Custody is Not Conviction: The Threat to Rule of Law

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The introduction of the Constitution (130^th Amendment) Bill, 2025 in the Lok Sabha has rekindled an age-old debate: the tension between political expediency and the timeless principles of rule of law. The proposed amendment seeks to disqualify a prime minister (PM), chief minister (CM) or minister if they remain in custody beyond a fixed period. At first glance, the idea may appear to be a well-intentioned effort at cleansing public life. However, law, especially constitutional law, cannot be judged on appearances alone. Its true test lies in whether it honours the enduring maxims of justice, preserves the basic structure of the Constitution, and withstands the discipline of due process.

To equate custody with culpability, as the Bill proposes, is to sever that golden thread. It transforms the investigating officer, the very official whose conduct is subject to judicial scrutiny into the arbiter of whether a democratically elected PM, CM or Minister may continue in office.

The principle this Bill threatens is the very bedrock of modern jurisprudence: that every individual is presumed innocent until proven guilty. This maxim is not a mere platitude; it is the anchor of criminal justice across democracies. As it was described in Woolmington v DPP [(1935) A.C. 462], the presumption of innocence is “the golden thread that runs through the fabric of criminal jurisprudence”. To equate custody with culpability, as the Bill proposes, is to sever that golden thread. It transforms the investigating officer, the very official whose conduct is subject to judicial scrutiny into the arbiter of whether a democratically elected PM, CM or Minister may continue in office. In doing so, it elevates executive investigation over judicial determination, an inversion unknown to constitutional democracies.

Consider what custody represents in criminal jurisprudence. An FIR records an allegation, not proof of culpability. Arrest is an act of restraint to aid investigation, not a pronouncement of guilt. A chargesheet is only the investigating agency’s version of events, still subject to rigorous trial. Even the framing of charges by a court does not imply culpability; it simply marks the procedural moment after which an accused formally asserts the plea of “not guilty”. If each step is inherently tentative, it follows that disqualification on the basis of custody without conviction amounts to punishing a person in anticipation of guilt rather than in consequence of it.

This strikes at the heart of Article 21 of the Constitution. Article 21, as expanded through decades of Supreme Court jurisprudence, enshrines the principle that no person shall be deprived of life or personal liberty except according to procedure established by law that is fair, just, and reasonable. By equating custody with guilt, the bill imposes a substantive penalty on the mere basis of a procedural step. This is not due process; it is its negation. The due process clause has been interpreted by the Court to mean that the State cannot act arbitrarily or disproportionately. Disqualifying an individual from holding the highest elected offices of the land, imposed before the conclusion of trial, is both arbitrary and grossly disproportionate.

By creating a new ground for automatic disqualification based solely on custody, the Bill subordinates the people’s mandate to the mere act of executive investigation.

Equally grave is the distortion this amendment introduces into the architecture of parliamentary democracy, which itself has been recognised as part of the Constitution’s basic structure. In a democracy, the PM, CM and ministers hold office because they enjoy the confidence of the people’s representatives in Parliament or in the legislative assembly. They may be removed only through specific constitutional mechanisms: loss of majority, a no-confidence motion, or disqualification upon conviction under existing law. By creating a new ground for automatic disqualification based solely on custody, the Bill subordinates the people’s mandate to the mere act of executive investigation. An investigating agency, by arresting an elected leader, can displace the settled will of Parliament or Assembly without any judicial verdict. This strikes at the very sovereignty of the people, which finds its institutional expression in their chosen representatives.

Indian courts have long recognised the possibility of misuse of investigative powers by the State. The Supreme Court has, in numerous judgments, cautioned against arbitrary arrests, prolonged custody, and motivated prosecutions. The experience of our criminal justice system shows that custodial processes are not immune from abuse; indeed, they are often the very site of abuse. To allow such processes to become the basis of constitutional disqualification is to invite political misuse, where investigative agencies become instruments not of law but of convenience.

This danger is magnified when viewed against the backdrop of existing one constitutional safeguards. The system of collective responsibility ensures that a Council of Ministers remains accountable to the legislature as a whole. Judicial review empowers the courts to strike down arbitrary or mala fide executive actions. The no-confidence motion allows legislatures to remove governments that have lost their majority. Disqualification provisions under the Representation of the People Act already provide for the removal of legislators upon conviction for specified offences. Each of these safeguards has evolved to strike a balance between accountability and fairness. To add an additional ground of disqualification upon mere custody, is to throw these safeguards to the winds, upsetting the delicate balance of our parliamentary democracy.

Disqualification provisions under the Representation of the People Act already provide for the removal of legislators upon conviction for specified offences.

Some may argue that extraordinary measures are needed to uphold probity in public life. Yet constitutional amendments must be measured not by their intent but by their design. The design here is excessive, unnecessary, and unconstitutional. Excessive, because it imposes the most severe political penalty on the weakest procedural basis. Unnecessary, because existing laws already disqualify convicted persons from holding office. And unconstitutional, because it violates the basic structure by undermining rule of law, due process, and parliamentary democracy.

The Indian Constitution, through decades of interpretation, has also insisted on this boundary. The “basic structure doctrine,” evolved in Kesavananda Bharati [AIR 1973 SC 1461] and affirmed in subsequent cases, holds that certain features of the Constitution; such as rule of law, separation of powers, and parliamentary democracy, cannot be amended away even by Parliament. The Bill by conflating accusation with guilt and substituting investigative processes for judicial determination, collides headlong with this doctrine. It therefore violates not only the principle but also the constitutional limitation.

At stake, then, is not merely the tenure of a PM, CM or minister, but the integrity of the constitutional order itself. A Constitution that allows disqualification on the mere act of custody diminishes the role of courts, undermines the sovereignty of the people, and erodes the presumption of innocence. These are not minor adjustments; they are foundational upheavals.

The Bill in its current form, must therefore be viewed with the caution. It is tempting to applaud measures that appear to advance probity, but when such measures subvert the very principles that sustain constitutional democracy, they must be reassessed. The true test of a democracy is not how it treats the guilty after conviction, but how it treats the accused before guilt is established. On that test, this Bill raises serious questions that cannot be overlooked.

Manish Tewari is a lawyer, third-term MP, and is a former minister. 

Srijan Thakur is a lawyer, policy consultant, and a former LAMP Fellow, (2024-25).

• Law and Justice
• India
• 130th constitutional amendment bill
• article 21 of indian constitution
• constitution (130th Amendment) bill 2025
• constitutional amendment bill

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