130th Constitutional Amend Bill
By Dhurjati Mukherjee
The 130thConstitutional Amendment Bill has raised a hue and cry among the Opposition. Tabled just two days before the conclusion of Parliament’s monsoon session, its members were completely caught off guard. The new Bill which seeks to remove ministers facing corruption or serious offence charges came in for severe criticism and MPs protested by tearing copies of the Bill in the well of Lok Sabha. Opposition’s main contention is that since both Central Bureau of Investigation and the Enforcement Directorate are controlled by Union Home Ministry, it’s feared that ministers in Opposition ruled states would be easily targeted.
The Bill, which has been referred to a Joint Parliamentary Committee, states: “A Minister, who for any period of thirty consecutive days during holding the office as such, is arrested and detained in custody, on allegation of committing an offence under any law for the time being in force, which is punishable with imprisonment for a term which may extend to five years or more, shall be removed from his office, by the President on the advice of the Chief Minister to be tendered by the thirty-first day, after being taken in such custody: Provided that if the advice of the Chief Minister, for the removal of such Minister is not tendered to the President by the thirty-first day, he shall cease to be a Minister, with effect from the day falling thereafter…”
In his response, Prime Minister Modi justified the laws proposed by his government to remove chief ministers and other ministers and dismissed the charges of the Opposition. “They think if they go to jail, then all their dreams will be shattered. They are so rattled that they are opposing a proposed law which is in public interest”, he said and sought to use the example of government employees getting suspended after being arrested to justify a similar treatment for politicians.
However, Opposition charges can’t be termed baseless and merit serious consideration. Past experience suggests that destabilising Opposition-ruled states by bringing up a fabricated charge against the state chief minister or other ministers is not unusual. In fact, many governors, instead of taking advice from respective state cabinet, appear to obey instructions from the Centre. Additionally, it’s contended that law and order is being steadily taken out of state jurisdiction by bringing it surreptitiously under Central purview and allowing unelected agencies to decide on the fate of elected leaders.
Experts opine that the goalpost has shifted from conviction to custody as the bills propose. As current provisions stand, they seem to skirt around the idea of due process. Yes, there is a justified argument that those accused of serious crimes should resign anyway. The provision rests on the fact of detention rather than conviction. A hallmark of our legal system is that an accused is innocent until proven guilty.
Recent history demonstrates how Opposition leaders have been arrested and held in custody for extended periods, only to be discharged later for want of evidence. Removal from constitutional office based on detention alone not only carries a significant political cost but also risks misuse of investigative agencies.
But a law that makes dismissal contingent upon a month’s incarceration doesn’t account for the utmost importance accorded to the will of the people – those elected can be found to hold office only after conviction. JPC should concentrate on this point and recommend necessary amendments.
Meanwhile, one may refer to senior advocate, Indira Jaising, commenting on the amendment bill observed: “In a county where criminal law is used for persecution, not prosecution, and as a tool for eliminating all Opposition parties, the proposed constitutional amendment is also weaponising the Constitution itself. When the ED and the CBI are under the direct control of the central government, federalism gets destroyed. Law and order are taken out of the State List and given to the Centre.” She said that except the ministers of the ruling party all others will be behind bars.
Echoing the same viewpoint, DMK Rajya Sabha member, P. Wilson stated this bill is clearly part of “a diabolical plan to turn India into a dictatorship.” He further pointed out: “Out of 193 cases registered by the ED against political rivals of the BJP, only two have ended in conviction, proving that 191 cases are false and foisted for political reasons. He referred to the case of AAP leader, Satyendra Jain, who was arrested by the CBI and subsequently the case was closed against him. In another report, as stated by government to Parliament last month, statistics reveal that under the Prevention of Money Laundering Act, only eight or 0.1 percent of 5892 cases filed by the Enforcement Directorate between January 2015 to end June 2025 have led to convictions.
Analysing further, such an amendment that can lead to the removal of a state minister, directly impacts state autonomy and the federal principle. It creates a mechanism where Centre’s law enforcement agencies control could, in theory, destabilise an elected state government. The constitutional validity of such an amendment, according to legal experts, can be challenged before the Supreme Court. The judiciary through its pronouncements has declaredfederalism as a part of the Constitution’s ‘basic structure’, an unamendable power. However, relying solely on judiciary to be the ultimate arbiter of federalism is precarious for any democratic government.
It needs to be pointed out that courts can strike down an unconstitutional law but they cannot rewrite the constitutional framework to create a more balanced federal structure. At this juncture, it would be prudent to rethink our federal arrangement, which would be to expand the list of entrenched provisions in Article 368 to include all matters that directly impact legislative and executive powers of the states.
With federalism being under threat, the vindictiveness of the ruling dispensation also cannot be ruled out against parties that do not support it. In the garb of tackling criminalisation amongst elected representatives, the present attempt has been designed so that in theory the objective cannot be questioned. While admitting that criminalisation in politics has been on the rise but that covers many political parties, not excluding the BJP. But the most important question is who will act against the ruling ministers at the Centre and in the states?
The basic idea of controlling or controlling criminalisation in politics is indeed a very novel idea. But the onus of this cannot be on a government controlled by a political party; some other mechanism must be found. It could be that former that a committee comprising say two former chief justices of India and a serving Supreme Court judge could constitute that committee, presided over by the President or Vice President of India. Independence and neutrality are very important and there should be no bias towards any political interests. — INFA