Two uncertainties afflict India’s jurisprudence: arrest and release on bail. It is hard to predict when a person will be arrested and when they will be released on bail. Even the best of astrologers have failed, and legal eagles have not fared better either.
As if to add fuel to this uncertainty, the Constitution (130th Amendment) Bill, 2025 was introduced in the Lok Sabha on 20 August.
What does the Bill focus on? Only the “arrest” and to “removal” of the Prime Minister (PM), a Union Cabinet Minister, a Chief Minister (CM), a minister in a state, as well as the Chief Minister or a minister in the National Capital Territory of Delhi.
According to the Bill, the “arrest” and the consequent “removal” can be effected merely on the basis of allegations—not after a chargesheet, let alone a conviction in a court of law. And then, after arrest, these highest elected functionaries will stand removed automatically if the detention continues for 30 consecutive days!
All it’ll take is an allegation
What was the need to suddenly trigger this arrest jurisprudence? Is there no other way to get rid of an errant highest functionary in our constitutional structure?
Anyone can level any allegation against anyone else. And government agencies have the power to arrest anyone, including the highest government functionaries, except the President or the Governor of a State during his term of office. So the Bill seeks to knock out the highest elected functionary of a government—Union or state—based merely on an allegation.
In our cabinet form of government, a Union minister holds office during the pleasure of the President. Correspondingly, in a state, a minister holds office during the pleasure of the Governor. It is unreasonable to assume that an errant minister can continue in office in the teeth of these constitutional provisions.
Of course, when the PM, CM, or a minister gets embroiled in any moral turpitude or other offence, there are constitutional and statutory provisions to deal with the situation. But the Bill only deals with a situation where a high functionary is arrested on the basis of allegations. When arrested, he should demit office unless he is able to obtain bail within 30 days. The objective, on its face, appears deceptively sound. But the remedy, as per the Bill, amounts to dismantling the innate constitutional structure pertaining to our cabinet system of governance.
Just consider the reverse situation: an inconvenient minister needs to be removed by a political opponent. A bare FIR will entail his arrest and removal from office! In our system, when the prosecution alleges: “matter involves grave economic and security considerations, and is under investigation”, no judge will grant bail in 30 days. So the incumbent PM, CM, or minister will be knocked out of office on his 31st day behind bars. No need for the PM to advise the President or the CM to advise the Governor under Part V or Part VI of the Constitution. A Police Inspector has been allowed to dent the cabinet form of government ingrained in our Constitution.
The statement of objects and reasons of the Bill records that there is no provision in the Constitution for the “removal” of a minister who is “arrested” and detained in custody on account of serious criminal “charges”. Hence, the need to amend articles 75 (for Union), 164 (for states) and 239AA (for Delhi) of the Constitution.
The Bill thus seeks to “remove” the PM, CM, a Union minister, or a minister in a state if “arrested”.
But who will arrest a minister? A lowly placed government official in the hierarchy. For example, a police inspector, after filing a complaint against the highest political executives, can remove the PM, CM, a minister of the Union, or a minister in a state, it is reiterated.
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A mockery of elected representatives
How to remove a Union minister? Only an “allegation” has to be levelled of committing an offence under “any law” which is “punishable” with imprisonment of five years or more. Mind you, all these allegations need to be levelled only on paper, howsoever imaginary they may be. And the minister has to be detained in custody for 30 consecutive days. These twin conditions shall entail his “removal” by the President on the advice of the PM.
Even if the PM fails to tender advice to the President by the 31st day, the minister will stand removed. Thus, the Bill makes the position of the PM redundant for removing a minister through the gateway of arrest! Article 75(2) is thus contextually wiped out. Consequently, a Minister will hold office during the pleasure of, for example, a Police Inspector–rank official and at the mercy of the judiciary for obtaining bail before 30 days of imprisonment.
According to the Bill, the PM who has been arrested over an “allegation” of an offence that entails at least five years of imprisonment and who has been in custody for 30 consecutive days, he will tender his resignation. If he does not, then on the 31st day, he will cease to be the PM. Once again, the position of the President has been made redundant, with regard to the removal of the PM. Article 75(1) is thus contextually wiped out.
The modus operandi to abuse the process of law can well be: level allegations that entail a punishment of at least five years in prison, arrest the person, and ensure that for the next 30 days, he remains in custody. On the 31st day, he stands removed. This formula can be applied to the Union of India, every state government, and the Government of the National Capital Territory of Delhi.
On the first principle, the Bill is a frontal attack on the basic federal structure of the Constitution. Casualty is “rule of law”. Power shifts to the lowest rung of the executive to level allegations, arrest the highest political executive, and ensure that he doesn’t get bail for 30 days. Then he stands removed. This shifts governance from “rule of law” to “rule by law”. Whether or not he returns on the 32nd day after getting bail will entail astrological predictions.
The Bill makes a mockery of the collective responsibility of the Union Council of Ministers, the position of the PM, the collective responsibility of the State Council of Ministers, the CM, the office of the President of India, and the Governor of a state. These positions have been proposed to become contextually otiose, redundant, and nugatory.
The Bill, if passed, is bound to be struck down by the judiciary.
Bishwajit Bhattacharyya is a senior advocate in the Supreme Court and former Additional Solicitor General of India. Views are personal.
(Edited by Prasanna Bachchhav)