Pranshu & Vidhanshu

Abstract: The Constitution (One Hundred and Thirtieth Amendment) Bill, 2025, suggests automatic termination of the ministerial office after thirty days of continuous detention for an offence punishable by five years or more. It is argued that the Bill violates the principles of the original constitution: it predetermines guilt by executive detention, thus abolishing the presumption of innocence; it substitutes the prerogative of the legislature to test executive confidence with a police-driven mechanism, which in effect is a negation of the power of the parliament through the established common law established in the case of S.R.Bommai; and it encroaches on the prerogatives of the executive that are vested on the Prime Minister and Chief Minister under Articles 75(2) and 164(1). By relying on the documents of the Debates of the Constituent Assembly, the author proves that the so-called constitutional gap that the Bill was supposed to address actually was a deliberate decision of the framers. Besides, placing the Bill in the modern enforcement context where the Enforcement Directorate has convicted only 0.69 per cent of its 8,391 registered cases, the article hypothesises that the Bill essentially codifies the process as punishment whereby investigative action has been transformed into a vehicle of dissolution of democratically elected governments..

Introduction

The Constitution (One Hundred and Thirtieth Amendment) Bill, 2025 (‘The Bill’) proposes to be a measure to uphold constitutional morality and good governance, in the public interest and for the welfare of people. But what, on the closer look, emerges is an instrument that directly contravenes the very foundational principles of Indian constitutional law, more specifically those relating to the presumption of innocence, parliamentary sovereignty, and the separation of powers. The justification that is found to be no less than a constitutionally destructive agenda is revealed wholly upon a careful analysis of the bill, cloaking itself in the noble language of public trust. To understand why, this article proceeds in four parts. First, it demonstrates that the alleged constitutional gap was never an oversight but a deliberate choice of the framers, who consciously rejected criminal antecedents as a basis for ministerial removal. Second, it shows how automatic removal upon detention obliterates the presumption of innocence and creates an arbitrary classification that the Constitution simply cannot sustain. Third, it contends that by replacing the legislature’s exclusive authority to withdraw confidence with an investigating officer’s remand application, the Bill achieves what is constitutionally barred, and finally, it grounds these arguments in the lived reality of how investigative agencies have functioned in practice, to show that the Bill does not merely risk misuse, but by design acts as a blueprint for it.

The Justification

The Bill allows for the electoral mandate to be nullified by the actions of an unelected investigating officer, as opposed to a vote of no-confidence (by way of Articles 75(5A), 164(4A), 239AA(5A)[A3] [A4] ). The “Statement of Objects and Reasons” (‘SOR’), in its attempt to appeal to the “hopes and aspirations of the people” to address the need for ministers beyond suspicion, is left with cynical appropriation of democratic sentiment, for the hopes and aspirations of people are all expressed at the ballot box.

Its core claim is that a detained minister may hinder the “canons of constitutional morality”. This is a dangerous perversion of the concept. True constitutional morality, as Dr. Ambedkar himself defined it borrowing from George Grote, is a paramount reverence for the forms of the Constitution and obedience to authority acting within those forms. It is not the accusation of a minister against whom there is no proven case, but a law that destroys the presumption of innocence and breaks down the separation of powers.

The SOR erroneously portrays a constitutional lacuna to claim that no provision exists for the removal of a detained minister. In reality, this alleged lacuna is a deliberate constitutional design, intentionally created by the Constituent Assembly. The historical context of Draft Article 62 (which became Article 75) illuminates the Bill’s inconsistency with the framers’ intent.

The Constituent Assembly debated the specific disqualification of Ministers based on criminal antecedents. Prof. K.T. Shah, in Amendment No. 1300, proposed that no person should be appointed a Minister if convicted of treason, bribery, or any offence involving “moral turpitude.” Shri H.V. Kamath supported the same, citing instances where persons with criminal antecedents had been appointed Ministers, arguing that such inclusion blotted the prestige of Government.

Even in light of these strong moral propositions, the Constituent Assembly voted off the proposal. Dr. Ambedkar believed that not all disqualifications could be specified in the Constitution, and it was enough to rely on the Prime Minister, the legislature, and the people to make sure that no such notorious appointment is made.

This was further explained when, on December 31, 1948, B. Pocker Sahib Bahadur moved an amendment seeking to substitute the “pleasure” clause (the provision under Articles 75(2) and 164(1) that Ministers hold office during the President or Governor, removable at any time on the advice of the Prime Minister or Chief Minister) with a provision that Ministers hold office “so long as they enjoy the confidence of the House of the People”. This was denied by Dr. Ambedkar on specific constitutional grounds, arguing that ministerial tenure must be subject to two conditions: the confidence of the House and “purity of administration”. The “pleasure” doctrine was necessary because a Minister might retain the confidence of the House yet be guilty of corruption or maladministration; the President, acting on the PM’s advice, must retain removal power.

Dr. Ambedkar’s vision was clear: The Prime Minister must have the power to dismiss a Minister if he finds that the administration is not being carried on in accordance with his policy. The power to remove was tied to the confidence of the House and the policy of the PM, not the procedural actions of a police officer. By rejecting these amendments, the Assembly clearly indicated its intent that the removal of a minister is a political act reserved for the legislature, not an administrative act to be triggered by detention.

Undermining the Rule of Law and Personal Liberty

Firstly, the Bill has a natural legal weakness in the sense that it combines detentions, which is an executive act, with the substantive identification of guilt. This tramples the presumption of innocence, the golden thread of criminal law jurisprudence emanating from Article 21, which dictates that the State bears the immense burden of proving guilt beyond reasonable doubt. Although the advocates of the Bill can appeal to provisions under service law to point out that civil servants are deemed suspended if in custody for more than 48 hours. However, applying this master-servant logic to elected representatives is constitutionally unsound. A civil servant derives their authority from the executive appointment and serves, quite literally, at the pleasure of the state as employer. Service rules suspending them upon detention are an extension of that employment relationship. A minister, by contrast, derives their authority from a democratic mandate, and the Constitution recognises this distinction by providing an exhaustive and separate framework for their appointment and removal under Articles 75 and 164. Tellingly, the CCS (CCA) Rules, 1965 themselves confine their application to persons ‘appointed in connection with the affairs of the Union’, a category that has never encompassed, and was never designed to encompass, those who hold office by virtue of an electoral mandate.

As Justice Lokur noted in his concurring opinion in Manoj Narula v. Union of India (2014), the presumption of innocence is central to criminal jurisprudence and should not be displaced by “off-the-cuff allegations” in an FIR. The 5-Judge Constitution Bench was unanimous on this point. An arrest is an investigative tool based on suspicion, not a judicial application of mind. The definitive judgment on disqualification, Lily Thomas v. Union of India (2013), struck down Section 8(4) of the Representation of the People Act, 1951, because a judicial conviction represents a finding of guilt that carries immediate consequences. The entire legal framework for disqualification is thus predicated on a judicial conviction, and not detention.

The Bill’s mandate of removal at the thirty-first day is also incompatible with the right of default bail provided in Section 167(2) CrPC (now Section 187, BNSS). Criminal law permits an investigation to be conducted over a period of sixty to ninety days; the Bill sets a time of thirty days, which is in actual effect, a pre-judicial step taken against the accused to ensure that the statutory deadline to file a charge sheet will lapse prior to the time. This brings about a paradox, that a person who is considered unfit to hold ministerial office due to an allegation, is constitutionally qualified to be a legislator, the office out of which ministerial qualification is obtained. Therefore, a minister can never be deprived of his or her position unless adjudicatory evidence is subjected to a court or a court of law declaring the guilt.

This danger is also expanded by the Prevention of Money Laundering Act’s  (‘PMLA’) reverse bail regime. Under Section 45 of PMLA, bail requires the court to be satisfied that the accused is “not guilty” and “unlikely to commit any offence while on bail”, a near-impossible standard that the Supreme Court itself has described as onerous. In the case of the investigation of a minister under PMLA, the thirty-day removal trigger becomes virtually automatic since under such circumstances, the conditions of release may be imposed that make it impossible to release a person within these two months.

Secondly, The Bill further stands in violation of Article 14 (Right to Equality) by creating a classification that is under-inclusive. The test for reasonable classification under Article 14 requires that any differentiation must be based on an “intelligible differentia” bearing a “rational nexus” to the law’s objective. If the objective is to ensure “constitutional morality” and “public trust,” why does the Bill apply only to Ministers and not to all Members of Parliament?

Consider this: a Member of Parliament (‘MP’) is elected; he is innocent until found guilty and can still continue to be a Member of Parliament even when he has been spending months behind bars. But the minute that person is made a minister, the Bill puts him or her under another standard of law, and he or she loses the office within 30 days of detention. With 46% of sitting MPs facing criminal charges, application of the Bill only to Ministers renders the law unconstitutionally under inclusive. There is no rational legal nexus for this distinction. Why is a person fit to legislate for the country from jail but unfit to hold ministerial office?

This internal reasoning of the Bill is destroyed further when the goal of the Bill is considered. As the point of application is to make sure that the work of a minister is not interfered with by the unavailability of such an individual through detention, then it makes no sense to apply the same to offences not punishable with a jail term of five years or longer. In practice, any arrest due to any alleged crime would put a person in a position of not be able to perform their responsibilities. This arbitrary distinction reveals the Bill’s true intent: it is not about good governance, but about creating a selective tool that can be aimed at specific political targets.

Subverting Parliamentary Sovereignty and the Floor Test Doctrine

The Bill erroneously subverts the principle of executive accountability in a parliamentary democracy by creating a de facto executive veto in the form of investigative agencies’ action over the legislature’s will. In a parliamentary system, the government’s existence depends entirely on commanding the confidence of the legislature. This is not just a political convention but a part of the very “basic structure” of our Constitution as established by the Supreme Court in the landmark case of Kesavananda Bharati v. State of Kerala. Furthermore, the nine-judge bench in S.R. Bommai v. Union of India (1994) settled this principle beyond doubt, holding that “the proper course for testing the strength of the Ministry is holding the test on the floor of the House” and that “[t]hat alone is the constitutionally ordained forum” for resolving such claims. Bommai remains the most powerful check on executive power to dismiss state governments under Article 356.

The Bill creates a backdoor to achieve what Bommai expressly forbids: the destabilization of a government through executive action, bypassing the legislature entirely. It allows an investigating officer’s decision to detain a sitting CM for 30 days to shake a political regime, where a no-confidence motion might fail. A state government could easily be decapitated and be collapsed by arresting a sitting CM, even if the CM enjoys overwhelming support in the House. The bill legitimizes this constitutional coup to be executed not by presidential proclamation but through the filing of an FIR and a remand application.

No comparable parliamentary democracy authorises such investigative detention to put an automatic end to ministerial tenure. In the United Kingdom, the Ministerial Code governs resignations, and the Prime Minister retains sole discretion over ministerial appointments and removals. In Australia, Section 64 of the Constitution vests this power exclusively in the Governor-General acting on the Prime Minister’s advice. The 130th Amendment would turn India into the only parliamentary democracy where an investigating officer’s action can constitutionally override the elected head of government’s prerogative to appoint their own cabinet.

This legislative overreach runs squarely contrary to the policy of judicial restraint laid by the Supreme Court in Manoj Narula v. Union of India (2014). While considering the appointment of ministers with criminal charges, the Court categorically refused to add new disqualifications, drawing a careful line between legality and propriety: while it is a “pious hope” that the PM upholds “constitutional trust,” the final decision rests within the PM’s prerogative. The Bill legislatively imposes what the Supreme Court deliberately chose not to, upsetting the delicate separation of powers.

In addition, this automatic removal of a minister from office is a direct attack and outright encroachment upon the executive prerogative of the PM and CM provided in Articles 75(2) and 164(1). It also undermines the Doctrine of Pleasure enshrined in Article 310, that the ministers hold office during the “pleasure” of the President or Governor. The Supreme Court clarified this doctrine in Shamsher Singh vs State of Punjab (1974), holding that the President and Governor are constitutional heads who exercise their formal powers, including the “pleasure” doctrine, only on the aid and advice of the Council of Ministers. The power to appoint or remove a minister is therefore a reflection of the will of the PM or CM.

The present Bill completely ignores this nuance by removing the “pleasure” element entirely and replacing it with a police-trigger mechanism. This constitutional power of the head of government is taken away in the Bill through the creation of a scenario in which the President would be constitutionally bound to disregard a minister at the direction of the PM. It correlates the position of a minister not with the trust of the PM but with the discretion of a sub-inspector or an ED official.

Constitutionalising “Process as Punishment” in the Current Political Regime

The political reality at this point only increases the inherent flaws of the Bill. Its requirements make the process-as-punishment strategy institutional, an approach used to punish people with a long legal process and pre-trial detention before conviction.

The official data is even more alarming. In July 2022, the government admitted in Parliament that the Enforcement Directorate (‘ED’) had secured convictions in only 23 out of 5422 cases since the enactment of PMLA—that is, a conviction rate of less than 0.5% at the time. Yet, during this period, investigations and arrests have soared. Furthermore, the data provided to Parliament in March 2025 revealed that in the last ten years, out of 193 cases registered against politicians by the ED, only two resulted in a conviction.

The most recent data, from a Rajya Sabha answer dated February 3, 2026, is even more revealing. The ED now boasts a conviction rate of 94.82%, but this is based on a very false premise. It is based on 55 convictions out of merely 58 cases decided on merits. Against the backdrop of 8,391 total ECIRs registered since PMLA’s inception, only 58, a staggering 0.69%, have reached final judgment. Over 99% of cases remain in investigative or pre-trial limbo, with prosecution complaints filed in only 1,960 cases. This means that for every case the ED actually brings to judicial conclusion, it initiates approximately 145 that never see a courtroom verdict. This evidences a system where the process is the punishment.

Strict bail provisions particularly under the PMLA’s Section 45 reverse-burden regime convert a premature arrest into prolonged incarceration without trial. The Bill takes this flawed and politicised process and adds a constitutional “kill switch.” It further enhances the political strategy colloquially termed the “washing machine”, where investigations against opposition leaders are dropped or given a clean chit upon switching political allegiance. An Indian Express investigation documented that 25 opposition leaders facing corruption probes who crossed over to the ruling party since 2014 received reprieve in 23 cases. This 30-day period of detention is not an information-gathering phase, but a time bomb of automatic termination of a ministry or government, giving the power to agencies where cases are judicially resolved in less than 1 in every 1000 cases to topple democratically elected governments.

Conclusion

In an ecosystem where the ED brings less than 1% of its cases to judicial conclusion, and where investigations are demonstrably used as instruments of political leverage, the Bill amounts to a frontal assault on the rule of law and the federal, democratic structure of the Indian republic.

The Bill’s most dangerous feature is not any single provision but the cumulative effect it brings by creation of a constitutional architecture where an FIR, combined with a remand application, achieves what a no-confidence motion or a presidential proclamation under Article 356 cannot—the removal of an elected government without testing majority on the floor of the House. This is precisely the constitutional mischief that Bommai sought to prevent.

For these provisions to be reconsidered, further research must focus on establishing safeguards, requiring judicial oversight and scrutiny before a minister’s removal, and ensuring removal from office is triggered at the stage of framing of charges, a threshold that is repeatedly proposed by the Law Commission of India in its 170th and 244th Report for electoral disqualification. Unlike an arrest, which is a unilateral executive act, the framing of charges is a judicial act requiring application of mind, where a court determines that a prima facie case exists. If any accountability mechanism must be created, it must be anchored in judicial determination.

Pranshu is a fourth-year law student at National Law University, Delhi, with a more recent interest in constitutional law, having spent a fair share of his time reading about and working on arbitration and commercial disputes.

Vidhanshu is a final year law student at the National Forensic Sciences University, Gandhinagar, with a keen interest in Constitutional Law, Data Science, and the intersection of Al and law.