend to make the Bill more constitutionally robust and less susceptible to misuse?

Over the past three decades, multiple expert bodies — including the Law Commission of India, the Election Commission, and the Second Administrative Reforms Commission — have recommended tightening standards of political probity by linking disqualification to clear judicial thresholds. The consensus emerging from these reports is that conviction alone is an inadequate safeguard, and that the stage of framing of charges provides a more balanced standard for temporary disqualification from public office.

Drawing from this reasoning, the Report recommends that cessation of ministerial office should attach at the stage of framing of charges, not arrest. Unlike arrest, which is an executive act, the framing of charges requires judicial scrutiny: the court must examine the material on record, hear arguments, and determine whether there is sufficient ground to proceed. This stage introduces an independent application of judicial mind and thereby embeds a system of checks and balances consistent with the rule of law. It also avoids the risk of arbitrary cessation based on routine or alleged politically motivated arrests while preserving the legitimacy of the Bill’s objective—maintaining integrity in governance.

The Report also endorses long-standing structural reforms proposed by the Law Commission and reinforced by the Supreme Court in Ashwini Kumar Upadhyay v. Union of India (2023), such as day-to-day trials of legislators, a one-year outer limit for completion, and periodic High Court monitoring. These mechanisms strengthen accountability without compromising constitutional safeguards.

Together, these recommendations aim to align the Bill with constitutional doctrine.