Can the advice given by the Council of Ministers to the President be inquired into by the courts? Examine the scope and ambit of the exclusion of judicial review mandated by Article 74(2) of the constitution.

Published: March 14, 2017

Article 74 of the constitution states that 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 advises. The terms “who shall “were added by the 42nd amendment making it obligatory for the President to work as per advice of CoM.
However, the proviso to this article says that President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advises tendered after such reconsideration.  The second proviso to this article says that question if any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court.
In S.R Bommai vs Union of India case, Supreme Court made some very important pronouncements regarding scope and effect of Clause (2) of Article 74. Article 74(2) barred courts from inquiring into the advice given by Council of Ministers to President. In a way the advice of Council of Ministers was kept out of Supreme Court’s power of Judicial Review by this article.
In this regard Supreme Court held that although Article 74(2) bars judicial review so far as the advice given by the Ministers is concerned, it does not bar scrutiny of the material on the basis of which the advice is given. It also said that the material on the basis of which advice was tendered does not become part of the advice and courts are justified in probing as to whether there was any material on the basis of which the advice was given, and whether it was relevant for such advice and the President could have acted on it.

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