91st Constitutional Amendment Act 2003

Also called: 91st Constitutional Amendment Act · Topic: Political Parties, Party Systems and Anti-defection · NCERT: Class 11, Ch 4 "Executive"; Class 11, Ch 5 "Legislature"; Class 11, Ch 9 "Constitution as a Living Document"

Meaning

The 91st Constitutional Amendment Act, 2003 made three changes to stop defection. It limited the Council of Ministers to 15% of the total members of the Lok Sabha or the state Legislative Assembly. It deleted the split exception (para 3) from the anti-defection law. It also barred a disqualified defector from becoming a minister or holding a paid political post until the end of their term or until they are re-elected.

It matters because it attacked the main reward for defecting, which was a ministerial post. It also closed the "one-third split" loophole, which had turned individual defections into group defections.

Explanation

Background: the problem it tried to fix

• Defection means a legislator leaving the party on whose ticket they won, or disobeying its orders inside the House. In the 1960s and 1970s it was mocked as "Aya Ram, Gaya Ram".
• The 52nd Amendment Act, 1985 added the Tenth Schedule (the anti-defection law). It allowed two exceptions:
• Split (para 3): a group of at least one-third of a legislature party could break away without being disqualified.

• Merger (para 4): no disqualification if the party merges with another and at least two-thirds of the legislature party agree.

• Legislature party means the members of one party sitting in a House. The political party is the full organisation outside the House.

• The split clause backfired:
• Defectors simply moved in groups of one-third instead of one by one.

• Goa had seven Chief Ministers between 1990 and 2000 because of these bulk defections [3].

• Ministerial posts were the bait: defectors were often rewarded with a place in the new government.

The five changes made by the amendment

Provision	What it says
Tenth Schedule, para 3	The split exception is deleted
Art. 75(1A)	The Union Council of Ministers, including the PM, cannot be more than 15% of the total members of the Lok Sabha
Art. 164(1A)	A state Council of Ministers, including the CM, cannot be more than 15% of the Assembly, and cannot have fewer than 12
Arts. 75(1B), 164(1B)	A member disqualified for defection cannot become a minister until their term ends, or until they are re-elected, whichever comes first
Art. 361B	A disqualified defector cannot hold any remunerative political post (a paid government office whose salary comes from public funds) for the same period

How the pieces work together

• Closing the door: without the split clause, a breakaway group is no longer protected. Only the merger route (two-thirds) is left.
• Removing the reward:
• The 15% cap means fewer ministerial posts to hand out.

• A government can no longer grow its cabinet without limit just to keep defectors happy.

• Punishing the defector:

• A disqualified member cannot become a minister or take a paid political post.
• The bar ends when the term ends or when the person is re-elected, whichever comes first.

Limits: what it did not do

• Merger survived. The Law Commission's 170th Report (1999) had asked to delete both split and merger [3]. Parliament deleted only the split.
• The Speaker still decides. Para 6 (the Speaker or Chairman decides disqualification) was left untouched. So delay and bias by Speakers continued.
• No bar on contesting elections. A defector can still resign, contest a by-election and come back. If they win, the bar on becoming a minister ends.

In the Constitution and practice

• Where it sits: Arts. 75(1A), 75(1B), 164(1A), 164(1B), the new Art. 361B, and the deletion of para 3 of the Tenth Schedule. Defecting MPs are disqualified under Art. 102(2) and defecting MLAs under Art. 191(2).
• NCERT link: Class 11, "Executive" (size of the Council of Ministers), "Legislature" (anti-defection) and "Constitution as a Living Document" (amendments).
• Rajendra Singh Rana v. Swami Prasad Mourya (Constitution Bench, 2007):
• BSP MLAs in Uttar Pradesh claimed a "split" in 2003.
• The Court rejected the claim. A split had to exist at the time of defection. It could not be pieced together later from a series of individual exits.
• It held that a Speaker's failure to decide a petition is open to judicial review (the power of courts to check whether a state action is lawful).

• The Court then decided the disqualification question itself [2].

• Defection moved to the merger route. These "engineered mergers" moved legislators to another party while the party organisation never merged:

• Goa, July 2019: 10 of 15 Congress MLAs joined the BJP.
• Rajasthan, September 2019: all 6 BSP MLAs joined the Congress.

• Goa, September 2022: 8 of 11 Congress MLAs joined the BJP.

• Defection moved to mass resignations:

• Karnataka 2019: 17 MLAs resigned and the Kumaraswamy government fell after about 13 months [3]. In Shrimanth Balasaheb Patil (2019) the Supreme Court upheld their disqualification. But it said the Speaker cannot bar them from contesting for the rest of the term.

• Madhya Pradesh, March 2020: 22 Congress MLAs resigned and the Kamal Nath government fell after about 13 months [3].

• The Art. 75(1B)/164(1B) problem in action: Keisham Meghachandra Singh (2020):

• A Congress MLA became a BJP minister in Manipur. Petitions against him stayed pending for years.
• The Court said Speakers should decide within about three months.

• In March 2020 the Speaker still had not decided. Using Art. 142 (the Supreme Court's power to do "complete justice"), the Court removed the minister, Th. Shyamkumar, from the Cabinet.

• Padi Kaushik Reddy (31 July 2025): the Telangana Speaker was told to decide on 10 BRS MLAs within three months. The Court warned of "operation successful, patient died", meaning defectors serve out the full term while their cases stay pending [2].

Don't confuse with

• 52nd Amendment Act, 1985: this one created the Tenth Schedule with both split and merger. The 91st Amendment (2003) only amended it by deleting the split.
• Split (para 3) vs Merger (para 4): the split needed one-third and was deleted in 2003. The merger needs two-thirds and is still in force.
• Bar on being a minister vs bar on contesting elections: the 91st Amendment bars a disqualified defector from ministerial and remunerative political posts only. It does not stop them from contesting elections. Shrimanth Balasaheb Patil (2019) held that a Speaker cannot add such a bar either.
• 15% of the Lok Sabha vs 15% of Parliament: the Union cap is counted on the Lok Sabha's total strength (Art. 75(1A)), not on both Houses together, even though ministers can come from either House.

Prelims Hooks

• 91st Amendment, 2003: deleted the one-third split (para 3 of the Tenth Schedule). The two-thirds merger (para 4) still exists. This is a common trap.
• Art. 75(1A): Union Council of Ministers, including the PM, is capped at 15% of the Lok Sabha. Art. 164(1A): state ministry is capped at 15% of the Assembly, with a minimum of 12 (including the CM).
• Arts. 75(1B) and 164(1B): a disqualified defector cannot become a minister until the term ends or until re-election, whichever is earlier.
• Art. 361B (added in 2003): a disqualified defector cannot hold a remunerative political post for the same period.
• Law Commission 170th Report (1999): recommended deleting both split and merger. Parliament deleted only the split [3].
• Rajendra Singh Rana (2007): a split claimed by UP BSP MLAs in 2003 was rejected. A Speaker's failure to decide is open to judicial review [2].

Mains Points

• It closed one loophole, but defections found new routes.
• Deleting the split stopped one-third group defections.
• Engineered mergers (Goa 2019 and 2022, Rajasthan 2019) and mass resignations (Karnataka 2019, Madhya Pradesh 2020) took their place [3].

• Possible fixes: delete the merger clause too (Law Commission, 1999), do not count a defector's vote when deciding whether a government survives (NCRWC, 2002), and bar defectors from office for the full term [3].

• Cutting the reward helped, but the referee was left unchanged.

• The 15% cap and the bar on posts reduced the reward for defecting.
• But the Speaker still decides cases and can sit on them. In Manipur, a defector served as a minister for years (Keisham, 2020). The Telangana case (Padi Kaushik Reddy, 2025) showed the same delay [2].

• A lasting fix needs Parliament to act: an independent tribunal headed by a retired SC judge (Keisham) [3], or the President or Governor deciding on the Election Commission's advice (Dinesh Goswami Committee, 1990; 2nd ARC, 2007) [3].

• The cap on ministry size is also a good-governance reform.

• Limiting the Council of Ministers to 15% reduces the cost of large ministries and stops posts being handed out to keep a coalition or defectors together.
• The re-election escape clause and the lack of any bar on contesting elections still let defectors return quickly through by-elections.

Related concepts

• Split (anti-defection)
• Merger exception
• Kihoto Hollohan case
• Keisham Meghachandra Singh case
• Subhash Desai case

Read more

• The anti-defection law in practice: the 91st Amendment and the courts