Position of the Prime Minister in the Union Cabinet
The Indian Prime Minister enjoys formidable power and influence. He is in fact the “keystone of the Cabinet arch.” he has a constitutional basis and does not rest on conventions. His position has been further strengthened by the 42nd Amendment, by making it obligatory for the President to act according to the advice of his Council of Ministers, led by the Prime Minister. No doubt, the 44th amendment sought to restore to the office of the President some of its lost prestige and glory. Nevertheless, the Prime Minister retains his pre-eminent position, as long as he carries his Cabinet with him.
The Prime Minister enjoys very extensive powers indeed. He acts as the main link between the Cabinet and Parliament. Being the chief spokesman of the Government in Parliament, all major announcements regarding policy are made by him. “The Indian Prime Minister is invested with formidable power and influence and unless he be a genuine democrat by nature, he is very likely to become a dictator.”
The position of the Indian Prime Minister, however, depends to a large extent, on his personality, charm and prestige and the unequivocal support that he draws from his party. Dynamic personalities like Jawaharlal Nehru and Indira Gandhi had a total sway over their party so they could dictate their policies.
Does the Constitution provide for the Prime Minister to induct into his Cabinet the best talent available in the country, outside Parliament? If not, suggest a measure to achieve this end, without affecting the basic structure of the constitution.
Answer of Part-XIV No.
Art. 75 requires that a Minister at the Centre should be, or become within six months, a member of Parliament.
An amendment to this Article should provide that, while the existing provision would apply to the majority of ministers, a minority may be selected by the Prime Minister from outside Parliament, who would not be required to get into Parliament, at any time. Even the ministers who are not members of Parliament, would have the right to address, and would be responsible to Parliament ; thus the principle of collective responsibility of the Cabinet to the legislature would not be impaired.
In Japan, which has a democratic Constitution on the Westminister model, as we have, the majority of the ministers are selected from the Diet, but it is open to the Prime Minister to select a minority of the ministers from outside. The advantage of such a system is obvious.
Duties and rights of the Attorney-General of India
The Attorney General’s duties are to:
(i) advise the Union Government on such legal matters as are referred to him;
(ii) perform such duties as are assigned to him by the President from time to time;
(iii) appear in all cases, including suits, appeals and other proceedings, in the Supreme Court or any High Court, in which the Union Government is concerned; and
(iv) appear in Law Court s on be half of the Speaker or the Houses of Parliament.
If, in any suit, questions involving interpretation of the Constitution are raised, notice has to be given to the Attorney-General.
His consent is necessary for initiating proceedings for contempt, in certain cases.
He represents Government in any reference made by the President under Article 143 of the Constitution.
He has a right to speak in, and otherwise take part in the proceedings of either House, any Committee of Parliament and any joint sitting of the Houses (Art 88), without voting right.
Position of Attorney-General in the U.K. and U.S.A. in relation to his Indian counterpart
The Attorney-General is a member of the Cabinet in the United Kingdom. His is a political appointment and is usually conferred on a flourishing barrister who supports the party in power and naturally enjoys its confidence. He is forbidden from private practice but is compensated with a fabulous salary from the Exchequer. His Indian counterpart is allowed private practice, as he is not a full-time servant of the Government. This should not, however, prejedice his obligations to the State. The Attorney-General in India holds office during the pleasure of the President, while his British counterpart changes with every change of Government.
The Attorney-Gereral in the U.S.A. is the Chief Legal Officer of the Federal Government and performs the functions of his counterpart in the U.K. such as enforcement and monitoring of all federal laws. He puts in appearances in the Supreme Court, like his Indian counterpart.
Prime Minister and Caninet
The Council of Ministers headed by Prime Ministers with the Prime Minister at the head to aid and advice the president who shall, in the exercise of his functions, act in accordance with such advice. The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court.
The prime Minister is selected by the President and the other Ministers are appointed by the President on the advice of the Prime Minister [Art. 75(1)] and the allocation of portfolios amongst them is also made by him.
In selecting the Prime Minister, the President must obviously be restricted to the leader of the party in majority in the House of the People, or a person who is in a position to win the confidence of the majority in that House.
The Presidents’s power of dismissing an individual Minister is virtually a power in the hands of the Prime Minister. There is no bar to the appointment of a person from outside the Legislature as Minister. But he cannot continue as Minister for more than 6 months unless he secures a seat in either House of Parliament (by election or nomination, as the case may be), in the meantime [Art. 75(5)].
A Minister who is a member of one House has a right to speak in and to take part in the proceedings of the other House though he has no right to vote in the House of which he is not a member [Art. 88].
The Council of Ministers consists of the Prime Minister and other ministers he may like to appoint.
The number of members of the Council of Ministers is determined according to the exigencies of the time.
All the Ministers, however, do not belong to the same rank. The Constitution does not classify the members of the Council of Ministers into different ranks.
All this has been done informally.
The Council of Ministers is in fact a composite body consisting of different categories. At the Centre, these categories are:
(i) Cabinet Ministers — are the core of the executive and are associated with all the important decisions;
(ii) Ministers of State — form the second tier of the Council of Ministers, some State Ministers are accorded independent charge while most of them are attached to Cabinet Ministers to look after less important affairs of larger Ministries, and
(iii) Deputy Ministers — are generally junior ministers, their appointment is mainly to provide them experience of the Ministers and administrative and legislative competence.
In practice, the Council of Ministers seldom meets as a body. It is the Cabinet, an inner body within the council, which shapes the policy of the Government. While Cabinet Ministers attend meetings of the Cabinet of their own right, Ministers of State are not members of the Cabinet and they can attend only if invited to attend any particular meeting. A Deputy Minister assists the Minister in charge of a Department of Ministry and takes no part in Cabinet deliberations.
According to Art. 75(6) the Parliament may by law determine the salaries of Ministers, until Parliament so determines, shall be as specified in the Second Schedule. Ministers get the salaries and allowances etc. as payable to members of parliament.In addition to salary each Minister gets a sumptuary allowance at a varying scale, according to his rank, and a residence, free of rent.
Collective Responsibility : The principle of collective responsibility as codified in Art. 75(3) of the Constitution is “The Council of Ministers shall be collectively responsible to the House of the People.” So, the Ministry, as a body, shall be under a constitutional obligation to resign as soon as it loses the confidence of the popular House of the legislature.
The collective responsibility is to the House of the People even though some of the Ministers may be members of the Council of States.
Of course, instead of resigning, the Ministry shall be competent to advise the President or the Governor to exercise his power of dissolving the legislature, on the ground that the House does not represent the views of the electorate faithfully.
Individual Responsibility : The principle of individual responsibility to the head of the State as embodied in Art. 75(2) is “The Ministers shall hold office during the pleasure of the President.” The result is, that though the Ministers are collectively responsible to the Legislature, they shall be individually responsible to the Executive head and shall be liable to dismissal even when they may have the confidence of the legislature. But since the Prime Minister’s advice will be available in the matter of dismissing other Ministers individually, it may be expected that this power of the president will virtually be a power of the Prime Minister against his colleagues,—to get rid of an undesirable colleague even where that Minister may still possess the confidence of the majority in the House of the People.
Usually, the Prime Minister exercises this power by asking an undesirable colleague to resign, which the latter readily complies with, in order to avoid the odium of a dismissal.
Powers and Functions
Powers and functions of the Council of Ministers may be discussed as below:
(i) Legislative Functions : The Council of Ministers control the legislature of the union government, i.e., Parliament. It formulates its policy, submits and explains it to parliament for approval. Since it holds majority in parliament, it is always sure of the acceptance of its policy. The entire legislation of importance passed by parliament is initiated by the ministers.
(ii) Financial Powers : The Cabinet controls the financial policy of the union. It is the Finance Minister who submits the budget to Parliament.
Parliament approves the budget— expenditure and revenue items in its original form with the support of a subservient majority.
(iii) Executive Powers : The Council of Ministers is the executive of the Union. The Ministers preside over the various departments of the government and give direction to the administration. The Cabinet brings about coordination of policy among various departments and settles their conflicts. The Cabinet formulates foreign and defence policies of the country and executes the five year plans.
Position of Prime Minister in the Council of Ministers
As in England, the Prime Minister is the “keystone of the Cabinet arch.” According to Art 74(1) of our Constitution the Prime Minister shall be “at the head” of the Council of Ministers. Hence, the other Ministers cannot function when the Prime Minister dies or resigns.
The Prime Minister has a pre-eminence, in the Council of Ministers as evident from the following:
(i) He is the leader of the par ty in major ity in the popular House of the Legislature;
(ii) He has the power of selecting the other Ministers and also advising the Crown to dismiss any of them individually, or require any of them to resign. Virtually, thus, the other Ministers hold office at the pleasure of the prime Minister;
(iii) The allocation of business amongst the Minister is a function of the Prime Minister;
(iv) He is the chairman of the Cabinet, summons its meetings and presides over them; creates a vacancy, the resignation or death of the Prime Minister dissolves the Cabinet;
(v) While the resignation of other Ministers merely
(vi) The prime Minister stands between the Crown and the Cabinet. Though individual Ministers have the right of access to the Crown on matters concerning their own departments, any important communication, particularly relating to policy, can be made only through the Prime Minister;
(vii) He is in charge of co-ordinating the policy of the Government and has, accordingly, a right of supervision over all the departments.
In India all these special powers will belong to the Prime Minister inasmuch as the conventions relating to Cabinet Government are, in general, applicable. But some of these have been codified in the Constitution itself. The power of advising the president as regards the appointment of the other Ministers is, thus, embodied in Art. 75(1).
Communication Between the Council of Ministers and the President
As to the function of acting as the channel of communication between the President and the Council of Ministers, Art. 78 provides: “It shall be the duty of the prime Minister—
(i) to communicate to the President all decision of the Council of Ministers relating to the administration of the affairs of the union and proposals for legislation;
(ii) to fur nish such information relating to the administration of the affairs of the union and proposals for legislation as the president may call for; and
(iii) 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.”
President Vs.Council of Ministers.
(i) The President is the form al and constitutional head of the executive but works under the advice of the Council of Ministers (Art. 74).
(ii) The member s of the Council of Ministers are accountable to him. This is a mere formality, since the dismissal of a minister is done on the Prime Minister’s advice rather than by the President’s discretion.
(iii) By the 42nd Constitution Ame ndment Act (1976), the President is bound to function in accordance with the advice of the Council of Ministers. The 44th amendment relaxed this position a little. Now the president may require the Council of Ministers to reconsider its advice once. But if the Council of Ministers reaffirms its decision, the President is bound to act on such advice.
Attorney General of India
The office of the Attorney-General is placed on a special footing by the Constitution. He is the first Law Officer of the Government of India.
The Attorney-General for India shall be appointed by the president and shall hold office during the pleasure of the president. He must have the same qualifications as are required to be a judge of the Supreme Court. He shall receive such remuneration as the president may determine. But, he is not a whole-time counsel for the Government nor a Government servant.
His duties are:
(i) to give advice on such legal matters and to perform such other duties of a legal character as may, from time to time, be referred or assigned to him by the president; and
(ii) to discharge the functions conferr ed on him by the Constitution or any other law for the time being in force [Art. 76].
Though the Attorney-General of India is not (as in England) a member of the Cabinet, he shall also have the right to speak in the Houses of Parliament or in any committee thereof, but shall have no right to vote [Art. 88]. By virtue of his office, he is entitled to the privileges of a member of Parliament [Art. 105(4)].
In the performance of his official duties, the AttorneyGeneral shall have a right of audience in all Courts in the territory of India.