The Constitution (One Hundred and Thirtieth Amendment) Bill, 2025, introduced in the Lok Sabha on August 20 by Union Home Minister Amit Shah, proposes amendments to Articles 75, 164, and 239AA of the Constitution, making it a significant Constitution amendment. The Bill seeks to disqualify elected leaders, including the Prime Minister and Chief Ministers, from office, if detained for 30 days or more on serious criminal charges.
The Bill has sparked a serious debate in Parliament, with all the Opposition parties vehemently opposing it. Even allies of the BJP such as the Telugu Desam Party have expressed certain concerns about the Bill. While the BJP claims the Bill promotes constitutional morality by barring detained leaders, critics argue it undermines the electorate’s mandate. These concerns are amplified by perceptions of partisan bias in institutions such as the Enforcement Directorate and Central Bureau of Investigation, whose lack of accountability casts doubt on the Bill’s anti-corruption intent. Such doubts are rooted in judicial critiques and a troubling institutional track record, which question the Bill’s true purpose.
Crisis of credibility
The functioning of the Enforcement Directorate has created doubts not only in the minds of the people but also among the judges of the Supreme Court. On the raid conducted on the Tamil Nadu State Marketing Corporation, Chief Justice of India B.R. Gavai on May 22 noted that the Enforcement Directorate had crossed all limits, and was totally violating the federal fabric of the country. Similarly on August 7, a Bench led by Justice Surya Kant, while hearing review petitions against the 2022 Vijay Madanlal Choudhary judgment, sharply remarked that the ED was behaving like crooks.
Over 10 years, the Enforcement Directorate filed 193 cases against politicians, but only two have resulted in conviction — a staggeringly low 1% conviction rate, the government told the Rajya Sabha on March 18. More worryingly, all these cases have been filed against Opposition politicians. An interesting example would be that of the former Delhi Chief Minister Arvind Kejriwal, who was arrested and granted bail after many months. Most important, the Prevention of Money Laundering Act cases, which ED investigates, come under the money Act, distinct from the police Act. In PMLA cases, the onus is on the accused to prove that he is not guilty. Section 45 necessitates twin conditions: the court should be convinced that the accused is not guilty and is unlikely to commit further offences. This reverses the burden of proof, unlike in most other criminal cases (for instance, those under the Indian Penal Code), where the prosecution must prove guilt.
Even if one grants the ruling BJP and proponent of the Bill the benefit of the doubt and accepts its claim that the Bill upholds constitutional propriety and demonstrates a genuine commitment to eliminating political corruption, the data paint a contrasting picture. According to the Association for Democratic Reforms (ADR), a disturbing trend has emerged under the BJP’s tenure: the proportion of Lok Sabha members facing serious criminal charges has more than doubled, rising from 14% in 2009 to 31% in 2024. Notably, BJP MPs constitute the largest share of these cases, with 63 MPs (26% of its total) facing serious allegations.
In Prime Minister Narendra Modi’s Cabinet in the third term, 28 of the 71 Ministers face criminal charges, with 19 accused of grave offences such as attempted murder and crimes against women. Ministers like Shantanu Thakur and Sukanta Majumdar are implicated in cases that could lead to 10 years to life imprisonment, if convicted. Similarly, in Mr. Modi’s second term, Union Minister of State Nisith Pramanik, appointed during the 2021 Cabinet expansion, faced 14 pending criminal cases, including allegations of murder and robbery. This stark contrast between the Bill’s stated objectives and the persistent presence of MPs with serious criminal charges raises serious questions about its effectiveness and intent. Doubts about intent make critics, rightfully, wonder if the Bill’s real intent is to stifle federalism in the country.
Constitution under siege
Article 1 of the Constitution declares that “India, that is Bharat” is a “Union of States”, emphasising the unity of States that embody India’s rich ethno-linguistic diversity. The Constitution clearly delineates powers between the Union government and the States, granting the latter significant autonomy in governance, particularly in the election and maintenance of their executives, such as Chief Ministers and State Ministers. This federal structure was reaffirmed by the Supreme Court in the landmark Kesavananda Bharati v State of Kerala (1973) judgment, which established the “basic structure doctrine”, and the S.R. Bommai v Union of India (1994) judgment, both of which recognise federalism as a fundamental and inherent feature of the Constitution. These rulings ensure that federalism, as part of the Constitution’s basic structure, cannot be amended by Parliament, safeguarding the balance between national unity and state autonomy. However, this Bill empowers Governors, appointed by the Union government, to dismiss an elected Chief Minister or members of his Cabinet. How could an appointee, who derives no legitimacy from the people, dismiss an elected representative? Such a move violates the basic fabric of the Indian constitution. Since Chief Ministers are head of the government, dismissing a Chief Minister could also result in dissolution of an elected government, resulting in indirect imposition of President’s Rule, overruling the safeguards under Article 356.
In India’s vibrant democracy, citizens elect their representatives — MLAs for the Vidhan Sabha and MPs for the Lok Sabha — who, in turn, select the Chief Minister and the Prime Minister, embodying the people’s mandate. The authority to appoint or dismiss a Chief Minister should rest exclusively with these elected representatives, as they reflect the electorate’s will. Dissatisfaction with a government or its leaders can be addressed by voters through the ballot in subsequent elections. However, removing a Chief Minister or Cabinet member during their term solely due to detention — without a conviction — risks undermining democracy. This concern is particularly relevant in India, where judicial processes are notoriously slow, with 70% of prisoners being undertrials and conviction rates in political cases languishing below 5%. Such premature dismissals, especially when followed by acquittals after due legal process, could constitute a grave injustice to the democratic will.
Against natural justice
Dismissing an elected representative merely for suspicion and detention breaches natural justice, which upholds the right to a fair hearing and the presumption of innocence. This should not be confused with an electoral ban on those who are convicted. A distinction between someone who is merely accused versus someone who is convicted has been made. If the government is genuinely committed to eradicating corruption, its primary focus should be to accelerate the judicial process, resulting in quicker conviction rates. As the saying goes, delayed justice is tantamount to justice denied. Delayed judicial outcomes also emboldens individuals to commit crime.
In India, more than 50 million cases are pending across the country. Some criminal cases go up to 50 years. This is because India has one of the world’s lowest ratios of judges to population, with just 21 per million people, compared with about 150 in the United States. Therefore, the long-term solution to eliminate corruption not just in politics but across all spheres is reforming the judicial process — one step in that direction would be increasing funds to hire more judges, improve court facilities, and digitise procedures.
Dharanidharan Sivagnanaselvam is the spokesperson of the Dravida Munnetra Kazhagam and deputy secretary of the party’s IT wing; views expressed are personal
Published – September 04, 2025 01:05 am IST