UNION COUNCIL OF MINISTERS
Article 74-Council of Ministers to aid and advice President.
- There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President
- The advice tendered by Ministers to the President shall not be inquired into in any court.
Article 75-Other Provisions as to 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 Prime Minister.
- 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.
- The ministers shall hold office during the pleasure of the President.
- The council of ministers shall be collectively responsible to the Lok Sabha.
- The President shall administer the oaths of office and secrecy to a minister.
- 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.
The salaries and allowances of ministers shall be determined by the Parliament Article 77-
Conduct of Business of the Government of India
- All executive action of the Government 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.
- 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.
Article 78-Duties of Prime Minister
- 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
- 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 powerwithout 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
- 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
- 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
- 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.
- 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.
- 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.