Constitution of India

The Constitution of India 

The Prime Minister

Prime Minister occupies a crucial position in a Parliamentary form of government. According Jennings, Prime Minister is the keystone of the Constitution. Prime Minister is the leader of the majority party in Lok Sabha and he is the head of the Council of Ministers. In Parliamentary form of government the President is the head of the State while Prime Minister is the head of the Government.

Appointment of the Prime Minister: Article 75(1)  that the Prime Minister shall be appointed by the President. This act has to be performed by the President without the aid and advise of Council of Ministers. However, the discretion of the President in this regard is not uncontrolled. This discretion is guided by constitutional conventions. According to the conventions of the parliamentary tem of government, the President has to appoint the leader of the majority party in the Lok Sabha as the Prime Minister. When no party has a clear majority in the Lok Sabha (in case of hung Parliament) then the President  appoints the leader of the largest party or coalition in the Lok Sabha as the Prime Minister. It is important that the President appoints such person the Prime Minister who has the support of majority of members of the Lok Sabha.

Oath and term of office: Before the Prime Minister enters upon his office, the President administers hin the caths of office and secrecy. The form of oath of office and secrecy for the Prime Minister is lat to that for any Union Minister.

Term: Article 75(2) provides that the Ministers shall hold the office during the pleasure of the President . Therefore, the term of the Prime Minister is not fixed and he holds office during the pleasure of the President. However, the President cannot dismiss the Prime Minister any time. So long as the Prime Minister moys the majority support in the Lok Sabha, he cannot be dismissed by the President. If he loses the confidence of the Lok Sabha, he must resign or the President can dismiss him.

Duties of Prime Minister: Article 78 provides that it is 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.

Council of Ministers

Articles 74 and 75 broadly deal with principles of parliamentary form of government. Article 74 deals with the composition of the Council of Ministers. According to Article 74(1) there shall be a Council of Ministers with the Prime Minister at its head to aid and advise the President. It is obligatory for the President act in accordance with such advice.

Proviso to Article 74(1) provides 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. This proviso to Article 74(1) was inserted by 44 Constitutional Amendment, 1978. The 42nd Constitutional Amendment, 1976 has amended Article 74(1) and has made the advice Binding on the President.

Appointment of other Ministers: According to Article 75(1) the other Ministers shall be appointed by the President on the advice of the Prime Minister. Therefore, ministers are the nominees of the Prime Minister and the President depends entirely on the advice of the Prime Minister in this regard.

Size of Council of Ministers: Article 75(1A) provides that the total number of Ministers, including the Prime Minister, in the Council of Ministers shall not exceed fifteen per cent of the total number of members of the House of the People. This clause was inserted by 91 Constitutional Amendment, 2003.

Principle of collective responsibility and individual responsibility: Principle of collective responsibility is a hallmark of Parliamentary form of Government. In India, it is embodied in Article 75(3) of the Constitution. It provides that the Council of Ministers shall be collectively responsible to the House of People. When the Lok Sabha passes a no-confidence motion against the Council of Ministers, all the ministers have to resign.

Cabinet: Cabinet is the nucleus of the Council of Ministers. The council of ministers consists of three categories of ministers, namely, Cabinet Ministers, Ministers of State, and Deputy Ministers. All the mem- bers of the Council of Ministers are not the members of the Cabinet. Prime Minister determines the composition of the cabinet from time to time. The Cabinet Ministers head the important ministries of the Central government like home, defence, finance, external affairs etc. They are members of the cabinet, attend its meetings and play an important role in deciding policies.

Office of profit

The expression 'office of profit' has not been defined in the Constitution. Courts have laid down certain tests to determine which office is office of profit. The office of profit means an office to which some benefit is derived or might reasonably be expressed to be made by the holder of the office. Supreme Court in Ashok Kumar Bhattacharya v. Ajoy Biswas, AIR 1985 SC 211 explained the rationale behind the disqualification based on 'office of profit'. The court observed that there should not be any conflict between the duties and the interest of an elected member and the elected member must carry on his duties freely and fearlessly without being subject to government pressure. This provision ensures that the Parlia ment does not have persons who may be amenable to the influence of the government.

For the purpose of disqualification the office must be under the government. If the office is not under the government, the disqualification will not arise. In Biharilal Dobray v. Roshan Lal Dobray, AIR 1984 SC 385, it was held that in order to determine whether the person holds office under the government following tests are applied:

1. Whether the government makes the appointment,

2. Whether the government has the right to remove or dismiss the holder of the office;

3. Whether the government pays the remuneration;

4. Whether the functions performed by the holder of office is for the government;

5. Whether the government has control over the duties and functions of the holder.

Parliamentary Privileges

Certain privileges are granted to the Parliament with a view to enable the Parliament to efficiently and effectively discharge the functions of the House without fear or favour. The privileges are special rights immunities and exemptions enjoyed by the two Houses of Parliament, their committees and their mem bers. These privileges are essential to maintain the authority, dignity and honour of the Houses. Article 105 deals with the privileges of the two Houses of Parliament while Article 194 deals with the privileges of the State Legislative Assemblies. Article 105 applies mutatis mutandis to the State Legislature as well. Article 105 provides Parliamentary privileges.

Freedom of speech: Article 105(1) provides that 'subject to the provisions of this Constitution and the rules and standing orders regulating the procedure of Parliament', there shall be freedom of speech in Parliament.

Immunity from proceedings in courts: Article 105(2) provides that no member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof.

Publication under Parliamentary authority: Article 105(2) further provides that and no person thall be so liable in respect of the publication by or under the authority of either House of Parliament of my report, paper, votes or proceedings. Therefore, all persons connected with the publication of proceed imp of the House are protected if the same is made under the authority of the House.

Internal autonomy: It is important to confer such privileges to the Parliament which facilitates the working of it without outside interference. In this regard Article 122(1) provides that the validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure.

Freedom from arrest: A member cannot be arrested in civil proceedings within a period of 40 days before and 40 days after the session of the House. It must be noted that this privilege extend only to civil proceedings and not to a criminal charge.

Disciplinary power over members: Parliament has the power to enforce discipline. It can expel or suspend a member for unbecoming behavior.