The imprisonment of former Delhi Chief Minister Arvind Kejriwal, Jharkhand’s Hemant Soren, and Tamil Nadu minister Senthil Balaji has jolted state politics and exposed a constitutional blind spot. Their arrests in corruption and money laundering cases have become textbook triggers for the Modi government to push for a new legal framework on how sitting prime ministers, chief ministers, and ministers should be dealt with when entangled in criminal proceedings.
The Union Home Ministry, led by Amit Shah, has signalled an intent to introduce legislation barring individuals holding these offices from continuing in power if they face imprisonment beyond a defined period. The proposal has ignited a debate on whether India’s political system needs such a codified safeguard or whether it risks destabilising federalism and weaponising law enforcement.
"A minister, who for any period of 30 consecutive days during holding the office as such, is arrested and detained in custody, on an allegation of committing an offence punishable with imprisonment of five years or more, shall be removed from his office by the President on the advice of the Prime Minister by the thirty-first day after being taken into such custody," one of the bills stated.
Kejriwal and Soren precedents
Arvind Kejriwal, arrested by the Enforcement Directorate in the excise policy case, spent several weeks in jail. Though released on interim bail for electioneering, his continued custodial spells paralysed the Delhi government, with ministers left unsure about leadership directions.
Hemant Soren, arrested by the ED in a money laundering case linked to alleged land scams, resigned from the CM’s chair hours before his arrest, but later sought to reclaim office once released on bail. The Jharkhand Raj Bhavan was caught in a constitutional tussle over whether he could reassume power.
Both cases exposed the glaring absence of a clear legal mechanism dealing with scenarios where sitting heads of government face prolonged incarceration. Unlike MPs and MLAs, who are automatically disqualified upon conviction for two years or more under the Representation of the People Act, no law explicitly addresses whether a prime minister or chief minister can continue in office while in judicial custody without conviction.
Why the Centre sees a Legislative gap
The Centre argues that prolonged incarceration of top executive figures, without a conviction, creates a governance vacuum and erodes public confidence.
Highly placed sources tell The Week that there are three main concerns:
- Administrative Paralysis: A jailed CM or minister cannot convene cabinet meetings, sign files, or attend legislative business.
- Constitutional Morality: While the Constitution expects ministers to act under the principle of collective responsibility, incarceration undermines their ability to discharge duties with integrity.
- Public Trust: Allowing those under serious criminal investigation to continue in office risks normalising corruption and diminishing faith in democratic institutions.
The proposed framework
Though details are still being worked out, the government is reportedly considering a law that automatically suspends or de-seats PMs, CMs, and ministers if they remain in custody for more than 30 days.
Key features being discussed include:
- Time Threshold: If a minister is arrested and remains in jail beyond a month (without bail), they must vacate office.
- Temporary Bar: If later acquitted or released, they may be re-appointed.
- Uniform Applicability: The law would apply equally to the Union and state executive, covering the PM, CMs, and all ministers.
- Alignment with RPA: The law would mirror the logic of disqualification rules for legislators but extend it to the executive.
Counter-arguments
The proposal, however, has triggered sharp criticism as well, especially from the Opposition, stating that the ruling party wishes to bring such a law to remove opposition chief ministers after failing to defeat them electorally.
"What a vicious circle! No guidelines for arrest followed! Arrests of opposition leaders rampant and disproportionate," senior advocate and Congress leader Abhishek Manu Singhvi posted on X.
"The best way to destabilise the opposition is to unleash biased central agencies to arrest opposition CMs and, despite being unable to defeat them electorally, remove them by arbitrary arrests!! And no ruling party incumbent CM ever touched!!," he added.
Presumption of Innocence: Critics argue that arrest is not guilt, and an accused person must be presumed innocent until proven otherwise. Automatic suspension risks punishing individuals before conviction.
Weaponisation of Agencies: With central agencies like the ED and CBI already accused of being used selectively, opposition parties fear such a law will become a political weapon. A government at the Centre could engineer the arrests of state leaders to destabilise rival dispensations.
Federal Undermining: In a federal polity, CMs are accountable to their assemblies, not the Centre. Any law dictating when they must resign could tilt the balance of power away from the states.
Judicial Safeguards Already Exist: Courts already have the power to deny bail, remove accused ministers from office, or monitor investigations. Codifying blanket suspensions may be redundant.
Constitutional and Judicial backdrop
The Constitution itself is silent on whether a PM or CM must resign on arrest. The guiding principle has been constitutional morality and political convention. For instance, former Bihar CM Lalu Prasad Yadav resigned after his conviction in the fodder scam but ensured his wife was installed as his successor.
The Supreme Court, in past judgments, has nudged towards higher standards of integrity but has refrained from laying down mandatory disqualification rules. In the Manoj Narula vs Union of India (2014) case, the Court held that it is for the Prime Minister or Chief Minister to decide whether to induct persons with criminal cases into the cabinet, emphasising constitutional trust over judicial fiat.
The Constitution is silent on whether a PM or CM must resign on arrest. Article 75(2) states the Prime Minister holds office during the pleasure of the President and Article 164(1) states the Chief Minister holds office during the pleasure of the Governor.
Traditionally, this has been interpreted to mean that political convention and majority support in the legislature decide whether a leader stays.
Commissions on Centre–State relations, from Sarkaria to Punchhi, never recommended codifying arrest-based bars. They preferred leaving it to political morality and legislative accountability. Thus, any new law mandating removal on mere custody would face immediate constitutional scrutiny.
What lies ahead
The debate is far from settled. For such a law to pass, it must clear both Houses of Parliament and withstand constitutional scrutiny. Any automatic disqualification without conviction could face challenges under Articles 14 and 21 (equality and due process). The judiciary may have to ultimately test whether such a law is a reasonable restriction in the public interest.
