Context as Pretext: Presidential Discretion in India

Date01 September 2017
Published date01 September 2017
AuthorRajendra Kumar Pandey
Subject MatterArticles
Indian Journal of Public
63(3) 319–329
© 2017 IIPA
SAGE Publications
DOI: 10.1177/0019556117720605
1 Faculty Member, UGC-Centre for Federal Studies, Jamia Hamdard University, New Delhi, India.
Corresponding author:
Rajendra Kumar Pandey, UGC-Centre for Federal Studies, Jamia Hamdard University, Hamdard
Nagar, New Delhi 110062, India.
Context as Pretext:
Presidential Discretion
in India
Rajendra Kumar Pandey1
Despite being one of the most contested themes of Indian constitutional law,
debates on presidential discretion have generally remained inconclusive owing to
the fair degree of plausibility of both the contending standpoints on the subject. It
is undeniable that Indian parliamentary democratic system has been designed on
the model of British parliamentary system in which the crown is absolutely bereft
of any discretionary power and has to discharge her duties only on ministerial
advice. But at the same time, it is equally true that the circumstantial dynamics
of Indian political system is markedly different from the British political system in
many respects. Moreover, in interpreting the relevant constitutional provisions
and figuring out suitable conventions on presidential powers and functions, the
Indian juridical and academic scholarship has not been as inimical to an iota of
discretion for the president as has been the British to their crown. Yet, keeping
in sync with the spirit of the parliamentary system, the Indian Constitution does
not provide any explicit discretionary power to the president. Whatever dis-
cretionary power a president may derive is purely circumstantial in nature, and
precedents vary widely. The article, therefore, seeks to provide a critical analysis
of certain circumstances in which the president in India could exercise powers
on his discretion either due to absence of a ministerial advice or, in rarest of the
rare cases, to obtain a better outcome than the one coming out of ministerial
Cabinet, president, parliament, circumstantial discretion, ministerial advice

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