Council of Ministers and collective responsibility - Constitutional Law II

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1. The constitutional provisions
2. Collective responsibility
3. Individual responsibility
4. The Prime Minister and the Chief Minister
5. Appointment of the Chief Minister and the hung Assembly
6. Non-member Ministers
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

The real executive. The President and the Governor hold the executive power in name; the Council of Ministers, headed by the Prime Minister or Chief Minister, exercises it, and answers for it to the elected House. Collective responsibility is the rule that makes this arrangement democratic.

1. The constitutional provisions

Article 74(1) — a Council of Ministers with the Prime Minister at the head to aid and advise the President, who shall act on that advice (subject to one reconsideration). Article 74(2) — the advice cannot be inquired into in any court.
Article 75(1) — the Prime Minister is appointed by the President; other Ministers are appointed by the President on the Prime Minister's advice.
Article 75(1A) — the total number of Ministers, including the Prime Minister, may not exceed 15 per cent of the total membership of the Lok Sabha.
Article 75(1B) — a member disqualified for defection under the Tenth Schedule cannot be a Minister until re-elected or until the end of the term.
Article 75(2) — Ministers hold office during the pleasure of the President.
Article 75(3) — the Council is collectively responsible to the Lok Sabha.
Article 75(5) — a Minister who is not a member of either House for six consecutive months ceases to be a Minister.
Articles 163 and 164 — the State counterparts. Article 164(1A) caps the State Council at 15 per cent of the Assembly, with a minimum of twelve; the proviso to Article 164(1) requires a Minister for tribal welfare in Chhattisgarh, Jharkhand, Madhya Pradesh and Odisha; Article 164(2) makes the Council collectively responsible to the Assembly.

Clauses (1A) and (1B) of Articles 75 and 164 were inserted by the Ninety-first Amendment (2003), to stop jumbo ministries used to reward defectors.

There must always be a Council of Ministers. In U.N.R. Rao v. Indira Gandhi, 1971 INSC 82, (1971) 2 SCC 63, the Court held that the Prime Minister and the Council do not cease to hold office on the dissolution of the Lok Sabha: Article 74 is mandatory, and the President cannot exercise executive power without ministerial advice even in the interval before a new House meets.

2. Collective responsibility

Collective responsibility, borrowed from British practice, has three parts:

Survival together. A vote of no confidence against the government, or the defeat of a money Bill or a major policy, obliges the whole Council to resign. Ministers sink or swim together.
Unanimity in public. A Cabinet decision binds every Minister, including one who argued against it in the Cabinet room. A Minister who cannot defend it must resign.
Secrecy. Cabinet deliberations are confidential, which is reinforced by the oath of secrecy and by Article 74(2).

The rule is enforced politically, through the no-confidence motion in the Lok Sabha, and not by the courts. Because responsibility runs to the Lok Sabha alone, defeat in the Rajya Sabha does not bring a government down.

3. Individual responsibility

Each Minister holds office during the President's pleasure (Article 75(2)), which in practice means the Prime Minister's pleasure: the Prime Minister can ask a Minister to resign and advise dismissal if the Minister refuses. A Minister is also answerable to the House for the working of the department. Lal Bahadur Shastri's resignation as Railway Minister after the Ariyalur rail accident in 1956 is the stock example of the convention, though it has been honoured more often in the breach.

4. The Prime Minister and the Chief Minister

The Prime Minister is the head of the Council (Article 74), chooses and removes Ministers, allocates portfolios, presides over the Cabinet, and is the channel of communication with the President under Article 78: the duty to communicate Cabinet decisions and proposed legislation, to furnish information the President calls for, and to submit for the Council's consideration any matter decided by a single Minister. The Prime Minister's resignation or death dissolves the whole Council. The old description of “first among equals” understates the office; the Prime Minister is the keystone of the Cabinet arch. The Chief Minister holds the same position in the State, with Article 167 as the counterpart of Article 78.

5. Appointment of the Chief Minister and the hung Assembly

Where one party has a clear majority, the Governor must call its leader. The Governor's judgment comes into play only when no party or pre-poll alliance has a majority. Following the Sarkaria Commission, the order of preference is: a pre-poll alliance commanding a majority; the single largest party able to secure support; a post-poll coalition with all partners joining government; a post-poll alliance with some partners supporting from outside.

S.R. Bommai v. Union of India, 1994 INSC 111, (1994) 3 SCC 1 — the question whether a ministry commands a majority must be decided by a floor test in the Assembly, not by the Governor counting letters of support or parading legislators in the Raj Bhavan.
Rameshwar Prasad v. Union of India, 2006 INSC 42, (2006) 2 SCC 1 — the Governor cannot refuse to let a party or group claiming a majority form a government on the ground that the majority was obtained by unethical means; the dissolution of the Bihar Assembly on that ground was held unconstitutional.
Shivraj Singh Chouhan v. Speaker, Madhya Pradesh Legislative Assembly, 2020 INSC 335 — the Governor may call for a floor test even while the Assembly is in session, where there is objective material suggesting that the government has lost its majority.
Subhash Desai v. Principal Secretary, Governor of Maharashtra, 2023 INSC 516 — the converse: the Maharashtra Governor's call for a floor test in 2022 was held unwarranted, since he had no objective material that the government had lost the confidence of the House, and a dissatisfaction within one party is not a ground for a floor test.

6. Non-member Ministers

Articles 75(5) and 164(4) allow a person who is not a member of the legislature to be appointed a Minister, or even Prime Minister or Chief Minister, for six months. In S.R. Chaudhuri v. State of Punjab, 2001 INSC 373, (2001) 7 SCC 126, a non-member was made a Minister in Punjab, failed to get elected within six months, resigned, and was reappointed during the same legislature's term. The Court held the reappointment unconstitutional. The six-month window is an exception for a short period; it cannot be renewed by successive appointments without the person getting elected, since that would defeat the principle of representative and responsible government.

Problem. After an election no party has a majority. The Governor invites the leader of the second-largest party, who has letters of support from some independents, and gives him sixty days to prove his majority. The largest party challenges this. Answer: the Governor's choice is open to review where it is mala fide or irrational (Rameshwar Prasad). The test of majority is the floor of the House (Bommai), and a long interval invites horse-trading; a court would likely direct an early floor test rather than substitute its own choice of Chief Minister.

How this is examined

Recent KSLU papers set “Council of Ministers” and “appointment of the Chief Minister” as essays or short notes. For the first, cover Articles 74 and 75, the 15 per cent cap, collective and individual responsibility, and the Prime Minister's position under Article 78. For the second, cover the Governor's choice in a hung Assembly, the Sarkaria order of preference, Bommai's floor test, Rameshwar Prasad, and S.R. Chaudhuri on non-member Chief Ministers.