Indian Democracy at Risk: New Bill Threatens Political Rights by Equating Arrest with Guilt

The Supreme Court has had a significant week. It dismissed the Union Government's petition against the Calcutta High Court's ruling on the Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA). The High Court had ordered the 100-day work scheme to resume in the state from August 1, 2025. This validates what the State has claimed for over three years - that the Centre's withholding of dues was politically motivated, punitive, and unlawful.

On the same day, another bench criticized the Delhi Police for requesting additional time in the Delhi riots bail case. Student activists including Umar Khalid, Sharjeel Imam, Meeran Haider, Gulfisha Fatima, and Shifa Ur Rehman have been imprisoned for over five years without trial. Both hearings demonstrated the Court pushing back against excessive delays and executive overreach.

Parliament's approach to these issues appears to be moving in the contrary direction. A new bill proposing automatic removal of ministers who spend more than 30 days in custody was introduced in the Lok Sabha in August 2025. While this bill claims to enhance accountability, closer examination reveals it undermines the presumption of innocence, creates governmental instability, and reinforces inequality. Rather than strengthening democratic principles, it risks turning arrests into political weapons. It overturns the electorate's decision without judicial conviction and creates opportunities for political misuse that our Constitution was designed to prevent.

How to lose your seat in 30 days?

Step 1: Forget voters, forget courts - they no longer determine your position.

Step 2: Wait for a politically motivated FIR.

Step 3: Get placed in custody and let procedural delays extend beyond Day 30.

The Dangerous Shift: Treating Arrest as Guilt

Indian criminal jurisprudence is founded on a fundamental principle: innocent until proven guilty. This bill reverses this principle by imposing a penalty - loss of office - based merely on arrest and detention. It completely bypasses trial and conviction. This is precisely the type of arbitrariness that Article 21 prohibits. Yet, the bill equates detention with de facto conviction. By treating arrest as guilt, this bill overrides voters' mandates, weakens separation of powers, destabilizes governance, and promotes inequality.

The Supreme Court has previously emphasized that removal from office must follow due process, not mere allegations. The proposed bill circumvents this safeguard, imposing penalties without trial, conviction, or judicial determination of guilt. India's prison population predominantly consists of undertrials, making up 75% of the total prison population.

Notably, since 2014, at least 12 sitting opposition ministers have been arrested; nine from non-Bharatiya Janata Party (BJP)-ruled states. Eight remained in custody beyond 30 days. Under this bill, they would have automatically lost their positions despite never being convicted.

Why 30 Days?

The bill fails to explain the 30-day threshold. Pre-trial custody frequently extends beyond 30 days due to routine procedural delays. Even under the Bharatiya Nagarik Suraksha Sanhita (BNSS), default bail is set at 60/90 days; the bill's 30-day requirement lacks procedural justification. By linking ministerial tenure to such an arbitrary threshold, the law risks disqualifying leaders before their trials commence. The bill effectively replaces 'innocent until proven guilty' with 'jobless until granted bail'.

Separation of Powers

The Constitution separates political accountability from judicial and executive actions. Removal from office is fundamentally a political question, decided either by legislatures or by voters. The bill erases this boundary, allowing arrest - an executive action subject to police discretion and judicial oversight - to directly determine political tenure. This dangerously blurs the distinction between government branches, inviting misuse.

Unequal Treatment and Disproportionate Impact on Marginalized Groups

The bill introduces glaring inequities. Under the Representation of the People Act, 1951, MPs and MLAs are disqualified only upon conviction, not arrest. This bill creates a two-tier system violating Article 14's guarantee of equality before the law for specific ministers.

National Crime Records Bureau (NCRB) data shows that undertrials disproportionately come from marginalized communities: approximately 21% are Scheduled Castes (SC), 9% Scheduled Tribes (ST), 36% Other Backward Classes (OBC), and roughly 19-21% are Muslims. Together, marginalized groups (SC/ST/OBC/Muslims) represent over 85% of undertrials. In this context, the bill will disproportionately silence voices from marginalized communities and their representative parties.

Destabilizing Governance

Consider the consequences if a Prime Minister or Chief Minister is arrested, even briefly. Governance could halt, destabilizing elected governments based on unproven allegations.

Chilling Effect on Opposition

Finally, the bill creates a chilling effect. If arrests, regardless of conviction, result in automatic loss of office, opposition leaders may hesitate to challenge the government. In a democracy where dissent is vital, such a deterrent undermines the foundation of electoral choice.

Accountability in politics must be rooted in conviction, not custody. Otherwise, democracy itself risks becoming captive to arbitrary arrests.

(Research Credit: Chahat Mangtani)

(Derek O'Brien, MP, leads the Trinamool Congress in the Rajya Sabha)

Disclaimer: These are the personal opinions of the author