ADVISORY CAPACITY OF CABINET IN INDIA

Picture Courtesy: http://www.pmindia.gov.in/wp-content/uploads/2016/01/Cabinet_decision_en_2.jpg

THIS ARTICLE WAS WRITTEN BY SPARSH MEHRA, A STUDENT OF NUJS.

Under the Constitution of India the president is the supreme head of the Country and Parliament. Unlike, United States President, the President of India has to take the advice of Cabinet Ministers. In this paper, I will be discussing under which law the Cabinet Ministers can advise the President of India. I will also be discussing the principles which are performed by the Cabinet of Ministers under Article 74 and Article 75 of constitution of India. There are different ranks of Council of Ministers which will be discussed in this paper. And at last I will be discussing the Executive power and Union executive related cases and the provisions under Article 74 and different articles under which Cabinet Ministers can advice President as well as a Governor of India.

I.                  INTRODUCTION

Article 74[1] of the Constitution of India gives power to the Council of Ministers to help the President in the exercising his power.[2] Under Article 74, advice is given on the behalf of Council of Ministers to the President, but is in the hand of President whether to take that advice or not.[3] Under the constitution of India the Prime Minister is known as the moon and the Cabinet Ministers are known as the stars.[4] The President, with the advice of Prime Minister allot the work to go to the Cabinet Ministers related to Environment, Transportation, Railways, Sanitation and Ministry of Law and Justice or any other purpose which is related to the country.[5] It was stated before the 42^nd amendment came into place that “there shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions”.[6] The 42^nd Constitutional amendment went into effect from 3 January 1977. It was stated by 44th Amendment[7] (1978) that, the President can even send the advice back for reconsideration once. Article 74[8] allows the Prime Minister to even participate with Council of Ministers.[9] Article 74 of Constitution of India states that-

(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, advice was tendered by Ministers to the President shall not be inquired into in any court”.[10] 

II.               PRINCIPLES

The principles which are performed by the Cabinet Ministers come under Articles 74 and 75 of the Constitution of India.[11]  Under Article 74, the Council of Ministers should be present with the Prime Minister to advise the president in discharging office functions.[12]

Article 75(1) states 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”.[13]

The President cannot ignore it. He has no option but only to accept it.[14] The responsibility is on the Council of Ministers as they are only responsible for everything.[15]

The President appoints for the tenure of 5 years, appoints the leader who enjoys the supports of the majority as the Prime Minister in Lok Sabha.[16] The Ministers are even elected by President after the advice of Prime Minister.[17] The powers are distributed among the Ministers. An outsider can even be appointed on the advice of Prime Minister but, such a person must be elected within six months of appointment.[18] The President can even eliminate any minister. In Article 163 of Constitution of India there is the presence of Cabinet Minsters with Chief Minsters to advice the Governor.[19] He must be nominal head of institution. He can suggest anything to his ministers but not cannot force.[20]

III.           DIRECTIONS UNDER ARTICLE 74

It was noted under Article 53[21] that, the executive Power of the union can only be conferred by the President and can only be used by him in accordance to the Constitution.[22] As, it is understood that from Article 74 of the Constitution of India that, Council of Ministers have to advice the President so that he could perform his functions therefore, Article 163 of Constitution of India states that

1. “There shall be a Council of Ministers with the Chief Minister at the head to aid and advice the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.
2. If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion 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.
3. The question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any court”.[23]

IV.             DIFFERENT RANKS

There are normally four categories of Ministers appointed by the President.

1. The most experienced leaders of the party are appointed as the Cabinet Ministers of India so that the portfolios are handled independently with the help of other kinds of Ministers.
2. The next category includes the Ministers who are senior and are experienced enough to assist the Cabinet Ministers. They are known as Ministers of the States and sometimes are given charge of Ministries.
3. Deputy Ministers lies in third category.
4. The one, who are very young with almost no experience are known as parliamentary secretaries and they are the last category. They help the Senior Ministers so that they can acquire the experience.

There is no qualification or age limit for these different categories of Ministers. It is in the hands of Prime Minister to decide that which Ministry lies under which category and can handle which portfolio.[24] The Cabinet Ministers are responsible to the Lower House[25] of the Parliament and hardly meets as a body. The Cabinet Ministers has to ensure that all the authorities and the policy of the Government of functioning properly.[26]

The highest policy making body in India is the Cabinet which takes part in an important decisions with the Prime Minister of India in the matters of Administration.[27] The Cabinet meetings are only attended by the cabinet ministers and other categories, cannot attend the meeting unless, and until special invitation is not given to them.[28] This is the only reason; there is difference between Council of Ministers and the Cabinet. The Council of Ministers includes every category as stated above, whereas the Cabinet Ministers are smaller body.[29] Where are all the member of the Cabinet Ministers represents the Council of Ministers and it is not necessary that every Minister present in the Council of Minister would be a Cabinet Minister.[30]

The advice which is given to the President is only given by the Cabinet Ministers because as mentioned above the Council of Ministers don’t meet as a body.[31] All the decisions, related to the policies are taken by the Cabinets and the Prime Minister discusses all the factors which are related to the administration and then decides which policy is best and should be adopted.[32] Once the policy comes into formation then the whole of the Council of Ministers are responsible for that.[33] The Prime Ministers and Cabinet Ministers are assisted by well trained civil servants while implementing the policies.  They also determine foreign policies relating to the government.[34]

V.               EXECUTIVE POWER UNDER THE CONSTITUTION OF INDIA

There are 3 Agencies which helps in functioning of the State and they are Executive, Legislature and Judiciary. For analysing the Executive functions in the Indian Constitution we should first know that what constitutes the Executive and what exactly at the functions of Executive.[35] Under the Constitution of India, the Union Executive in the part 5, chapter 1 Article 52 to Article 78 and State Executive is stated in part 6, Chapter 2 Article 153 to Article 167.[36] As stated above, under Article 53 of Constitution of India, the Union Executive power lies in the hand of President and can be used by him directly or indirectly or through his officers.[37]

Article 154 (1)[38] gives governor the power of State Executive.[39] However, it should be noted that the Governor holds his office when the President is not there.[40] This means that the tenure of Governor is controlled by Executive.[41] Under Article 155[42], the President has the right to appoint the Governor and the Governor only works when the President is at his pleasure or is not working due to some reason.[43] It should be noted that the post of the Governor does not come under employment under the Government of India.[44]

Article 74, as stated above gives the right to the Council of Ministers with the Prime Minister as the head to advice the President. Similarly Article 163 gives the right to Council of Ministers with the Chief Minister as the head to advise the Governor for exercising his functions under Constitution of India.[45] The discretionary power lies in the hand of Governor.[46]The meaning of Executive functions is not defined under the Constitution of India.  “They are certainly difficult to comprehensively define since them are merely the residue of the functions of government after legislative and judicial functions have been taken away. They include, in addition to the execution of the laws, the maintenance of public order, the management of Crown property and nationalised industries and services, the direction of foreign policy, the conduct of military operations, and the provision or supervision of such services as education, public health, transport, and state assistance and insurance.”[47]

The Court is also facing difficulty in defining work Executive functions. The court stated that the executive functions are the governmental functions that remain legislative even after Judicial Functions are taken away from them.[48] This view was taken by the court after relating the Constitutional position of President and the Governor.[49]

VI.           UNION EXECUTIVE

The power of union executive is stated under Article 73 of Constitution of India which is stated as

“(1) Subject to the provisions of this Constitution, the executive power of the Union shall extend-

To the matters with respect to which Parliament has power to make laws; and

To the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement:

Provided that the executive power referred to in sub-clause (a) shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend in any State to matters with respect to which the Legislature of the State has also power to make laws.

(2) Until otherwise provided by Parliament, a State and any officer or authority of a State may, notwithstanding anything in this article, continue to exercise in matters with respect to which Parliament has power to make laws for that State such executive power or functions as the State or officer or authority thereof could exercise immediately before the commencement of this Constitution”.[50]

Therefore, this Article helps the union to provide executive power under which they can make law.

In the case of Ram Javaya Kapur[51], it was stated that when there is no authority in the hands of Executive to act against the provision of Law then it is not compulsory that that the executive actions will be under the law. In the case of Jayanthilal Amritlal Vs F.N. Rana and others[52], validity of notification was issued under the Article 258 (1)[53] of Constitution of India by the President which was related to the delegation of Union functions. The court stated that under Article 258, President could do what legislature can do by the legislation which is related to the matter executive power.

A distinction was made under the Court between Executive functions of the Union and Executive functions by the President. The order is not issued by any statutory authorities but is purely administrative it may not have force of law. If any order is passed by Executive Authority under the statue such order well come into force of law.  The court studies this by observing the President power under Article 268 to Article 279 during an emergency.[54]

In the case of Shamsher Singh Vs. State of Punjab[55], it was stated that in Jayanthilal case[56] that is not stated that President is the Constitutional head of the state and therefore, he has the power to have the advice with the Council of Ministers as stated under Article 74 of Constitution of India. Therefore, if any of the functions are exercised by the President with his personal capacity, the Council of Ministers also have equal right with the Vice President and the same goes for the Governor.

President has too much power which can even remove Prime Minister under the Constitution[57] and secondly the council of Ministers is responsible for the formation of policies where does president is not and enjoys the judicial immunity.[58]

VIII.    PROVISIONS

The council of Ministers work is not only to give advice.[59] The can even take the decisions.[60] There are certainly the provisions which allow Council of Ministers to take the decisions which are related to the administration to the Union.[61] In Article 75(3)[62] it is clearly stated that Council of Ministers are even responsible for the decision took by House of Lords.[63] They must be answerable to Parliament. When Article 74 is compared with the Article 163(1) that is related to State Council of Ministers shows that the intention of Constitution is to competent rejection on the advice of the Ministers.[64] An exception can be Governor can be acting on the ministerial advice. Article 163(1) states that: “There shall be a council of Ministers with the chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this constitution required to exercise his functions or any of them in his discretion”.[65]

If the President is against the advice of Council of Ministers, the latter at once can be resigned.[66] Then the President has to find some other Prime Minister who could secure the support of House of the people. The President cannot make an alternative Government if the Prime Minister who is leaving and has the support of the House of People. “The President cannot dispense with the Council of Ministers for that would be Contrary to the Provisions of Article 74”.[67]

Moreover he cannot even install a ministry which has no support.[68]The President cannot incur any expenditure if he is having a conflict with the Council of Ministers who is having the support of House of People.[69] This is because the Council of Ministers controls the Authority and in this case it would become almost impossible to run the government without the Constitutional framework.[70] The court of law cannot question any advice or rejection done by President. If President is running any governmental machinery but without having proper authorization by parliament it would become unconstitutional.[71] It may result in allegation of the President for violating Constitution.[72]

Additionally, the dialect of Article 74 is such that the “Aid and Advice” of the Council of Ministers appear to be tying subsequent to these capacities are consultative in nature as well as has a coupling and vital nature, particularly after the forty-second Amendment, which embedded the provision in Article 74.[73] In the case of S.R. Bommai Vs Union of India[74], some very important pronouncements were made by Supreme Court related to the scope and effect of clause number 2 of Article 74.

Article 74(2)[75] does not allow courts from inquiring into the advice which is given by Council of Ministers to President. In this case the advice which was given by given cabinet ministers was not to interfered by the Supreme Court.[76]It was held by Supreme Court that -“Although Article 74(2) bars judicial review so far as the advice given by the Ministers is concerned, it does not bar scrutiny of the material on the basis of which the advice is given. It also said that the material on the basis of which advice was tendered does not become part of the advice and courts are justified in probing as to whether there was any material on the basis of which the advice was given, and whether it was relevant for such advice and the President could have acted on it”.[77]

It was also stated by Supreme Court that whenever an inquiry is held the Article 74(2) would not negate.[78] In the case of Supreme Court Advocates on record Assn. v. Union of India[79] when the general principal was being laid down the court held in the matter in the appointment of judges of Supreme Court and High Court must bind the President only on the consultation of Chief Justice of India.  In Article 163 the ministers has no right to give advice to Governor. He shall act in discretion. He has the power to elect people by the state and there would be no danger to him. Governor is not elected by people but is elected by Central government.[80] If the Council of Ministers suggests Governor not to do something but he can still do it and cannot be judged.[81]

IX.           MORE ABOUT ARTICLE 74

Article 74 (1) was amended by 42nd amendment.[82] This was done so that it is written 10 exercises functions and takes advice from his Council of Ministers. It was for the stated by 44th Amendment that Council of Ministers may tell the President to reconsider the advice.[83] And it is in the hand of president whether to act under this advice or not In the case of Shamsher Singh Vs State of Punjab,[84] Krishna Iyer stated that- “We declare the law of this branch of a constitution to be that the President and the Governor, custodians of all executive another powers under various articles shall, by virtue of these provisions, exercise their formal constitutional powers up on and in accordance with the advice of the Ministers save in a few well known exceptional situations. Without being exhaustive, these situations relate to (A) the prime choice of the Prime Minister restricted through this choice is by the Paramount consideration that he should come and the majority in his house; (B) the dismissal of a government which has lost its majority in the house but refuses to get Office; (C) The dissolution of the house where an appeal to the country is necessity of although in this area the head of the state should avoid getting involved in politics and must be advised as Prime Minister who will eventually take the responsibility for the step. We do not examine in a detail the constitutional properties in this predicaments except to utter the caution that even hear the action must be compelled by the peril to democracy and the appeal to the house or to the country must become blatanly obligatory”.[85]

In the case of Supreme Court Advocates on Record Assassination Vs Union of India[86], it was stated that when the general principle is agreed and laid down then in the matter it should be in the hand of president with the advice of Council of Ministers. The judges of Supreme Court and High Court under Article 124 to an Article 217, one only after consultation with Chief Justice of India as interpreted.[87]

While integrating the Article 74 of any of the provision of the Constitution, it should be kept in mind that the interpretation is done for the constitution not for an act of Parliament as the Constitution establishes the parliamentary system of government. President Zain Singh exercised power under Article 74 run by 44th Amendment when he sent the Indian Postal Amendment Bill, 1986 in January 1987 to the Government for reconsideration.[88] Similarly, President K.R. Narayan also used this provision twice within the span of 1997 and 1998 for the advice under the situation of imposition of President’s rule under Article 356 in Uttar Pradesh and Bihar respectively, and under all these occasions the decision of President was affected by the Cabinet. But in the year 2006, the bill was referred back after reconsideration also without any change by President Abdul Kalam[89] As referred about Article 74, there is no bar in the production of material under which Ministry and advice is based.

[1] Constitution of India.

[2] CONSTITUTION OF INDIA (2011), http://lawyersupdate.co.in/LU/4/111.asp (last visited Feb 27, 2017).

[3] Id.

[4] P.M. Bakshi, The Constitution of India.

[5] See. Ekta Gupta, CONSTITUTION OF INDIA CONSTITUTION OF INDIA, http://lawyersupdate.co.in/LU/4/111.asp  (last visited Feb 27, 2017).

[6] Id.

[7] Statement of Objects and Reasons amended to the Constitution (Forty-fourth Amendment) Bill, 1976 (Bill No. 91 of 1976) which was enacted as THE CONSTITUTION (Forty-second Amendment) Act, 197, THE CONSTITUTION (FORTY-SECOND AMENDMENT) ACT, 1976, http://indiacode.nic.in/coiweb/amend/amend42.htm (last visited Feb 27, 2017).

[8] Supra note 1

[9] Subs, by the Constitution (forty-second Amendment) Act, 1976 S. 13 (w.e.f. 3-1-1997) Cl. (1) prior to substitute read.

“There shall be Council of Ministers with the Prime Minister at the head to aid and advise the President in the Exercise of his functions.”

[10] Article 74 of Constitution of India, 1949.

[11] Supra note 4.

[12] H.K. Saharay, The Constitution of India: AN Analytical Approach (4th ed.).

[13] Dr. Durga Das Basu, Introduction to the of Constitution of India (20 ed.).

[14] Supra note 4.

[15] Id.

[16] House of the People.

[17] Supra note 4.

[18] Id.

[19] For the corresponding Article under the union see Article 74.

[20] Id.

[21] The executive power of the Union shall be vested in the President and shall be exercised by him either directly or through officers subordinates to him in accordance with this Constitution.

[22] Id.

[23] Article 163 in The Constitution Of India 1949, Article 163 in The Constitution Of India 1949, https://indiankanoon.org/doc/674146/ (last visited Feb 29, 2017).

[24] Supra note 4.

[25] Lok Sabha (House of the People) or the lower house has 545 members. Id.

[26] Id.

[27] Shubhangi R, Functions of the Cabinet Functions of the Cabinet, http://www.politicalsciencenotes.com/constitution/functions-of-the-cabinet-india/948 (last visited Mar 2, 2017).

[28] Id.

[29] Id.

[30] See. Shubhojit, Cabinet Ministers – Their Roles and Importance (2014), http://www.elections.in/political-corner/cabinet-ministers-roles-importance/ (last visited Mar 6, 2017).

[31] Supra note 4.

[32] Id.

[33] Id.

[34] Supra note 4.

[35] See. Sahil Arora, Executive Power of the Union and the State (2015), https://www.lawctopus.com/academike/executive-power-union-state/ (last visited Mar 7, 2017).

[36] Id.

[37]See. Extent Of Executive Powers In Indian Constitution, , https://www.lawteacher.net/free-law-essays/constitutional-law/extent-of-executive-powers-in-indian-constitution-constitutional-law-essay.php#ftn2 (last visited Mar 16, 2017).

[38] The executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution.

[39] Id.

[40] Id.

[41] Supra note 36.

[42] The Governor of a State shall be appointed by the President by warrant under his hand and seal.

[43] Supra note 36.

[44] P. S. Ramamohan Rao, Governors and guidelines (2015), http://www.thehindu.com/opinion/op-ed/Governors-and-guidelines/article10753822.ece (last visited Mar 2, 2017).

[45] For the corresponding Article under the “Union” see Article 74.

[46] M.P. Special Police Establishment Vs. State of M.P., (2004) 8 SCC 788.

[47] Supra note 36.

[48] Supra note 36.

[49] Id.

[50] Article 73 of Constitution of India.

[51] Rai Sahib Ram Jawaya Kapur and Ors. Vs. The State Of Punjab,  AIR 1955 SC 549, 1955 2 SCR 225.

[52] Jayanthilal Amritlal Vs F.N. Rana and others, 1964 AIR 648, 1964 SCR (5) 294.

[53] Notwithstanding anything in this Constitution, the President may, with the consent of the Governor of a State, entrust either conditionally or unconditionally to that Government or to its officers functions in relation to any matter to which the executive power of the Union extend.

[54] Supra note 36.

[55] Shamsher Singh Vs. State of Punjab, A. 1974 S.C. 2192.

[56] Jayanthilal Amritlal Vs F.N. Rana and others, 1964 AIR 648, 1964 SCR (5) 294.

[57] What powers do the president and prime minister of India hold on each other? https://www.quora.com/What-powers-do-the-president-and-prime-minister-of-India-hold-on-each-other (last visited Mar 2, 2017).

[58] Supra note 36.

[59] THE UNION CHAPTER I.-THE EXECUTIVE Council of Ministers, THE UNION CHAPTER I.-THE EXECUTIVE Council of Ministers, http://www.constitution.org/cons/india/p05074.html (last visited Mar 3, 2017).

[60] Id.

[61] Constitutional Provisions of Council of Ministers in India http://www.gktoday.in/constitutional-provisions-of-council-of-ministers-in-india (last visited Mar 4, 2017).

[62] The Council of Ministers shall be collectively responsible to the House of the People.

[63] Id.

[64] Supra note 36.

[65] Article 163(1) of Constitution of India

[66] Supra note 3.

[67] D.D. Basu, Commentary on the Constitution of India.

[68] Id.

[69] Article 265 of Constitution of India.

[70] Id.

[71] Dr. Ashok Dhamija , Constitutional Amendment setting up National Judicial Appointments Commission challenged in Supreme Court Constitutional Amendment setting up National Judicial Appointments Commission challenged in Supreme Court (2015).

[72] Article 61 of Constitution of India.

[73] The provision was inserted by the Constitution (44^th Amendment Act), 1978.

[74] S.R. Bommai Vs. Union of India, 1994 2 SCR 644 : AIR 1994 SC 1918 : (1994)3 SCC1.

[75] The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court

[76] Article 74 (Constitution of India), https://en.wikipedia.org/wiki/Article_74_(Constitution_of_India) (last visited Mar 5, 2017).

[77] S.C. Advocates Vs UBI, A 1994 S.C. 268

[78] Id.

[79] Supreme Court Advocates on record Assn. v. Union of India, (1993) 4 SCC 441: AIR 1994 SC 268

[80] Article 163 of Constitution of India, http://www.lawnotes.in/Article_163_of_Constitution_of_India (last visited Mar 6, 2017).

[81] M.P. Special Police Establishment v. State of M.P. (2004) 8 SCC 788.

[82] Constitution of India.

[83] Supra note 74.

[84] Supra note 54.

[85] Shamsher Singh Vs. State of Punjab, A. 1974 S.C. 2192.

[86] Supreme Court Advocates on Record Assassination Vs Union of India, (1993) 4 SCC 441 : AIR 1994 SC 298.

[87] Supra note 60.

[88] DR. LOKENDRA MALIK… Read more at: http://www.livelaw.in/taking-the-president-seriously-indian-presidents-power-to-grant-sanction-of-prosecution-against-the-prime-minister/ (last visited Mar 6, 2017).

[89] Id.