The ambit and scope of the exclusion of judicial review mandated by article 74(2)

The article talks about the ambit and scope of the exclusion of judicial review mandated by article 74(2), it further discusses that the doctrine of judicial review is firmly rooted in India, and has the explicit sanction of the Constitution


Judicial Review in India

The Constitution of India explicitly establishes the Doctrine of Judicial Review in several Articles such as Art 13,32,131- 136,143,226 and 246. The doctrine of judicial review is firmly rooted in India and has the explicit sanction of the Constitution. Articles 13(2) even goes to the extent of saying that the State shall not make any law which takes away or abridges the rights conferred by this part any law in contravention of this clause shall to extent of the contravention, be void.  The courts in India are thus under a constitutional duty to interpret and declare the law as unconstitutional. The court action is so far as the Constitution is concerned is valid. Let us discuss the ambit of Judicial review under Article 74.

Aid and Advice of the Council of Ministers and Presidential Power

Article 74 of the forty-second Amendment was recounted, there will be a Council of Ministers with the Prime Minister at the head to help and counsel the President who will, in the activity of his capacities, act as per such counsel. Article 74 was changed by and by in the forty fourth amendment and an arrangement was included which read “Given that the President may require

the Council of Ministers to reevaluate such exhortation, either for the most part or something else, and the President will act as per the guidance offered after such reevaluation. Amended statement (1) of Article 74 by Constitution 42nd Amendment Act, 1976, the President is required to act and exercise of his capacities as per the guidance subject to the stipulation embedded continuously. This stipulation concedes the chance of the Cabinet’s recommendation being dismissed by the President yet not whenever offered once more.

In the event that the President disposes of the Cabinet’s guidance just because based on it being unlawful, at that point offering a similar guidance some other time would not improve or change the bad habit of illegality. For the motivations behind this stipulation in this way, it can’t be said that an exhortation has been intrinsically offered by any stretch of the imagination.

At any cost the President ought not postpone for the Supreme Court choice on the established legitimacy of the Cabinet’s recommendation when as per the President, tolerating it will make him subject for infringement of the sacred obligation of President for example “to secure, protect, and guard the Constitution.” This would be an unprecedented situation where the President would be naturally allowed to act as indicated by his own choice. With a wide range of lawful guide in his hand, the President will be as equipped as a Supreme Court’s appointed authority to pick in the case of considering the Cabinet’s recommendation will constrain him to act infringing upon the Presidential oath.

It is off base to state that President of India is just a protected head. Article 111 enables the President to veto a Bill, is a particular and meaningful capacity to be utilized on the counsel of the Council of Ministers. The composers of Constitution thought this force on the President with a specific reason. The reason for existing is to empower the President to execute his obligations consistent with the pledge he has taken. The President of India speaks to the country, while the Council of Ministers connotes the lion’s share party at Lok Sabha. It may happen that Council of Ministers may abuse the dominant part in the Lok Sabha and gets a Bill passed which might be inside the intensity of Parliament however against the enthusiasm of the country yet can be in the worry of setting the ideological group of the Council of Ministers has a place. In that circumstance is the President bound to take the guidance of the Council of Ministers and give his consent to that Bill or would he be able to dismiss his consent? He has the attractive sacred capacity to deny offering consent to the Bill. Be that as it may, such a disavowal rather than the exhortation of the Council of Ministers may shimmer a political contention. The Constitution gives adequate forces to the President to encourage him to decide the wants of the electorate in circumstances at the point when he mulls over that the Council of Ministers is manhandling the forces

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Article 74 (2) of the Constitution of India

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.

(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.

Non-Justiciability of Cabinet Advice

The following inquiry is regarding the extent of article 74(2) which controls the courts from setting out a request with respect to the idea of bureau guidance gave. This article manages the legal survey on the bureau counsel and ensures and safeguards the mystery of the considerations between the President and his Council of Ministers. Its extension is constrained. It doesn’t vaccinate requests and acts done by the President in exercise of his capacities.

The Supreme Court has explained the ramifications of Art. 74(2) in S.R. Bommai v.Union of India. No court is worried about what guidance was offered by the Minister to the President. The court is just worried about the legitimacy of the request and not with what occurred in the inward committees of the President and the Minister. A request can’t be tested on the ground that it isn’t as per the guidance offered by the Minister or that it depends on no exhortation. On the off chance that, in a given case, the President demonstrations without, or as opposed to, the exhortation offered to him, it might be a case justifying his arraignment, yet most definitely, it is the demonstration of the President. Article 74(2) secures the mystery of the thoughts between the President and his Council of Ministers.

At the point when the demonstration or request of the President is addressed in a court, it is for the Council of Ministers to legitimize the equivalent by uncovering the material which framed the premise of the demonstration/request. The court won’t investigate the ampleness of the material. Material won’t become counsel since it was given as a help to the exhortation. The Court differ in this regard with the thinking of its own previous choice in State of Rajasthan v. Association of India. The view communicated for Bommai’s situation was certified and reached out in Rameshwar Prasad(VI) v. Union of India And the perspectives to the opposite in State of Rajasthan v. Association of India, were held to be not, at this point the law.

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The greater part held that Article 74(2) doesn’t bar investigation by courts of the real presence and significance of the material based on which counsel is given by the Ministers to the President. The onus of demonstrating was on the Union of India and the Governor’s report would not do the trick. The courts can likewise examine the purposes behind such exhortation. This statement additionally suggests that if the president neglects to follow the bureau counsel he can’t be constrained by courts to tail it.

S. R. Bommai v. Union of India (1994)

Summary of facts– R. Bommai was the Chief Minister of the Janata Dal government in Karnataka. His legislature was excused on April 21, 1989 under Article 356 of the Constitution and President’s Rule was forced. The excusal was on grounds that the Bommai government had lost lion’s share following enormous scope surrenders designed. The then Governor would not offer Bommai a chance to test his larger part in the Assembly notwithstanding the last giving him a duplicate of the goal passed by the Janata Dal Legislature Party. Bommai party went to Supreme Court against the Governor’s choice to suggest President’s Rule.

Verdicts– or this situation Supreme Court made some significant proclamations with respect to degree and impact of Clause (2) of Article 74. Article 74(2) banished courts from inquisitive into the guidance given by Council of Ministers to President. In a manner the exhortation of Council of Ministers was kept out of Supreme Court’s capacity of Judicial Review by this article. In such manner Supreme Court held that in spite of the fact that Article 74(2) bars legal survey so far as the guidance given by the Ministers is concerned, it doesn’t bar examination of the material based on which the exhortation is given. It additionally said that the material based on which counsel was offered doesn’t turn out to be a piece of the guidance and courts are supported in examining with regards to whether there was any material based on which the prompt was given, and whether it was important for such exhortation and the President could have followed up on it.

The court additionally said that, when it attempts an investigation into the presence of such material, the denial contained in Article 74(2) doesn’t nullify their entitlement to think about the authentic presence of any such material.

The court additionally clarified, through para 83 of the judgment, that Article 74(2) offers opportunity to the President by making his request undeniable on the ground that it was either in opposition to the counsel offered by the priests or was given without acquiring any guidance from the pastors. The object of Article 74(2) was distinctly to make the inquiry whether the President had followed the exhortation of the Ministers or acted opposite thereto, non-justiciable.[3] When the association bureau is discontent with the illegal working of the President, denunciation by the Parliament is the main plan of action since the legitimate activity by the courts is beyond the realm of imagination per Article 74 (2) and Article 361. The denunciation activity by parliament is substantial just when the charges of disregarding the constitution by the president are demonstrated by a court or council which is assigned by either place of Parliament with 66% greater part of its absolute enrolment per Article 61. President, need not step down or can move toward the Supreme Court for re-establishing his post as long as he has not disregarded the constitution (for example not obliging the unlawful inform with respect to the clergymen much subsequent to sending back for re-evaluation).

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Immunity of the President and Council of Ministers

President- President has protected insusceptibility for his illegal, mala fides exercises during his/her residency however obligated for legal activity/discipline for his unlawful action after the term of administration

Council of Ministers-The association bureau has protected insusceptibility from legitimate procedures in any court for their mala fide and illegal counsel offered by association clergymen to the President per Article 74 (2).

Protected Duty of President and Council of Ministers

President-President can’t escape from his protected obligation by referring to sacred change to Article 74 (para 2 of 1) which makes him to submit to the association bureau exhortation subsequent to sending for re-evaluation. As explained by the Supreme Court, the object of Article 74 (2) is just to make the inquiry whether the President had followed the exhortation of the association bureau or acted opposite thereto, non-legitimate.

Council of Ministers-The association bureau may escape from the discipline or duty regarding executing unlawful laws refering to Article 74 (2).

Article 163 (3)

Article 163(3) is applicable to the Governors of states exactly similar to Article 74(2). When cabinet ministers / meeting minutes are not supporting the advice given to the Governor, he can act in his discretion without violating the constitution.


Presently at this crossroads, we can say that “the aid and advice” are authoritative on the president yet this isn’t outright. There can be different conditions where the President has no commitment to follow his Council of Ministers. And yet they are independently on one another. President being the ostensible head can’t do anything without the Council of priests. It is a typical question that everybody uses to botch the Council and Cabinet of Minister are the same things. In any case, they are not, Cabinet of Minister falls under the space of Council of Ministers. They structure a significant part of the parliamentary type of government in India. At the last comes is the legal survey of the guidelines proposed by the Council of Ministers which has been banned by Article 74(2) of the constitution. In the event that Article 74(2) is expelled then the courts can urge the President to act in understanding with the counsel of the Ministers. So to finish up it tends to be said that it normal that this procedure ought to be perfectly clear with no drop of ambiguity in it.

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