It has been quite a week in the Supreme Court. The Union Government's petition against the Calcutta High Court's ruling on the Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA) was dismissed. The High Court had directed that the 100-day work scheme be restarted in the state from August 1, 2025. This has vindicated what the State has been saying for over three years, that the Centre's denial of dues was political, punitive, and unlawful.
That same day, another bench reprimanded the Delhi Police for asking for more time in the Delhi riots bail case, where student activists such as Umar Khalid and Sharjeel Imam, Meeran Haider, Gulfisha Fatima and Shifa Ur Rehman have spent over five years behind bars without trial. Both hearings showed the Court pushing back against long delays and executive overreach.
Parliament's understanding of the same issues seems to be moving in the opposite direction. A new bill proposing automatic removal of ministers who spend more than 30 days in custody was introduced in the Lok Sabha in August 2025. This bill claims to promote accountability. However, on close inspection, it undermines the presumption of innocence, destabilises governance, and entrenches inequality. Far from strengthening democracy, it risks weaponising arrests as political tools. It overrides the electorate's will without a judicial conviction and opens a door to political abuse that our Constitution was designed to protect its citizens from.
How to lose your seat in 30 days?
- Step 1: Forget voters, forget courts - they no longer decide your fate.
- Step 2: Wait for a politically motivated FIR.
- Step 3: Get remanded to custody and let procedural delays carry you past Day 30
The Dangerous Shift: Arrest as Guilt
Indian criminal jurisprudence talks about one fundamental principle: innocent until proven guilty. This bill flips that principle on its head by imposing a penalty, loss of office, based solely on arrest and detention. It bypasses trial and conviction entirely. That is precisely the kind of arbitrariness Article 21 forbids. Yet, the bill treats detention as de facto conviction. This bill, by equating arrest with guilt, overrides the electorate's mandate, weakens separation of powers, destabilises governance, and promotes inequality.
The Supreme Court in its past rulings has emphasised that removal from office must follow due process, not mere allegations. The proposed bill short-circuits this safeguard, imposing a penalty without trial, conviction, or judicial determination of guilt. India's prison population is overwhelmingly made up of undertrials, constituting 75% of the total prison population.
Interestingly, since 2014, at least 12 sitting opposition ministers have been arrested; nine of them from non-Bharatiya Janata Party (BJP)-ruled states. Eight crossed the 30-day custody mark. Under the bill, they would have been automatically stripped of office despite never being convicted.
Why 30 Days?
The bill never explains the 30-day threshold. Pre-trial custody can, and frequently does, extend beyond 30 days because of routine procedural delays. Even under the Bharatiya Nagarik Suraksha Sanhita (BNSS), default bail is set at 60/90 days; the bill's 30-days requirement has no procedural anchor. By tying ministerial survival to such an arbitrary threshold, the law risks disqualifying leaders before their trials even begin. The bill seems to replace the principle of 'innocent until proven guilty' with 'jobless until granted bail'.
Separation of Powers
The Constitution separates political accountability from judicial and executive actions. Removal from office is fundamentally a political question, settled either by legislatures or by the electorate. The bill collapses this boundary, allowing arrest, an executive act subject to police discretion and judicial oversight, to directly determine political tenure. This dangerously blurs the line between branches of government, inviting misuse.
Unequal Treatment and Disproportionate Impact on Marginalised Groups
The bill also introduces glaring inequities. Under the Representation of the People Act, 1951, MPs and MLAs are disqualified only upon conviction, not upon arrest. This bill creates a two-tier system in violation of Article 14's guarantee of equality before the law for specific ministers.
National Crime Records Bureau (NCRB) data reveals that undertrials are disproportionately drawn from marginalised communities: Around 21% are Scheduled Castes (SC), 9% Scheduled Tribes (ST), 36% Other Backward Classes (OBC), and roughly 19-21% are Muslims. Together, marginalised groups (SC/ST/OBC/Muslims) represent over 85% of undertrials. Given this context, the bill will disproportionately silence voices from marginalised communities and the parties that represent them.
Destabilising Governance
Consider the consequences if a Prime Minister or Chief Minister is arrested, even briefly. Governance could grind to a halt, destabilising elected governments on the basis of unproven allegations.
Chilling Effect on Opposition
Finally, the bill creates a chilling effect. If arrests, regardless of conviction, mean automatic loss of office, opposition leaders may think twice before challenging the government. In a democracy where dissent is vital, such a deterrent undermines the foundation of electoral choice.
Accountability in politics must be rooted in conviction, not custody. Otherwise, democracy itself risks becoming captive to the whims of arrest.
(Research Credit: Chahat Mangtani)
(Derek O'Brien, MP, leads the Trinamool Congress in the Rajya Sabha)
Disclaimer: These are the personal opinions of the author
