UNION COUNCIL OF MINISTERS

UNION COUNCIL OF MINISTERS

                                   

BACKGROUND
  • Portfolio system was started by Lord Canning in Indian Councils Act 1861.
  • In the United Kingdom – Council of Ministers is the real executive which is left on the convention.
  • In India – the System of Council of Ministers is codified and mentioned in Indian Constitution.
In S.R. Chauhan vs State of Punjab (2001), Supreme Court held that a non-member cannot be re-appointed without being elected. However, a Non-member can also become a part of council of minister for maximum of 6 months.
  • The Constitution of India provides for a parliamentary system of government which is modelled on the British pattern, the Council of Ministers headed by the Prime Minister is the real (De-facto) executive authority is our politico-administrative system.
  • The principles of the parliamentary system of government are not provided in detail in the Constitution.
  • However two Articles i.e. 74 and 75 in Part V dealt with them in a broad, sketchy and general manner.
Art. 74 deals with the status and nature of the council of ministers and Art. 75 deals with the appointment, tenure, responsibility, qualification, oath and salaries and allowances of the ministers.
  • Every Minister is responsible for the acts of the officers of his department. He has to answer questions regarding the affair of his department in the Parliament.
  • Council of Ministers rarely meets so the driving wheel of the government is the Cabinet.

 

CONSTITUTIONAL PROVISIONS
  • Articles spanning from 74 to 78 in Part V broadly deals with Central Council of Minister
ARTICLESDESCRIPTION
74Council of Ministers to aid and advise President
75Other provisions as to Ministers
77Conduct of business of the Government of India
78Duties of the Prime Minister as respects the furnishing of information to the President, etc.
88Rights of Ministers with respects th to the Houses.

 

UNION EXECUTIVE – Consist of President, Vice-president, Prime minister, Union Council of Ministers and Attorney General Of India.

 

ARTICLE 74 – COUNCIL OF MINISTERS TO AID AND ADVISE 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 require the Council of Ministers to reconsider such advice (option added by 44th CAA 1978) and the President shall act in accordance with the advice tendered after such reconsideration.
  • 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 PM.
  • The Council of Ministers shall be collectively responsible to the Lok Sabha. (Not to the Rajya Sabha)
Collective responsibility relies on the ‘notion of solidarity’, i.e. a single vote of no confidence against a minister can lead to the resignation of the entire council. Hence, the support of the majority is a must for the council.
  • A minister who is not a member of the Parliament (either Rajya Sabha or Lok Sabha ) for any period of six consecutive months shall cease to be a minister.
  • The ministers shall hold office during the pleasure of the President.
    • There is a Parliamentary System of Government in because the_____[2015-I]
      1. Lok Sabha is elected directly by the people
      2. Parliament can amend the Constitution
      3. Rajya Sabha cannot be dissolved
      4. Council of Ministers is responsible to the Lok Sabha
  1. Assertion (A) : The Council of Ministers in the Union of India is collectively responsible both to the Lok Sabha and Rajya Sabha.
    Reason (R) : The Members of both the Lok Sabha and the Rajya Sabha are eligible to be the Ministers of the Union Government. [2007]
  2. Choose the correct Code:
    1. Both A are R are true and R is the correct explanation of A
    2. Both A and R are true but R is not a correct explanation of A
    3. A is true but R is false
    4. A is false but R is true

 

ARTICLE 77 – CONDUCT OF BUSINESS OF THE GOVERNMENT OF INDIA
  • All executive actions of the govt. 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.
  • Moreover, the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the President.
  • The President shall make rules for the more convenient transaction of the business of the govt. of India, and for the allocation among Ministers of the said business.

 

ARTICLE 78–DUTIES OF PRIME MINISTER

It shall be the duty of the 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.
  • To furnish such information relating to the administration of the affairs of the Union and proposals for legislation as the President may call for.
  • 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 AS RESPECTS THE HOUSES
  • Every minister shall have the right to speak and take part in the proceedings of either House, any joint sitting of the Houses and any Committee of Parliament of which he may be named a member. But he shall not be entitled to vote.

 

91ST CONSTITUTIONAL AMENDMENT ACT 2003
  • The total number of ministers, inclusive of the Prime Minister, in the Council of Ministers shall not exceed 15% of the total strength of the Lok Sabha.
  • 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.

 

CONSIDERATION IN CONSTITUTING THE COUNCIL OF MINISTERS
  • Minister from different regions to enhance regional representation of Council of Ministers.
  • Representation of communities, caste, women, coalition
  • Capability of Ministers to dealt with various tasks
  • Age factor – young and dynamic personality along with adequate experience.
  • He should be a good administer and decision maker
  • Visionary and optimistic with futuristic attitude
  • A non-corrupt and a high moral standards.

 

IS ADVICE BY CoM BINDING?
  • The 42nd (1976) and 44th (1978) Constitutional Amendment Acts have made the advice binding on the President.
  • 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.
  • 42nd Constitutional Amendment Act of 1976 – The President shall, in the exercise of his functions, act in accordance with the advice rendered by the Council of Ministers.
  • 44th Constitutional Amendment Act of 1978 – Added a proviso to the effect that the President may require the council of ministers to reconsider such advice and the president shall act in accordance with the advice tendered after such reconsideration.
  • However, the nature of advice tendered by ministers to the President cannot be enquired by any court.
  • This provision emphasizes the intimate and the confidential relationship between the President and the ministers.
Which one of the following amendments to the Indian Constitution empowers the President to send back any matter for reconsideration by the Council of Ministers? [2002]

  1. 39th
  2. 40th
  3. 42nd
  4. 44th

 

NATURE OF ADVICE BY MINISTERS
  • It should be noted that 74 is mandatory and in any case, the president cannot exercise the executive power without the aid and advice of the Council of Ministers .
  • Any exercise of executive power without the aid and advice will be unconstitutional as being violative of Art. 74.
  • In 1974, the court held that wherever the Constitution requires the satisfaction of the President, the satisfaction is not the personal satisfaction of the President but it is the satisfaction of the Council of Ministers with whose aid and on whose advice the President exercises his powers and functions.
The Indian courts are barred from enquiring into the nature of advice rendered by the ministers to the President.

 

 OATH AND SALARY OF MINISTERS
  • Oath: Every new minister has to undertake the Oath of Office and Secrecy before entering into his office.
The oath to every new minister is administered by the President of India.

“Oath of Secrecy” of ministers should be replace by “Oath of Transparency” – Second ARC

There is no provision of separate oath for Prime Minister in the constitution. He/she takes oath as a Minister.

  • Salary: The constitution declares that the salaries and allowances of ministers shall be determined by the Parliament by law. Accordingly the Parliament by a law passed in 1985 had laid down that each minister shall receive the same salary and allowances which are being paid to a member of the Parliament.
The salaries and allowances of ministers are determined by Parliament from time to time.

 

CONTROVERSIES ASSOCIATED WITH OATH AND AFFIRMATION
  • The oath by Devi Lal as Deputy Prime Minister in 1990 was challenged as being unconstitutional as the Constitution provides only for the Prime Minister and other ministers.
  • The Supreme Court upheld the oath as valid and stated that describing a person as Deputy PM is descriptive only and such description does not confer on him any powers of PM.
  • SC ruled that the description of a minister as Deputy Prime Ministers or any other type of minister such as minister of state or deputy minister of which there is no mention in the Constitution does not vitiate the oath taken by him so long as the substantive part of the oath is correct.

 

RESPONSIBILITY OF MINISTERS
  1.  COLLECTIVE RESPONSIBILITY
    • Principle of collective responsibility is the fundamental principle underlying the working of the parliamentary system.
    • Article 75 – Explicitly states that the Council of Ministers is collectively responsible to the Lok Sabha. This implies that all the ministers own joint responsibility to the Lok Sabha for all their acts of omission and commission. Philosophy is working as a team and swimming or sinking together.
    • When the Lok Sabha passes a no-confidence motion against the Council of Ministers, all the ministers have to resign including those ministers who are from the Rajya Sabha.
    • On other side, the Council of Ministers can advise the president to dissolve the Lok Sabha on the ground that the House does not represent the views of the electorate faithfully and call for fresh elections. The President may not oblige the Council of Ministers that has lost the confidence of the Lok Sabha.
    • The principle of collective responsibility also connotes that the Cabinet decisions bind all cabinet ministers (and other ministers) even if they differ in the cabinet meeting.
    • It is the duty of every minister to stand by cabinet decisions and support them both within and outside the Parliament.
    • If any minister disagrees with a cabinet decision and is not prepared to defend it, he must resign.
NOTABLE EXAMPLES OF DISAGREEMENTS

  1. B.R. Ambedkar resigned because of his differences with his colleagues on the Hindu Code Bill in 1953.
  2. D. Deshmukh resigned due to his differences on the policy of reorganisation of states.
  3. Arif Mohammed resigned due to his opposition to the Muslim Women (Protection of Rights on Divorce) Act, 1986.

 

  1. INDIVIDUAL RESPONSIBILITY
    • Article 75 – connotes the principle of individual responsibility.
    • It states that the ministers hold office during the pleasure of the president, which implies that the President can remove a minister even at a time when the Council of Ministers enjoys the confidence of the Lok Sabha.
    • However, the President removes a minister only on the advice of the Prime Minister. The PM can ask him to resign or advise the President to dismiss him on account of difference of opinion or dissatisfaction with the performance of a minister.
    • The Prime Minister can ensure the compliance of the rule of collective responsibility by exercising this power.
 “Collective responsibility can be achieved only through the instrumentality of the Prime Minister. Therefore, unless and until we create that office and endow that office with statutory authority to nominate and dismiss ministers, there can be no collective responsibility.”  – Dr. B.R. Ambedkar observed
Consider the following statements: [2013 – I]

  1. The Council of Ministers in the Centre shall be collectively responsible to the Parliament.
  2. The Union Ministers shall hold the office during the pleasure of the President of India.
  3. The Prime Minister shall communicate to the President about the proposals for legislation.

Which of the statements given above is/are correct?

  1. 1 only
  2. 2 and 3 only
  3. 1 and 3 only
  4. 1, 2 and 3

 

    When the annual Union Budget is not passed by the Lok Sabha ? [2011 – I]

    1. The Budget is modified and presented again
    2. The Budget is referred to the Rajya Sabha for suggestions
    3. The Union Finance Minister is asked to resign
    4. The Prime Minister submits the resignation of Council of Ministers.

Explain – If annual union budget is not passed by the Lok Sabha, it is tantamount to no confidence motion. So the govt submits the resignation of his council of ministers.

 

NO LEGAL RESPONSIBILITY IN INDIA

  • Unlike Britain, in India there is no provision for the system of legal responsibility of a minister mentioned in the constitution.
  • System of legal responsibility implies an order of the President for a public act should not be countersigned by a minister.
In Britain, every order of the King for any public act needs to be countersigned by a minister. If the order is in violation of any law, the minister would be held responsible and would be liable in the court.

 

APPOINTMENT OF MINISTERS
  • The Prime Minister is appointed by the President, while the other ministers are appointed by the President on the advice of the Prime Minister.
  • This implies that the President can appoint only those persons as ministers who are recommended by the Prime Minister.
  • A person who is not a member of either House of Parliament can also be appointed as a minister. However, within six months, he must become a member (either by election or by nomination) of either House of Parliament; otherwise, he ceases to be a minister.
  • A minister who is a member of one House of Parliament has the right to speak and to take part in the proceedings of the other House, but he can vote only in the House of which he is a member.

 

CATEGORIES OF MINISTERS
1.Cabinet Minister
2.Minister of State (Independent Charge)
3.Minister of State
4.Deputy Ministers

 

1. CABINET MINISTER:

  • The Cabinet Ministers heads the important portfolios of the Central Government such as the Home Ministry, Finance Ministry, Defence Ministry, External Affairs Ministry etc.
  • Generally the Cabinet Ministers consist of 18 to 25 ministers.
  • Cabinet Ministers attend the crucial meetings and play a crucial role in the policy formation of the nation.

 

2. MINISTER OF STATE (INDEPENDENT CHARGE)

  • The Minister of State performs the same functions and exercises the same powers as Cabinet Ministers do with their dept. and ministries.
  • They are not members of the cabinet. Hence, not entitled to attend the cabinet meetings until they are not invited.
  • Ministers of state (independent charge) are invited in the cabinet meetings when something important related to their departments/ministries is considered by the cabinet.

 

3. MINISTER OF STATE

  • Ministers of State are given the charge of the departments of the ministries headed by the Cabinet Ministers or allotted specific items of work related to the ministries headed by the Cabinet Ministers.
  • By and large these ministers work under the supervision and guidance of the Cabinet Ministers.

 

4. DEPUTY MINISTERS

  • Deputy Ministers are lowest in the rank. They are not given independent charge of the ministries/departments.
  • They are generally attached to the Cabinet Ministers or Ministers of State to help them in their administrative, political and parliamentary duties.
  • Deputy Ministers do not constitute part of the cabinet. Hence, they do not attend the meetings of the cabinet.

 

DEFINITION OF CABINET
  • The Cabinet is the core of the Council of Ministers. It consists of 15-18 members, who are the senior most and in fact most effective ministers of the council.
  • The PM along with the cabinet ministers deliberate and decide various policies of national importance.
  • The cabinet ministers hold the key portfolios such as Home, Defense, External Affairs, Atomic Energy, Petroleum inter alia.
  • As the cabinet ministers jointly form the central decision-making authority of the nation, the Prime Minister selects them with much care.
  • The meetings of the cabinet under the chairmanship of the Prime Minister are held once in a week and in the case of necessity, more than once in a week and even in a day.
Cabinet was inserted in Art. 352 of the Constitution by the 44th Amendment Act 1978. It did not find a place in the original text of the Constitution.

It is the Cabinet and not the Council of Ministers who advises the President.

 

ADVANTAGES OF CABINET
  • It is easier to build consensus
  • More effective discussion and efficient time utilization
  • Less burden on public exchequer – Economic efficiency
  • More priority to secrecy
  • More rational division of work – Large size Council of Ministers ties up too many tongues and less viewpoint is available.

 

CHECKS ON CABINET
  • Legislative check
  • Judicial check through mechanism of judicial review
  • Media and public opinion
  • International opinion
  • Has to ensure global constitutionalism (like treaties, conventions etc.)

 

ROLE OF CABINET
  • Cabinet is the highest decision-making authority in Indian politico- administrative system.
  • Cabinet envisages as chief policy formulating body of the Central government.
  • It is the supreme executive authority of the Central government.
  • He is the chief coordinator of the Central administration.
  • It is an advisory body to the president and its advice is binding on him (president can return advice for reconsideration only at once)
  • Cabinet is the chief crisis manager and thus deals with all exigencies.
  • It deals with all major legislative and financial matters.
  • Cabinet exercises control over higher appointments like constitutional authorities and senior secretariat administrators.
  • Cabinet deals with all foreign policies and foreign affairs.

 

KITCHEN CABINET
  • Every Prime Minister in India has had his ‘Inner Cabinet’–a circle within a circle. During the era of Indira Gandhi, the ‘Inner Cabinet’ which came to be called the ‘Kitchen Cabinet’ was particularly powerful.
  • Kitchen Cabinet consists of an informal body of the Prime Minister and 2-4 influential colleagues in whom he has faith and with whom he can discuss every problem.
  • Not only cabinet ministers but also outsiders like friends and family members of the Prime Minister can include.
  • Members of the kitchen cabinet advise the Prime Minister on important political and administrative issues and assist him in making crucial decisions.
    Kitchen Cabinet is the informal and non-constitutional body (extra-constitutional), unlike CoM which has constitutional status.

    The philosophy of ‘kitchen cabinet’ also exists in the USA and Britain, it is not unique to Indian politico- administrative system.

    • ‘Kitchen Cabinet’ – by Indira Gandhi
    • ‘Dehradun Brigade’ – by Rajiv Gandhi
    • ‘Grand Council of India’ – by L. B. Shastri

 

MERITS AND DEMERITS OF INNER CABINET
MERITSDEMERITS
Due to the small unit, a much more efficient decision-making body than a large cabinet. Reduces the authority and status of the cabinet as the highest decision-making body.
Members can meet more often and deal with business much more expeditiously Circumvents the legal process by allowing outside persons to play an influential role
Helps in maintaining secrecy in making decisions on important political issues.

 

Could induce sense of mistrust among other members of cabinet

 

CABINET VS COUNCIL OF MINISTERS
CABINETCouncil of Ministers
Smaller body of 15 to 20 ministers.Wider body consisting of 60 to 70 ministers.
Includes the cabinet ministers only. It is a part of the CoMIncludes all the three categories of ministers.
Collective functions – It meets, as a body, once in a week to deliberate and take decisions regarding the transaction of government business.No collective functions – It does not meet, as a body, to transact government business.
In practice, it exercises the powers of the Council of Ministers and acts for the Council of Ministers.Theoretically it is vested with all powers.
It directs and guides the Council of Ministers by taking policy decisions which are binding on all ministersIts functions are determined by the cabinet

 

It supervises the implementation of its decisions by the Council of MinistersIt implements the decisions taken by the cabinet.
Inserted by 44th Amendment (1978) in Art. 352. It did not find a place in the original text of the Constitution.

 

Art. 352 only defines the cabinet saying that it is ‘the council consisting of the Prime Minister and other ministers of cabinet rank appointed under Art. 75

 

Art. 352 does not describe its powers and functions.

Role of the cabinet in our politico-administrative system is based on the conventions of parliamentary government as developed in Britain.

 

It is a constitutional body, dealt in detail by the Art. 74 and 75 of the Constitution.

 

Its size and classification are not mentioned in the Constitution.

 

Its size is determined by the Prime Minister according to the exigencies of the time and requirements of the situation.

Its classification into a three-tier body is based on the conventions of parliamentary government as developed in Britain.

 

According to  Salaries and Allowances Act of 1952, it has got a legislative sanction – defines a ‘minister’ as a ‘member of the Council of Ministers, by whatever name called, and includes a deputy minister’.

It enforces the collective responsibility of the Council of Ministers to the Lok Sabha of Parliament.

 

It is collectively responsible to the Lok Sabha of the Parliament

 

POWERS OF THE UNION Council of Ministers

1.EXECUTIVE POWERS
2.LEGISLATIVE POWERS
3.FINANCIAL  POWERS

 

1.EXECUTIVE POWERS

  • Real Executive: The Council of Ministers is the real executive. All executive powers of the President of India are really used by the Council of Ministers.
  • Policy-Making: The Cabinet formulates the policies which are to be submitted to the Parliament for approval. The Cabinet/PM coordinate and control the working of all departments of the government. The Cabinet formulates the foreign policy as well as all domestic policies deemed necessary for all round development of the country.
  • Running of Administration: The Cabinet runs the administration in accordance with the laws and policies. It has the responsibility to maintain law and order in the country. The day to day decisions are taken by the departments in accordance with the policies of the Cabinet.
  • Functions during an Emergency: The exercise of Emergency Powers by the President is always done in accordance with the advice of the Prime Minister and his Council of Ministers. The President can declare an emergency only under the written advice of the Cabinet.
  • Appointment Making Powers: The President makes all the higher appointments – Governors, Ambassadors, Envoys, High Commissioners, Consuls, Judges of the Supreme Court and High Courts, Military Commanders, members of UPSC, Election Commission, Planning Commission and others, in accordance with the advice of the PM and the Cabinet.
  • Treaty-Making and Defence Functions: All treaties and other international agreements are negotiated and signed by the ministers on behalf of the President. To prepare for the defence of the country through the organization and modernization of the Army, Air Force and Navy, and by formulating a suitable defence and nuclear policy, is a fundamental function of the Cabinet.

 

2. LEGISLATIVE POWERS

  • Though the legislative powers of the Union are in the hands of the Parliament, the Council of Ministers plays an important role in the sphere of legislation.
  • The ministers are both the heads of government departments as well as members of the Parliament. They take full and active part in the working of the Parliament.
  • Most of the bills are introduced and piloted by them. 95 % of the time of the Parliament is utilized for handling governmental business, which is managed by the ministers.
  • A bill not supported by the Council of Ministers cannot get passed from the Parliament because the ministry enjoys the support of the majority in Parliament.
  • If the Lok Sabha either passes a bill not supported by the Council of Ministers or rejects a bill supported by it, or rejects the budget of the Cabinet, it is taken to be a vote of no-confidence against the government and the entire Council of Ministers resigns.
  • While doing so the PM/Cabinet can advise the President to dissolve the Lok Sabha.
  • The President summons, prorogues or dissolves the Parliament in accordance with the advice of the Cabinet.
  • The Prime Minister can recommend to the President a dissolution of the Lok Sabha and for the holding of fresh elections.
  • The President always accepts such advice. The Cabinet can use the threat of dissolution for getting support from the Lok Sabha.
  • The Council of Ministers is, undoubtedly, collectively responsible before the Lok Sabha and the latter can remove it by passing a vote of no-confidence.
  • A ministry backed by a majority can have its way in the Parliament. Normally, it is the Cabinet (backed by a majority) which really controls the Working of Parliament.

 

3. FINANCIAL POWERS

  • The Parliament is the custodian of national finances. However, the Cabinet plays a leading role in this sphere also.
  • The budget is prepared by the Cabinet. It lays down the fiscal policies of the government. The Cabinet gets the budget passed from the Parliament.
  • The Cabinet runs the financial administration in accordance with the provisions of the budget as passed by the Parliament.
  • All proposals for additional taxes come from the Cabinet. Money Bills (Art. 110) can be introduced only in the Lok Sabha and only by the ministers.
  • The Parliament can modify financial bills but only with the consent of the Cabinet. Any action of the Parliament against the wishes of the Cabinet amounts to a vote of no – confidence against the Government.

 

POSITION OF THE UNION COUNCIL OF MINISTERS
  • In nutshell, the above account of the powers and functions of the Council of Ministers reveals the strong and central position that it occupies as the real and powerful executive in the Indian political system.
  • All the powers of the President of India are really exercised by the Council of Ministers.
  • Within the Council of Ministers, the Cabinet is the most powerful institution. It is the central institution which uses all these powers.
  • The Cabinet directs, supervises and controls the formulation of national policies and the running of the administration.
  • As the maker of all policies, cabinet is the director of administration and the supreme coordinator of government activity, the Cabinet enjoys an enviable position.
  • It is indeed “the steering wheel of the ship” of the state. It is the centre of power.