The Bill only requires some elected constitutional functionaries (ministers) to adhere to constitutional morality. Others have a free pass to be constitutionally immoral.

The Constitution (One Hundred and Thirtieth Amendment) Bill, 2025 has two parts and both raise absorbing issues. The first part is the Statement of Objects and Reasons (SOR) and the second is the text of the Bill and its implications.

A Bill to amend the Constitution is always accompanied by the SOR which explains the need to amend the Constitution. The SOR for this Bill promotes lofty and inspiring ideals and begins with the words: “The elected representatives represent hopes and aspirations of the people of India. It is expected that they rise above political interests and act only in the public interest and for the welfare of people.” Really?

The Bill seeks to curtail the vision of Dr. Ambedkar

The Association for Democratic Reforms (ADR) informs us, in good faith, that 29% or 1,205 Members of the Legislative Assembly (MLAs) have serious criminal cases pending against them. 280 MLAs have cases of murder or attempt to murder pending against them. 127 MLAs have crime against women cases and 13 of them have cases of rape pending against them.

These elected representatives certainly cannot and do not represent the hopes and aspirations of many of us. I don’t think we hope or aspire to be suspected criminals – if we do, there’s something terribly wrong with us.

The SOR then says that the character and conduct of ministers should be “beyond any ray of suspicion”. ADR informs us, in good faith, that in the Government of India, 40% of the ministers (29 out of 72) have criminal cases pending against them. The figure for the states is 47% or 302 out of 643. A total of 26% of ministers in the Government of India (19 out of 72) have serious criminal cases pending. The figure for the states is 27% or 174 of 643.

For some reason, the “ray of suspicion” limits the suspicious character and conduct only to ministers. Why only ministers and not all MPs and MLAs? Should we not expect every elected representative to be clean and above suspicion, particularly since they are said to represent our hopes and aspirations?

So, the first step the Bill ought to address is the clean-up of our Parliament and State Legislatures and weed out elements not beyond any ray of suspicion. The Bill does not seek to do that. What is the purpose of a half-hearted intent to clean up the system?

The SOR refers to the “canons of constitutional morality”. This is rich. Dr. Ambedkar was in favour of constitutional morality, but not with any artificial limitation. The Bill seeks to curtail the vision of Dr. Ambedkar and limits the necessity of constitutional morality only to ministers, thereby excluding MPs and MLAs. The Bill requires ministers in the Union Cabinet (including the Prime Minister) and the State Cabinet (including the Chief Minister) being bound by the canons of constitutional morality. Ergo, is it OK if other MPs and MLAs are constitutionally immoral? Isn’t this really strange?

The SOR is only platitudinous verbiage and nothing else. It’s hard to take it seriously.

Automatic sacking of ministers is unprecedented in administrative law

What about the provisions of the Bill? Essentially, the Bill makes a provision for automatic sacking of ministers. This is unprecedented in administrative law. It provides that if a minister is arrested and detained for a continuous period of 30 days on an allegation of committing (not proved of having committed or charged with having committed) an offence punishable with imprisonment for 5 years or more, then that minister shall be “removed from his office” by the President on day 31 on the advice of the Prime Minister (PM) or the Chief Minister (CM), as the case may be.

However, if the PM or the CM does not advise removal, the minister shall automatically cease to be a minister on day 31 of being taken into custody. This is drastic but necessary.

Unfortunately, the Bill only requires some elected constitutional functionaries (ministers) to adhere to constitutional morality. Others have a free pass to be constitutionally immoral.

One might argue that in our jurisprudence, everyone is presumed innocent until proven guilty. So why single out ministers for automatic dismissal? Even though ministers are presumed innocent like everybody else, only they face the guillotine on the happening of a certain event.

Why does Parliament make a pseudo classification and fail to apply the same yardstick to all elected representatives? After all, if the intention is to cleanse the system, so to speak, why discriminate and take halfway measures; lets go the whole hog and apply the guillotine (not literally) to all MPs and MLAs equally.

What about constitutional functionaries other than ministers?

What about some other constitutional functionaries? Consider the attitude of some of our Governors. They have been behaving with total disdain for the State Legislatures whose elected representatives represent our hopes and aspirations. Despite the embedded need for constitutional morality, Bills passed by State Legislatures are withheld for months and years for no apparent reason and without any remorse.

It is argued on behalf of the Governors that Article 200 of the Constitution empowers them to ‘withhold’ a Bill till doomsday. They have the power, so they believe, to impose the death sentence on Bills passed by the State Legislatures – to be hanged by the neck until it is dead.  This argument advanced by Governors or on their behalf is a no-brainer.

Common sense, constitutional values and constitutional morality demand that every Governor should act with utmost dispatch but may withhold a Bill for a short while to enable him or her give assent to the Bill or reserve the Bill for consideration of the President or return the Bill to the Legislature with an appropriate message.

The word ‘withhold’ in Article 200 is not a permanent withhold or a quasi veto nor does it give a blanket power to a Governor to strangulate or throttle a Bill.

We have also witnessed one Governor refusing to act on a recommendation of the State Cabinet to nominate members to the Legislative Council. Then we have another worthy nominating members to a body and thereby potentially converting the government of the day into a minority.

The application of the canons of constitutional morality cannot be selective, at least that is not what Dr. Ambedkar intended when he spoke of constitutional morality. So why does the Bill fall shy of Dr. Ambedkar’s vision? The Bill should provide that if the Governor does not take a decision on a Bill passed by the State Legislature or a recommendation made by the Cabinet within 30 days, he or she will stand automatically dismissed on Day 31.

We have also seen the Speaker of some State Legislatures declining to take a decision under the anti-defection law in the Constitution. The Supreme Court was approached on more than one occasion to require a Speaker to take a decision on a motion for disqualification under the anti-defection law in respect of elected representatives representing our hopes and aspirations.

Should the Speaker be exempt from the canons of constitutional morality? The Speaker is the one who must first be taught constitutional morality being primus inter pares. If the Speaker of the House is constitutionally immoral, can we expect any constitutional morality from other elected representatives, including Ministers? The Bill must provide that if these worthies do not take a decision under the anti-defection law, one way or the other, within 30 days, they automatically vacate the position as Speaker of the House.

If our elected representatives cannot self-regulate, lets not waste our time discussing something so sacrosanct as constitutional morality.

Loopholes in the Bill

The idea of automatic sacking is anathema to common sense notions of administrative law and certainly of constitutionalism. That is why there are available loopholes with tremendous scope for getting over the provision of automatic sacking. It is possible that a minister in jail may resign or be sacked by the Chief Minister or Prime Minister on day 25. Thereafter, when he is granted bail, he can again be appointed as a Minister. Something similar occurred in one of the States.

Worse, a minister and a Chief Minister can also play political snakes and ladders. A minister in jail gets sacked by the Chief Minister on day 25 and is reappointed a few days later and again sacked and reappointed and the cycle continues. The rule of law gets substituted by the rule of flaw.

Of course this is mala fide and contrary to constitutional morality, but the Bill does not prohibit such games.

Finally, we need to be aware of more mundane issues like the principles of separation of powers, the federal structure of governance and the exercise or non-exercise of judicial discretion in matters of bail. But these are, of course, not-so-consequential issues so why spend time over them.