Central Council of Ministers

The Constitution of India provides for a parliamentary system of government based on the British model.
In this system, the Council of Ministers headed by the Prime Minister constitutes the real executive authority in India’s politico-administrative structure.
Constitutional Basis
- Though the principles of parliamentary governance are not elaborately detailed in the Constitution, they are broadly outlined in two key Articles:
- Article 74- Status of the Council of Ministers
  - There shall be a Council of Ministers with the Prime Minister at the head, to aid and advise the President, who is constitutionally bound to act on such advice.
- Article 75- Structure and Operation
  - This Article covers several vital aspects of the Council of Ministers:
  - Appointment of the Prime Minister and other ministers by the President.
  - Tenure of ministers (they hold office during the pleasure of the President).
  - Collective responsibility of the Council of Ministers to the Lok Sabha.
  - Qualifications, oath, and salaries and allowances of ministers.

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Key Constitutional Provisions

Article 74 – Council of Ministers to Aid and Advise the President
- 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.
  - However, the President may once require reconsideration of the advice.
  - After reconsideration, the President must act on the final advice.

- The advice tendered by the Ministers to the President is confidential and cannot be inquired into by any court.

Article 75 – Other Provisions Regarding Ministers
- The Prime Minister is appointed by the President; other Ministers are appointed on the Prime Minister’s advice.
- The total number of ministers, including the Prime Minister, shall not exceed 15% of the total strength of the Lok Sabha.
- (Added by the 91st Constitutional Amendment Act, 2003).
- Any MP disqualified under the anti-defection law is also disqualified from being appointed as a minister.
- (Also added by the 91st Amendment Act, 2003).
- Ministers hold office during the pleasure of the President.
- The Council of Ministers is collectively responsible to the Lok Sabha.
- The President administers the oaths of office and secrecy to every minister.
- A minister who is not a member of Parliament for six consecutive months shall cease to be a minister.
- The salaries and allowances of ministers are determined by Parliament.

Article 77 – Conduct of Business of the Government of India
- All executive actions of the Government of India must be expressed to be taken in the name of the President.
- Orders and instruments made in the name of the President must be authenticated as per rules prescribed by the President.
- Once authenticated, their validity cannot be challenged on the ground that they were not made or executed by the President himself.
- The President shall make rules for the convenient transaction of government business and for the allocation of such business among ministers.

Article 78 – Duties of the Prime Minister
- It is the constitutional duty of the Prime Minister to:
  - Communicate all decisions of the Council of Ministers related to Union administration and proposed legislation to the President.
  - Provide information on any matter related to Union administration or legislation when called for by the President.
  - 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.

Article 88 – Rights of Ministers in Parliament
- Every Minister has the right to speak and participate in:
  - Either House of Parliament,
  - Any joint sitting of both Houses, and
  - Any Parliamentary Committee of which they are a member.
- However, a Minister who is not a member of that House has no right to vote in that House.

Nature of Advice by Ministers – Article 74

Constitutional Provision
- Article 74 provides that there shall be a Council of Ministers with the Prime Minister at its head to aid and advise the President in the exercise of his functions.
Binding Nature of Advice
- The 42nd Constitutional Amendment Act (1976) made it mandatory for the President to act on the advice of the Council of Ministers.
- The 44th Constitutional Amendment Act (1978) clarified that the President may once send the advice back for reconsideration, but must accept the reconsidered advice.
Supreme Court Judgments:
- 1971 Ruling: Even after dissolution of the Lok Sabha, the Council of Ministers continues to hold office, and the President must act on their advice.
  - Any executive action taken without their aid and advice is unconstitutional and violates Article 74.
- 1974 Ruling: Where the Constitution speaks of the “satisfaction of the President,” it refers to the satisfaction of the Council of Ministers, not the President’s personal satisfaction.

This provision affirms that India follows a parliamentary system, where real executive authority lies with the Council of Ministers, not the President.

Appointment of Ministers

Who Appoints Whom?
- The Prime Minister is appointed by the President.
- Other ministers are appointed by the President on the advice of the Prime Minister.
  - This means the President cannot appoint ministers independently; he can only appoint those recommended by the Prime Minister.
Eligibility Criteria
- Typically, ministers are chosen from among the members of Parliament (either Lok Sabha or Rajya Sabha).
- However, a person who is not a member of Parliament may also be appointed as a minister, provided:
  - He must become a member of either House within six months, either by election or nomination.
  - Failure to do so will result in the person ceasing to be a minister.
Parliamentary Rights of Ministers
- A minister who is a member of one House of Parliament has the right to speak and participate in the proceedings of both Houses.
- However, a minister can vote only in the House of which he is a member.

Oath and Salary of Ministers

Before taking office, every Union Minister is required to take two oaths administered by the President of India:
Oath of Office
- The Minister swears:
  - To bear true faith and allegiance to the Constitution of India.
  - To uphold the sovereignty and integrity of India.
  - To faithfully and conscientiously discharge the duties of his office.
  - To do right to all manner of people in accordance with the Constitution and the law, without fear or favour, affection or ill will.
Oath of Secrecy
- The Minister swears:
  - Not to communicate or reveal any matter brought under his consideration or known to him as a Union Minister, except as required for discharging his duties.

Judicial Clarification on Titles (1990 Supreme Court Case)
In 1990, the oath taken by Devi Lal as Deputy Prime Minister was challenged as unconstitutional.
The Supreme Court upheld the oath and clarified:
- Titles like Deputy Prime Minister, Minister of State, or Deputy Minister are descriptive and do not grant additional constitutional powers.
- These titles do not invalidate the oath, as long as the substantive part of the oath is correct.

Salary and Allowances
- The salary and allowances of ministers are determined by Parliament from time to time.
- Ministers receive:
- Salary and allowances equivalent to Members of Parliament.
- Sumptuary allowance based on rank.
- Free official residence, travel, medical, and other facilities.

Responsibility of Ministers

Collective Responsibility (Article 75)
- The Council of Ministers is collectively responsible to the Lok Sabha.
- This means all ministers are jointly accountable for the policies and decisions of the government.
- They function as a team — succeeding or resigning together (“swim or sink together”).
- Implications of Collective Responsibility
  - If the Lok Sabha passes a no-confidence motion, the entire Council of Ministers must resign, including those from the Rajya Sabha.
  - Alternatively, the Council may advise the President to dissolve the Lok Sabha and call for fresh elections.
  - However, the President is not bound to act on this advice if the Council has lost confidence.
- Cabinet Solidarity
  - All ministers are bound by Cabinet decisions, even if they disagreed during discussions.
  - Ministers must publicly support Cabinet decisions inside and outside Parliament.
  - A minister who cannot support a decision must resign.
- Historical Examples of Resignation due to Dissent:
  - Dr. B.R. Ambedkar – resigned over opposition to the Hindu Code Bill (1953).
  - C.D. Deshmukh – resigned due to differences over state reorganisation policy.
  - Arif Mohammed Khan – resigned in protest against the Muslim Women (Protection of Rights on Divorce) Act, 1986.

Individual Responsibility
- Article 75 also enshrines the principle of individual responsibility.
- Ministers hold office during the pleasure of the President, meaning:
- The President can remove any individual minister.
  - However, this is done only on the advice of the Prime Minister.
- In case of a difference of opinion or dissatisfaction with the performance of aminister, the Prime Minister can ask him to resign or advice the President to dismiss him. By exercising this power, the Prime Minister can ensure the realisation of the rule of collective responsibility.
- Dr. B.R. Ambedkar rightly said:
  - “Collective responsibility can be achieved only through the instrumentality of the Prime Minister.”

No Legal Responsibility
- Unlike Britain, India does not follow the principle of legal responsibility of ministers.
- In Britain, every public act of the King is countersigned by a minister, who is then legally accountable.
- The British doctrine is: “The King can do no wrong.”
- In India, there is:
  - No constitutional requirement that a Presidential order must be countersigned by a minister.
  - No legal liability of ministers in courts for public acts.
  - Courts are barred from inquiring into the nature of advice given by ministers to the President.

Composition of the Council of Ministers

The Council of Ministers at the Union level is a multi-tiered body headed by the Prime Minister, who is the supreme executive authority.
It consists of three categories of ministers based on rank, responsibilities, and political importance:

Cabinet Ministers
They head the most important ministries such as:
- Home, Defence, Finance, External Affairs, etc.
Cabinet ministers are:
- Members of the Cabinet.
- Attend Cabinet meetings and play a central role in policymaking.
- Their responsibilities span across the entire Central government framework.

Ministers of State (MoS)
Ministers of State fall into two sub-categories:
- Ministers of State with Independent Charge:
  - Head ministries/departments independently.
  - Exercise full authority similar to Cabinet ministers for their domain.
  - Do not attend Cabinet meetings unless specially invited.
- Ministers of State Attached to Cabinet Ministers:
  - Work under the supervision of a Cabinet Minister.
  - May handle specific departments or responsibilities within a larger ministry.
  - Operate under the overall charge and responsibility of the Cabinet Minister.

Deputy Ministers
- Do not hold independent charge of any ministry.
- Are attached to Cabinet Ministers or Ministers of State.
- Assist in administrative, political, and parliamentary duties.
- Do not attend Cabinet meetings.

Parliamentary Secretaries
- Have no independent department, but were attached to senior ministers to assist in parliamentary affairs.
- They are attached to senior ministers and assist them in discharging parliamentary responsibilities
- Were appointed in the early years of the Republic and briefly during Rajiv Gandhi’s government (1980s).

Deputy Prime Minister
- Not a constitutional position.
- Appointed occasionally for political reasons (coalition management, seniority).

Council of Ministers vs Cabinet – Key Differences

Aspect	Council of Ministers	Cabinet
1. Size	A wider body consisting of 60 to 70 ministers.	A smaller body consisting of around 15 to 20 ministers.
2. Composition	Includes all three categories: Cabinet Ministers, Ministers of State, and Deputy Ministers.	Includes only Cabinet Ministers. It is a subset of the Council of Ministers.
3. Meeting Function	Does not meet collectively as a body to conduct business.	Meets regularly, usually once a week, to make decisions. Has collective decision-making authority.
4. Power in Theory vs Practice	Vested with powers in theory, but does not exercise them directly.	Exercises real executive powers in practice and acts on behalf of the Council of Ministers.
5. Functional Role	Functions are determined by the Cabinet.	Directs the Council of Ministers by framing policy decisions binding on all ministers.
6. Implementation Role	Implements the decisions taken by the Cabinet.	Supervises and oversees implementation of its decisions by the larger Council.
7. Constitutional Status	Mentioned under Articles 74 and 75. However, its size and classification are not constitutionally fixed and are based on British parliamentary conventions. Legislative sanction comes from the Salaries and Allowances Act, 1952.	Not originally mentioned in the Constitution. Defined under Article 352 (added by the 44th Amendment Act, 1978) as the Prime Minister and Ministers of Cabinet rank.Article 352 does not describe its powers and functions.Its role is based on conventions.
8. Responsibility	Collectively responsible to the Lok Sabha (Lower House).	Enforces the collective responsibility of the Council of Ministers to the Lok Sabha.