Custody Over Ballots: A Constitutional Misadventure

Indian democracy stands at a perilous junction. The proposed 130th Constitutional Amendment—mandating automatic resignation of the prime minister, a Union minister or a chief minister if detained for 30 days or more—is projected as a cleansing tool for politics, but in reality it risks becoming a constitutional kill-switch, a device to topple elected governments not by votes but through custody orders. Attractive slogans of morality conceal a lethal design. Advocates may claim it will weed out corruption, but it effectively shifts the power of regime change from voters to investigators, prosecutors and magistrates. Thirty days of detention—genuine or politically engineered—could overturn the mandate of millions. That is not constitutional morality but political engineering dressed up as reform.

The bill has been referred to a select committee, but its dangers are immediate. Constitutional deadlock would become routine, with fragile coalition governments collapsing under the weight of custody orders, forcing repeated elections and revolving-door regimes. Weaponisation of investigative agencies would deepen, as bodies like the CBI and ED, already accused of selective targeting, would acquire unprecedented power. Every arrest would be seen as politically motivated, eroding faith in law enforcement. Judicial overload would follow, as courts are swamped with petitions challenging detentions that threaten to unseat governments, dragging judges into partisan crossfire. Governance paralysis is inevitable since ministers, fearing politically driven arrests, would avoid bold decisions, and bureaucrats, too, would hesitate, unsure if their political bosses would survive in office. Federal tensions would intensify, as opposition-ruled states would become prime targets of central interference, and democratic disillusionment would spread when voters realise governments can be toppled by police custody rather than the ballot box.

Any law that disrupts the electoral mandate must come with safeguards, yet this bill has none. There is no judicial review clause, no parliamentary oversight, no sunset provision, and not even a clear definition of “custody”. A chief minister denied bail in a trumped-up case could be forced out only to be acquitted later. A prime minister could lose office not after conviction but after 31 days of remand. The example of Hemant Soren, arrested by the ED in January and bailed out in June, is instructive: he could not campaign, and his party was left rudderless. Under this amendment, such scenarios would become routine. A magistrate’s routine order could trigger a government’s fall, turning custody into a constitutional guillotine.

The gravest danger is the elevation of police and prosecutors into regime-brokers. Today, remand orders affect personal liberty; tomorrow, they could decide who governs. Judges hearing bail pleas would be dragged into power struggles, and honest officers would face pressure to extend custody to topple governments. Law enforcement would blur into political enforcement. If thirty days is the threshold today, why not fifteen tomorrow? If chief ministers can be removed, why not MPs, MLAs, and even bureaucrats? Once such shortcuts are constitutionalised, politics degenerates into custodial arithmetic. Arrests replace elections as the currency of power.

No mature democracy follows such a crude model. In the United States, lawmakers retain their seats until conviction. In the UK, disqualification comes only with a prison sentence beyond a threshold. Across Europe, due process is sacrosanct. India would stand alone in ousting leaders not for guilt but for detention, often orchestrated by investigative zeal. Pakistan offers a cautionary tale: Nawaz Sharif disqualified in 2017, and Imran Khan jailed in 2023. Both moves, justified as moral cleansing, hollowed democracy by letting unelected actors decide leadership. India risks institutionalising the same mistake with constitutional sanction.

The real targets of this bill are not nameless politicians but opposition chief ministers and ministers before elections, besides regional leaders with mass appeal. Removal will cripple campaigns, fracture parties and weaken governments. It is less about morality and more about surgical political strikes. True constitutional morality means respecting due process, protecting the voter’s mandate and balancing accountability with legitimacy. Expediency is using custody as a shortcut to do what ballots cannot. This amendment is not reform—it is weaponisation of detention.

If the government were genuinely committed to cleansing politics, it would have chosen a different route: fast-track courts for ministers and chief ministers, mandatory disclosure of criminal cases, independent oversight commissions insulated from executive pressure, and time-bound trials ensuring that guilt—not custody—determines disqualification. Such measures would empower voters to judge leaders’ character, ensure swift justice for the guilty and protect the innocent from political vendettas. They would attack corruption without eroding the sovereignty of the electorate.

The most dangerous feature of this amendment is irreversibility. Once custody crosses 30 days, removal is automatic. Even if charges collapse, the political damage is done. Governments could fall, alliances splinter and elections be rerun—all triggered by an investigative tactic. Instead of cleansing politics, this will dirty it further. Rivals will have a new weapon: arrest the opponent, extend remand, and let the Constitution do the rest. The ultimate loser is not ministers or chief ministers but the voter. Citizens who entrusted leaders with power will see their mandate overturned by a lock-up, not the ballot box. Democracy’s central principle—that the people decide who governs—will be replaced by the principle that police custody decides.

The 130th Amendment is being sold as reform, but in reality it is a constitutional kill switch threatening the foundations of democracy. It hands investigators the power to unseat governments, incentivises political arrests and treats suspicion as guilt. India does not need shortcuts; it needs stronger courts, faster justice, and greater accountability to voters. The true test of constitutional morality is whether we defend due process even for those we oppose. Democracies are sustained not by vendetta but by justice. If passed, this bill will not cleanse politics; it will poison it.

The writer is a senior political analyst and strategic affairs columnist based in Shimla.

Published on: Tuesday, October 07, 2025, 08:51 AM IST