- The 91st Amendment to the Constitution came into force on July 7, 2004. As per the amendment, the size of ministerial councils at the Centre and in the states could not exceed 15% of the number of members of the Lok Sabha or state legislatures from then on.
- The Constitution (91st Amendment) Bill was proposed by a committee led by Pranab Mukherjee, who noted that the exception granted by allowing a split, stated in paragraph three of the Schedule, was being extensively abused, resulting in several divisions in numerous political parties. Furthermore, the committee found that the promise of personal benefit influenced defections and resulted in political horse-trading. The Lok Sabha passed the Bill on December 16, 2003, and similarly, the Rajya Sabha passed the Bill on December 18, 2003. On 1st January 2004, Presidential approval was gained, and the Constitution (91st Amendment) Act, 2003 was notified in the Indian Gazette on 2 January 2004.
- Article 75 and Article 164 of the Indian Constitution were amended to include two additional clauses (1-A) and (1-B). The new Clause (1-A) limits the size of the centre and state ministries. As per new Clause (1-A), the number of total ministers in the Central Council including the Prime Minister, shall not exceed 15% of the Lok Sabha’s total members.
- Article 75 Clause (1-B) provides that a member of either House of Parliament belonging to any party who is disqualified for membership in that House due to defection under paragraph of the Tenth Schedule is also disqualified for appointment as a minister under Clause (1) of Articles 75 and 164 of the Constitution until he is elected again.
- The amendment deleted paragraph 3 of the Tenth Schedule, which provided that if one-third of a political party defected, they would not be disqualified under the defection statute.
- The above amendment also added a new Article 361-B to Part XIX of the Constitution that stated: “A member who has been disqualified to be a member on the ground of defection under paragraph 2 of the Tenth Schedule shall be disqualified to hold any remunerative posts (Chairman of incorporated bodies) during the timespan of his disqualification.”
- The term “remunerative political post” refers to any position under the Central or State Government for which the payor remuneration is paid from the public revenue of the Government of India or the Government of any State. It also covers anybody, whether incorporated or not, that is completely or substantially owned by the Government of India or a State Government that pays the salary or remuneration for such post.
KEY ASPECTS OF THE 91ST AMENDMENT ACT
- To limit the number of the Council of Ministers, prohibit defectors from holding public office, and tighten the anti-defection statute, the 91st Amendment included the following provisions:
- The overall number of ministers in the Central Council of Ministers, including the Prime Minister, should not exceed 15% of the Lok Sabha’s total strength.
- Any member of either House of Parliament who is disqualified from serving as a minister due to defection is likewise barred from serving as a minister.
- The total number of ministers in a State Council, including the Chief Minister, cannot exceed 15% of the legislative Assembly’s total strength. The total number of ministers of a state, including the Chief Minister, shall not be less than 12.
- A member of either House of a state legislature who is disqualified from serving as a minister due to defection is likewise prohibited from serving as a minister.
- A member of either House of Parliament or the House of a State Legislature from any political party who is disqualified for defection from any political party is also barred from holding any remunerative political office.
- Any office under the Central Government or a state government where the salary or remuneration for such office is paid out of the concerned government’s public revenue;
- The exemption from the disqualification clause in the Tenth Schedule (Anti-Defection Act) has been abolished. This means that the divides no longer shield the defectors.
ANTI-DEFECTION LAW UNDER 10TH SCHEDULE OF THE INDIAN CONSTITUTION
The (52 Amendment) Act 1985 added the Tenth Schedule to the Constitution, and the reasons behind the amendment were to prevent political defections motivated by the lure of office or other similar considerations that potentially harm the fundamentals of our democracy. The proposed solution was to bar any Member of Parliament or the State Legislature who was proven to have defected from continuing to serve in the House.
