A double failure

Key Highlights:

• The Constitution (One Hundred and Thirtieth Amendment) Bill, 2025 mandates the removal of a Prime Minister, Chief Minister, or minister if they remain in custody for 30 consecutive days on charges punishable by five years or more.
• The President or Governor is bound to act on the advice of the head of government, and if no advice is given, the office falls vacant automatically, though reappointment is technically allowed after custody ends.
• The Bill lowers the threshold for disqualification to pre-trial detention, contrasting with the Representation of the People Act, which requires conviction.
• The Bill centralizes power, giving the PM or CM the sole authority to advise removal, potentially undermining the collegial nature of the council of ministers.

Detailed Insights:

• The Bill raises concerns about unsettling the Constitution’s basic structure, ignoring judicial precedents, and weakening the collegial sanctity of the council of ministers.
• The difficulty of obtaining bail, especially in Prevention of Money Laundering Act (PMLA) cases due to stringent conditions under Section 45, can lead to prolonged detention and misuse of the 30-day custody trigger.
• While judicial review of the President’s or Governor’s order is available, the elected leader is already removed by the time courts decide, thus setting aside the people’s choice.
• The Bill weakens the basic structure of the Constitution by shifting decisive power from Parliament and courts to the unelected executive, eroding parliamentary democracy and the rule of law.
• The dilemma lies in balancing the concern that those in jail cannot be allowed to govern with the dangers of potential misuse, especially given the precedent of investigative agencies being active against opposition politicians.

Key Concepts Involved:

• Basic Structure: The fundamental principles of the Constitution that cannot be altered by amendments.
• Collegial Sanctity: The principle of collective responsibility and decision-making within the council of ministers.
• Judicial Review: The power of the judiciary to examine the constitutionality of legislative or executive actions.