DNA Explainer: When can Cabinet Ministers be arrested in India? What’s next for MSME Minister Narayan Rane?

Yesterday on August 24, 2021, Union Minister Narayan Rane became the third sitting Cabinet minister to be arrested in India. Cabinet Minister for Micro, Small and Medium Enterprises (MSME), Rane was taken into custody by Maharashtra Police for his “Slap Uddhav Thackeray” remark.

The MSME minister is a sitting MP in the Rajya Sabha and thereby holds parliamentarian privileges. Hence, his arrest has raised eyebrows.

Sitting lawmakers are not entirely immune to arrests but there are certain rules that govern their arrests in civil or criminal cases.

Laws that govern arrests of Parliamentarians in India

A sitting MP cannot be arrested if he or she is inside the Parliament premises. Narayana Rane could have avoided the arrest if he was present in the Parliament.

MPs also have immunity from arrests in any civil cases when the Parliament is in session. They have freedom from arrest during the continuance of “a joint sitting, meeting, conference or joint committee” as well as 40 days prior to and 40 days after the conclusion, as per Section 135 of the Code of Civil Procedure. However, this freedom does not extend to criminal offences.

As Minister Rane’s arrest was made for an alleged criminal offence, this window does not apply to him.

However, the section 22A of Rajya Sabha states that information regarding the arrest of any MP has to be shared with the Chairman of the Upper House “indicating the reasons for the arrest, detention or conviction.” 

Maharashtra Police reportedly informed RS Chairman Venkaiah Naidu about the arrest on Tuesday evening. 

History of Parliamentarian arrests

While the union minister’s arrest is the first such incident in over a decade, there have been two such incidents of note since the turn of the century.

In 2001, MPs Murasoli Maran and TR Baalu were arrested by the Chennai Police in connection with the ‘Flyover scam’. Similarly, criminal-turned-politician Md Shahabudding was arrested from outside the parliament in a murder and kidnapping case in 2005.

What’s next for the MSME minister?

Released on bail on Tuesday night, minister Rane can reach out to the privileges committee of the parliament with a complaint against the Mumbai Police. MPs can file complaints to privileges committees in both houses if they claim mistreatment by the police. The committee can pull up and reprimand police officers for “high handedness” on such complaints but does not posses the authority to direct any disciplinary action.

If charge-sheeted, Narayan Rane will have a much bigger challenge. The Supreme Court of India upheld that people who have been charge-sheeted should not be made a part of the Cabinet of Ministers. The apex court had, however, also noted that the Indian constitution does not state any such prohibition.

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— Narayan Rane (@MeNarayanRane) August 24, 2021

MSME Minister Narayan Rane has the legal right to continue in his capacity and perform his duties as a cabinet minister. At the same time, he will have to fight the court case as an ordinary individual. In fact, several past precedents have seen ministers continue to hold office even after charge-sheets are filed against them.