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This article has been written by Oishika Banerji of Amity Law School Kolkata. This article discusses the Central Council of Ministers in detail. 

Introduction

India has been ornamented with the parliamentary system of government which includes the Prime Minister, and his Council of Ministers being vested with the responsibility of the executive of the nation to govern India’s administrative structure. The Central Council of Ministers plays a key role in helping the ruling government to function in a better way taking into account the increasing complexities of democracy. With a country of 2nd largest population in the world, India is governed by its supreme law, the Constitution of India, 1950 which expressly lays down provisions for the Council of Ministers under Articles 74, and 75 providing with the status of the Council of Ministers, and their appointment, tenure, responsibility, qualification, oath and salaries and allowances respectively. This article provides a detailed analysis of the group of soldiers working behind the Prime Minister with recognition as the Council of Ministers. 

The constitutional recognition

As mentioned before, Articles 74, and 75 of the Indian Constitution sketch out the structure of the Central Council of Ministers. Articles 77, 78, and 88 are also certain provisions that are associated with the Council of Ministers which have been discussed hereunder.

Article 74 of the Indian Constitution 

Article 74 of the Constitution of India deals with the function of the Council of Ministers which is to aid and advise the President of the nation. The provision reads as:

  1. The Prime Minister along with the Council of Ministers will provide aid and advise the President will act in accordance with such advice in order to execute his/her functions. 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 advice tendered after such reconsideration.
  2. Any confusion concerning the first point will not be a subject-matter of the courts.

It is to be noted that although the Council of Ministers can assist the President in executing his functions, such advice or assistance is subject to reconsideration if asked by the President. 

Article 75 of the Indian Constitution

Article 75 of the Indian Constitution concerns other provisions associated with the Council of Ministers consisting of six clauses namely:

  1. While the President appoints the Prime Minister, the Council of Ministers is to be appointed by the President in alignment with the Prime Minister’s advice.
  2. A minister is supposed to hold his office the way the President wants.
  3. The Central Council of Ministers is collectively responsible to the House of People, or the Lok Sabha.
  4. The responsibility of administering oaths of office, and of secrecy of the ministers according to the procedure provided in the Third Schedule vests of the President. 
  5. For a minister to be part of the Central Council of Ministers, has to be a member of either of the Houses of Parliament for a minimum period of six consecutive months. Absence of which will cease the individual to be a minister.
  6. The salaries and allowances of Ministers shall be such as Parliament may from time to time by law determine and, until Parliament so determines, shall be as specified in the Second Schedule The Attorney General for India.
  7. The 91st Amendment Act, 2003 brought in two addition to Article 75 namely:
  1. The Prime Minister, and the Council of Ministers, constituting the total number of ministers shall not exceed 15% of the total strength of the Lower House of the Parliament.
  2. Members of a political party who have been disqualified on grounds of defection will be disqualified to be designated as a minister, irrespective of whichever House of the Parliament the member belongs to. 

Article 77 of the Indian Constitution

The provision for the conduct of the business of the Government of India has been incorporated under Article 77 of the Indian Constitution that provides primary focus on the President of India who has the power to have his name on every executive action taken by the Indian government. Clause 3 of Article 77 states that it is the President who will be responsible for preparing governing rules for business transactions and allocating such business transactions among the ministers as, and however the President feels. 

Article 78 of the Indian Constitution 

The duties of the Prime Minister have been envisaged in Article 78 of the Constitution of India. The duties of the Prime Minister have been listed hereunder:

  1. It is the responsibility of the Prime Minister to keep the President well informed about the decisions undertaken by the Council of Ministers in association with administrative matters with legislation proposals. 
  2. The Prime Minister shall furnish certain administrative information concerning Union affairs to the President as and when he demands. 
  3. 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 of the Constitution of India 

Article 88 of the Indian Constitution talks about the rights of the ministers with respect to the Houses of Parliament. Every Minister and Attorney General of India shall have the right to speak in, and otherwise participate in, the proceedings of either House, any joint sitting of the Houses, and any committee of Parliament to which he may be named a member, but shall not be entitled to vote for Officers of Parliament by virtue of this article. 

Nature of advice by ministers

It is by the nature of the advice provided by the Council of Ministers that the relationship between the President and the former can be determined. Article 74 of the Indian Constitution lays down that the Prime Minister with his Council of Ministers is to aid and advise the President to execute his functions. Further, by the 42nd, and the 44th Constitutional Amendment Act, this advice was made binding on the President. The nature of advice has been excluded from judicial review as well. All of these reflect on the fact that the relationship between the President and the Council of Ministers is confidential by nature. The language of Article 74 is mandatory by nature, and therefore the President has to follow the advice given by the Prime Minister, and the Council of Ministers, in order to function. 

Appointment and composition of ministers

As has been discussed above, both appointments of the Prime Minister and the Council of Ministers are done by the President of India. It is only in the latter’s case that the President has to consult the Prime Minister. Therefore, in the case of the appointment of the Council of Ministers, the Prime Minister’s recommendation holds greater value. Ministers are appointed on two grounds:

  1. They are members of either of the Houses of the Parliament;
  2. If they are not members of the Parliament Houses, then within a span of six months he/she must become a member by means of nomination, or election. 

The Council of Ministers comprises of three categories of ministers namely:

  1. The Cabinet Ministers: Responsible for important ministries of the government such as defence, education, health, textile, etc, and deciding on policies thereby assisting the Prime Minister. 
  2. Ministers of State: This class of ministers is further divided into two classes namely independent, and attached to the Cabinet Ministers. In both the cases, the State Ministers work’ in accordance to the guidance, and advice by the Cabinet Ministers. These ministers are restricted from attending Cabinet meetings unless specially invited. 
  3. Deputy Ministers: This rank of ministers is attached to either the Cabinet Ministers, or the Ministers of State, and is responsible for assisting them with duties ranging from administrative to political. 

Along with these three classes of ministers, the parliamentary secretaries are considered to be another group of ministers who are attached to the senior group of ministers and function as an assistant to them to discharge parliamentary duties. 

Oath and salary of ministers

It is the President who administers oaths of office, and secrecy for the Council of Ministers where the latter swears before the former:

  1. To bear true faith and allegiance to the Constitution of India,
  2. To uphold the sovereignty and integrity of India,
  3. To faithfully and conscientiously discharge the duties of his office, and
  4. To do right to all manner of people in accordance with the Constitution, and the law, without fear or favor, affection or ill will.

The Indian Parliament determines the salaries and allowances of the Council of Ministers which varies from time to time. The salary of a minister is the same as a member of the Parliament which is accompanied by free accommodation, travel allowance, medical facilities in accordance with the rank he holds. It was in 2001 when the sumptuary allowance for the Prime Minister was given a rise from Rs 1500 to Rs 3000 per month, followed by the Cabinet Minister from 1,000 to 2,000 per month, for a Minister of State from 500 to 1,000 per month, and for a Deputy Minister from 300 to 600 per month.

Responsibility of ministers

The responsibilities of the Council of Ministers can be categorized into three categories namely:

  1. Collective Responsibility: Collective responsibility is considered to be the underlying principle on the basis of which the parliamentary system as a whole functions. Put simply, collective responsibility refers to ministers owning joint responsibility for their actions to the House of People, the Lok Sabha. Another interpretation of the principle of collective responsibility is that the Cabinet Ministers are bound by the Cabinet’s decision irrespective of whether the former accept it or not.
  2. Individual Responsibility: Article 75 of the Constitution lays down both the concept of collective responsibility and individual responsibility. While the former has been discussed previously, the latter signifies as the ministers holding office on the wish of the President, they can be removed by the President whenever he feels the need. 
  3. No legal responsibility: The ministers are not vested with any kind of legal responsibility which is reflected in the absence of provisions ensuring the same in the Indian Constitution. Followed by this, the Indian courts are also barred from reviewing the advice given by the Council of Ministers to the President.

The Council of Ministers vis a vis a Cabinet 

One often gets confused by the fact as to whether the Council of Ministers and the Cabinet is the same thing or different. The major differences between the two have been listed below:

  1. The Council of Ministers is a much wider body in comparison to the Cabinet. While the former might consist of 70 to 80 members, the latter is concise with not beyond 20 ministers.
  2. The Cabinet is a part of the Council of Ministers which includes two other categories of ministers namely the Ministers of State, and the Deputy Ministers. 
  3. While the Cabinet is vested with collective functions, no such things exist with respect to the Council of Ministers. 
  4. While the Cabinet makes decisions, the Council of Ministers is responsible for implementing the same. The Cabinet also looks after the application of its decision by the Council. 
  5. While the Council of Ministers is collectively responsible towards the Lok Sabha, the Cabinet is responsible for enforcing such responsibility on the Council. 

Conclusion 

The relevance of the Central Council of Ministers cannot be ground on the grounds that it is only with the help of this set of ministers that the actual head of the democratic nation, the Prime Minister can function, and fulfill his roles, and duties for the country and its people effectively. This article, therefore, aimed towards throwing light towards this set of ministers whose contribution often goes neglected under the greater designation of the Prime Minister. 

References 

  1. https://www.india.gov.in/my-government/whos-who/council-ministers
  2. https://www.jyotinivas.org/pdf/e_content/public_administration/union%20council%20of%20minister.pdf
  3. https://www.elections.in/government/cabinet-ministers.html

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