Article 74 and 75 deal with the Council of Ministers. Article 74 says that there shall be a Council of Ministers with the Prime Minister as its head to aid and advise the President who, shall, in the exercise of his functions act in accordance with such advice. “This article also says that the President may require the Council of Ministers to reconsider such advice either generally or other wise, and the President would act in accordance with the reconsidered advice (44th amendment, 1975) and that no court can enquire into the advice of the Council of Ministers given to the President.
Article 75 deals with certain other provisions related to the Ministers, which provisions may briefly be stated as under:
- ‘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 total number of the ministers would not exceed 15% of the total number of the Lok Sabha (91st Amendment, 2003).
- ‘The Ministers shall hold office during the pleasure of the President.
- ‘The Council of Ministers shall be collectively responsible to the House of the People.
- Before a Minister enters upon his office, the President shall administer to him the oath of office and of secrecy according to the form set out for the purpose in the “Third Schedule.
- A Minister who for any period of six consecutive months is not a member of either House of the Parliament shall at the expiration of that period cease to be a Minister.
- ‘The salaries and allowances of Ministers shall be such as Parliament may from time to time by law determine and, until Parliament so determines, shall be specified in the Second Schedule. Article 74 refers to the existence of the Council of Ministers which has to be headed by the Prime Minister. What is important to note is that the country would have, as per the Constitution, a Council of Ministers always: the Parliament may or may not be in session; the Lok Sabha may or may not have been dissolved, the Council of Ministers with the Prime Minister at its head has to be there which means that the dissolution of the Lok Sabha never means the dissolution or the resignation of the Council of Ministers.
‘The Constitution never expects the Council of Ministers in a situation of non-existence. ‘The President, if he is to preserve the Constitution, has to make the Council of Ministers remain in existence. Another point which has to be noted is one related to the exercise of the President’s powers. ‘The Constitution not only requires the Council of Ministers to exist; it also requires the President to discharge his powers and functions in accordance with the aid and advice of the Council of Ministers with the Prime Minister at its head.
‘The advice of the Council of Ministers is binding on the President including one that has been required to be reconsidered. “Thus, if there is to exist the President, there is to exist the Council of Ministers, there is to exist the Prime Minister and there is to exist the President exercising his powers and functions on the advice of the Council of Ministers with the Prime Minister presiding over the Council. Article 75 is no less important either, some of the features of Article 75 can be given as under: One, the President appoints the Prime Minister. As such the office of the Prime Minister is an appointed office. Two, it is only after the appointment of the Prime Minister that the Council of Ministers is constituted. All the ministers of the Council of Ministers are appointed by the President on the advice of the Prime Minister.
On his own, the President cannot appoint any minister, for only those persons are appointed ministers whom the Prime Minister recommends. ‘The President cannot, on his own, appoint the Prime Minister. He has to appoint that person the Prime Minister who is able to make the Council of Ministers, whose head is the Prime Minister himself, collectively responsible to the House of the People, i.e., Lok Sabha. ‘The strength of the Council is to be limited, i.e., 15% of the total strength of the Lok Sabha, as per 91st amendment, 2003. Third, the collective responsibility is that of the Council of Ministers, and not of the Prime Minister and that too, towards the Lok Sabha and not towards the Rajya Sabha. To be specific, the collective responsibility is of the Council of Ministers with the Prime Minister at its head. Fourth, as the collective responsibility of the Council of Ministers with the Prime Minister as its head is towards the Lok Sabha though all the ministers hold office during the pleasure of the President’the ‘pleasure’ of the President is only a ‘legal’ or say a ‘constitutional’ norm, only function: the pleasure of the Lok Sabha’the ‘pleasure’ in terms of time, means till the confidence of the Lok Sabha.
Fifth, the oath administered to the ministers includes the allegiance to the Constitution of India, holding of both the sovereignty and integrity of India and of secrecy of the office. Sixth, any person who is not a member of either House of the Parliament can be appointed Prime Minister or a minister (Deve Gowda was not a member of either House in 1996 when he was appointed the Prime Minister), but such a person has to become a member of either House of the Parliament within a period of six months or else he/she vacates such an office. Seventh, the provisions of Article 75(5) insists on membership of either House of Parliament. “This means that it is not necessary for the Prime Minister to be a member exclusively of the Lok Sabha. He/she as a member of the Rajya Sabha, can also be the Prime Minister. Mrs Indira Gandhi, after the death of Prime Minister L.B. Shastri, was initially the member of the Rajya Sabha. Dr. Monmohan Singh, as Prime Minster in the elections after 2004 and 2009, was a member of the Rajya Sabha. Eighth, the members of the Council of Ministers, including the Prime Minister, receive salaries and allowances as specified in the Second Schedule of the Constitution.
However, the ministers receive salaries, etc. in, accordance with their rank or position. In fact, the Council of Ministers consists of three categories of ministers:
(a) ministers of cabinet rank,
(b) ministers of State, and
(c) deputy ministries : all ministers holding the headship of the ministries are not members of the Cabinet; a cabinet rank minister may hold an independent charge of a minister, and yet may not be a member of the Cabinet. ‘The cabinet meetings are attended by cabinet members; those holding independent charge of a ministry attend the cabinet meetings when invited to attend it.
‘The ministers of State are the ministers of second category who usually do not attend the cabinet meetings while the deputy ministers help assist the ministers of the first/second category. Of all the ministers, the cabinet (the word has been used in Article 352, only once) is an important policy-making and administrative body, smaller in number as against the Council of Ministers which number of ministers has not to go beyond 15% of the total strength of the House of the People.
