Article 74 (Constitution of India)
(1) 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 advice
Provided that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration.
(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.
Before the 42nd amendment, Article 74(1) stated that, "there shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions". However, there was a slight ambiguity whether the advice of the Council of Ministers is binding on the PresidentForty-second Amendment of the 42nd Constitutional Amendment (1976) made it explicit that the President shall, "act in accordance with such advice". The amendment went into effect from 3 January 1977.
The 44th Amendment (1978) however added that the President can send the advice back for reconsideration once. But if the Council of Ministers sends the same advice again to the President then the President must accept it. The amendment went into effect from 20 June 1979
S. R. Bommai v. Union of India (1994)
In this case Supreme Court made some very important pronouncements regarding scope and effect of Cause (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.
Supreme Court also said that, when the Courts undertake an inquiry into the existence of such material, the prohibition contained in Article 74(2) does not negate their right to know about the factual existence of any such material.
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