According to Article 74 (1) of the Indian Constitution, there shall be a Council of 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.
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The Constitution of India thus makes it obligatory for the President to appoint a Council of Ministers with Prime Minister at the head. The President must exercise his functions with the aid and advice of the Ministers.
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The relation between the President and Council of Ministers is confidential as Article 74 (2) provides that the nature of advice tendered by Ministers shall not be enquired into by the courts.
Position of the Prime Minister:
According to Article 75 (1), the Prime Minister is appointed by the President and all other ministers shall be appointed by the President on the advice of the Prime Minister. In parliamentary system of Government, the selection of the Prime Minister is an important function of the President.
The Prime Minister is the person who must have the majority support of the members of House of People. The Prime Minister shall with his colleagues be collectively responsible to the lower House, Le., the House of People.
The President must choose as Prime Minister to that person who commands the support of majority in the House of People. In appointing the Prime Minister, the President can hardly exercise his discretion since we have adopted the British Cabinet system. In England, the leader of the majority party of the lower House is appointed as Prime Minister.
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Where a single political party or a coalition has gained an absolute majority in the House of People and has an accepted leader, the President’s choice of appointing the Prime Minister is a mere formality. However, the circumstances may arise in which the President may have to exercise his personal judgment in selecting the Prime Minister, for example, where the Prime Minister in office, dies or resigns on personal grounds and the party has no recognised leader, or either of the two parties, may be able to form a government and command the support of the House of the People.
It is suggested that the President should be guided by certain conventions; firstly, In the case of defeat of Government in the House of the People, he should call the leader of the opposition party to form a new ministry.
Secondly, he should invite the largest single party in the House of People to form the Government.
Thirdly, where there is coalition of many parties formed before election, he may call the leader of the coalition to form a stable ministry.
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Fourthly, he may invite the leader of the coalition or alliance formed after the election to form a stable government.
In this way, the leader of the coalition or alliance formed after the elections should be given the chance at the last stage, when the other three alternatives are not possible for forming a stable government at the Centre.
Advice of the Caretaker Prime Minister:
Indian Constitution does not provide for a caretaker Government at the Centre but at the same time, it does not envisage a situation when the country will be without a popular government. Articles 74 and 75 of the Constitution provide for a Council of Ministers at the Centre to aid and advise the President.
Article 74 provides that “there shall be a Council of Ministers with Prime Minister at the head to aid and advice the President.” It means that there cannot be any vacuum at the Centre without a ministry to function. The inference is that when the Parliament is dissolved, the administration is to be carried on by the President with the aid of the Council of Ministers of a caretaker Government. A caretaker Prime Minister of course cannot take such policy decisions which would benefit his party in the coming election.
Advice of Prime Minister who has lost the confidence of the majority in the Lower House to dissolve it:
In this regard two opinions are developed. One view is that President is bound to accept the advice of the Prime Minister to dissolve the House of People, whether the Prime Minister is in majority or in minority. This view is based on a well-settled convention in England.
In England, there is a uniform practice for more than a century that a sovereign will not refuse dissolution when advised by the Prime Minister. Even a Prime Minister who is defeated in a no-confidence motion can advise the King to dissolve the House of Commons.
It so happened when James Colleghan, the Prime Minister, resigned after being defeated in the House of Commons and advised the Queen to dissolve the House. The Queen dissolved the House on his advice.
The precedent is not wholly applicable in India. Firstly, because of the multiplicity of political parties in the country, and secondly, in view of the economic condition of the country, frequent elections are costly, and thirdly, the electors in our country, are not quite mature as majority of them are either uneducated or have no political acumen.
Hence, the other view Is, that President is not bound to dissolve the house on the advice of the defeated Prime Minister without ascertaining the possibility of formation of a stable ministry in the Indian context.
Powers and functions of the Prime Minister
According to Article 78:
(1) It shall be 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 proposal for legislation;
(2) To furnish such Information relating to the administration of the affairs of the Union and proposal for legislation as the President may call for; and
(3) If the President so requires submitting for consideration any matter on which a decision has been taken by a Minister but which has not been considered by the Cabinet.
The Council of Ministers headed by the Prime Minister, is the ex-facto executive head of the State, the President being the formal executive head. The function of the Council of Ministers is to aid and advise the President.
Previously there existed a controversy as to whether the advice tendered by the Council of Ministers was binding on the President. The Supreme Court had decided in Ram Jawaya vs. State of Punjab. AIR 1955 S.C. 549 and Shamsher Singh vs. State of Punjab AIR 1974 S.C. 2193, that the advice of Council of Ministers was binding on the President.
After Constitution (44th Amendment Act, 1978), the President may require the Council of Ministers to reconsider such advice. Article 74 (2) provides that the question whether any and if so what advice was tendered by ministers to the President shall not be required into in any court.
The Council of Ministers with Prime Minister at its head, normally conducts the administration of the Union Government through the various departments, formulates the policy of the Government, determines its legislative programme and uses its initiative in the introduction and passage of legislation.
It is the cabinet headed by the Prime Minister that prepares the Union budget and moves demands for grants. The foreign policy of India is formulated by the cabinet. Even the emergency powers of the President, are actually exercised by the cabinet. In short, the Council of Ministers with Prime Minister at the head is the actual executive of the Union and the President is merely its ceremonial head.