Much controversy has been generated in modern times regarding Article 74 related to 'aid and advice' of the Council of Ministers (CoM) to President. Is the aid and advice of CoM binding on President? Discuss why and when this advice is binding or non-binding?
Article 74 says that there shall be a Council of ministers (CoM) 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. This relationship has been altered and shaped mainly by two constitutional amendments:
- The 42nd constitutional amendment made president abound by the advice of council of minister headed by prime minister
- The 44th amendment authorized president to require council to reconsider its decision but after reconsideration advice is binding.
Thus, constitutional provisions, amendments and parliamentary conventions have made the aid and advise of CoM binding on the president.
President has only few situational discretion where he acts on his own like appointment of Prime minister when no party has clear majority in Lok sabha, dismissal of CoM when it cannot prove confidence
The Constitution of India – Article 72 – gives the power to the President of India to pardon, commute, suspend or remit a death sentence, but this power is to be exercised in aid and advise of CoM. Recently the President, accepted the mercy appeals against the advice of cabinet, based on the guidelines laid down by Supreme court in Shatrugan Chauhan Case. This has raised an unprecedented constitutional issue over President’s power in case of mercy appeal and relation between CoM and president.
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