This article is written by Ishan Arun Mudbidri, pursuing B.A.LLB from Marathwada Mitra Mandal’s Shankarrao Chavan Law College, Pune. This article talks about the constitutional provisions regarding the Prime Minister and Chief Ministers in India.
Table of Contents
What is Article 75 of the Constitution
Article 75 of the Constitution talks about the office of the Prime Minister and the Council of Ministers in India.
The Prime Minister of India
India is a Parliamentary form of Government, the Prime Minister holds the most important post in the country. He is the de facto executive of the country. Article 75 of the Constitution states that The Prime Minister of India is appointed by the President. The political party contesting the elections appoints a representative from amongst the members of the party to be the PM candidate. If the party wins a majority of the seats in the Lok Sabha elections, then the President appoints the elected representative of the winning party as the Prime Minister of the country. If no party holds a majority in the elections, then the President appoints the Prime Minister at his own discretion.
Who can be appointed as the Prime Minister
The person eligible of being the Prime Minister of India should be :
- A citizen of India.
- A member of either Lok Sabha or the Rajya Sabha.
- Should have completed 30 years of age if a Rajya Sabha member and 25 years if a Lok Sabha member.
Powers and functions of the Prime Minister
- The Prime Minister is the head of the Government.
- The Prime Minister is the leader of the Council Ministers. He decides the portfolios of each Minister.
- The Prime Minister controls the functioning of the Ministers and is the chairman of the Cabinet of Ministers.
- The Prime Minister is the chief advisor of the President. He advises the President in appointing the Attorney General, Solicitor General, Chairman of the Union Public Service Commission, Chairman of the Finance Commission, and other important authorities.
- The Prime Minister is the leader of the ruling party.
- He is the official representative for India who helps in implementing foreign policies.
Council of Ministers
Article 74 of the Constitution states that the Prime Minister shall head a Council of Ministers. However, the office, oath, appointment, and other functions of the Council of Ministers are mentioned under Article 75.
Provisions mentioned in Article 75 for the Council of Ministers
- Article 75(1) states that the Council of Ministers on the advice of the Prime Minister shall be appointed by the President. Article 75(1)(a) states the limit on the total number of Ministers, including the Prime Minister, which is 15% of the total members in the lower house of Parliament i.e. Lok Sabha. Article 75(1)(b) was added in the 91st Amendment Act, it talks about the disqualification of the Ministers on the grounds of defection.
- Article 75(2) states that the Ministers enjoy their powers as long as the President holds office.
- Article 75(3) mentions that all the Ministers collectively shall be responsible to the Lok Sabha.
- Article 75(4) talks about the form of oath.
- Article 75(5) states that a Minister will resign from office if he/she is not a member of either the Lok Sabha or the Rajya Sabha for a period of six months.
- Lastly, Article 75(6) talks about the salaries and other allowances given to the Ministers.
Important case laws
In the case of S.P Anand v H.D Deve Gowda (1996), the Supreme Court held that the Constitution does not show any kind of discrimination so, the form of oath mentioned in Article 75(4) is the same for any Minister and also the Prime Minister.
In the case of U.N.R Rao v Smt. Indira Gandhi (1971), the court observed that the principle of collective responsibility mentioned under Article 75(3) applies to all the Ministers, and the Council of Ministers should enjoy the confidence of the Lok Sabha following this principle.
In the case of Manoj Narula v Union of India (2014), the court observed that the Prime Minister is bound to act according to the highest standards of public integrity. The court further advised the Prime Minister and Chief Ministers not to include legislators facing criminal charges against them. But since the Constitution has no such provisions, the court’s mention was mere advice.
What is Article 164 of the Constitution
Like the Prime Minister, the Chief Minister is a de facto executive of the State. Article 164 of the Indian Constitution lays down the provisions for the Chief Ministers and the Council of Ministers of each State. However, the Governor cannot appoint any random person as the Chief Minister.
Powers and functions of the Chief Ministers
India has 28 States and eight Union Territories (including Jammu and Kashmir after the abolition of Article 370 Each state has a Chief Minister who is appointed by the Governor of the State.
Who can be appointed as the Chief Minister
A person who has attained the age of 25 years, is a citizen of India, and is a member of the state legislature can be eligible to become a Chief Minister. However, a person who is not a member of the state legislature can also be considered for the post of CM still for that, the person must get elected as a member of the state legislature within a period of six months from the date of his/her appointment.
How is a Chief Minister appointed
The party which wins the assembly elections selects a Chief Ministerial candidate amongst its members. Then the Governor appoints the CM and forms the Government. If no party has attained a majority in the elections, the Governor asks the single largest party to form the Government. If the party does not approve, then the Governor can ask the other parties in order of precedence. The Governor can take the other option and choose the CM according to his observations and analysis.
Functions of the Chief Ministers
- The Chief Minister is the head of the State.
- He decides the portfolios for the other Council of Ministers and controls the functioning of the Ministers.
- The Chief Minister can request a Minister to resign, “and if the Chief Minister resigns, the whole cabinet has to resign.”
- The Chief Minister announces the State Government’s policies in the state legislature and can also recommend the Governor to dissolve the legislative assembly.
- He is the head of the zonal council and the chairman of the State Planning Commission.
Provisions under Article 164 with regard to the State Council of Ministers
Article 164 has similar provisions for the State Council of Ministers as mentioned under Article 75.
- Article 164(1) states that the Council of Ministers in the state is appointed by the Governor on the advice of the Chief Minister. Further, in the states of Jharkhand, Chhattisgarh, Madhya Pradesh, and Orissa there will be a Minister of tribal welfare who will also be in charge of the welfare of the scheduled castes and backward classes. Article 164(1)(a) states that the total number of ministers in a state shall not exceed the 15% limit of total ministers in the state. Article 164(1)(b) of the Act was added in the 91st amendment wherein the disqualification of a minister of state was mentioned.
- Article 164(2) talks about the collective responsibility of the state’s Council of Ministers.
- Article 164(3) talks about the forms of an oath that are mentioned in the Third Schedule of the Constitution.
- Article 164(4) states that a Minister who is not a member of the state legislature for a period of six months shall resign from office.
- Article 164(5) talks about the salaries and other allowances given to the state Council of Ministers.
The Anti Defection Law
When analyzing Article 75 and Article 164 of the Constitution, the Anti-defection law should be discussed. The anti-defection law was enacted in the year 1985 through the 52nd Amendment Act of the Constitution. Due to this, the 10th Schedule in the Constitution was added. According to this law, a member of Parliament or a member of the state legislature is said to have defected if he/she resigns from the party or disobeys the party while voting. The anti-defection law amended Articles 75, Article 164, Article 101, Article 102, Article 190, and Article 191 of the Indian Constitution.
Features of the law
According to the law, a Minister shall be disqualified from being a member of either house of Parliament and shall also be disqualified from the state legislative assembly if he is deemed to have defected under the Tenth Schedule.
Exceptions to the law
The Ministers can get immuned from defection under certain circumstances.
The provisions of this law won’t apply when a party decides to merge with another party. Though, the condition here is that the ⅓ thirds or at least ⅔ thirds of the party members are not against this merger. In this case, a person who wants to merge and a person who doesn’t want to merge both won’t face disqualification of defection.
Provisions of the Constitution in context to this law
We already know about Article 75(1)(a) and Article 164(1)(a) which talk about defection and were amended under the 91st Amendment Act. However, there are other constitutional provisions that come under the ambit of the anti-defection law.
- Article 102(2) states that a person shall be disqualified from being a member of the Lok Sabha or the Rajya Sabha if he is disqualified under the Tenth Schedule.
- Article 191(2) states that a person shall be disqualified from being a member of the state legislature if they are disqualified under the Tenth Schedule.
- Article 361-B states that a person shall be denied from holding any remunerative political post if he/she has been disqualified under the Tenth Schedule.
Criticism faced by the law
The Anti-defection law was established to maintain a stable democratic government in India so that the members of the political parties do not change their sides. According to the law, the members of the political parties have to vote based on how the party wants to vote and not how they individually want to vote. This can create a sense of discomfort among the members and create rivalries amongst the party members. The defection law might also hurt the freedom of speech and expression of the members as they cannot see for their gain and must act morally for the benefit of the party.
Conclusion
Since the posts of the Prime Minister of the country and the Chief Ministers of the states are the most important in the executive structure of the country, they are dealt with in great detail in the structure of the Constitution. The appointment of the Council of Ministers and the oath-taking has also been outlined in the Constitution. With such clear guidelines in the Constitution, the task of the President and the Governor becomes a little easy. But as democracy progresses, new problems crop up requiring amendments to the laws and debates and discussions.
References
- https://indiankanoon.org/doc/1324537/
- https://www.prsindia.org/theprsblog/anti-defection-law-explained
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