Discretionary powers of the President

Topic: Union Executive: President, Vice-President, Prime Minister and Council of Ministers · NCERT: Class 8, Ch 6 "The Parliamentary System: Legislature and Executive"; Class 11, Ch 4 "Executive"

Meaning

Discretionary powers of the President are the few powers the President uses on their own judgment, not on the advice of the Council of Ministers. They exist only in the gaps that the Constitution's "act on advice" rule (Article 74) leaves open. Examples are returning advice once, keeping a bill unsigned, choosing a Prime Minister when no one has a clear majority, dismissing a ministry that has lost confidence, and deciding whether to dissolve the Lok Sabha when a Prime Minister who has lost the majority asks for it.

These powers matter because they decide who forms the government and when the people vote again. They count most when Parliament is divided and no party is in clear control.

Explanation

The starting rule: the President acts on advice

• Article 74(1): there is a Council of Ministers, with the Prime Minister at its head. It "aids and advises" the President, and the President "shall … act in accordance with such advice". [3]
• Two amendments shaped this rule:
• The 42nd Amendment (1976) made ministerial advice binding.

• The 44th Amendment (1978) added a proviso. The President may send the advice back once for reconsideration, but must then act on the advice given after that reconsideration. [3]

• Article 74(2): no court can ask whether any advice was given to the President, or what it was. [3]

• Samsher Singh v. State of Punjab (1974): a seven-judge bench held that the President and the Governor are constitutional heads (formal heads who act on their ministers' advice). They follow advice in all executive matters, except in a few narrow situations.
• So discretion is the exception, not the rule. It works only where advice is missing, unclear, or cannot be given properly.

Where discretion lies

Situation	What the President can do	Limit
Returning advice (Art. 74(1) proviso)	Send the Cabinet's advice back once	Must accept it if the Cabinet sends it again
Suspensive veto (Art. 111)	Return an ordinary bill to Parliament	Must sign if Parliament passes it again, with or without changes
Pocket veto	Keep a bill without deciding on it	Art. 111 sets no time limit for the President
Choosing a PM (Art. 75(1))	Decide whom to invite when no one has a clear majority	The floor test decides the final outcome
Ministry that has lost confidence	Dismiss a ministry that refuses to resign	Loss of confidence must be clear
Dissolution (Art. 85(2)(b))	Decide whether to dissolve the Lok Sabha when a PM who has lost the majority asks for it	May first look for another government

• Suspensive veto: a veto that only delays a bill. It cannot kill it.
• Pocket veto: the President simply does not act on the bill. Because Article 111 gives no deadline, the bill can stay pending.

Choosing a PM in a hung House: the steps

• Hung Parliament: a Lok Sabha where no party and no pre-poll alliance (parties that agreed to work together before the vote) has a majority, which is 272 of 543 seats.

• The usual order of invitation: 1. A pre-poll alliance with a majority. 2. The largest single party that can win enough support. 3. A post-poll coalition (parties that join together after the results).

• Proof of support: since 1998, the President may ask for letters of support from the parties backing the claimant.

• Floor test: a vote of confidence in the House. A simple majority of members present and voting decides whether the ministry keeps the House's support.
• In 1998, the deadline was ten days from the swearing-in.
• The floor test, not the President's private view, is the final judge.

Limits on discretion

• Returning advice works only once. If the advice is sent again, the President must sign.
• There must always be ministers. In U.N.R. Rao v. Indira Gandhi (1971), the Supreme Court held that a Council of Ministers must exist at all times, even after the Lok Sabha is dissolved. So the President can never govern alone.
• Caretaker government: an outgoing ministry stays in office until the next one takes over. By convention, it avoids major policy decisions and new appointments.
• The courts can check how discretion is used. For a Governor, a decision to call a floor test is open to judicial review (a court checking whether a government action is lawful). It must rest on objective material, not extraneous reasons (Subhash Desai, 2023). [5]

In the Constitution and practice

• Constitutional basis:
• Art. 74(1) and its proviso (advice, and returning it once).
• Art. 74(2) (courts cannot ask about the advice).
• Art. 75(1) (the President appoints the PM).
• Art. 85(2)(b) (dissolving the Lok Sabha).
• Art. 111 (assent to bills).

• Art. 78 (the PM's duty to inform the President).

• Article 78: the right to be informed. The PM must: [2]

• tell the President about all Council decisions on running the Union, and all proposals for laws;
• give any information the President asks for;
• if the President asks, place before the full Council any matter that one minister decided alone.

• This makes the PM the only official channel between the Council and the President. [2]

• Returning advice (K.R. Narayanan):

• Uttar Pradesh, 1997: he returned the I.K. Gujral Cabinet's advice to impose President's rule (when the Union takes over a state's government under Art. 356). The Cabinet dropped it.

• Bihar, 1998: he returned a similar recommendation to the A.B. Vajpayee Cabinet.

• Pocket veto (Zail Singh, 1986): he kept the Indian Post Office (Amendment) Bill, 1986 unsigned. He also complained that Rajiv Gandhi was not keeping him informed under Art. 78.

• Choosing a PM and dissolving the House:
• 1979, Sanjiva Reddy:
  • After Morarji Desai resigned, he appointed Charan Singh PM in July 1979.
  • Charan Singh resigned in August 1979 without facing the House.
  • Reddy dissolved the Lok Sabha on his advice and passed over Jagjivan Ram's claim to form a government.
  • Critics said a PM who had never won a floor test should not be able to get the House dissolved.
• 1989, R. Venkataraman: he first invited Rajiv Gandhi as leader of the largest party. Rajiv Gandhi declined. He then invited V.P. Singh of the National Front, which had outside support from the BJP and the Left.
• 1996, Shankar Dayal Sharma: he invited Vajpayee as leader of the largest party. Vajpayee resigned after 13 days, and H.D. Deve Gowda of the United Front became PM.
• 1998, K.R. Narayanan:
  • The BJP and its allies had 251 seats, 21 short of a majority.
  • He asked Vajpayee for letters of support and a confidence vote within ten days.
  • This set a new standard: written proof of support, not just a claim.

• 1999, K.R. Narayanan:

  • Vajpayee lost a confidence vote by one vote (269-270) in April 1999.
  • Narayanan checked whether anyone else could form a government. No one could, so he dissolved the House.
  • Vajpayee stayed on as caretaker and handled the Kargil conflict (May to July 1999).

• Discretion grows when no one has a majority:

• The Class 8 NCERT says the President has the most discretion "during political crises, like when no party holds a clear majority".

• The four Lok Sabha elections of 1989, 1991, 1996 and 1998 gave no single party a majority.

• Case law guiding the choice:

• The Sarkaria Commission (set up in 1983, headed by Justice R.S. Sarkaria) suggested an order of preference for inviting a Chief Minister. [4]
• Rameshwar Prasad v. Union of India (2006) approved that order. [5]

• S.R. Bommai (1994) held that an immediate floor test is the best answer when there is doubt about majority support. Shivraj Singh Chouhan (2020) applied this rule again. [5]

• 2024: the BJP won 240 seats, but the NDA (its pre-poll alliance) had a clear majority. So the House was not hung, and no discretion in choosing the PM arose.

Don't confuse with

• Suspensive veto vs pocket veto: under a suspensive veto, the President returns the bill and must sign if Parliament passes it again. Under a pocket veto, the President takes no decision at all, which is possible because Art. 111 sets no time limit.
• Returning advice vs rejecting advice: under the Art. 74(1) proviso, the President can send advice back only once. The President can never finally refuse advice that the Cabinet sends again.
• President's discretion vs Governor's discretion: a Governor's discretion is wider and covers state matters (see state-government-governor). The courts have tested it more often, for example in Subhash Desai (2023). [5]
• Caretaker government vs President's own rule: after a dissolution, a caretaker ministry still advises the President (U.N.R. Rao, 1971). The President never governs alone.

Prelims Hooks

• The 44th Amendment (1978) added the "reconsider once" proviso to Art. 74(1). The 42nd Amendment (1976) first made ministerial advice binding.
• Art. 78: the duty to inform the President belongs to the PM, not the Council. The state-level version is Art. 167, the Chief Minister's duty.
• Pocket veto: Zail Singh, Indian Post Office (Amendment) Bill, 1986.
• 1998: Narayanan asked Vajpayee for letters of support and a trust vote within ten days. He returned President's rule advice for UP (1997) and Bihar (1998).
• Trap: Charan Singh (1979) is the only PM who never faced Parliament. Vajpayee's 1996 government lasted 13 days.
• Trap: Rameshwar Prasad (2006) approved the Sarkaria order of invitation. Bommai (1994) set the floor-test rule.

Mains Points

• Rules reduce partisan discretion:
• Between 1989 and 1999, Presidents had to decide whom to invite, whether to ask for proof of support, and when to dissolve the House.
• The 1998 rule of "letters of support plus a time-bound floor test" moved the decision from Rashtrapati Bhavan to the floor of the House.

• Use this to argue that clear conventions protect the President's neutrality.

• Codify the order of invitation:

• The Sarkaria order (approved in Rameshwar Prasad, 2006) and the Bommai floor test exist only as conventions and case law.
• Writing them into a binding protocol for both the President and Governors would make outcomes predictable.

• Subhash Desai (2023) shows that the courts will step in when a constitutional head acts on extraneous grounds. [5]

• Influence through Art. 78, not through vetoes:

• The President's real influence comes from the right to be informed, consulted and to warn.
• Prasad-Nehru (1951, Hindu Code Bill) and Zail Singh-Rajiv Gandhi (1986-87) show this weakens when the PM withholds information.
• Regular briefing should be treated as a constitutional duty, not a courtesy. [2]

Related concepts

• Hung Parliament
• Caretaker government
• Duties of the Prime Minister

Read more

• Discretion, hung Houses and the President-Prime Minister relationship