Union Council of Ministers: Constitutional Evolution & Governance Framework

India’s Parliamentary System: Role of the Council of Ministers & Prime Minister

The Constitution of India provides for a parliamentary system of government which is modeled on the British pattern, the Council of Ministers headed by the Prime Minister is the real (De-facto) executive authority is our politico-administrative system.

Constitutional Framework & Functionality of India’s Council of Ministers:

• Portfolio system was started by Lord Canning in Indian Councils Act 1861.
• In the United Kingdom: Council of Ministers is the real executive which is left on the convention.
• In India: System of Council of Ministers is codified and mentioned in the Indian Constitution.
• The principles of the parliamentary system of government are not provided in detail in the Constitution. But two Articles (74 and 75) deal with them in a broad, sketchy and general manner.
  • Art. 74: Deals with the status and nature of the council of ministers
  • Art. 75: Deals with the appointment, tenure, responsibility, qualification, oath and salaries and allowances of the ministers. 
• Every Minister is responsible for the acts of the officers of his department.
  • He has to answer questions regarding the affairs of his department in the Parliament. 
• Council of Ministers rarely meets so the driving wheel of the government is the Cabinet.

Constitutional Framework: India’s Central Council of Ministers & Union Executive

• Articles spanning from 74 to 78 in Part V broadly deals with Central Council of Minister 
• Union Executive: Consist of President, Vice-president, Prime minister, Union Council of Ministers and Attorney General Of India.

Advisory Role of India’s Council of Ministers under Article 74

• (1) There shall be a Council of Ministers (CoM) 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. 
  • However, the President may require the Council of Ministers to reconsider such advice (Provision Added by 44th CAA, 1978) and the President shall act in accordance with the advice tendered after such reconsideration. 
• (2) The advice tendered by Ministers to the President shall not be inquired into in any court.

Article 75: Appointment, Tenure & Responsibilities of India’s Council of Ministers

• The Prime Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the PM. 
• The Council of Ministers shall be collectively responsible to the house of the people i.e Lok Sabha. (Note: not to the Rajya Sabha)
• A minister who is not a member of the Parliament (either Rajya Sabha or Lok Sabha ) for any period of six consecutive months shall cease to be a minister.
• The ministers shall hold office during the pleasure of the President.
• Before a Minister enters upon his office, the President shall administer to him the oaths of office and of secrecy (forms set out for the purpose in the Third Schedule).
• The 91st Amendment Act of 2003 restricted the size of the Council of Ministers and put criteria for disqualification of Ministers.
  • The total number of ministers, including the Prime Minister, in the Council of Ministers shall not exceed 15% of the total strength of the Lok Sabha.
  • A member of either house of Parliament belonging to any political party who is disqualified on the ground of defection shall also be disqualified to be appointed as a minister.
• The Salaries and Allowances of Ministers shall be such as Parliament may from time to time by law determine (As specified in the Second Schedule).

Principle of Collective Responsibility & Majority Support in India’s Council of Ministers

• Collective responsibility relies on the ‘notion of solidarity’, i.e. a single vote of no confidence against a minister can lead to the resignation of the entire council. 
  • Hence, the support of the majority is a must for the council.

Executive Authority & Business Conduct in India per Article 77

• All executive actions of the govt. of India shall be expressed to be taken in the name of the President. 
• Orders and other instruments made and executed in the name of the President shall be authenticated in such manner as may be specified in rules to be made by the President. 
• Moreover, the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the President. 
• The President shall make rules for the more convenient transaction of the business of the govt. of India, and for the allocation among Ministers of the said business. 

Prime Ministerial Duties under Article 78 in India’s Governance Structure

• To communicate to the President all decisions of the Council of Ministers relating to the administration of the affairs of the Union and proposals for legislation.
• To furnish such information relating to the administration of the affairs of the Union and proposals for legislation as the President may call for.
• If the President so requires, to submit for the consideration of the COM on any matter on which a decision has been taken by a Minister but which has not been considered by the Council. 

Article 88: Rights Of Ministers and Attorney General in India’s Legislative Houses:

• Every minister and  the Attorney General of India shall have the right to speak and take part in the proceedings of either House, any joint sitting of the Houses and any Committee of Parliament of which he/she may be named a member. 
• However, he/she shall not be entitled to vote.

Strategic Considerations in Forming the Council of Ministers for Diverse Representation and Effective Governance:

• Minister from different regions to enhance regional representation of CoM
• Representation of communities, caste, women, coalition. 
• Capability of Ministers to deal with various tasks.
• Young and dynamic personality along with adequate experience.
• He/she should be a good administrator and decision maker.
• Visionary and optimistic with a futuristic attitude.
• A non-corrupt person with high moral standards.

Does the Council of Ministers’ Advice Bind the President in India?

• The 42nd (1976) and 44th (1978) Constitutional Amendment Acts have made the advice binding on the President. 
• 42nd Constitutional Amendment Act of 1976: The President shall, in the exercise of his functions, act in accordance with the advice rendered by the CoM.
• 44th Constitutional Amendment Act of 1978: Added a provision to the effect that the President may require the CoM to reconsider such advice and the president shall act in accordance with the advice tendered after such reconsideration. 
• However, the nature of advice tendered by ministers to the President cannot be enquired by any court. 
• This provision emphasizes the intimate and the confidential relationship between the President and the ministers. 

Does the Continuity of Council of Ministers Stand Valid Post Lok Sabha Dissolution: A Constitutional Scrutiny? 

• In 1971, the Supreme Court held that even after the dissolution of the Lok Sabha, the CoM did not cease to hold office. 
  • Article 52 is mandatory , It says ‘there shall be a President of India’. So Article 74(1) is mandatory.
  • Therefore, the president cannot exercise the executive power without the aid and advice of the council of ministers. 
  • Any exercise of executive power without the aid and advice will be unconstitutional as it is against Article 74.
• In 1974, the court held that wherever the Constitution requires the satisfaction of the President, the satisfaction is not the personal satisfaction of the President but it is the satisfaction of the CoM with whose aid and on whose advice the President exercises his powers and functions.

Ministerial Oaths and Salaries:

Deputy Prime Minister Oath: Constitutional Validity and Controversies

• The oath by Devi Lal as Deputy Prime Minister in 1990 was challenged as being unconstitutional as the Constitution provides only for the Prime Minister and other ministers.
  • The Supreme Court upheld the oath as valid and stated that describing a person as Deputy PM is descriptive only and such description does not confer on him any powers of PM. 
• The Supreme Court ruled that the description of a minister as Deputy Prime Ministers or any other type of minister such as minister of state or deputy minister of which there is no mention in the Constitution does not vitiate the oath taken by him so long as the substantive part of the oath is correct.

Prelims Previous Year Question.

1. There is a Parliamentary System of Government in because the [2015]

1. 1. Lok Sabha is elected directly by the people
   2. Parliament can amend the Constitution
   3. Rajya Sabha cannot be dissolved
   4. Council of Ministers is responsible to the Lok Sabha 

2. Which one of the following amendments to the Indian Constitution empowers the President to send back any matter for reconsideration by the Council of Ministers? [2002] 

1. 1. 39th
   2. 40th
   3. 42nd
   4. 44th

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