Constitutional Amendment on Ministerial Arrest and Removal

The Government of India introduced the Constitution (One Hundred And Thirtieth Amendment) Bill in 2025. It seeks to amend Articles 75, 164, and 239AA. These relate to the Union Council of Ministers, State Council of Ministers, and Delhi’s special administrative provisions. The Bill was referred to a Joint Parliamentary Committee for review. It mandates removal of a Minister if arrested and detained for 30 consecutive days for offences punishable by five years or more imprisonment.

Key Provisions of the Amendment

The Bill requires the President to remove a Union Minister arrested for such offences after 30 days of custody, based on the Prime Minister’s advice. If no advice is given, the Minister automatically ceases to hold office. Similarly, State Ministers are removed by the Governor on the Chief Minister’s advice. The Prime Minister or Chief Minister must resign or lose office automatically after 30 days of detention.

Discretionary Nature of Arrest

Arrest is a discretionary power of the police. It is not mandatory even for cognisable offences punishable by over seven years. Courts have upheld this discretion in cases like Deenan vs Jayalalitha (1989) and Joginder Kumar vs State of U.P. (1994). Police officers must justify arrests. Arrests without cause can harm reputation and dignity. Arrest by private persons is also strictly limited.

Concerns on Misuse of Arrest Power

Opposition parties worry about misuse of arrest power against political opponents. Police can act under political pressure. Past reports show many arrests are unnecessary. Courts have directed police to record reasons for arrest to prevent abuse. Arrest as a tool to remove Ministers could undermine constitutional morality and democracy.

Detention and Bail Issues

The Bill’s 30-day continuous detention clause emphasises the role of bail. Bail is a rule, jail an exception. However, bail is often denied on grounds beyond flight risk or evidence tampering. Seriousness of offence is considered a factor, conflicting with presumption of innocence. Special laws like PMLA, NDPS, and UAPA impose harsher bail conditions, reversing burden of proof. This complicates bail for Ministers.

Challenges with Bail and Ministerial Duties

Ministers may struggle to get bail due to their influence on witnesses and political position. They face a dilemma – remain Minister and risk detention or resign and lose office. Judicial discretion in bail decisions adds uncertainty. The Amendment does not account for default bail rights, which allow release if investigation delays exceed prescribed limits.

Implications for Governance and Justice

The Amendment aims to uphold constitutional morality by removing Ministers facing serious charges. Yet, it risks political misuse due to arrest discretion. The low 30-day detention threshold may lead to premature removals. Special statutes with stringent bail norms could disproportionately affect Ministers. Judicial safeguards and clear guidelines are essential to balance justice and governance.

Questions for UPSC:

1. Point out the challenges of discretionary police powers in the context of arrest and detention under Indian criminal law.
2. Critically analyse the impact of bail provisions under special statutes like the Prevention of Money Laundering Act (PMLA) and Unlawful Activities (Prevention) Act (UAPA) on the rights of the accused.
3. Estimate the role of constitutional amendments in strengthening or weakening democratic accountability in India. With suitable examples, discuss.
4. Underline the significance of judicial review in safeguarding fundamental rights during the arrest and detention process in India. How does this balance state authority and individual liberty?

Answer Hints:

1. Point out the challenges of discretionary police powers in the context of arrest and detention under Indian criminal law.

1. Arrest is discretionary, not mandatory, even for serious cognisable offences (Deenan vs Jayalalitha, 1989).
2. Police must justify arrests; arbitrary arrests harm reputation and dignity (Joginder Kumar vs State of U.P., 1994).
3. Wide discretion leads to risk of misuse, especially under political pressure.
4. Police often fail to record reasons for arrest as mandated by courts (Arnesh Kumar vs State of Bihar, 2014).
5. Section 41 CrPC and BNSS provide guidelines but lack mandatory arrest requirements.
6. Discretion complicates bail and detention, affecting accused’s rights and fair trial prospects.

2. Critically analyse the impact of bail provisions under special statutes like the Prevention of Money Laundering Act (PMLA) and Unlawful Activities (Prevention) Act (UAPA) on the rights of the accused.

1. Special statutes impose onerous bail conditions reversing burden of proof on accused.
2. Accused must prove innocence and non-recidivism at bail stage, unlike CrPC norms.
3. These stringent norms delay bail, causing prolonged incarceration (e.g., Manish Sisodia’s 17-month bail delay under PMLA).
4. Bail denial conflicts with presumption of innocence and fundamental rights.
5. Harsh bail provisions increase risk of misuse for political or other motives.
6. Impact – undermines fair trial, prolongs detention, and restricts liberty disproportionately.

3. Estimate the role of constitutional amendments in strengthening or weakening democratic accountability in India. With suitable examples, discuss.

1. Amendments can enhance accountability by removing Ministers facing serious charges (e.g., 130th Amendment Bill’s 30-day removal clause).
2. However, vague or low thresholds (like arrest and 30-day detention) risk misuse, weakening democracy.
3. Discretionary arrest power can be weaponized against opposition, undermining political fairness.
4. Past amendments (e.g., anti-defection law) have both strengthened and limited political dissent.
5. Judicial safeguards and clear guidelines are essential to prevent weakening democratic norms.
6. Balance between governance efficiency and protecting individual rights is crucial for accountability.

4. Underline the significance of judicial review in safeguarding fundamental rights during the arrest and detention process in India. How does this balance state authority and individual liberty?

1. Judicial review ensures arrest and detention comply with constitutional rights (Article 21
   Right to Life and Liberty).
2. Courts require police to justify arrests and prevent arbitrary detention (Joginder Kumar vs U.P., Arnesh Kumar vs Bihar).
3. Judicial oversight curbs misuse of police power and political victimization.
4. Balancing state’s duty to maintain law and order with protection of individual freedoms.
5. Judicial discretion in bail decisions protects liberty while considering public interest.
6. Judicial review acts as a check on executive overreach, upholding rule of law and constitutional morality.