The Council Of Minister – Notes

council-of-minister

 

Originally article 74(1) provided that there shall be a council of Minister with the Prime Minister as its head to aid and advice the president in the exercise of his functions.

After the 42nd amendment, 1976, the language of articles 74(1) is as follows-

There shall be a council of Minister with the Prime Minister as its head to aid and advice the President who shall, in the exercise of his function act in their accordance with such advice appointment of Ministers.



The prime ministers are head of the council of Minister article 74(1) and Article 75(1) says that “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”. Council (3) of articles says that council of Minister shall be collectively responsible to the house of the people.

Article 74 of Indian Constitution – Council of Ministers to aid and advise President:

  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:  Provided that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration. 
  2. The question whether any and if so what, the advice was tendered by Ministers to the President shall not be inquired into in any court.

In appointing the Prime Minister, the president can hardly exercise his discretion.

The president must select the leader of the party in majority in the Lok Sasha or a person who is in a position to win the confidence of the majority in that house.

But in case of multiple party system as it prevails in India if none is in a position to gain the required majority and a coalition government is to be formed the president can exercise a little discretion and select the leader of any party who in his opinion can form a stable ministry.



A composite body:

The constitution does not classify the members of the council of Minister into different ranks. All this has bun done informally, following the English practice.

Salaries and allowance of Minister act 1952, define ministers as a member of the council of Minister, by whatever none called and induces deputy ministers.

Council of Minister consistent of 3 different categories of Minister –

  1. Cabinet minister
  2. Minister of state
  3. Deputy minister

Cabinets ministers: The cabinet ranks Minister are the head of their department. They attend the cabinet meeting as a matter of right however, a person can be appointed cabinet minister without a portfolio.  The 44th constitution amendment act (1978) has confirmed constitution status on the cabinet minister.

Minister of state: The minister of state is formal of cabinet State and are paid the same salary as the cabinet minister and they hold independent charge of their department but they attend the cabinet meeting only when invited.

Deputy ministers: The deputy ministers work under the minister of state and have no separate charge of a department. They get a lesser salary than the minister of state or cabinet minister. They assist the Minister in charge of a department or minister and take no part in cabinet

Note: All council of Minister is not the members of the cabinet.

In the scheme of the parliamentary system of government provided by the constitution the president is the nominal executives’ authority and the Prime Minister is the real executives’ authority.  The president is the head of the state while the Prime Minister is the head of the government.



Constitution duties of the Prime Minister are:

  • He is the leader of the party is in power.
  • He is the political head of the service.
  • He is the series manager in chief at the political level during an emergency.
  • He is the chief of the union government
  • He plays a significant role in shaping the foreign policy of the country.
  • As a leader of the nation, he meets various section of people in a different state and receives a memorandum from them regarding their problems.
  • He is the ex-office chairman of the planning commission, National Development Council National Integration Council and interstate council.
  • He recommends the person who can be appointed as the Minister by the president ie the president can appoint only those person as the Minister Who are recommended by the prime minister.
  • He can ask the minister to resign or advise the President to dismiss him in case of difference of opinion.
  • He presided over the meeting of the council of the minister and influence its decision.
  • He guides, directs, controls, and coordination of the activities of all the Minister.
  • He can call the meeting of the cabinet anytime. he is the keystone of the cabinet arch.
  • The position of the prime minister in the Council of the minister is described as premium inter pares ie first among equals the so-called life and death of the ruling parties is the Prime Minister.
  • He summons and decides the agenda of the cabinet meeting.
  • He has right to call for any file from any minister
  • He advises the president with regarding the appointment of important officer like the attorney General of India the chairman of the election Commission the member of the finance committee.

Article 78 provides that it shall be the duty of the Prime Minister:

  1. To communication to the president “all decisions” of the council of minister relating to the administration of the affair of the Union and proposal for legislative
  2. To furnish such information relating to the administration of the affairs of the Union and proposal for legislation as then-president may call for.
  3. if the president so required to submit for the consideration of the council of minister and matter on which “a decision” has been taken by a Minister but which has not been in consideration by the cabinet.

Size of the council of the minister:

The original constitution did not provide for limiting the size of the minister. It remained the discretion of prime minister to increase or decrease the number of the council of minister.

91st amendment act of 2003.  added the new clause to article 75 that the total number of ministers including the prime minister in the council of ministers shall not exceed 15 percent of the total number of members of the house of people.



Qualifications:

A Minister must be of Member of either House of the Parliament. A non-member can also be appointed as Minister but he must get himself elected to either House of Parliament before the expiry of a period of 6 months commencing from their appointment.

Collective responsibility:

The basic principle of parliament from of government is the principle of collective responsibility

Article 75 (3) provides that the council of the minister shall be collectively responsible to the Lok Sabha.

Article 75 Under Indian Constitution – Other provisions as to Ministers:

  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.
  2. The Minister shall hold office during the pleasure of the President.
  3. The Council of Ministers shall be collectively responsible to the House of the People.
  4. Before a Minister enters upon his office, the President shall administer to him the oaths of office and secrecy according to the forms set out for the purpose in the Third Schedule.
  5. A Minister who for any period of six consecutive months is not a member of either House of Parliament shall at the expiration of that period cease to be a Minister.
  6. 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 as specified in the Second Schedule.

The principle of collective responsibility means that the council of Minister is a body responsible to the Lok Sabha for the general conduct affairs of the government the Council of minister work as a team and all decision taken by the cabinet are the joint decision of all its member.

No matter whatever be there a personal difference of opinion within the cabinet but once the decision has been taken by it, it is the duty of each minister of stands by it and supports it both in the legislation and outside.



 

Thus, the only alternative before a Minister who is not prepared to support and define the decision of the cabinet is to resign.

Individual responsibility:

This is the principle of article 75(2). It says that every Minister is responsible for the acts of the officer of his department he cannot throw the responsibility of his department either on his official or another member.

If the manager has taken action with the approval of the cabinet the principle of collective responsibility applies however if the Minister has taken action without a cabinet approval the principle of individual responsibility applies.

Dismissal of a minister:

According to article 75(2), the Minister holds his office during the pleasure of the president but the president is bound to exercise his pleasure following the advice given by the Prime  Minister.

If the prime minister thinks that the presence of any minister is detrimental to the efficiency integrity or policy of government he may drop him from the cabinet or advise the President to him from the cabinet.

Dismissal of the cabinet:

It is an established convention of parliament type of government that a ministry that has lost the confidence of the Lok Sabha must resign if it insists on to remain in office the president no doubt, can dismiss that

 

 

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