Article 74(1) is a foundational provision of the Indian Constitution, establishing the relationship between the President and the Council of Ministers. It underscores the adoption of a parliamentary system of government in India, where the President acts as the constitutional head, exercising powers primarily on the advice of the elected representatives led by the Prime Minister.
This article is crucial for understanding the practical operation of the executive branch at the Union level, clearly defining the roles and responsibilities, and ensuring that real executive power rests with the Council of Ministers responsible to the Parliament, rather than the President independently.
Original Text
(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.
Detailed Explanation
Article 74(1) mandates the existence of a Council of Ministers (CoM) headed by the Prime Minister. This CoM is tasked with the function of “aiding and advising” the President. The article explicitly states that the President “shall” act in accordance with this advice when exercising his functions. This provision effectively makes the President a constitutional or nominal head, with the real executive power vesting in the Council of Ministers, which is collectively responsible to the Lok Sabha (House of the People).
The original Article 74(1) simply stated that there shall be a CoM to aid and advise the President. The question of whether the President was bound by this advice was a subject of debate and convention prior to constitutional amendments.
The 42nd Amendment Act, 1976, significantly altered Article 74(1) by inserting the phrase “who shall, in the exercise of his functions, act in accordance with such advice”. This amendment explicitly made the advice tendered by the Council of Ministers binding on the President.
However, the 44th Amendment Act, 1978, introduced a proviso to Article 74(1). This proviso grants the President the power to require the Council of Ministers to reconsider the advice tendered to him, either generally or specifically. While the President can ask for reconsideration, the proviso categorically states that the President “shall act in accordance with the advice tendered after such reconsideration.” This means the power to send advice back for reconsideration can be exercised only once, and the President is bound by the advice given after such reconsideration.
This two-step mechanism (advice initially, option for one reconsideration, then binding) balances the need for the President to be a constitutional head acting on elected representatives’ advice with a limited capacity to cause the government to pause and rethink a decision before it is finalized. It reinforces the parliamentary system where the government, represented by the Council of Ministers, holds the ultimate executive authority, subject to parliamentary accountability. The ‘functions’ mentioned in the article generally include all executive actions taken in the name of the President, except for a few constitutionally mandated situations where the President may exercise discretion (though the scope of such discretion is narrow and debated).
Detailed Notes
- Mandates the existence of a Council of Ministers (CoM) for the Union.
- The Prime Minister is designated as the head of this Council of Ministers.
- The primary function of the CoM is to “aid and advise” the President.
- The President shall act in accordance with the advice tendered by the CoM when exercising his functions.
- (This binding nature was explicitly added by the Constitution (42nd Amendment) Act, 1976).
- A proviso allows the President to require the CoM to reconsider the advice.
- This power of reconsideration can be exercised only once.
- (This proviso was added by the Constitution (44th Amendment) Act, 1978).
- After the CoM has reconsidered the advice, the President shall act in accordance with the advice tendered after such reconsideration.
- Establishes the principle that the President of India is a constitutional or nominal head of the executive.
- Real executive power vests in the Council of Ministers headed by the Prime Minister.
- Reinforces the parliamentary form of government where the executive is accountable to the legislature.
- The article covers the exercise of the President’s ‘functions’, implying that all executive actions under the President’s name are typically based on CoM advice.
Additional Comments
- The evolution of Article 74(1) through the 42nd and 44th Amendments highlights the shift from a potentially ambiguous position to a clear constitutional mandate regarding the President’s role as a figurehead bound by the elected government’s advice, albeit with a limited power to seek reconsideration.
- The phrase “aid and advise” is interpreted by the Supreme Court and constitutional experts to mean that the President cannot function without the advice of the Council of Ministers, except possibly in a few rare, implied discretionary situations (like appointing a PM when no single party has a clear majority, or dissolving Lok Sabha if the government loses confidence and no alternative is viable), although the extent of such discretion remains a subject of academic and political debate.
- The collective responsibility of the Council of Ministers to the Lok Sabha (under Article 75) is intrinsically linked to Article 74(1); the ministers can advise the President effectively only as long as they enjoy the confidence of the lower house.
- The article solidifies the position of the Prime Minister as the effective head of government, wielding the actual executive power through the Council of Ministers.
Summary
Article 74(1) establishes the mandatory Council of Ministers headed by the Prime Minister to aid and advise the President. It constitutionally requires the President to act in accordance with this advice. While the President is empowered to ask the Council of Ministers to reconsider the advice once, the decision taken after reconsideration is binding on the President. This article is fundamental to the parliamentary system in India, making the President the constitutional head and vesting real executive power with the Council of Ministers responsible to the Parliament.