Article 74 of the Indian Constitution deals with the crucial relationship between the President and the Council of Ministers. It mandates that 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 (with provisions for reconsideration).
While Article 74(1) establishes the Council of Ministers and the binding nature of their advice, Article 74(2) introduces a significant limitation regarding judicial scrutiny of this advice. It insulates the advice given by the ministers to the President from being questioned in courts, thereby protecting the confidentiality and sanctity of the executive’s internal deliberations.
Original Text
(2) The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court.
Detailed Explanation
Article 74(2) lays down a specific bar on courts inquiring into the nature, extent, or even the fact of whether advice was tendered by the Council of Ministers to the President. This provision serves multiple important purposes within the framework of the Indian parliamentary system.
Primarily, it ensures confidentiality in the relationship between the President and the Council of Ministers. Free and frank discussion and advice are essential for effective governance. If the process and content of advice were subject to judicial scrutiny, it could inhibit ministers from tendering candid advice to the President, potentially compromising the executive’s ability to function efficiently and make sensitive decisions.
Secondly, this clause reinforces the principle of collective responsibility of the Council of Ministers to the Lok Sabha (Article 75(3)). Ministers are politically accountable to the elected representatives, not legally accountable to the courts for the advice they give to the head of state. The focus of accountability remains primarily political, not judicial, regarding the internal process of tendering advice.
It is crucial to understand the scope of this provision. Article 74(2) prohibits inquiry only into the advice itself – its content, nature, and whether it was given. It does not prevent a court from examining the legality or constitutionality of the action taken by the President based on that advice. If a presidential action is unconstitutional or violates a law, it can still be challenged in court, and the court may examine the materials on which the decision was based, but it cannot compel disclosure of the specific advice given by the ministers to the President. This distinction is vital for maintaining the balance between executive confidentiality and judicial review of executive actions.
Detailed Notes
- Prohibits any court from inquiring into:
- Whether any advice was tendered by Ministers to the President.
- If advice was tendered, what that advice was.
- Applies solely to the advice given by the Council of Ministers (including the Prime Minister) to the President.
- Purpose is to protect the confidentiality and secrecy of the deliberations within the executive branch concerning advice to the head of state.
- Ensures ministers can advise the President freely and frankly without fear of judicial examination of their advice.
- Reinforces the political accountability of the Council of Ministers to the Parliament (specifically the Lok Sabha) under Article 75(3), rather than judicial accountability for their advisory function to the President.
- Does not prevent courts from examining the legality or constitutionality of the action taken by the President based on the advice.
- Courts can review the decision-making process or the resulting action, but not the content or existence of the advice that led to the action.
- The materials or records on which a presidential decision is based might be subject to scrutiny by courts to assess the legality of the action, but the specific advice tendered by ministers remains protected by this clause.
- This provision is a cornerstone for maintaining the separation of powers and the effective functioning of the parliamentary executive.
Additional Comments
- This clause is critical for upholding the Westminster model of parliamentary democracy where the real executive power lies with the Council of Ministers answerable to the legislature.
- The non-justiciability of advice is a specific shield around the process of advice, not around the resulting action, which remains subject to the rule of law and judicial review.
- While the advice itself is protected, the grounds or material on which a decision is based might still be relevant in a judicial review of the action taken.
- This provision needs to be read in conjunction with Article 74(1) (Council of Ministers to aid and advise President) and Article 75(3) (collective responsibility).
Summary
Article 74(2) of the Indian Constitution explicitly prohibits courts from inquiring into whether ministers tendered advice to the President and, if so, what that advice was. This provision safeguards the confidentiality and encourages free and fearless deliberation within the Council of Ministers while advising the head of state. It insulates the process of tendering advice from judicial scrutiny, reinforcing the principle of collective political responsibility to Parliament. However, this non-justiciability applies only to the advice itself and does not bar courts from examining the legality or constitutionality of actions taken by the President based on that advice.