The President of India is the country’s first citizen and the De jure head of State. He is also seen as a symbol of the country’s unity, integrity, and solidarity. The President’s primary responsibilities are preserving, protecting, and defending the Indian Constitution and the Law (Article 60).
All major decisions for the country are made in the name of the Indian President. Most of the President’s actions are based on the advice of the Council of Ministers (Article 74). However, the President has some discretionary powers that he or she can use without the permission of the executive or the Council of Ministers.
In this law note, we will read about the discretionary powers of the President that he can use even without consulting with the executive.
Meaning of Discretionary Power
Professor Harold Laski defines discretionary power as the executive’s authority, whether in areas of substance, procedure, or both, that the person is free to take the decision as he deems appropriate.
In simple words, discretion is the power given to the authorities to decide on their own. Discretion is said to be misused when any judicial action is arbitrary, whimsical, or illogical.
Discretionary Powers of the Indian President
The President of a country has certain discretionary powers that he/she exercises as per their own wish and opinion. Such powers are listed below:
1. Veto Powers Exercised by the President
Until the President of India gives his assent (permission), a bill cannot become an act of the Indian Parliament. The President can give his assent, withhold his assent, or return the bill to the House of Representatives for reconsideration (except in the case of a money bill).
These are the different types of veto powers:
When the President exercises suspensive veto, that is, when he returns a bill (not a money bill) to the legislature for reconsideration, he has discretionary power. If the law is passed by Parliament again, with or without revisions, and delivered to the President, he is required to grant his approval to that bill.
This is not a clause in the Indian Constitution but a scenario in which the President of India might exercise his discretion. In this situation, the President does not ratify, reject, or return the bill; instead, he merely keeps it pending till any period of time.
Because there is no time restriction under the Constitution for the President to make a judgment on a bill that has been brought to him for assent, the President’s inactivity effectively prevents the bill from becoming an Act.
2. Appointment of the Prime Minister
When a Prime Minister dies unexpectedly, and there is no one to take his position, the President is responsible for selecting and appointing the new Prime Minister. For example, when Jawahar Lal Nehru and Lal Bahadur Shastry died during their tenure, the then-President appointed Mr Gulzarilal Nanda as caretaker Prime Minister both times.
The President’s discretion in selecting and appointing a caretaker Prime Minister entrusts him with the monumental job of restoring the government to power after a leader’s death.
3. Seek Information From the Prime Minister
According to Article 78 of the Indian Constitution, the President has the power to ask for information from the Prime Minister about the administration of the union’s business.
According to an established convention, the President, while exercising his discretionary powers, can also encourage the Council of Ministers to perform a certain act.
4. Power to Summon Both the Houses of Parliament
According to Article 85 of the Indian Constitution, the President has the authority to summon and discontinue a session of both Houses as he sees necessary to ensure that at least six months pass between the last sitting of one session and the first sitting of the next.
5. Act in Case of No Majority
When no political party or coalition of parties has a majority in the Lok Sabha, the President may invite the leader of the party or coalition who, in his view, is capable of forming a stable government.
6. Dissolve the Lok Sabha
When a Council of Ministers loses a majority in the Lok Sabha, the President has the authority to decide whether or not the House should be dissolved. Although the dissolution is done on the Council of Ministers’ suggestion, it is only binding if the government is a majority government.
Using discretionary powers, the President takes his real responsibilities as the Head of State. The President’s discretionary powers provide him with the capacity to check the executive’s arbitrariness and exert significant influence over them by preserving the interests of the country’s large majority and fulfilling the role of a real leader.
7. Power of Caretaker Government
Since a caretaker administration lacks the confidence of the Lok Sabha, it is only supposed to make day-to-day administrative choices rather than big decisions. The President is in charge of making day-to-day decisions.
In simpler words, it is the President’s duty to take care of the government, and therefore, he is responsible for the acts of government. Moreover, the President is also in charge of making the day-to-day decisions.
President Is Bound by the Advice Given by the Council of Ministers
According to Article 74 of the Indian Constitution:
1. The President shall be assisted and advised by a Council of Ministers, led by the Prime Minister. The President shall act in accordance with such advice in the exercise of his functions. However, the President may require the Council of Ministers to reconsider such advice, either generally or specifically, and the President shall act as per the advice tendered after such reconsideration.
2. No court shall examine what advice was given to the President by the ministers.
The President of India is the country’s first citizen and has certain discretionary powers that he can exercise by his own wish. Moreover, there are certain other powers vested with the President, but he can exercise those powers only after consulting with the council of ministers.
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