Editorial 1: A double failure
Context:
Recently the Parliament referred The Constitution 130th Amendment Bill, 2025 to the Joint Parliamentary Committee. This bill allows the removal of Prime Minister, Chief Minister or minister who remains in custody for 30 days on charges carrying punishment of five years or more. It violates the basic structure of the constitution and risks promoting the discretion of unelected officials over the people’s mandate.
Arrests and disqualification of Legislators:
- The removal of Legislators is dealt with under the Representation of People’s Act. They can be disqualified only after conviction.
- There are many permissions and safeguards for arresting the elected representatives. For example- the arrest of a sitting Chief Minister requires sanctions under the Prevention of Money Laundering Act, prior approval under Code of Criminal Procedure and legislative privilege if a session is in progress.
- These safeguards are required to ensure that arrest of a person carrying the peoples mandate can never be casual. This underlines the deep rooted spirit of the Constitution.
- But, this bill undermines the basic structure of the constitution by reducing the threshold for arresting the legislators from conviction to pre-trial detention. It also goes against the established judicial precedents and weakens the legal sanctity of the council of ministers.
Difficulty in getting bail may dislodge the elected government:
- Getting bail is difficult under acts such as Prevention of Money Laundering Act and it may be extended by authorities such the supplementary prosecution complaints filed by the Enforcement Directorate. The trial may be delayed indefinitely.
- A 30-day custody period may be arbitrarily increased by long investigations and the state’s power to prolong detention.
- In Maneka Gandhi case, 1978 SC held that Preventive Detention under article 22, any act of curbing life and liberty has to uphold rights under article 14 and article 19.
- Time period of 30 days in this bill may be extended arbitrarily to dismiss the government.
- There is provision of Reappointment once the custody ends. Reappointment cannot restore the dignity of the Legislators in the public life.
- The Bill confers only the PM or CM the power to advise the removal under the provisions. It reduces the legal sanctity of the council of minister to the discretion of PM or CM. Thus, it violates the principle of collective responsibility of the council of ministers.
Bill is against the Basic structure of the Constitution:
- The order of the removal of ministers under this bill may be challenged under judicial review. But, such review is post-partum in nature as the elected leader will already be removed and the people’s choice set aside.
- The Bill creates a constitutional shortcut to remove ministers without any judicial trials. This violates the SC judgment in AR Antulay case, 1998 where the court struck the legal shortcuts that bypass rights of accused under Article 21.
- The investigative authorities may misuse their powers to delay bail beyond 30 days. This Bill shifts the decisive powers from judiciary and Parliament to the unelected officials.
- Thus, it erodes the principle of Parliamentary democracy, affects the dilution of judicial review and goes against the rule of the law.
- This bill is against the Basic structure of the constitution.
Democratic Accountability vs. Judicial Overreach
- The accountability in democracy must come through elections, parliamentary scrutiny, and public opinion—not through pre-emptive disqualifications. The danger lies in judicial or investigative overreach, where political careers could be ended without due trial.
- Instead of strengthening democratic institutions, the Bill could reduce the sanctity of collective responsibility and erode public trust in governance.
Way forward:
- This bill risks creating a larger constitutional and political challenge. It weakens the due process, undermines democracy and accountability, and leaves scope for misuse by ruling party against opposition ruling governments.
- Joint Parliamentary Committee must consult all the stakeholders to align the bill with constitutional principles while ensuring that politicians remain accountable to the people.
- The governments must focus on speedy trial of such cases involving politicians. There must also be greater transparency in candidate disclosures, empowering voters to make informed choices.