The Constitution (Ninety-First Amendment) act, 2003 regarding Anti Defection Law and Restricting the Size of the Council of Ministers
The Parliament in its recently concluded session has passed the Constitution (Ninety-seventh Amendment) Bill, 2003 incorporating the suggestions made by the Department-related Parliamentary Standing Committee on Home Affairs, on 16th December, 2003 (Lok Sabha) and on 18th December, 2003 (Rajya Sabha). The said constitution amendment received the assent of the President as the Constitution (Ninety-first Amendment) Act, 2003. The said Act provides:-
(i) that the size of the Council of Ministers in the Union Government and in a State Government should not be more than fifteen per cent. of the total number of Members of the Lower House of the Parliament/State Legislature (the minimum strength of Ministers in case of smaller States being twelve). The second proviso to the clause (1A) of article 164 of the Constitution provides that where the size of the Council of Ministers exceeds the said fifteen per cent. or the number specified in that clause, then the total number of Ministers shall be brought in conformity with the provisions of the clause within a period of six months from the date notified for the purpose by the President;
(ii) that a person disqualified under the anti-defection law shall not be appointed as a Minister nor hold any remunerative political post for the duration of the period commencing from the date of his disqualification where he contests any election to either House of Parliament/State Legislature before the expiry of such period, till the date on which he is declared elected, whichever is earlier. The “remunerative political post” means any office-
(a) under the Central Government or the State Government where the salary or remuneration for such office is paid out of the public revenue of the Central Government or the State Government, as the case may be; or
(b) under a body, whether incorporated or not, which is wholly or partially owned by the Central Government or the State Government and the salary or remuneration for such office is paid by such body,
except where such salary or remuneration paid is compensatory in nature’; and
(iii) for omission of para 3 of the Tenth Schedule of the Constitution so as to bring split of political parties within the purview of disqualification based on defection.
2. The Minister of Law and Justice has written a letter along with the copies of the Constitution (Ninety-first Amendment) Act, 2003 and the Notification dated the 7th January, 2004 to the Chief Ministers of all States to bring the size of the Council of Ministers in conformity with the provisions of the newly inserted clause (1A) in article 164 of the Constitution within six months if the total number of Ministers exceeds the said limit.
Everyone is waiting with bated breath to know the size of the Council of Ministers that Prime Minister-designate Narendra Modi will have. It is of particular interest as one of the main planks of his election campaign was ‘minimum government and maximum governance’.
Unlike every single government since 1989, Mr. Modi does not have any ‘coalition compulsions’ like his predecessors. The Bharatiya Janata Party on its own has 10 members more than the required 272 in the Lok Sabha for a simple majority.
BJP’s allies, who are part of the National Democratic Alliance (NDA), account for only 56 members in the Lok Sabha. So, to that extent Mr. Modi’s dependence on allies is reduced. However, it does not have even 50 members in the Rajya Sabha with an effective strength of 245. In effect, no legislation can be pushed through without major support from other parties, including the Congress.
Article 72 of the Constitution prescribes that the total number of Ministers, including the Prime Minister, in the Council of Ministers shall not exceed 15 per cent of the number of members of the House of the People.
Prior to January 1, 2004 (effective date of 91st Amendment of the Constitution) the Prime Minister had discretion to appoint any number in his council of ministers. But the Constitution (Ninety-first Amendment) Act in 2003 made a drastic change in curbing such power of the Prime Minister.
This Amendment added clause (1A) in this Article which made a specific provision that, the total number of Ministers, including Prime Minister, in no case can exceed 15 per cent of the total number of Lok Sabha members.
The Prime Minister can induct into his ministry a person who is not a member of either House of Parliament. However, a minister who for a period of six consecutive months is not a member of either House of Parliament shall at the expiration of that period cease to be one.
The amendment to the Constitution on the ceiling to the number of ministers was done as it was found that abnormally large councils of ministers were being constituted.However, in the case of smaller States like Sikkim, Mizoram and Goa having 32, 40 and 40 members in the Legislative Assemblies respectively, a minimum strength of seven ministers is proposed.
Usually, constitution of ministries is undertaken in instalments. The first swearing-in has mostly been relatively small. It was being done to keep hopes alive among the large number of aspirants and has proved to be an effective strategy in running coalition governments.
When Atal Bihari Vajpayee formed his government for the first time in March 1998, he had 21 Cabinet and 21 Ministers of State some with independent charge. At the beginning of his second stint in October 1999, there were 22 Cabinet and equal numbers of Ministers of State. Subsequently, it was expanded to suit political expediencies.
The UPA-I and UPA-II led by Manmohan Singh began with over 50 ministers and at some stage the maximum strength was 78.