(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 61, Draft Constitution 1948
(1) There shall be a Council of ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions.
(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.
Draft Article 61 (Article 74 of the Constitution of India, 1950) was discussed on 30th December 1948. This article regulated the exercise of the President’s power.
A member moved an amendment to regulate the selection of Cabinet ministers and restrict the number to 15 ministers. He proposed that the ministers be elected by the houses of the Parliament on the basis of proportional representation. This would prevent a majoritarian government. He invoked the system in Switzerland to illustrate how the election of cabinet ministers would not result in any oppression or revolution. The Chairman of the Drafting Committee disagreed with these proposals. He argued that the Prime Minister must not be constitutionally mandated to have 15 ministers in the Cabinet; he/she might find it practical and efficient to have fewer ministers. On the proposal to elect ministers based on proportional representation, he urged that the Instrument of Instructions for President, that the Drafting Committee would draft, would take care of minority representation in the Cabinet.
There was another proposal to delete ‘with the Prime Minister at the head’. The mover wanted to keep the Prime Minister out of the Constitution. He argued that though the institution of Prime Minister was essential to carry out government business, it should not be mentioned in the Constitution. This would also prevent the power from centralising in the hands of one Minister. The Chairman of the Drafting Committee argued that the Prime Minister was indispensable to achieve collective responsibility of the Cabinet and to prevent undue influence of the President on the ministers. Further, in England too, the office of Prime Minister which had previously been recognised through convention, gained statutory recognition.
A member introduced amendments to allow the President to use his/her discretionary power without the Cabinet's aid. He argued that the Draft Constitution provided with a similar provision for the Governor and the same should be extended to the President. The Chairman of the Drafting Committee pointed out that this proposal relied on the Government of India Act, 1935 which had given the Governor-General power to act according to his discretion. He reminded that under the Indian Constitution the President merely has certain prerogatives and not functions. Therefore, this proposal was unnecessary.
The Assembly negatived all the amendments. The Draft Article as introduced by the Assembly was adopted on 30th December 1948.