Article 74 of Indian Constitution
🔹 Article 74 of the Indian Constitution: Text and Purpose
✅ Text of Article 74
Article 74(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.
Proviso to Article 74(1):
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.
Article 74(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.
🔹 Explanation of Article 74
1. Establishment of Council of Ministers
Article 74 mandates the formation of a Council of Ministers headed by the Prime Minister.
This Council is responsible for aiding and advising the President, who is the constitutional head of the State.
2. Binding Nature of Advice
After the 42nd Constitutional Amendment (1976), it was explicitly stated that the President shall act in accordance with the advice of the Council of Ministers.
The 44th Amendment (1978) added the proviso, allowing the President to send the advice back once for reconsideration. But after reconsideration, the President must accept it.
3. Presidential Discretion – Limited
The President’s role is mostly ceremonial and bound by the advice of the Council.
Discretion is extremely limited and not absolute under a parliamentary system.
4. Secrecy of Advice (Article 74(2))
The courts cannot question or examine what advice was given by the ministers to the President.
Ensures confidentiality in governance and prevents judicial interference in executive functioning.
🔹 Key Constitutional Amendments Affecting Article 74
| Amendment | Year | Key Change |
|---|---|---|
| 42nd Amendment | 1976 | Made the advice of Council of Ministers binding on the President |
| 44th Amendment | 1978 | Allowed the President to send advice back once for reconsideration |
🔹 Important Case Law on Article 74
1. Shamsher Singh v. State of Punjab (1974)
Facts:
Petitioner challenged the Governor's and President’s discretionary powers in appointments and removals.
Held:
The Supreme Court held that the President and Governors must act on the advice of the Council of Ministers. They are constitutional heads, and their powers are not personal or discretionary (except in very rare circumstances).
Significance:
This case laid the foundational interpretation of Article 74 and confirmed that India follows the Westminster model of parliamentary government.
2. S.R. Bommai v. Union of India (1994)
Context:
Concerned the use of Article 356 (President’s Rule) and whether the President’s satisfaction can be reviewed.
Relation to Article 74:
Though Article 74(2) protects ministerial advice from judicial scrutiny, the Court ruled that the material or evidence leading to advice can be examined.
Significance:
Courts cannot examine advice itself, but can review the basis or circumstances under which the President acts.
Strengthened the idea of constitutional accountability.
3. U.N. Rao v. Indira Gandhi (1971)
Issue:
Whether the President could appoint a Prime Minister in the absence of a Council of Ministers.
Held:
The Court ruled that until a Council of Ministers is appointed, the President must act on his own judgment to appoint a Prime Minister.
Significance:
Clarified the discretionary power of the President only in specific constitutional gaps, like when there is no clear majority.
4. K.M. Nanavati v. State of Maharashtra (1961)
Issue:
Pardon by the President under Article 72.
Relation to Article 74:
Court held that the President’s power to pardon is exercised on the advice of the Council of Ministers.
Significance:
Reinforced that even mercy powers of the President are not independent of ministerial advice.
🔹 Summary Table: Article 74
| Element | Explanation |
|---|---|
| Council of Ministers | Must exist with Prime Minister as head |
| Advice to President | Binding after 42nd Amendment |
| Reconsideration Provision | President may return advice once (added by 44th Amendment) |
| Secrecy Clause | Courts cannot inquire into what advice was given (Article 74(2)) |
| President's Discretion | Very limited; mostly bound by ministerial advice |
| Nature of Government | Parliamentary system based on collective responsibility |
🔹 Why is Article 74 Important?
Ensures parliamentary supremacy over the executive.
Limits arbitrary power of the President.
Maintains the constitutional balance between nominal and real executive.
Forms the bedrock of India’s parliamentary democracy.
🔹 Final Note
Article 74 reflects the principle of responsible government—the real power rests with the elected representatives (Council of Ministers), and the President acts on their advice to uphold democratic governance.
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