ISSN 2455-4782
AMBIT OF “AID AND ADVISE” OF COUNCIL OF MINISTERS AND PRESIDENTIAL EXERCISE OF POWER
Authored by: Sampreet Pal*
* 2nd year BBA LLB, CMR University School of Legal Studies, Bangalore
INTRODUCTION
Our country India follows a parliamentary form of government as prevalent in United Kingdom where the executive power has been vested in the hands of President. In other words it has adopted British form of Parliamentary government. Article 53(1) provides executive power of the Union is given to the President “which shall be exercised by him directly or through officers subordinate to him in accordance with the constitution.” The ministers in Council of Ministers falls under the category of officers subordinate to the President. And it is the President who appoints the Prime Minister and other Ministers along with the advice of the Prime Minister as stated in Article 75(1). If the President is given the liberty to use this power according to his own discretion then India would be under dictatorship rule of President. For that purpose our constitution has come up with Article 74(1) which says 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.1 At the same time article 74(2) says the advice so tendered by the council of Ministers cannot be enquired in any court of law.
Council of Ministers headed by Prime Minister is considered as the real executive authority whereas the President is the nominal head (de jure executive). Council of Ministers is the real head because President has to act as per the advice tendered to him.
Dr. Rajendra Prasad himself raised the question in the constituent assembly whether the aid and advice of Council of Ministers is binding on the president. Dr. Ambedkar remarked generally the President will be bound by the advice of his ministers. Also he made another remark regarding the acceptance of advice tendered by the Ministers by the President. Every democracy has three body
1 Eastern Book Company, Constitution of India (27th edn 2005) 1 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 4 ISSUE 11
ISSN 2455-4782 organs which are legislative, executive and judiciary. Nowhere in any Constitution had it been mentioned that executive should obey legislature or executive is bound to abide judiciary. But it considered that different organs of the state are binding on each other.2
The constitution of India provides impeachment for president. If there is no Council of Minister and President can Act on his own there will be no question of impeachment of President as he will be the sole body to take all the responsibilities. The President has the authority to dissolve the House of People when it loses the confidence of the people and at that time the Council of Ministers or the entire ministry stands dissolved. Prime Minister can advise the President to dismiss any minister.
All the powers of Council of Ministers are exercised by the cabinet. Whatever policy decision has to be taken are taken in cabinet. The Cabinet is a minor body than Council of Ministers which comprises of a few major senior ministers who are in responsibility of distinct departments. It is the core of the Council of Ministers. Advice tendered by one Minister will be considered as advice tendered by the Council of Minister. There are three kinds of ministers, in downward order of rank:
1. Union Cabinet Minister: senior minister in-charge of a ministry. A cabinet Minister may also hold additional responsibilities of other Ministries where there is lack of Minister. 2. Minister of State (Independent Charges): with no managing Union cabinet Minister for that portfolio. 3. Minister of State (MoS): junior Minister to supervise cabinet minister, generally given a definite duty in that ministry.3
STATEMENT OF PROBLEM
This paper aims at analyzing and studying the domain of “aid and advise” of Council of Ministers on the President and its binding power. It also covers the interdependence or interrelationship between the President and the Council of Ministers that the Constitution confers.
2 T.K. Tope, The President and the Council of Ministers, http://14.139.60.114:8080/jspui/bitstream/123456789/688/12/The%20President%20and%20the%20Council%20of% 20Ministers.pdf 3 Available at https://www.clearias.com/com-prime-minister-attorney-general/ (last accessed on 26/11/2018) 2 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 4 ISSUE 11
ISSN 2455-4782
The purpose behind bringing up the issue is to understand the effect and influence of on each other.
RESEARCH QUESTIONS
To make this work simple for understanding, few research questions have been brought up by the researcher. This project mainly tries to answer the following questions:
1. To what extent the President is bound by the “aid and advise” of the Council of Ministers? 2. Distinction between cabinet and Council of Ministers? 3. The degree till which the court can intervene in the advice so tendered?
RESEARCH METHODOLOGY
The research carried out is only doctrinal research. This research has also resorted to historical research as well for gathering some more information.
METHOD OF CITATION
The citation which has been homogenously followed across this paper is Harvard Bluebook, 19th edition.
3 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 4 ISSUE 11
ISSN 2455-4782
CHAPTER 1
AID AND ADVICE OF COUNCIL OF MINISTER AND PRESIDENTIAL POWER
Article 74 in forty-second Amendment was recited, “There shall be a Council of Ministers with the Prime Minister at the head to aid and advice the President who shall, in the exercise of his functions, act in accordance with such advice.” Article 74 was amended once again in the forty- fourth amendment and a provision was added which read “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.” Amended clause (1) of Article 74 by Constitution 42nd Amendment Act, 1976, the President is required to act and exercise of his functions according to the advice subject to the proviso inserted by the second amendment. This proviso admits the possibility of the Cabinet’s advice being rejected by the President but not if tendered again.
If the President discards the Cabinet’s advice for the first time on the basis of it being unconstitutional, then tendering the same advice another time would not improve or change the vice of unconstitutionality. For the purposes of this proviso therefore, it cannot be said that an advice has been constitutionally tendered at all.
At any cost the President should not delay for the Supreme Court decision on the constitutional validity of the Cabinet’s advice when according to the President, accepting it will make him liable for violation of the constitutional duty of President i.e. “to protect, preserve, and defend the Constitution.” This would be an extraordinary circumstance where the President would be constitutionally permitted to act according to his own decision. With all kinds of legal aid in his hand, the President will be as competent as a Supreme Court’s judge to choose whether considering the Cabinet’s advice will force him to perform in violation of the Presidential oath.4
It is incorrect to say that President of India is only a constitutional head. Article 111 empowers the President to veto a Bill, is a specific and substantive power to be used on the advice of the Council of Ministers. The framers of Constitution deliberated this power on the President with a certain purpose. The purpose is to enable the President to execute his responsibilities steady with the oath
4 Available at http://blog.mylaw.net/when-the-aid-and-advice-of-the-council-of-ministers-is-in-conflict-with-the- presidential-oath/ (last accessed on 26/11/2018) 4 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 4 ISSUE 11
ISSN 2455-4782 he has taken. The President of India represents the nation, whereas the Council of Ministers signifies the majority party at Lok Sabha. It might happen that Council of Ministers may misuse the majority in the Lok Sabha and gets a Bill passed which may be within the power of Parliament but against the interest of the nation but can be in the concern of solidifying the political party of the Council of Ministers belongs. In that situation is the President bound to take the advice of the Council of Ministers and give his assent to that Bill or can he reject his assent? He has the desirable constitutional power to deny to give assent to the Bill. But such a denial in contrast to the advice of the Council of Ministers may sparkle a political controversy. The Constitution provides ample powers to the President to facilitate him to determine the desires of the electorate in situations when he contemplates that the Council of Ministers is abusing the powers.5
In the case P.B. Samant V. Union of India6, the central issue raised in this petition is that the constitutional functions of the President are to be used at his own choice and not by the Council of Ministers. Petitioner claimed that the constitutional powers of the President cannot be applied by the Ministers under 'advice'; these powers can only be exercised by the President in his discretion on the 'aid and advice' given to him by the Council of Ministers.
The Division Bench held “that the expression ‘aid and advise’ appearing in Article 74 is a constitutional phrase used besides the Constitution of India in other constitutional documents, viz., North America Act. Consistently, the expression ‘aid and advise’ has been taken as a single phrase. The Division Bench observed that it is not possible to make a distinction amongst the executive functions of the President according to whether they are to be discharged with the aid or with advice of his Council of Ministers. Even in the matter of executive functions, the President is to be aided and advised. In relation to his executive functions, the President has both to be aided and advised. The Division Bench observed that the expression briefly sums up the constitutional relationship between the President and his Council of Ministers headed by the Prime Minister.”
5 See T.K. Tope, The Constitution of India 230-235 (3rd ed. 1971). 6 P.B. Samant vs. Union Of India, 2005 (4) BomCR 684 (India) 5 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 4 ISSUE 11
ISSN 2455-4782
CHAPTER 2
DIFFERENTIATION BETWEEN CABINET AND COUNCIL OF MINISTER
According to Art. 75(3) of the Constitution, all ministers in Council of Minister “shall swim together and sink together.” Council of Ministers which is headed by Prime Minister to aid and advice the President and as Council of Minister is collectively responsible for the aid and advice so rendered. The vital question arises here is who has capacity to render such aid and advice and what makes Council of Ministers collectively responsible?
Our Constitution visualizes collective role of Council of Ministers, which is made up of around 50-60 ministers though the number of ministers to be there in his council is nowhere mentioned. Only the important selected ministers in Council of Ministers govern business of government.
As of today much reliance is placed on British convention which is superseding expressed constitutional provision of Constitution. British Convention says that some selected 15-20 Cabinet ministers are known as ‘Cabinet’ who actually take all policy decisions. Cabinet meets regularly whereas whole Council of Minister barely meets and interacts. Cabinet looks into affairs of all ministries but Minister of State and Deputy Minister only look after particular ministries allotted to them. If a bill is presented by any random member who is not supported by the Cabinet, no confidence motion can be initiated against the Parliament, but if majority is proved in Parliament, Cabinet will win such motion. All important policy making is done by Cabinet regarding legislative business. When President calls for an emergency under Article 356, it is the cabinet who decides whether emergency should be imposed or not under the report of governor.7
The above arguments leaves no scope of doubt that the Cabinet participates in framing policies for the government and not the whole Council of Ministers. In Britain also cabinet plays a very crucial role. Therefore cabinet is the most dominant body in a parliamentary form of Government.
7 Available at http://racolblegal.com/meaning-nature-and-scope-of-aid-and-advice-under-indian-constitution-a- critical-analysis/ (last accessed on 27/11/2018) 6 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 4 ISSUE 11
ISSN 2455-4782
CHAPTER 3
THE AID & ADVISE AND COURT OF LAW
The Article 74(2) debars the courts from enquiring into any advice, if provided, by the Ministers to the President. Whatsoever advice given by the Cabinet or a Minister to the President is kept confidential as result a court can never take any cognizance or can enquire as to what advice has been tendered by the Ministers to the President. In the view of this constitution the courts are helpless as the matter lies outside purview of the courts and there is no hope of relief available from the courts in such a situation neither it seems to be possible.
Therefore the only sanction behind this proviso is the fear of impeachment of President if he violates Article 74(1) by not acting upon ministerial advice.
The court can compel to answer the material fact on which the Council of Ministers decision is based, if the material doesn’t seems like any part of the advice.
In S.R. Bommai v. Union of India8 it had been held that none of the courts are bothered about whatever advice had been tendered by Council of Ministers to the president. All it is concerned about is the validity of the order not with the follow up of the advice by the President. Any order which has been passed by the President, it cannot be challenged on the grounds that it is not according to the advice tendered or no advice was tendered for the same in the courts. If such case happens it is Presidents act where he will be warranting his impeachment.
This Art. 74(2) aims to protect and preserve the secrecy of the discussions between the Council of Minister and the President. The scope is limited. This Article cannot supersede the provisions of judicial review. When any act of President is challenged, Council of Ministers has to justify the same as president is bound by Council of Ministers.
Article 74(2) doesn’t state that Government has no need to justify the act of the President. The court will not enquire whether such advice was tendered or not, the court will only see on what material such act has been done and to what extent it is relevant.
8 S.R. Bommai v. Union of India ,1994 AIR 1918, 1994 SCC (3) 1 7 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 4 ISSUE 11
ISSN 2455-4782
The material placed before symbolizes the support for advice. Material is not the advice. At the same time it is difficult to explain how supporting material becomes a part of advice.
Later in another case majority held that Article 74(2) doesn’t bar scrutiny by courts. It is the responsibility of court to prevent revelation wherever Article 74(2) is involved.
CONCLUSION
Now at this juncture we can say that the “the aid and advise” is binding on the president but this is not absolute. There can be various circumstances where the President has no obligation to follow his Council of Ministers. But at the same time they are interdepended on each other. President being the nominal head cannot do anything without the Council of ministers. It is a very common doubt that everyone use to mistake Council and Cabinet of Minister are same thing. But they are not, Cabinet of Minister falls under the domain of Council of Ministers. They form an important part for the parliamentary form of government in India. At the last comes is the judicial review of the advice proposed by the Council of Ministers which has been barred by Article 74(2) of the constitution. If the Article 74(2) is removed then the courts can compel the President to act in accordance with the advice of the Ministers. So to conclude it can be said that it is expected that this process should be crystal clear without any drop of vagueness in it.
8 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 4 ISSUE 11
ISSN 2455-4782
BIBLIOGRAPHY
Books:
Jain M P, Indian Constitutional Law( 6th edn, Lexis Nexis 2013) Constitution of India (12th edn Eastern Book Company) Setalvad, My Life, Law and Other Things 171 (1970)
LEGISLATIONS
Constitution of India, 1949 42 Amendment Act, 1976
9 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 4 ISSUE 11