Introduction
Indian democracy is in a crisis of trust, and the problem of politicians with law-breaking backgrounds has definitely come to the forefront of concern. To address this, the government has proposed a bill called The Constitution (130th Amendment) Bill, 2024 which aims to remove ministers from office if they are arrested for a serious crime and have been kept in custody for 30 days. Although the intent to promote clean governance is an admirable one, the bill seriously concerns one regarding fairness and justice.
The mechanism provided under the bill does away with the court’s role in examining guilt and uses pre-trial detention as a trigger for removal from office. This creates an erosion of two fundamental principles that form the foundation of Indian law — the rule of law and presumption of innocence.
This article thus assesses how the amendment legislates for misuse as a political tool, undermines the judiciary’s authority, and punishes the accused before he has had an opportunity to exonerate himself. It analyzes how the amendment provisions create a setup open to political misuse, erode judicial independence, and deprive persons of their constitutional guarantee of a fair hearing. Ultimately, the article presents a series of practical and constitutionally sound changes to the legislation that will allow it to accomplish its stated goals while preserving the basic legal protections that make a just and democratic society possible.
The Legal Framework: The Presumption of Innocence and the Rule of Law
The Presumption of Innocence
The presumption of innocence is a legal principle which states that a person will remain innocent until proven guilty. A prosecutor is required to prove beyond a reasonable doubt that the accused has committed the crime if he wants to convict the person. To do so, proof must be shown for every element of a crime.
This legal maxim first entered American law with the 1894 Supreme Court decision, Coffin v. United States, in which the Court held that a person will be presumed innocent until proven guilty, establishing it as a fundamental aspect of criminal law.
Indian law inherited this principle from English common law, which stated that the prosecution bears the burden of proving guilt and that an accused person is considered innocent until that burden is met. Bharatiya Sakshya Adhiniyam, 2023, which replaced the Indian Evidence Act, 1872, does not explicitly mention this principle, but under Sections 104–106, the act places the burden of proof on the party who asserts a fact — in criminal trials, the prosecution.
The Supreme Court of India has consistently strengthened this principle in numerous judgments, declaring that presumption of innocence until proven guilty is a core legal and human right, protected implicitly under Articles 21 and 14 of the Constitution (Right to Life and Personal Liberty and Right to Equality).
In Suresh Thipmppa Shetty v. State of Maharashtra (2023), the Court held: “We have borne in mind the cardinal principle that life and liberty are not matters to be trifled with, and a conviction can only be sustained in the absence of reasonable doubt. The presumption of innocence in favour of the accused and insistence on the prosecution to prove its case beyond reasonable doubt are not empty formalities.”
The Rule of Law
The doctrine of the rule of law is considered the “supreme law,” meaning that no one is above the law, including the government, which must legislate and execute power in accordance with the Constitution. It ensures governance by clear, stable, and publicly known laws rather than by arbitrary will.
British constitutional theorist Albert Venn Dicey introduced the concept of rule of law in his 1885 book The Law of the Constitution. According to him, all individuals must receive equal treatment before the law, regardless of position.
Three Essential Elements of the Rule of Law (Dicey)
| Element | Description |
|---|---|
| Absence of Arbitrary Power | No one is above the law; no one should be punished except through ordinary legal procedures and before ordinary courts. |
| Equality Before the Law | All individuals, regardless of rank, are subject to the same laws and courts. There should be no special privileges for any class of person. |
| Supremacy of Ordinary Law | The constitution is the consequence of rights defined and enforced by courts. Courts are the primary guardians of individual rights. |
The 130th Amendment
The Union Home Minister Mr. Amit Shah introduced the 130th Constitutional Amendment Bill, 2025 in the Lok Sabha. The bill introduces a mechanism for the removal of the Prime Minister, Chief Ministers, and Ministers from office if they remain in custody for more than 30 days on serious criminal charges.
Main Provisions
- Mandatory Removal after 30 Days: Any Prime Minister, Chief Minister, or minister will be removed if arrested and held in custody for more than 30 days.
- Nature of Offence: Applies to offences punishable with imprisonment of five years or more.
- Amendment of Articles:
- Article 75 – Union Council of Ministers
- Article 164 – State Council of Ministers
- Article 239AA – Council of Ministers of the National Capital Territory of Delhi
- Removal Mechanism: The President (for Union) or Governor (for States) will remove the minister based on the advice of the Prime Minister or Chief Minister, respectively. The Prime Minister or Chief Minister must resign by the 31st day after arrest.
- Reappointment Clause: A minister may be reappointed upon release, provided they are not disqualified under other laws.
However, this mechanism raises serious constitutional concerns as removal is triggered merely by detention, not by conviction, thereby bypassing judicial due process established under Section 8 of the Representation of the People Act, 1951.
Analysis of the Impact on the Presumption of Innocence
The principle of “innocent until proven guilty” is a cornerstone of Indian criminal jurisprudence. The 130th Amendment undermines this by presuming guilt upon detention exceeding 30 days, effectively punishing individuals before judicial determination. It shifts the burden of proof from the prosecution to the accused and violates Article 21’s guarantee of a fair trial.
Such removal also tarnishes a person’s reputation and career, even if later acquitted, contradicting the core purpose of justice and rehabilitation.
Analysis of the Impact on the Rule of Law
The amendment dishonors the rule of law by allowing executive action to replace judicial determination. It undermines Article 50 of the Constitution, which separates the judiciary from the executive, allowing misuse of investigative powers for political motives.
This shift bypasses the principle of equality before the law under Article 14 and interferes with the right to legal representation under Article 22(1). Lawyers’ roles become time-bound rather than evidence-driven, reducing justice to administrative procedure.
Proposed Modifications
While the amendment seeks to reduce criminalization in politics, it risks undermining constitutional integrity. The following modifications can achieve clean governance without violating fundamental rights:
- Disqualification Upon Framing of Charges: Ministers should be removed only after a court frames charges following judicial review, not merely after 30 days in custody.
- Establishing a Quasi-Judicial Committee: An independent body of retired judges should evaluate the case and recommend action, ensuring neutrality and preventing political misuse.
- Preventing Criminal Candidates: Empower the Election Commission of India to verify and prevent candidates with criminal backgrounds from contesting elections, in line with Union of India v. Association for Democratic Reforms (2002).
- Temporary Suspension Instead of Mandatory Removal: Instead of automatic removal after 30 days, ministers could be suspended until bail or charge-framing decisions are made, ensuring fairness during judicial delays.
Conclusion
The 130th Amendment, despite aiming to clean up politics, poses a threat to democratic foundations. By equating detention with guilt, it undermines the presumption of innocence and weakens judicial independence. It risks transforming India’s constitutional democracy into one where administrative decisions override legal safeguards.
True reform lies not in bypassing the judiciary but in strengthening it. The integrity of a democracy depends not on how swiftly it punishes but on how justly it does so.
References
- Saroj Chadha, ‘The Constitution (130th) Amendment Bill – A View Point’
Times of India (Blog, 22 August 2025)
URL: https://timesofindia.indiatimes.com/blogs/blunt-frank/the-constitution-130th-amendment-bill-a-view-point/
Accessed 16 September 2025 - Coffin v. United States, 156 U.S. 432 (1984)
- 2023 SCC OnLine SC 1038
- Richa Goel, Priyanka Sharma, Tejaswini Kaushal and Jaanvi Jolly, ‘Separation of Powers’ (iPleaders, updated 2024)
URL: https://blog.ipleaders.in/separation-of-powers/
Accessed 16 September 2025 - Sakshi Gupta, ‘130th Constitutional Amendment Bill, Key Provisions and Significance’
StudyIQ (Blog, 26 August 2025)
URL: https://www.studyiq.com/articles/130th-constitutional-amendment-bill/
Accessed 14 September 2025 - ‘Constitution 130th Amendment Bill 2025 Sent to Joint Parliamentary Committee Amid Uproar: Key Provisions, Article 75 Amendment Explained’
Indian Express (20 August 2025)
URL: https://indianexpress.com/article/explained/explained-politics/130th-amendment-bill-2025-join-committee-all-you-need-to-know-10200955/
Accessed 16 September 2025 - ‘Removal of Ministers Under Serious Charges’ Drishti IAS (22 August 2025)
URL: https://www.drishtiias.com/daily-updates/daily-news-analysis/removal-of-ministers-under-serious-charges
Accessed 16 September 2025 - ‘Custody is Not Conviction: The Threat to Rule of Law’ (ORF Expert Speak, 2024)
URL: https://www.orfonline.org/expert-speak/custody-is-not-conviction-the-threat-to-rule-of-law
Accessed 16 September 2025 - 2002 5 SCC 294
