Summary of Articles

Article 74 & 75 of the constitution of India deal with the Council of Ministers and Prime Minister. Here is the summary of these articles:

Article 74(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. The president may require the council of ministers to reconsider such advice and president shall act in accordance with such advice reconsidered.
Article 74(2): What advice was tendered to the president cannot be inquired into any court.
Article 75(1): 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.

Article 75(2): The Ministers shall hold office during the pleasure of the President.
Article 75(3): The Council of Ministers shall be collectively responsible to the House of the People.
Article 75(4): Before a Minister enters upon his office, the President shall administer to him the oaths of office and of secrecy according to the forms set out for the purpose in the Third Schedule
Article 75(5): A Minister must be a member of any of the houses within 6 months.
Article 75(6): Parliament will decide the salary and allowances of the Ministers and until parliament decides, so shall be as specified in the Second Schedule. The Council of Ministers is Real Executive
The article 74(1) makes the Council of Ministers real executive in our country. This article mentions that the President shall act in accordance with the advice tendered by the council of Ministers. The president may ask the Council of Ministers to reconsider the advice, but if the Council of Ministers decides to stick to the previous advice, the president acts as per this reconsidered advice.

Functions of the Council of Ministers

Formulates policies of the country on the basis of which administration is carried out
Introduces all important Bills in Parliament and oversees their passage
Presents the Budget to the Parliament
Determines foreign policy
Approves international agreements and treaties
Render advice to the President regarding proclamation of war or emergency

Categories of Ministers

Cabinet Minister

Senior minister in charge of a particular Ministry
May hold additional charges of other Ministries (if no other Cabinet Minister is appointed)
Cabinet Ministers must belong to either House of Parliament
Currently there are 33 Cabinet Ministers

Minister of State (Independent Charge)

In charge of a particular portfolio
Is not under the oversight of a Cabinet Minister
Currently there are 7 MoS with independent charge

Minister of State

A minister with a specific responsibility in a particular Ministry
Reports to the concerned Cabinet Minister
Currently there are 38 MoS

Relationship between the President and COM

Advice tendered to the president by the Council of Ministers cannot be inquired by anybody. This has been made clear by the article 74(2) of the constitution.

Presidential Pleasure

All the ministers are appointed by the president on the advice of the Prime Minister. It is the Prime Minister who allocates the portfolio to other ministers. The prime Minister may call for the resignation of any minister at any time. In case the minister refuses, the prime minister may advice the President to dismiss the minister. This is also called the “Rule of Individual Responsibility”.

Ministers are from both Rajya Sabha and Lok Sabha

A Minister must be a member of any of the houses within 6 months. This means that Prime Minister may choose Ministers from Lok Sabha or Rajya Sabha. A person who is not a member of either house may be appointed as a minister. But maximum duration, a person can remain a minister without being a member of either house is 6 months. He / she must be able to secure a seat in either house within this time period as per Article 75(5).

Council of Minister will be collectively responsible to the house of people

Article 75(3) of our constitution incorporates the Principle of Collective Responsibility. This article says that Council of Ministers shall be collectively responsible to “Lok Sabha”. This means that if the Ministry loses the confidence of the “Lok Sabha”, all ministers including those who are from Rajya Sabha have to go. The entire ministry is obliged to resign. This means that ministers fall and stand together. This is called “Rule of Collective Responsibility”.

Individual Responsibility

As mentioned above, Individual responsibility means that Individual minister holds the office during the pleasure of the president. It means that this is a “powerful weapon” of the President in the hands of the prime Minister. Losing confidence of the Prime Minister leads to dismissal by the President.

Stand of Supreme Court on Article 74

S. R. Bommai v. Union of India (1994)

In this case Supreme Court made some very important pronouncements regarding scope and effect of Clause (2) of Article 74. Article 74(2) barred courts from inquiring into the advice given by Council of Ministers to President. In a way the advice of Council of Ministers was kept out of Supreme Court’s power of Judicial Review by this article.

In this regard Supreme Court held 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.

The court also said that, when it undertakes an inquiry into the existence of such material, the prohibition contained in Article 74(2) does not negate their right to know about the factual existence of any such material.
The court also made clear, that Article 74(2) gives freedom to the President by making his order unquestionable on the ground that it was either contrary to the advice tendered by the ministers or was issued without obtaining any advice from the ministers.

The object of Article 74(2) was only to make the question whether the President had followed the advice of the Ministers or acted contrary thereto, non-justiciable. When the union cabinet is unhappy with the unconstitutional functioning of the President, impeachment by the Parliament is the only recourse since the legal action by the courts is not possible per Article 74 (2) and Article 361.

The impeachment action by parliament is valid only when the charges of violating the constitution by the president are proven by a court or tribunal which is designated by either house of Parliament with two-thirds majority of its total membership per Article 61.

President, need not step down or can approach the Supreme Court for restoring his post as long as he has not violated the constitution (i.e. not obliging the unconstitutional advice of the ministers even after sending back for reconsideration).

Role of Cabinet

It is the highest decision-making authority in our politico-administrative system.
It is the chief policy formulating body of the Central government.
It is the supreme executive authority of the Central government.
It is chief coordinator of Central administration.
It is an advisory body to the president and its advice is binding on him.
It is the chief crisis manager and thus deals with all emergency situations.
It deals with all major legislative and financial matters.
It exercises control over higher appointments like constitutional authorities and senior secretariat administrators.
It deals with all foreign policies and foreign affairs.

Ever-Increasing Responsibility of Cabinet

In India cabinet system of government has been borrowed from England and as such by and large the cabinet functions on the same principles, as are followed in England. But before discussing these principles it need be remembered that in India the work of the cabinet and that of the inner cabinet has very greatly increased and day-by-day it is much increasing.
It is due to several reasons. Legislative work on the whole in the country has very much increased and in spite of the fact that the cabinet meetings are very frequently held but still much is to be left for delegated legislation.
The international situations and conditions are changing so fast that it is very difficult to keep pace with these. Every such change in any part of the globe increases the volume of the work of the cabinet, as that requires keeping a very close eye on the situation at all times, because situation can become explosive at any time.
The problem is on home front, there is some problem or the other in one part of the country or the other. Central cabinet is expected to keep an eye on every situation and is to ensure that trouble is brought under control at the earliest.
For example, these days terrorist activities along with those of anti-social elements and disintegrating forces have much increased and consume a lot of cabinet time for finding solution to effectually tackling these. Responsibility of the cabinet very much increases as it decides to take-over the administration of any state on account of constitutional break down or any other reason.
One more reason for increase in cabinet work load is that a lot of work which should be done by the Council of Ministers is now being done by the cabinet, because it is felt that the former is an unwieldy body, in which it is not possible to take speedy and quick decisions on the one hand and to maintain secrecy on the other.
Then another reason for increased cabinet work is rapid scientific and technological advancement with which cabinet is required to keep pace so that the country does leg-behind in technological and scientific fields. It also means backwardness in industrialization, modernization and defense preparedness, which no nation can afford.

Kitchen Cabinet

Kitchen Cabinet consists an informal body of the Prime Minister and 2-4 influential colleagues in whom he has faith and with whom he can discuss every problem.
Not only cabinet ministers but also outsiders like friends and family members of the prime minister.
Also called as Inner Cabinet

The prime ministers have resorted to the device of ‘inner cabinet’ (extra-constitutional body) due to its merits, namely:
1. It being a small unit, is much more efficient decision-making body than a large cabinet.
2. It can meet more often and deal with business much more expeditiously than the large cabinet.
3. It helps the Prime Minister in maintaining secrecy in making decisions on important political issues.

However, it has many demerits also. Thus,

1. It reduces the authority and status of the cabinet as the highest decision-making body.
2. It circumvents the legal process by allowing outside persons to play an influential role in the government functioning.