Introduction
The President of India is the head of the state and first citizen of the country. He is also the Commander-in-Chief of the Indian Armed Forces. He represents the nation but does not rule it.[1] The President is elected by the members of an electoral college consisting of elected members of both the Houses of Parliament, elected members of state legislatures and elected members of the legislative assemblies of Delhi and Puducherry. Article 72 of the Constitution states that the President has to act in accordance with the advice of Council of Ministers.[2] However, the President also enjoys certain discretionary powers (when he is not bound by the advice of the Council of Ministers) which are not explicitly mentioned in the text of the Constitution.[3] This article is aimed at bringing clarity on such powers as we try to go through each of them in detail.
Discretionary Powers
Following is a detailed list of discretionary powers that the President may exercise:
Pocket Veto
According to Article 111 of the Constitution, the President shall declare his assent to a bill passed by both the houses of the Parliament or may choose to withhold his assent.[4] The proviso to this article allows the President to send back the bill for reconsideration but obliges him to sign and ratify it once it has been reconsidered. The time limit within which the president has to take action on the bill presented to him for assent has not been mentioned in the Constitution, thus, it leads to a situation when the President can use his discretionary power.[5] He may, in certain circumstances, choose to keep the bill pending with himself for an indefinite period by neither ratifying it nor rejecting or returning it in the exercise of his pocket veto. Though, the President cannot exercise such powers in the case of Constitutional Amendment Bills. The power of pocket veto was once used by the former President of India, Mr. Giani Zail Singh in the year 1986 when he refused his assent to the Post Office (Amendment) Bill in order to express his opposite stance on it.[6] The veto power of the Indian President is greater than what is vested in the hands of the President of United States of America, for the latter has to resend the bill within ten days which is in stark contrast with no time limit specified in India.[7]
Suspensive Veto
The President of India uses Suspensive Veto when he sends the bill back to the Parliament for its reconsideration. But, in case the parliament resends the bill with or without changes, the President will have to approve the bill without bringing into use any of his discretionary powers.[8] This means that suspensive veto gets overridden by re-passage of bill in the Parliament with a simple majority.[9] It is noteworthy that the bill sent for reconsideration by the President cannot be a money bill. Suspensive Veto was used for the first time in 2006 by the former President Dr. APJ Abdul Kalam when he formally returned the ‘Office of Profit Bill, 2006’ to the Parliament. This bill was brought to protect the members from disqualification with retrospective effect. However, the bill was sent back to the President after reconsideration, and thus, the President had to approve it finally.[10]
Discretion in the case of Hung Parliament
When it becomes clear that the elections have resulted in a hung Parliament with no political party or coalition of parties having a majority in the Lok Sabha, the President takes charge. By convention, he first invites the leader of the largest single party to form the government. If it is not possible, the leader of the largest pre-poll alliance is called upon. And, in case, the second option is also not possible, the leader of the largest post-poll alliance is invited for government formation.[11] But, if the president is convinced of the fact that the leader of the single largest party will not be able to gather the support of other parties, he may have to use his discretion in judging as to who would be able to form a stable government in the long run. Thus, in accordance with the assessment of the situation and due consultations, the president invites the most capable leader for government formation.[12] India witnessed a hung parliament in the 9th, 10th, 11th and 12th Lok Sabha Elections.
Dissolution of Lok Sabha
In a situation when the Council of Ministers loses majority in the Lok Sabha, it is up to the President to decide if he should dissolve the house or not. Though, the dissolution needs to be done on the advice of the Council of Ministers but it is noteworthy that such advice is binding only in case the government is a majority government.[13]
Role in a Caretaker Government
A caretaker government in power does not enjoy the confidence of Lok Sabha. Thus, it is not expected to take major policy decisions. Therefore, its power is just limited to taking ordinary administrative decisions. In such circumstances, it is the President who uses his discretion in deciding if such decisions should be taken or not.[14]
Summoning of the Houses of Parliament
The President holds the power to summon each House of Parliament to meet at such time and place as he deems fit in order to ensure that a period of six months does not intervene between the last sitting of one session and the date appointed for the first sitting of the next session.[15] Additionally, the President holds the power to prorogue the Houses of Parliament as well.
Discretion in appointing the Prime Minister
When the Prime Minister in office dies suddenly, and there is no clear successor to replace him for the post, it comes up to the matter of exercising of individual judgement by the President in selection and appointment of the next Prime Minister.[16] This has happened thrice in the history. Mr. Gulzari Lal Nanda was appointed as the caretaker Prime Minister two times by the then Presidents when Pt. Jawahar Lal Nehru and Sh. Lal Bahadur Shastri died during their terms.[17] Sh. Rajiv Gandhi was appointed the PM after the tragic death of Smt. Indira Gandhi in 1984.
Seeking information from the Prime Minister
In accordance with Article 78 of the Constitution, the President has got the right to ask information from the Prime Minister pertaining to the affairs of the Union Government.[18] In turn, he is able to understand the actual decision-making process of the government. This is one area where he can act on his discretion. Additionally, the President is empowered to be consulted, encourage and warn the government under the present article. The right of seeking such information is said to have been borrowed from the unwritten Constitution of England.[19]
Concluding Remarks
In the course of this article, we had an insight into different types of discretionary powers that the President can exercise in India. A careful study of the Constitution reveals that most of the powers entrusted with the President are ‘discretionary’ in nature. The Indian President is in some respects, even more, powerful than the U.S. President. However, the fact remains that we follow a ‘parliamentary system’ of government, unlike the Presidential system that exists in the United States. Hence, the President is often referred to as the de jure head of the Indian state whereas the Prime Minister is called the de facto head. Being the head of the government, the ‘real power’ lies in the hands of the Prime Minister. The President, on the contrary, fulfils his primary duty of preserving, protecting and defending the Constitution and the law of India.
The article is authored by Hardik Batra (NUJS Kolkata, 2024)
References
[1] https://www.hindustantimes.com/india/role-and-power-of-india-s-president/story-glu9uyqsZLUtvgjyxO2cpK.html (Website).
[2] Article 72, Constitution of India, 1950.
[3] Mahendra Pal Singh, Discretionary Powers of the President and Governors in India in Constitution and Practice, Indian Journal of Public Administration.
[4] Article 111, Constitution of India, 1950.
[5] Mrinal Satish, Discretionary Powers of the President under the Indian Constitution, The Student Advocate.
[6] https://timesofindia.indiatimes.com/india/Idea-of-pocket-veto-not-new-to-President-Pranab/articleshow/23600752.cms (Website).
[7] Id., 8.
[8] http://lawtimesjournal.in/veto-power/ (Website).
[9] https://www.civilsdaily.com/veto-powers-of-the-president-of-india-comprehensive-notes/ (Website).
[10] https://www.rediff.com/news/2006/jun/09spec.htm (Website).
[11] https://www.thequint.com/explainers/hung-parliament-explained (Website).
[12] Id., 14.
[13] Prahlad Rao, A Wake Up Call For Every Indian (Book).
[14] https://www.insightsonindia.com/2018/07/04/secure-synopsis-04-july-2018/ (Website).
[15] Article 85(1), Constitution of India, 1950.
[16] Laxmikanth, Public Administration (Book).
[17] https://www.britannica.com/biography/Gulzarilal-Nanda (Website)/
[18] Article 78, Constitution of India, 1950.
[19] Lokendra Malik, President’s Right to seek information under Article 78 of the Constitution of India. Jounral of the Indian Law Institute.