The Perils of Governing by Arrest

The Centre’s bid to enforce political morality through constitutional amendment risks empowering investigative agencies at the expense of democratic mandate.

Can a government be ethically run from a prison cell? That is the central question behind the Constitution (130th Amendment) Bill, introduced in the Lok Sabha by Union Home Minister Amit Shah in August last year. The draft legislation mandates that if a Prime Minister, Chief Minister, or cabinet minister is detained for 30 consecutive days for an offense carrying a sentence of five years or more, their tenure automatically ceases on the 31st day. Yet, what the treasury benches view as a strike for political morality, critics see as a weapon for executive overreach. The intense political friction—which drew concern even from the BJP-allied AIADMK—ultimately pushed the bill to a Joint Parliamentary Committee (JPC). Led by BJP MP Aparajita Sarangi, the JPC has now become another battleground of India's fractured democracy, completely boycotted by an oppsition convinced their dissent will be flatly ignored.

Despite the ruling party’s criticism of the opposition, the bill’s true test will be on the floor of Parliament. The JPC is slated to adopt its report by mid-July, after which the bill will be tabled during the Monsoon Session. A similar push during a special session amid assembly elections failed when bills for women’s reservation and delimitation fell short of a two-thirds majority. While securing that majority for the 130th Constitutional Amendment Bill remains a steep challenge, recent political realignments might favour the government. The split in the Trinamool Congress (TMC) and the defection of six Thackeray-faction Shiv Sena MPs to Eknath Shinde’s NDA-aligned camp have altered the math. Additionally, the DMK’s exit from the INDIA alliance raises questions about whether they might now favour the ruling coalition, potentially by abstaining. Speculation aside, the immediate priority is to evaluate the bill's inherent strengths and limitations.

Legal Vacuum

When then Delhi Chief Minister Arvind Kejriwal was arrested in 2024 over liquor policy irregularities, he took the unconventional step of holding onto his post. He spent 79 days in prison before the Supreme Court granted him bail—though with strict conditions from a separate case that barred him from the secretariat and his own office. Kejriwal eventually resigned, but his actions provoked a historic question: Can a Chief Minister legally run a government from prison? While the conundrum is undoubtedly more ethical than legal—as confirmed by the Delhi High Court’s ruling that the Constitution lacks any explicit bar on a jailed leader governing—the government is now attempting to codify a solution within the legal framework. In response to this legal vacuum, it has pushed forward a constitutional amendment bill. Yet, despite its ostensibly noble objective of ensuring clean governance, this legislative fix carries complex, multi-faceted implications that demand intense scrutiny rather than wholesale acceptance.

The 30-Day Trap

Despite an opposition boycott of the JPC meetings, the committee gathered input from top legal institutions, such as the National Law University (Odisha) and the National University of Juridical Sciences (Kolkata). The representatives backed the bill's intent but flagged a major flaw: a controversial clause mandating the automatic removal of a Minister, Chief Minister, or Prime Minister after 30 consecutive days in custody. Experts warned that ousting an elected official without a proven offense or charge sheet violates core principles of justice, rendering the bill legally fragile and ripe for constitutional challenge.

The “30-day” removal timeframe is fundamentally impractical and inconsistent with existing legal frameworks, which allow investigative agencies to seek custody for up to 90 days. Despite government claims that 30 days is sufficient to secure bail, high-profile cases prove otherwise: Arvind Kejriwal secured bail only after 79 days, and Hemant Soren, who resigned immediately upon arrest, was later granted bail with the court noting a lack of prima facie evidence. Furthermore, this provision subverts democratic principles. Chief Ministers and Prime Ministers are accountable to the Legislative Assembly and the Lok Sabha respectively. The mandate to retain a leader belongs exclusively to the elected MLAs or MPs—so long as a premier commands a majority in the House, no external mechanism should dictate their removal.

This is the crux of the matter. Critics and academics contend that stripping an elected official of office based merely on a 30-day custodial remand directly undermines the sovereignty of both the legislature and Parliament. To let investigative agencies effectively dictate the tenure of a Minister, Chief Minister, or Prime Minister is a recipe for institutional chaos. Moreover, allowing state agencies to arrest Union Ministers—or Central agencies to arrest state Chief Ministers—invites a dangerous constitutional showdown. This severely exacerbates existing friction, particularly at a time when the opposition is already deeply aggrieved by the weaponization of central agencies.

Undermining Due Process

The government’s own data, tabled in the Rajya Sabha, lays bare the flaws in this approach: of the 193 cases launched by the Enforcement Directorate (ED) against political figures over the last decade, a mere two have ended in convictions. Given this dismal track record, dismissing a top executive before a chargesheet is even framed is manifestly unjust. An arrest is neither a definitive judicial verdict nor proof of guilt, leaving a fundamental question unanswered: what legitimate purpose does this bill actually serve?

Critiquing the limitations of this Constitutional Amendment Bill is not a rejection of political integrity or morality. Rather, it is a defence of due process. There is no law that compels an accused individual to resign; such decisions have historically been matters of personal conscience. For instance, L.K. Advani resigned immediately on moral grounds after being named in the Jain Hawala case, requiring no statutory coercion. Under current laws, a lawmaker's membership is automatically terminated only upon a conviction exceeding two years—a threshold that safeguards the judicial process. Unseating a leader based on a mere 30-day arrest completely bypasses judicial review, risking weaponization as a tool for political vendetta and defeating the bill's ostensible purpose.

Furthermore, data from the Association for Democratic Reforms (ADR) reveals a stark paradox: 251 MPs elected to the 2024 Lok Sabha—amounting to 46 percent of the House—face pending criminal cases. It is deeply ironic that political parties routinely nominate these individuals, only for them to sit in Parliament and vow to legislate against the very criminality they embody. Yet, while the Act purports to target only serious offenses, it entirely evades a more fundamental crisis: the crippling lethality of judicial delay. If charges are pressed against high-ranking officials, will courts be forced to fast-track their cases? Because the future of democracy hangs in the balance, it is entirely reasonable to fear that ordinary citizen, already trapped in a lifetime of legal limbo, will be pushed even further back in line.

Furthermore, while the 130th Amendment Bill cloaks itself in the rhetoric of “political purification,” it dangerously blurs the line between accusation and proven guilt, raising the terrifyingly real threat of political vendettas. Moral crises cannot be legislated away. Rather, a far more potent solution is the outright disqualification of candidates with criminal backgrounds. True democratic preservation relies on the strength of institutional conscience, not the blunt force of a statutory trap.

(The writer is a political commentator. Views personal.)