Constitutional Provisions of Council of Ministers in India

Articles 74 & 75 of the constitution of India deal with the Council of Ministers and Prime Minister. These articles have below provisions.

• Article 74(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. The president may require the council of ministers to reconsider such advice and president shall act in accordance with such advice reconsidered.
• Article 74(2): What advice was tendered to the president cannot be inquired into any court.
• Article 75(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.
• Article 75(2): The Ministers shall hold office during the pleasure of the President.
• Article 75(3): The Council of Ministers shall be collectively responsible to the House of the People.
• Article 75(4): Before a Minister enters upon his office, the President shall administer to him the oaths of office and of secrecy according to the forms set out for the purpose in the Third Schedule
• Article 75(5): A Minister must be a member of any of the houses within 6 months.
• Article 75(6): Parliament will decide the salary and allowances of the Ministers and until parliament decides, so shall be as specified in the Second Schedule.

Constitutional position of Prime Minister

While President is the nominal executive authority (de jure executive), Council of Ministers headed by Prime Minister is the real executive authority (de facto executive).  Further, while President is the head of the state, Prime Minister is the head of the government.

The Council of Ministers is Real Executive

Council of Ministers (CoM) is real executive because President acts in accordance with the advice tendered by it. The president may ask the CoM to reconsider the advice, but if the it decides to stick to the previous advice, the president acts as per this reconsidered advice.  Advice tendered to the president by the Council of Ministers cannot be inquired by anybody or any court of law.

Ministers shall hold office during the pleasure of the president

All the ministers are appointed by the president on the advice of the Prime Minister. It is the Prime Minister who allocates the portfolio to other ministers. The prime Minister may call for the resignation of any minister at any time. In case the minister refuses, the prime minister may advice the President to dismiss the minister. This is also called the “Rule of Individual Responsibility”. This individual responsibility powerful weapon of the President in the hands of the Prime Minister.  Losing confidence of the Prime Minister leads to dismissal by the President.

Principle of Collective Responsibility

Council of Ministers is collectively responsible to “Lok Sabha”. This means that if the Ministry loses the confidence of the “Lok Sabha”, all ministers including those who are from Rajya Sabha have to go. The entire ministry is obliged to resign. This means that ministers fall and stand together. This is called “Rule of Collective Responsibility”.

A Minister must be an MP

A Minister (including Prime Minister) must be a member of any of the house of Parliament. If at the time of appointment a minister or PM is not a member of any house, he must attain membership of any of them within 6 months.

Maximum numbers of Ministers

The total number of Ministers, including the Prime Minister, in the Council of Ministers cannot exceed the 15% of total numbers of members in Lok Sabha. Since the maximum strength of Lok Sabha is fixed 552 in constitution,  there can be maximum 82-83 members in Council of Ministers.

Appointment of Prime Minister

There is no specific procedure for appointment of Prime Minister in constitution. However, convention is that President appoints the leader of majority party in Lok Sabha as Prime Minister. However, in case of a hung parliament, President exercises his discretion in selection and appointment of Prime Minister. In this case, prime minister is given time to seek vote of confidence in the house in a stipulated time (generally a month, decided by president).

Other important notes on Prime Minister

• The term of Prime Minister is not fixed. Like any other minister, he holds office during the pleasure of the president. However, it does not mean that he can be junked by President any time. President cannot dismiss him until he enjoys confidence in Lok Sabha.
• Prime Minister allots and changes when necessary the portfolio of the ministers. He presides the Council of Ministers and Union Cabinet.
• Resignation or death of the Prime Minister would dissolve the entire Council of Ministers.
• Prime Minister sets the agenda of the Lok Sabha along with the Speaker
• Prime Minister advises the President as regard to the summoning and proroguing of the Parliament
• Prime Minister is answerable to the Parliament for all policy decisions of his Government and his Ministers
• Prime Minister can recommend the President to dissolve the Lok Sabha if he feels so

Bodies of which Prime Minister is Chairman

• Union Cabinet
• Erstwhile Planning Commission and National Development Council
• NITI aayog
• National Integration Council
• Inter-state Council
• National Water Resources Council
• Prime Minister National Relief Fund

Types of Ministers

There are three types of ministers viz. Cabinet Ministers, Ministers of State, Deputy Ministers. Cabinet ministers are of highest rank and they hold key ministries. However, salary of a cabinet minister is same as that of a minister of state. Usually, minister of state assists the cabinet minister in his functions. At the same time, state ministers can be given independent charge also. In such situation, a state minster performs same functions as cabinet ministers.

Difference between Cabinet and Council of Ministers

• Cabinet is made of Cabinet Ministers, while Council of Ministers is made of all ministers. Thus, the later is bigger than former. Both are headed by Prime Minister.
• Cabinet meets as a body regularly to perform government business and make decisions. Such frequency of meeting and collective work is not seen in CoM.
• While constitution has detailed provisions about CoM, the term cabinet appears only once in article 352 and that too was inserted via 44th amendment act.