This is a very controversial question: Can the Prime Minister take the oath of office as the Prime Minister or as a Minister? Normally some luminaries raise this question taking into the view Article 75, Clause 4 of the Constitution of India, which says: “Before a Minister enters upon his office, the President shall administer to him the oaths of office and of secrecy according to the forms set out for the purpose in the Third Schedule.” Their contention is: since the Article 75 (4) of the Constitution does not spell out the designation of the Prime Minister specifically, but it quotes only a Minister, and then can the Prime Minister take the oath of office as Prime Minister or Minister?
Their expression seems to be logical, if we take into consideration only Clause 4, but we miss out the other clauses of the same Article 75. Now, let us examine Article 75 (1), and what it says: “The Prime Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Prime Minister.” So the first person to be appointed is the Prime Minister, which is the special prerogative of the President, which means the issue of appointment, comes prior to taking oath, and not later after taking the oath, which means taking oath is only a formality that empowers a Minister to be functional, though he is already a designated Minister after the appointment he received at the hands of the President on the advice of the Prime Minister.
Now, let us examine Article 74(1), and what it says: “There shall be a Council of Ministers with the Prime Minister as the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice.” [This clause was inserted by the Constitution (Forty-Second Amendment) Act, 1976, and which came into effect on 03.01.1977]. Therefore, according to this Clause 1 of Article 74, the Prime Minister is the part and parcel of the Council of Ministers, and his designation is only as the head, and nothing more nothing less; the Prime Minister, thus, cannot be segregated from his Council of Ministers, which obviously means he cannot act independently, every decision is collective.
Let us examine other clauses of Article 75. Under Article 75(1) later two more sub-clauses have been added by subsequent Amendments. Sub-clause 1(A) says: “The total number of Ministers, including the Prime Minister, in the Council of Ministers shall not exceed fifteen per cent of the total number of members of the House of the People.” And Sub-clause 1 (B) says: “A member of either House of Parliament belonging to any political party who is disqualified for being a member of the House under paragraph 2 of the Tenth Schedule shall also be disqualified to be appointed as a Minister under Clause (1) for the period commencing from the date of his disqualification till the date on which the term of his office as such member would expire or where he contests any election to either House of Parliament before the expiry of such period, till the date on which he is declared elected, whichever is earlier.” (These sub-clauses were inserted by the Constitution Ninety-First Amendment Act, 2003, which came into effect from 01.01.2004)
If we examine clause by clause all the provisions prescribed under them, it transpires that the Prime Minister is only the designated head of the Council of Ministers, which designation is imparted by the President by virtue of the power vested in her by the Article 75(1) of the Constitution of India, and under whose advise other Ministers are given appointment, but they become functional only after taking the oath of office and of secrecy. It is to be noted, Prime Minister is the leader of the House, and this fact is also being taken into consideration by the President before giving him appointment.
Now let us examine other Clauses (2) and (3) of Article 75.
Article 75 Clause 2 says: “The Ministers shall hold office during the pleasure of the President” and Clause (3) says: “The Council of Ministers shall be collectively responsible to the House of the People.” The Ministers obviously include the Prime Minister as provided under Article 74 (1) of the Constitution; he is not an independent functionary.
The duties of the Prime Minister in respect of furnishing the information to the President, have been clearly defined under Article 78 of the Constitution, which reads as follows: “ It shall be the duty of the Prime Minister : (a) to communicate to the President all decisions of the Council of Ministers relating to the administration of the affairs of the Union and proposals for legislation; (b) to furnish such information relating to the administration of the affairs of the Union and proposals for legislation as the President may call for; and (c) if the President so requires to submit for the consideration of the Council of Ministers any matter on which a decision has been taken by a Minister but which has not been considered by the council.” In all cases, the Prime Minister is the medium between the Council of Ministers and the President (a spokesperson of the Cabinet) to inform the decision of his Council of Ministers to the President; it is a matter of collective decision of the Cabinet Ministers. A Minister is not empowered to take any independent decision, which has been clearly stipulated under Article 78 (c), the President is here empowered to resubmit to the Council of Ministers for consideration, if the same has not been passed in the Cabinet.
Nowhere is it enshrined in the Constitution, the Prime Minister acts independently! This is the beauty of democracy and India is the largest democracy in the world, every decision originating from the Cabinet is considered as the collective decision of the Council of Ministers and not of any individual Minister, and obviously that includes the Prime Minister.
Therefore, picking up single Clause say 75(4), and not including concurrently 75(1) to come to any conclusion is wrong. Whenever any Article is read, the article should be read as a whole not segregating one clause from the other or individually, only then could one understand what has been incorporated or said in the Article.
Once more coming to the Article 75 of the Constitution, and analysing its Clause 1 we can easily understand what was the intention of our forefathers, who drafted the Constitution, they did not want to leave any flaw, because they wanted to stress all the while on the democratic spirit of the Constitution of India. Subsequent amendments only added clarifications to the original spirit, if any one of which created confusion. Though there are some precedents, when some party in power tried to overstep its authority, and we find such steps were finally defeated in the floor of the House. For example, the 45th Amendment Bill was introduced by the government in power to amend Article 368 in order to introduce the procedure of referendum to amend certain features of the Constitution; though it was passed by then Lok Sabha, it was defeated in the Rajya Sabha, and the Bill was forced to be shelved forever.
That said, coming back to the same question, whether the Prime Minister can take oath as the Prime Minister, obviously, there is no anomaly, if we read concurrently both the Clauses (1) and (4) of the Article 75 as well as also read the Article 74(1) simultaneously of the Constitution, every anomaly in understanding as regards taking the oath will be crystal clear. By virtue of 75(1) of the Article, the Prime Minister is given appointment by the President and on his advice the other Ministers. This makes all the hurdles clear for taking the oath of office. While taking oath, each Minister takes oath spelling out his designated office, and similarly the Prime Minister also takes oath of his designated office, that of the Prime Minister, which is supported by the Articles 74 and 78, which clearly spell out the function of the Prime Minister in his Cabinet. On the whole, we should not try to draw a conclusion by separating one Clause from the other Clauses of other relevant Articles, and that was not the objective of our forefathers, such as individualising the Prime Minister and making thereby a separate entity away from his other Ministers, but the Council of Ministers should be taken as a single body, and if this concept is taken into view, then there remains no doubt. The post of Prime Minister is not independent from his Council of Ministers; therefore, separate mention of the Prime Minister was not made deliberately in oath taking ceremony; he was not segregated from his Cabinet, therefore, he is not at all a separate entity, which is obvious from Articles 74 and 75 of the Constitution of India. This is the real spirit and beauty of democracy to always work with general consensus, this principle has been fully maintained by the framers of the Constitution.
(Email: drpkchhetri7@gmail.com)
