The proposed Constitution (130th Amendment) Bill, 2025 raises some of the most far-reaching questions about India’s constitutional architecture since the introduction of the anti-defection law.
The Bill proposes that a Chief Minister, Prime Minister or any minister who remains in custody for 30 consecutive days in connection with an offence punishable with five years or more of imprisonment would automatically lose office, even before conviction.
The proposal has been defended as an anti-corruption measure, but it has also attracted criticism from constitutional scholars, former judges, and opposition leaders on several grounds.
Contradiction with Presumption of Innocence
The most fundamental objection is that the Bill effectively treats arrest as a sufficient basis for removal from constitutional office, despite the settled criminal law principle that every accused person is presumed innocent until proven guilty.
Under the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, an arrest is made for investigation on the basis of reasonable suspicion. It is not a judicial finding of guilt. A magistrate who authorises custody examines only whether the arrest is lawful, not whether the accused is guilty. PRS Legislative Research argues that automatic removal at this stage is therefore arbitrary and inconsistent with the rule of law.
Conflict with Representation of the People Act
The Bill departs sharply from the existing constitutional and statutory framework.Under the Representation of the People Act, 1951, an elected representative is generally disqualified only after conviction for specified offences, not merely because of arrest or detention.
The Supreme Court’s landmark judgment in Lily Thomas v. Union of India (2013) also rests on the principle that conviction, rather than accusation, triggers disqualification.
Ironically, under the proposed amendment an MLA may continue to remain a legislator because there is no conviction, but the same MLA would automatically cease to be Chief Minister merely because he or she has spent thirty days in custody.
This creates an unusual constitutional anomaly where the legislature continues to have confidence in a person who is simultaneously barred from heading the government.
Inconsistency with Articles 75 and 164
Articles 75 and 164 provide that ministers hold office during the pleasure of the President or Governor, exercised on the advice of the Prime Minister or Chief Minister, while the Prime Minister and Chief Minister themselves remain in office so long as they command the confidence of the elected House.
The proposed amendment replaces this legislative confidence test with an automatic consequence triggered by detention.
Critics argue that this transforms the political process into a police-driven process.
Threat to Parliamentary Democracy
India follows the Westminster model in which governments fall only when they lose the confidence of the legislature.Under this proposal, however, a government may collapse because an investigative agency succeeds in keeping its leader in custody for 30 days.
PRS Legislative Research warns that this may undermine the basic structure by altering the parliamentary form of government itself.
Possible Misuse by Investigative Agencies
One of the strongest criticisms concerns the possibility of political misuse.India has witnessed several high-profile arrests of opposition leaders before trial.Examples frequently cited includeArvind Kejriwal, Hemant Soren, and N. Chandrababu Naidu.
Although these cases involved different factual circumstances, critics argue that if the proposed amendment had existed, an investigating agency could potentially alter the composition of elected governments without any judicial finding of guilt.
Because the Union controls agencies such as the CBI (subject to consent issues) and the Enforcement Directorate exercises nationwide jurisdiction under central laws, several constitutional commentators fear that the amendment could disproportionately affect opposition-ruled states.
Views of Constitutional Experts
PRS Legislative Research concludes that the Bill may violate four elements of the Constitution’s basic structure: parliamentary democracy, separation of powers, federalism and rule of law.It argues that removal based merely on detention, before any judicial assessment of guilt, is constitutionally vulnerable.
A detailed analysis published by the Law School Policy Review argues that the Bill effectively replaces legislative accountability with executive detention. The authors contend that it undermines the presumption of innocence, weakens the authority of the legislature to determine who governs, and departs from the intent reflected in the Constituent Assembly Debates.
Senior advocate and Rajya Sabha MP Kapil Sibal criticised the proposal in Parliament, questioning whether it could become a tool for selective enforcement and asking why no comparable action had been taken against ministers from the ruling party.
Political Criticism
M.K. Stalin described the proposal as a ‘black Bill’ and argued that it assumes guilt before trial, calling it a threat to democratic governance.Asaduddin Owaisi argued that the proposal would permit unelected investigative agencies to determine the survival of elected governments, characterising it as inconsistent with the separation of powers and federalism.
The Bill undoubtedly seeks to address the legitimate concern of criminalisation in politics. However, its mechanism – automatic removal after 30 days of detention – marks a significant departure from India’s established constitutional philosophy, which distinguishes accusation, arrest, trial, conviction, and disqualification as separate legal stages.
Whether Parliament has the power to amend the Constitution in this manner will ultimately depend on the Supreme Court’s application of the basic structure doctrine established in Kesavananda Bharati v. State of Kerala (1973). If enacted in its present form, the amendment is widely expected to face an immediate constitutional challenge on the grounds that it allows the executive process of arrest to override the democratic process of legislative confidence.