INTRODUCTION: DEMOCRACY AT A CROSSROADS
Our Home Minister, Amit Shah, has recently introduced a new 130th constitutional amendment bill 2025 on 20th August 2025[1] This has led to intense debate across India’s political and constitutional landscape. This bill seeks to ensure that no Prime Minister, Chief Minister, Minister of the Government of India, or Minister of State continues in office on serious charges.
Union Home Minister argued that no Prime Minister, Chief Minister, or Minister in a country can run a government from jail.[2] And said that this measure would strengthen democratic values and public trust towards governance rather than weakening them. However, on the other side, opposition is worried about the vendetta politics and the risk of law being weaponized against dissent. Hence, this controversy demands a deeper exploration of the bill’s provisions to determine whether this law is a shield that strengthens democracy against corruption or a sword that can be turned against opposition and dissent.
KEY PROVISIONS OF 130TH AMENDMENT BILL 2025
At the heart of this bill lies a simple but transformative idea, which says that if a Prime Minister, Chief Minister, or any Union or State Minister is arrested on charges carrying a punishment of 5 years or more, and is not granted bail within 30 days, they shall automatically be relieved from their office.[3] This provision is made to ensure that a person facing prolonged judicial custody on grave charges cannot continue to discharge his/her constitutional duties.
The bill thus seeks to extend the moral yardstick already present in the Representation of the People’s Act Section 8[4], which disqualifies legislators only upon the conviction of offences with a punishment of 2 years and above. By shifting the trigger point from conviction to pre-trial custody, this amendment crosses into areas hitherto governed by political convictions rather than legal mandates. Thus, this shift has made the amendment a double-edged sword: while it plugs a moral vacuum on one side, it challenges the principle that a person is innocent until proven guilty on the other side.
THE RATIONALE: MORALITY AND GOVERNANCE
The government’s defence of the amendment rests on the statement that public trust in governance cannot be maintained if leaders continue to govern from jail. Amit Shah recalled how in earlier decades, leaders facing charges resigned on moral grounds, allowing the judicial process to take its course. He also emphasised his resignation during the CBI’s investigation against him, stressing that morality in public life is above electoral victories. Though granted bail on the 96th day, he did not take the oath until all the charges against him were discharged.
Further, Shah emphasised that the proposal does not selectively target the opposition, as some critics allege. He argued that it applied uniformly, even the Prime Minister’s office comes within the scope of this amendment, citing a departure from its past experiences, particularly when contrasted with the 39th Constitutional amendment of 1975[5] Which had notoriously shielded then Prime Minister Indira Gandhi from judicial scrutiny. By explicitly bringing the Prime Minister within its ambit, the present bill signals, in the government’s narrative, a higher commitment to transparency and accountability in public life.
Thus, the government frames the amendment, which acts not merely as a legal innovation but as a corrective measure to the declining tradition of political morality.
THE OPPOSITION’S CONCERNS
From the opposition’s point of view, this 130th amendment risks creating a precedent where constitutional law becomes vulnerable to political weaponisation. Their foremost anxiety is that in a country like India with a deeply adversarial political climate, investigative agencies could be pressed into registering cases against sitting ministers with a calculated aim of triggering their removal. In such circumstances, a 30-day bail provision may operate less as a safeguard and more as a sword, since delays in bail hearings, often routine in India’s overburdened judiciary, could effectively end political tenures without a trial ever commencing.
Secondly, even though the bill permits the provision of retaking the oath once bail is granted, critics argue that the reputational damage of a forced resignation is irreversible. In politics, where perception plays a major role and frequently outweighs legal outcome, the mere act of stepping down under judicial compulsion may permanently erode credibility irrespective of later acquittal.
Lastly, the opponents warn that the amendment violates the presumption of innocence until proven guilty, a constitutional cornerstone recognized under Article 21[6] And consistently upheld by the Supreme Court. The bill blurs the line between accusation and conviction, which is not merely a question of political morality but a constitutional fidelity to whether the state, in its zeal to enforce accountability, sacrifices the very rights that protect individuals from arbitrary state power.
JUDICIAL PRECEDENT AND CONSTITUTIONAL QUESTION
The Indian judiciary has consistently confronted the complex overlap between criminal accountability and the right to people’s representation. In Lily Thomas vs. Union of India, 2013[7], SC struck down a protective clause of the Representation of the People’s Act, which protects MPs and MLAs to hold their seat while appeals are pending, making clear that those guilty of serious crimes cannot legislate. But in Public Interest Foundation vs. Union of India[8]The court, by acknowledging the corrosive impact of criminalization in politics, refused to extend disqualification to those merely facing criminal charges, keeping in mind the principle of presumption of innocence until found guilty. Instead, it asked the Parliament to take a lead on addressing this gap.
Seen in light, the 130th amendment represents Parliament’s response to that judicial nudge. But it further leaves questions about disqualifying leaders in custody before conviction. If tested in court, questions such as whether this move erodes core democratic rights under Article 19(1)(a)[9] and 19(1)(c)[10] And whether it lets judicial timelines on bail dictate constitutional office will arise.
PARLIAMENTARY PROCESS AND ROLE OF JPC
Amit Shah has clarified that the bill will be referred to the Joint Parliamentary Committee (JPC), where representatives of all the parties may deliberate before it returns to the floor of Parliament[11]. Since the bill amends the Constitution, it requires a two-thirds majority from both houses.
The opposition has, however, attempted to block even the tabling of the bill, a move which Shah termed undemocratic, arguing that Parliament is a forum of discussions and not disruption.
COMPARATIVE LENS: LESSONS FROM OTHER COUNTRIES
Across the world, political accountability is usually guided by conventions rather than constitutional mandate. In the United Kingdom, for instance, ministers often resign when caught in a scandal or under investigation. However, this is driven by party pressure and public expectation, not by law.[12].
The United States takes a different route; here, the Presidents and Governors cannot be removed merely on arrest. Their accountability flows through impeachment or the ballot box, leaving criminal trials to run their separate course.[13].
Countries like South Africa rely on judicial rulings and parliamentary confidence votes to determine whether leaders should continue in office, keeping criminal proceedings distinct from political tenure.[14]
India’s 130th amendment stands apart in attempting to convert its moral expectation into constitutional text.
CONCLUSION: REFORM OR OVEREACH?
The 130th Amendment thus stands at the intersection of morality and constitutionalism. On one hand, it encourages clean politics and the taint of criminalization and restores public trust in governance. On the other hand, it risks the presumption of innocence, enabling political misuse.
Whether this measure emerges as a shield against corruption or a sword against opposition will depend not only on its final text but also on its implementation and judicial scrutiny.
Author(s) Name: Tanvi Aggarwal (UILS Panjab University Chandigarh)
References:
[1] PRS Legislative Research, ‘The Constitution (One Hundred and Thirtieth Amendment) Bill, 2025’ (PRS Legislative Research)< https://prsindia.org/billtrack/the-constitution-one-hundred-and-thirtieth-amendment-bill-2025> accessed 5th September 2025.
[2] Press Information Bureau, Government of India, ‘Union Home Minister and Minister of Cooperation Shri Amit Shah, in an interview to a news agency, shared his views on several important issues, including the Constitution (130th Amendment) Bill 2025’ (PIB, 25th August 2025) <https://www.pib.gov.in/PressReleasePage.aspx?PRID=2160539> accessed 5th September 2025.
[3] ibid.
[4] Representation of the People Act 1951, s 8.
[5] Constitution (Thirty-ninth Amendment) Act 1975.
[6] Constitution of India 1950, art 21.
[7] Lily Thomas v Union of India (2013) 7 SCC 653.
[8] Public Interest Foundation v Union of India (2019) 3 SCC 224.
[9] Constitution of India 1950, art 19(1)(a).
[10] Constitution of India 1950, art 19(1)(c).
[11] ibid.
[12] UK Cabinet Office, Ministerial Code (Cabinet Office 2022) para 1.3.
[13] US Const art II, § 4.
[14] Economic Freedom Fighters v Speaker of the National Assembly [2017] ZACC 47, para 5 (SA Const Court).
