Economic & Political Weekly EPW MARCH 31, 2018 vol lIiI no 13 25 Discretionary Powers of the Indian President Venkataraman Ganesh book reviewS Presidential Discretion by Debtoru Chatterjee, New Delhi: Oxford University Press, 2016; xxv + 313, `995. “ T here shall be a President of India—Article 52, Constitution of India.” Despite being vested with tremendous power, it is well known that the President of India cannot act except in accordance with the advice of the council of ministers. This being the case, it is not altogether illogical to question the necessity of the office of the President. Why cannot the Prime Minister do what the President does? The answer to this and other ques- tions pertaining to the Indian President can be understood when one reads Presi- dential Discretion by Debtoru Chatterjee. Silence of the Constituent Assembly Contrary to popular expectations, the President can and does exercise his/her discretion under particular situations, and it is precisely due to these that there exists the need for a President. The Con- stituent Assembly, somewhat surpris- ingly, did not seem to have discussed or debated the issue at all. The need for a President seems to have been assumed, the only question being the extent of the President’s powers (Nehru 1947; Shah 1948). Given that India’s political class was already familiar with the Westmin- ster model of parliamentary democracy, the Union Constitution Committee of the Constituent Assembly decided that the President shall be the ceremonial head of state, much like the Monarch of the United Kingdom ( UK) (Nehru 1947). An important difference that sets the President of India apart from the British Monarch is the fact that the former is liable to impeachment by the two houses of Parliament for “violation of the Con- stitution,” a situation unimaginable in the UK. Theoretically, this points to the fact that the President enjoys certain discre- tionary powers, but what these powers are and under what circumstances they are to be exercised were neither thorough- ly debated in the Constituent Assembly nor specified in the Constitution. These questions were left to the conventions practised in the UK. The firm stance taken by prominent members of the assembly that the President was a constitutional head seems to have ensured that little attention was paid to the nitty gritty of the President’s role (Ambedkar 1949). This silence led to some friction between the President and the Prime Minister in the early years of the republic (Austin 2003). While the text of the Constitution was amended by the 42nd Amendment to re- move any ambiguity regarding the role of the President vis-à-vis the council of ministers, questions about the Presi- dent’s discretion persists. It is this ambi- guity that Chatterjee’s book investigates. Chatterjee states in the very beginning that his book is an objective effort to ex- plore all situations where the Indian President comes to play an important and decisive role. Stressing on the fact that he relies on facts and court judgments rather than opinions and counter-opinions, Chatterjee proceeds to analyse in pains- taking detail the different circum- stances in the UK and India wherein there is scope for the constitutional head to ex- ercise his/her discretion. Since the 42nd Amendment, Chatterjee argues, there is a very narrow territory within which the President can exercise his/her discretion. Appointment of Prime Minister In those cases where a party commands the majority in the lower house and has a recognised leader ready to step into the Prime Minister’s shoes, the constitutional head must invite the leader to form the government. However, there are times when there is no clear-cut leader who happens to be the obvious prime ministerial candidate. In such a case, Chatterjee argues that the consti- tutional head can exercise his/her dis- cretion and invite a person of his/her choice to become the Prime Minister. Another situation in which the President can exercise discretion is when the Prime Minister in office dies or resigns. There are also precedents of the consti- tutional head appointing a Prime Minis- ter of his/her choice during times of real or perceived crises. For example, King George V practically forced Ramsay MacDonald upon a hung Parliament of Britain to ensure that the challenge posed by the Great Depression was effectively tackled. In situations when a Prime Minister loses the confidence of the members of Parliament ( MPs ), the discretion of the constitutional head again comes into play. In such cases, the President must necessarily try and explore options of government formation. In case there is no obvious leader with a clear majority in Parliament, Chatterjee reiterates that the constitutional head has the freedom to appoint a candidate for the Prime Minister’s post who he/she feels is best suited to command a majority. Further- more, it is up to the President to either ask the appointed Prime Minister to prove his/her majority or leave it to the opposition to table a motion of no confi- dence against the government. In eluci- dating these situations, Chatterjee relies on a number of cases, precedents, and conventions from the UK and India. Acceptance of Advice Articles 74, 78, and 111 of the Constitu- tion have set the boundaries of presiden- tial discretion in the Indian context. In most cases, the President must act on the aid and advice of the council of ministers, but the exceptions to this rule can be found in rulings of courts and precedents set by various Presidents. Chatterjee cites the Supreme Court ruling