In every parliamentary system, stories abound of Ministers who resigned under a cloud, some out of moral conviction and others under political compulsion. In either case, resignation is a political act, not a constitutional command. The 130th Constitution Amendment Bill, 2025, introduced in the Lok Sabha in August, seeks to mandate that the Prime Minister, Chief Ministers, or Ministers shall vacate office if arrested and detained for 30 consecutive days on charges punishable with imprisonment for at least five years.
Supporters of the Bill argue that it is morally untenable for those holding high constitutional office to continue in power while facing serious criminal allegations. The Home Minister defended the Bill on the ground that public trust is eroded when Ministers remain in office despite incarceration. Citizens who expect transparency and honesty from their leaders view the measure as a necessary corrective to a political culture where accountability is too often elusive.
In recent years, episodes of Chief Ministers and Ministers continuing in office while in custody have invited public outrage and cynicism about governance. By codifying a mandatory disqualification rule, the government aims to reaffirm integrity as a governing principle.
Article 75(1) of the Constitution provides that the President shall appoint the Prime Minister, and on the advice of the latter, other Ministers shall be appointed. Likewise, in the States, under Article 164(1), the Governor appoints the Chief Minister and, on his advice, other Ministers. The principle stands fortified by the Supreme Court decision in Manoj Narula v Union of India (2014). The five-judge Constitution Bench categorically said the Prime Minister’s advice in the appointment of a person as Minister is binding on the President unless the said person suffers a disqualification under the Constitution or the Representation of the Peoples Act, 1951.
In the Westminster model, a Minister is answerable to the House of the People. This English law convention is now adopted in India’s Constitution in Article 75(3) and Article 164(2) for the Union and State executives, respectively, and as a principle stands recognised by the Supreme Court in another five-judge Constitution Bench decision in Rai Sahib Ram Jawaya Kapur vs State of Punjab (1955).
These provisions reflect the essence of the Westminster model, where the executive is drawn from and remains accountable to the legislature. The authority to appoint or remove Ministers thus lies with the President or Governor only as a matter of constitutional form, and in practice, it is exercised on the advice of the Prime Minister or Chief Minister. Any attempt to alter this delicate structure, including a Constitutional amendment, risks unsettling the balance between constitutional form and democratic substance.
In this context, it is worth recalling Dr. B.R. Ambedkar’s words in the Constituent Assembly on December 30, 1948, when K.T. Shah proposed that persons convicted of offences ought to be Constitutionally barred from becoming Ministers. Dr. Ambedkar, while acknowledging the moral intent, warned against converting every ethical expectation into a Constitutional mandate. He believed such matters were better left to “the good sense of the Prime Minister and the Legislature”, with the public acting as a constant check. His reasoning reflected a deep trust in the moral and institutional wisdom of a parliamentary democracy, a trust that the present amendment risks eroding by replacing discretion with disqualification, and political accountability with procedural compulsion.
When safeguards turn into overreach
While the Bill seeks to uphold integrity in public office, it intrudes into a domain the Constitution reserved for political judgment, not legal compulsion. By converting a question of legislative confidence into one of Constitutional disqualification, it risks unsettling the delicate balance of the Westminster model which enforces morality by politics, not by decree.
Detention is not conviction, however, long it is. The strength of the Westminster model lies in political accountability through confidence, not automatic removal by legal presumption. To enshrine such a rule in the Constitution risks fusing suspicion with guilt, a step that weakens democratic responsibility.
The Constitution already provides sufficient remedies for misconduct in office. A Prime Minister or Chief Minister who loses moral standing can be compelled to resign through parliamentary pressure or a loss of confidence. The Bill, however, inserts a rigid one-month timeline, a procedural sword that cuts through the principle of collective responsibility.
This design raises deeper Constitutional qualms. It disrupts the principle that the legislature alone determines the executive’s tenure. It converts detention, often preventive or politically motivated, into a ground for removal, violating the presumption of innocence. And it sets a troubling precedent that the Constitution can be amended to legislate morality rather than safeguard liberty. The framers, drawing from the Westminster ethos, resisted such codification, trusting in conventions, public scrutiny, and legislative accountability to do their work.
Upsetting Constitutional balance
The first casualty of the Bill is the presumption of innocence. Removal from office on the basis of detention, without trial or conviction, treats accusation as guilt. Detentions may later be found unlawful or politically inspired; using them as grounds for removal blurs the line between accountability and pre-trial punishment. The Bill effectively treats arrest simpliciter, even for a brief period of 30 days, as a preliminary declaration of guilt, presuming that an arrested Prime Minister, Chief Minister or Minister is unfit to continue in office.
The second concern is the separation of powers. The Bill effectively allows investigating agencies and the executive to determine who may hold ministerial office, without judicial oversight. In a politically charged climate, prolonged detention could become a tool of political vendetta, a scenario that undermines both judicial independence and legislative supremacy. The Supreme Court, in Vineet Narain v Union of India (1998), underscored that the independence of investigative agencies must be insulated from political control to preserve the rule of law. By making ministerial tenure contingent upon detention, the Bill risks reversing that principle — transforming the process of investigation itself into a political weapon.
With Central agencies empowered to detain Chief Ministers and State Ministers, the States governed by parties opposed to the dispensation at the Centre have genuine cause for alarm. The greatest fear surrounding the Bill is that it turns the core conventions of parliamentary governance on their head. If a Chief Minister is detained for 30 days, the Bill mandates resignation. But in a parliamentary system, the resignation of the Leader of the House, whether Prime Minister or Chief Minister, triggers the resignation of the entire Council of Ministers, who swing and sing together. Such a provision could easily be misused, allowing governments to be brought down without ever facing a floor test. As the Supreme Court held in S.R. Bommai v Union of India (1994), the strength of the House must be tested on the floor of the legislature, not in the corridors of custody.
The way forward
If the goal is to restore integrity in public life, better tools exist. Removal from office should follow at least a judicial finding that a serious charge has been framed, not mere detention. Investigative agencies must be insulated from political influence, and any such reform must contain precise definitions and safeguards to prevent abuse.
The impulse to cleanse politics is laudable, but Constitutional amendments are not instruments for moral signalling. They reshape the nation’s foundational charter and demand deliberation, not haste. If suspicion becomes the yardstick for removal, the very essence of parliamentary democracy stands eroded.
The Bill must, therefore, be revisited, not to dilute accountability, but to ensure that reform walks hand in hand with restraint. Upsetting the long-adopted conventions, where Prime Minister or Chief Minister is competent to choose Ministers, will imperil the principle of collective responsibility, with the Prime Minister or Chief Minister forced to choose from a smaller pool.
May wisdom prevail over the Joint Parliamentary Committee which shall now take a decision on the fate of this Bill. Till then, God save the Indian parliamentary system.
Vanshaj Azad is a law clerk-cum-research associate in the Supreme Court; views expressed are personal
