73. Extent of executive power of the Union:
(1) Subject to the provisions of this Constitution, the executive power of the Union shall extend:
(a) to the matters with respect to which Parliament has power to make laws; and
(b) to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement.
Provided that the executive power referred to in sub-clause (a) shall not, save as expressly provided in this Constitution or in any law made by the Parliament, extend in any State to matters with respect to which the Legislature of the State has also power to make laws.
(2) Until otherwise provided by the Parliament, a State and any officer or authority of a State may, notwithstanding anything in this Article, continue to exercise in matters with respect to which the Parliament has power to make laws for that State such executive power or functions as the State or officer or authority thereof could exercise immediately before the commencement of this Constitution.
COMMENTS
The executive power headed by the President of the Centre extends to matters with respect to which the Parliament can make laws. The executive power is co-extensive with the legislative competence of the Union. In respect of matters in Concurrent List under Seventh Schedule of the Constitution, the primary power lies with States and exceptionally in Union.
However, the Parliament can decide to take over the executive power in relation to such matters. The treaty making power, however, squarely falls within Article 73. The Union executive can exercise such rights, authority and jurisdiction as are exercisable by India by virtue of any treaty or agreement. An adjustment of a boundary which international law regards as valid, between two nations should be recognised by the courts and the executive can always implement it unless it involves cession of territory in which case Parliamentary intervention should be had.
Council of Ministers
74. Council of Ministers to aid and advise President:
(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 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.
(2) The question whether any, if so what, advice was tendered by Ministers to the President shall not be inquired into in any court.
COMMENTS
Though the executive power of the Union is vested in the President, he exercises his power with the aid and advice of the Council of Ministers. The Prime Minister is head of the Council of Ministers. The President has discretion to appoint the Prime Minister but he has to see that the Prime Minister enjoys the confidence of the Houses or commands the majority in the House. The Prime Minister functions as the link or the buckle between the President and the Council of Ministers. Article 75(3) contains that the Council of Ministers shall be collectively responsible to the House of People. This principle of ‘collective responsibility’ is the basis of the Parliamentary democracy which has been adopted in India. Accordingly, the Council of Ministers is answerable to the Parliament for the acts of the Government and not the President. It was made binding by Article 74(1) in 1976 by the 44th Amendment that the President shall, in exercise of his functions, act in accordance with the advice tendered by the Council of Ministers. However, he may send any advice by the Prime Minister for reconsideration by the Council of Ministers. But if the same advice is again tendered, the President shall be bound to okay that. If the President doesn’t agree with the advice of the Council of Ministers, the Council of Ministers may resign and then the President will not be able to find another Prime Minister who can secure the support of the House of the People. “The President is bound in every case to act on the advice of the Cabinet.” He is only the Constitutional or figure-head, though in some important appointments, he has lot of freedom and discretion.
The communication between the President and his council of Ministers is confidential. However, the courts are justified in looking into the basis of the advice and sometimes the advice tendered by the Council of Ministers.
75. Other provisions as to Ministers:
(1) The Prime Ministers shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Prime Minister.
(2) The Ministers shall hold office during the pleasure of the President.
(3) The Council of Ministers shall be collectively responsible to the House of the people.
(4) Before a Minister enters upon his office, the President shall administer to him the oaths of office and Secretary according to the forms set out for the purpose in the Third Schedule.
(5) A Minister, who for any period of six consecutive months is not a member of either House of Parliament, shall at the expiration of that period cease to be a Minister.
(6) The salaries and allowances of Ministers shall be such as the Parliament may from time to time by law determine and, until the Parliament so determines, shall be as specified in the Second Schedule.
COMMENTS
It is an accepted convention that the President cannot appoint anyone not recommended by the Prime Minister and will hold office at the satisfaction of the Prime Minister. Thus, the Prime Minister is the Chief Executive Officer of the Republic of India. The Prime Minister should not be appointed arbitrarily. In case of lack of majority of any single party, the golden rule in such an eventuality is to call the leader of the single largest party or alliance first having majority or seek to be satisfied in advance about a leader having the support of more than half of the members of the Lok Sabha. The Constitution provides only for collective responsibility of the Cabinet led by the Prime Minister. It means that there can be no confidence in a single Minister. The entire Council of Ministers is jointly responsible to the Lok Sabha for all the acts of the Government. Therefore, it stands or falls together. If it loses the confidence of the House, the entire Council of Ministers must resign. Also, collective responsibility would mean that the Minister must not speak in public in different voices. If any Minister disagrees with a decision taken or a policy adopted by the Cabinet, he must either resign or own equal or joint responsibility.
He is in a boat which either floats or sinks with all the members on board. However, in case of dissolution or loss of majority, the President cannot function alone at the Centre. He has to have with him a caretaker Prime Minister along with the Cabinet of his choice till the fresh elections are over and the relative strength of the parties in the newly elected House of people is known. It operates in all important Parliamentary governments, i.e. U.K., Australia, Canada, Ireland, France, New Zealand and the Union of South Africa. The principle of collective responsibility is both the cause and effect of the Cabinet’s solidarity.