Question

With regard to the provisions of the 91st Amendment Act, consider the following statements.

1. The total number of ministers in a state, including the Chief Minister, cannot be less than 12, with no exceptions.

2. A member disqualified under the anti-defection law is also disqualified from being appointed as a minister.

Which of the statement(s) given above is/are correct?

• A. 1 only
• B. 2 only
• C. Both 1 and 2
• D. Neither 1 nor 2

Answer 1

Answer:

B. 2 only

The 91st Constitutional Amendment Act, 2003

• The 91st Constitutional Amendment Act, 2003, was enacted to curb defections and limit the size of the Council of Ministers, thereby promoting more stable governments and discouraging large, unwieldy ministries.

• It primarily amended Articles 75, 164, 361B, and the Tenth Schedule of the Indian Constitution.

Limitations on the Size of the Council of Ministers (Articles 75(1A) and 164(1A))

• Maximum Limit: The total number of Ministers, including the Prime Minister (at the Centre) or the Chief Minister (in a State), in the Council of Ministers shall not exceed 15% of the total strength of the Lok Sabha (for the Union) or the Legislative Assembly (for the State).

• Minimum Limit for States: For a State, the number of Ministers, including the Chief Minister, shall not be less than 12. This provision was introduced to ensure a viable size for state cabinets.

• Exception to the Minimum Limit: An important exception exists for states with a smaller legislative assembly. If the total number of members of the Legislative Assembly of a State is forty or less, the total number of Ministers, including the Chief Minister, in that State shall not exceed twelve. This means that for very small assemblies, the 15% rule might result in a number less than 12, but it still cannot exceed 12. This provision renders the first statement incorrect, as there is an implicit exception for smaller states where the total cabinet size is capped at 12, and thus could potentially be less than 12.

Disqualification of Defecting Legislators from Ministerial Post (Articles 75(1B) and 164(1B))

• The Act introduced a crucial provision stating that a member of a House belonging to any political party who is disqualified for being a member of that House under the Tenth Schedule (anti-defection law) shall also be disqualified to be appointed as a Minister.

• This disqualification remains valid for the period commencing on the date of his disqualification until the date on which the term of his office as such member would expire or until he contests and is declared elected in any election to the legislature, whichever is earlier.

• This provision directly addresses the second statement, making it correct, as it explicitly bars a disqualified defector from holding a ministerial position.

Other Significant Amendments

• The Act also removed the provision of the Tenth Schedule (anti-defection law) relating to the 'split' in a political party. Previously, a 'split' of one-third members of a legislature party was not considered defection. This exception was removed to make the anti-defection law more stringent and prevent easy defections.

• It added Article 361B, which disqualifies a member of a House belonging to any political party who is disqualified under the Tenth Schedule from holding any remunerative political post. This includes any office under the central or state government where the salary or remuneration is paid out of public revenue, other than a ministerial office or any other office declared by Parliament or a state legislature not to be an office of profit.