UNION COUNCIL OF MINISTERS
1. Article 74-Council of Ministers to aid and advice Presiden
a. There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President
b. The advice tendered by Ministers to the President shall not be inquired into in any court
2. Article 75-Other Provisions as to Ministers
a. 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.
b. 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. The provision was added by the 91st Amendment Act of 2003. 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. This provision was also added by the 91st Amendment Act of 2003.
i. The ministers shall hold office during the pleasure of the President.
ii. The council of ministers shall be collectively responsible to the Lok Sabha.
iii. The President shall administer the oaths of office and secrecy to a minister.
iv. A minister who is not a member of the Parliament (either house) for any period of six consecutive months shall cease to be a minister.
3. The salaries and allowances of ministers shall be determined by the Parliament Article 77-
Conduct of Business of the Government of India
a. All executive action of the Government of India shall be expressed to be taken in the name of the President.
b. 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.
c. The President shall make rules for the more convenient transaction of the business of the Government of India, and for the allocation among Ministers of the said business.
4. Article 78-Duties of Prime Minister
a. 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
b. If the President so requires, to submit for the consideration of the Council of Ministers any matter on which a decision has been taken by a Minister but which has not been considered by the Council.
Nature of Advice by Ministers
The 42nd and 44th Constitutional Amendment Acts have made the advice binding on the President.
• Further, the nature of advice tendered by ministers to the President cannot be enquired by any court.
• This provision emphasises the intimate and the confidential relationship between the President and the ministers.
• In 1971, the Supreme Court held that?even after the dissolution of the Lok Sabha, the council of ministers does not cease to hold office.
• Article 74 is mandatory and, therefore, the president cannot exercise the executive power without the aid and advice of the council of ministers.
Strength of the Council
• The Constitution did not lay down the number of ministers that may constitute the Council of Ministers.
• However, a ceiling has been put on the strength of the Council of Ministers both in the union as well as in the states by 91st Amendment Act, 2003.
• Total number of ministers including the PM shall not exceed 15% of the total members of the Lok Sabha in case of the Union Council of Ministers and 15% of the state legislative assembly in case of state Council of Minister.
• All the members of the Council of Ministers do not belong to the same rank. The constitution does not classify minister into different ranks but in practice 4 ranks have come to be recognized.
– Cabinet Ministers – He has the right to be present and participate in every meeting of the Cabinet. For proclamation of an emergency under Art. 352 the advice must come from the Prime Minister and other ministers of cabinet rank.
– Minister of State with independent charge- He is a Minister of State who does not work under a Cabinet Minister. When any matter concerning his department is on the agenda of the Cabinet, he is invited to attend the meeting.
– Minister of State – He is a Minister who does not have independent charges of any department and works under a Cabinet Minister. The work to such minister is allotted by his Cabinet Minister.
– Deputy Minister – He is a minister who works under a Cabinet Minster or a minister of State with independent charge. The work to him is allotted by the minister under whom he is working.
• The Prime Minister allocates portfolios to the Cabinet Ministers and Ministers of the State with independent charges. The other ministers are allocated work by their respective Cabinet Ministers.
• Ministers may be chosen from the Lok Sabha or the Rajya Sabha. A minister who is member of one House has the right to speak and to take part in the proceedings of the other House also.
• A minister is allowed to vote only in the House of which he is a member.
Appointment of a Non legislator as a minister
• Art. 75(5) – A person who is not qualified to become a member of a legislature cannot be appointed a minister.
• A person who is not a member of either House may also be appointed as a minister. He can continue as a minister only for six months.
• Because, that is the limit fixed by Art. 75(5), if he desires to continue as minister he has to become a member of any one of the Houses of Parliament before the expiration of the period of 6 months.
Collective Responsibility of the Ministers
• The principle of collective responsibility finds place in Art. 75(3) where it is stated that the Council of Ministers shall be collectively responsible to the Lok Sabha.
• In other words, this provision means that a Council of Ministers which loses confidence of the Lok Sabha is obliged to resign. The ministers fall and stand together.
Individual Responsibility of Ministers
• The rule regarding individual responsibility is to be found in Art. 75(2)
• It is stated that ministers shall hold office during the pleasure of the President.
• Collectively the ministers survive so long as they have the required support in the Lok Sabha.
• An individual minister may continue to be a member of the council of ministers as long as he has the confidence of the Prime Minister.
• Refusal to oblige the Prime Minster may lead to his dismissal by the President.
STATE COUNCIL OF MINISTERS
Article 163-Council of Ministers to aid and advice Governor
• If any question arises whether a matter falls within the Governor’s discretion or not, decision of the Governor 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.
• The advice tendered by Ministers to the Governor shall not be inquired into in any court
Composition of the Council of Ministers
• The Constitution does not specify the size of the state Council of Ministers or the ranking of ministers.
• They are determined by the Chief Minister according to the exigencies of the time and requirements of the situation.
• Like at the Centre, in the states too, the Council of Ministers consists of three categories of ministers, namely, Cabinet Ministers, Ministers of State, and Deputy Ministers.
• The difference between them lies in their respective ranks, emoluments, and political importance. At the top of all these ministers stands the Chief Minister- supreme governing authority in the state.
• The Cabinet Ministers head the important departments of the state government like home, education, finance, agriculture and so forth. They are members of the cabinet, attend its meetings and play an important role in deciding policies. Thus, their responsibilities extend over the entire gamut of state government.
• The Ministers of State can either be given independent charge of departments or can be attached to Cabinet Ministers. However, they are not members of the Cabinet and do not attend the Cabinet meetings unless specially invited when something related to their departments are considered by the Cabinet.
• Next in rank are the Deputy Ministers. They are not given independent charge of departments. They are attached to the Cabinet Ministers and assist them in their administrative, political and parliamentary duties. They are not members of the Cabinet and do not attend Cabinet meetings.
Responsibility of the Council of Ministers
1. Collective Responsibility
• The fundamental principle underlying the working of parliamentary system of government is the principle of collective responsibility.
• Article 164 clearly states that the Council of Ministers is collectively responsible to the legislative assembly of the state. This means that all the ministers own joint responsibility to the legislative assembly for all their acts of omission and commission. They work as a team and swim or sink together.
• When the Legislative Assembly passes a no confidence motion against the Council of Ministers, all the ministers have to resign including those ministers who are from the Legislative Council.
• The principle of collective responsibility also means that the Cabinet decisions bind all Cabinet Ministers (and other ministers) even if they deferred in the cabinet meeting.
• It is the duty of every minister to stand by the Cabinet decisions and support them both within and outside the state legislature. If any minister disagrees with a Cabinet decision and is not prepared to defend it, he must resign. Several ministers have resigned in the past owing to their differences with the Cabinet.
2. Individual Responsibility
• Article 164 also contains the principle of individual responsibility.
• It states that the ministers hold office during the pleasure of the Governor. This means that the Governor can remove a minister at a time when the Council of Ministers enjoys the confidence of the Legislative Assembly.
• But, the Governor can remove a minister only on the advice of the Chief Minister. In case of difference of opinion or dissatisfaction with the performance of a minister, the Chief Minister can ask him to resign or advice the Governor to dismiss him.
• By exercising this power, the Chief Minister can ensure the realization of the rule of collective responsibility.
3. No Legal Responsibility
• As at the Centre, there is no provision in the Constitution for the system of legal responsibility of the minister in the states.
• It is not required that an order of the Governor for a public act should be countersigned by a minister.
• Moreover, the courts are barred from enquiring into the nature of advice rendered by the ministers to the governor.
• Art. 75 – provide that the Prime Minister shall be appointed by the President.
• But the President has no choice except to appoint as Prime Minister the leader of the party which has absolute majority in the Lok Sabha.
• However, in case no single party enjoys an absolute majority in the House, the President may use the discretion to appoint any person as Prime Minister in whom he has confidence that he can muster majority support of Lok Sabha.
• Here also, the President follows certain conventions developed over a period of time in case of a hung Parliament. The President first invites the leader of the single largest party to form the government. In case he is not able to form the government, then the President calls the leader of a pre-election coalition of political parties. If he also fails then the President calls the leader of a post election coalition of parties to form the government.
• There is no provision in the Constitution that the Prime Minister must belong to the Lok Sabha.
• A member of Rajya Sabha may also be appointed as Prime Minster
• In case the Prime Minister is from Rajya Sabha, he cannot be the leader of Lok Sabha.
• Even a person who is not a member of either House of Parliament may be appointed as the Prime Minister provided he gets elected to one of the Houses of Parliament within 6 months.
• The Prime Minister is the keystone of the arch of the Cabinet. It means that the existence of the entire Council of Ministers is dependent on the Prime Minister.
• The death or resignation of the Prime Minister automatically brings about the dissolution of the Council of Ministers. It generates a vacuum.
• The demise, resignation or dismissal of a minister creates only a vacancy, which the Prime Minister may or may not like to fill.
• The Government cannot function without a Prime Minister.
Powers and Functions of the Prime Minister
1. In Relation to Council of Ministers
The Prime Minister enjoys the following powers as head of the Union Council of Ministers:
a) He recommends persons who can be appointed as ministers by the President. The President can appoint only those persons as ministers who are recommended by the Prime Minister.
b) He allocates and reshuffles various portfolios among the ministers.
c) He can ask a minister to resign or advise the President to dismiss him in case of difference of opinion.
d) He presides over the meeting of Council of Ministers and influences its decisions.
e) He guides, directs, controls, and coordinates the activities of all the ministers.
f) He can bring about the collapse of the Council of Ministers by resigning from office.The resignation or death of an incumbent Prime Minister automatically dissolves the Council of Ministers and thereby generates a vacuum. The resignation or death of any other minister, on the other hand, merely creates a vacancy which the Prime Minister may or may not like to fill.
2. In Relation to the President
The Prime Minister enjoys the following powers in relation to the President:
1. He is the principal channel of communication between the President and the Council of Ministers. It is the duty of the Prime Minister –
(a) 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
(b) To furnish such information relating to the administration of the affairs of the Union and proposals for legislation as the President may call for; and
(c) If the President so requires, to submit for the consideration of the Council of Ministers any matter on which a decision has been taken by a minister but which has not been considered by the council.
2. He advises the president with regard to the appointment of important officials like Attorney General of India, Comptroller and Auditor General of India, chairman and members of the UPSC, Election Commissioners, Chairman and members of the Finance Commission and so on.
3. In Relation to Parliament
The Prime Minister is the leader of the Lower House. In this capacity, he enjoys the following powers:
1. He advises the President with regard to summoning and proroguing of the sessions of the Parliament.
2. He can recommend dissolution of the Lok Sabha to President at any time.
3. He announces government policies on the floor of the House.
4. Other Powers & Functions
In addition to the above-mentioned three major roles, the Prime Minister has various other roles.
1. He is the chairman of the Planning Commission, National Development Council, National Integration Council, Inter-State Council and National Water Resources Council.
2. He plays a significant role in shaping the foreign policy of the country.
3. He is the chief spokesman of the Union government.
4. He is the crisis manager-in-chief at the political level during emergencies.
5. As a leader of the nation, he meets various sections of people in different states and receives memoranda from them regarding their problems, and so on.
6. He is leader of the party in power.
7. He is political head of the services.
Relationship between the President and the Prime Minister
1. Article 74 – a council of ministers with the Prime Minister at the head to aid and advise the President the President may require the council of ministers to reconsider such advice and the President shall act in accordance with the advice tendered after such reconsideration.
2. Article 75
a. 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;
b. The ministers shall hold office during the pleasure of the president; and
c. The council of ministers shall be collectively responsible to the House of the People.
3. Article 78 – It shall be the duty of the Prime Minister:
a. 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;
b. to furnish such information relating to the administration of the affairs of the Union and proposals for legislation as the President may call for; and
c. if the President so requires, to submit for the consideration of the council of ministers any matter on which a decision has been taken by a minister but which has not been considered by the council.
Chief MinisterAppointment of Chief Minister
• The Constitution does not contain any specific procedure for the selection and appointment of the Chief Minister.
• Article 164 only says that the Chief Minister shall be appointed by the governor.
• However, this does not imply that the governor is free to appoint any one as the Chief Minister.
• In accordance with the convections of the parliamentary system of government, the governor has to appoint the leader of the majority party in the state legislative assembly as the Chief Minister.
• But, when no party has a clear majority in the assembly, then the governor may exercise his personal discretion in the selection and appointment of the Chief Minister.
• In such a situation, the governor usually appoints the leader of the largest party or coalition in the assembly as the Chief Minister and asks him to seek a vote of confidence in the House within a month.
• The governor may have to exercise his individual judgment in the selection and appointed of the Chief Minister when the Chief Minister in office dies suddenly and there is no obvious successor.
• However, on the death of a Chief Minister, the ruling party usually elects a new leader and the governor has no choice but to appoint him as Chief Minister.
• The Constitution does not require that a person must prove his majority in the legislative assembly before he is appointed as the Chief Minister.
• The governor may first appoint him as the Chief Minister and then ask him to prove his majority in the legislative assembly within a reasonable period. This is what has been done in a number of cases.
• A person who is not a member of the state legislature can be appointed as Chief Minister for six months, within which time, he should be elected to the state legislature, failing which he ceases to be the Chief Minister
• According to the Constitution, the Chief Minister may be a member of any of the two Houses of a state legislature.
• Usually Chief Ministers have been selected from the Lower House (legislative assembly), but, on a number of occasions, a member of the Upper House (legislative council) has also been appointed as Chief Minister
• The term of the Chief Minister is not fixed and he holds office during the pleasure of the governor.
• However, this does not mean that the governor can dismiss him at any time. He cannot be dismissed by the governor as long as he enjoys the majority support in the legislative assembly
• But, if he loses the confidence of the assembly, he must resign or the governor can dismiss him
• The salary and allowances of the Chief Minister are determined by the state legislature. In addition to the salary and allowances, which are payable to a member of the state legislature, he gets a sumptuary allowance, free accommodation, travelling allowance, medical facilities, etc
Powers and Functions of Chief Minister
The powers and functions of the Chief Minister can be studied under the following heads:
1. In Relation to Council of Ministers
a) The governor appoints only those persons as ministers who are recommended by the Chief Minister.
b) He allocates and reshuffles the portfolios among ministers.
c) He can ask a minister to resign or advise the Governor to dismiss him in case of difference of opinion.
d) He presides over the meetings of the Council of Ministers and influences its decisions.
e) He guides, directs, controls and coordinates the activities of all the ministers.
f) He can bring about the collapse of the Council of Ministers by resigning from office. Since the Chief Minister is the head of the Council of Ministers, his resignation or death automatically dissolves the Council of Ministers. The resignation or death of any other minister, on the other hand, merely creates a vacancy, which the Chief Minister may or may not like to fill.
2. In Relation to the Governor
(a) He is the principal channel of communication between the Governor and the Council of Ministers. It is the duty of the Chief Minister:
(i) To communicate to the Governor of the state all decisions of the Council of Ministers relating to the administration of the affairs of the state and proposals for legislation;
(ii) To furnish such information relating to the administration of the affairs of the state and proposals for legislation as the Governor may call for; and
(iii) If the Governor so requires, to submit for the consideration of the Council of Ministers any matter on which a decision has been taken by a minister but which has not been considered by the council.
(b) He advises the Governor with regard to the appointment of important officials like Advocate General, Chairman and members of the State Public Service Commission, State Election Commissioner, and so on.
3. In Relation to State Legislature
The Chief Minister enjoys the following powers as the leader of the house:
a) He advises the Governor with regard to the summoning and proroguing of the sessions of the state legislature.
b) He can recommend the dissolution of the Legislative Assembly to the Governor at any time.
c) He announces the government policies on the floor of the house.
4. Other Powers and Functions
In addition, the Chief Minister also performs the following functions:
a) He is the chairman of the State Planning Board.
b) He acts as a vice-chairman of the concerned Zonal Council by rotation, holding office for a period of one year at a time.
c) He is a member of the Inter-State Council and the National Development Council, both headed by the Prime Minister.
d) He is the chief spokesman of the state government.
e) He is the crisis manager-in-chief at the political level during emergencies.
f) As a leader of the state, he meets various sections of the people and receives memoranda from them regarding their problems, and so on.
g) He is the political head of the services.
Thus, he plays a very significant and highly crucial role in the state administration. However, the discretionary powers enjoyed by the governor reduce to some extent the power, authority, influence, prestige and role of the Chief Minister in the state administration.
• A person is eligible for election as Vice-President if he:
– Is a citizen of India;
– Has completed the age of 35 years; and
– Is qualified for election as a member of Rajya Sabha.
• It is also required that he must not hold any office of profit under the Government of India or of any state or under any authority under the control of the said Governments (Art. 66).
• Eligible Voters
– The members of the Lok Sabha and
– The members of the Rajya Sabha
• The Vice-President is also indirectly elected by an electoral college.
• But unlike the Electoral College of the President, in case of Vice-President nominated members are also electors.
• The election is held by the system of proportional representation by means of the single transferable vote.
• Another difference in the election of the Vice-President with that of the President is that of the President is that the members of State Assemblies have no right to vote in the election of the Vice-President.
Term of Office
• The Vice- President holds office for a term of 5 years from the date he assumes charge of his office.
• The office of Vice-President may fall vacant before the expiration of the term:
– By resignation. He can resign his office at any time by writing to the President.
– By removal from his office: The Vice-President may be removed from his office by a resolution of Rajya Sabha passed by a simple majority of all the members and agreed to by the Lok Sabha.
Functions of the Vice-President
• The Vice-President has no functions to perform per se.
• By virtue of his office (i.e., ex-officio), he is the Chairman of the Rajya Sabha. Hence the normal function of the Vice-President is to preside over the Rajya Sabha.
• The Vice-President acts as President when there is a vacancy in the office of the President.
• The vacancy may occur by reasons of death, resignation, removal by impeachment or otherwise. He discharges the functions of the President when the President is unable to perform his functions. The reasons may also include absence of the President from India or illness or some other cause.
Vacancy in both the offices of the President and Vice-President
• A situation may arise when the offices of both the President and the Vice-President fall vacant by reason of death, resignation, and removal or otherwise.
• Article 70 empowers the Parliament to make provisions for such contingencies.
• The Parliament has enacted an act in 1989 to take care of such situation. Under this act, when both the posts are vacant the Chief Justice of India or the senior most judge of the Supreme Court of India available shall discharge the function until a new President is elected.
ATTORNEY-GENERAL OF INDIA
Duties of the Attorney – General of India
• To give advice on such legal matters and to perform such other duties of a legal character as may, from time to time, be referred or assigned to him by the President; and
• To discharge the functions conferred on him by the Constitution or any other law for the time being in force [Art. 76].
COMPTROLLER AND AUDITOR-GENERAL
• As observed by Dr BR Ambedkar, the Comptroller and Auditor-General of India shall be the “most important officer under the Constitution of India”. For, he is to be the guardian of the public purse and it is his duty to see that not a farthing is spent out of the Consolidated Fund of India or of a State without the authority of the appropriate Legislature. In short, he shall be the impartial head of the audit and accounts system of India. In order to discharge this duty property, it is highly essential that this office should be independent of any control of the executive.
• The Comptroller and Auditor General of India is appointed by the President.
• He holds office until he attains the age of sixty five years or at the expiry of the six-year term, whichever is earlier.
• He is the guardian of the public purse.
• His duties are to keep the accounts of the Union and the States and to ensure that nothing is spent out of the Consolidated Fund of India or of the States without the sanction of the Parliament or the respective State Legislatures.
• He submits an audit report of the Union to the President who shall lay it before the Parliament and the audit reports of the States to the respective Governors who shall lay it before the respective State Legislatures.
• In case of Union Territories, the Comptroller and Auditor-General submit audit reports to Lt. Governors where the Union territories have Legislative Assemblies of their own.
• The accounts of the other Union Territories are audited by him as part of the account of the Union of India.
What are the provisions to secure CAG’s independence?
Because of the importance of the office of the Comptroller and Auditor – General, the Constitution of India contains provisions to ensure the impartiality of the office and to make it independent of the
Executive. These are as follows:
• He can be removed from his office only on ground of proven misbehavior or incapacity and in a manner a Judge of the Supreme Court is removed, i.e., each House of the Parliament passing a resolution supported by two-thirds of the members present and voting and by a majority of the House.
• His salary and conditions of service cannot be changed to his disadvantage during his term of office except under a financial emergency.
• His salary is charge on the Consolidated Fund of India and is not subject to the vote of the Parliament.
• After retirement he is disqualified for appointment either under the Union or the State.
ADVOCATE-GENERAL FOR THE STATE
Art. 165 provides that there shall be an Advocate General for the state to be appointed by the Governor. The person who is qualified to be appointed a judge of a High Court only is eligible for the post. Art. 165 corresponds to Art. 76 which deals with the post of Attorney General. But unlike the Attorney General, the Advocate General does not have the right of audience in all courts of India. The duty of the Advocate General is to give advice to the state government on such legal matters and to perform such other duties of a legal character as may be referred to him by the Governor. He holds office during the pleasure of the Governor.
SOLICITOR GENERAL OF INDIA
The Solicitor General of India is below the Attorney General for India, who is the Indian government’s chief legal advisor, and its primary lawyer in the Supreme Court of India.
The Solicitor General of India is appointed for the period of 3 years. The Solicitor General of India is the secondary law officer of the country, assists the Attorney General, and is himself assisted by several Additional Solicitors General of India.
Duties of Solicitor General are laid out in Law Officers (Conditions of Service) Rules, 1987:
• To give advice to the Government of India upon such legal matters, and to perform such other duties of a legal character, as may from time to time, be referred or assigned to him by the Government of India.
• To appear, whenever required, in the Supreme Court or in any High Court on behalf of the Government of India in cases (including suits, writ petitions, appeal and other proceedings) in which the Government of India is concerned as a party or is otherwise interested;
• To represent the Government of India in any reference made by the President to the Supreme Court under Article 143 of the Constitution; and
• To discharge such other functions as are conferred on a Law Officer by or under the Constitution or any other Law for the time being in force.
Restrictions of private practice
As law officers represent government of India, there are certain restrictions which are put on their private practice. A law officer is not allowed to:
• Hold briefs in any court for any party except the Government of India or the government of a State or any University, Government School or College, local authority, Public Service Commission, Port Trust, Port Commissioners, Government aided or Government managed hospitals, a Government company, any Corporation owned or controlled by the State, any body or institution in which the Government has a preponderating interest;
• Advice any party against the Government of India or a Public Sector Undertaking, or in cases in which he is likely to be called upon to advise, or appear for, the Government of India or a Public Sector Undertaking;
• Defend an accused person in a criminal prosecution, without the permission of the Government of India; or
• Accept appointment to any office in any company or corporation without the permission of the Government of India;
• Advise any Ministry or Department of Government of India or any statutory organisation or any Public Sector Undertaking unless the proposal or a reference in this regard is received through the Ministry of Law and Justice, Department of Legal Affairs.