Democracy at the Mercy of Constitutional Morality;”The 130th Amendment Act”
The 130th Constitutional Amendment Bill 2025, along with two related bills for Jammu and Kashmir and other Union Territories, was introduced by the government in Parliament on August 20, 2025. The bill’s main provision is that if the Prime Minister, Chief Minister, Union Cabinet Ministers, or State Council Ministers are arrested on criminal charges and fail to get bail within 30 days, they will automatically cease to be ministers on the 31st day. The bill proposes amendments to articles 75, 164, and 239AA of the Constitution, which deal with the Union Council of Ministers, Council of Ministers in the states, and ministers in Union Territories, respectively.
A minister, who for any period of 30 consecutive days during holding the office as such, is arrested and detained in custody, on allegation of committing an offence under any law for the time being in force, shall be removed from his office by the president on the advice of the prime minister to be tendered by the 31 days after being taken into custody. Provided that if the advice of the prime minister , for the removal of a minister, is not tendered to the president by the 31st day, he/she ceases to be a minister, with effect from the day falling thereafter.
However, the bill has been referred to a joint committee of parliament, which will have to submit its report by the winter session of the parliament.
Accountability Loophole
Certain public officials remain in office despite facing legal proceedings. Such instances of abuse of office or refusal to resign have prompted legislative amendments. Historically, constitutional practices often depended on unwritten conventions. Typically, individuals charged with serious offenses would resign, either due to ethical considerations or pressure from party leadership. However, adherence to these unwritten norms has diminished over time.
Historical developments illustrate the erosion of these principles. For instance, Jayalalithaa was re-elected and assumed the position of Chief Minister despite her conviction. Only a Supreme Court ruling forced her resignation, highlighting how unwritten norms failed to ensure accountability. This event marked a significant departure from established tradition and indicated the emergence of a troubling trend.
A further example is the case of V. Senthal Balaji, who was arrested by the Enforcement Directorate in 2023 on allegations of involvement in a cash-for-jobs scam and subsequently spent several days in custody. As a result, the governor of Tamil Nadu removed him from his ministerial position. In September 2024, the Supreme Court granted him bail due to the anticipated length of the trial. Shortly after his release, Balaji was reinstated as a minister. When the Enforcement Directorate petitioned the court to revoke his bail, citing concerns that he might use his official position to influence the proceedings, the Supreme Court required him to choose between remaining on bail or retaining his ministerial office.
The case of Arvind Kejriwal, then Chief Minister of Delhi, further exemplifies this issue. Accused in the excise policy scam, he spent several months in jail while continuing to govern from custody. In response to such situations, the government introduced this bill to prevent similar occurrences in the future.
It is clear that politicians facing serious charges should not be running the government. At the same time, it is also true that many cases today seem to appear without real cause, much like some new laws. While it is important to set clear rules, the government should not draw these lines too quickly or without careful thought.
Constitution on Trial
One of the major challenges facing Indian democracy today is the increasing criminalization of politics. The 2024 Lok Sabha elections highlight this issue—46% of the elected MPs (251 out of 543) have pending criminal cases against them. Among these, 31% (170 MPs) face serious charges such as murder, attempted murder, and even crimes against women. Compared to the 17th Lok Sabha, where 43% of MPs had criminal cases and 29% faced serious accusations, these figures are slightly elevated. This trend is not confined to any single political party; all major political entities—regardless of size or region—continue to nominate candidates with criminal histories. For instance, 39% of BJP MPs and 49% of Congress MPs have reported criminal cases. Regional parties reflect similar statistics: TMC has 45%, TDP 30%, Samajwadi Party 57%, DMK 59%, and Shiv Sena leads with 71% of its MPs under legal scrutiny.
According to the Constitution, legislators can be disqualified under specific conditions such as a change of citizenship, bankruptcy, mental incompetence, or holding an office of profit. The President makes this determination at the Union level based on the Election Commission’s recommendations. Additionally, in 1951, Parliament enacted the Representation of the People Act. Section 8 of this Act addresses criminal convictions. Previously, Section 8(4) permitted a convicted MP or MLA to remain in office for three months, allowing time for an appeal to a higher court. However, in 2013, through the landmark Lily Thomas case, the Supreme Court nullified this provision, asserting that an individual is automatically disqualified upon conviction. The only means to retain their position is if a higher court places a stay on their conviction. Thus, a framework already exists to remove convicted legislators while upholding due process.
Conversely, the new 130th Constitutional Amendment Bill proposes a radically different approach. Rather than disqualification based on conviction, it suggests disqualification based on arrest which poses significant risks. An arrest does not equate to guilt; it is merely an action taken by the executive, often influenced by law enforcement or the ruling authority. If disqualification is based solely on arrest, it would enable the removal of elected officials without any trial or conviction, solely due to allegations. This undermines the electorate’s will and obscures the distinction between accusation and established guilt.
The Bill also presents critical constitutional concerns. First, it contravenes Article 14 due to the arbitrary and unreasonable nature of the 30-day disqualification period. Second, it undermines Article 21, which affirms that no individual can be deprived of life or liberty without due legal process. The existence of an FIR, an investigation, or even the formulation of charges does not imply guilt our judicial framework operates on the principle of presumption of innocence until proven guilty.
Third, it disrupts federalism by altering the criteria for the formation and qualification of cabinets at both Union and State tiers. Most crucially, it challenges the Constitution’s basic structure by permitting an executive action like arrest to invalidate the democratic choice of the populace.
This constitutes a direct threat to the foundational principles of rule of law, parliamentary democracy, and shared accountability.
Arrest Challenges Democracy
The foundational concept of the criminal justice system is that one is considered innocent until guilt is established, which implies a clear presumption of innocence until a conviction is rendered, a decision that should resonate through all court levels, up to the Supreme Court. In fact, a plea of not guilty is only made when formal charges are brought against an individual. This stands in direct contrast to the ideal of natural justice, which maintains that one is innocent until proven guilty.
There exists a presumption of innocence, which indicates that legal action should only take place after charges are formally presented to the court, and action should only result following a conviction. Interestingly, the law stipulates that if someone is convicted of a crime warranting a sentence exceeding two years, they will automatically be disqualified from holding their position; this is already enshrined in law. However, the current situation allows a complete bypass of this legislative framework, whereby an executive action such as arrest leads to the immediate termination of a minister’s role. Furthermore, the issue of potential reinstatement introduces another layer of complexity.
Ideally, a fundamental principle of the criminal justice system asserts that one remains innocent until proven guilty. The act of being arrested does not equate to establishing guilt. Instead, it should be stipulated that if a person is charged with serious offenses, such as cheating, which carry a minimum punishment of five years or more, they could be dismissed from their ministerial position.
A Westminster Perspective
Under the Westminster model of parliamentary democracy, which is practiced in the United Kingdom, the ministerial code is essential to upholding accountability and public confidence. This code expects ministers to resign if they are proven to have violated ethical or constitutional responsibilities, and many have done so in recent years. This is a reflection of the Westminster system’s long-standing tradition of political accountability.
However, in India, the situation has deteriorated over time. These days, the majority of ministers, including chief ministers, have a tendency to brazenly claim that a political “witch hunt” is the reason they should remain in office. The government has proposed a legislative framework to address these circumstances because of the deterioration of moral conventions. Naturally, the issue is raised: why can’t India operate under a recognized and acknowledged ministerial code if the United Kingdom can, according to the Westminster tradition?
The diverse political cultures provide the straightforward explanation. Political resignations are viewed as a show of tradition and integrity rather than weakness in the UK. The code works as planned since the system discourages witch hunts. However, the weaponization of charges against political opponents has made resignation uncommon in India, where it is frequently interpreted as a sign of submission to opposition forces rather than of accountability.
Morality or Politics
Dr. B.R. Ambedkar said that constitutional morality is not a natural sentiment. It has to be cultivated. We must realize that our people have yet to learn it. Democracy in India is only top dressing on indian soil, which is essentially undemocratic.The Greek historian George Grote coined the term “constitutional morality” in the nineteenth century, claiming that it is an essential condition of government to diffuse constitutional morality.
Constitutional morality beyond the literal wording of the Constitution; it encompasses its essence, its omissions, and the behavior anticipated from public officials. However, morality and coercion are confused when the government tries to tie morality to laws like the “31-day arrest rule.” We are aware of the potential for abuse of arrest powers under legislation such as the PMLA or the BNSS. Saying that a Chief Minister or Minister should be removed after 31 days in detention is tantamount to entrusting democracy to the whims of the police and political vendettas.
This is not morality, but rather political control. It aims to frighten opponents, rein in allies, and destabilise even powerful state governments. History demonstrates that morality must be experienced and developed; it cannot be enforced by law. Every time the law has attempted to enforce it, it has failed.
A political culture based on integrity and restraint is what India needs, not a fanciful, law-driven morality. Otherwise, the concept of “constitutional morality” is reduced to mere political jargon.
Preserving Rule of Law
Thus, by attempting to instil a fictitious sense of constitutional morality, we are aware. What we are doing is appointing an investigating officer as the boss of even the Prime Minister of India. This bill’s implications are so strong that they are currently unfathomable. This bill will eventually cause the opposition government to become unstable, which will serve as a recipe for inciting and facilitating defection. The spirit of the anti-defection statute will be broken as a result of this, as politicians will engage in horse trading and cross the floor in pursuit of financial gain.
Ultimately is merely a diluted expression of the people’s will; the people’s collective right has been infringed. However, this law has nothing to do with what is known as morality. The federal government will unleash a Pandora’s box for misuse of state resources by introducing this measure.
According to what Sir Winston Churchill stated in the House of Commons on October 31, 1944, “the little man, walking into the little booth with a little pencil, making a little cross on a little bit of paper, is at the bottom of all the tributes paid to democracy.” However, the very core of democracy would be shattered if the measure were to become law. In the end, this bill will only be utilised in states that are run by the opposition, regardless of whose government is in power.
Consequently, this Bill does not provide a suitable answer, even though the criminalization of politics is a serious issue that needs consideration. Rather than solving the issue, it creates opportunities for abuse, since governments can simply detain opposition leaders to disqualify them. If passed, it will increase democracy’s vulnerability to executive overreach rather than cleanse politics. Nonetheless, the public should be assured that ministers who are charged with grave crimes will not be allowed to continue in their positions.
Written By: Pranav Kumar Pandey
3rd Year Law Student, University of Lucknow.
