India's controversial Custody Bill: Safeguard for governance or political weapon?

Home Minister Amit Shah has tabled the bill that would compel the Prime Minister, chief ministers, and ministers across states and Union Territories to resign or face removal if they spend 30 consecutive days in custody for offences carrying a minimum punishment of five years. Soon after the introduction, the bill was referred to the joint committee for larger scrutiny.

The government pitches the move as a safeguard for clean governance, but the Opposition denounces it as a constitutional overreach tailor-made for political misuse. The proposal’s stark departure lies in shifting the trigger from conviction to arrest, a break from the established norm under the Representation of the People Act and the Supreme Court’s Lily Thomas ruling, which link disqualification to conviction.

What the Constitution already says about removal

At the Centre level, ministers hold office during the pleasure of the President as per Article 75. In the states, ministers hold office during the pleasure of the Governor as per Article 164. In practice, this pleasure is exercised on the aid and advice of the Prime Minister/Chief Minister, Presidents or Governors do not normally sack ministers on their own initiative except in constitutional breakdowns, like after a government loses majority.

In Union Territories with legislatures, the Lieutenant Governor/Administrator sits at the seam between local cabinets and the Union. Delhi’s Article 239AA makes the Council of Ministers collectively responsible to the Assembly, while the LG acts on aid and advice except in matters reserved like land, police, public order or where he acts in his discretion. Amendments and rules governing the transaction of business have, in recent years, strengthened the Union’s hand in Delhi’s day-to-day governance. If a central law now prescribes removal after 30 days’ arrest, LGs could become the operative authorities implementing that removal in UTs, raising fresh Centre–UT friction over who decides, how swiftly, and on what record.

Presumption of innocence vs principles of accountability

After Lily Thomas, legislators convicted and sentenced to two years or more are automatically disqualified. The bills seek to push the bar earlier at the arrest stage for executive office-holders wielding day-to-day state power. The government says this protects institutional integrity and public trust when an office-holder is unavailable or compromised by incarceration.

But the presumption of innocence is a bedrock criminal-law value linked to Article 21 due process, and an accused is innocent until proven guilty. Indian courts have warned that statutes can dilute this principle only with compelling justification. Making custodial status determinative of executive tenure risks blurring the line between accusation and guilt, especially under special statutes where obtaining bail is hard and custody can be prolonged. In political life, arrests can be strategic, creating an arrest-to-removal pipeline, which risks turning police/judicial custody into a political weapon.

The proposed safeguards

The removal is limited to (a) serious charges carrying 5 plus years imprisonment and (b) 30 continuous days under arrest/detention. That’s narrower than a blanket rule, and it arguably avoids knee-jerk removals for petty offences or brief detentions. Still, two vulnerabilities remain:

1. Arrest is executive-led, often by central agencies in high-profile cases. Without an independent filter, like a judicial finding that a prima facie case exists, a motivated arrest plus custodial extensions can produce automatic political consequences.

2. No built-in review is visible yet. If the bills don’t require a quick, reasoned, judicial confirmation before removal, challenges will argue violation of due process and collective responsibility, and an assault on federalism when imposed on states.

Who actually sacks under the new regime?

Even if Parliament creates a removal obligation, the formal act will still route through existing constitutional actors:

Union: The President removes Union ministers, but only on the PM’s advice; if the law mandates removal after X condition, the PM/Law Ministry would advise the President accordingly.

States: Governors remove state ministers on CM’s advice; a statutory mandate would compel the CM to advise, but if a CM resists, can a Governor act alone? That would reopen the discretion vs advice debate and almost certainly land in court.

UTs: LGs (as President’s nominees) would likely execute removal for UT ministers, sharpening Centre–UT fault lines already visible in Delhi and Puducherry.

What it means in practice—for states and UTs

Any CM/ministers currently in judicial custody for 30+ days on serious charges would face immediate exit, precipitating cabinet reshuffles, possible trust votes, or caretaker arrangements.

More Centre–state litigation: If Governors/LGs move faster than elected executives (or vice-versa), states will race to courts to restrain unilateral removals, citing the aid-and-advice rule and collective responsibility.

Policing incentives: The politics of arrest will intensify. If custody equals removal, incentives for selective arrests grow, especially in UTs where central agencies and LGs already loom large.

India already disqualifies convicted lawmakers; the government now wants arrest-based removal for those who exercise executive power. That sharpens accountability but risks eroding the presumption of innocence and supercharging the politics of arrest.