The 130th Constitutional Amendment: A Draconian Reform or Necessary Cleansing of Indian Politics?
A Stormy Tabling in Lok Sabha
On August 20, 2025, the Lok Sabha witnessed unprecedented chaos as Union Home Minister Amit Shah tabled the Constitution (130th Amendment) Bill, 2025, alongside two related bills amending laws for Union Territories and Jammu & Kashmir. Opposition members tore copies of the bill, flung them towards the Speaker’s chair, and accused the government of ushering in a “Gestapo-like” era, drawing parallels to authoritarian regimes. The amendment proposes automatic removal of the Prime Minister, Chief Ministers, Union Ministers, and State Ministers if they remain in judicial custody for 30 consecutive days on charges punishable by five years or more imprisonment. Pitched as a measure to uphold “constitutional morality” and public trust, the bill has ignited a fierce debate on its implications for democracy, federalism, and fundamental rights.
Amid protests from leaders like Asaduddin Owaisi, Manish Tewari, and KC Venugopal, the bill was referred to a Joint Parliamentary Committee (JPC) for scrutiny, signaling potential revisions but not quelling the uproar.
Critics, including West Bengal Chief Minister Mamata Banerjee, labeled it a “death knell for democracy and federalism,” arguing it enables the central government to destabilize opposition-led states through selective arrests by agencies like the Enforcement Directorate (ED).
This piece analyses the bill’s provisions, legal viability, and broader ramifications, drawing on constitutional precedents and expert insights.
Key Provisions: From Arrest to Automatic Ouster
The 130th Amendment seeks to insert new clauses into Articles 75 (Union Council of Ministers), 164 (State Council of Ministers), and 239AA (special provisions for Delhi). For Union Ministers, including the Prime Minister, detention for 30 days triggers mandatory removal by the President on the Prime Minister’s advice; failure to advise results in automatic cessation of office from the 31st day. Similarly, for states, Governors would remove Chief Ministers or Ministers on the Chief Minister’s advice, with automatic removal if advice is withheld.
The offence must carry a minimum five-year sentence, aligning with serious crimes under laws like the Prevention of Money Laundering Act (PMLA) or the Indian Penal Code.
Companion bills—the Government of Union Territories (Amendment) Bill, 2025, and the Jammu & Kashmir Reorganisation (Amendment) Bill, 2025—extend similar provisions to Union Territories, empowering Lieutenant Governors to act. Notably, removed leaders can be reappointed upon release, preventing permanent disqualification but allowing interim disruption.
The Statement of Objects and Reasons emphasizes that ministers must be “beyond any ray of suspicion” to maintain public faith, citing the absence of existing mechanisms for removal on arrest alone.
This marks a departure from current norms, where disqualification under Section 8 of the Representation of the People Act, 1951, occurs only upon conviction for offenses carrying two or more years’ imprisonment. The bill effectively equates prolonged detention with guilt, bypassing conviction.
Legal Challenges: Violating the Presumption of Innocence
At its core, the bill clashes with the presumption of innocence, a bedrock principle implicit in Articles 14 (equality before law) and 21 (right to life and personal liberty) of the Indian Constitution. Though not explicitly stated, the Supreme Court has upheld it as a fundamental right in landmark cases like Maneka Gandhi v. Union of India (1978), which expanded Article 21 to include due process and fairness. The presumption ensures the prosecution bears the burden of proving guilt beyond reasonable doubt, safeguarding against wrongful convictions.
By mandating removal on mere detention, the bill inverts this: an accused is treated as unfit for office without trial, potentially violating Article 21’s protection against arbitrary deprivation of liberty and office. Legal experts like Sanjay Hegde argue it could be misused for political vendetta, as central agencies might engineer arrests to trigger the 30-day threshold. Under PMLA, bail is notoriously hard to secure, often leading to extended custody, as seen in cases involving opposition figures.
Furthermore, Article 32 empowers the Supreme Court to issue writs for enforcing fundamental rights.
Critics contend the bill undermines this by preempting judicial remedies, forcing removals before courts can grant bail or quash charges. If challenged, the amendment might fail the “basic structure” test from Kesavananda Bharati v. State of Kerala (1973), where the Court ruled that Parliament cannot amend features like fundamental rights, separation of powers, or the rule of law. Presumption of innocence, as a facet of fair trial under Article 21, is arguably part of this inviolable structure.
Assault on Federalism: Central Overreach in State Affairs
The bill’s impact on federalism—a basic structure element per Kesavananda—is profound. By enabling Governors (often seen as central nominees) to remove Chief Ministers without conviction, it risks politicizing state governance. Opposition leaders like Congress MP Abhishek Manu Singhvi warn it provides a “backdoor” to topple non-BJP governments via “biased” agencies, circumventing electoral mandates.
Historical precedents abound:
In SR Bommai v. Union of India (1994), the Supreme Court curtailed arbitrary imposition of President’s Rule under Article 356, emphasizing federal balance. Yet, this bill could achieve similar destabilization indirectly, especially in states like Delhi, where Article 239AA already limits the elected government’s powers. For instance, Arvind Kejriwal’s 2024 arrest in the Delhi excise policy case saw him govern from jail for months, a scenario the bill aims to prevent but which critics say preserved democratic will.
Political Motivations: Diversion or Genuine Reform?
Proponents frame the bill as a step against criminalization of politics, aligning with the government’s anti-corruption narrative. The Statement of Objects cites instances like Jharkhand CM Hemant Soren’s arrest in a land scam or Tamil Nadu Minister V. Senthil Balaji’s prolonged custody, arguing such cases erode public trust. Home Minister Shah, in tabling the bill, emphasized “good governance” over political interests.
However, timing raises suspicions. Introduced amid a tepid monsoon session, it coincides with ongoing probes against opposition leaders, fueling claims of diversion from issues like unemployment or inflation. CPI(M) leader M.A. Baby calls it an “attack on democracy,” suggesting it’s tailored to neutralize rivals ahead of elections.
Data from the Association for Democratic Reforms shows 43% of MPs face criminal cases, yet the bill targets executives, not legislators, adding to perceptions of selectivity.
Expert Opinions: A Chorus of Concern
Legal luminaries echo constitutional worries. Asaduddin Owaisi argues it violates separation of powers by letting executive arrests dictate legislative removals. Former Attorney General KK Venugopal, in past commentaries on similar issues, has stressed that office-holding during trials upholds innocence presumption unless convicted.
International parallels: The UN’s Universal Declaration of Human Rights (Article 11) enshrines presumption of innocence, a standard India risks breaching. Domestically, the Law Commission’s 170th Report (1999) recommended reforms against criminal politicians but stopped short of pre-conviction removals, favoring faster trials.
Historical Precedents: Lessons from Past Arrests
India’s history of arrested leaders continuing in office underscores the bill’s novelty. Lalu Prasad Yadav resigned as Bihar CM in 1997 before arrest in the fodder scam, but others like Jayalalithaa faced disqualification only post-conviction. Recent cases—Kejriwal governing from Tihar Jail or Soren’s brief resignation—highlight ethical debates but affirm no legal bar pre-conviction.
The bill, by formalizing removal, shifts from convention to coercion.
Balancing Integrity and Democracy
The 130th Amendment embodies a tension between purging politics of criminal elements and preserving democratic safeguards. While addressing genuine concerns about governance from jail, its potential for abuse threatens federalism and fundamental rights. As the JPC deliberates, the Supreme Court may ultimately decide its fate, testing the Kesavananda doctrine anew. In a polarized polity, this “draconian” bill risks deepening distrust, urging a rethink: Can integrity be enforced without eroding innocence? The answer will shape India’s constitutional future.
Hasnain Naqvi is a former member of the history faculty at St. Xavier’s College, Mumbai
