Democracy can’t be ensured from custody

The introduction of the Constitution (130th Amendment) Bill, 2025, in the Lok Sabha on August 20, 2025, marks a rare and candid acknowledgement that India’s Parliament and state legislatures are increasingly dominated by members facing criminal cases. The current Lok Sabha has 251 MPs with pending criminal cases, compared with
162 in 2009.

The Bill proposes that if the prime minister, ministers or chief ministers are arrested and detained in custody for 30 consecutive days for offences carrying a jail term of at least five years, they will automatically lose their position on the 31st day. While this is a step forward, it implicitly admits the possibility of individuals with serious criminal charges occupying the highest executive officers —including that of PM or CMs —and refusing to step down even if detained.

The Bill has rightly been referred to a Joint Parliamentary Committee (JPC) for further examination, though the committee has yet to be fully constituted, as the I.N.D.I.A. bloc has not finalised its participation.

There can be little disagreement that strong laws are needed to deal with top political executives facing grave criminal charges while in office. However, the proposed Bill is weak. Allowing them to continue in offices for up to 30 days while under detention could have disastrous consequences. 

Can a prime minister or chief minister in custody discharge their duties from jail? Should they be allowed to return to office after securing bail? Can an impartial investigation be conducted against a sitting PM or CM? Would they not use their authority and influence to obstruct the probe? At the same time, how do we ensure that the ruling dispensation does not misuse its power to target political opponents? The present Bill fails to strike this balance. 

The following framework could make the law more effective and credible: 

i. The PM, CMs and the ministers have different responsibilities and can continue to hold these offices as long as they enjoy the confidence of different institutions or individuals, like the Lok Sabha in the case of the PM, the state Vidhan Sabhas in the case of the CMs and the PM or the CMs in the case of Central and State Ministers, respectively. Therefore, they cannot be treated with the same set of provisions dealing with their criminal offences while still holding these constitutional positions.

ii. A minister who remains in detention for more than 48 hours should be deemed to have been removed from office. The PM or the CM concerned should immediately make alternative arrangements to ensure continuity of governance.

iii. The offices of the PM and CMs are critical to the functioning of the nation and states. They also enjoy the confidence of their respective legislatures and, through them, the confidence of Indian citizens and the states, respectively. However, there is a vast difference between the powers and responsibilities of the PM and CMs. Any interruption in leadership could have serious implications for national security, law and order and administrative stability. Therefore, while the removal of these top functionaries must be carefully regulated, they should not be subjected to the same provisions.

iv. The prime minister should be detained only if it becomes absolutely necessary and after the Supreme Court has carefully gone through the material placed before it by the investigating agency and gives its approval for his detention. The matter should be decided by the nine senior-most judges’ bench of the Supreme Court with a two-thirds majority, and then only the PM should be detained. And once the PM is detained, then he should be deemed to have been removed from his office, and the number two in the Cabinet must be sworn in as the PM. The new incumbent will have to seek the confidence of the Lok Sabha within 15 days of his becoming the PM. The PM thus removed can become eligible to become the PM again only after he is finally acquitted of the charges.

v. The provisions for the removal of the CM and his replacement should be similar to that of the PM as mentioned above, except that the Supreme Court bench of five senior-most judges should examine the material placed before it by the investigating agency and decide the matter through a simple majority.

The JPC must therefore be constituted without delay and should consult widely before finalising its recommendations. It should aim for strong, transparent that deter criminal elements from occupying high office, while safeguarding against political vendetta.

One can only hope that such laws remain on paper — never needed in practice. 

(The writer is a retired IAS officer)