DISQUALIFICATION BEFORE CONVICTION : A CRITICAL EXAMINATION OF THE 130th AMENDMENT BILL

The Constitution of India, adopted on 26th January 1950, is the supreme law of the land and the world’s largest written constitution. It lays down the framework for political principles, procedures, and powers of government institutions, as well as the rights and duties of citizens. It guarantees Fundamental Rights to ensure equality, liberty and justice, and provides Directive Principles of State Policy to guide governance in achieving social and economic welfare. Additionally, it prescribes Fundamental Duties for citizens to uphold national unity and integrity. It is a dynamic document, flexible enough to adapt to changing needs while safeguarding democratic values. The Constitution of India provides a detailed procedure for amendments under Article 368, making it flexible yet rigid to preserve its core values.

The Constitution originally had 395 Articles and 8 Schedules, but through amendments, it now contains more than 470 Articles and 12 Schedules. It reflects India’s diversity and aspirations making it a cornerstone of the nation’s democracy.

Kesavananda Bharti Case (1973)
Swami Kesavananda Bharti, head of a religious mutt in Kerala, in his petition questioned whether Parliament had unlimited powers to amend the Constitution, including Fundamental Rights. The case was heard by the largest ever constitutional bench of 13 judges in the Supreme Court. In a 7-6 majority verdict, the court ruled that while the Parliament had wide powers to amend the Constitution, it can’t alter or destroy its ‘basic structure’. This principle known as the Basic Structure Doctrine, became a permanent feature of Indian Constitutional law. The judgment struck a balance between parliamentary sovereignty and constitutional supremacy, ensuring that India’s core democratic values remain intact.

Chief Ministers Who Resigned Before Arrest

• J. Jayalalitha (Tamil Nadu) resigned before being jailed in the disproportionate assets case, in December 1996.
• Lalu Prasad Yadav (Bihar) resigned just before he was arrested in fodder scam, in May 1997.
• Uma Bharti (Madhya Pradesh) resigned in August 2004 before arrest in a case related to flag-hoisting.
• B. S. Yediyurappa (Karnataka) stepped down in October 2011 following the Lokayukta report on illegal mining and was arrested soon after.
• Hemant Soren (Jharkhand) stepped down just before his arrest in January 2024, in a land scam case.

Ministers Who Went to Jail Without Resigning –

• Arvind Kejriwal (Delhi CM) was arrested in the 2024 excise policy case, and did not resign. He continued to function informally by delegating the duties.
• Satyendra Jain and Manish Sisodia (Delhi Ministers), both were arrested (Jain in 2022, Sisodia in 2023). They initially didn’t resign, though they tendered their resignations later.
• V. Senthil Balaji (Tamil Nadu Minister) was arrested in June 2023, he remained without portfolio until he resigned in February 2024.

The Supreme Court declined to pass any directive compelling Kejriwal to resign. The Constitution is silent on whether a Minister or Chief Minister must vacate office while in custody.

These instances highlighted a legislative gap leading to the proposed 130th Constitution Amendment Bill. 

The 130th Constitution Amendment Bill, 2025 -
On 20th August 2025, the Union Home Minister Amit Shah introduced this bill in the Lok Sabha. The Bill proposes that the Prime Minister, Chief Ministers, and other ministers (both at the Union and State level) be removed from the office automatically if they are arrested and detained for 30 consecutive days on serious criminal charges (offences punishable with five years or more imprisonment), even without a conviction. The President or Governor is empowered to force removal, or it would take effect automatically if no resignation is tendered. However, reappointment is allowed post-release. Its aim is to enhance accountability and preserve constitutional morality.

The Bill was referred to a Joint Parliament Committee (JPC) on the same day it was introduced. The JPC will conduct a thorough, detailed examination of the amendment, deliberate on its implications and prepare a report for Parliament. Its recommendations are influential but not binding. The composition of JPC is not known yet, but it normally consists of 21 Lok Sabha members and 10 Rajya Sabha members, nominated by the respective presiding officers. The JPC is a safety valve allowing the stakeholders including the opposition parties to engage in a meaningful discussion before any decisive move.

Merits of the Bill –

• Upholding Constitutional Morality – The government argues ministers should be held to higher standards of integrity than ordinary citizens.
• Accountability in Public Office – Prevents people facing serious criminal charges from misusing office while under detention.
• Restoring Public Trust – Enhances citizen’s confidence in governance by ensuring those under serious suspicion step aside.
• Reappointment Allowed – The Bill permits reinstatement after release, balancing accountability with fairness.
• Criticism of the Bill –
• Presumption of Innocence Undermined – Critics argue that automatic removal after 30 days of arrest treats an arrested minister as guilty without trial, clashing with the legal principle ‘innocent until proven guilty’.
• Scope of Political Misuse – Opposition parties fear governments could use police and investigative agencies to target rivals, get them arrested, and disqualify them from office.
• Destabilizing Governance – Frequent removals of chief ministers and ministers could create political instability in states, especially where the governments face constant legal or political challenges.
• Basic Structure Concerns – Legal experts suggest that this may violate the ‘basic structure doctrine’ (Kesavananda Bharti case) by disturbing the balance of democratic representation.
• Federalism Challenge – Since it applies to state governments, some states see it as a central overreach into their autonomy.

Existing Laws on Disqualification of MPs and MLAs –
According to The Representation of People Act, 1951 and the Supreme Court rulings (in Lily Thomas case, 2013), MPs and MLAs are disqualified after conviction for certain offences punishable with two years or more imprisonment. Disqualification is immediate and is no longer delayed by appeal.

Arrest or being in jail without conviction does not disqualify MPs and MLAs from membership. They continue to hold office until convicted.  

Conclusion –
The proposed Bill holds significant importance as it seeks to reform and strengthen the democratic process by addressing the gaps in the existing framework related to the disqualification of MPs and MLAs. The government employees are suspended after their arrest. The Prime Minister is also under the ambit of this proposed law, which needs to be appreciated. By mandating temporary removal of ministers facing serious charges, it aims to ensure accountability, transparency and integrity among elected representatives, the bill reflects the spirit of constitutional morality and public trust. Its referral to the JPC underscores the need for broader consultations and consensus, ensuring that the provisions strike a balance between fairness and deterrence against misconduct. While the bill attempts to modernize existing laws, its true effectiveness will depend on its final drafting, implementation, and the political will to uphold its principles. All the political parties are expected to engage in the JPC to give constructive suggestions and participate in the meaningful discussions in the Parliament to take the bill to its logical conclusion. If enacted thoughtfully, this reform can reinforce the credibility of legislatures, curb misuse of power, and further strengthen the foundation of India’s representative democracy.

By Manoj Dubey
Principal (Retd.)
Delhi Public Schools

(The content of this article reflects the views of writers and contributors, not necessarily those of the publisher and editor. All disputes are subject to the exclusive jurisdiction of competent courts and forums in Delhi/New Delhi only)