Some laws deliver justice with quiet efficiency, while others do so with a flourish that suggests the spectacle is as much the goal as the outcome. The Constitution (130th Amendment) Bill, 2025, proposing changes to Articles 75, 164, and 239AA, firmly belongs to this more theatrical category. It seeks to automatically disqualify elected leaders, including the Prime Minister and Chief Ministers, from office, if detained for more than 30 days on allegations of serious criminal charges, that is, offences punishable with imprisonment of five years or more. When the Bill was tabled recently, it sparked a serious debate in Parliament. Opposition parties vehemently opposed it, and even allies of the ruling party expressed grave concerns. While the ruling BJP insists that the Bill promotes constitutional morality by barring detained leaders, critics argue it undermines the electorate's mandate. These concerns are amplified by widespread perceptions of partisan misuse of institutions such as the Enforcement Directorate, whose lack of accountability and judicially noted excesses have raised serious doubts about their impartiality and credibility.
Detention, Disqualification, And The Impending Arbitrariness
To put it rather simplistically, the Bill is an exercise of jurisprudential distortion. One that collapses procedure into punishment. Detention, in ordinary legal thought, is neither verdict nor proof. It is merely a precautionary measure, sometimes necessary, most often inconvenient, but never a substitute for adjudication. The presumption of innocence stands as the first bulwark, ensuring that liberty is not sacrificed at the altar of expediency. And yet, the Bill turns this jurisprudence on its head: the longer one is detained, the closer one is to disqualification, even if no charge is proved, no trial conducted, and no evidence tested - placing the pre-trial determination of guilt in the hands of those who have no business doing this. While the makers of the Bill have repeatedly assured that the Ministers so disqualified may be re-appointed, but the fact remains that the damage would have been inflicted by then.
Twin Test For Arbitrariness
Under the law as it stands, mere detention does not unseat a legislator; only a conviction may strip them of their rightful seat. The Bill, however, demands a higher standard for Ministers: an individual may sail through serious criminal proceedings as an MLA or MP, yet the moment they accept executive office, the very same proceedings can strip them of their position. And to what avail? A wholly arbitrary thirty-day threshold, divorced from the realities of investigation, bail, or judicial scrutiny, as if the passage of days alone could establish guilt. By any reasonable standard, the thirty-day detention threshold fails the twin test for arbitrariness as penned down by the Supreme Court in E.P. Royappa v. State of Tamil Nadu (1974). It lacks any rational connection to the ostensible goal of constitutional morality, and it imposes a selectively harsher burden on Ministers alone. One need not even mention the inevitable burden it places upon the already overburdened legal institutions, whose patience and credulity will be tested, one ruling government at a time.
In effect, the Bill creates a special class of litigants, consisting of our elected Ministers, whose detention, if more than thirty days, will automatically trigger disqualification - inevitably guaranteeing that such cases will be treated as matters of extraordinary urgency. The courts and their might, already under the weight of a backlog, will be compelled, by the mere existence of this law, to prioritise these proceedings, often at the expense of ordinary citizens - institutionalising a hierarchy of citizens, monopolising judicial attention - all in the service of performance of morality.
Guilty Until Proven Innocent
Even before the Bill is enacted, history offers cautionary tales of ministers and leaders who have long faced arrest under allegations widely perceived as politically motivated, suffering reputational injury long before any guilt was adjudicated. The 130th Amendment would only codify such logic. And when the agency wielding this power is the Enforcement Directorate, whose methods have been questioned, and at times censured, by the Supreme Court, the Bill threatens to become a sword, not a shield.
The Supreme Court has repeatedly had occasion to rebuke the Enforcement Directorate for conduct that strains both law and reason. To recount a few - the Hon'ble Chief Justice, in May , while reviewing the raids conducted on the Tamil Nadu State Marketing Corporation, sharply criticised the Enforcement Directorate for “crossing all limits” and trampling the federal fabric. Again in August 2025, a bench led by Hon'ble Justice Surya Kant condemned the Enforcement Directorate for acting “like crooks” while hearing review petitions against the 2022 Vijay Madanlal Choudhary judgment.
It is pertinent to note that over the past decade, the Enforcement Directorate has filed 193 cases against politicians, yet only two have resulted in conviction - a paltry 1% conviction rate, as admitted to the Rajya Sabha in March this year. More troubling still, almost all these cases have targeted the Opposition. This is the inevitable fruit of the Prevention of Money Laundering Act, 2002 (PMLA), the lodestar of the Enforcement Directorate, which places the onus on the accused to prove innocence. This inversion of burden seems to find a cruel twin in the 130th Amendment.
The Dangers Of An Automated Disqualification
While the intent to uphold constitutional morality is laudable, the Bill's failure to incorporate adequate checks and balances renders it dangerously simplistic. The basic structure doctrine, as crystallised in Kesavananda Bharati v. State of Kerala (1973), holds that certain principles such as judicial review, separation of powers, federalism, democracy, and the rule of law are inviolable, ones that cannot be abrogated even by constitutional amendment.
The Bill's proposal to disqualify elected leaders purely on the basis of detention, without conviction or accountability mechanisms, strikes at the heart of these principles. Arrest, followed by an opportunity to seek bail within a reasonable period, is a process rooted in judicial prudence. It reflects a delicate balance: restrain potential wrongdoing without pre-emptively destroying a political career. The Bill, however, paints with such a broad brush that any and all nuance is lost, and safeguards evaporate. The impeachment process and legislative accountability are intrinsic to parliamentary democracy. A Chief Minister can be removed only through a vote of no confidence, not by procedural fiat. By subrogating these constitutional safeguards with an automated disqualification mechanism, the Bill weakens collective responsibility and undermines the deliberative character of the legislature. The decision of whether a public representative should continue in office is entrusted not to the courts alone, but to the legislature, because it's the legislature that expresses the will of the people. By allowing the Governor, an appointee, to dismiss the elected Chief Minister, the bill gives a wrong signal that the Governor is above and beyond the legislature. Such a scenario is not desirable in any democracy, where a Governor (who is appointed) can overrule the will of the people.
Beyond Hysteria
The Supreme Court's judicial review jurisprudence, including landmark rulings such as Indira Gandhi v. Raj Narain, has consistently affirmed that the views of the House cannot be subsumed by executive fiat. Parliament's deliberative autonomy is a feature, not a flaw. It is precisely this institutional insulation that safeguards against transient passions, political vendettas, and mass hysteria.
Moreover, not every offence carries implications for governance. Some alleged acts, no matter how morally questionable in isolation, may have nothing to do with one's capacity as Chief Minister or Minister. Equating personal conduct with public competence is a dangerous conflation that punishes individuals for private misfortunes rather than breaches of public trust.
Let's draw comparisons with civil servants, who, when facing criminal charges are granted procedural avenues such as appealing to the Central Administrative Tribunal (CAT), where termination is evaluated on merit, cause and consequence, rather than assumption. Legislators, too, who bear the trust of the electorate, deserve similar procedural safeguards before being summarily removed from office.
Charity Begins At Home?
Let us, for argument's sake, assume the Bill is born of constitutional scruple and a sincere desire to instil a sense of constitutional morality. Yet the facts tell a far less flattering tale.
According to the Association for Democratic Reforms (ADR), under the ruling party's tenure, the proportion of Lok Sabha members facing serious criminal charges has more than doubled, rising from 14% in 2009 to 31% in 2024. Notably, its MPs constitute the largest share of these cases, with 63 MPs (26% of its total) facing serious allegations.
The irony sharpens. In Prime Minister Narendra Modi's third Cabinet, 28 of the 71 Ministers face criminal charges, with 19 accused of grave offences ranging from attempted murder to offences against women. Ministers like Shantanu Thakur and Sukanta Majumdar stand accused in cases that, if proven, could lead to sentences stretching from a decade to life imprisonment. The second term fares no better. Appointed during the 2021 Cabinet expansion, Union Minister of State, Nisith Pramanik, faced 14 pending criminal cases, including allegations of murder and robbery. The dissonance is evident. And invites the uncomfortable question - if constitutional morality is the objective, why does the party that champions it preside over one of the most criminalized benches in Parliament? Charity, it seems, begins at home, and the home in question appears alarmingly overrun.
Not Quite The Remedy We Need
While one does applaud the objective in principle, a simplistic constitutional amendment is hardly the remedy of choice. As Mr. Salve repeatedly observes in his interviews on the subject, one cannot help but hang their head in shame that such an amendment is deemed necessary. The practice, after all, has been that Ministers step aside voluntarily when faced with arrest - as seen when P. Chidambaram resigned from the Union Cabinet following his arrest in the INX Media case, when A. Raja stepped aside amid the 2G spectrum controversy, and when Lalu Prasad Yadav resigned from the Railways in the wake of the fodder scam. Earlier still, LK Advani stepped down in the wake of the Jain Hawala diaries controversy, demonstrating that no one was above yielding office in the face of serious allegations. Yes, there have been a few exceptions to the norm and one also whole heartedly believes that the discharge of the “solemn, ministerial duty” as he calls it, should not be from the confines of a prison cell - but if the aim is to uphold probity, turning governance into a penal performance is a rather spectacular way to miss the point.
(Swabhi Tyagi is a practising lawyer at Madras High Court and Salem Dharanidharan is a DMK Spokesman and Deputy Secretary of the DMK's IT Wing.)
Disclaimer: These are the personal opinions of the author
