Powers of the President: Veto, Ordinance, Pardon and Discretion

Prerequisites

• The President: Election, Qualifications and Impeachment — who the President is and how the office is filled.
• Parliament — how a Bill reaches the President for assent.
• Fundamental Rights — Art 21 is why the courts review mercy petitions in death-sentence cases.

The Hook: A Bill Passed in Raipur, Waiting in Delhi

Why it matters: Types of veto, ordinance limits, the five forms of pardon and Art 72 versus Art 161 are classic Prelims material. Mains asks whether the President is a “rubber stamp” and about ordinance misuse.

The Golden Rule: Article 74

Art 74(1): There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President, who shall act in accordance with such advice.

Art 74(2): The question whether any, and if so what, advice was tendered cannot be inquired into in any court.

In Shamsher Singh v. State of Punjab (1974), a seven-judge bench held that the President and Governors exercise their formal powers on the advice of ministers, except where the Constitution expressly requires otherwise.

Executive Powers

• All executive action of the Government of India is taken in the President’s name (Art 77). Rules for the convenient transaction of business are made by the President (Art 77(3)).
• Appoints: the Prime Minister and other ministers (Art 75); the Attorney General (Art 76); the CAG (Art 148); the Chief Election Commissioner and Election Commissioners (Art 324); the Chairman and members of the UPSC (Art 316); Governors (Art 155); judges of the Supreme Court and High Courts (Arts 124, 217); the Finance Commission (Art 280); the National Commissions for SCs, STs and Backward Classes (Arts 338, 338A, 338B).
• Can seek information from the PM about administration and proposals for legislation (Art 78).
• Can declare any area a Scheduled Area (Fifth Schedule) and has powers over the administration of Scheduled and Tribal Areas. This is directly relevant to Chhattisgarh’s Fifth Schedule districts. See Tribes of Chhattisgarh.
• Administers Union Territories through administrators he appoints (Art 239).

Military and Diplomatic Powers

• Supreme Commander of the Defence Forces (Art 53(2)). Declares war and concludes peace, subject to parliamentary regulation.
• Sends and receives ambassadors; international treaties and agreements are concluded in his name, subject to approval by Parliament where required.

Legislative Powers

• Parliament consists of the President and the two Houses (Art 79). The President is part of Parliament but not a member of either House.
• Summons and prorogues the Houses and dissolves the Lok Sabha (Art 85).
• Addresses Parliament: at the first session after each general election and at the first session of each year (Art 87).
• Summons a joint sitting to resolve a deadlock on an ordinary Bill (Art 108).
• Nominates 12 members to the Rajya Sabha with special knowledge of literature, science, art and social service (Art 80). The nomination of two Anglo-Indians to the Lok Sabha (Art 331) ended in January 2020, when the 104th Amendment (2019) did not extend it.
• Prior recommendation is needed for introducing a Money Bill (Art 117) and certain other Bills, such as one to form a new State or change State boundaries (Art 3).
• Causes the Annual Financial Statement (budget) to be laid (Art 112) and can make advances from the Contingency Fund of India (Art 267).

Veto Power: Article 111

When a Bill passed by both Houses is presented, the President may:

1. give assent, or
2. withhold assent, or
3. return it (if it is not a Money Bill) for reconsideration. If Parliament passes it again, with or without amendment, the President shall not withhold assent.

State Bills reserved for the President (Art 201)

• The Governor may reserve a State Bill for the President’s consideration (Art 200). For some Bills reservation is mandatory, for example a Bill that would derogate from the powers of the High Court.
• The President may assent or withhold assent. For a non-Money Bill, he may direct the Governor to return it to the State Legislature. If the Legislature passes it again within six months, it is again presented to the President, who is not bound to assent.
• No time limit is written in Art 201.

Ordinance-Making Power: Article 123

The President can promulgate an ordinance (अध्यादेश) when:

• both Houses are not in session, or either House is not in session (an ordinance can be issued when only one House is sitting, because a law needs both); and
• he is satisfied that circumstances exist which render immediate action necessary.

Cases:

• R.C. Cooper v. Union of India (1970): the President’s satisfaction can be questioned on the ground of mala fides.
• D.C. Wadhwa v. State of Bihar (1987): repeated re-promulgation of ordinances without placing them before the legislature is a fraud on the Constitution (this case concerned a Governor’s ordinances under Art 213).
• Krishna Kumar Singh v. State of Bihar (2017): a seven-judge bench reaffirmed that re-promulgation is a fraud on the Constitution and held that the failure to lay an ordinance before the legislature is a serious constitutional infraction.

Pardoning Power: Article 72

The President can grant pardons, reprieves, respites or remissions of punishment, or suspend, remit or commute a sentence, of any person convicted where:

1. the punishment is by a Court Martial;
2. the offence is against a law on a matter to which the executive power of the Union extends;
3. the sentence is a sentence of death.

Cases:

• Maru Ram v. Union of India (1980): the power is exercised on the advice of the Council of Ministers.
• Kehar Singh v. Union of India (1989): the petitioner has no right to an oral hearing; the President can examine the evidence afresh.
• Epuru Sudhakar v. Govt. of A.P. (2006): pardon orders are subject to limited judicial review (non-application of mind, mala fides, irrelevant or extraneous considerations, arbitrariness).
• Shatrughan Chauhan v. Union of India (2014): unexplained and inordinate delay in deciding mercy petitions can be a ground to commute a death sentence.

Other Powers

• Emergency powers: National Emergency (Art 352), President’s Rule in a State (Art 356) and Financial Emergency (Art 360), all on the Cabinet’s advice. Since the 44th Amendment, a National Emergency can be proclaimed only on the written advice of the Cabinet.
• Advisory jurisdiction (Art 143): The President may refer a question of law or fact of public importance to the Supreme Court. The Court may give its opinion under Art 143(1) and the opinion is not binding on the President. For disputes arising out of pre-Constitution treaties and similar instruments (Art 143(2)), the Court must give its opinion. Examples: In re Delhi Laws Act (1951), In re Kerala Education Bill (1958), the Third Judges case (1998), In re Ram Janmabhoomi (the Court declined to answer, 1994), and the 2025 reference on assent to Bills.

Does the President Have Any Discretion?

The Constitution gives the President no express discretionary power (unlike the Governor, Art 163). But some situational discretion exists:

1. Appointing the Prime Minister when no party or coalition has a clear majority in the Lok Sabha, or when the PM dies in office with no obvious successor.
2. Dismissing a Council of Ministers that has lost the confidence of the Lok Sabha but refuses to resign.
3. Dissolving the Lok Sabha when the Council of Ministers has lost its majority.
4. Returning advice once for reconsideration (Art 74(1) proviso) and returning a Bill (Art 111).
5. Pocket veto, since no time limit binds him.
6. Seeking information from the PM under Art 78.

Analysis for Mains: The President is a constitutional head, not a rubber stamp. The office can warn, encourage and be consulted (Bagehot’s three rights of the monarch), delay hasty decisions, and act independently in a hung Parliament. But Art 74 makes clear that, in normal times, real power lies with the elected Council of Ministers responsible to the Lok Sabha.

Memory Tricks

Don’t Confuse

Common Mistakes

Practice

All questions below are original practice questions written in CGPSC style. They are not previous-year questions.

Level 1: Foundation

1. The provision that the President shall act in accordance with ministerial advice was made explicit by the ______ Amendment.
2. An ordinance ceases to operate ______ weeks after the reassembly of Parliament.
3. Name the form of clemency that reduces the period of a sentence without changing its character.

Level 2: Prelims MCQs

Q1. Consider the following statements about the President’s power under Article 111:

1. The President can return a Money Bill once for reconsideration.
2. If a returned Bill is passed again by Parliament, the President must give assent.
3. The Constitution does not prescribe a time limit within which the President must act on an ordinary Bill.

Which of the statements given above is/are correct?

• (a) 1 and 2 only
• (b) 2 and 3 only
• (c) 3 only
• (d) 1, 2 and 3

Q2. Match List I (form of clemency) with List II (meaning):

• (a) A-2, B-3, C-1, D-4
• (b) A-3, B-2, C-4, D-1
• (c) A-2, B-3, C-4, D-1
• (d) A-4, B-3, C-2, D-1

Q3. Which one of the following can the President do but the Governor of a State cannot?

• (a) Commute a death sentence
• (b) Grant pardon in a case of punishment by a Court Martial
• (c) Promulgate an ordinance when the legislature is not in session
• (d) Suspend a sentence

Q4. Consider the following statements regarding ordinances:

1. An ordinance can be promulgated when only the Lok Sabha is in session.
2. The 44th Amendment made the President’s satisfaction for issuing an ordinance immune from judicial review.
3. Re-promulgation of an ordinance without placing it before the legislature has been held to be a fraud on the Constitution.

Which of the statements given above is/are correct?

• (a) 1 and 3 only
• (b) 2 only
• (c) 1 and 2 only
• (d) 1, 2 and 3

Q5. The advisory opinion of the Supreme Court under Article 143(1):

• (a) is binding on the President
• (b) must be given in every case referred
• (c) is not binding on the President and the Court may decline to answer
• (d) can be sought only on questions of law, not of fact

Level 3: Mains Answer Writing

Q1. (150–200 words) “The President of India is a constitutional head, but not a rubber stamp.” Discuss.

Q2. (60 words) Distinguish between the pardoning powers of the President and the Governor.

Quick Revision Table

Key Takeaways

What’s Next

• The Vice-President — the second-highest office and the Rajya Sabha’s Chairman
• Prime Minister and Council of Ministers — where real executive power lies
• State Executive and Legislature — the Governor’s parallel powers under Arts 161, 163, 200 and 213
• Centre-State Relations — Art 356 and the politics of assent