Article 74

Background and evolution

India adopted the Westminster model, in which the head of state acts on ministerial advice. The original text of Article 74 said the President would act on advice but did not expressly say the advice was binding. Some argued, including Rajendra Prasad in debates during the 1950s, that the President had independent powers. In Ram Jawaya Kapur (1955) and Shamsher Singh (1974), the Supreme Court held that the President is a constitutional head bound by ministerial advice.

The 42nd Amendment of 1976 made this explicit by stating that the President "shall act in accordance with such advice". After the Emergency, the 44th Amendment of 1978 added a proviso allowing the President to require the Council to reconsider its advice once, after which the President must act on the reconsidered advice.

Key features and provisions

• Article 74(1): aid and advice; binding; one reconsideration.
• Article 74(2): the question whether any, and if so what, advice was given cannot be inquired into in any court.
• Scope: applies to all executive functions of the President, except where the Constitution gives discretion.
• Areas of limited discretion: choosing a PM when no party has a majority, dismissing a ministry that has lost confidence, and using the suspensive veto or pocket veto in some situations.
• Continuity: the Council must always exist; even after dissolution of the Lok Sabha, the President cannot rule without ministers (U. N. R. Rao, 1971).