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Article 74

Article 74 of the Indian Constitution establishes that the President of India is aided by a Council of Ministers headed by the Prime Minister in exercising executive powers. The President must act according to the advice of the Council of Ministers. However, the President can ask the Council to reconsider its advice. The courts cannot inquire about advice given to the President, unless documents are produced voluntarily. Article 74 separates executive powers between the President and Council of Ministers, with the latter exercising real power. It checks arbitrary use of presidential powers and requires the Council's consent for emergency rule.

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86 views2 pages

Article 74

Article 74 of the Indian Constitution establishes that the President of India is aided by a Council of Ministers headed by the Prime Minister in exercising executive powers. The President must act according to the advice of the Council of Ministers. However, the President can ask the Council to reconsider its advice. The courts cannot inquire about advice given to the President, unless documents are produced voluntarily. Article 74 separates executive powers between the President and Council of Ministers, with the latter exercising real power. It checks arbitrary use of presidential powers and requires the Council's consent for emergency rule.

Uploaded by

Shivamp6
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© © All Rights Reserved
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Introduction to Article 74 of the Constitution of India

By- Sudhanshu Sachan, B.A.LLB(hons.), Central University of South Bihar.

Introduction-
Article 74 is mentioned under The Union (Chapter 1) of The Executive (Part v) of the
Constitution of India, 1950.

Council of ministers

Council of ministers to aid and advise President


74. 3[(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:]
3[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.]
(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.

According to Article 74(1) of the Constitution of India the President of India will be aided by
the Prime minister of India and other ministers to help him perform his functions. The
President of India needs to act on the advice of the council of ministers.

 The Honourable Supreme Court of India through its various decisions has said that
the President is a constitutional head and the real power is in the hands of the council
of ministers1.
 The discretionary powers of the President have not got any distinction in normal times
or in times of emergency. In both the situations the President has to act on the advice
of the council of ministers. By the 44th Constitutional Amendment Act, 1978 the
situation became clear. The President can impose emergency on the state only after a
written approval by the council of ministers.

When can President act independently -

1. Appointment of When there is no clear majority in the Lok Sabha by a single party or
the Prime even by coalition parties, then the President can appoint the Prime
Minister minister according to his own judgement and wisdom.
2. Appointment of When the ruling party cannot meet and there is no clear seniority or
new Prime merit in the cabinet ministers and a name from outside cabinet is
Minister in case decided.
of sudden death

1. Samaher Singh v. State of Punjab, AIR 1971 SC 2192, U.N. Rao v. Indira Gandhi, AIR 1971 SC 1002.

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Dissolution of Under Article 85(2)(b) of the Constitution of India, the President can
3. Lok Sabha dissolve the Lok Sabha if the council of ministers have lost their
majority in Lok Sabha or the no confidence motion against the ruling
party has passed.
4. Dismissal of Under Article 75(2) of the Constitution of India if the council of
ministers ministers have lost the support of the house but refuse to resign the
President can dismiss them.

Under Article 74, if a bill is presented to the President of India, he can send the bill back to
the council of ministers for their reconsideration. But once the reconsidered bill with or
without any change comes to the President he has to give his assent.

According to clause 2 of Article 74, the court cannot look into as what advice was given by
the council of ministers to the President. But if the government itself produces the documents
and the papers related to cabinet decisions then the court can look into it2.

This Article shows how separation of power is present in our Constitution. There is
separation of power even between the executives. This article puts a check on the President
so that he cannot exercise his powers arbitrarily. He has to act on the advice of the council of
ministers. The country has gone through the dark times of emergency and has suffered a lot.
By the virtue of this article it has been made clear that without the written assent of the
council of ministers emergency cannot be imposed on the country to protect the country from
further problems. These are some very crucial and important aspects of Article 74.

2. State of M.P. v. Nandlal, AIR1987 SC 251; S.P. Gupta v. Union of India, AIR 1982 S.C. 149.

2|Page

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