DEMOCRACY IS MORE THAN LAWS AND ELECTIONS; it rests on the faith of citizens that their representatives will serve with integrity. Yet nearly half of India’s lawmakers face criminal charges, including serious offences like murder, rape, and corruption.
For the young voter casting her first ballot, this is not just a statistic but a betrayal of trust. Laws are being made by those accused of breaking them. Section 8 of the Representation of the People Act, 1951 was meant to guard against this, disqualifying convicted legislators. But with trials dragging on for years, accused individuals continue to hold power and shape public policy.
In Lily Thomas v. Union of India (2013), the Supreme Court rightly struck down the delay in disqualification after conviction, affirming that probity in public life cannot wait. Yet conviction alone is not enough when justice itself is so delayed. The question is urgent and human: how can people believe in the rule of law when those making the law stand in the dock?
With the 130th Constitution Amendment Bill on the horizon which proposes to usher a regime of accountability for criminality in politics, this explainer dives deeply into where India’s legal regime stands today on political accountability, and whether the new Bill strengthens the framework or merely dilutes constitutional safeguards.
How can people believe in the rule of law when those making the law stand in the dock?
Representation of the People Act, 1951 — Section 8, which deals with the disqualification of a legislator.
Section 8(1): Disqualification will lead to where the convicted person is sentenced to only fine, for a period of six years from the date of such conviction; imprisonment, from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.
Section 8(2): Conviction for other offences (with punishment between six months and two years) also leads to disqualification for the sentence period plus six years after release.
Section 8(3): Conviction with two years or more imprisonment results in disqualification for the sentence period plus six years thereafter.
Originally, Section 8 contained a protective clause (sub-section (4)) which allowed sitting Members of Parliament or State Legislatures to avoid immediate disqualification for three months after conviction, and longer if they filed an appeal or revision petition during that time. This meant disqualification would not take effect until such proceedings were finally disposed of. The idea was to safeguard the stability of legislatures and allow representatives to exhaust legal remedies before losing office.
In Lily Thomas , the Supreme Court declared this provision unconstitutional, holding that disqualification under Section 8 must take effect immediately from the date of conviction. Thus, legislators can no longer continue in office merely by filing an appeal; the principle of probity in public life was held to outweigh legislative continuity.
Section 8A — Disqualification on Ground of Corrupt Practices: Separately, where a person is found guilty of corrupt practices under Section 99 of the Act, the case must be referred to the President for determination, based on the opinion of the Election Commission. Such disqualification may last for a maximum of six years. The President is bound by the Election Commission’s opinion in this regard.
While the Representation of the People Act, 1951, treats conviction as the principal ground for disqualification, this raises a deeper policy question: is conviction alone sufficient? Considering that 4,732 criminal cases are currently pending against sitting legislators across the country, reliance solely on final conviction allows individuals accused of grave offences to continue exercising legislative power for years, owing to procedural delays. This situation undermines the moral authority of democratic institutions.
The Supreme Court in Lily Thomas ensured that disqualification followed immediately upon conviction, but this still left untouched the grey area of prolonged trials. Should judicial delay become an excuse for persons facing serious charges to remain in positions of power and shape policy? The need of the hour is a balanced legal framework, one that preserves the principle of “innocent until proven guilty,” yet introduces safeguards to prevent abuse of constitutional office. Mechanisms such as fast-tracked trials for lawmakers, stricter disclosure requirements, or a calibrated disqualification upon framing of charges for heinous offences could provide this balance between fairness to the individual and accountability to the electorate.
The Supreme Court in Lily Thomas ensured that disqualification followed immediately upon conviction, but this still left untouched the grey area of prolonged trials.
Mapping the history
The 170th Law Commission Report (1999) proposed disqualification of legislators when charges are framed for offences punishable by up to five years’ imprisonment, for five years or until acquittal, whichever is earlier. This proposal was reiterated by the Election Commission in 2004 and the Law Commission itself in its 244th report, which came out in 2015, recommended that a legislator could be disqualified when charges were framed against them by a court, since this showed prima facie judicial satisfaction that there existed sufficient material against a person to put them to trial. This pathway balances integrity in public office with due process.
What is the stated problem in the current political context?
“Power does not corrupt. It is fools who get into a position of power that corrupt power.”
— George Bernard Shaw
The abovementioned thought captures the anxiety at the heart of India’s democracy. The enduring challenge of Indian politics is its deep criminalisation, reinforced by perverse electoral incentives that push parties to nominate “winnable” candidates regardless of pending criminal charges.
Data from the Association for Democratic Reforms (ADR, 2024) and National Election Watch highlights the scale of the problem: 46 percent of sitting Lok Sabha MPs have pending criminal cases, while 31 percent face serious charges, including offences such as rape, murder, and crimes against women. The previous 17th Lok Sabha was scarcely better, with 43 percent of MPs facing pending cases and 29% accused of serious crimes.
A party-wise analysis of the 2024 composition reveals the breadth of the malaise at the national-level parties, with the BJP having 39 percent of its political leaders with criminal history and the Indian National Congress (INC) with 49 percent of its political leaders with criminal charges. If we have a look at the regional parties, we have AITC – 45 percent; TDP – 50 percent; Samajwadi Party – 57 percent; DMK – 59 percent; and Shiv Sena – 71 percent with criminal charges. In game-theory terms, the situation resembles a Nash equilibrium: no party is willing to unilaterally stop fielding tainted candidates, fearing competitive loss if rivals continue to do so.
Meanwhile, the enforcement landscape suffers from credibility gaps. Between 1 January 2015 and 30 June 2025, the Enforcement Directorate registered 5,892 cases, but secured only 15 convictions in eight court orders. Such disparity fuels the perception of process-as-punishment rather than genuine accountability, eroding trust in the rule of law.
Two high-profile cases appear to have directly influenced the government’s move to introduce the bill—those of former Tamil Nadu minister V. Senthil Balaji and former Delhi chief minister Arvind Kejriwal.
(a) V. Senthil Balaji
The former Tamil Nadu minister was arrested by the Enforcement Directorate (ED) in 2023 in connection with an alleged cash-for-jobs scam and spent nearly 14 months in custody. Under mounting pressure from the Governor and the Opposition, he was removed from the Cabinet. In September 2024, the Supreme Court granted him bail, acknowledging that the trial was likely to drag on for years. Soon after, Balaji was reappointed as a minister, prompting the ED to seek cancellation of bail on the grounds that his office could influence the proceedings. The Court observed that it had been misled, since it had granted bail on the assumption that he was no longer in office. In April 2025, the Court issued a stark ultimatum—“freedom or post”—requiring Balaji to resign in order to retain bail. He chose to step down, and the bail order remained intact.
(b) Arvind Kejriwal
In the separate case concerning the alleged liquor policy money-laundering scam, Delhi Chief Minister Arvind Kejriwal was also granted bail. The Supreme Court, however, imposed strict restrictions during his bail period: he was prohibited from signing official documents, entering government offices, accessing case files, or interacting with witnesses. While the Court clarified that it could not legally compel an elected leader to resign, it left the matter of continuance in office to Kejriwal’s discretion. In September 2024, the Court granted him regular bail, noting that prolonged incarceration without meaningful trial progress would be unjust. Eventually, Kejriwal resigned voluntarily, though the Court refrained from issuing any direction on his holding of office.
The Supreme Court of India, in S.R. Bommai v. Union of India (1994), emphasized constitutional morality as the foundation of democratic governance, stressing that institutions must function with integrity and accountability. Later, in Manoj Narula v. Union of India (2014), the Court underscored the ethical dimension of governance, cautioning that individuals with serious criminal charges should not be entrusted with ministerial responsibilities.
Being inspired by the ethical principle recommended by the Supreme Court, the 130th Constitutional Amendment Bill 2025 was tabled in Parliament by the Union Home Minister. It proposes amendments to Articles 75, 164, and 239AA of the Constitution of India, thereby covering ministers at the Union, State, and Union Territory levels. The stated aim is to enhance accountability at the highest executive levels.
Here’s what the Bill says:.
If a minister is arrested and remains in custody for 30 consecutive days for an offence that carries a minimum punishment of five years under any law in India, then:
On the 31st day, the Prime Minister shall advise the President to remove the minister from office.
If such advice is not tendered, then on the 32nd day the minister automatically ceases to hold office.
Reappointment is possible if the person is fully exonerated of all charges.
While Articles 75(1), 164(1) and 239AA(5) mandate that Ministers shall hold office at the pleasure of the President of India (or Governor), this “pleasure” has been judicially interpreted within the bounds of constitutional morality and legal propriety, as in cases such as Shamsher Singh v. State of Punjab (1974) and Nabam Rebia v. Deputy Speaker (2016).
A major question to ask is this: can we really imagine our enforcement agencies arresting the Prime Minister or a Union Minister?
Arrest is an executive act, not a judicial determination of guilt. Linking ministerial removal to 30 days of custody converts a mere process into a penalty, creating scope for arbitrary misuse in a polarised enforcement environment. Such a rule conflicts with the cornerstone of criminal law — the presumption of innocence until proven guilty.
If a due-process filter were genuinely intended, a chargesheet or framing-of-charge standard (which involves judicial application of mind and prima facie satisfaction) would be appropriate; notably, chargesheets often follow a 90-day timeline, beyond the Bill’s 30-day trigger. By ignoring this safeguard and the above-mentioned Law Commission’s recommendations, the provision risks excessive executive discretion, violating Article 14’s guarantee against arbitrariness. In practice, as cautioned by Senior Advocate Abhishek Manu Singhvi, a facially neutral rule may be asymmetrically applied, disproportionately targeting Opposition leaders.
A major question to ask is this: can we really imagine our enforcement agencies arresting the Prime Minister or a Union Minister? The answer, of course, is no and that makes it clear that such a rule would most likely become a weapon in the hands of the executive, disproportionately targeting opposition ministers, especially in states ruled by rival parties, making the political feasibility of such “equal application” highly doubtful. Under the Bharatiya Nyaya Sanhita (BNS), 2023, nearly half of its provisions (181 of 358 sections) carry punishments of five years or more. When read alongside special and local laws, the universe of qualifying offences expands dramatically. In such a landscape, tying removal from office solely to arrest risks weaponising criminal law for partisan ends. To preserve fairness and legitimacy, bail should remain the norm (except for heinous violent crimes), and any disqualification mechanism must be preceded by judicially-supervised due-process filters rather than automatic executive fallout.
A credible way forward lies in shifting from arrest-based removal to a fairer standard, such as removal triggered only upon the framing of charges by a court.
In the petition currently pending before the Supreme Court, the six-year disqualification under the Representation of the People Act, 1951 has been challenged on the ground that it should be extended to a lifetime ban, similar to the rule that a government servant convicted of a serious offence stands permanently disqualified from service.
The Government, however, in its reply, has submitted that any change in the six-year provision lies solely within Parliament’s domain, and that imposing a lifetime ban would be harsh and discriminatory. The Supreme Court, it was argued, can only review the validity of the law but cannot supplement or rewrite it.
Horse-trading of MPs due to weaknesses in the anti-defection law continues to erode mandate stability and incentivise opportunistic politics. In a contempt petition, the Supreme Court reiterated the principle laid down by the Constitution Bench in Public Interest Foundation v. Union of India (2018), directing political parties to publish the criminal antecedents of their candidates on their official websites and in two widely circulated newspapers. However, compliance has been mostly perfunctory, with parties often choosing obscure newspapers, thereby rendering the disclosure virtually toothless.
The Core question: Is this a narrowly tailored solution to a genuine national problem (criminalisation of politics), or a political distraction from pressing debates such as the integrity of electoral rolls?
The ruling alliance lacks a two-thirds majority in Parliament, making the Bill’s passage uncertain. With the Opposition firmly opposed and no consensus-building a hallmark of constitutional reform, the process appears fragile. The Bill’s inclusion of the Prime Minister recalls the Lokpal debates, where years were spent contesting the PM’s inclusion, only for the Lokpal and Lokayuktas Act, 2013 (Section 14(1)(a)) to ultimately bring the PM within its ambit. Against the backdrop of ongoing controversies over electoral roll accuracy, critics suggest the Bill may function more as a narrative-setting device than a genuine solution, allowing the ruling party to project itself as acting against corruption while portraying opponents as obstructionist.
A more balanced approach would involve establishing an independent review mechanism, such as a tribunal or judicial panel, to assess whether the conditions for removal are genuinely satisfied. This would guard against executive overreach and ensure impartial application. Instead of mandating outright removal, the law could provide for interim suspension of ministerial functions during trial, preserving accountability without disrupting governance. Equally important is narrowing the Bill’s scope to cover only offences involving corruption or moral turpitude, rather than casting an indiscriminate net over all offences punishable with five years’ imprisonment, which may include relatively minor conduct.
A credible way forward lies in shifting from arrest-based removal to a fairer standard, such as removal triggered only upon the framing of charges by a court, with strict trial timelines and restoration on acquittal. This should be coupled with a judicially anchored review mechanism to impose interim restraints, robust enforcement of candidate-disclosure directions with real penalties, and structural reforms like bringing parties under RTI, moving toward state funding, ending opaque corporate donations, strengthening inner-party democracy, and plugging anti-defection loopholes to curb horse-trading. Together, these steps would deter criminalisation while safeguarding due process and constitutional balance.
India needs a solution that deters criminalisation without eroding constitutional safeguards—a higher bar than mere arrest, and a steadier hand than partisan expediency.