- Feb 18

The President (Indian Polity)

The President of India is the head of state and the first citizen of India. He or she represents the nation’s unity and acts as a figurehead. The President is also the supreme commander of the Indian Armed Forces and has various powers and functions under the Constitution of India. Here, we will discuss the following topics related to the President:

Process of Election of President
Tenure in Office and Eligibility for Re-election
Disputes Related to Presidential Election
Key Articles Related to the President and Emoluments
Eligibility Criteria and Oath
Conditions and Privileges of the President’s Office
Vacancy in Office and Impeachment of the President
Powers and Functions: Executive, Legislative, Financial, Diplomatic, Military, Emergency, and Judicial
Nomination of Anglo-Indians
Ordinance-making power of the President and Judicial Review
Veto powers and Bills that Require Prior Recommendation of the President
Pardoning power of the President and Comparison with the Governor
Discretionary Powers and Constitutional Position of the President

Process of Election of President

1. Understanding the President of India

Constitutional Head: The President of India is the constitutional head of state, serving as the symbol of the nation and a custodian of the Constitution.

Indirect Election: The President is not directly elected by the people of India. Instead, they are elected by an electoral college.

2. The Electoral College

Composition: The electoral college for the President's election is made up of:

All elected members of the Rajya Sabha (Upper House of Parliament)
All elected members of the Lok Sabha (Lower House of Parliament)
Elected members of the Vidhan Sabhas (Legislative Assemblies) of all states
Elected members of the Legislative Assemblies of the Union Territories of Delhi and Puducherry (UTs with legislature).

Jammu & Kashmir and Ladakh: Impact on Presidential Elections

The Jammu and Kashmir Reorganisation Act, 2019 led to:

Jammu & Kashmir (J&K): Transition to a Union Territory with a legislature. Thus, elected members of the Jammu & Kashmir Legislative Assembly now participate in the Presidential elections.
Ladakh: Became a Union Territory without a legislature. Therefore, Ladakh does not have any elected representatives in the Electoral College for the Presidential Election.

3. Value of Votes

Proportional Representation: The election follows the system of proportional representation by means of a single transferable vote. This ensures that the value of votes accounts for the population of each state, balancing representation.

Vote Value Calculation:

Total value of votes of MLAs of each state is determined by a complex formula involving the state's population (according to the 1971 census) and the number of elected MLAs.
Total value of MPs' votes is worked out by dividing the total value of all MLAs' votes by the number of elected MPs.
These calculations ensure parity between Parliament and the States as a whole.

4. Eligibility Criteria:

Indian Citizen: The candidate must be a citizen of India.
Age: They must be at least 35 years of age.
Lok Sabha Eligibility: They must be qualified to be elected as a member of the Lok Sabha.
No Office of Profit: They should not hold any office of profit under the government (Central, State, or any public authority).

5. Election Process

5.1. Nomination:

A candidate needs the support of 50 electors as proposers and 50 electors as seconders. The electors must be members of the electoral college.
A security deposit of Rs 15,000 is required, which is forfeited if the candidate fails to get one-sixth of the valid votes polled.

5.2. Scrutiny: The Election Commission of India scrutinises nominations to ensure candidates meet all eligibility requirements.

5.3. Voting:

Voting takes place by secret ballot.
Electors rank candidates with preferences indicated as 1, 2, 3, and so on.

5.4. Counting and Result:

Quota Calculation: The winning quota is determined by dividing the total valid votes by two, plus one.
First Preference Counting: If a candidate reaches the quota on first preference votes, they are declared elected.
Transfer of Votes (if needed): If no candidate reaches the quota:

The candidate with the lowest first-preference votes is eliminated.
Their second-preference votes are transferred to other candidates according to voter rankings.
This process continues until a candidate achieves the required quota.

Important Notes for UPSC CSE

Pay attention to Articles 52 to 62 of the Indian Constitution that lay out the details of the presidential election.
Understand the complexities of the vote value calculation system.
Be familiar with recent presidential elections for case studies or examples.

Tenure in Office and Eligibility for Re-election

The President holds office for a term of five years from the date on which he or she enters upon the office. However, he or she can resign at any time by addressing a letter to the Vice-President. The President can also be removed from office by impeachment for violation of the Constitution. The President is eligible for re-election to the office. There is no limit on the number of terms a person can serve as the President.

Jurisdiction and Process for Dispute Resolution

Supreme Court Authority: Under Article 71 of the Indian Constitution, the Supreme Court of India has the exclusive power to investigate and settle all doubts and disputes arising from or connected to the election of the President or Vice-President.
Election Petition: The method for challenging a Presidential election is through an election petition filed in the Supreme Court. Some key points on the petition:

Who can file: A candidate or any elector of the electoral college can file a petition.
Time Frame: It must be filed within 30 days of the declaration of the official election result.

Grounds for Disputes

Election petitions challenging a Presidential election may be based on several grounds, including:

Eligibility Criteria: Disputes that claim an elected President does not meet the constitutional requirements of age, citizenship, eligibility for Lok Sabha membership, or holding any office of profit.
Corrupt Practices: Allegations of bribery, undue influence, or other illegal practices that might have materially affected the outcome of the election.
Procedural Violations: Complaints of serious irregularities in nomination processes, voter lists, voting procedures, or the counting of votes.

Supreme Court Proceedings and Remedies

Scrutiny: The Supreme Court thoroughly examines the claims raised in the petition and the supporting evidence. The court will consider all relevant facts and precedents.
Decision: After consideration, the Supreme Court makes a determination. Options include upholding the election or declaring it void.
Impact: If the election is declared void:

The acts performed by the elected President in their official capacity remain valid in most cases.
A fresh election needs to be held to fill the vacated office of the President.

Significance for UPSC CSE

Understanding these provisions is crucial for several reasons:

Constitutional Principles: These mechanisms showcase the system of checks and balances, and the principle that even the office of the President is subject to democratic scrutiny and the supremacy of the Constitution.
Precedents: Landmark cases related to past Presidential election disputes are often used as examples in mains answers in areas like polity and political processes.
Current Affairs: It's helpful to be aware of any active cases under Supreme Court consideration that could affect the functioning of the highest office in India.

Additional Notes

Disputes pertaining to Vice-Presidential elections also follow a similar process and fall under the purview of the Supreme Court.
While election petitions have been filed previously, none have ever been successful in completely overturning a Presidential election result in India.

Key Articles Related to the President and Emoluments

The following are some of the key articles of the Constitution of India that deal with the President and his or her emoluments:

Article 52: There shall be a President of India.
Article 53: The executive power of the Union shall be vested in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution.
Article 54: The President shall be elected by the members of an electoral college consisting of the elected members of both Houses of Parliament and the elected members of the Legislative Assemblies of the States.
Article 56: The President shall hold office for a term of five years from the date on which he enters upon his office.
Article 61: The President may be impeached for violation of the Constitution in the manner provided in this article.
Article 72: The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence.
Article 74: There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice.
Article 76: The President shall appoint the Attorney-General for India who shall hold office during the pleasure of the President.
Article 79: The Parliament of India shall consist of the President and two Houses to be known respectively as the Council of States and the House of the People.
Article 111: When a Bill has been passed by the Houses of Parliament, it shall be presented to the President, and the President shall declare either that he assents to the Bill, or that he withholds assent therefrom or that he returns the Bill for reconsideration of the Houses.
Article 123: The President shall have power to promulgate Ordinances during the recess of Parliament.
Article 143: The President may, for the opinion of the Supreme Court on any question of law or fact of public importance which has arisen or which is likely to arise.
Article 148: There shall be a Comptroller and Auditor-General of India who shall be appointed by the President by warrant under his hand and seal.
Article 153: There shall be a Governor for each State who shall be appointed by the President by warrant under his hand and seal.
Article 356: If the President, on receipt of report from the Governor of the State or otherwise, is satisfied that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution, he may by Proclamation assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor or any body or authority in the State other than the Legislature of the State.
Article 360: If the President is satisfied that a situation has arisen whereby the financial stability or credit of India or of any part of the territory thereof is threatened, he may by Proclamation make a declaration to that effect.

Emoluments of the President: Explain the meaning and scope of emoluments as per the President’s Emoluments and Pension Act, 1951. Mention the current salary, allowances, and privileges of the President as determined by the Parliament. Also, mention the pension and benefits available to the retiring or former Presidents and their spouses.

Eligibility Criteria and Oath

Eligibility Criteria: Explain the qualifications and conditions required for a person to be eligible for election as the President of India, as per Article 58 of the Constitution. Some of the eligibility criteria are:

The person must be a citizen of India.
The person must have completed the age of 35 years.
The person must be qualified for election as a member of the Lok Sabha.
The person must not hold any office of profit under the Government of India or any State or any local or other authority subject to the control of any of the said Governments.
The person must not be a member of either House of Parliament or any State Legislature. If a member of any such House is elected as President, he shall be deemed to have vacated his seat in that House on the date on which he enters upon his office as President.

Oath of Office: Describe the oath or affirmation that the President of India has to make and subscribe before entering upon his office, as per Article 60 of the Constitution. The oath or affirmation is made in the presence of the Chief Justice of India or, in his absence, the senior-most Judge of the Supreme Court available. The oath or affirmation is in the following form:

“I, A.B., do swear in the name of God / solemnly affirm that I will faithfully execute the office of President (or discharge the function of the President) of India and will to the best of my ability preserve, protect and defend the Constitution and the law and that I will devote myself to the service and well-being of the people of India.”

Conditions and Privileges of the President’s Office

Conditions of the President’s Office: Explain the qualifications and restrictions imposed on the President’s office by Article 59 of the Constitution. Some of the conditions are:

The President shall not be a member of either House of Parliament or of a House of the Legislature of any State, and if a member of any such House is elected President, he shall be deemed to have vacated his seat in that House on the date on which he enters upon his office as President.
The President shall not hold any other office of profit under the Government of India or any State or any local or other authority subject to the control of any of the said Governments.
The emoluments and allowances of the President shall not be diminished during his term of office.

Privileges of the President’s Office: Explain the benefits and immunities enjoyed by the President of India by virtue of his office, as per Article 59 and Article 361 of the Constitution. Some of the privileges are:

The President shall be entitled without payment of rent to the use of his official residences and shall be also entitled to such emoluments, allowances and privileges as may be determined by Parliament by law and, until provision in that behalf is so made, such emoluments, allowances and privileges as are specified in the Second Schedule.
The President shall not be answerable to any court for the exercise and performance of the powers and duties of his office, or for any act done or purporting to be done by him in the exercise and performance of those powers and duties.
The President shall be immune from any criminal proceedings during his term of office. He cannot be arrested or imprisoned. However, after he leaves office, he may be liable for any criminal acts committed by him while in office.
The President shall have the right to address and send messages to either House of Parliament or both Houses assembled together, and to require the attendance of any Minister for the purpose of explaining any matter of public importance referred to in such address or message.
The President shall have the power to appoint and remove the Prime Minister, the Council of Ministers, the Attorney-General, the Comptroller and Auditor-General, the Governors, the Judges of the Supreme Court and the High Courts, the Chief Election Commissioner and other Election Commissioners, the Chairman and Members of the UPSC and the SPSCs, and other constitutional and statutory authorities.

Vacancy in Office and Impeachment of the President

The office of the President may fall vacant due to any of the following reasons:

Expiry of the term of five years
Resignation by writing to the Vice-President
Removal by impeachment for violation of the Constitution
Death
Incapacity due to illness or otherwise
Election declared void by the Supreme Court

When the office of the President falls vacant due to any of the above reasons, the Vice-President acts as the President until a new President is elected and enters upon the office. The election to fill the vacancy must be held within six months from the date of occurrence of the vacancy.

The President can be removed from office by impeachment for violation of the Constitution.

The impeachment process can be initiated by either House of Parliament by passing a resolution supported by at least one-fourth of the total membership of the House and signed by at least one hundred members in the case of Lok Sabha or fifty members in the case of Rajya Sabha. The resolution must contain the charges against the President and must be sent to the other House for investigation. The other House must investigate the charges and the President has the right to appear and to be represented at such investigation. If the other House, after such investigation, passes a resolution supported by at least two-thirds of the total membership of the House, the President stands removed from office from the date on which the resolution is passed.

Powers and Functions:

The President has various powers and functions under the Constitution of India. These can be broadly classified into the following categories:

1. Executive Powers

Symbolic Head: The President acts as the embodiment of the nation. Executive actions by the Government of India symbolically occur in their name.

Key Appointments: The President's appointment powers are extensive, including:

Selecting the Prime Minister, and on their advice, the other members of the Council of Ministers.
Appointing State Governors, who function as the nominal heads of their respective states.
Designating the Chief Justice of India and judges of the Supreme Court and High Courts, ensuring the independence of the judiciary.
Constituting bodies like the UPSC and Election Commission, crucial for fair recruitment and democratic processes.

Defence Authority: As the Supreme Commander of the Armed Forces, the President upholds national security and is a symbol of military leadership.

Emergency Declarations: The President possesses the authority to proclaim three types of emergencies:

National Emergency (Article 352) during grave threats to national security.
President's Rule (Article 356) when a state government can't function as per the Constitution.
Financial Emergency (Article 360) if there's a threat to India's financial stability.

2. Legislative Powers

Parliamentary Component: The President is a key part of Parliament, along with the Lok Sabha and Rajya Sabha. Their legislative functions include:

Summoning and proroguing sessions of both Houses of Parliament, and dissolving the Lok Sabha for election purposes.
Addressing Parliament at the start of the first post-election session and the first session of each year, setting the legislative agenda.
Promulgating Ordinances when Parliament isn't in session, which hold the same force as laws but require later parliamentary approval.

Scrutiny of Bills: The President plays a vital role in lawmaking:

Every bill passed by Parliament needs presidential assent to become law.
The President may withhold assent or send a bill back for review (except money bills), adding another layer of legislative scrutiny.

Nominations: The President's nominative power strengthens representation:

Nominating 12 eminent members to the Rajya Sabha, ensuring diverse voices in the Upper House.
Nominating two representatives of the Anglo-Indian community to the Lok Sabha if it feels their representation is inadequate.

3. Financial Powers

Fiscal Oversight: The President plays a direct role in safeguarding the nation's public finances:

Money Bills: The requirement for presidential recommendation regarding their introduction guarantees that all proposed tax and expenditure legislation starts with proper executive review.
Budget Review: Ensuring that the Annual Financial Statement is laid before Parliament is a key responsibility that helps shape public debate over India's fiscal priorities.
Contingency Fund: Managing this fund allows quick access to resources during unexpected financial situations.

Resource Distribution: The President's role in appointing the Finance Commission provides a mechanism for balanced distribution of financial resources between the Centre and States, a linchpin of cooperative fiscal federalism within India.

4. Diplomatic Powers

The diplomatic powers of the Union are exercised by the President as the head of state and the representative of the nation in the international arena. The President has the following diplomatic powers:

The President can appoint ambassadors, high commissioners, and other diplomatic representatives to other countries and receive similar representatives from other countries.
The President can negotiate and sign treaties, agreements, and conventions with other countries and international organisations, subject to the approval of the Parliament.
The President can accredit and receive representatives of the Commonwealth of Nations and other international organisations.
The President can declare war or peace and send or receive armed forces to or from foreign countries, subject to the approval of the Parliament.

5. Military Powers

The military powers of the Union are exercised by the President as the supreme commander of the Indian Armed Forces. The President has the following military powers:

The President can raise and maintain the Army, the Navy, and the Air Force and can grant commissions and appointments in them.
The President can declare any area as a disturbed area and deploy the armed forces in aid of the civil power in such area, subject to the approval of the Parliament.
The President can confer any rank or appointment in the armed forces on any person, whether or not he or she holds any civil office.
The President can make rules and regulations for the government of the armed forces and for the administration of justice among them.

6. Emergency Powers

Safeguarding the Nation: Under the Constitution, the President can declare three types of emergencies, granting extraordinary powers to deal with crises:

National Emergency (Article 352): Proclaimed when the nation's security is threatened by war, external aggression, or armed rebellion. Fundamental rights may be suspended, and legislative powers of the Centre extend to state domains.
President's Rule (Article 356): Imposed if a state government cannot function in accordance with the Constitution. During this period, the President assumes direct control of the state.
Financial Emergency (Article 360): Proclaimed if the financial stability or credit of India is under threat. Far-reaching measures involving pay cuts for government officials and judicial oversight of state budgets may become necessary.

Important Notes: It's crucial to note that emergency provisions are subject to rigorous checks and balances:

Parliamentary Approval: Most declarations must be approved by Parliament within a strict timeline.
Limitations: Any suspension of fundamental rights is subject to potential judicial review.

7. Judicial Powers

The judicial powers of the Union are exercised by the President in relation to the administration of justice in the country. The President has the following judicial powers:

The President can appoint the Chief Justice and other judges of the Supreme Court and the High Courts on the recommendation of the collegium of judges and after consultation with the Governor of the State concerned in the case of High Court judges.
The President can transfer a judge from one High Court to another High Court after consultation with the Chief Justice of India and the Chief Justice of the High Courts concerned.
The President can remove a judge of the Supreme Court or a High Court on the ground of proved misbehaviour or incapacity after an address by both Houses of Parliament supported by a majority of the total membership of each House and by a majority of not less than two-thirds of the members of each House present and voting.
The President can consult the Supreme Court on any question of law or fact of public importance or on any dispute arising out of a pre-constitutional treaty, agreement, covenant, engagement, sanad, or other similar instrument.
The President can grant pardons, reprieves, respites, or remissions of punishment or suspend, remit, or commute the sentence of any person convicted of any offence by a court of law. This power extends to cases where the punishment or sentence is by a court martial or where the sentence is a sentence of death.

Understanding Presidential Discretion and UPSC Preparation

Grey Areas: While the majority of functions require the President to act on the advice of the Council of Ministers, certain situations give scope for greater independent decision-making. Some examples are granting assent to certain bills, and the timing of calling on a party or coalition to form government after an unclear election verdict. These areas highlight the President's power of discretion and require careful, context-specific analysis.

UPSC Relevance: Knowing these areas of possible discretion helps you tackle several kinds of CSE questions:

Mains Questions on Polity: Write nuanced and detailed answers when dealing with issues of executive power, federalism, and the constitutional role of the President.
Case Studies: Past examples illustrate the tension between acting on advice vs. individual decision-making (ex: pocket veto) which may need to be addressed.
Interview preparation: Expect current-affairs-based questions or situations where you may need to offer opinions on the potential consequences of different courses of presidential action.

Always remember to link this knowledge to Articles 52-78 of the Indian Constitution which directly deal with the Presidency.

Ordinance-making Power of the President and Judicial Review

1. Ordinance-Making Power of the President

Constitutional Basis: Article 123 of the Indian Constitution empowers the President to promulgate ordinances when at least one House of Parliament is not in session, and circumstances necessitate immediate action.

Conditions for Promulgation:

Recess of Parliament: Parliament (Either the Lok Sabha or Rajya Sabha) must not be in session.
Immediate Action: The President must be satisfied that urgent circumstances exist, preventing Parliament from addressing the issue promptly.

Nature of Ordinances:

Temporary Law: Ordinances have the same force and effect as Acts of Parliament but are temporary.
Subject Matter: Ordinances can be issued on subjects the Parliament is competent to legislate on (provided they do not violate Fundamental Rights).

Limitations:

Duration: Ordinances cease to operate six weeks after the reassembly of Parliament or can be withdrawn by the President earlier.
Parliamentary Approval: Ordinances must be approved by Parliament within six weeks of its reassembly; otherwise, they lapse.

2. Judicial Review of the President's Ordinance-Making Power

The President's power to issue ordinances is not absolute and is subject to judicial review. The Supreme Court of India can examine ordinances on the following grounds:

Mala fide Intent: The ordinance was issued in bad faith or motivated by ulterior considerations.
'Immediate Action' Requirement: The circumstances did not genuinely warrant immediate action and could have waited for Parliament to convene.
Violation of Fundamental Rights: The ordinance impinges upon the Fundamental Rights guaranteed by the Constitution.
Colorable Legislation: The ordinance is a disguised attempt to bypass the legislative process of Parliament (usurping legislative authority).

3. Key Supreme Court Judgements on Ordinance-Making Power

R.C. Cooper vs. Union of India (1970): The Supreme Court clarified that the President's satisfaction in issuing an ordinance is not final and can be challenged in court on limited grounds.
D.C. Wadhwa vs. State of Bihar (1987): The Court reiterated the principle that legislative power exercised by the executive through ordinances is meant for unforeseen, exceptional circumstances and should not become a substitute for proper parliamentary legislation.

4. Why Ordinance-Making Power Is Controversial

Potential for Abuse: There are concerns that the ordinance-making power could be misused to bypass parliamentary debate and scrutiny.
Frequent Re-promulgation: Some instances raise doubts about the genuine circumstances of urgency when the same ordinances are re-promulgated repeatedly.

5. Safeguards Against Abuse of Ordinance-Making Power

Judicial Review: The Supreme Court acts as a critical watchdog against potential arbitrary use of this power.
Parliamentary Control: The requirement for parliamentary approval (both Houses) within six weeks provides legislative oversight.

Veto Powers and Bills that Require Prior Recommendation of the President

The President can give or withhold his or her assent to any Bill passed by the Parliament. The President can also return a Bill (other than a Money Bill or a Constitutional Amendment Bill) for reconsideration of the Houses. However, if the Bill is passed again by the Houses with or without amendments, the President must give his or her assent to the Bill. The President can also reserve a Bill for the consideration of the President if it is passed by a State Legislature and affects the powers and position of the High Courts, the Seventh Schedule of the Constitution, or the representation of the States in the Parliament.

The President’s assent or withholding of assent to a Bill is known as the veto power of the President. The veto power can be classified into the following types:

Absolute veto: The President can withhold his or her assent to any Bill (except a Constitutional Amendment Bill) and the Bill cannot become a law. This power is rarely exercised by the President as it goes against the principle of parliamentary supremacy and the will of the people.
Suspensive veto: The President can return a Bill (other than a Money Bill or a Constitutional Amendment Bill) for reconsideration of the Houses. If the Bill is passed again by the Houses with or without amendments, the President must give his or her assent to the Bill. This power is exercised by the President on the advice of the Council of Ministers and is meant to ensure that the Parliament reconsiders the Bill carefully and makes necessary changes if required.
Pocket veto: The President can withhold his or her assent to any Bill (except a Constitutional Amendment Bill) and keep the Bill pending indefinitely without taking any action on it. This power is exercised by the President on his or her own discretion and is meant to prevent the enactment of a controversial or undesirable Bill. However, this power is not explicitly mentioned in the Constitution and is derived from the silence of the Constitution on the time limit for the President’s assent.

Some Bills require the prior recommendation of the President for their introduction in the Parliament. These are:

Bills affecting taxation in which States are interested
Bills affecting the borrowing of money or giving any guarantee by the Government of India
Bills affecting the alteration of the boundaries of any State
Bills for the formation of new States
Bills for the amendment of the Constitution

The prior recommendation of the President is necessary to ensure that the Parliament does not encroach upon the rights and interests of the States or the basic structure of the Constitution without the consent of the head of the Union.

Pardoning Power of the President and Comparison with the Governor

1. Pardoning Power of the President

Constitutional Provision: The pardoning power of the President of India is enshrined in Article 72 of the Constitution.
Scope of Power: The President has the power to grant the following:
Pardon: Completely absolves the person from all punishments and disqualifications.
Commutation: Replaces one form of punishment with a less severe form.
Remission: Reduces the quantum of punishment without changing its nature.
Respite: Awards a lesser sentence on special grounds (illness, pregnancy, etc.).
Reprieve: Temporary suspension of punishment.
Wide Power: The President's pardoning power extends to:
All offences where punishment/sentence is by a Court Martial.
All cases of death sentence.
Limitations: The President uses this power on the advice of the Council of Ministers and cannot act against established judicial pronouncements.

2. Pardoning Power of the Governor

Constitutional Provision: Article 161 of the Constitution provides pardoning power to the Governor of a state.
Scope of Power: Identical to the President in regards to pardon, commutation, remission, respite, and reprieve.
Limitations: Governors have two notable limitations:
No Power in Court Martial Cases: Governors cannot pardon punishments awarded by Court Martial.
Death Sentences: Historically, Governors couldn't pardon death sentences. However, a recent Supreme Court ruling (2021) granted state Governors this power under exceptional circumstances.

Comparison: President vs. Governor

Feature	President	Governor
Constitutional Provision	Article 72	Article 161
Scope of Power	Wider	Narrower
Death Sentences	Can pardon	Historically could not; recent SC ruling gives limited power
Court Martial Cases	Can pardon	Cannot pardon

Discretionary Powers and Constitutional Position of the President

The discretionary powers of the President are those powers that he or she can exercise on his or her own judgment and without the aid and advice of the Council of Ministers. The Constitution does not explicitly mention the discretionary powers of the President, but they can be inferred from the following provisions:

Article 74(2): The question whether any, and if so what, advice was tendered by the Council of Ministers to the President shall not be inquired into in any court.
Article 78 (c): It shall be the duty of the Prime Minister to communicate to the President all decisions of the Council of Ministers relating to the administration of the affairs of the Union and proposals for legislation.
Article 86(2): The President shall have the right to send messages to either House of Parliament, whether with respect to a Bill then pending in Parliament or otherwise, and when a message is so sent, the House shall with all convenient dispatch consider any matter required by the message to be taken into consideration.
Article 111: When a Bill has been passed by the Houses of Parliament, it shall be presented to the President, and the President shall declare either that he assents to the Bill, or that he withholds assent therefrom, or that he returns the Bill (if it is not a Money Bill or a Constitutional Amendment Bill) for reconsideration of the Houses.

The discretionary powers of the President can be exercised in the following situations:

When there is no Council of Ministers or when the Council of Ministers has resigned or lost the confidence of the Lok Sabha. In such cases, the President can appoint a Prime Minister of his or her choice and ask him or her to seek a vote of confidence in the Lok Sabha. The President can also dissolve the Lok Sabha and order fresh elections on his or her own discretion.
When the Prime Minister and the Council of Ministers differ on any matter and the Prime Minister does not communicate the same to the President. In such cases, the President can act on his or her own judgment and send a message to the Parliament or withhold his or her assent to a Bill or return a Bill for reconsideration.
When there is a constitutional crisis or a breakdown of the constitutional machinery in a State. In such cases, the President can act on his or her own discretion and proclaim a state of failure of constitutional machinery under Article 356 of the Constitution and impose President’s rule in the State.
When there is a grave emergency threatening the security, stability, or integrity of the nation. In such cases, the President can act on his or her own discretion and proclaim a state of emergency under Article 352 of the Constitution and suspend the fundamental rights of the citizens and extend the life of the Lok Sabha.

The constitutional position of the President is that of a nominal or titular head of the state and the executive. The President is bound by the aid and advice of the Council of Ministers in the exercise of his or her functions, except in the situations where he or she can act on his or her own discretion. The President is also subject to the control and supervision of the Parliament and the Supreme Court in the performance of his or her duties. The President is not answerable to any court of law for the exercise and performance of his or her powers and duties, but he or she can be impeached by the Parliament for violation of the Constitution. The President is also the symbol of the nation’s unity and represents the nation in the international arena. The President is also the custodian of the Constitution and the protector of the rights and interests of the States and the citizens.

Exam-Oriented Tip: Prepare hypothetical scenarios for essay questions or Mains answers where these powers become vital (ex: a controversial bill affecting multiple states' water-sharing rights). Practice articulating clear, well-rounded positions justified by your understanding of constitutional provisions and relevant political considerations.

UPSC Mains practice questions

Q.) "The President of India is a mere figurehead." Critically analyse this statement in the light of relevant constitutional provisions and case law.

This question focuses on the President's seemingly ceremonial role vs. the powers the Constitution actually grants.

Q.) Discuss the process of impeachment of the President of India. What are the various grounds for impeachment?

This question requires knowledge of the specific steps involved in removing a President as well as the reasons the Indian Constitution outlines for such a process.

Q.) The powers and position of the President of India have been the subject of debate since India's independence. In the light of this statement, examine the evolving role of the President in the Indian political system.

This question explores how the practical interpretations of the President's position have changed over time, perhaps even going beyond the strict bounds of the Constitution.

Q.) Critically examine the relevance of the Ordinance-making power of the President of India.

This examines situations where the President can issue Ordinances (temporary laws). You would need to consider when it's appropriate and potential concerns about this power.

Q.) "The President has the power to pardon but doesn't have the power to commute sentences." Discuss the difference and its implications.

This questions tests your precise understanding of the different types of clemency the President can grant and how they are applied.

Important Notes

The UPSC Mains exam prioritises analytical ability and understanding. Questions will rarely be about directly reciting facts.
You'll need to connect your knowledge of the President's constitutional role with broader themes of Indian democracy, rule of law, and separation of powers.
Always be alert to changing scenarios within Indian politics – examples drawn from recent news could strengthen your responses!

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