30 Days in Custody: Can Parliament Mandate the Removal of a Minister?

By Mahima Katal

New Delhi, July 2: The Joint Parliamentary Committee (JPC) examining the Constitution (130th Amendment) Bill, 2025 is expected to finalise its report on July 17, with indications that it will retain one of the Bill's most debated provisions—the proposed removal of the Prime Minister, Chief Ministers and other ministers if they remain in judicial custody for 30 consecutive days in connection with serious criminal offences.

While the proposal has been presented as a measure to strengthen public accountability, it has also triggered a constitutional debate over executive power, the presumption of innocence and the possibility of political misuse.

What does the Bill propose?

The Constitution (130th Amendment) Bill, 2025 seeks to introduce a mechanism under which a minister accused of an offence punishable with five years or more of imprisonment could cease to hold office if they remain in judicial custody for 30 consecutive days.

According to the draft proposal, the removal may take place either:

• on the advice of the Prime Minister or Chief Minister to the President or Governor, respectively; or

• automatically on the 31st day of continuous judicial custody.

The Bill is expected to be taken up during the Monsoon Session of Parliament, likely to commence on July 20, after the JPC submits its report.

The constitutional question

The proposal raises a fundamental constitutional issue:

Can Parliament prescribe a statutory ground for removing a minister solely because they remain in custody, even though they have not been convicted of any offence?

Under the Constitution, ministers hold office during the pleasure of the President or Governor, exercised on the aid and advice of the Prime Minister or Chief Minister. Traditionally, removal has remained a matter of executive discretion and constitutional convention rather than statutory compulsion.

The proposed amendment would, however, create a constitutional trigger linked to judicial custody instead of conviction. This shifts the debate from political accountability to constitutional design.

Accountability versus presumption of innocence

Supporters of the amendment argue that public office demands higher ethical standards than ordinary employment.

According to members supporting the Bill, a minister who remains in judicial custody for a month has already received sufficient opportunity to seek bail before competent courts. They contend that continuing in executive office while incarcerated undermines public confidence in governance.

Critics disagree

They argue that judicial custody is not proof of guilt. India's criminal justice system is founded on the principle that every accused person is presumed innocent until proven guilty.

Removing elected ministers solely because they remain in custody, they argue, effectively imposes a constitutional penalty before a criminal trial concludes.

Fear of political misuse

Perhaps the most significant concern surrounding the amendment is its potential misuse.

Opposition parties have consistently argued that governments could weaponise criminal investigations against political rivals, using prolonged custody to engineer the removal of elected ministers without securing convictions.

Sources familiar with the committee's deliberations indicate that while the JPC is unlikely to recommend deleting the provision, it may suggest safeguards to minimise political abuse.

Among the proposals reportedly under consideration are:

• limiting the provision to specified serious offences;

• prescribing a higher threshold before the removal mechanism is triggered; and

• incorporating safeguards against arbitrary or politically motivated prosecutions.

• Opposition likely to record dissent

Most members from the INDIA bloc had largely boycotted the committee's proceedings, arguing that the ruling coalition's numerical majority would prevent meaningful consideration of their objections.

Several opposition members are expected to submit formal dissent notes when the report is adopted.

The 31-member committee is chaired by BJP MP Aparajita Sarangi and includes representatives from both the ruling alliance and opposition parties.

The road ahead

If the JPC adopts its report on July 17, the Bill is expected to be introduced for discussion during the Monsoon Session beginning later that month.

Even if Parliament ultimately passes the constitutional amendment, legal experts expect the measure to face close constitutional scrutiny, particularly on questions relating to executive power, federalism, natural justice and the presumption of innocence.

The debate ultimately extends beyond one Bill

It asks a larger constitutional question: Should holders of high public office be required to vacate office before a court determines their guilt, or should democratic accountability continue to depend on political convention rather than constitutional mandate?

As Parliament prepares to consider the proposal, that question is likely to remain at the centre of one of the most consequential constitutional debates in recent years.