Indian Constitution for Dummies: Prime Minister & Council of Ministers

The President of India is the Constitutional Executive Head. The real head of the Government is the Prime Minister and his Council of Ministers. All decisions are taken in the name of the President. But, the President cannot act on his own. According to the Constitution, the President can only act on aid and advise of the Prime Minister and Council of Ministers.

The President appoints the Prime Minister and on the advice of the Prime Minister, the President appoints the Council of Ministers. Allocation of portfolios to the ministers is also done by the Prime Minister.

The Prime Minister

As per convention, the leader of the majority party in the legislature is invited by the President to form the Government. In case there is no single largest party, the leader of coalition is appointed as the Prime Minister. Basically, the President should appoint a person who is in the position to win the confidence of the majority in that House.

The Prime Minister enjoys a central position to the Council of Ministers. The Prime Minister and the Council of Ministers enjoy office during the pleasure of the President.

The Council of Ministers

The Council of Ministers has ministers of different ranks or categories. These ranks are not specified in the Constitution but rather done informally, following the English practice.

There are three ranks of Council of Ministers:

  1. Cabinet Ministers: an informal body of senior Ministers who form the inner circle of the Council of Ministers.

A Cabinet Minister leads a ministry.

  1. Ministers of State form the outer circle of cabinet. Ministers of State with an Independent Charge has a charge of a ministry. He/she is a junior minister who does not report to a cabinet minister.

A Minister of State without an independent charge is a junior minister reporting to a cabinet minister. He/she is usually given a specific responsibility in that ministry.

  1. Deputy Ministers: Then there are the Deputy Ministers who have not been given an independent charge of the ministry. Deputy Ministers assist Ministers of State or Cabinet Ministers. They do not take part in any Cabinet deliberations.

The Council of Ministers hardly meets as a body. It is the Cabinet which meets as and when summoned by the Prime Minister. Cabinet Ministers attend cabinet meetings of their own right. Ministers of State only attend the meetings on invitation.

Size of the Ministry

In order to limit size of a ministry, the Constitution of India has been amended in 2004. The total number of ministers of the Council of Ministers (including the Prime Minister) should not exceed 15% of the total members of the Lok Sabha. The same law applies to states legislatures too.

Non-Member can be a minister

A minister must be a member of either House of the Parliament. A person who is not a member of either house can be appointed as a minister but he cannot continue as a minister for more than 6 months unless he becomes a member of either house of the Legislature (by election or nomination).

Indian Constitution for Dummies – Theory of Separation of Powers

The Separation of Powers is a model for governance of a state. Constitutions with Separation of powers are found worldwide. Let’s start with the basics.

Broadly, there are three functions of a government.

  • The law-making function i.e. Legislative function.
  • The Executive function which is the function to enforce the law or put the law into operation.
  • The Judicial function which means the function to interpret the law if it has been broken.

In the early times, all the power would vest in one monarch or king. The same king would make the law, enforce the law and decide the punishment for violation of the law. He was one in all in and all in one. A lot of the affairs would run on whims and fancies of the king.

In the sixteenth century, Montesquieu, a French scholar came up with a theory that concentration of power in one person would result in tyranny. If the monarch had all three powers in his hand, people’s liberty would suffer. He said the solution would be the separation of governmental functions. This implies that the three functions should not be concentrated in a single entity and should be separated into three different and independent organs of the government.

The theory means that none of the three organs of the Government can exercise any power which properly belongs to either of the other two. There there is a system of checks and balances where one organ keeps a check on the other two organs by making sure that they don’t misuse the power. If there is the separation of powers and functions without overlaps, the organs of the government can exist in harmony, and government can run smoothly.

The functioning of the constitutional bodies in India is based on the theory of separation of powers. In India, the Parliament is the legislative organ. Its function is to make laws. The Parliament cannot enforce laws nor can it encroach upon the function of the judiciary and act as a court.

The Executive organ is the President and the Council of Ministers with the Prime Minister at its head. The executive is responsible for enforcing the laws made by the legislature. It can neither venture into making laws neither can it encroach upon the function of the judiciary.

The Judicial organ is the Supreme Court. Its function is to interpret the laws made by the legislature and the decide upon the actions taken by the executive. It acts as a check on the arbitrary exercise of power. The Judiciary cannot usurp the function of the legislature and start making laws not can it take administrative decisions like the executive.

India being a federal nation, a similar model of separation of powers exists at the state level. We have the State legislature which consists of the legislative assembly and the legislative council. The State Executive which consists of the Governor and the Council of Ministers and the State Judiciary which consists of the High Courts and the lower judiciary.

The Doctrine of Separation of Powers has been adopted in most of the democratic countries including India. What the doctrine means is that no organ should usurp the functions and powers of the other organs. But applying the doctrine in a strict manner is not ideal as no organ of the government can work with absolute independence. The three organs of the government should work in co-ordination with each other if the government functioned smoothly.

Indian Constitution for Dummies – A Federation with Unitary Characteristics


There are broadly two systems of Government followed in the countries of the world. Unitary system and Federal system. These systems are based on how the political power is distributed among the national/central government and the smaller local governments. The smaller governments may be known as states, cities, counties, provinces and so on.

Unitary Government

Let’s first have a look at the unitary structure of government. In a Unitary system, the power is centralized in a central government authority.

A unitary system is governed constitutionally as one single unit, with one law making authority. The law making authority/legislature is created by a constitution. All power is in this system is top down. The legislative (law making) power, executive (law implementing) power and the judiciary (law interpreting) power is concentrated in the central government authority. The smaller local governments are created only to administer the the policies and laws made by the central government authority. The smaller local governments do not have the option to not follow the decisions of the central government and administer their territory independently.

In a unitary system, the central government authority may create or alter the powers and territories of the smaller local governing authorities.

Federal Government

The Federal Government, on the other hand, is characterized by distribution of power at the Central level and the state level. In other words, the legislative power, executive power and the judicial power is split between the central government authority and the local governments, and giving the smaller local governments some independence.

In a Federal system, more autonomy is given to the local governments to manage their affairs.

The United Kingdom, France, Italy are some democratic countries which follow the Unitary system. The United States of America, Canada, Mexico, Australia and India are some countries which follow a federal structure.

Quasi Federal Structure in India

In India, the power and authority is distributed between the Union Government and the State Government according to the Constitution of India. The distribution of power is based on subject matter. Broadly, subjects of national importance are subjects of the Union and subjects of local importance are subjects of the state. Defence, foreign affairs, citizenship, extradition, national highways, airways, RBI, inter-state trade and commerce etc. Subjects such as public order and health, fisheries, agriculture, trade and commerce within the state. Some subjects are shared between the union and the state such as law relating to transfer of property, contracts, marriage and divorce, labour welfare and so on.

India is a federation with some unitary characteristics. We call it a quasi-federal system of Government. It is neither federal nor unitary. It contains both, federal as well as unitary characteristics. Let’s see how:

  • Firstly, unlike federal countries, which have dual citizenship of the union and the state, India has a single citizenship.
  • Secondly, there is a single constitution which constitutes the organs of the government and explains the distribution of power between the union and the states.
  • Thirdly, the Constitution of India provides for the Centre to change the name or alter the boundaries of states. This is not possible in a strictly federal government.
  • Fourthly, India has a unified judiciary with the Supreme Court at the Apex. A completely federal state would have a dual system of courts. The High Court judges are appointed by the President.
  • Fifthly, during the proclamation of emergency by the President of India, the powers of the State Governments are curtailed to a great extent and the Union becomes all in all. During proclamation of emergency, India resembles a unitary structure.
  • Sixthly, the Heads of states, Governor, is appointed by the President. A Governor holds office during the pleasure of the President. This aids the Centre in exercising control over the state administration.

There are more examples to show that India is a quasi-federal structure of Government. Some laws made by the state require Presidents assent. States are financially dependent on the Centre since they have much lesser sources of income and sometimes, the Union Government makes laws on subjects which belong to the state list.

It is because of all these factors that we can conclude that India a federation of states with unitary characteristics.

Indian Constitution for Dummies – Equality before Law and Equal Protection of Laws

Equality before Law and Equal Protection of Laws

The Constitution of India makes provision for fundamental rights which are basic rights that every person should enjoy. These rights include Right to Equality, Right to Life and Personal Liberty, Freedom of Speech, Freedom of Profession and Trade, Freedom of Association, Freedom of Assembly, Right to constitutional remedies and so on.

The phrases “Equality before law” and “equal protection of laws” are two phrases used in Article 14, which is the Right to Equality. Let’s analyze them.

Equality before Law

The phrase means that all are equal in the eyes of the law. No one is above the law. This concept is derived from the theory of Rule of Law. According to Rule of Law, a person can only be punished for violating a law which has been laid down and nothing else.

Equality before the law means there should be no discrimination of one person from another.  All should be treated equally irrespective of place of birth, gender, religion, race, caste, wealth, social status and so on.

For instance, both men and women have the right to work and bot the right to equal pay for equal work.

All persons who commit a particular crime are given the same punishment. There cannot be a distinction between a male criminal and a female one. Or a rich criminal and a poor one, if both have committed the same crime.

India is a hub of people from different walks of life. There are social inequalities and biases already that already exist in the country. Bias based on religion, caste, gender…. The Right to equality puts all persons on the same par. This right ensures everyone that the People in power will not discriminate between them. It gives an assurance that all will receive equal status and opportunities.

Equal Protection of Laws

The phrase “equal protection of laws” means that people in similar circumstances should be treated equally. Which also means, those who are not equal circumstances should not be treated equally.

For example, a poor man cannot be expected to pay the same income tax as a rich man. But persons with the same income bracket, being in similar circumstances, will pay the same tax.

All adults are equal and are punished equally. But a child who commits murder cannot be punished like an adult who commits the same crime. Since the adult and the child are not equal and should be treated unequally.

When persons in similar circumstances/equals are treated equally, and those in different circumstances/unequals are treated in an unequal manner, we strive to attain EQUITY, which is an objective much higher than equality.

Classification and Class Legislation

Absolute equality where everyone is treated in an identical manner amounts to turning a blind eye to the social and educational inequalities that already exist in the society. Right to equality does not mean that everyone is treated in an equal manner having no regard to their situations. In fact, if everyone is treated in an identical manner, it violates the right to equality. So, to find out which two groups should be treated unequally, a classification can be made. Any classification made should be made on a reasonable basis.

For example, a classification between a classification between teachers who are trained and others who are not. This classification is made to make applicable any monetary benefits on trained teachers. A classification of physically challenged persons and persons who are not physically handicapped which is made to confer certain rights on them.

Classification should not amount to a class legislation. Class legislation means a law that is applicable only to certain persons or class of persons. For example, if a law makes the classification based only on a class of persons who belong to a particular religion or race or gender will be unreasonable and violate the right to equality.

Reasonable Classification

The legislature can treat two sets of persons differently if their classification is made on a reasonable basis. A reasonable classification must be founded on intelligible differentia. Which means that persons or things that are grouped together make a well-defined, distinct class and can be distinguished from those that are left out of the group. Further, this basis of classification should have a rational nexus to the object sought to be achieved by the legislation in question.

For example, the maternity benefit law applies to working women on the way to maternity, not others. Because the object of the maternity benefit law is to give certain privileges only to women who become mothers at the time of their need. Hence, the classification of women and men is based on an intelligible differentia.

Another illustration is of tax laws. Classifications may be made for the purpose of taxing or not taxing certain classes of property. Charities, libraries are exempted from certain tax whereas other properties are not.

To conclude, let’s sum up.

  1. Equality before law means absence of discrimination
  2. Equal protection of laws means equal treatment of persons in equal circumstances.
  3. To attain equity, reasonable classification is permitted.
  4. Reasonable classification should not amount to class legislation.