A deep-dive into India’s legal regime on political accountability and the 130th Constitution Amendment Bill

DEMOCRACY IS MORE THAN LAWS AND ELECTIONS; it rests on the faith of citizens that their representatives will serve with integrity. Yet nearly half of India’s lawmakers face criminal charges, including serious offences like murder, rape, and corruption.

For the young voter casting her first ballot, this is not just a statistic but a betrayal of trust. Laws are being made by those accused of breaking them. Section 8 of the Representation of the People Act, 1951 was meant to guard against this, disqualifying convicted legislators. But with trials dragging on for years, accused individuals continue to hold power and shape public policy.

In Lily Thomas v. Union of India (2013), the Supreme Court rightly struck down the delay in disqualification after conviction, affirming that probity in public life cannot wait. Yet conviction alone is not enough when justice itself is so delayed. The question is urgent and human: how can people believe in the rule of law when those making the law stand in the dock?

With the 130th Constitution Amendment Bill on the horizon which proposes to usher a regime of accountability for criminality in politics, this explainer dives deeply into where India’s legal regime stands today on political accountability, and whether the new Bill strengthens the framework or merely dilutes constitutional safeguards.

How can people believe in the rule of law when those making the law stand in the dock?

Representation of the People Act, 1951 — Section 8, which deals with the disqualification of a legislator.

Section 8(1): Disqualification will lead to where the convicted person is sentenced to only fine, for a period of six years from the date of such conviction; imprisonment, from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.
Section 8(2): Conviction for other offences (with punishment between six months and two years) also leads to disqualification for the sentence period plus six years after release.
Section 8(3): Conviction with two years or more imprisonment results in disqualification for the sentence period plus six years thereafter.

Originally, Section 8 contained a protective clause (sub-section (4)) which allowed sitting Members of Parliament or State Legislatures to avoid immediate disqualification for three months after conviction, and longer if they filed an appeal or revision petition during that time. This meant disqualification would not take effect until such proceedings were finally disposed of. The idea was to safeguard the stability of legislatures and allow representatives to exhaust legal remedies before losing office.

Why the Bill’s arrest-trigger is problematic

Arrest is an executive act, not a judicial determination of guilt. Linking ministerial removal to 30 days of custody converts a mere process into a penalty, creating scope for arbitrary misuse in a polarised enforcement environment. Such a rule conflicts with the cornerstone of criminal law — the presumption of innocence until proven guilty.

If a due-process filter were genuinely intended, a chargesheet or framing-of-charge standard (which involves judicial application of mind and prima facie satisfaction) would be appropriate; notably, chargesheets often follow a 90-day timeline, beyond the Bill’s 30-day trigger. By ignoring this safeguard and the above-mentioned Law Commission’s recommendations, the provision risks excessive executive discretion, violating Article 14’s guarantee against arbitrariness. In practice, as cautioned by Senior Advocate Abhishek Manu Singhvi, a facially neutral rule may be asymmetrically applied, disproportionately targeting Opposition leaders.

A major question to ask is this: can we really imagine our enforcement agencies arresting the Prime Minister or a Union Minister? The answer, of course, is no and that makes it clear that such a rule would most likely become a weapon in the hands of the executive, disproportionately targeting opposition ministers, especially in states ruled by rival parties, making the political feasibility of such “equal application” highly doubtful. Under the Bharatiya Nyaya Sanhita (BNS), 2023, nearly half of its provisions (181 of 358 sections) carry punishments of five years or more. When read alongside special and local laws, the universe of qualifying offences expands dramatically. In such a landscape, tying removal from office solely to arrest risks weaponising criminal law for partisan ends. To preserve fairness and legitimacy, bail should remain the norm (except for heinous violent crimes), and any disqualification mechanism must be preceded by judicially-supervised due-process filters rather than automatic executive fallout.

Conclusion — A better path forward

A more balanced approach would involve establishing an independent review mechanism, such as a tribunal or judicial panel, to assess whether the conditions for removal are genuinely satisfied. This would guard against executive overreach and ensure impartial application. Instead of mandating outright removal, the law could provide for interim suspension of ministerial functions during trial, preserving accountability without disrupting governance. Equally important is narrowing the Bill’s scope to cover only offences involving corruption or moral turpitude, rather than casting an indiscriminate net over all offences punishable with five years’ imprisonment, which may include relatively minor conduct.

A credible way forward lies in shifting from arrest-based removal to a fairer standard, such as removal triggered only upon the framing of charges by a court, with strict trial timelines and restoration on acquittal. This should be coupled with a judicially anchored review mechanism to impose interim restraints, robust enforcement of candidate-disclosure directions with real penalties, and structural reforms like bringing parties under RTI, moving toward state funding, ending opaque corporate donations, strengthening inner-party democracy, and plugging anti-defection loopholes to curb horse-trading. Together, these steps would deter criminalisation while safeguarding due process and constitutional balance.

India needs a solution that deters criminalisation without eroding constitutional safeguards—a higher bar than mere arrest, and a steadier hand than partisan expediency.

A deep-dive into India’s legal regime on political accountability and the 130th Constitution Amendment Bill

Immediate probable causes behind the framing of the current 130th Constitutional Amendment Bill

Analysis of the proposed Bill

Why the Bill’s arrest-trigger is problematic

Related structural issues (that the Bill does not fix)

Conclusion — A better path forward