Council of Minister

 INTRODUCTION

Article 74[1] of the Constitution of India gives power to the council of ministers to help the President in the exercising his power. In this Article advice is given on the behalf of council of ministers to President. It is in the hand of President whether to take that advice or not. It was stated before the 42nd amendment came into place that “there shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions”. The 42nd Constitutional amendment went into effect from 3 January 1977. It was stated by 44th Amendment (1978) that the President can even send the advice back for reconsideration once. Article 74 allows Prime Minister to even participate with Council of Ministers[2] Article 74 of Constitution of India states that

(1) “There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice: Provided that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration.

(2) The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court.”

It was noted under Article 53 that the “executive power of the union is vested in the President and is exercisable by him in accordance with the Constitution.” As it is understood that from Article 74 that Council of Ministers have to advice the President so that he could perform his functions. Article 163 of Constitution of India states that

  1. There shall be a Council of Ministers with the Chief Minister at the head to aid and advice the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.
  2. If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion.
  3. The question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any court.

PRINCIPLES

The main head among council of Ministers is Prime Minister. He is known as the moon among the stars”. The council of ministers is known as stars whereas the Prime Minister is known as Moon. He with other Cabinet Ministers helps the President in each and every field relating to railways, sanitation, ministry of law, environment, transportation, home ministry and justice or any other sphere that is related to the country. The principles which are performed by the Cabinet Ministers are comes under Articles 74 and 75 of the Constitution.  Article 74 (1) states that “there shall be a council of ministers with the Prime Minister at the head to aid and advise the President in the discharge of his functions” where as Article 75(1) says that “The Prime Minister shall be appointed by the President and the other ministers shall be appointed by the President on the advice of the Prime Minister.” The President cannot ignore it. He has no option but only to accept it. The responsibility is on the Council of Ministers as they are only responsible for everything. The President appoints the leader who enjoys the supports of the majority as the Prime Minister. He is appointed for five years. The Ministers are even elected by President after the advice of Prime Minister. The powers are distributed among the Ministers. An outsider can even be appointed on the advice of Prime Minister. Such a person must be elected within six months of appointment. The President can even eliminate any minister. In Article 163 of Constitution of India there is the presence of Cabinet Minsters with Chief Minsters to advice the Governor.[3] He must be nominal head of institution. He can suggest anything to his ministers but not cannot force them. The responsibility of people lies in the hands of Ministers not Governor. His power is very strong and while exercising power of the state Governor means State government.[4]

PROVISIONS

The council of Ministers work is not only to give advice. The can even take the decisions. There are certainly the provisions which allow Council of Ministers to take the decisions which are related to the administration to the Union. In Article 75(3) it is clearly stated that Council of Ministers are even responsible for the decision took by House of Lords. They must be answerable to Parliament.  When Article 74 is compared with the Article 163(1) that is related to State Council of Ministers shows that the intention of Constitution is to competent rejection on the advice of the Ministers. An exception can be Governor can be acting on the ministerial advice. Article 163(1) states that “there shall be a council of Ministers with the chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this constitution required to exercise his functions or any of them in his discretion”.

If the President is against the advice of Council of Ministers, the latter at once can be resigned. Then the President has to find some other Prime Minister who could secure the support of House of the people. The President cannot make an alternative Government if the Prime Minister who is leaving and has the support of the House of People. “the President cannot dispense with the Council of Ministers for that would be Contrary to the Provisions of Article 74.” Moreover he cannot even install a ministry which has no support.

 The president cannot incur any expenditure if he is having a conflict with the Council of Ministers who are having the support of House of People.[5]  This is because the Council of Ministers controls the Authority. And in this case it would become almost impossible to run the government without the Constitutional framework. The court of law cannot question any advice or rejection done by President. If President is running any governmental machinery but without having proper authorization by parliament it would become unconstitutional. It may result in allegation of the President for violating Constitution.[6] Additionally, the dialect of Article 74 is such that the “Aid and Advice” of the Council of Ministers appear to be tying subsequent to these capacities are consultative in nature as well as has a coupling and vital nature, particularly after the forty-second Amendment, which embedded the provision in Article 74. In the case of S.R. Bommai v. Union Of India some very important pronouncements were made by Supreme Court related to the scope and effect of Cause number 2 of Article 74. Article 74(2) does not allow courts from inquiring into the advice which is given by Council of Ministers to President. In this case the advice which was given by given cabinet ministers were not to interfered by the Supreme Court. It was held by Supreme Court that “although Article 74(2) bars judicial review so far as the advice given by the Ministers is concerned, it does not bar scrutiny of the material on the basis of which the advice is given. It also said that the material on the basis of which advice was tendered does not become part of the advice and courts are justified in probing as to whether there was any material on the basis of which the advice was given, and whether it was relevant for such advice and the President could have acted on it”. It was also stated by Supreme Court that whenever an inquiry is held the Article 74(2) would not negate. In the case of Supreme Court Advocates on record Assn. v. Union of India[7] when the general principal was being laid down the court held in the matter in the appointment of judges of Supreme Court and High Court must bind the President only on the consultation of Chief Justice of India.  In Article 163 the ministers has no right to give advice to Governor. He shall act in discretion. He has the power to elect people by the state and there would be no danger to him. Governor is not elected by people but is elected by Central government. If the Council of Ministers suggests Governor not to do something but he can still do it and cannot be judged.[8]


References

[1] Constitution of India

[2] Subs, by the Constitution (forty-second Amendment) Act, 1976 S. 13 (w.e.f. 3-1-1997) Cl. (1) prior to substitute read:

“ there shall be Council of Ministers with the Prime Minister at the head to aid and advise the President in the Exercise of his functions.”

[3] For the corresponding Article under the union see Art. 74.

[4] State of U.P. V. Padhan Sangh Kshettra Samrirti 1995 Sup (2) SCC 205.

[5] Article 265.

[6] Article 61

[7] (1993) 4 SCC 441: AIR 1994 SC 268

[8] M.P. Special Police Establishment v. State of M.P. (2004) 8 SCC 788.

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