Context as Pretext: Presidential Discretion in India

Abstract

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 discretionary 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 advice.