COUNCIL OF MINISTERS.

(union)

Article 74 or article 75 is to be read with all the conventions operating in parliamentary type of
government to give a complete and leading picture of the system of government envisaged by the
constitution

1. 74 : On a true interpretation of the expression in the context of the relevant provisions of the
constitution it becomes abundantly clear that the function of ministers or Council of
Ministers is not of merely giving advice.
2. The 42nd amendment reproduces the position which it has always been all along as an
essential requisite of the parliamentary form of government. The intent of the author was to
recognise and strengthen it.
3. The following provisions of the constitution may be cited in support of the proposition that it
is the Council of Ministers which makes decisions relating to the administration of the affairs
of the union and that its decisions are binding on the president:
Article 75(3) : for the policy decisions of the government the Council of Ministers is
answerable to parliament (house of people). But there is no provision in the constitution
which makes the president responsible to the parliament for the acts of the government.
article 78 (a) : communicating the decisions of the council
article 78(c): submit for the consideration of the Council of Ministers
article 74 with article 163 (1) : constitution has explicitly provided for a provision where it
wants the executive head(governor) to reject the advice of the ministers

4. President can send the bill for( to be referred back for cabinet’s advice )for reconsideration .
Cabinet can respect the decision of the president, drop its decision after reconsideration or
press it for acceptance by the president without any change .
5. 74 (2) : Immunity from disclosure to courts is restricted to the actual advice standard to the
president.
Hey the rest of the file and all the records forming part thereof are open to in camera
(private) inspection by the court .
It is no bar to the production of all the material on which the ministerial advice is based

6. Even a non member can be included in the Council of Ministers the only constitutional
requirement is that such a non member must get elected to either House of parliament
within 6 months of entering upon his office As a minister (example Manmohan Singh finance
minister). The necessary requisite is that he possesses necessary qualification and is not
disqualified for being a member of the legislature under the constitution. It has been ruled
that a non member who has failed to get himself elected in 6 consecutive months cannot be
reappointed as minister. Repeatedly appointing a non member as minister the court
observed would defeat the basic principle of representative and responsible government

Attorney-General for India (76)

1. BY PRESIDENT ---- SC JUDGE---- BEYOND 65 years CAN BE APPOINTED (state of
Uttaranchal vs. BS chaufal)
2. Functions assigned:
By president :
a. has been assigned the duty to appear on behalf of the Government of India in all
cases in which Government of India is concerned .
 he shall appear in all cases in the Supreme Court in which the Government of
India is a party . to appear in any High Court in any case in which the
Government of India is concerned
b. represent Government of India in any reference made by the president to the

Supreme Court under article 143(consult Supreme Court) of the constitution.

c. cannot hold a brief in case or advice against GOI or defend accused person in
criminal proceedings without the permission of Government of India
d. shall not accept appointment as director in any company without the previous
permission of the Government of India
e. has the right to speak in either House of the parliament in that case he is entitled
to the privileges and immunities of a member of the parliament but he has no
right to vote in the parliament

3. In India the attorney general has not so far been a member of the Council of Ministers
4. The advise standard by the attorney general in discharge of its duties and constitutional
obligations cannot be judiciary reviewed by the court for it would not be in public interest to
raise and create controversies regarding the protected communications between the state
and its council. (Government of A.P. vs Pushpendra Kaur AIR 2004)
3. But there is a practice that they he also resigns on the resignation of the Council of Ministers.

COUNCIL OF MINISTERS (STATE)

1. JUDICIARY cannot intervene in the matter relating to appointment or allocation of ministries.
2. Tribunal welfare
3.

ADVOCATE GENERAL FOR THE STATE : (165)

1. same as 76 but RIGHT TO AUDIENCE has not been provided.
2. 177 : Can take part in the proceedings of the state legislature.
3. The constitutional post of the Advocate General is One and only one
4. can have counsel ,additional AG(constitutional power /validity )under 162
5. A statement made by the Advocate General in the court binds the government while that
may not be true about the statement of account still appearing for the state unless such
council has written instruction from the state .
6. He can speak and participate in the proceedings of the houses of the state legislature but
cannot vote
7. Do enjoy all the privileges available to the member of the legislature
8. The advice tendered cannot be judicially reviewed by the High Court under article 226.
9.

10
Ordinance
Appoint com cm ag hc fc
Bill assent money
Pardon
Stae budget
Confidence
Anti defection law