The council of ministers (Article 74 and 75)
In India, the passing of a bill starts from the parliament. It is the starting house of any bill. All the ministers collectively known as the council of ministers remain present in the parliament in order to make a bill into an act. They are the people responsible for any law being implemented in the nation or in a particular state. The definition and powers of the council of ministers are well defined in article 74 and article 75 of the constitution of India.
Article 74 of the constitution of India provides for a council of ministers required to aid and advice the President of India. The following two are the subsections of article 74: –
- Article 74(1)- This article states that there shall be a council of ministers which is headed by the prime minister to aid and advice the President of India who shall act on the advices of the council of ministers in accordance to his functions. But however, the President of India can send back such advice for re-consideration to the council but if again the advice comes back to the President after re-consideration, he must act in accordance to the advice.
- Article 74(2)- The advice given by the council of ministers to the President of India shall not to be inquired in any courts.
There were two major amendments which modified article 74 of the constitution of India. In the 42nd Amendment Act,1976 the Indira Gandhi government mandated the President of India to act according to the advice given by the council of minister. In the 44th Amendment Act,1978 there was a little power given to the president. The president can now send back a bill to the council if there are some mistakes for re-consideration, but if the same bill comes back without being re-considered then the president must act according to the council. In the case of S.R.Bommai v. Union of India, the Supreme court of India made some important judgements regarding the clause 2 of the article 74 of the constitution. According to article 74(2), the advice given by the council of ministers can’t be enquired by the courts. Thus the Supreme court f India pronounced that although the article 74(2) barred the judicial review so far as the advice given by the council, it doesn’t bar the scrutinization of the material on which the advice is given.
This article gave other provisions as to the council of ministers. This article has a total of six clauses as discussed below: –
- Article 75(1)- This article states that the Prime minister of India shall be appointed by the President of India and all the ministers forming the council of ministers must be appointed by the President of India on the advice of the Prime minister of India. This following article has 2 parts more to define. Article 75(1A) states that the strength of the council of ministers along with the Prime minister of India shall not exceed fifteen percent of the total number of members of the parliament. This is done to limit the number of members of the council of ministers. Article 75(1B) states that a member of either house of the parliament belonging to any political party who is disqualified from being a member of that house under paragraph 2 of the tenth schedule shall also be disqualified to be appointed as a minister under clause 1 for the duration of period commencing from the date of his disqualification till the date on which the term of his office as such member would expire or where he contests any election to either house of the parliament before the expiry of such period , till the date where he is declared elected.
- Article 75(2)- The council of ministers can hold the office during the pleasure of the President of India. This means that the council shall hold their offices during the presence of President of India and not in his absence.
- Article 75(3)- The council of ministers shall be collectively responsible to the house of people. This indicates the group working of the ministers together as a team or ‘council’. If any dispute occurs then any individual minister under the council of minister shall not to be questioned rather the entire council is to be questioned by the house of people or the Parliament.
- Article 75(4)- Before commencement of office work by the council of ministers, the president administers to him the oaths of office and secrecy according to the forms set out for the purpose of third schedule of the Indian constitution. The President of India makes him understand the duties of his office and all related functions before he commences the duties to his office.
- Article 75(5)- A minister who is not a member of either house of the parliament for a term exceeding six consecutive months shall be ceased to be a minister. This is done because if a minister doesn’t be a part of parliament, he can’t be deemed to become or remain minister until he again becomes member of the parliament.
- Article 75(6)- The salaries that the council of ministers receive must be same as the other members of the parliament as told in the second schedule of the Constitution of India.
Article 75 of the constitution widely defines the appointment, salary and functions of the Council of ministers. The council of ministers take important key decisions for the better governance of the country. The people of India elect the members of the Lok Sabha and the ruling party among the elected people of that party further forms a council of ministers and among them there is The Prime minister. The selection of members of the council of ministers is done in a general body meeting of the winning party after the declaration of results after the elections. There specific persons are given specific portfolios like defense, food, education, administration etc. And among then one person is chosen as the Prime minister of India. They collectively form the council of ministers.
Author: Sattwik Biswas,
2nd Year BBA LLB under IFIM Law School, Bangalore