From amongst the following, identify the correct option that captures the changes made in Article 74(1) of the Constitution of India through the 42nd Amendment Act, 1976.

Correct — C, the President shall exercise functions on the advice of the Council of Ministers headed by the Prime Minister. Before 1976, Article 74(1) said only that there shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President. Whether that advice bound him was left to convention and argument. The 42nd Amendment Act, 1976 closed the question by adding that the President "shall, in the exercise of his functions, act in accordance with such advice", making the advice constitutionally binding. The 44th Amendment Act of 1978 then softened it with a proviso allowing the President to require the Council to reconsider its advice once, after which he must act on the advice tendered.

• (a)Executive powers of the Union shall be vested with the President of India. — The vesting of the executive power of the Union in the President is Article 53, and it long predates the 42nd Amendment. Nothing in 1976 changed it.
• (b)The Prime Minister has the duty to brief the President about decisions of the Council of Ministers. — The Prime Minister's duty to communicate Cabinet decisions and furnish information to the President is Article 78. It is a different article and was not the subject of this amendment.
• (d)The President shall have the right to summon or prorogue the Houses of the Parliament. — The power to summon, prorogue and dissolve is Article 85, again untouched by the 42nd Amendment's change to Article 74(1).

Article 74 establishes the relationship between the head of state and the government. The original text made the Council of Ministers an advisory body in words while assuming the Westminster convention in practice; the 42nd Amendment wrote the convention into the text. Article 74(2) adds that the question whether any advice was tendered, and if so what, shall not be inquired into by any court, which shields the deliberations. The companion provision is Article 75, on appointment and collective responsibility, and Article 78 on the Prime Minister's duty to keep the President informed.

Constitutional amendment items are best answered by fixing the article to its subject before looking at the options. Each distractor here is a genuine constitutional provision attached to the wrong article number: 53 for the executive power, 78 for the Prime Minister's duty to inform, 85 for summoning and prorogation. Only one of the four is about the binding character of ministerial advice, which is what Article 74(1) governs. It is also worth carrying the pair of amendments together, since the 42nd made the advice binding and the 44th gave the President one opportunity to send it back — a fact that is asked as often as this one.

• The 42nd Amendment Act, 1976 made ministerial advice binding on the President under Article 74(1).
• The 44th Amendment Act, 1978 added a proviso letting the President require reconsideration of that advice once.
• After reconsideration the President must act in accordance with the advice tendered.
• Article 74(2) bars courts from inquiring whether advice was tendered and what it was.
• Article 53 vests the executive power of the Union in the President, and Article 78 requires the Prime Minister to keep the President informed.

• Attaching a real constitutional provision to the wrong article number.
• Crediting the 42nd Amendment with the reconsideration proviso, which came in 1978 with the 44th.
• Assuming that binding advice removed all presidential discretion; some situations still leave room for judgement.

Asked as an amendment-to-provision recall item where every option is a genuine constitutional rule and only one belongs to the article named in the stem.

• practice — not a real PYQ

  Which amendment allowed the President to require the Council of Ministers to reconsider its advice?

  • (a)42nd Amendment Act, 1976
  • (b)44th Amendment Act, 1978
  • (c)52nd Amendment Act, 1985
  • (d)61st Amendment Act, 1989

  Answer(b) 44th Amendment Act, 1978 — the President must act on the advice tendered after reconsideration.

• practice — not a real PYQ

  Article 74(2) of the Constitution provides that

  • (a)the President may act without ministerial advice in an emergency
  • (b)courts shall not inquire into whether ministers tendered advice and what it was
  • (c)the Prime Minister must be a member of the Lok Sabha
  • (d)the Council of Ministers shall not exceed fifteen per cent of the House

  Answer(b) courts shall not inquire into whether ministers tendered advice and what it was.