'Even if this Bill passes in Parliament, it will reasonably face judicial scrutiny. One can reasonably expect challenges in the Supreme Court questioning its Constitutional validity.'
In the first part of this interview with Prasanna D Zore/Rediff, Supreme Court Senior Advocate Sanjay R Hegde provides a detailed analysis of the controversial 130th Constitutional Amendment and accompanying bills on ministerial disqualification.
The proposed legislation introduces automatic removal provisions requiring prime ministers, chief ministers, and ministers who remain in custody for over 30 consecutive days without bail to vacate office automatically.
Mr. Hegde meticulously explains the mechanical operation of these provisions, clarifying the '30-consecutive day' requirement and restoration procedures. He identifies critical gaps in existing Constitutional law that the Amendment claims to address, particularly the absence of specific provisions preventing incarcerated individuals from continuing in ministerial positions.
Drawing from recent high-profile cases, including then Delhi chief minister Arvind Kejriwal's episode, when he did not resign despite his arrest, the senior advocate examines how legislative vacuum created uncertainty in Constitutional governance.
Could you explain in simple terms what the 130th Constitutional Amendment and these new bills on disqualification actually propose?
The fundamental principle is straightforward. If you are arrested while serving as a minister, including a chief minister or prime minister, and you do not secure bail within 30 days, then on the 31st day, while you remain in custody, you automatically cease to hold office. You automatically cease to be chief minister, prime minister, or minister.
The expectation is that within those 30 days, the prime minister or chief minister will either secure your resignation or request the governor or President to dismiss you.
However, if that does not transpire and on the 31st day you have not obtained bail and remain incarcerated, you no longer retain your ministerial position.
Subsequently, if you do secure bail, you may return to ministerial office. However, this restoration is not automatic. After you have ceased to be a minister, you must again be sworn in upon securing bail. The party must again desire your appointment as prime minister or chief minister.
Is there a specific requirement regarding 30 consecutive days in custody?
Precisely. There was initial confusion regarding this provision, but it should be 30 consecutive days. If, for instance, you secure bail on medical grounds during this period, the 30 consecutive days commence anew.
The provision requires continuous incarceration for 30 consecutive days without bail for the automatic disqualification to take effect.
What specific gap in existing law does the 130th Constitutional Amendment attempt to address?
The gap is fundamental. The presumption existed that someone incarcerated cannot continue serving as a minister of any capacity, yet there was no specific provision (in law) establishing this principle.
Therefore, when recently Mr. (Arvind) Kejriwal, as chief minister of Delhi, was arrested and refused to resign, he correctly stated that nothing compelled his resignation.
This Amendment provides a 30-day window to secure bail, but on the 31st day, resignation becomes irrelevant -- you are automatically removed from office. This eliminates the need for voluntary resignation or complex dismissal procedures.
Is the 130th Constitutional Amendment then a direct reaction to Arvind Kejriwal's refusal to resign after his arrest?
I cannot definitively state whether it constitutes a direct reaction to that specific episode or whether that incident highlighted the need for such legislation. However, it (Arvind Kejriwal's refusal to resign voluntarily despite his arrest by the CBI and later by the ED in the alleged excise policy scam; the former Delhi chief minister spent 155 days in custody after his arrest on March 21, 2024 before the Supreme Court granted him bail) certainly pointed to a significant lacuna in our Constitutional framework that required addressing.
Do these bills have clear Constitutional basis, or do they stretch Parliament's legislative powers beyond Constitutional limits?
The Constitution permits amendments from time to time, and this (the 130th Amendment) represents a Constitutional amendment. The critical question is whether it damages the Basic Structure of the Constitution. That determination will ultimately rest with the judiciary.
Even if this Bill passes in Parliament, it will reasonably face judicial scrutiny. One can reasonably expect challenges in the Supreme Court questioning its Constitutional validity.