The relationship between law and morality has long occupied philosophers and jurists. Lon Fuller distinguished between the “morality of law” and the “morality of duty,” while H.L.A. Hart cautioned against over-moralising the law. For B.R. Ambedkar, however, constitutional morality was a distinctive demand in democratic governance. It required not only adherence to formal rules...
The relationship between law and morality has long occupied philosophers and jurists. Lon Fuller distinguished between the “morality of law” and the “morality of duty,” while H.L.A. Hart cautioned against over-moralising the law. For B.R. Ambedkar, however, constitutional morality was a distinctive demand in democratic governance. It required not only adherence to formal rules but fidelity to the underlying principles of justice, liberty, equality, and accountability. In the Constituent Assembly, Ambedkar warned that constitutional morality is not a natural sentiment and must be cultivated.
The Constitution (130th Amendment) Bill, 2025, as introduced in the Lok Sabha on 20th August 2025, forces us to revisit this philosophical terrain. It proposes that the Prime Minister, a Chief Minister, or any minister automatically lose office if kept in custody for thirty consecutive days for an offence carrying a sentence of five years or more. The measure is defended as an attempt to cleanse politics of corruption and to ensure that no leader governs from a jail cell. Yet it raises the fundamental question of whether legality can be allowed to replace legitimacy, and whether suspicion and detention can become constitutional grounds for political disqualification.
Historical context of Constitutional Change
To evaluate the amendment one must situate it within the broader history of constitutional amendments in India. Since 1950 the Constitution has been amended more than a hundred times. Some of these changes expanded democracy, others restricted it.
The 42nd Amendment of 1976, passed during the Emergency, is remembered for its sweeping and often problematic changes as it curtailed judicial review, diluted fundamental rights, and concentrated power in the executive. At the same time, it also carried enduring contributions such as strengthening the Directive Principles, adding Fundamental Duties, and inserting “Socialist” and “Secular” into the Preamble. The 44th Amendment of 1978, in contrast, sought to restore liberties and prevent another Emergency like situation by introducing safeguards around the suspension of fundamental rights. The 61st Amendment to the Constitution lowered the voting age from twenty-one to eighteen, thereby extending the franchise to millions of young citizens. The 91st Amendment of 2003 capped the size of ministries and strengthened the anti-defection framework to curb opportunistic politics.
These amendments illustrate the double-edged character of constitutional change. At times amendments have reflected the spirit of constitutional morality, deepening democratic accountability. At other times they have undermined it. The 130th Amendment belongs within this historical continuum. It is framed as a moral measure but risks producing effects that weaken rather than strengthen democracy.
The Amendment's core proposal
The text of the Bill is straightforward. If a minister, whether at the Union or state level, including the Prime Minister or a Chief Minister, is arrested and remains in custody for thirty consecutive days on charges carrying a maximum punishment of five or more years, their office falls vacant. The provision is to be inserted into Articles 75 and 164, which deal with the Council of Ministers at the Union and state levels. Parallel amendments are proposed to Article 239AA for the National Capital Territory of Delhi, as well as to the provisions governing Puducherry and Jammu and Kashmir.
The Statement of Objects accompanying the Bill declares that “the character and conduct of ministers should be beyond suspicion” and that allowing ministers to continue in office while incarcerated “may thwart principles of good governance and diminish the constitutional trust reposed by people.”The government has also justified this change by pointing to existing service rules for public servants, who are automatically suspended if they remain in custody beyond forty-eight hours. If such a rule applies to bureaucrats, the government argues, why should it not apply to constitutional authorities who exercise even greater public power?
Custody and the presumption of innocence
The primary constitutional objection to the amendment is that it conflates custody with culpability. The presumption of innocence is a cardinal principle of criminal law. Article 21 of the Constitution, interpreted expansively in Maneka Gandhi v. Union of India (1978), guarantees that no person shall be deprived of life or liberty except according to fair, just, and reasonable procedure. In State of Rajasthan v. Balchand (1977) the Supreme Court memorably affirmed that “bail is the rule, jail the exception.”
Yet the 130th Amendment would allow thirty days of incarceration, without trial or conviction, to trigger automatic disqualification from political office. This disregards the fact that under Indian conditions, custody is often the result of delay or prosecutorial strategy rather than proof of guilt. NCRB's Prison Statistics India, 2022 shows that more than seventy five percent of prisoners are undertrials. Their incarceration reflects systemic backlog rather than criminality.
Supreme Court jurisprudence has repeatedly underscored the dangers of prolonged pre-trial detention. In Hussainara Khatoon v. State of Bihar (1979), the Court directed the release of thousands of undertrials, holding that indefinite detention violated Article 21 of the Constitution. More recently, in Union of India v. K.A. Najeeb (2021), the Court granted bail under the Unlawful Activities (Prevention) Act, noting that continued detention without progress in trial offends constitutional liberty.
In this context, making thirty days of custody a constitutional trigger for removal from office risks penalising leaders not for their guilt but for the inefficiencies of the criminal process.
The bail conundrum and special laws
The situation is exacerbated by the bail regime under special statutes. The UAPA and PMLA contain provisions that make bail extraordinarily difficult. In NIA v. Zahoor Ahmad Shah Watali (2019), the Supreme Court interpreted Section 43D(5) of the UAPA to require courts to accept the prosecution's version at the bail stage, making release virtually impossible. In Vijay Madanlal Choudhary v. Union of India (2022), the Court upheld the “twin conditions” under Section 45 of the PMLA, which placed the burden on the accused to prove innocence before bail can be granted.
Empirical data confirms the impact. Between 2018 and 2020, nearly 4,700 people were arrested under UAPA, but only three percent were convicted. During the same period, over 5,400 cases were filed under the PMLA, yet only twenty-three led to conviction. In other words, the overwhelming majority of those arrested are either acquitted or remain in prolonged trial, but custody endures.
In such a framework, the 130th Amendment effectively transforms these bail restrictions into constitutional disqualifications. A minister charged under UAPA or PMLA may remain in custody well beyond thirty days, not because guilt is proven, but because bail is structurally denied. The amendment thus constitutionalises the phenomenon of “process as punishment.”
Selective scope and collective responsibility
A further concern is the selective scope of the amendment. It applies only to the executive, not to legislators. An MP or MLA may be arrested and remain in custody for months without losing their seat, and may even vote on laws or confidence motions. Yet a Chief Minister supported by that same legislature would be compelled to resign. This asymmetry undermines the doctrine of collective responsibility, enshrined in Articles 75(3) and 164(2). It suggests that the amendment's purpose is not a principled assertion of morality but a targeted mechanism to dislodge executives, particularly in opposition-ruled states.
Federalism and the potential for misuse
The federal implications are serious. Investigative agencies such as the Enforcement Directorate and the Central Bureau of Investigation fall under the control of the Union government. Opposition parties allege that these agencies are disproportionately deployed against non-ruling parties. A petition filed before the Supreme Court in 2023 noted that ninety-five percent of cases filed by these agencies against politicians since 2014 involved opposition members. Parliament was informed that in the past decade the Enforcement Directorate initiated 193 cases against politicians but secured only two convictions.
In this environment, the amendment risks being perceived as a tool for political manipulation. By ensuring that a Chief Minister is removed after thirty days in custody, the Union government could destabilise state governments through investigative processes rather than electoral contests. Some of the members have warned in the Lok Sabha that the amendment would “weaponise” custody to topple governments.
Such an arrangement conflicts with the spirit of federalism, recognised as part of the Constitution's basic structure in SR Bommai v. Union of India (1994). Just as the misuse of Article 356 to impose President's Rule was curbed by judicial review, so too must any measure that allows Union agencies to alter state governments without legislative sanction be viewed with caution.
Constitutional morality and democratic choice
Supporters of the amendment appeal to public morality, arguing that leaders facing serious allegations must step aside. This resonates with democratic expectations, as voters increasingly demand integrity in public life. The Association for Democratic Reforms has repeatedly highlighted the prevalence of criminal cases among legislators. Yet constitutional morality requires balancing integrity with liberty.
The Representation of the People Act already disqualifies legislators upon conviction for crimes carrying a sentence of two years or more. That provision is justified because conviction follows judicial determination of guilt. The 130th Amendment goes further, introducing what may be called a “disqualification by suspicion.” Philosophically, it privileges the appearance of morality over the substance of due process.
Ambedkar's warning remains relevant. Constitutional morality is not merely about outcomes but about cultivating respect for the means by which outcomes are reached. If removal from office is based not on conviction or legislative confidence but on the happenstance of custody, the amendment risks hollowing out the principle that power flows from the people through law and not from investigative discretion.
Conclusion: The choice before parliament
The 130th Amendment Bill is framed as an attempt to strengthen morality in public life. Its supporters argue that it places even the highest offices under the law, correcting the spectacle of leaders governing from prison. Yet by equating custody with culpability, it undermines the presumption of innocence, risks misuse by investigative agencies, and unsettles the federal balance.
India's constitutional history shows that amendments can both safeguard and erode liberty. The 42nd Amendment was justified in the language of stability but produced authoritarian concentration of power. The 44th restored balance. The 130th Amendment now poses a similar choice. Parliament must ask whether this measure reflects constitutional morality or violates it.
A democracy must be capable of punishing the guilty and protecting the innocent with equal vigour. Accountability can be secured by fast-tracking trials, strengthening bail safeguards, and enforcing political responsibility in candidate selection. It cannot be secured by allowing detention to displace conviction. If enacted, in the present form, the 130th Amendment would mark a shift from a democracy governed by the ballot and the legislature to one vulnerable to the contingencies of the lock-up. In seeking to purify politics, it risks polluting constitutional principles.
Views are personal.
Sources:
- PRS Legislative Research
- Maneka Gandhi v. Union of India, 1978 INSC 16
- State of Rajasthan v. Balchand, 1977 INSC 180
- Hussainara Khatoon v. State of Bihar, 1979 INSC 66
- Union of India v. K.A. Najeeb, 2021 INSC 50
- Arnesh Kumar v. State of Bihar, 2014 INSC 463
- NIA v. Zahoor Ahmad Shah Watali, 2019 INSC 456.
- Vijay Madanlal Choudhary v. Union of India, 2022 LiveLaw (SC) 633.
- Lily Thomas v. Union of India, 2013 INSC 456.
- SR Bommai v. Union of India, 1994 INSC 111
- NCRB, Prison Statistics India, 2022.
- Association for Democratic Reforms, Criminal Cases Against Legislators, 2024.
- Lok Sabha Debates, August 2025.
- Press Information Bureau, Statement of Home Minister Introducing the Bill, 2025.
- JURIST, Sarthak Gupta, India increasingly arrests, rarely convicts under controversial laws, 2022.