Maarg Manthan · Topic 15.2

Council of Ministers to Aid and Advise the President (Article 74)

Indian Polity › Prime Minister and Council of Ministers · Topic 15.2

Article 74 creates a council of ministers headed by the Prime Minister whose advice binds the President (after at most one reconsideration) and cannot be inquired into by any court; the cabinet is its inner core, with the kitchen cabinet informally within it.

6 min read · UPSC Prelims · Polity · Prime Minister and Council of Ministers

At a Glance

What it is The body that advises the President and runs the government
Article Article 74
Advice Binding, with one reconsideration permitted
Courts Cannot inquire into the advice given
Exam link UPSC Prelims, Polity: Prime Minister and Council of Ministers

Where Does It Fit?

This is the second topic of the category on the Prime Minister and Council of Ministers. The council of ministers headed by the Prime Minister is the real executive authority in the politico-administrative system. The principles of the parliamentary system are not detailed in the Constitution but two Articles, 74 and 75, deal with them in a broad, sketchy and general manner.

What Article 74 Provides

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 functions, act in accordance with such advice. The President may require the council to reconsider such advice, and shall act in accordance with the advice tendered after reconsideration.
The advice tendered by ministers to the President shall not be inquired into in any court.

The 42nd Amendment Act of 1976 made the advice binding, and the 44th Amendment Act of 1978 added the proviso on reconsideration. In the original Constitution there was no specific provision making the advice binding. The bar on inquiry emphasises the intimate and confidential relationship between the President and ministers.

Supreme Court on Article 74

In U.N.R. Rao v. Indira Gandhi (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, so the President cannot exercise executive power without the aid and advice of the council, and any exercise of executive power without it would be unconstitutional. In Shamsher Singh v. State of Punjab (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 that of the council of ministers with whose aid and advice the President exercises powers and functions.

Council of Ministers and Cabinet Compared

Council of ministers	Cabinet
A wider body with three categories: cabinet ministers, ministers of state and deputy ministers	A smaller body of cabinet ministers only; part of the council
Does not meet as a body; has no collective functions	Meets frequently, usually once a week, to deliberate and take decisions
Vested with all powers in theory	Exercises the powers of the council in practice
Functions are determined by the cabinet	Directs the council through policy decisions binding on all ministers
Implements the decisions of the cabinet	Supervises the implementation of its decisions
Constitutional body, dealt with in Articles 74 and 75; size not fixed in the Constitution but capped at 15% of the Lok Sabha by the 91st Amendment	Inserted in Article 352 by the 44th Amendment in 1978, which only defines it as the council of the Prime Minister and other ministers of cabinet rank; role based on convention
Collectively responsible to the Lok Sabha	Enforces that collective responsibility

Composition of the Council

The council of ministers has three categories: cabinet ministers, ministers of state and deputy ministers. Cabinet ministers head the important ministries such as home, defence, finance and external affairs, and attend cabinet meetings. Ministers of state can have independent charge or be attached to cabinet ministers; those with independent charge exercise the same powers as cabinet ministers but are not members of the cabinet and attend only when invited. Deputy ministers are attached to cabinet ministers or ministers of state and have no independent charge. At times a deputy prime minister is included for political reasons. Parliamentary secretaries are not members of the council and are appointed by the Prime Minister, not the President.

Role of the Cabinet and the Kitchen Cabinet

The cabinet is the highest decision-making authority, the chief policy-formulating body, the supreme executive authority, the chief coordinator, an advisory body to the President whose advice is binding, the chief crisis manager, and it deals with major legislative and financial matters, higher appointments and foreign affairs. A still smaller body called the Inner Cabinet or Kitchen Cabinet has become the real centre of power. It consists of the Prime Minister and a few influential colleagues and may include outsiders. It is efficient and secret, but it reduces the authority of the cabinet and allows outsiders to influence government. It is an extra-constitutional body and exists in the USA and Britain also.

Why Is This Topic Important?

Table Council versus cabinet is asked often
Landmark cases U.N.R. Rao and Shamsher Singh
Amendments 42nd, 44th and 91st are linked

What Came Next?

The next topic covers other provisions as to ministers under Article 75.

Key People and Terms

Aid and advise Ministers advise the President
Reconsideration One request allowed
Kitchen Cabinet Informal inner circle of the PM
Parliamentary secretary Not a member of the council
Minister of state Junior minister, sometimes independent charge

Exam Corner

Points to Remember

Article 74; advice binding since the 42nd Amendment.
Courts cannot inquire into the advice.
Cabinet defined in Article 352 by the 44th Amendment.
Council size capped at 15% of the Lok Sabha.

Do Not Confuse With

Council of ministers and cabinet Council is wider; cabinet is the inner group
Minister of state with independent charge and a cabinet minister Same powers in the ministry but not a member of the cabinet
Parliamentary secretaries and deputy ministers Parliamentary secretaries are appointed by the PM and are not in the council

Memory Hook

Council aids, cabinet decides, kitchen cooks; advice binds once reconsidered.

Mains Angle

Questions on this topic usually ask about the distinction and the binding nature of advice. Use these points to add depth.

Real executive Council runs the government
Binding advice 42nd and 44th Amendments
Layers Council, cabinet and kitchen cabinet
Judicial position U.N.R. Rao and Shamsher Singh

A Question You May Face

An original practice question, not a past paper question.

“Distinguish between the council of ministers and the cabinet and discuss the nature of advice under Article 74.”

How to Answer

Introduction Article 74.
Distinction Table.
Advice Binding and reconsideration.
Conclusion Role of kitchen cabinet.

GS Relevance

Prelims: Indian Polity, council of ministers. GS Paper 2: Executive.

Frequently Asked Questions

What does Article 74 say?

Article 74 provides for a council of ministers headed by the Prime Minister to aid and advise the President, who must act in accordance with that advice, though the President may require reconsideration once. It also bars courts from inquiring into the advice tendered.

Is the advice of the council of ministers binding on the President?

Yes. The 42nd Amendment Act of 1976 made the advice binding, and the 44th Amendment Act of 1978 allowed the President to ask the council to reconsider it, after which the President must act on the advice tendered.

What is the difference between the council of ministers and the cabinet?

The council of ministers is a wider body with cabinet ministers, ministers of state and deputy ministers, while the cabinet is a smaller body of cabinet ministers only, which meets frequently, takes decisions and directs the council.

What did the U.N.R. Rao case decide?

In U.N.R. Rao v. Indira Gandhi (1971) the Supreme Court held that the council of ministers does not cease to hold office even after the Lok Sabha is dissolved, and that Article 74 is mandatory, so executive power cannot be exercised without its aid and advice.

What is the Kitchen Cabinet?

The Kitchen Cabinet or Inner Cabinet is an informal, smaller body of the Prime Minister and a few trusted colleagues, sometimes including outsiders, that has become the real centre of power. It is efficient and secret but reduces the authority of the cabinet.

PYQ Practice — Statement Analysis

1 The cabinet is a part of the council of ministers.

True

The council is wider.

2 Courts can inquire into the advice given by ministers to the President.

False

Article 74(2) bars it.

3 The cabinet is defined in Article 352.