Union Executive- 3

Table of Contents
1. Position of the Prime Minister in the Union Cabinet
2. Duties and Rights of the Attorney-General of India
3. Prime Minister and Council of Ministers
4. Salaries
5. Ministerial Responsibility
6. Powers and Functions of the Council of Ministers
7. Position of the Prime Minister in the Council of Ministers
8. Communication Between the Council of Ministers and the President
9. President Vs. Council of Ministers
10. Attorney-General of India (Consolidated)
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Position of the Prime Minister in the Union Cabinet

Position of the Prime Minister in the Union Cabinet

The Prime Minister of India occupies a pre-eminent position in the Union executive. He is often described as the "keystone of the Cabinet arch". This pre-eminence has both a constitutional basis and a foundation in convention and practice. The 42nd Amendment strengthened the role of the Council of Ministers by making it obligatory for the President to act in accordance with their advice; the 44th Amendment thereafter restored a limited measure of discretion to the President by allowing the President to ask the Council to reconsider its advice once, though the President must act if the Council reaffirms its advice.

The Prime Minister acts as the principal link between the Cabinet and Parliament. He is the chief spokesman of the Government in Parliament and normally makes major announcements on policy. The practical scope of the Prime Minister's power depends on constitutional provisions, conventions, and political factors such as his personal authority, stature within the party and Parliament, and the support he commands from his party and coalition partners. Dynamic leaders such as Jawaharlal Nehru and Indira Gandhi exercised strong personal control over party and government decisions during their tenures.

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.

The Constitution does not expressly provide for the Prime Minister to include in the Council of Ministers a permanent cadre of persons who are never required to become members of Parliament. Article 75 requires that a Minister shall be, or become within six months, a member of either House of Parliament. A constitutional amendment of Article 75 could allow the Prime Minister to appoint, as a limited minority of the Council of Ministers, persons from outside Parliament who would not be required to obtain parliamentary membership. Those ministers would continue to be responsible to Parliament and would have the right to address and participate in parliamentary proceedings without a vote. Such a provision already exists in practice in other Westminster systems (for example, Japan) where most ministers come from the legislature but a small number may be appointed from outside to bring specialised expertise.

Duties and Rights of the Attorney-General of India

Duties and rights of the Attorney-General of India

The Attorney-General for India is the first law officer of the Union and holds a special constitutional position. The office is created by the Constitution and regulated by Article 76. The Attorney-General is appointed by the President and holds office during the President's pleasure. The Attorney-General must possess the qualifications required for appointment as a Judge of the Supreme Court. He is entitled to such remuneration as the President may determine. The Attorney-General is not a whole-time Government servant and may engage in private practice; however, private practice should not prejudice his public duties.

• The Attorney-General's principal duties are to advise the Union Government on legal matters referred to him and to perform such duties of a legal character as may be assigned to him by the President.
• He appears for the Union Government in the Supreme Court and High Courts in matters in which the Government is concerned, including suits, appeals and other proceedings.
• If questions involving interpretation of the Constitution arise in litigation, the Government must give notice to the Attorney-General.
• His consent is required in certain cases before proceedings for contempt can be initiated.
• He represents the Government in references under Article 143 (advisory jurisdiction of the Supreme Court).
• He has the right to speak in, and otherwise take part in, the proceedings of either House of Parliament, any Committee of Parliament and any joint sitting of the Houses, but he does not have the right to vote (Article 88).

Position of Attorney-General in the U.K. and U.S.A. in relation to his Indian counterpart

In the United Kingdom the Attorney-General is a political appointment and is normally a member of the Cabinet. The position there is a full-time political office and the Attorney-General is generally precluded from private practice. By contrast, the Indian Attorney-General is not a Cabinet minister, is not a government servant in the same sense and may maintain a private legal practice, though he must discharge his duties to the State faithfully. The Indian Attorney-General holds office during the pleasure of the President; the British Attorney-General normally leaves office when the Government changes.

In the United States, the Attorney-General is the head of the Department of Justice and is the chief law officer and chief prosecutor of the federal Government. The US Attorney-General is a cabinet member heading an executive department, responsible for enforcement of federal laws and for representing the federal Government before the Supreme Court. The Indian Attorney-General performs some comparable functions in representing the Union before courts and giving legal advice to the Government, but the institutional arrangements and the degree of political involvement differ.

Prime Minister and Council of Ministers

Prime Minister and Council of Ministers

The Constitution establishes a Council of Ministers with the Prime Minister at its head to aid and advise the President. Under Article 74(1) the Prime Minister shall be "at the head" of the Council of Ministers. The question whether any particular advice was tendered by Ministers to the President is not justiciable in any court.

• The Prime Minister is selected by the President; other ministers are appointed by the President on the advice of the Prime Minister (Article 75(1)).
• The President, in practice, must appoint as Prime Minister the person who commands the confidence of the majority in the Lok Sabha (House of the People).
• Ministers may be appointed from outside the legislature but must become members of either House of Parliament within six months of appointment (Article 75(5)).
• A Minister who is a member of one House has a right to speak and take part in proceedings of the other House, though he cannot vote in the other House (Article 88).

The Council of Ministers is a composite body with different categories of ministers. While the Constitution does not formalise ranks, in practice the categories at the Centre are:

• Cabinet Ministers - the core executive; associated with important decisions and full members of the Cabinet.
• Ministers of State - the second tier; some have independent charge of ministries, others are attached to Cabinet Ministers and assist in departmental work.
• Deputy Ministers - generally junior ministers appointed to gain administrative and legislative experience; they normally do not attend Cabinet deliberations.

Although all ministers form the Council of Ministers, the Cabinet acts as an inner and more influential body that meets regularly to shape policy. In practice the full Council rarely meets as a body; the Cabinet handles most coordination, policy formulation and conflict settlement among departments.

Salaries

Salaries

Under Article 75(6) Parliament may by law determine the salaries of Ministers. Until Parliament determines these, salaries are as specified in the Second Schedule to the Constitution. Ministers receive salaries and allowances as Members of Parliament, in addition to sumptuary allowances that vary by rank and entitlement to an official residence free of rent.

Ministerial Responsibility

Collective Responsibility

Collective responsibility is enshrined in Article 75(3): "The Council of Ministers shall be collectively responsible to the House of the People." This means the Ministry, as a whole, must command the confidence of the Lok Sabha. If the Government loses a vote of confidence, the Ministry is constitutionally expected to resign. Instead of resigning, the Ministry may advise the President to dissolve the House, where constitutionally permissible, on the ground that the House no longer reflects the electorate's will.

Individual Responsibility

Individual responsibility is reflected in Article 75(2): "The Ministers shall hold office during the pleasure of the President." This creates a situation where ministers, while collectively responsible to the Legislature, are individually removable by the President - in practice on the advice of the Prime Minister. Thus the Prime Minister effectively controls the continuation of individual ministers in office and may ask a minister to resign or advise dismissal when considered necessary; ministers commonly resign voluntarily to avoid the stigma of dismissal.

Powers and Functions of the Council of Ministers

Powers and Functions

• Legislative functions - The Council of Ministers formulates government policy and introduces and guides important legislation in Parliament. Most major legislation originates in the ministries and is placed before Parliament for approval. Because the Council normally enjoys a majority in the Lok Sabha, it is usually able to secure acceptance of its legislative programme.
• Financial powers - The Council controls the Union's financial policy. The Finance Minister presents the budget to Parliament and the Cabinet coordinates expenditure and revenue proposals. Parliamentary approval of the budget is essential for the Government to spend.
• Executive powers - The Council of Ministers is the executive authority of the Union. Ministers head departments, give directions to administration, coordinate policies across departments and settle inter-departmental disputes. The Cabinet formulates foreign, defence and economic policies and oversees the execution of national plans.

Position of the Prime Minister in the Council of Ministers

Position of Prime Minister in the Council of Ministers

The Prime Minister's pre-eminence in the Council of Ministers is derived from constitutional provisions, conventions and political practice. Salient aspects of this pre-eminence are:

• He is normally the leader of the party or coalition that holds a majority in the Lok Sabha.
• He advises the President on the appointment and dismissal of other ministers; as a result other ministers hold office virtually at his pleasure.
• He allocates portfolios and determines the distribution of business among ministries.
• He is the chair of the Cabinet: he summons and presides over Cabinet meetings.
• The resignation or death of the Prime Minister normally leads to the resignation of the Cabinet as a whole; the Prime Minister's position is central to the Cabinet's continuity.
• He is the principal channel of communication between the President and the Cabinet; important communications and policy matters ordinarily pass through him.
• He coordinates government policy and exercises a right of supervision over all departments.

Communication Between the Council of Ministers and the President

Communication Between the Council of Ministers and the President

Article 78 prescribes the duties of the Prime Minister in relation to the President. It is the duty of the Prime Minister:

• to communicate to the President all decisions of the Council of Ministers relating to the administration of the affairs of the Union and proposals for legislation;
• to furnish such information relating to the administration of the affairs of the Union and proposals for legislation as the President may call for;
• 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

President Vs. Council of Ministers

• The President is the formal constitutional head of the executive, but, under the Constitution, acts in accordance with the advice of the Council of Ministers headed by the Prime Minister (Article 74).
• Members of the Council of Ministers are appointed by the President but, in practice, remain in office at the pleasure of the Prime Minister; dismissal of a minister normally follows the Prime Minister's advice.
• By the 42nd Amendment (1976) the President became bound to act in accordance with ministerial advice. The 44th Amendment modified this to enable the President to ask the Council to reconsider its advice once; if the Council reaffirms its advice the President must act on it.

Attorney-General of India (Consolidated)

Attorney-General of India

The Constitution places the office of the Attorney-General on a special footing. Key constitutional features are:

• The Attorney-General is appointed by the President and holds office during the President's pleasure (Article 76).
• He must possess the qualifications required to be appointed as a Judge of the Supreme Court.
• He receives such remuneration as the President may determine; he is not a whole-time government servant and may engage in private practice, subject to his public duties.
• He has duty to advise the Union Government on legal matters referred to him and to perform other legal duties assigned by the President.
• He has the right of audience in all courts in India and represents the Government in the Supreme Court, High Courts and in references under Article 143.
• He has the right to speak in either House of Parliament and in Parliamentary Committees but has no voting right (Article 88); by virtue of his office he is entitled to the privileges of a Member of Parliament under Article 105(4).

The Attorney-General of India is therefore the chief legal adviser to the Union Government and its principal representative in the courts. While his role is analogous in part to Attorneys-General in other jurisdictions, institutional differences (for example the British and US models) mean responsibilities, political status and constraints differ between countries.