Scroll Top


Brief facts of the case[1]

  • In 1969 and 1970, disputes arose between Indira Gandhi, the then Prime Minister and Morarji Desai. Indira Gandhi advised the President to dissolve the Lok Sabha so that fresh elections be conducted.
  • The President then dissolved the Lok Sabha and requested Indira Gandhi to continue as the Prime Minister. After this petitioner U.N. Rao, an advocate of Madras by writ of quo warranto prayed before Madras High Court for a declaration that Prime Minister had no constitutional authority to hold office and to function as Prime Minister.
  • He contended that “As soon as the House of the People was dissolved under Article 83(2) of the Constitution, the Council of Ministers i.e., the Prime Minister and other Ministers ceased to hold office.”
  • He argued that from the wordings of Article 75(3) which provides that the Council of Ministers be collectively responsible to the House of People. He argued that without the existence of the House of people if dissolved under Article 83(2), the Council of Ministers can’t be responsible for it.
  • Madras High Court dismissed his petition.
  • Then he appealed before Supreme Court, challenging Mrs. Indira Gandhi’s continuance as the Prime Minister after the dissolution of Lok Sabha.
Issue discussed by the Court

Can the Council of Ministers continue to function after the dissolution of Legislature or the resignation of a Council of Ministers?

Provisions of law

Article 74 states that there shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall act in accordance with such advice, in the exercise of his functions. The proviso states that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, but the President is bound to follow the advice tendered after such reconsideration. Clause 2 states that no court can inquire what advice was tendered by Ministers to the President.

Article 75(3) states that “The Council of Ministers shall be collectively responsible to the House of the People[2]. Article 83 states unless the House of People is dissolved, it shall continue for five years from the date appointed for its first meeting and no longer and the expiration of the said period of five years shall operate as a dissolution of the House. The proviso states that in the case while is in operation, the said period may, be extended by Parliament by law for a period not exceeding one year as a time and not extending in any case beyond a period of six months after the Proclamation has ceased.

Decision of Supreme court

  • Supreme Court rejected the argument of the petitioner and held, that the convention and concept of Collective responsibility have been adopted, from the English law. In England, the convention is that even though the Parliament is dissolved, the Prime Minister and his cabinet continues to exist as “caretaker” else the peace and administration of the country would be: disturbed without any government.
  • It further held that the Cabinet’s- Collective Responsibility to the House existed only when the House was- not dissolved or prorogued. Article 74(1) is mandatory. It says, “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.”
  • The court rejected the argument of the appellant that in the context the word ‘shall’ should be read ‘as May’. Article 52 is a mandatory provision. In other words, ‘There shall be a President of India.’ The same is in the case of Article 74(1).
  • The Presidential system was not chosen by the Constituent Assembly: Under Article 75(2), “the Ministers hold office during the pleasure of the President”. The President has not said that it is his leisure that the respondent shall not hold office. “Article 74(1) is mandatory and, therefore, the President cannot exercise the executive power without the aid and advice of the Council of Ministers. The Provisions of Article 75(3) with Article 74(1) and (2) must be harmonized. Article 75(3) brings into existence what is generally called Responsible government.
  • Article 75(3) contemplates the doctrine of ministerial responsibility as to be construed with the provisions of Articles 74(1) and 75(2). Article 75(3) envisages “responsible government” and the Council of Ministers must enjoy the confidence of the House of the People.
  • Article 75(3) has full operation while the house of the People is not dissolved. But when it is dissolved, the Council of Ministers cannot naturally enjoy the confidence of the House of the People. In this context, therefore, Article 75(3) should be read as meaning that the principle of collective responsibility applies only when the House of the People is in existence and not when it is dissolved or prorogued.
  • The appeal was dismissed by Supreme Court.

Similar case

In Ram Jawaya Kapur v. the State of Punjab[3], SC stated that “though the executive power is vested in the President, the President is only a formal or constitutional head of the executive. The real power is vested in Council of Ministers on whose aid and advice the President acts in the exercise of his functions”.

Conclusion & ANALYSIS

Article 74(2) declares that whether any and if so what, advice tendered by the Ministers to the President cannot be inquired by any court. Art. 74(2) thus expressly makes advice tendered by the Ministers to the President non-justiciable. Originally there was no provision in the Constitution to make ministerial advice binding on the President, but, for all practical purposes, this was so. The President is more like a titular head of the executive and is bound by the advice of the Ministers. The real head of the executive is the Prime Minister. The President is the head of the State but only a formal executive. In all functions vested in him, he is bound to follow the advice of the Ministers. The President formalizes the decisions arrived at by the Ministers and the Cabinet and is more of a symbol. The effective executive power lies with the Ministers and the Prime Minister who constitute the real executive carrying on the entire burden of conducting the administration of the Union. The Constituent Assembly did not choose the Presidential system of Government. So, the provisions of the constitution should be read keeping that view in mind.

Author(s) Name: Somnath Thakur (Faculty of Law, Delhi University)


[1] U.N. Rao v. Indira Gandhi, (AIR 1971 SC 1002).

[2] Article 75, Constitution of India, 1950.

[3] Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549.