The Constitution of India
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.
Why this exists
India adopted a parliamentary system modeled on Britain's, where the President (like the British monarch) is a constitutional head of state who acts on the advice of elected ministers, not on personal judgment. The original 1950 text implied this convention but didn't make it legally binding, leading to ambiguity about whether the President could act independently. The 42nd Amendment (1976) made the advice explicitly binding, and the 44th Amendment (1978) added the reconsideration proviso to give the President a limited check without granting a veto, balancing accountability with real democratic control resting in elected ministers.
How courts read it
In Shamsher Singh v. State of Punjab (1974), a seven-judge bench of the Supreme Court held that the President (and Governors) are bound to act on ministerial aid and advice in virtually all matters, cementing the parliamentary convention even before the 42nd Amendment made it explicit. In U.N.R. Rao v. Indira Gandhi (1971), the Court held the Council of Ministers must exist even after the Lok Sabha is dissolved, since Article 74 requires it at all times. Later cases, including discussions in S.R. Bommai v. Union of India (1994) and Rameshwar Prasad v. Union of India (2006), clarified that while courts cannot ask what advice was actually tendered (barred by clause 2), they can examine the material or record on which a decision was based, to check for bad faith or irrelevant considerations.
Common misconceptions
- Myth: The President of India can refuse to follow the Council of Ministers' advice if he personally disagrees.
Fact: Under Article 74(1), the President must act according to the advice given, except that he may send it back once for reconsideration; after reconsideration, he is bound to accept it. - Myth: The President has no role at all and is purely a rubber stamp.
Fact: The proviso gives the President a genuine, if limited, power to require reconsideration of advice, allowing for reflection, delay, or public signaling of concern, even though the final word rests with the Council of Ministers. - Myth: Courts can review Cabinet decisions by examining what advice was actually given to the President.
Fact: Clause (2) explicitly bars courts from inquiring into what advice was tendered, though courts have held they may still examine the underlying material or record for issues like bad faith.