Constitution (91st Amendment) Act, 20031
An Act further to amend the Constitution of India
Be it enacted by Parliament in the Fifty-fourth Year of the Republic of India as follows:-
1 Received the assent of the President on January 1, 2004 and published in the Gazette of India, Extra., Part II, Section 1, dated 2nd January, 2004, pp. 1-3, No. 1
Prefatory Note-Statement of Objects and Reasons.-Demands have been made from time to time in certain quarters for strengthening and amending the Anti-defection Law as contained in the Tenth Schedule to the Constitution of India, on the ground that these provisions have not been able to achieve the desired goal of checking defections. The Tenth Schedule has also been criticised on the ground that it allows bulk defections while declaring individual defections as illegal. The provision for exemption from disqualification in case of splits as provided in Paragraph 3 of the Tenth Schedule to the Constitution of India has, in particular, come under severe criticism on account of its destablising effect on the Government.
2. The Committee on Electoral Reforms (Dinesh Goswami Committee) in its report of May 1990, the Law Commission of India in its 170th Report on "Reform of Electoral Laws" (1999) and the National Commission to Review the Working of the Constitution (NCRWC) in its report of March 31, 2002 have, inter alia, recommended omission of said Paragraph 3 of the Tenth Schedule to the Constitution of India pertaining to exemption from disqualification in case of splits. The NCRWC is also of the view that a defector should be penalised for his action by debarring him from holding any public office as a Minister or any other remunerative political post for at least the duration of the remaining term of the existing Legislature or until, the next fresh elections whichever is earlier. It is proposed to accept these suggestions.
3. The NCRWC has also observed that abnormally large Councils of Ministers were being constituted by various Governments at Centre and States and this practice had to be prohibited by law and that a ceiling on the number of Ministers in a State or the Union Government be fixed at the maximum of 10% of the total strength of the popular House of the Legislature.
4. In the light of the above, it is proposed to amend the Constitution by omitting Paragraph 3 of Tenth Schedule to the Constitution of India and to provide that the size of the Council of Ministers should not be more than 10% of the strength of House or Houses concerned whether Unicameral or Bicameral. However, in case of smaller States like Sikkim, Mizoram and Goa having 32, 40 and 40 Members in the Legislative Assemblies respectively, a minimum strength of 7 Ministers is proposed.
5. The Bill seeks to achieve the objects mentioned above.
1. Short title.-This Act may be called the Constitution (Ninety-first Amendment) Act, 2003.
2. Amendment of Article 75.-In Article 75 of the Constitution, after clause (1), the following clauses shall be inserted, namely:-
"(1-A) The total number of Ministers, including the Prime Minister, in the Council of Ministers shall not exceed fifteen per cent of the total number of members of the House of the People.
(1-B) A member of either House of Parliament belonging to any political party who is disqualified for being a member of that House under Paragraph 2 of the Tenth Schedule shall also be disqualified to be appointed as a Minister under clause (1) for duration of the period commencing from the date of his disqualification till the date on which the term of his office as such member would expire or where he contests any election to either House of Parliament before the expiry of such period, till the date on which he is declared elected, whichever is earlier.".
3. Amendment of Article 164.-In Article 164 of the Constitution, after clause (1), the following clauses shall be inserted, namely:-
"(1-A) The total number of Ministers, including the Chief Minister, in the Council of Ministers in a State shall not exceed fifteen per cent of the total number of members of the Legislative Assembly of that State :
Provided that the number of Ministers, including the Chief Minister, in a State shall not be less than twelve :
Provided further that where the total number of Ministers, including the Chief Minister, in the Council of Ministers in any State at the commencement of the Constitution (Ninety-first Amendment) Act, 2003 exceeds the said fifteen per cent or the number specified in the first proviso, as the case may be, then, the total number of Ministers in that State shall be brought in conformity with the provisions of this clause within six months from such date as the President may by public notification appoint.
(1-B) A member of the Legislative Assembly of a State or either House of the Legislature of a State having Legislative Council belonging to any political party who is disqualified for being a member of that House under Paragraph 2 of the Tenth Schedule shall also be disqualified to be appointed as a Minister under clause (1) for duration of the period commencing from the date of his disqualification till the date on which the term of his office as such member would expire or where he contests any election to the Legislative Assembly of a State or either House of the Legislature of a State having Legislative Council, as the case may be, before the expiry of such period, till the date on which he is declared elected, whichever is earlier.".
4. Insertion of new Article 361-B.-After Article 361-A of the Constitution, the following article shall be inserted, namely:-
‘361-B. Disqualification for appointment on remunerative political post.-A member of a House belonging to any political party who is disqualified for being a member of the House under Paragraph 2 of the Tenth Schedule shall also be disqualified to hold any remunerative political post for duration of the period commencing from the date of his disqualification till the date on which the term of his office as such member would expire or till the date on which he contests an election to a House and is declared elected, whichever is earlier.
Explanation.-For the purposes of this article,-
(a) the expression "House" has the meaning assigned to it in clause (a) of Paragraph 1 of the Tenth Schedule;
(b) the expression "remunerative political post" means any office-
(i) under the Government of India or the Government of a State where the salary or remuneration for such office is paid out of the public revenue of the Government of India or the Government of the State, as the case may be; or
(ii) under a body, whether incorporated or not, which is wholly or partially owned by the Government of India or the Government of a State and the salary or remuneration for such office is paid by such body,
except where such salary or remuneration paid is compensatory in nature.’.
5. Amendment of the Tenth Schedule.-In the Tenth Schedule to the Constitution,-
(a) in Paragraph 1, in clause (b), the words and figure "Paragraph 3 or, as the case may be," shall be omitted;
(b) in Paragraph 2, in sub-paragraph (1), for the words and figures "Paragraphs 3, 4 and 5", the words and figures "Paragraphs 4 and 5" shall be substituted;
(c) Paragraph 3 shall be omitted.