Simar Aneja
Abstract: The 130th Constitutional Amendment Bill mandates removal of ministers detained for thirty days butstays silent on back pay upon reappointment following acquittal. This paper argues such removalfunctions as a deemed suspension under Rule 10(2), CCS (CCA) Rules, 1965, entitling restoration ofpay. Treating acquitted and convicted ministers alike fails Article 14’s twin test, amounting tomanifest arbitrariness and punishment without conviction. The provision thus exceeds Parliament’samending power, warranting basic structure review.
Introduction
The criminalisation of Indian politics has been widely discussed and is often presented as a significant, empirical claim. The Supreme Court has also expressed its concern and, in the same vein, stated that the Parliament has the power to enact legislation enabling the disqualification of a minister from office without of any offence. The 130th Constitutional Amendment Bill (‘Bill’) is reflective of the Parliament’s attempt to fill that constitutional void.
One aspect of this controversial bill is that it advocates for the removal of a minister solely based on 30 days of arrest and detention. This removal is analogous to suspension under the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (‘Rules’), since CCS is the only framework that comes closest to the framework provided by the Bill, as it states that a government servant in India who is detained in custody for a period exceeding 48 hours is deemed to be under suspension under Rule 10(2) of the Rules, 1965.
However, this approach renders the consequences of collateral punishment especially harsh, most notably in a system, where suspension can continue for years, effectively resembling a penalty without conviction, accompanied by a reduction in salary ranging from 25 percent to 50 percent depending on the case. Consequently, civil servants began demanding payment of full pay and allowances for the period of suspension as well as payment of increments to which they were entitled.
Henceforth, a government servant under suspension is entitled to a Subsistence Allowance, plus Dearness Allowance based on that amount, since he is fully exonerated in a departmental proceeding or acquitted by a Court of Law in a criminal trial, the suspension is considered “wholly unjustified”.
The judgment reinforced the principle that an employer can suspend an employee pending a criminal proceeding. Moreover, the principle follows that the authority entitled to appoint a public servant would be entitled to suspend him pending a departmental inquiry into his conduct or pending a criminal proceeding.
For this purpose, the paper shall proceed as follows: Part II shall establish that the removal the Bill provides for is, in substance, analogous to the deemed suspension under the CCS framework. Part III explores the establishment of the status of ministers as public servants under Section 2(28) of the BNSS. Part IV centres on how Article 14 is violated through the failure to meet the twin test laid down under Sarkar Anwar Ali, Part V argues that the Bill is additionally vitiated by manifest arbitrariness. Part VI concludes by urging the Parliament to adopt a more rigorous scrutiny of the purported purposes underlying such constitutionally untenable legislation.
I. From Preventive Step to Punitive Burden: Understanding Suspension
The operative mechanism of the Bill, it discloses three elements which are characteristic of suspension rather than any form of removal on a legal basis. Firstly, the removal is meant to last only as long as the detention. Secondly, it does not presuppose the establishment of guilt beyond reasonable doubt. Thirdly, it establishes that the Bill provides for reappointment, confirming that the underlying title for the office was never completely extinguished.
The distinction lies not in its label, but rather in its functional reality, suspension is preventive only as long as it is temporary and reversible in nature. The moment these conditions cease to be true, it crosses the territory to become punitive in nature, regardless of how it is legally recognised. Suspension is a preventative measure to preclude an employee from interfering with the course of justice. The authority to suspend flows from the employer’s exercise of discretionary control where the employee’s continued presence may compromise an ongoing trial.
When the government is the employer, the “employer” is the authority competent to make the appointment, in whom the power to suspend likewise vests, pending a criminal proceeding. This principle is a well-settled position in the jurisprudence of suspension. Furthermore, conditional revocation on acquittal risks reversing the burden of proof, the employee remains suspended until innocence is established, rather than guilt being proven. This concern is compounded under special legislation such as the Prevention of Money Laundering Act, 2002, where the burden of proof is yet again reversed.
Two issues therefore arise: whether a public servant can remain under suspension, when it is prolonged until acquittal; and second, whether such suspension, when it is prolonged due to delays not attributable to the employee, amounts to collateral punishment. The first must be answered in the negative and the second in the affirmative. Suspension, particularly at a stage prior to the framing of charges, is inherently temporary, and must necessarily be for a limited period. Where it continues for an uncertain duration, without cogent reasons on record, it assumes a punitive character.
Extended suspension has become the rule rather than the exception, compelling the employee to endure stigma and financial hardship even before any formal charge is levelled, the distress is further compounded by the prospect of prolonged inquiry should charges be eventually framed. Furthermore, the character of an order is determined by its substance, not its label. The removal the Bill provides for lacks all characteristics of a dismissal, namely no inquiry, no findings, and no determination of guilt, and bears every feature of a suspension.
II. Extending Public Servant Status to Ministers: Judicial and Legislative Foundations
The framework in Balvantrai Ratilal Patel v. State of Maharashtra establishes that the power of suspension exercised by an appointing authority applies with equal force to ministers, who are consistently judicially recognised as public servants.
The deliberate inclusion of ministers within the public servant definition finds confirmation in legislative history: as far back as 1966, it was recommended that ministers of all ranks at both Central and State levels be included within the ambit of Section 2(28) of the BNSS, and it was subsequently translated into express form. Compensation granted under public law is not to be read narrowly; it is a means of making amends through monetary means for the breach of a public obligation towards the protection of fundamental rights, and operates independently of any contractual obligation, unlike private law.
Moving on, the statutory framework governing ministerial remuneration is the Salaries and Allowances of Ministers Act, 1952. The starting point is to ask what the word “salary” means when the Parliament uses it. It is not defined under the General Clauses Act, nor does any general law supply a meaning specific to ministers. The field is occupied by Section 15 of the Income Tax Act, read with Section 17, both of which presuppose an employer-employee relationship as the foundational precondition for salary taxation.
The 1952 Act does not merely borrow the framework; it actively defers to it. Consequently, while a minister may occupy constitutional offices, it does not alter the character of remuneration flowing from these offices. Parliament itself resolved any ambiguity on this point when it chose to govern pay through a statute it titled the Salaries and Allowances Act.
Salary becomes taxable on accrual and not on discharge, since accrual and discharge are legally distinct. A temporary removal that stops payment does not extinguish the underlying obligation; the salary continues to accrue even if it is not being received. Section 15(c) reinforces this by providing that any salary which is overdue and becomes payable is subject to tax. The obligation to pay exists at the time of removal, persists throughout, and is never extinguished by the act of removal, as is implicit in the Revenue’s act of taxing a minister’s salary arrears under the head “Salaries”.
Parliament expressly provides that a minister removed upon arrest is eligible for reappointment once released. Parliament does not legislate for reappointment without contemplating what it entails, and back pay for the period of wrongful removal is its immediate consequence. Under the Bill’s automatic cessation mechanism, the Parliament is the instrument of removal. When Parliament is both the instrument of removal and the author of the reappointment provision, the obligation to restore the minister’s full financial position is not an inference drawn from outside the law.
The existence of a constitutionally identifiable authority capable of both appointment and dismissal is fulfilled in the case of ministers as identified in Narsimha Rao. This position is further strengthened by the Public Trust Doctrine as invoked in Common Cause v. Union of India, which provides a standalone jurisprudential basis for the public servant status of ministers. By virtue of holding public office, ministers discharge duties on behalf of the public, including administering public property and distributing public benefits, and the doctrine flows naturally from that relationship.
III. Denial of Back Pay: Violation of Article 14 and the Basic Structure
This limb proceeds through two prongs: firstly, why a denial of back pay violates Article 14, and secondly, how this amounts to a breach of the basic structure doctrine. The Supreme Court held that Parliament cannot, in exercise of its amending power, destroy or alter the basic structure of the Constitution with the majority recognising Article 14 as an essential feature of that structure. This position was carried forward, where a Constitutional Bench held that any amendment which in itself violates a fundamental right forming part of the basic structure is liable to be struck down. The test applied was whether the amendment damages or destroys the identity of the Constitution by abrogating such rights. Taken together, these authorities establish that any constitutional amendment violating Article 14 in its basic structure dimension is open to challenge.
This paper advances the argument that this threshold under the twin test is not met on three grounds.
Firstly, the denial of back pay establishes a classification that is neither rational nor reasonable. In applying the same classification to all suspended or temporarily removed officeholders, the law effectively punishes those who may ultimately be vindicated, along with those whose behaviour warrants discipline. This is an instance of the over-deference criticized by Justice Bose. The fact that removal occurred without regard to outcome effectively renders the classification arbitrary and devoid of purpose.
Secondly, while such classification is prima facie valid, it is submitted that the legislative intent in denying back pay is disproportionate and punitive in nature, drawing from the test laid down in Modern Dental College. Manifest disproportionality arises where the severity of the restriction bears no reasonable relationship to the objective pursued. The provision fails on all four prongs.
The Statement of Objects and Reasons discloses no cogent administrative or legislative rationale for denying back pay to persons ultimately exonerated, and penalising the exonerated cannot constitute a legitimate State aim. Even assuming one could be identified, a blanket denial irrespective of outcome is manifestly unreasonable: it applies identical financial consequences to a convicted minister and one fully exonerated, treating materially different outcomes as legally indistinguishable. As the Supreme Court held in Anuradha Bhasin v. Union of India, the State must demonstrate that no less restrictive alternative was available before curtailing a Part III right; here, a graduated scheme conditioning denial on a finding of culpable misconduct, or extending it specifically upon exoneration, was readily available and plainly unconsidered. Finally, where the objective is at best procedural uniformity, the complete forfeiture of wages for persons ultimately found innocent is a severe intrusion under Article 14 against which no legitimate State interest has been placed on record. The provision accordingly fails all four prongs and is violative of Article 14.
Lastly, the equal treatment by the law of all suspended or removed persons also shows under-inclusion and over-inclusion, making the arbitrariness worse. While persons who deserve to be paid for their unjustified suspension are not paid, there are no provisions to make distinctions according to the nature and degree of misconduct.
V. Manifest Arbitrariness
The provision is also vitiated by manifest arbitrariness. The doctrine questions whether a provision, taken as a whole, reflects a legislative choice that is capricious, irrational, and devoid of any adequate determining principle, regardless of whether it satisfies the reasonable classification test.
Manifest Arbitrariness arises here on two grounds: first, the legislature’s failure to classify by recognising degrees of harm; and second, that the real purpose of the provision is not in consonance with constitutional values. Courts are further required to distinguish between the ostensible purpose claimed by the State and the real purpose identifiable from available material. In the absence of any stated justification, the ostensible purpose of the denial must be reconstructed from the Bill’s broader objective: preventing the criminalisation of politics and maintaining institutional integrity. Two questions must therefore be resolved: (a) what harm does the denial address within the Bill’s framework; and (b) what is the likelihood that this harm materialises at a scale that justifies the denial?
As to (a), the Bill does not target the harm of paying wages to exonerated ministers and therefore does not strike at the heart of the matter. The criminalisation concern relates to facing serious criminal proceedings, not to the financial consequences following reappointment. The denial of back pay does not advance the Bill’s stated purpose: a minister reappointed following release has, by the Bill’s own logic, been restored to eligibility, and the institutional integrity concern that animated the removal has at that point been resolved.
As to (b), the likelihood that acknowledging unjustified removal, through back pay, to reappointed ministers would undermine institutional integrity is negligible. The conviction rate in criminal cases against Indian politicians is just 6%, with acquittals predominating across states such as Kerala, Tamil Nadu, and Bihar. Under special penal legislation, the conviction rate over 2019–2023 hovers between 2% and 6%, implying a 94–98% probability of acquittal, 302 of 643 ministers across 28 assemblies and the Union Council face criminal cases, with 174 accused of serious offences. Read against the 6% conviction rate, the Bill will operate to remove and deny back pay to a large cohort of ministers who will, in the ordinary course, never be convicted.
The withholding upon reappointment is therefore not an incidental consequence of a well-calibrated legislative scheme, but the statistically near-certain outcome of a provision that makes no distinction between those ultimately found guilty and those who are not. It serves only to relieve the State of an obligation that its own reappointment provision has implicitly conceded is owed, the obligation to acknowledge that a removal, in a given case, was not warranted. This is precisely the hallmark of manifest arbitrariness identified in Association for Democratic Reforms.
The Bill’s silence on back pay is not a neutral omission since the State is exercising a removal power that it knows, or ought to know, will more likely than not be reversed by acquittal and reappointment. The absence of any stated legislative rationale is itself evidence of the absence of an adequate determining principle, the standard Shayara Bano requires. The real purpose of the denial is not the prevention of criminalisation of politics but the relief of the State from an accountability it would otherwise owe in the form the law recognises, the acknowledgement, through back pay, that a removal ultimately reversed by its own framework was unjustified. That is a purpose antithetical to the constitutional values of equality that Article 14 exists to protect.
It is further compounded by the provision’s complete failure to distinguish between categorically different classes of ministers: those who are ultimately absolved, whether by acquittal, discharge, or cessation of proceedings, and those against whom proceedings remain pending or culminate in conviction. The former has been restored to constitutional eligibility by the very framework the Bill creates; to deny them back pay on the same terms as the latter is to treat vindication and culpability as legally indistinguishable, which is precisely the kind of legislative indifference to degrees of harm that the ADR test identifies.
VI. Conclusion
The Bill tackles a genuine constitutional concern, namely, the infiltration of organised crime into political office, but it does so in a way that is constitutionally catastrophic in its consequences.
The distinction drawn in the Bill between appointed public executives and civil servants may be real but is entirely irrelevant to the object of institutional integrity, and the denial of back pay upon reappointment has no rational relation to any legitimate constitutional objective. This arbitrary classification does not simply violate but abrogates Article 14, inviting basic structure review under Kesavananda Bharati and I.R. Coelho.
I.R. Coelho draws a critical distinction between amendments that modify an essential constitutional feature and those that abrogate it altogether, holding that Parliament’s amending power stops where an amendment destroys rather than merely adjusts an essential feature. The test is not formal: it asks whether the right retains any real, effective content after the amendment. That distinction applies directly to the infirmity identified above. A defensible amendment might withhold back pay from ministers convicted after due process, or impose graduated consequences reflecting established wrongdoing. Such an amendment would qualify the right to equality without destroying it.
The provision therefore does not merely fail the reasonable classification test or the manifest arbitrariness standard, though it fails both, as demonstrated above. It reaches the higher threshold that I.R. Coelho sets: it does real and irreparable damage to equality under the rule of law, it cannot be saved by any legitimate constitutional objective, and it achieves this through deliberate silence rather than express extinguishment, a method that makes the harm no less serious for being indirect. Parliament cannot do by omission what it could not do by express provision. The amendment is therefore beyond Parliament’s constituent power under Article 368 and must be struck down on basic structure grounds.
Simar Aneja is a fourth-year law student at the National University of Juridical Sciences (NUJS),
Kolkata. Her interests lie in feminist legal theory, constitutional governance, and law and economics.