Article 74 of the Costitution of India with Case law
🔸 Article 74 of the Constitution of India – Council of Ministers to Aid and Advise the President
📜 Bare Text of Article 74 (Post 42nd and 44th Amendments)
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.
Provided 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.
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.
🧠 Purpose and Significance
Ensures the President functions as a constitutional head.
Real executive power lies with the Council of Ministers.
Ensures a parliamentary system of government with collective responsibility.
Introduced binding nature of advice post 42nd Amendment (1976); the 44th Amendment (1978) added a provision allowing the President to seek reconsideration once.
⚖️ Key Case Laws Interpreting Article 74
🔹 1. Samsher Singh v. State of Punjab (1974 AIR 2192)
Facts: Concerned the powers of Governor and President.
Held: The President acts only on the advice of the Council of Ministers. The President is not personally empowered to take decisions independently.
Importance: Laid down that the real executive power rests with ministers and not with the nominal head.
🔹 2. U.N. Rao v. Indira Gandhi (1971 AIR 1002)
Held: Even when Lok Sabha is dissolved, the Council of Ministers continues to advise the President until a new government is formed.
Relevance: Clarified continuity of executive advice under Article 74.
🔹 3. S.R. Bommai v. Union of India (1994 AIR 1918)
Issue: Misuse of Article 356 and President’s Rule.
Held: Advice to President must be based on relevant and constitutional grounds.
While courts cannot inquire into advice under Article 74(2), they can review the material basis of Presidential satisfaction.
🔹 4. Rameshwar Prasad v. Union of India (2006)
Held: President's decision can be challenged, and courts can examine whether the advice given was based on mala fide grounds or not.
Reinforced judicial review despite Article 74(2)’s bar on direct inquiry into advice.
✅ Summary:
| Aspect | Provision |
|---|---|
| Who gives advice? | Council of Ministers headed by PM |
| Is it binding? | Yes, after 42nd & 44th Amendments |
| Can President ask for reconsideration? | Yes, once |
| Can courts question the advice? | No, but they can review the action based on advice (indirectly) |
| Landmark Case | Samsher Singh v. State of Punjab |
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