LEGACY IAS — Bangalore
Premier UPSC Civil Services Coaching
CONSTITUTIONAL POWERS
& POSITION OF THE
PRESIDENT & GOVERNOR
& POSITION OF THE
PRESIDENT & GOVERNOR
GS Paper-II: Polity & Governance
Comprehensive Notes with Case Laws, Comparisons & Analysis
Prelims | Mains | Interview Ready
Pardon Powers (Art. 72 & 161) | India-USA Comparison | Pre-emptive Pardon
Discretionary Powers | Immunities (Art. 361) | President vs PM
Discretionary Powers | Immunities (Art. 361) | President vs PM
Table of Contents
Article 72 — Pardon Power of the President
- Scope: 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.
- Applicability: (a) Court Martial cases; (b) Cases involving Union law offences; (c) Death sentences — only the President (not Governor) can pardon a death sentence.
Article 161 — Pardon Power of the Governor
- Scope: Governor of a State can grant pardons, reprieves, respites, or remissions of punishment, or suspend, remit, or commute the sentence of any person convicted of an offence against any law relating to a matter to which the executive power of the State extends.
- Key Limitation: Governor cannot pardon a death sentence. Governor cannot pardon Court Martial sentences.
Nature of Mercy Powers
- These are executive powers, not judicial powers.
- They are exercised on the aid and advice of the Council of Ministers (Article 74).
- They are a matter of prerogative of mercy — rooted in the sovereign's traditional clemency function.
- Purpose: To correct possible judicial errors, to show compassion, and to serve public interest.
| Type | Meaning | Effect on Sentence | Example |
|---|---|---|---|
| Pardon | Completely absolves the convict of all charges, punishments, and disqualifications. | Both conviction and sentence are wiped out entirely. As if never convicted. | President pardons a person sentenced to life imprisonment — person is fully free. |
| Commutation | Substitution of one form of punishment with a lighter form. | Nature of punishment changes (e.g., death to life imprisonment), but conviction stands. | Death sentence commuted to life imprisonment. |
| Remission | Reduction in the period of sentence without changing its character. | Duration is reduced but the nature of sentence remains unchanged. | 20-year sentence reduced to 10 years. |
| Respite | Awarding a lesser sentence in place of the prescribed one due to special circumstances. | A lighter sentence on account of pregnancy, disability, illness, etc. | Pregnant woman sentenced to rigorous imprisonment given simple imprisonment. |
| Reprieve | Temporary stay or postponement of execution of a sentence (especially death). | Execution is paused to allow time for seeking pardon or other legal remedy. | Execution of death sentence postponed pending mercy petition. |
When Can the President Intervene?
- In all death sentence cases, irrespective of whether the offence is under a Union law or State law.
- This is the exclusive power of the President — the Governor has no power to pardon a death sentence.
- The President's decision is based on the advice of the Council of Ministers (Home Ministry processes the petition).
When Can the Governor Intervene?
- In all cases involving offences against State laws only.
- Governor can commute, remit, respite, or reprieve — but NOT pardon a death sentence.
- Governor can suspend/remit/commute a death sentence under Article 161 (i.e., change it to life imprisonment), but the power to fully pardon lies only with the President.
Difference: Judicial Sentence vs. Executive Mercy
- Judicial Sentence: Pronounced by courts after trial; based on law, evidence, and legal reasoning.
- Executive Mercy: Exercised by the President/Governor; based on humanitarian, compassionate, policy, or public interest grounds — not a judicial function.
- Executive mercy does not review the judicial finding of guilt; it only addresses the sentence/punishment.
Landmark Case Laws on Pardon Power
Kehar Singh v. Union of India (1989)
Facts: Kehar Singh, convicted for conspiracy in the assassination of PM Indira Gandhi, filed a mercy petition to the President. Held (SC): (i) The President's pardon power under Article 72 is very wide and includes the power to examine the record of the case, including the evidence. (ii) The President can go into the merits of the case — not limited to points not raised before courts. (iii) However, the President acts on the advice of the Council of Ministers; this is not a personal discretion. Significance: Established that pardon power is comprehensive and the President can scrutinize the entire case independently of the judiciary.
Maru Ram v. Union of India (1981)
Issue: Whether the executive pardon power under Article 72/161 can override statutory minimum sentences (e.g., Section 433-A of CrPC). Held (SC): (i) The constitutional power under Articles 72 and 161 is unfettered by statutory provisions — no Act of Parliament can limit the President's or Governor's pardon power. (ii) However, this power must be exercised on the aid and advice of the Council of Ministers. (iii) If the executive acts arbitrarily or with mala fide intent, it is subject to limited judicial review. Significance: Confirmed the supremacy of constitutional clemency over statutory restrictions.
Shatrughan Chauhan v. Union of India (2014)
Issue: Whether inordinate delay in deciding a mercy petition can be a ground for commuting a death sentence. Held (SC): (i) Unexplained and inordinate delay in disposal of mercy petition is a valid ground for commutation of death sentence to life imprisonment. (ii) Mental illness or insanity of the convict is a supervening circumstance — such a person should not be executed. (iii) Solitary confinement and inhumane treatment while awaiting execution violates Article 21. Significance: Humanised death penalty jurisprudence; established that procedural delays violate the right to life. The Court commuted the death sentences of 15 convicts.
Epuru Sudhakar v. Government of Andhra Pradesh (2006)
Issue: Scope of judicial review of the Governor's exercise of pardon power under Article 161. Held (SC): (i) The pardon power is not absolute; it is subject to limited judicial review. (ii) Grounds for judicial review include: (a) Mala fide exercise; (b) Extraneous or irrelevant considerations; (c) Non-application of mind; (d) Arbitrary or capricious decision. (iii) The court will not substitute its own decision but can set aside a pardon order if it fails constitutional scrutiny. Significance: Definitive pronouncement on the justiciability and limits of executive clemency.
Is the Pardon Power Absolute or Limited?
- The pardon power is not absolute. It is subject to limited judicial review as established in Epuru Sudhakar and Maru Ram.
- The judiciary cannot substitute the executive's decision with its own. But it can examine the decision-making process.
Grounds of Judicial Review:
- Mala fide: If the pardon is granted with corrupt or dishonest intent, e.g., political favouritism.
- Arbitrary decision: If the decision is whimsical, capricious, or without rational basis.
- Irrelevant considerations: If extraneous factors (caste, religion, political affiliation) influenced the decision.
- Non-application of mind: If the file was not properly examined before reaching a decision.
- Violation of Article 14: If the decision discriminates unreasonably among similarly placed convicts.
Role of the Supreme Court:
- Under Article 32, the Supreme Court can entertain writ petitions challenging pardon decisions.
- The Court examines procedural fairness, not the merits of clemency itself.
- The Court can set aside a pardon order and remand it back to the executive for reconsideration.
Flowchart: Mercy Petition Process
Judicial Sentence
(by Court)
(by Court)
→
Mercy Petition filed by convict (to President/ Governor)
→
Home Ministry processes & advises CoM
→
Executive Decision (President/ Governor)
→
Judicial Review (SC under Art. 32/136)
EXAM ORIENTATION
Prelims Key Facts:
- Article 72 = President's pardon power; Article 161 = Governor's pardon power.
- Only the President can pardon death sentences — not the Governor.
- Governor cannot grant pardon in court martial cases.
- There are 5 types of clemency: Pardon, Commutation, Remission, Respite, Reprieve.
- Pardon completely absolves; Commutation changes nature; Remission reduces period.
Mains Practice Questions:
- [15 marks]: 'The pardon power of the President is not absolute and is subject to judicial review.' Discuss with reference to relevant case laws.
- [10 marks]: Distinguish between pardon, commutation, and remission. How do the clemency powers of the President differ from those of the Governor?
Interview Analytical Point:
In Shatrughan Chauhan, the SC introduced 'supervening circumstances' (delay, mental illness, solitary confinement) as grounds to commute death sentences — this balances the executive's mercy prerogative with the convict's Article 21 rights. Argue whether this amounts to judicial encroachment on executive domain.
| Parameter | India | United States |
|---|---|---|
| Constitutional Basis | Article 72 (President); Article 161 (Governor) | Article II, Section 2, Clause 1 of the US Constitution |
| Scope of Power | President: Union law offences, court martial, death sentences. Governor: State law offences (no death sentence pardon). | President has power to grant reprieves and pardons for all offences against the United States (federal offences), except in cases of impeachment. |
| Judicial Review | Yes — limited judicial review on grounds of mala fide, arbitrariness, irrelevant considerations (Epuru Sudhakar). | Traditionally considered non-justiciable. However, recent debates question this in light of self-pardons. |
| Pre-emptive Pardon | Not permitted. Pardon can only be granted after conviction. | Permitted. The US President can pardon even before trial or conviction (e.g., Ford pardoning Nixon). |
| Governor's Role | Governor has independent pardon power under Article 161 for State offences (but not death sentences). | Each State Governor has pardon power under respective State constitutions; scope varies by State. |
| Advice Requirement | President acts on the advice of Council of Ministers (Art. 74). Not a personal discretion. | President acts in personal capacity. No obligation to consult any body. |
| Impeachment Exception | No express exception for impeachment in Article 72. | Express exception: President cannot pardon in cases of impeachment. |
| Self-Pardon | Not addressed; constitutionally inconceivable as President acts on ministerial advice. | Constitutionally untested and hotly debated. |
Why is the US President's Pardon Power Wider?
- The US President exercises pardon power as a personal prerogative — no cabinet advice required.
- Pre-emptive pardon is allowed — the President can pardon before conviction or even before charges.
- No effective judicial review of the substance of the pardon decision.
- The US system reflects a stronger presidential executive model where the President has vast personal discretion.
Why Does the Indian System Have Safeguards?
- India follows a parliamentary system — the President is a nominal head and must act on ministerial advice.
- Judicial review acts as a constitutional check on potential misuse of pardon power.
- No pre-emptive pardon ensures that only convicted persons can seek mercy — preventing abuse.
- The system ensures accountability: the Council of Ministers is collectively responsible to Parliament.
EXAM ORIENTATION
Prelims Key Facts:
- US President cannot pardon in cases of impeachment.
- In India, pardon power is exercised on Council of Ministers' advice; in USA, it is a personal prerogative.
- Pre-emptive pardon is allowed in USA but NOT in India.
Mains Practice Questions:
- [15 marks]: Compare and contrast the pardon powers of the Indian President and the US President. Which system provides better safeguards against misuse?
- [10 marks]: 'The scope of judicial review of pardon power differs fundamentally between India and the USA.' Examine.
Interview Analytical Point:
The absence of pre-emptive pardon in India reflects the constitutional framers' intent to prevent the executive from shielding political allies before they are even tried — a safeguard that the US system lacks, as seen in the Ford-Nixon episode.
What is a Pre-emptive Pardon?
- A pardon granted before the person is tried, convicted, or even charged with a crime.
- It absolves the person of criminal liability for acts that may or may not have been formally prosecuted.
- It is essentially a blanket immunity from prosecution for specified acts.
Origin — United States
- Rooted in the English royal prerogative of mercy, inherited by the US Constitution.
- Article II, Section 2 grants the US President power to grant "Reprieves and Pardons for Offences against the United States" — no requirement of prior conviction.
- The US Supreme Court in Ex parte Garland (1866) held that the President's pardon power "extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment."
Classic Example: The Nixon-Ford Pardon (1974)
- President Richard Nixon resigned during the Watergate scandal (August 1974).
- President Gerald Ford granted Nixon a full and unconditional pre-emptive pardon (September 1974) for any offences he "has committed or may have committed" as President.
- Nixon was never charged or convicted — yet the pardon was constitutionally valid.
- This remains the most prominent example of pre-emptive pardon in global constitutional history.
Other Notable US Examples:
- President Andrew Johnson issued blanket amnesty to Confederate soldiers after the Civil War (1868).
- President Jimmy Carter pardoned Vietnam War draft evaders (1977).
Why Pre-emptive Pardon is NOT Allowed in India
Constitutional Reasons:
- Article 72 uses the phrase "convicted of any offence" — this textually requires a prior conviction.
- The Indian President acts on the advice of the Council of Ministers (Article 74); it is not a personal prerogative. This structural difference limits the scope of pardon.
- The Indian system is parliamentary, not presidential — concentrating unchecked pardon power in the executive is antithetical to the constitutional scheme.
Ethical Reasons:
- Pre-emptive pardon can be used to shield political allies from criminal prosecution — undermining Rule of Law.
- It defeats the purpose of criminal justice: a person cannot be pardoned for a crime that has not been established.
- It creates a perverse incentive for potential offenders who enjoy executive patronage.
- It violates the principle of equality before law (Article 14) — creating a class of persons above the law.
EXAM ORIENTATION
Prelims Key Facts:
- Pre-emptive pardon is allowed in the USA but NOT in India.
- Article 72 requires conviction before pardon can be exercised.
- The Ford-Nixon pardon (1974) is the classic example of pre-emptive pardon.
Mains Practice Questions:
- [15 marks]: What is pre-emptive pardon? Why is it not permissible under the Indian Constitution? Discuss with reference to the US experience.
- [10 marks]: 'Pre-emptive pardon undermines the Rule of Law.' Critically examine this statement in the context of the US and Indian constitutional frameworks.
Interview Analytical Point:
Pre-emptive pardon exposes a fundamental tension between executive magnanimity and democratic accountability. In a parliamentary system like India, allowing it would mean the Council of Ministers could effectively immunise itself from prosecution — a constitutional absurdity.
What Does 'Discretion' Mean in the Indian Context?
- Under Article 74(1), the President shall act on the aid and advice of the Council of Ministers. This is the general rule.
- However, in certain exceptional situations, the President may have to exercise personal judgment — these are referred to as "discretionary" or "situational" powers.
- Important distinction: Unlike the Governor (who has explicit discretionary powers under Article 163), the President does not have formally recognised discretionary powers in the Constitution.
- The President's discretion is implied, situational, and limited — arising only when there is no Council of Ministers to advise, or when the advice itself is constitutionally suspect.
1. Appointment of PM in a Hung Parliament
- Under Article 75(1), the President appoints the Prime Minister.
- When no party has a clear majority in the Lok Sabha after elections, the President must exercise judgment.
- Constitutional conventions followed:
- Invite the leader of the single largest party or the leader of a pre-election coalition.
- If no clear claimant, invite the person most likely to command majority and ask them to prove it on the floor of the House.
- Examples: In 1989 (V.P. Singh), 1996 (Vajpayee, then Deve Gowda), and 1998 (Vajpayee), the President exercised discretion.
2. Dismissal of the Council of Ministers
- The Constitution does not explicitly provide for dismissal of the PM/CoM by the President.
- Under Article 75(2), Ministers hold office during the pleasure of the President. But this pleasure is exercised on advice.
- However, if the PM has lost the confidence of Lok Sabha and refuses to resign, the President may dismiss the CoM.
- This is a theoretical discretion — never exercised in Indian constitutional history at the Centre.
3. Returning Advice for Reconsideration (Article 74 — 42nd & 44th Amendments)
- The 44th Amendment (1978) inserted a proviso to Article 74(1): the President may ask the Council of Ministers to reconsider their advice.
- However, the President is bound to act on the reconsidered advice.
- This is a limited check — it gives the President the power to cause a pause and compel the government to re-examine its decision.
- Practical significance: Even one round of reconsideration can cause political rethinking and public debate.
4. Role During Constitutional Breakdown
- If the PM dies in office and no clear successor exists, the President must ensure continuity of governance.
- During a no-confidence motion, the President's role becomes critical in managing transitions.
- In theory, if a government acts unconstitutionally, the President may have a moral (if not legal) duty to intervene — though this is constitutionally untested territory.
Key Case Laws on Presidential Discretion
Samsher Singh v. State of Punjab (1974)
Issue: Whether the President and Governor are bound by the advice of the Council of Ministers. Held (SC, 7-Judge Bench): (i) The President and Governor are constitutional heads and must act on the aid and advice of the Council of Ministers in all matters. (ii) The real executive power vests in the Council of Ministers with the PM at the head. (iii) The only exception: where the Constitution expressly requires the President/Governor to act in discretion or on personal satisfaction. Significance: This is the locus classicus on the position of the President in a parliamentary system. It firmly established that India has a Westminster-style cabinet government.
U.N.R. Rao v. Indira Gandhi (1971)
Issue: Whether a caretaker government (one that has lost majority) can advise the President to dissolve the Lok Sabha. Held (SC): (i) Even a government that has lost its majority continues to hold office until a new government is formed. (ii) The President is not bound to accept advice for dissolution from a PM who has lost majority — this is an area where the President may exercise situational discretion. Significance: Recognised a limited zone of presidential discretion in extraordinary political circumstances.
Myth vs. Reality of Presidential Discretion
| Myth | Reality |
|---|---|
| "The President can refuse to sign a Bill." | The President can withhold assent (pocket veto in practice, as in the Indian Post Office Amendment Bill, 1986) but cannot permanently refuse. If re-passed, the President must give assent. |
| "The President can dismiss the PM at will." | The President cannot dismiss a PM who commands majority. Pleasure doctrine operates on advice. Only if PM loses majority and refuses to resign does a grey area arise. |
| "The President is a rubber stamp." | Not entirely. The President's right to be informed, to warn, and to encourage (Bagehot's formulation) is real. The power to return advice for reconsideration is a meaningful check. |
| "The President has no role in governance." | The President performs critical constitutional functions: appointing PM, summoning/proroguing Parliament, promulgating ordinances, and acting as the symbol of the nation's unity. |
EXAM ORIENTATION
Prelims Key Facts:
- Under Art. 74, the President shall act on the advice of CoM (after the 42nd Amendment).
- The 44th Amendment allows the President to return advice once for reconsideration.
- The President has no explicitly stated discretionary power (unlike the Governor under Art. 163).
- Samsher Singh (1974) = President is a constitutional head, must act on advice.
Mains Practice Questions:
- [15 marks]: 'The President of India is neither a figurehead nor a real executive, but occupies a unique constitutional position.' Discuss with reference to discretionary powers and case law.
- [10 marks]: Examine the situations in which the President of India may exercise personal discretion. How do these compare with the Governor's discretionary powers?
Interview Analytical Point:
The President's discretion is best understood as a constitutional 'fire extinguisher' — not meant for everyday use, but indispensable during political crises. The real challenge is that this discretion is largely uncodified, leaving room for both constitutional statesmanship and political manipulation.
Article 361: Protection of President and Governors
1. Personal Immunity (Art. 361(1)):
- The President (and Governor) is not answerable to any court for the exercise and performance of the powers and duties of the office.
- This protects the office-holder from being dragged to court for official acts during the term.
2. Criminal Proceedings (Art. 361(2)):
- No criminal proceedings whatsoever shall be instituted or continued against the President (or Governor) during the term of office in any court.
- This is an absolute bar — no arrest, no FIR, no summons, no trial during the term.
3. Civil Proceedings (Art. 361(3)):
- No civil suit can be filed against the President/Governor for personal acts during the term of office.
- However, two months' prior written notice must be given before filing a civil suit relating to personal acts done before or during office.
- This is a procedural requirement, not an absolute bar.
| Aspect | What is Allowed / Barred | Time Limit / Duration |
|---|---|---|
| Criminal proceedings during term | Absolutely barred — no court can entertain any criminal case. | For the entire duration of the term of office. |
| Criminal proceedings after term | Can be instituted after the person demits office. | No time limit; normal limitation laws apply. |
| Civil proceedings (personal acts) during term | Allowed only after giving 2 months' written notice. | During the term; notice is a precondition. |
| Civil proceedings (official acts) | Barred — President/Governor not answerable for official acts. | Perpetual immunity for acts done in exercise of office. |
| Arrest / Detention during term | Absolutely barred. | During the entire term. |
| Impeachment (President only) | The President can be removed by impeachment under Article 61 — this is the only process available during the term. | Requires special majority of both Houses. |
Rationale Behind Presidential Immunity:
- Dignity of office: The Head of State represents the nation and should not be subjected to the indignity of court proceedings.
- Functional independence: Immunity ensures that the President can discharge duties without fear of frivolous litigation.
- Constitutional balance: Impeachment under Article 61 provides the democratic check — ensuring accountability without subjecting the office to ordinary judicial process.
- Borrowed from British convention: 'The King can do no wrong' — adapted to a republican framework.
Note: Article 361 protects the person holding the office, not the office itself. Government actions and policies can still be challenged in court; only the President/Governor personally is immune.
EXAM ORIENTATION
Prelims Key Facts:
- Article 361 provides immunity to both the President and the Governor.
- No criminal proceedings during term (absolute bar).
- Civil proceedings for personal acts require 2 months' prior written notice.
- The President can only be removed by impeachment (Art. 61).
- Art. 361 protects the person, not the government's policies.
Mains Practice Questions:
- [15 marks]: 'Article 361 provides immunity, not impunity.' Discuss the scope and limitations of presidential immunity under the Indian Constitution.
- [10 marks]: Compare the immunity provisions for the President of India with those for the US President. Are the Indian provisions adequate?
Interview Analytical Point:
The immunity under Article 361 creates an interesting constitutional paradox: while the President is not answerable to any court for official acts, the government whose advice the President follows IS answerable. This means accountability exists but is channelled through the Council of Ministers, not the President personally — a design feature of parliamentary democracy.
President as Nominal (De Jure) Executive:
- All executive actions are taken in the name of the President (Article 77).
- But the President does not take decisions independently — acts on the aid and advice of the CoM (Article 74).
- Similar to the British Monarch — the President reigns but does not rule.
- The President is the Head of State, not the Head of Government.
Prime Minister as Real (De Facto) Executive:
- The PM is the Head of Government and the leader of the Council of Ministers.
- All real policy decisions, administrative actions, and governance matters are decided by the PM and CoM.
- The PM is the link between the President and the Council of Ministers (Article 78).
- The PM holds the real executive authority — answerable to the Lok Sabha.
Article 74 — Council of Ministers to Aid and Advise the President
- Article 74(1): There shall be a Council of Ministers with the PM at the head to aid and advise the President who shall, in the exercise of functions, act in accordance with such advice.
- Proviso (44th Amendment): The President may require the CoM to reconsider such advice, but shall act in accordance with the advice tendered after such reconsideration.
- Article 74(2): The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court.
Binding Nature of Advice:
- After the 42nd Amendment (1976), it was made explicit that the President "shall" act on advice — making it constitutionally mandatory.
- The 44th Amendment softened this slightly by allowing one round of reconsideration.
- In Samsher Singh v. State of Punjab (1974), the SC held that the President must act on advice in all matters — barring express constitutional provisions to the contrary.
Key Case Laws
Ram Jawaya Kapoor v. State of Punjab (1955)
Issue: What is the nature and scope of executive power in India? Held (SC): (i) The executive power of the Union is vested in the President (Art. 53), but is to be exercised on the aid and advice of the Council of Ministers. (ii) The Indian Constitution establishes a parliamentary system on the Westminster model — the President is a constitutional or formal head. (iii) The real executive power is exercised by the Council of Ministers responsible to the legislature. Significance: Earliest authoritative pronouncement that India follows the British cabinet system and the President is not an American-style executive.
Samsher Singh v. State of Punjab (1974) — Reiterated
Key Principles: (i) Wherever the Constitution requires satisfaction of the President/Governor, it means satisfaction of the Council of Ministers — except where discretion is expressly granted. (ii) The President/Governor must act as a symbolic, formal head. (iii) Justice Krishna Iyer's famous observation: the President and Governor are "heads without heads" in the sense that they do not exercise independent judgment on policy.
U.N.R. Rao v. Indira Gandhi (1971) — Reiterated
Relevance to President-PM Relations: Even in the extraordinary situation of a PM who has lost majority, the President does not suddenly gain independent executive power. The President's role remains facilitative — to ensure a stable government is formed, not to govern independently.
Why India is a Parliamentary Democracy:
- Collective responsibility: CoM is collectively responsible to Lok Sabha (Article 75(3)).
- PM as the pivot: The PM advises the President on all major appointments and decisions.
- Nominal head: The President's role is ceremonial and constitutional, not political.
- Fusion of powers: The executive is drawn from and responsible to the legislature — unlike the US separation of powers.
Comparison Table: President vs Prime Minister
| Parameter | President | Prime Minister |
|---|---|---|
| Constitutional Position | Head of State (nominal executive) | Head of Government (real executive) |
| Source of Authority | Elected by Electoral College (Art. 54-55) | Leader of majority party in Lok Sabha; appointed by President (Art. 75) |
| Powers | All executive actions in President's name (Art. 77); but acts on CoM advice (Art. 74) | Exercises real executive power through CoM; advises President on all policy matters |
| Tenure | Fixed 5-year term (Art. 56); can be impeached (Art. 61) | No fixed term; holds office during pleasure of President (i.e., as long as majority in LS) |
| Accountability | Not accountable to Parliament (except through impeachment) | Directly accountable to Lok Sabha; CoM is collectively responsible (Art. 75(3)) |
| Removal | Only by impeachment (special majority of both Houses) | Loses office on losing confidence of Lok Sabha (no-confidence motion) |
| Discretion | Very limited; only in exceptional circumstances (hung Parliament, returning advice) | Extensive — leads policy, cabinet, and governance |
| Judicial Immunity | Absolute immunity under Art. 361 during term | No immunity — can be sued and prosecuted during term |
| Symbolic Role | Symbol of the nation; unity of India; supreme commander of Armed Forces | No symbolic role; purely a political and administrative leader |
EXAM ORIENTATION
Prelims Key Facts:
- Article 74 = CoM to aid and advise the President.
- Article 75(3) = CoM collectively responsible to Lok Sabha.
- Article 78 = PM's duty to communicate decisions of CoM to the President.
- Ram Jawaya Kapoor (1955) = first case to establish that the President is a constitutional head.
- President enjoys immunity (Art. 361); PM does NOT.
Mains Practice Questions:
- [15 marks]: 'The Indian President is not a mere rubber stamp, but the constitutional design ensures that the PM remains the real executive.' Discuss with reference to relevant articles and judicial pronouncements.
- [10 marks]: Critically examine the relationship between the President and the Prime Minister under the Indian Constitution. Has the balance shifted over time?
Interview Analytical Point:
The President-PM dynamic in India is often compared to the Monarch-PM relationship in the UK. However, there is a key difference: the Indian President is elected and has a written constitution as a reference point, which gives the office a certain moral authority that a hereditary monarch may lack. This is why occasional assertions of presidential independence (e.g., returning a Bill) carry greater constitutional weight in India.
| Article | Subject |
|---|---|
| Article 53 | Executive power vested in President |
| Article 54-55 | Election of the President |
| Article 61 | Impeachment of the President |
| Article 72 | Pardon power of the President |
| Article 74 | CoM to aid and advise the President |
| Article 75 | Appointment, tenure, responsibility of Ministers |
| Article 77 | Conduct of business of Government of India |
| Article 78 | PM's duties vis-à-vis President |
| Article 161 | Pardon power of the Governor |
| Article 163 | Governor's discretionary power |
| Article 361 | Immunity of President and Governor |
| Case | Key Principle |
|---|---|
| Ram Jawaya Kapoor v. State of Punjab (1955) | President is a constitutional head; India follows parliamentary cabinet system. |
| Samsher Singh v. State of Punjab (1974) | President must act on CoM advice in all matters; nominal head established. |
| Maru Ram v. Union of India (1981) | Constitutional pardon power is unfettered by statutory provisions. |
| Kehar Singh v. Union of India (1989) | President's pardon power is wide; can examine entire case record. |
| U.N.R. Rao v. Indira Gandhi (1971) | Caretaker government's advice on dissolution; presidential discretion recognised. |
| Epuru Sudhakar v. Govt. of AP (2006) | Pardon power subject to limited judicial review; grounds defined. |
| Shatrughan Chauhan v. UoI (2014) | Delay in mercy petition = ground for commutation; mental illness, solitary confinement as factors. |
NOTE TO STUDENTS
These notes cover all key dimensions of the President's and Governor's powers relevant for UPSC CSE. For maximum marks in Mains, always structure your answer as: Constitutional provision → Judicial interpretation → Critical analysis. For Prelims, focus on the factual distinctions (especially President vs Governor in pardon power, pre-emptive pardon, and Article 361 immunities). For Interview, develop analytical positions on each topic and be prepared to argue both sides.
— Prepared by Legacy IAS, Bangalore —
