Advice by and appointment of council of ministers
Q. Which of the following is/are true?
1) A minister who is a member of one House of Parliament can speak and take part in the proceedings of the other House.
2) On dissolution of the Lok Sabha, the council of ministers cease to hold office.- Published on 01 Mar 17a. Only 1
b. Only 2
c. Both 1 and 2
d. Neither 1 nor 2
ANSWER: Only 1
- Article 74 provides for a council of ministers with the Prime Minister at their head to aid and advise the President in the exercise of his functions.
- The 42nd Constitutional Amendment Act of 1976 and 44th Constitutional Amendment Act of 1978 have made the advice binding on the President.
- Further, the nature of advice tendered by ministers to the President cannot be enquired by any court.
- This provision emphasizes the intimate and the confidential relationship between the President and the ministers.
- In 1971, the Supreme Court held that even after the dissolution of the Lok Sabha, the council of ministers does not cease to hold office.
- Article 74 is mandatory and, therefore, the president cannot exercise the executive power without the aid and advise of the council of ministers.
- Any exercise of executive power without the aid and advice will be unconstitutional as being in violation of Article 74.
- Again in 1974, the court held that ‘wherever the Constitution requires the satisfaction of the President,the satisfaction is not the personal satisfaction of the President but it is the satisfaction of the council of ministers with whose aid and on whose advice the President exercises his powers and functions’.
Appointment of Ministers -
- The Prime Minister is appointed by the President, while the other ministers are appointed by the President on the advice of the Prime Minister.
- This means that the President can appoint only those persons as ministers who are recommended by the Prime minister.
- Usually, the members of Parliament, either Lok Sabha or Rajya Sabha, are appointed as ministers.
- A person who is not a member of either House of Parliament can also be appointed as a minister.
- But, within six months, he must become a member (either by election or by nomination) of either House of Parliament, otherwise, he ceases to be a minister.
- A minister who is a member of one House of Parliament has the right to speak and to take part in the proceedings of the other House also, but he can vote only in the House of which he is a member.
Oath of Ministers -
- Before a minister enters upon his office, the president administers to him/her the oaths of office and secrecy.
- The Supreme Court stated that describing a person as Deputy Prime Minister is descriptive only and such description does not confer on him any powers of Prime Minister.
- It ruled that the description of a minister as Deputy Prime Minister or any other type of minister such as minister of state or deputy minister of which there is no mention in the Constitution does not vitiate the oath taken by him so long as the substantive part of the oath is correct.
