Contents

Headings Page No
1.Introduction
President
Vice President
Council of Ministers
2.Article 74
3.Court Case S.R. Bommai v. Union of India (1994)
4.Article 163(3)
5.Relationship between The President
And the Council of Ministers
Table of Case
1. S. R. Bommai v. Union of India (1994)
Introduction
The Union executive consists of the President, the Vice-President, and
the Council of Ministers with the Prime Minister as the head to aid and
advise the President.
President
The President is elected by members of an electoral college consisting of
elected members of both Houses of Parliament and Legislative
Assemblies of the states in accordance with the system of proportional
representation, by means of single transferable vote. To secure
uniformity among state inter se, as well as parity between the states as a
whole, and the Union, suitable weightage is given to each vote. The
President must be a citizen of India, not less than 35 years of age, and
qualified for election as member of the Lok Sabha. His term of office is
five years, and he is eligible for re-election. His removal from office is
to be in accordance with procedure prescribed in Article 61 of the
Constitution. He may, by writing under his hand addressed to the Vice-
President, resign his office.
Executive power of the Union is vested in the President, and is exercised
by him either directly or through officers subordinate to him in
accordance with the Constitution. Supreme command of defence forces
of the Union also vests in him. The President summons, prorogues,
addresses, sends messages to Parliament and dissolves the Lok Sabha,
promulgates Ordinances at any time, except when both Houses of
Parliament are in session, makes recommendations for introducing
financial and money bills and gives assent to bills, grants pardons,
reprieves, respites or remission of punishment or suspends, and remits or
commutes sentences in certain cases. When there is a failure of the
constitutional machinery in a state, he can assume to himself all, or any
of the functions of the government of that state. The President can
proclaim emergency in the country if he is satisfied that a grave
emergency exists, whereby security of India or any part of its territory is
threatened, whether by war or external aggression or armed rebellion.

Vice-President
The Vice-President is elected by members of an electoral college
consisting of members of both Houses of Parliament in accordance with
the system of proportional representation by means of single transferable
vote. He must be a citizen of India, not less than 35 years of age, and
eligible for election as a member of the Rajya Sabha. His term of office
is five years, and he is eligible for re-election. His removal from office is
to be in accordance with procedure prescribed in Article 67 b.
The Vice-President is ex-officio Chairman of the Rajya Sabha and acts
as President when the latter is unable to discharge his functions due to
absence, illness or any other cause, or till the election of a new President
(to be held within six months when a vacancy is caused by death,
resignation or removal or otherwise of President). While so acting, he
ceases to perform the function of the Chairman of the Rajya Sabha.

Council of Ministers
There is a Council of Ministers headed by the Prime Minister to aid and
advise the President in exercise of his functions. The Prime Minister is
appointed by the President, who also appoints other ministers on the
advice of Prime Minister. The Council is collectively responsible to the
Lok Sabha. It is the duty of the Prime Minister to communicate to the
President all decisions of Council of Ministers relating to administration
of affairs of the Union and proposals for legislation and information
relating to them.
The Council of Ministers comprises Ministers who are members of
Cabinet, Ministers of State (independent charge), Ministers of State and
Deputy Ministers.
Union Council of Ministers: Organisation, Power and Position of the
Council of Ministers!
Article 74 of the Constitution of India provides for the real executive i.e.
the Union Council of Ministers with the Prime Minister as its head.
Theoretically the Council of Ministers and Prime Minister are to aid and
advise the President in the exercise of his powers. However in actual
practice, in reality all powers of the President are used by the PM and his
ministry… The President is bound by the advice of the PM and his
Council of Ministers.
Organisation of the Council of Ministers:
Art. 75 of the Constitution lays down following basic rules regarding the
organisation of the Union Council of Ministers:
(a) The Prime Minister is appointed by the President. All other ministers
are appointed by the President upon the advice of the Prime Minister.
(b) The ministers hold office during the pleasure of the President.
(c) The Council of Ministers is collectively responsible to the House of
the People (Lok Sabha).
(d) Before a minister takes over his office, the President administers to
him the oath of office and secrecy.
(e) The salaries and allowances of ministers are such as the Parliament
determines by law.

Process of Formation of the Union Council of Ministers:

The process of formation of the Council of Ministers begins with the
appointment of the Prime Minister by the President. After the election of
each new Lok Sabha, the President appoints the leader of the majority in
Lok Sabha, as the Prime Minister.
After his appointment, the Prime Minister prepares the list of the persons
whom he recommends for appointment as ministers. The President
appoints all other ministers upon his recommendation. The President
always accepts the advice of the Prime Minister.
Further, acting upon the advice of the Prime Minister, the President
distributes portfolios among the ministers. The Prime Minister is the sole
judge to decide who shall be a minister? Which portfolio a minister will
hold? and Who will be a Cabinet Minister, or a Minister of State or a
Deputy Minister ?
The Constitution gives a free hand to the Prime Minister to constitute the
Council Ministers. Normally only a member of either House of the
Parliament is appointed as a minister. However, the Prime Minister can
also appoint a non-member as a minister, but such a minister has to get
the membership of either house, (through an election or a nomination)
within six months of his appointment. In case of failure to do so within 6
months, the concerned minister has to quit his minister-ship after the
expiry of six months.

Term of Office:
Theoretically ministers hold office during the pleasure of the President.
It really means so long as they continue to enjoy the confidence of the
majority in the Lok Sabha. The Prime Minister can, at any time demand
a resignation from any minister and the latter has to comply.
Prime Minister can recommend to the President the dismissal of any
minister and the President always acts upon his advice. The resignation
of the Prime Minister means the resignation of the entire Council of
Ministers.
Thus, the tenure of the ministry or a minister is not fixed. A
ministry/each minister remains in office so long as it enjoys the
confidence of the majority in Lok Sabha, or so long as the Prime
Minister does not resign. The maximum term for which a ministry can
remain in office in 5 years, i.e., for one full term of the Lok Sabha. After
every new general election to the Lok Sabha, a new ministry has to be
constituted even if the same party which enjoyed the majority in the
previous Lok Sabha, may return with a majority in the new Lok Sabha.
Oath of Office and Secrecy:
Every new minister has to undertake the Oath of Office and Secrecy
before entering into his office. The oath is administered to him by the
President of India.
Functions during as 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
advice of the Cabinet. He takes all steps for meeting the emergency in
accordance with the advice of the Prime Minister and his Council of
Ministers. The real responsibility to meet an emergency is 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 prime Minister 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 organisation and modernisation of the Army, Air
Force and Navy, and by formulating a suitable defence and nuclear
policy, is a fundamental function of the Cabinet.
Thus the Council of Ministers exercises real executive powers. In its
working, it is dominated by the Prime Minister and the Cabinet.
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 Prime
Minister/Cabinet can advice 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 an 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. But such an eventuality cannot arise so long as the
Cabinet enjoys the support of the majority in the Lok Sabha. 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.
Position of the Union Council of Ministers:
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 body.
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, 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 and the most powerful institution of the Indian
political system.

Article 74 
Article 74 of the Constitution of the Republic of India provides for
a Council of Ministers which shall aid the President in the exercise of his
functions.
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 advises. (The bolded text was
added in by the Forty-second Amendment of the Constitution of
India and came into effect on 3 January 1977.
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 advises tendered after such
reconsideration. (This para is added by the Forty-fourth Amendment of
the Constitution of India in the year 1978)
(2) The question if any, and if so what, advice was tendered by Ministers
to the President shall not be inquired into in any court.
Before the 42nd amendment, Article 74(1) stated 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". However, there
was a slight ambiguity whether the advice of the Council of Ministers is
binding on the President. Forty-second Amendment of the Constitution
of India (1976) made it explicit that the President shall, "act in
accordance with such advice". The amendment went into effect from 3
January 1977.
The 44th Amendment (1978) however added that the President can send
the advice back for reconsideration once. But if the Council of Ministers
sends the same advice again to the President then the President must
accept it. The amendment went into effect from 20 June 1979.[1]
Court Cases
S. R. Bommai v. Union of India (1994) 1
Main article: S. R. Bommai v. Union of India

1
S. R. Bommai v. Union of India (1994)
In this case Supreme Court made some very important pronouncements
regarding scope and effect of Clause (2) of Article 74. Article 74(2)
barred courts from inquiring into the advice given by Council of
Ministers to President. In a way the advice of Council of Ministers was
kept out of Supreme Court's power of Judicial Review by this article. In
this regard Supreme Court held 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 advise was
given, and whether it was relevant for such advice and the President
could have acted on it.
The court also said that, when the it undertakes an inquiry into the
existence of such material, the prohibition contained in Article 74(2)
does not negate their right to know about the factual existence of any
such material.
The court also made clear, through para 83 of the judgement, that Article
74(2) gives freedom to the President by making his order unquestionable
on the ground that it was either contrary to the advice tendered by the
ministers or was issued without obtaining any advice from the ministers.
The object of Article 74(2) was only to make the question whether the
President had followed the advice of the Ministers or acted contrary
thereto, non-justiciable. When the union cabinet is unhappy with the
unconstitutional functioning of the President, impeachment by the
Parliament is the only recourse since the legal action by the courts is not
possible per Article 74 (2) and Article 361.
The impeachment action by parliament is valid only when the charges of
violating the constitution by the president are proven by a court or
tribunal which is designated by either house of Parliament with two-
thirds majority of its total membership per Article 61. President, need
not step down or can approach the Supreme Court for restoring his post
as long as he has not violated the constitution (i.e. not obliging the
unconstitutional advise of the ministers even after sending back for
reconsideration).
Article 163(3)
Article 163(3) is applicable to the Governors of states exactly similar to
Article 74(2). When cabinet ministers / meeting minutes are not
supporting the advice given to the Governor, he can act in his discretion
without violating the constitution.

Relationship Between the President and the Council of

Ministers

After we have seen all of the above description about the President the
Vice President and the Council of ministers,we can now understand the
Relationship between the President and the Council of Ministers and
how they are interlinked with each other and their work.In this article we
will be discussing briefly about the relationship between the President
and the Council of Ministers.
1) Before the passing of the Forty-Second Constitution Amendment
Act it was not clear whether it was binding for the President to
accept the advice of the Council of Ministers or not. The
Amendment Act made it obligatory for the President to act on the
 advice of the Council of Ministers, though there was wide criticism
about this amendment.
2) The critics were of the view that this should have been left to
conventions and not specifically provided in the constitution.
Forty-Fourth Constitution Amendment Act changed the situation a
bit.
3) The President can now suggest the Council of Ministers to
reconsider the advice tendered to him about a proposed Bill and if
the former again advises the latter on the earlier lines then the
President will have to accept the advice.
4) Any Minister of the Council of Ministers can inform him about the
decision of his Ministry on any particular measure, but the
President has every right to suggest that the matter should be
placed before the Council of Ministers whose approval should be
sought.
5) Under the Constitution the Council of Ministers, including the
Prime Minister, holds office during the pleasure of the President.
In other words, the President can appoint or dismiss or remove any
Minister at his discretion.
6) But in actual practice the President is bound to invite only the
leader of the majority party in the Lok Sabha to form the
government. He is only to appoint those persons as Ministers
whose name are recommended by the Prime Minister.
7) The Ministers hold office, not during the pleasure of the President
but that of the House. As long as the party enjoys the confidence of
the House and the Prime Minister is willing to keep a person in the
Council of Ministers, the President has no other alternative but not
to disturb the existing arrangement.Of course, President’s
discretion to some extent arises when there is no single political
party in the Lok Sabha with a clear cut majority.
8) The President can then use his discretion and invite a person who,
in his opinion, shall be in a position to form government. After
 political instability that came in the country in 1979, after the fall
of Janata governments there were some speculations that at the
centre also an era of coalition government will usher and that will
give the President an opportunity to use his discretionary powers.
After the fall of Morarji Government in 1979 when Congress (I) the then
largest single party in the Lok Sabha declined to form the Government,
the President ignored the claim of Shri Jagjiwan Ram and instead invited
Choudhry Charan Singh to form the government. But after 1980
elections the electorates returned Congress (I) with massive majority in
the Lok Sabha and this fear got eliminated.
In 1989 when elections were held in the country for the Lok Sabha,
ruling Congress (I) was defeated. It could win about 200 Lok Sabha
seats but emerged as the single largest party. Newly formed National
Front- emerged as the second largest party.
Some political jurists opined that the President should use his discretion
and not invite Congress (I) to form the government though it was single
the largest party, because the people had disowned it at the polls. That
situation, however, did not arise because the Congress (I) did not stake
its claim to form government.
The President then used his discretion and invited leader of the National
Front V.P. Singh to form the government and show his majority within
30 days in the Lok Sabha. It is, however, the duty of the Council of
Ministers to keep the President informed of its decisions.
Since in India there is the system of joint and collective responsibility,
therefore, what the President is supposed to know is the decision of the
Council of Ministers as a whole. He is not bound to accept the advice of
any single Minister. The decisions of the Council of Ministers are, of
course, communicated to him through the Prime Minister.
It was this right to information which created a rift between Prime
Minister Rajiv Gandhi and President Giani Zail Singh. The latter had a
grudge that the former was not keeping him fully informed about affairs
of the state. The differences were so wide that the President once
threatened to dismiss the Government, though the Prime Minister
enjoyed the confidence of the Lok Sabha.
In India a very difficult situation about his right to dismiss a member of
the Council of Ministers was created by President Zail Singh. During
last months of his office, the President felt irritated about some of the
criticisms made by Prof. K.K. Tiwari, a Minister in the Council of
Ministers headed by Rajiv Gandhi. He had thus earned President’s
displeasure.
The annoyance was so deep that the President suggested the Prime
Minister to drop him from the Council of Ministers or otherwise he will
dismiss him on his own.
Sensing the gravity of the situation, the Prime Minister dropped Prof.
Tiwari from his Council of Ministers and thus the crisis were averted.
Had the Prime Minister not dropped Prof. Tiwari, the crisis have perhaps
taken a different turn and a new precedent would have been set in the
parliamentary history of India.

CONCLUSION
India has adopted the parliamentary form of government. But the
adoption of parliamentary form of government has not happened through
a process of gradual evolution, as in England. In India, this form of
government was deliberately adopted by the Constituent Assembly.
Since adoption of the Constitution, over the years, especially after 1977,
India is witnessing a phase of political transition. There has been a
mushrooming growth of political parties. In spite of adoption of the first-
past-the-post system, electorate is divided and is returning hung
Parliament and Legislative Assemblies. Under Art. 75(1) of the
Constitution, the President has the power to appoint the Prime Minister
and under Art. 164( 1) the Governor has the power to appoint the Chief
Minister of a State. However, apart from Art. 75(3) and 164(2), which
mention about the principle of collective responsibility of the council of
ministers to the respective House, there is no other guidance provided as
to whom the President or the Governor should appoint as the Prime
Minister or the Chief Minister. The Constitution is completely silent as
to whom the President should invite to form the government in case of
hung parliament. In case of clear electorate mandate, the choice for the
President and the Governor is obvious. The leader of the majority party
in the House of the People or the State Legislative Assembly is
appointed. With the fractured electoral mandate, where no political party
has a clear majority in the House, the exercise of this power by the
President and the Governor has been becoming increasingly difficult.
This work therefore intended to revisit the constitutional provisions with
regard to formation of ministries at the Union and State level and the
working of these constitutional provisions in the past 63 years in the still
evolving political scenario in India. The basis issue, the fulcrum, around
which the other ancillary issues revolve is whether there are adequate
constitutional provisions and constitutional conventions to guide the
President and the Governor in choosing and appointing Prime Minister
and the Chief Minister in situations of fractured electoral mandate - and,
if not, what mechanism should be provided, within the existing
constitutional framework of federal and parliamentary democratic
system, to provide guidance to the President and the Governor in
appointment of the Prime Minister and the Chief Minister in situations
of fractured electoral mandates.