Context

• The Constitution (One Hundred and Thirtieth Amendment) Bill marks a pivotal step in India’s effort to strengthen constitutional morality and political accountability.
• The Bill seeks to amend Articles 75, 164, and 239AA to mandate the removal of Ministers, including the Prime Minister and Chief Ministers, if they remain in custody for thirty consecutive days for an offence punishable with five years or more of imprisonment.
• While the proposal aims to uphold the integrity of public office, it has provoked widespread debate.

The Provisions of the Bill

• Under the Bill, a Minister’s arrest and detention for thirty consecutive days would compel the President or Governor to remove them from office on the advice of the Prime Minister or Chief Minister.
• If the Prime Minister or Chief Minister themselves are detained, they must resign or automatically cease to hold office.
• The measure seeks to prevent accused Ministers from retaining power, thus reinforcing public trust in governance.
• Yet, its reliance on arrest and custody duration as criteria for disqualification raises serious constitutional and procedural concerns, given the potential for abuse of discretionary powers by enforcement agencies.

The Discretionary Power of Arrest

• The power to arrest, under Section 41 of the Code of Criminal Procedure (CrPC) and its counterpart Section 35 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), is discretionary, not mandatory.
• Courts have consistently reaffirmed this position:
  • In Joginder Kumar v. State of U.P. (1994), the Supreme Court held that no arrest should be made merely because it is lawful; it must be necessary and justified.
  • In Deenan v. Jayalalitha (1989) and Amarawati and Anr. v. State of U.P. (2004), courts clarified that the term may arrest empowers but does not oblige the police to arrest, depending on the nature and context of the offence.

The Contentious Provisions:  Detention, Bail, and the Problem of Thirty Days

• The Bail Dilemma
  • The requirement that a Minister detained for thirty consecutive days must vacate office links political tenure to judicial timelines.
  • Though the Supreme Court has repeatedly held that bail is the rule, jail is the exception, in practice, bail decisions are influenced by factors like the gravity of the offence and the judge’s stance on liberty under Article 21.
  • This means a Minister could lose office before any judicial determination of guilt, contradicting the presumption of innocence. The thirty-day threshold therefore risks turning temporary detention into permanent political damage.
• Default Bail and Procedural Inconsistency
  • The amendment also ignores default bail under Section 167(2) CrPC (or Section 187 BNSS), which grants bail if the investigation is not completed within 60 or 90 days.
  • Since the thirty-day limit falls well within this period, a Minister might be removed from office before acquiring the right to bail, rendering the provision procedurally inconsistent and arbitrary.
• Special Statutes and Twin Conditions of Bail
  • The Bill’s scope covers offences under any law in force, extending to stringent statutes such as the PMLA (Prevention of Money Laundering Act), NDPS Act, and UAPA (Unlawful Activities (Prevention) Act).
  • These impose twin conditions for bail, the accused must prove they are not guilty and unlikely to reoffend.
  • Such provisions reverse the burden of proof, making bail within thirty days nearly impossible.
  • The Manish Sisodia case, where bail was granted only after 17 months under the PMLA, exemplifies this difficulty.
  • Consequently, the thirty-day benchmark could cause premature disqualification even before due judicial process concludes.

Political Implications and the Risk of Misuse

• Arrest as a Political Tool
  • By linking ministerial survival to arrest and custody, the Bill risks converting the criminal process into a political instrument.
  • In a context where investigative agencies are often accused of bias, such provisions may facilitate targeted arrests against political rivals.
  • This undermines the principle of separation of powers and constitutional morality, replacing accountability with political expediency.
  • What is designed to enhance integrity could instead erode democratic fairness.
• The Minister’s Dilemma
  • The Bill also places Ministers in a Hobson’s choice:
    • Either resign to secure bail, thereby surrendering office pre-emptively, or
    • Stay in custody and face automatic removal.
  • This dilemma creates administrative instability and penalises mere accusation, rather than proven guilt.
  • It risks reducing executive authority to the outcome of legal tactics, not democratic mandate.

Conclusion

• The Constitution (One Hundred and Thirtieth Amendment) Bill reflects a well-meaning yet flawed attempt to promote ethical governance.
• Ultimately, true ministerial accountability cannot depend solely on legal triggers. It must arise from political ethics, transparent governance, and a citizenry committed to democratic values.
• The Bill, in its current form, risks conflating political morality with punitive legality, thereby unsettling the delicate equilibrium between justice and politics in India’s constitutional framework.