The Provisions
74. Council of Ministers to aide and advise President.—
(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 advice:
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) The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court.
75. Other provisions as to Ministers.—
(1) The Prime Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Prime Minister.
(2) The Ministers shall hold office during the pleasure of the President.
163. Council of Ministers to aid and advise Governor.—
(1) There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.
(2) If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion.
(3) The question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any court.
164. Other provisions as to Ministers.—
(1) The Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister, and the Ministers shall hold office during the pleasure of the Governor:
(3) The Council of Ministers shall be collectively responsible to the House of the People.
(4) Before a Minister enters upon his office, the President shall administer to him the oaths of office and of secrecy according to the forms set out for the purpose in the Third Schedule.
(5) A Minister who for any period of six consecutive months is not a member of either House of Parliament shall at the expiration of that period cease 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. Provided that in the States of Bihar Madhya Pradesh and Orissa, there shall be a Minister in charge of tribal welfare who may in addition be in charge of the welfare of the Scheduled Castes and backward classes or any other work.
(2) The Council of Ministers shall be collectively responsible to the Legislative Assembly of the State.
(3) Before a Minister enters upon his office, the Governor shall administer to him the oaths of office and of secrecy according to the forms set out for the purpose in the Third Schedule.
(4) A Minister who for any period of six consecutive months is not a member of the Legislature of the State shall at the expiration of that period cease to be a Minister.
(5) The salaries and allowances of Ministers shall be such as the Legislature of the State may from time to time by law determine and, until the Legislature of the State so determines, shall be as specified in the Second Schedule.
Comparison of both group of provisions
When we compare Articles 74 and 75 with Articles 163 and 164 the first point of difference is that while the former deal with the President and the Prime Minister, the latter deal with the Governor and the Chief Minister.
- Article 74(1) and Article 163(1) are substantially the same except that the sentence beginning with `except’ and ending with ‘discretion’, special to the Governor’s function, is not to be found in Article 74(1).
- The proviso to Article 74(1) which grants a special privilege to the President is not to be found in Article 163(1) whereas clause (2) of Article 163 is not to be found in Article 74.
- Clause (2) to Article 163 is a corollary to the exception clause in Article 163(1) and has no relevance to the issue on hand.
- Article 74(2) and Article 163(3) are verbatim the same.
- Article 75(1) and (2) are identical to Article 164(1) except that in the case of the latter, the two clauses have been combined into one.
- The proviso to Article 164(1) which is special to States, is not to be found in Article 75.
- The rest of the clauses of the two Articles are identical except for consequential changes.
On a plain reading of Article 75(5) it is obvious that the Constitution-makers desired to permit a person who was not a member of either House of Parliament to be appointed a Minister for a period of six consecutive months and if during the said period he was not elected to either House of Parliament, he would cease to be a Minister. This becomes clear if one were to read the debates of the Constituent Assembly (the draft Articles were 62 and 144 for the present Articles 75 and 164). Precisely on the ground that permitting such persons to be appointed Ministers at the Union or State levels would “cut at the very root of democracy”, an amendment was moved to provide:
“No person should be appointed a Minister unless at the time of his appointment, he is elected member of the House:” which amendment was spurned by Dr. Ambedkar in the following words:
“Now with regard to the first point, namely, that no person shall be entitled to be appointed a Minister unless he is at the time of his appointment an elected member of the House, I think it forgets to take into consideration certain important matters which cannot be overlooked. First is this and it is perfectly possible to imagine that a person who is otherwise competent to hold the post of a Minister has been defeated in a constituency for ‘some reason and which, although it may be perfectly good, might have annoyed the constituency, and he might have incurred the displeasure of that particular constituency. It is not a reason why a member so competent as that should not be permitted to be appointed a member of the Cabinet on the assumption that he shall be able to get himself elected from the same constituency or from another constituency.
After all the privileges that he is permitted is a privilege that extends only to six months. It does not confer a right on that individual to sit in the House being elected at all. My second submission is this that the fact that a nominated Minister is a member of the Cabinet does not either violate the principle of collective responsibility nor does it violate the principle of confidence because he is a member of the cabinet if he is prepared to accept the policy of the Cabinet stands apart of the Cabinet and resigns with the Cabinet when he ceases to have the confidence of the House, his membership of the Cabinet does not in any way cause any inconvenience or breach of the fundamental principles on which parliamentary government is based. Therefore, this qualification in my judgment is quite unnecessary.”
At the end of the discussion, the Constituent Assembly rejected the proposed amendment. Furthermore, as pointed out in the decision of the Court (1987 Supp. SCC 310), such an appointment does not militate against the democratic principles embodied in our Constitution.
Reference
S.P. Anand, Indore vs H.D. Deve Gowda & Others (1996)