EDITORIAL 1: Removing a minister
Context
Home Minister Amit Shah on Wednesday introduced in Lok Sabha a significant constitutional amendment that seeks to remove a central or state Minister who is facing allegations of corruption or serious offences and has been detained for at least 30 days consecutively.
What does the amendment propose?
- The Constitution (One Hundred And Thirtieth Amendment) Bill, 2025 and two related statutory amendments to reflect the proposed changes for Union Territories have been referred to a joint committee of Parliament for review.
- The Bill proposes amendments to Articles 75, 164, and 239AA of the Constitution, which deal with the Union Council of Ministers, Council of Ministers in the states, and Ministers in Union Territories respectively.
- A new clause will state that any Minister arrested and held in custody for 30 consecutive days for an offence punishable with five years or more in prison will be removed from office by the President on the Prime Minister’s advice on the 31st day.
- The removal can be reversed when the Minister is released from custody. Chief Ministers and the Prime Minister will be in the ambit of the proposed law.
- The constitutional amendment will require a majority of two-thirds of Members present and voting to be passed.
The current legal framework
- Under Section 8 of the Representation of the People Act, 1951, (RPA) legislators are disqualified from contesting elections or continuing in office upon conviction for certain criminal offences, and being sentenced to imprisonment for at least two years.
- The proposed amendment deals with the removal of a Minister after having spent a certain time in custody.
- Ministers do not have qualifications that are distinct from those of legislators, but they have different responsibilities.
- In the RPA, the yardstick for disqualification is conviction by a court. The disqualification can be stayed if the conviction is stayed by a higher court on appeal.
- India’s constitutional scheme envisages the presumption of innocence for the accused, and puts the onus of proving the charges on the prosecution.
- Police file a chargesheet within 90 days of arrest, after which a court frames the charges. Trial begins after that, and can end in acquittal or conviction.
- In the proposed Bill, the yardstick for removal is 30 consecutive days of being arrested and detained in custody.
- Since arrest and detention are only the preliminary step in a criminal investigation, such a yardstick raises serious questions of due process.
The debate
- It has been argued that the long wait for conviction defeats the purpose of disqualification.
- However, constitutional principles of natural justice require a person to be given a fair opportunity to be heard before consequential action is taken against them.
- Also, disqualification impacts not only the rights of the legislator but also the will of the people who have elected the legislator.
- In its 170th report in 1999, the Law Commission of India proposed that the framing of a charge for offences punishable by up to five years’ imprisonment should be made an additional ground for disqualification, which should be for five years or until acquittal, whichever was earlier.
- The Law Commission’s 2014 report recommended that a legislator could be disqualified when charges were framed against them by a court, since this showed prima facie judicial satisfaction that there existed sufficient material against a person to put them to trial.
Supreme Court on Disqualification of Legislators
- A five-judge Bench in a 2018 judgment ruled that the power to disqualify legislators lies solely with Parliament and the court cannot add new grounds.
- However, it urged Parliament to enact a strong law mandating political parties to revoke membership and deny tickets to candidates facing serious criminal charges.
- In Manoj Narula v Union of India (2014), the Court said there is no legal bar on appointing ministers with criminal backgrounds but advised the Prime Minister to avoid such appointments, especially in serious or corruption cases.
- Case of V. Senthil Balaji (2023–2025): After 14 months in custody for alleged money laundering, Balaji was granted bail and reappointed as minister. The SC later said it was misled, as he had resigned before bail. It told him to choose between freedom or office. Balaji resigned, and bail was upheld.
- Case of Arvind Kejriwal (2024–2025): Granted bail in a money laundering case, the SC restricted his official powers but left resignation to his discretion. He resigned voluntarily after regular bail was granted.
Conclusion
The amendment aims to ensure cleaner governance by removing Ministers held in custody for serious offences. While it addresses delays in conviction, it raises concerns about due process and the presumption of innocence.