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Case Law on Articles 74(1) and 75(3)
[Is it essential to have a Council of Ministers under Article 74(1) even at a time when the House of the People has been dissolved or its term has expired?]
A writ of quo warranto was prayed in this appeal against the continuation of Smt. Indira Gandhi as the Prime Minister since the House of the People had been dissolved.
The appellant contended that under the Constitution, as soon as the House of the People was dissolved under Article 85(2), the Council of Ministers, i.e. the Prime Minister and other Ministers, ceased to hold office. This argument was based on the wording of Article 75(3), which prescribes that “the Council of Ministers shall be collectively responsible to the House of the People”.
How can the Council of Ministers be collectively responsible to the House of the People when it has been dissolved under Article 85(2)? It was contended that no void in the carrying out of functions will be created because the President can exercise the executive power of the Union either directly or through officers subordinate to him in accordance with Article 53(1) of the Constitution.
S.M. SIKRI, C.J.
The House of the People was dissolved by the President on December 27, 1970. The respondent was the Prime Minister before the dissolution. Is there anything in the Constitution, and in particular in Article 75(3), which renders her carrying on as Prime Minister contrary to the Constitution?
It must be remembered that we are interpreting a Constitution and not an Act of Parliament, a Constitution which establishes a Parliamentary system of Government with a Cabinet. In trying to understand one may well keep in mind the conventions prevalent at the time the Constitution was framed.
Let us now look at the relevant Articles of the Constitution. It will be noticed that Article 74(1) is mandatory in form. The Constituent Assembly did not choose the Presidential system of Government. If we were to give effect to this contention of the appellant we would be changing the whole concept of the Executive. It would mean that the President need not have a Prime Minister and Ministers to aid and advise in the exercise of his functions. As there would be no ‘Council of Ministers, nobody would be responsible to the House of the People. With the aid of advisers he would be able to rule the country at least till he is impeached under Article 61.
Now comes the crucial clause three of Article 75. The appellant urges that the House of People having been dissolved this clause cannot be complied with. According to him it follows from the provisions of this clause that it is was contemplated that on the dissolution of the House of People the Prime Minister and the other ministers must resign or be dismissed by the President and the President must carry on the Government as best as he can with the aid of the Services.
As we have shown above, Article 74(1) is mandatory and, therefore, the President cannot exercise the executive power without the aid and advice of the Council of Ministers. We must then harmonise the provisions of Article 75(3) with Article 74(1) and Article 75(2). Article 75(3) brings into existence what is usually called “Responsible Government”. In other words the Council of Ministers must enjoy the confidence of the House of People. While the House of People is not dissolved under Article 85(2)(a), Article 75(3) has full operation. But when it is dissolved the Council of Ministers cannot naturally enjoy the confidence of the House of People. Nobody has said that the Council of Ministers does not enjoy the confidence of the House of People when it is prorogued.
In the context, therefore, this clause must be read as meaning that Article 75(3) only applies when the House of People does not stand dissolved or prorogued. We are not concerned with the case where dissolution of the House of People takes place under Article 83(2) on the expiration of the period of five years prescribed therein, for Parliament has provided for that contingency in Section 14 of the Representation of Peoples Act, 1951.
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