“History will absolve me”: What the 130th Constitution Amendment Bill truly purports to achieve
The 130th Constitution Amendment Bill seeks to achieve what was never constitutionally imagined, traps opposition ministers in an absurd cycle of criminalisation and disqualification, and raises the question: if it ever goes through, will our courts be able to do much?
Justice K. Chandru (Retd.)
Published on: 26 August 2025, 08:52 pm
‘HISTORY WILL ABSOLVE ME’ said Fidel Castro, famously, in 1953, as he was arrested for the alleged attempt to overthrow the Batista regime in pre-revolutionary Cuba. Perhaps all over the world, freedom fighters who were incarcerated or were confiscated of their civil rights have made similar statements. It appears that the time has come where one has to learn to face such assaults on liberty, through arrests and deprivation of constitutional office, without trial or without verdict.
Amit Shah, the Home Minister, has recently introduced, in a brazen manner, the 130th Constitutional Amendment Bill which aims to disqualify elected ministers (including even the Prime Minister) for the only reason that they were detained in custody beyond thirty days. The home minister has gone around town parroting the question: “What is wrong in a universal morality being enshrined in a legislation?”. He also posed that the Chief Secretariates and the Director General of Police must not take orders from the central prison where the arrested chief minister, who has failed to come out on bail within thirty days, is sheltered.
The posed question may look attractive if one doesn’t see the greater malaise hidden in the proposed new law. What exactly is the motive behind the ruling regime attempting to bring such a law and passing it in haste?
The substance of the above provision will only indicate that it is only after an investigation, trial before a judicial court, a judgment delivered by a judicial officer and conviction for a particular period, that the disqualification will start.
To do what was originally never intended by the Constitution
More than the constitutional morality which is touted to be behind the law, the real motive appears to be entirely different. As it stands today, the right to form a cabinet headed by the Prime Minister / Chief Minister, as the case may be, solely vests on the elected members of the House — whether it be the Parliament or the State Assemblies. After the elections, the party which has the largest following in the House has a prerogative to form the ministry and the President or the Governor has to invite the leader of the majority party in the House.
Article 75(3) clearly states that the Council of Ministers shall be collectively responsible to the House of the People. Article 75(5) mandates that a minister, if not already a member of the House, must become one within six months of assuming office.
The Constitution does not prescribe any separate qualifications or disqualifications for ministers inducted into the Cabinet, for the only reason that the disqualification prescribed for a member of the House, also applies to a minister. Quite simply, one cannot be a minister without being a member of the House.
Constitutional disqualification has been provided for under Articles 102 (in case of Parliament) and 191 (in case of State Assembly) which includes that a member should not hold any office of profit, that he is not of unsound mind or that he had not become an undischarged insolvent or that he was not a citizen of India. Curiously, it was also prescribed that under Articles 102(e) and 191(e), the Parliament can prescribe, by law, any other disqualification. This is strange because, by prescription of a law, what was not originally intended by the Constitution could also be made to be a ground for disqualification.
