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 Prime Minister and Council of Ministers-

• The executive powers of the President are exercised by the Council of Ministers headed by Prime Minister

• Prime Minister is the real executive authority in India

Appointment of the Prime Minister-

The Constitution does not contain any specific procedure for the selection and appointment of the Prime Minister. Article 75 says only that the Prime Minister shall be appointed by the president

• Normally the President has to invite leader of the majority party to form the government.

• In case no single party is in clear majority, the President invites the person who is likely to command support of two or more parties which make up majority in the Lok Sabha. 

• Once appointed, the Prime Minister holds office so long as he/she enjoys the support of the majority of members of Lok Sabha

Can member of Rajyasabha becomes Prime Minister ?

Yes member of Rajyasabha becomes Prime Minister and it happened in following cases like-

Mrs. Indira Gandhi was first appointed, Prime Minster in 1966 from Rajyasabha

I. K. Gujral became Prime Minister in 1997

In 1996 H.D. Deve Gowda was not a member of any House and He later entered the Rajya Sabha

Rajya Sabha member Dr. Manmohan Singh became the Prime Minister in 2004

Powers and Functions of the Prime Minister-

Members of the Council of Ministers are appointed by the President on the advice of the Prime Minister

• The Prime Minister decides portfolios of the Ministers, and can alter these at his will

• The Prime Minister presides over the meetings of the Cabinet and conducts its proceedings

• The decisions of the Cabinet are conveyed to the President by the Prime Minister

• All important appointments are made by the President on the advice of the Prime Minister

• Prime Minister act as the chairman of NITI ayog ,National Integration Council, Inter-State Council and National Water Resources Council

• As a leader of the nation, he meets various sections of people in different states and receives memoranda from them regarding their problems, and soon.

There are Some Duties of Prime Minister which are clearly defined in Article 78-

It shall be the duty of the Prime Minister—
(a) to communicate to the President all decisions of the Council of Ministers relating to the administration of the affairs of the Union and proposals for legislation;
(b) to furnish such information relating to the administration of the affairs of the Union and proposals for legislation as the President may call for; and
(c) if the President so requires, to submit for the consideration of the Council of Ministers any matter on which a decision has been taken by a Minister but which has not been considered by the Council

The Council of Ministers and The Cabinet-

• The Council of Ministers Structure of Government consists of all categories of Ministers i.e., Cabinet Ministers and Ministers of State

• Prior to 44th Amendment of the Constitution, the word ‘Cabinet’ was not mentioned in the Constitution and was added through this amendment

• The Cabinet consists of Senior Ministers only. Its number varies from 15 to 30 while the entire Council of Ministers can consist of even more than 70

• It is the Cabinet that determines the policies and programmes of the Government and not the Council of Ministers

• The Council of Ministers as a whole rarely meets. The Cabinet on the other hand meets as frequently as possible

Powers and Functions of the Cabinet-

• It is the body which determines government policy for presentation to the Parliament

• It is responsible for implementing government policy

• The cabinet is the core body of the government and takes all the major decision

Appointment of Ministers-

• The Prime Minister is appointed by the President, while the other ministers are appointed by the President on the advice of the Prime Minister.

• A person who is not a member of either House of Parliament can also be appointed as a minister But, within six months, he must become a member either by election or by nomination of either House of Parliament

•  Although minister can take part in proceedings of other house but he can vote only in the House of which he is a member

 Oath-

• In India, the President administers the oath of office to the Council of Ministers

• In 1990, the oath by Devi Lal as deputy prime minister was challenged as being unconstitutional as the Constitution provides only for the Prime Minister and ministers.

• The Supreme Court upheld the oath as valid and stated that describing a person as Deputy Prime Minister is descriptive only and such description does not confer on him any powers of Prime Minister

• There are some Articles which deals Directly or Indirectly with Prime minister and Council of Ministers

They are a follows-

 Article 74 : Council of Ministers to aid and advise President

(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

(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

Article 75: Other provisions as to Ministers

(1) The Prime Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Prime Minister

(2) The Minister shall hold office during the pleasure of the President

(3) The Council of Ministers shall be collectively responsible to the House of the People

(4) Before a Minister enters upon his office, the President shall administer to him the oaths of office and of secrecy according to the forms set out for the purpose in the Third Schedule

(5) A Minister who for any period of six consecutive months is not a member of either House of Parliament shall at the expiration of that period cease to be a Minister

(6) The salaries and allowances of Ministers shall be such as Parliament may from time to time by law determine and, until Parliament so determines, shall be as specified in the Second Schedule The Attorney General for India

Article 77-

Conduct of business of the Government of India

(1) All executive action of the Government of India shall be expressed to be taken in the name of the President

(2) Orders and other instruments made and executed in the name of the President shall be authenticated in such manner as may be specified in rules to be made by the President, and the validity of an order or instrument which is so authenticated shall nor be called in question on the ground that it is not an order or instrument made or executed by the President

(3) The President shall make rules for the more convenient transaction of the business of the Government of India, and for the allocation among Ministers of the said business

Article 78 uties of Prime Minister as respects the furnishing of information to the President, etc.

It shall be the duty of the Prime Minister

(a) to communicate to the President all decisions of the council of Ministers relating to the administration of the affairs of the union and proposals for legislation;

(b) to furnish such information relating to the administration of the affairs of the Union and proposals for legislation as the President may call for; and

(c) if the President so requires, to submit for the consideration of the Council of Ministers any matter on which a decision has been taken by a Minister but which has not been considered by the Council

91st Constitutional Amendment Act, 2003-

This is one of the most important amendments with respect to the Prime minister and Councils of minister and it brought some changes in Article 75

It stated that-

The total number of ministers, including the Prime Minister, in the CentralCouncil of Ministers shall not exceed 15% of the total strength of the LokSabha.
A member of either house of Parliament belonging to any political party who is disqualified on the ground of defection shall also be disqualified to be appointed as a minister.
A member of either House of Parliament or either House of a State Legislature belonging to any political party who is disqualified on the ground of defection shall also be disqualified to hold any remunerative political post. 

Remunerative political post means
-any office under the central government or a state government where the salary or remuneration for such office is paid out of the public revenue of the concerned government; any office under a body, whether incorporated or not, which is wholly or partially owned by the central government or a state government and the salary or remuneration for such office is paid by such body, except where such salary or remuneration paid is compensatory in nature

The provision of the Tenth Schedule (anti-defection law) pertaining to exemption from disqualification in case of split by one-third members of legislature party has been deleted. It means that the defectors have no more protection on grounds of splits

It also brought some changes in council of ministers in state-

The total number of ministers, including the Chief Minister, in the Council of Ministers in a state shall not exceed 15% of the total strength of the legislative Assembly of that state. But, the number of ministers, including the Chief Minister, in a state shall not be less than 12.
A member of either House of a state legislature belonging to any political party who is disqualified on the ground of defection shall also be disqualified to be appointed as a minister

The provision of the Tenth Schedule (anti-defection law) pertaining to exemption from disqualification in case of split by one-third members of legislature party has been deleted. It means that the defectors have no more protection on grounds of splits

A member of either House of Parliament or either House of a State Legislature belonging to any political party who is disqualified on the ground of defection shall also be disqualified to hold any remunerative political post. 

Article 75(3) have mentioned about collective responsibility of council of minister , lets have an idea about Individual and collective Responsibility

Collective Responsibility-

It means all the ministers own joint responsibility to the Lok Sabha for all their acts of ommission and commission

When the Lok Sabha passes a no-confidence motion against the council of ministers, all the ministers have to resign including those ministers who are from the Rajya Sabha.  Alternatively, the council of ministers can advise the president to dissolve the Lok Sabha on the ground that the House does not represent the views of the electorate faithfully and call for fresh elections

The Cabinet decisions bind all cabinet ministers and other ministers even if they differed in the cabinet meeting

Individual Responsibility-

Article 75(2) says that The Ministers shall hold office during the pleasure of the President which means that the President can remove a minister (only on advice of P.M) even at a time when the council of ministers enjoys the confidence of the Lok Sabha

Other Types of Ministers-

Ministers of State: These can either be given independent charge of ministries/ departments or can be attached to cabinet ministers

Deputy Ministers: They are attached to the cabinet ministers or ministers of state and assist them in their administrative, political, and parliamentary duties.

Some Facts-

In India, there is no provision in the Constitution for the system of legal responsibility of a minister

In 1971, the Supreme Court held that even after the dissolution of the Lok Sabha, the council of ministers does not cease to hold office

Article 74 is mandatory and, therefore, the president cannot exercise the executive power without the aid and advise of the council of ministers

Attorney General-

Article 76 speaks of the Attorney General of India

He/She is the highest law officer of The India

Article 76- Attorney General for India

(1) The President shall appoint a person who is qualified to be appointed a Judge of the Supreme Court to be Attorney General for India

(2) it shall be the duty of the Attorney General to give advice to the Government of India upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the President, and to discharge the functions conferred on him by or under this Constitution or any other law for the time being in force

(3) In the performance of his duties the Attorney General shall have right of audience in all courts in the territory of India

(4) The Attorney General shall hold office during the pleasure of the President, and shall receive such remuneration as the President may determine Conduct of Government Business

From Article 76 it is clear that-

Appointment-

Attorney General is appointed by the President and also it is to be noted that He/She is appointed by The President on The Advice of The Government

Qualification-

She/he must be a person who is qualified to be appointed a judge of the Supreme Court,

Which means that -

She/he must be a citizen of India

She/he must have been a judge of some high court for five years or an advocate of some high court for ten years

Or an eminent jurist, in the opinion of the President.

Removal- 

She/he holds office during the pleasure of the President which means that She/he may be removed by the President at any time

Procedures and grounds for the removal of Attorney General are not stated in the Constitution

Term -

There is no term mentioned for Attorney General and She/he can be removed by The President at any time

Rights Given to Attorney General-

AG is the highest law officer in the country. 

AG can be part of any court in the Indian Territory.

AG got the right to speak and to take part in the proceedings of both the Houses of Parliament or their joint sitting and any committee of the Parliament of which he may be named a member

AG has no right to vote when he participates in the proceedings of the Indian Parliament

AG also enjoys all powers related to immunities and privileges Similar to Member of Parliament

AG can practise privately too as he is not debarred from private legal practice therefore does not fall under category of government servant

Limitations-

AG should not advise or hold a brief against the Government of India

AG should not defend accused persons in criminal prosecutions without the permission of the Government of India

AG should not accept appointment as a director in any company or corporation without the permission of the Government of India

Who was the 1st Attorney General of India ?

M.C. Setalvad from 28 January 1950 to  1 March 1963