The 130th Constitutional Amendment Bill: Reform or Retreat for Indian Democracy

Authored by Shivani Tripathi, a Research Scholar at the Faculty of Law, Banaras Hindu University 

The introduction of the 130^th Constitutional Amendment Bill, 2025, by the Home Minister Amit Shah on 20^th August, 2025, has sparked a fierce debate across the political spectrum in India. Supporters of the bill view it as a necessary step toward achieving cleaner governance; however, critics denounce it as an authoritarian assault on the essence of democratic federalism and on the theory of the rule of law. Amid vehement opposition, this bill has been sent to a Joint Parliamentary Committee for scrutiny; it's essential to examine its provisions, implications, and the broader context of criminalisation in Indian politics.

Understanding the 130th Constitutional Amendment Bill’s Core Provisions

Referring to the Statement of Objects and Reasons, the bill lists out several moral, ethical, and legal pedestals for elected representatives. The character and conduct of Ministers, as stated, should be ‘beyond ray of suspicion’, thus embarking on huge expectations. A Minister facing serious allegations may undermine the principles of constitutional morality, good governance, and public trust.

The 130^th Amendment Bill proposes to amend Articles 75 ( for Union Ministers), 164 (for State Ministers), and 239AA (for NCT of Delhi), of the Indian Constitution to establish an intelligible mechanism for removing ministers who are detained on charges punishable by imprisonment of five years or more and are detained for 30 consecutive days. The bill mandates that a Minister, when he is holding the office, is arrested and detained in custody for a consecutive period of thirty days on an allegation of committing an offence which is punishable with imprisonment of five years or more; he shall be removed from his office by the President/Governor on the advice of Prime Minister/Chief Minister, respectively, tendered within thirty days after being taken in custody. In cases of absence of such advice by the thirty-first day, the Minister shall lose his office automatically. Thus, mere custody, not framing of charges or conviction, is the criterion of disqualification. The amendment also applies to the Prime Minister and the Chief Ministers of states who are ousted by resignation. The amendment mentions a ‘Reinstatement Clause’, as the President/Governor can reinstate the Minister to his office after his release from custody. The Government of Union Territories (Amendment) Bill, 2025, and the Jammu and Kashmir Reorganisation (Amendment) Bill, 2025, were also tabled for similar amendments

The Criminalisation Crisis: By the Numbers

According to a report of the Association for Democratic Reforms (ADR), the 2024 Lok Sabha elections witnessed an alarming milestone: 46% of newly elected MPs (251 out of 543) have criminal cases registered against them, the highest proportion in India’s electoral history and representing a disturbing upward trajectory from 44% in 2019 and  23% in 2004. The 2024 data also points out that 170 Members of Parliament, which is 31%, are facing serious charges, including rape, murder, kidnapping, and crimes against women. The data reveal that candidates with criminal backgrounds paradoxically had better electoral prospects, with a 15.3% success rate compared to just 4.4% for clean candidates.

The observation of former Election Commissioner J.M. Lyngdoh’s is important here, as he said, while traditional “muscle power” has diminished due to EVMs and better monitoring, the contemporary form of criminalisation, driven by “money power”, has “criminalised not just the entire polity but the governance of the country”. The Vohra Committee Report (1993) exposed the nexus between politicians, criminals, and bureaucrats. The report found that criminal elements have penetrated deeply into the parliament and state assemblies.

Real-World Cases: The Catalyst for Change

The case of Arvind Kejriwal exemplifies the legal vacuum that the bill seeks to address. Although the former Chief Minister of Delhi was in judicial custody on charges related to Delhi’s liquor policy case, he remained in office for over five months, and the Supreme Court imposed a restraint on his visiting the secretariat during interim bail. The Tamil Nadu minister P. Senthil Balaji was removed from office by the Governor after his arrest and 15-month incarceration on money-laundering charges, but he was later reinstated following his bail. Subsequently, the apex court expressed dismay at his reinstatement, as a minister can influence the case's witnesses and potentially derail the trial, and forced him to choose between his post and liberty.

These cases highlight a fundamental constitutional gap: while ordinary citizens and public servants face disqualification from their positions if some charges are merely pending against them, no such provision exists for the highest offices in the land. The disqualification for MPs/MLAs is dealt with by an already existing law, The Representation of the People’s Act, 1951. A separate category of ‘Ministers’ has been carved out by the bill.

Judicial Landmarks on Disqualification

A series of Supreme Court judgments have shaped the contours of criminalisation and decriminalisation of politics in India. The landmark judgment of Lily Thomas v. Union of India (2013) struck down Section 8(4) of the Representation of the People Act, 1951, which allowed the convicted MPs/MLAs to continue to hold office on the ground that an appeal is pending against their conviction, and the Court ruled that the convicted MPs/MLAs cannot continue in their office merely by filing appeals. In Public Interest Foundation v. Union of India (2018), it was held that an electoral candidate can only be disqualified on his conviction, not merely on the charge framing stage. The Court declined to legislate from the bench, urging Parliament to fill this gap. In another ruling, Rambabu Singh Thakur v. Sunil Arora (2020), the Supreme Court held the Election Commission in contempt for failing to comply with the directives in the Public Interest Foundation case to disclose the criminal antecedents of an electoral candidate, underscoring the Election Commission's accountability under Article 324 of the Constitution. The significant judgments of Union of India v. Association of Democratic Reforms (2002) and PUCL v. Union of India (2003) upheld voters’ fundamental right under Article 19(1)(a) of the Constitution to have basic information about political candidates, and it is mandatory for the electoral candidates to disclose their criminal records.

Constitutional Concerns and Federal Tensions

The bill has faced vehement opposition from several quarters, particularly opposition-ruled states. The criticism centres on concerns that the bill empowers unelected authorities (President/Governor) to interfere with elected governments and also ignores the popular will of the people who elect them, and although they are theoretically independent, they operate on the advice of political personnel (PM/CM). In an increasingly polarised political environment, this raises legitimate questions about the potential misuse of the bill's provisions against opposition leaders.

Practical Problems and Implementation Challenges

Several practical issues emerge from a close examination of the bill:

1. Political Vendetta Concerns: In an era where central investigative agencies (CBI, NIA, ED) face repeated criticism (CBI referred to as ‘a caged parrot’) for selective targeting and functioning under the influence of the government in power, the bill could potentially weaponise arrests to harass the CMs and Ministers of opposition-ruled state governments. The timing of arrests, the choice of charges, and the speed of proceedings could all become tools of political manipulation in the hands of the ruling party, which is antithetical to federalism.

2. Violation of Natural Justice: In criminal proceedings, a person accused of an offence is presumed innocent until proven guilty by a court of law. But punishing the Ministers and penalising them by scrapping off their positions even before the judgment is clearly against the principles of natural justice and the rule of law.

3. Judicial Delays: Politicians often exploit legal technicalities to delay their trials indefinitely, thereby making the 30-day detention period routine rather than exceptional. Also, the requirement is for 30 days of “consecutive” detention, but there may be many instances in which a Minister can be detained for less than 30 days for serious offences. Also, there is no clarity as to what ‘serious offences’ are.

4. Reinstatement Clause: Allowing the re-appointment of a tainted Minister merely after the release from bail goes against the purpose of the bill.

5. Governance Instability: The frequent removals and reinstatements of PM, CMs, and Ministers can destabilise governance, particularly in coalition governments where individual ministers play a crucial role in representing the party.

6. Absence of Safeguards: The bill does not provide safeguards against frivolous or politically motivated allegations. Certain safeguards should be implemented in accordance with the recommendations of the Law Commission’s 244^th Report (2014).

7. Governor’s Powers: The office of the Governor is already facing criticism for overreach, and granting him such vast authority could render him a despot.

Probable Solutions: A Balanced Approach

Rather than rushing through this constitutional amendment, India should consider a more comprehensive and far-reaching electoral reform:

1. Fast-Track Special Courts: The special courts established to try cases against MPs and MLAs have been operational. The efficiency of these courts must be improved. As of 1st January, 2024, a total of 4,474 cases remain pending in these courts; thus, the courts are overburdened by case pendency. High Courts must closely monitor the pendency and give appropriate directions. The Law Commission's recommendations for disposing of politicians' cases within one year should be implemented rigorously.

2. Serious Offences: The parameter of including offences punishable with five-year imprisonment is a very wide one, as every such offence may not be ‘serious’. Thus, serious offences should be clearly demarcated.

3. Graduated Response System: Instead of a binary removal mechanism, implement a gradual system where ministers who are facing serious charges are first stripped of their ministerial status while retaining their basic member of parliament’s position till the pending outcome of the trial and then demitting their parliamentarian’s position if found guilty after the conclusion of the trial.

4. Enhanced Transparency Requirements: The existing norms for disclosing criminal antecedents should be strengthened by requiring real-time updates on case status, mandating public hearings for candidate selection by political parties, and imposing severe penalties for false affidavits in election nominations.

5. Political Party Accountability: Political parties should also be held legally liable for fielding candidates with serious criminal histories. Financial penalties and potential deregistration may be implemented for repeated violations.

The Way Forward

The 130th Amendment Bill is a sincere attempt to address a genuine problem of criminalisation of politics that has been affecting Indian democracy since long. However, its current form raises legitimate concerns that it disrupts the constitutional balance, creates political disorder, and could be misused; it is not possible to address the issue through hasty legislation. India needs a comprehensive approach that accelerates existing judicial processes, strengthens institutional oversight, enhances procedural transparency, and creates real incentives for political parties to nominate clean candidates, rather than concentrating power in the executive. The Joint Parliamentary Committee must carefully take into consideration these concerns while crafting a nuanced framework that achieves the objectives of clean governance and democratic fairness.