An amended Constitution Bill, its contentious issues, Pg6

Key Highlights:

• The central government introduced the Constitution (One Hundred And Thirtieth Amendment) Bill to amend Article 75, Article 164, and Article 239AA of the Constitution.
• The Bill mandates the removal of a Minister if arrested and detained for 30 consecutive days for an alleged offence punishable with imprisonment of five years or more.
• The President or Governor will remove the Minister on the advice of the Prime Minister or Chief Minister, respectively, to be tendered by the 31st day of custody.
• The Opposition has raised concerns about the discretionary power of arrest by the police and detention authorized by a court, fearing potential misuse.

Detailed Insights:

• The Bill stipulates that if the Prime Minister or Chief Minister is arrested and detained, they must either resign by the 31st day or automatically cease to hold office.
• The Bharatiya Nagarik Suraksha Sanhita (BNSS) provides conditions for arrest for offences punishable up to seven years, but it is not mandatory for a police officer to arrest in all cognizable offences.
• High Courts have acknowledged that the power of arrest is discretionary, and police officers are not always bound to make an arrest for cognizable offences.
• Concerns exist that the discretionary power of arrest could be misused to target leaders of Opposition parties, potentially leading to the unseating of Ministers.
• The Amendment does not account for default bail under Section 167(2) CrPC (pari materia Section 187, BNSS), which grants bail if the investigation is not completed within 60 to 90 days.
• The phrase "an offence under any law" includes complaints under special statutes like PMLA, NDPS, and UAPA, which have stringent bail conditions.
• A Minister's ability to influence witnesses due to their position of power may hinder bail, creating a difficult choice between continuing in office and obtaining bail.

Key Concepts Involved:

• Cognizable Offence: An offence for which a police officer can arrest without a warrant.
• Default Bail: The right of an accused to be released on bail if the investigation is not completed within a specified period.
• Triple Test: Factors considered for granting bail: flight risk, tampering with evidence, and threatening witnesses.