Discretionary Powers of the President and Governors in India in Constitution and Practice

AuthorMahendra Prasad Singh
Published date01 September 2017
Date01 September 2017
Subject MatterEditorial
Discretionary Powers
of the President
and Governors in
India in Constitution
and Practice
A reading of the text of Indian Constitution indicates that it does not explicitly
grant any discretionary powers to the President of India, especially after the 42nd
and 44th Amendments (1976 and 1978). The president is expressly required by
Article 74 of the Constitution to always have a council of ministers to aid and
advise and to always act in accordance with its advice in exercise of one’s func-
tions. The original Constitution had left the presidential action in conformity of
the advice of the ministerial council subject to the constitutional convention
in this regard without including any express provisions to this effect. But the
Constituent Assembly Debates, excepting sceptical queries by its President
Rajendra Prasad about the absence of any explicit provisions binding the presi-
dent of the forthcoming Indian republic to cabinet advice and final acquiescence
with the general consensus in the constituent group, left no ambiguity about the
intents and purposes of the founding fathers. This was subsequently reiterated by
the Supreme Court in its interpretation of the Constitution and the jurisprudence
of the original intentions of the makers and convention of the Constitution in
Shamsher Singh v. State of Punjab, AIR 1974 SC 2192. The subsequent constitu-
tional amendments (42nd and 44th) made it a matter of a written constitutional
provision, leaving the president the only leeway that s/he ‘may require the Council
of Ministers to reconsider such advice, either generally or otherwise’, but added
that ‘the President shall act in accordance with the advice tendered after such
reconsideration’ (44th Amendment). The amendments thus incorporate the case
law laid down on this issue by the Supreme Court of India in Shamsher Singh vs.
State of Punjab referred to above. Article 74(2) also adds: ‘The question whether
any, and if so what, advice was tendered by ministers to the President shall not be
required into in any court.’ The use of ‘ministers’ in plural implies the council of
ministers here barring individual ministerial advice to the president. In case law it
is, however, established that clause 2 of this Article does not bar judicial scrutiny
of ministerial advice to the president (S. P. Gupta v. President of India AIR 1982
SC 149; State of Rajasthan v. Union of India, AIR 1977 SC 1361). Moreover, courts
can justifiably look into the basis of the advice subject to the provisions of section
123 of the Evidence Act (Kartar Singh v. State of Punjab, 1944, 3 SCC 569).
Academic studies specifically focused on discretionary powers of the president
and/or governors are not available with the solitary exception of a recent book
Indian Journal of Public
63(3) vii–xviii
© 2017 IIPA
SAGE Publications
DOI: 10.1177/0019556117721847

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