Discretionary Powers of the President

Can we conclude from the President's largely formal role that the President has no discretion at all under any circumstances? That would be an incorrect assessment. Constitutionally, the President has the right to be informed of all important matters and Council of Ministers deliberations; the Prime Minister is obliged to furnish any information the President calls for, and the President often writes to the Prime Minister expressing views on matters facing the country.

Beyond this, there are at least three specific situations in which the President can exercise genuine personal discretion. First, the President can send back the Council of Ministers' advice and ask it to be reconsidered — for example, if the President believes the advice has flaws or legal lacunae, or is not in the country's best interest; although the Council can resend the same advice (which then binds the President), a request for reconsideration carries real weight. Second, the President has veto power: assent can be withheld from any Bill (other than a Money Bill) passed by Parliament, and the Bill sent back for reconsideration; this veto is limited, because if Parliament passes the same Bill again, the President must give assent. However, the Constitution places no time limit on how long the President may take before returning a Bill for reconsideration in the first place — so the President can simply keep a Bill pending indefinitely, an informal but very effective power known as the "pocket veto." A real example: in 1986, Parliament passed the Indian Post Office (Amendment) Bill, widely criticised for curtailing press freedom; President Zail Singh took no decision on it during his term. His successor, President Venkataraman, eventually sent it back for reconsideration — but by then a differently-constituted coalition government, elected in 1989, chose not to bring the Bill back before Parliament, so Zail Singh's decision to postpone assent effectively meant the Bill could never become law.

Third, discretion arises out of political circumstance when the President appoints the Prime Minister. Formally, the President appoints the Prime Minister, and normally, whoever leads the party with a Lok Sabha majority is appointed — no discretion is involved. But imagine a situation where, after an election, no leader has a clear majority, and two or three leaders each claim majority support after attempts to forge alliances: the President must then use discretion in judging who really commands the support of the majority and can form and run the government. Since 1989, major political changes have considerably increased the importance of the presidential office: in the four Lok Sabha elections held between 1989 and 1998, no single party or coalition attained a majority, and these situations demanded presidential intervention, either to help constitute governments or to decide on a request to dissolve the Lok Sabha. Presidential discretion is thus tied to political conditions — there is greater scope for presidential assertiveness when governments are unstable and coalitions hold power. In March 1998, for instance, when the BJP and its allies secured 251 seats, 21 short of a majority, President K.R. Narayanan adopted an elaborate procedure, asking alliance leader Atal Behari Vajpayee "to furnish documents in support of his claim from concerned political parties," and further advising him to secure a vote of confidence within ten days of being sworn in.

For the most part, though, the President remains a formal power holder and a ceremonial head of the nation. Why, then, do we need a President at all? Because the Council of Ministers depends on the support of the majority in the legislature and may be removed at any time, requiring a new Council to be put in place — the country needs a Head of State with a fixed term, who can be empowered to appoint the Prime Minister and who symbolically represents the entire country. This is exactly the President's role in ordinary circumstances; and when no party has a clear majority, the President carries the added responsibility of choosing and appointing the Prime Minister to run the government. …