The 130th Constitutional Amendment Bill: for UPSC Aspirants
Why in News?
The Central Government recently introduced The Constitution (One Hundred and Thirtieth Amendment) Bill in Parliament. The Bill seeks to amend Article 75 (Union Council of Ministers), Article 164 (State Council of Ministers), and Article 239AA (Special provisions for Delhi) concerning the disqualification of Ministers upon arrest and detention. The Bill has been referred to a Joint Parliamentary Committee (JPC) for scrutiny, making it a significant topic for both current affairs and the polity syllabus.
Prelims Focus: The Core Provisions of the Bill (The "What")
The Bill introduces a new mechanism for the automatic removal of Ministers under specific circumstances. Here’s a quick breakdown:
| Scenario | Action Required | Consequence |
|---|---|---|
| A Minister (Union/State) is arrested and detained for 30 consecutive days for an offence punishable with imprisonment of 5 years or more. | The Prime Minister (at Centre) or Chief Minister (in State) must advise the President/Governor to remove the Minister. | The Minister shall be removed by the 31st day. If advice is not tendered, the Minister ceases to hold office automatically. |
| The Prime Minister or a Chief Minister is in the same situation. | They must tender their resignation by the 31st day. | If they don't resign, they shall cease to hold office automatically. |
Key Objective: The stated aim is to uphold constitutional morality and ensure that individuals facing serious charges do not continue in high public office while in prolonged custody.
Mains Focus: The Contentious Issues & Critical Analysis (The "Why" and "How")
For GS Paper II (Polity, Governance) and Essay, the debate around this Bill is a goldmine. The Opposition and legal experts have raised several critical concerns that touch upon the core principles of democracy, justice, and federalism.
1. The Problem of Discretionary "Arrest"
The first trigger for removal is "arrest." This is highly problematic because the power of arrest is discretionary with the police.
Legal Precedents:
The Code of Criminal Procedure (CrPC) and its successor, the Bharatiya Nagarik Suraksha Sanhita (BNSS), use the term "may arrest" (Sections 41 & 41A CrPC / Section 35 BNSS), indicating it is not mandatory.
Supreme Court in Joginder Kumar vs State of U.P. (1994) held that an arrest must be justified and cannot be made merely because it is legally possible.
In Arnesh Kumar vs State of Bihar (2014), the SC mandated that police must record reasons in writing for making an arrest.
Potential for Misuse: Given that nearly 60% of arrests were deemed "unnecessary" by the National Police Commission (1977), there is a genuine fear that this power could be weaponized. A politically motivated arrest on a dubious charge can initiate the process of unseating a rival Minister, even if the case is weak.
2. The Hurdle of Obtaining "Bail" within 30 Days
The second parameter is "detention for 30 consecutive days." The escape route is to obtain bail within this period. However, this is often easier said than done.
Bail is the Rule, Jail is the Exception: While the Supreme Court has reaffirmed this principle, in practice, bail is often denied based on factors beyond the standard "triple test" (flight risk, tampering with evidence, influencing witnesses).
The "Fourth Factor": Courts often consider the "gravity of the offence," which conflicts with the presumption of innocence.
The Special Statute Trap: The phrase "offence under any law" includes draconian laws like:
UAPA (Unlawful Activities Prevention Act)
PMLA (Prevention of Money Laundering Act)
- NDPS (Narcotic Drugs and Psychotropic Substances Act)These laws have "twin conditions" for bail, effectively reversing the burden of proof onto the accused. Obtaining bail within 30 days under these acts is nearly impossible, as seen in the case of Manish Sisodia, who got bail after 17 months of incarceration.
3. Ignoring the Provision of "Default Bail"
The Bill fails to account for Default Bail under Section 167(2) CrPC (Section 187 BNSS). An accused has a right to be released on bail if the investigation is not completed within 60 or 90 days (depending on the offence). Since the 30-day detention period under the Bill is well within this investigation period, a Minister could be disqualified even when the investigation is incomplete and they are entitled to default bail. This appears irrational.
4. The Minister's Hobson's Choice
A Minister facing charges is caught in a catch-22 situation:
Option A: Continue as a Minister. The court may deny bail citing the potential to influence witnesses due to their position of power.
Option B: Resign to improve the chances of bail. However, this means giving up their portfolio and political influence even if they are eventually granted bail and exonerated.
This creates an unfair dilemma where the mere accusation can force a resignation.
Way Forward & Conclusion
The intention to cleanse politics of criminal elements is laudable and aligns with the spirit of the Supreme Court's directions in cases like Manoj Narula vs Union of India (2014), which emphasized "constitutional morality." However, the mechanism proposed is fraught with risks.
A balanced approach could involve:
Judicial Oversight: Instead of arrest by police, the trigger for disqualification could be the framing of charges by a court, which is a more rigorous judicial process.
Strengthening Bail Compliance: Ensuring that the guidelines of the Supreme Court in Satender Kumar Antil vs CBI (2022) are strictly followed, reducing arbitrary arrests.
Debate in JPC: The Joint Parliamentary Committee must thoroughly examine these loopholes to prevent the law from becoming a tool for political vendetta.
Keywords for Revision: 130th Constitutional Amendment Bill, Article 75, Article 164, Joint Parliamentary Committee, Arrest, Detention, Bail, BNSS, CrPC, UAPA, PMLA, Constitutional Morality, Manish Sisodia Case, Arnesh Kumar Guidelines.
No comments:
Post a Comment