130th Amendment Risks Turning Governance into a Remand Game

No governance from jail is the aim, but tying it to custody days risks another constitutional blunder

By P SESH KUMAR

NEW DELHI, August 21, 2025 — The Constitution (One Hundred and Thirtieth) Amendment Bill, 2025 proposes a hard stop to “governance from jail”: if the Prime Minister, a Chief Minister, or any Union/State minister is arrested and kept in custody for thirty consecutive days on an offence carrying a maximum punishment of five years or more, they must be removed on Day 31, with parallel changes for Union Territories and J&K.

The pitch is moral hygiene—the public cannot be served by jailed executives—while the fine print leans on a tidy symmetry with civil-service rules where detention triggers suspension. But between that promise and the parchment stand three red flags: due process and the presumption of innocence; the realpolitik of arrests under stringent economic-crime laws where bail within thirty days is rare; and a constitutional puzzle about rewriting ministerial tenure—traditionally governed by the “pleasure” doctrine and political accountability—through a mechanical clock.

The Bill might deter the odd defiant holdout; it might just as easily become a pressure device to topple elected governments by weaponising custody. Whether it survives judicial review and achieves its stated ends will depend on how precisely Parliament calibrates “serious crime,” how independently courts police custody, and how narrowly the removal mechanism is framed.

The trigger, the text, the timing

Across one monsoon afternoon, the government dropped a trio of moves: the 130th Amendment for the Union and states, plus companion changes for UTs and J&K. The centrepiece is simple in design and explosive in effect: thirty straight days in judicial custody for an offence punishable by at least five years, and the office falls away—first by advice-based removal, and if that advice is not tendered in time, by automatic cessation on Day 31.

A minister or PM/CM so unseated can be re-appointed after release. The declared intent is to end the spectacle of executives clinging to office from prison, a scene India witnessed in high-profile arrests since 2023–24. The Bills have been sent to a Joint Parliamentary Committee, but the political battle is already in full swing.

The government’s rationale—and why it resonates

The sales pitch is clean. There is currently no express constitutional bar on a PM/CM/minister remaining in office while in jail; removal relies on political convention, the “pleasure” clause (Articles 75 and 164), and public pressure. Civil servants, by contrast, are deemed suspended if their custody exceeds forty-eight hours; why should higher constitutional functionaries enjoy a softer standard?

The amendment, the argument goes, restores constitutional morality, re-aligns executive dignity with basic ethics, and spares the nation months of trench warfare over whether a leader should resign. As an anti-criminalisation headline, it lands.

The cracks in the foundation: due process, custody games, and PMLA gravity

Now the warts. First, the Bill predicates removal not on conviction, not even on framing of charges, but on custody duration. That inverts the presumption of innocence and yokes ministerial tenure to the pace and choices of police, ED or CBI remand practice and a magistrate’s satisfaction for continued detention.

In jurisdictions with aggressive economic-crime statutes and stiff bail thresholds, a 30-day clock is short enough to be crossed yet long enough to upend an elected executive. Recent reporting frames the opposition’s core fear exactly here: the combination of stringent laws like PMLA and the amendment’s custody trigger makes Day-31 removal a matter of prosecutorial momentum rather than adjudicative finding. The Supreme Court’s recent barbs at investigative excess add context—and legal tinder—to that critique.

Second, the choice of “five years or more” as the offence yardstick is both over- and under-inclusive. It sweeps in a wide band of allegations before any court even sifts evidence, yet perverse edge-cases remain: a powerful figure held in a complex case on a lesser head may slip the noose; another in a flimsy but “serious” case may be mechanically ousted.

The Leaflet’s close read underscores the mechanistic architecture: removal by advice on Day 31 or automatic cessation, followed by eligibility for re-appointment after release—a revolving door that both lowers the moral drawbridge and invites political gaming.

The constitutional terrain: pleasure, Parliament, and the Basic Structure shadow

Textually, ministers “hold office during the pleasure” of the President/Governor, with political responsibility enforced in the House. The 130th Amendment proposes to graft a hard constitutional disqualification onto what has historically been a political and conventional domain. That is not per se illegitimate—amendments can refine tenure conditions—but it raises a Basic Structure-flavoured worry: are we degrading parliamentary democracy and collective responsibility by turning ministerial survival into a custodial stopwatch? Expect challenges arguing that a custody-based ouster, decoupled from judicial findings, skews the balance among institutions and invites executive agencies to affect House composition indirectly.

The government will answer that Parliament can set ethical floors for constitutional offices and that any accused can avoid removal by securing bail. Courts will probe whether that “bail-or-be-sacked” structure is a proportionate restriction consistent with rule of law and fairness under Article 21.

Symmetry with the civil service? A false friend

The analogy to civil-service suspension is politically useful and constitutionally weak. Bureaucratic suspension upon >48-hour custody is an administrative measure within service law. Ousting a democratically appointed minister—especially a Chief Minister commanding a House majority—remakes the political executive through police-file dynamics.

Voters and the House, not service-rules logic, are the constitutional reference point here. Importing the “deemed suspension” ethos into cabinet tenure risks elevating expedience over electoral mandate.

What exactly is the opposition’s case?

The opposition’s critique has three sharp edges. One, misuse via custody, especially under economic-crime laws and the recent pattern of arrests: they see Day-31 as a turnkey to dislodge non-BJP governments without a floor test. Two, democratic inversion: the amendment imposes a mechanical ouster without conviction, replacing political accountability in the legislature with a magistrate-led custody clock.

Three, selective morality: if the same political culture resists transparency elsewhere, why the sudden absolutism here—especially with a re-appointment window that trivialises the claimed moral shock? Leaders across parties have already called it authoritarian and undemocratic; others, intriguingly, have backed the core idea while fretting about safeguards, signalling that the fight is not about the goal but the design.

Will the Bill do what it says on the tin?

In the best-case world, yes: it would have spared months of constitutional theatre when leaders chose to govern from jail, preserved administrative focus, and sent a loud signal that ministerial office carries a higher ethical bar than bare legal minimums.

But that world assumes arrests are made cautiously, custody is extended only on strong grounds, and bail decisions are swift and unsullied. In the world we live in, the incentive structure tilts toward pressing the Day-31 lever.

As India Today’s explainer notes, the PMLA bail lattice alone can make thirty days an easily crossed threshold; combine that with high-decibel politics and you have a recipe for perpetual churn rather than probity. The paradox, flagged by legal commentators, is brutal: the Bill may both legitimise a full month of “governance from jail” and then, in a stroke, convert custody mechanics into a weapon of regime change.

How the courts might read it

Two questions will dominate litigation. First, proportionality and due process: is automatic cessation after thirty days of custody, absent any adjudication on guilt or even a prima facie finding at the charge-framing stage, a proportionate means to the end of ethical governance?

Petitioners will cite the presumption of innocence and the risk of politically influenced arrests; the Union will retort that bail is the safety valve and voters deserve a functioning, untainted executive. Second, democratic structure: does a custody trigger, in effect, allow investigative processes to recast elected executives and upset House accountability, damaging parliamentary democracy’s core?

The government will argue Parliament is not writing on a blank slate: it is regularising a gap that recent episodes exposed, and no core feature is destroyed because removal is temporary and re-appointment is permitted after release. The court’s calibration—perhaps demanding higher thresholds like charge-framing or a reasoned judicial finding of grave suspicion—will decide the Amendment’s fate.

A better-designed fix: how to make it constitutional and actually useful

If Parliament truly wants ethics without arbitrariness, the trigger should hinge on judicial milestones, not mere custody duration: for example, cessation after framing of charges in an offence carrying seven years or more, or after a speaking order by a special court finding strong prima facie material; an expedited time-bound bail/hearing window within the thirty days; and a narrow carve-out for preventive detention to avoid abuse. Pair that with mandatory House briefings and judicial review on fast track, and the line between probity and politics sharpens. Anything less turns statesmanship into stopwatch. (For context, legislators are already disqualified upon conviction with a sentence of two years or more after Lily Thomas; ministers deserve higher ethical ceilings but not handcuffs to remand math.)

Ethics cannot ride in a police van

India deserves a simple rule: no one should run a government from a lock-up. The 130th Amendment reaches for that moral clarity—and then muddies it by tying removal to custody length instead of judicial thresholds, and by leaving re-appointment wide open after release.

It will likely chill blatant defiance; it will also turbo-charge incentives to manufacture Day-31. Unless the trigger is anchored to charge-framing or a court’s reasoned satisfaction—and unless bail and review are made genuinely swift—the Bill risks swapping one constitutional embarrassment for another: from governance by jail note to governance by remand order. The Supreme Court will smell that risk a mile away. The fix is not to abandon the goal but to re-engineer the instrument, so that ethics are enforced by law, not by the length of a lock-up ledger.

(This is an opinion piece, and views expressed are those of the author only)

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