The Executive's Duty to Inform

And the Rules of Business made under article 77(3) are where the administration actually lives. They allocate business among Ministers and prescribe which matters must go to the Cabinet, which a Minister may decide, and which a Secretary may. A Minister is answerable to the House for what the Rules of Business allocate to him, and that is why chapter 1160's question is addressed to a particular Minister and chapter 1010's Secretary appears as accounting officer for a particular Ministry.

Article 78: the Prime Minister's duty

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.

Article 167 imposes the same three duties on the Chief Minister in relation to the Governor and the affairs of the State.

Clause (c) is the interesting one. A Minister may decide a matter alone under the Rules of Business; and if he does, the President may require it to be placed before the whole Council. That is a constitutional device for converting an individual decision into a collective one, and since responsibility under article 75(3) is collective, it is a device that widens the accountability of the decision.

Why a chapter on legislative control reads articles about the President

Because the duty to inform is owed upward and the responsibility is owed sideways, and the two must meet.

Article 78 obliges the Prime Minister to inform the President. It says nothing about informing the House.

Article 75(3) makes the Council responsible to the House. It says nothing about information.

There is no article requiring the Government to tell Parliament anything. That is a fact worth stating plainly, and most answers never notice it.

So how does the House find out? By the devices in this module, and by nothing else:

Questions, chapter 1160, which the Government answers on its own terms and may decline on recognised grounds. Committees, chapter 1070, which may require attendance and production, with contempt as the sanction. Laying requirements, chapter 1060, each imposed by a particular statute or article, and each policed by a committee. Audit, chapter 1010, under article 151. And the annual reports that particular statutes require, chapters 660 and 470.

Which produces the structural point of the sixth label. The executive's constitutional duty to inform runs to the President, who acts on its advice. Its duty to inform the House is a patchwork of particular obligations, each created by a rule or a statute, none of them general. That is the deepest reason legislative control is weaker than it looks, and it is a better answer than any complaint about sitting days.

The limits on what may be disclosed

Article 74(2), chapter 1150: the question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court.

Article 75(4): before a Minister enters upon his office the President administers the oaths of office and of secrecy in the Third Schedule; article 164(3) is the State counterpart.

Read the two together and the boundary appears. What the Council decided may be told; what the Council said in deciding may not. Chapter 1160's grounds for declining a question, and chapter 1070's claim of privilege over a document, both operate inside that boundary.

A worked example

A Ministry issues an order cancelling a set of licences.

In whose name is it made? Article 77(1): all executive action of the Government of India shall be expressed to be taken in the name of the President.

A licensee says the President never saw it. Article 77(2): an order authenticated in the manner specified in the rules may not be called in question on the ground that it is not an order made or executed by the President. He must attack it on some other ground.

Who decided it? Whoever the Rules of Business made under article 77(3) allocate the subject to: the Cabinet, the Minister, or an officer.

A member wants to know what the Cabinet discussed. Article 74(2) bars a court from inquiring what advice was tendered, and the oath of secrecy under article 75(4) governs the Minister. What was decided may be disclosed; the deliberation may not.

The President wants the matter reconsidered by the whole Council. Article 78(c): he may require the Prime Minister to submit for the Council's consideration any matter decided by a Minister but not considered by the Council.

The House wants the file. Not through any of these articles. Through a committee, chapter 1070, whose requirement is backed by contempt.

And in a State? Article 167 puts the identical duties on the Chief Minister in relation to the Governor.

What beginners get wrong

That article 77 is about the President's personal action. It is about the form in which executive action is expressed and authenticated, and about the Rules of Business.

That authentication makes an order unchallengeable. It bars one ground only: that it was not in fact made or executed by the President.

That article 78 requires the Government to inform Parliament. It requires the Prime Minister to inform the President. No article imposes a general duty to inform the House.

That article 78(c) lets the President decide a matter. It lets him require it to be placed before the Council.

That the oath of secrecy prevents a Minister from answering questions. It protects the deliberations, not the decisions.

Quick revision

Art 77(1): all executive action of the Government of India expressed to be taken in the name of the President. 77(2): authentication under rules made by the President, and validity not to be called in question on the ground that it is not an order made or executed by the President. 77(3): the President makes Rules of Business for the convenient transaction of business and its allocation among Ministers.

Art 78: the Prime Minister's duty (a) to communicate all decisions of the Council on administration and proposals for legislation; (b) to furnish such information as the President may call for; (c) if required, to submit for the Council's consideration a matter decided by a Minister but not considered by the Council. Art 167: the same duties on the Chief Minister to the Governor.

The structural point: the constitutional duty to inform runs to the President, and no article imposes a general duty to inform the House. The House learns what it learns through questions, committees, laying requirements, audit and statutory annual reports, each a particular obligation and none of them general.

The limits: art 74(2), no court may inquire what advice was tendered; art 75(4) and art 164(3), the oath of secrecy. Decisions may be told; deliberations may not.

Test yourself

1. What does article 77 provide and why does it matter to legislative control? That all executive action of the Government of India shall be expressed to be taken in the name of the President; that orders and instruments so made shall be authenticated in the manner specified in rules made by the President, and that an order so authenticated shall not be called in question on the ground that it is not an order made or executed by him; and that the President shall make rules for the more convenient transaction of the business of the Government and for its allocation among Ministers. It matters because it completes the chain by which the executive is answerable: article 53(1) vests the power in the President, article 74(1) makes him act on ministerial advice, article 77(1) makes every act formally his, and article 75(3) makes his advisers answerable to the House. It matters practically because the Rules of Business made under clause (3) determine which Minister answers for which subject, and therefore to whom a question is addressed and which Secretary appears before the Public Accounts Committee.

2. State the duties imposed by article 78. It is the duty of the Prime Minister 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; to furnish such information relating to those matters as the President may call for; and, 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. Article 167 imposes identical duties on the Chief Minister of each State in relation to the Governor. The third duty is of particular interest because it is a constitutional device for converting an individual ministerial decision into a collective one, and responsibility under article 75(3) being collective, it widens the accountability of the decision.

3. Is there a constitutional duty on the executive to inform the legislature? No general duty. Article 78 obliges the Prime Minister to inform the President and says nothing about the House; article 75(3) makes the Council responsible to the House and says nothing about information. There is no article requiring the Government to tell Parliament anything as such. What exists instead is a patchwork of particular obligations: to answer questions at Question Hour, subject to recognised grounds of refusal; to attend and produce documents before committees, enforced by the House's power to punish contempt; to lay particular documents, each requirement created by a specific article or statute and policed by the Committee on Papers Laid on the Table; to submit to audit and have the audit reports laid under article 151; and to present the annual reports which particular statutes require. That the duty to inform runs upward to the President while the responsibility runs sideways to the House, with no general provision joining the two, is the deepest structural reason why legislative control is weaker in operation than it appears on paper.

4. What may a Minister not disclose, and why? The deliberations of the Council of Ministers, as distinct from its decisions. Article 74(2) provides that the question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court, and article 75(4) requires the President to administer to a Minister, before he enters upon his office, the oaths of office and of secrecy set out in the Third Schedule, article 164(3) making the same provision in a State. The boundary those provisions draw is that what the Council decided may be disclosed while what was said in deciding may not, and both the grounds on which a question may be declined at Question Hour and a claim of privilege over a document before a committee operate within it.