The President of India Appoints the Prime Minister, Judges and Governors, Assents to Every Bill and Can Commute Death Sentences, but Article 74 Binds the President to the Council of Ministers' Advice With One Right of Reconsideration

The President of India holds the Union’s executive power, summons Parliament, assents to every Bill, issues ordinances while Parliament is away, appoints judges and Governors, and can commute a death sentence. Article 74 then says the President must act on the advice of the Council of Ministers, the team headed by the Prime Minister, and each power below comes with its own rule, court ruling or habit that limits it.

The office on paper

Article 52 says “There shall be a President of India”, and Article 53(1) vests the Union’s executive power in the President. The supreme command of the Defence Forces sits with the President too, and Article 53(2) says its exercise “shall be regulated by law”. Parliament has three parts under Article 79: the President, the Lok Sabha and the Rajya Sabha. These provisions came into force on 26 January 1950 under Article 394, while the oath of Article 60 and a few other articles started earlier.

That oath binds the President to “preserve, protect and defend the Constitution and the law”. No court can hold the President answerable for exercising the office’s powers, says Article 361, which also bars criminal proceedings during the term. One exception exists: a court, tribunal or body that either House appoints to investigate an impeachment charge under Article 61 may review the President’s conduct. Election, impeachment and the make-up of the Council of Ministers are in our guide to the Union executive, so this piece sticks to what the President does.

How the advice rule was written, tested and amended

Ambedkar told the Constituent Assembly on 4 November 1948 that the President “is the head of the State but not of the Executive” and “will be generally bound by the advice of his Ministers”. On 26 November 1949 the Assembly’s president, Rajendra Prasad, said that as far as he knew no provision of the Constitution made the advice binding. He hoped the British convention would take root so that the President “will become a Constitutional President in all matters”. Prasad then became the first President, and our profile of him covers the first public test of that hope, in 1951.

Seven judges of the Supreme Court settled the point for the Union and the states on 23 August 1974, in the Shamsher Singh case. Justice Krishna Iyer, in a separate opinion, writing for himself and Justice Bhagwati, named the “few well known exceptional situations” in which the head of state has room of their own. They are the choice of Prime Minister, limited by the need to command a majority in the House; the dismissal of a government that has lost its majority but will not leave; and the dissolution of the House when an appeal to the country is necessary. Even in that last case, he wrote, the head of state should avoid politics and be advised by the Prime Minister.

Parliament then wrote the rule into the text. The 42nd Amendment, in force from 3 January 1977, made Article 74(1) say the President shall “act in accordance with such advice”, and the 44th Amendment, from 20 June 1979, added the proviso that the President may require the Council of Ministers to reconsider its advice but must follow the advice given after reconsideration. Article 74(2) bars any court from inquiring what advice ministers gave. Two other levers sit in Article 78: the Prime Minister must furnish any information the President calls for, and must submit to the whole Council any matter a single minister has decided if the President so requires.

Parliament’s calendar, and a Bill’s road to law

Under Article 85 the President summons each House so that no more than six months pass between sessions, and may prorogue the Houses and dissolve the Lok Sabha. The President addresses both Houses at the first session after each general election and at the first session of each year (Article 87), nominates 12 members to the Rajya Sabha for knowledge of literature, science, art and social service (Article 80(3)), and causes the annual financial statement, the Budget, to be laid before Parliament (Article 112). Our account of how sessions are called shows the practice.

A Bill that has passed both Houses goes to the President, who under Article 111 declares assent or withholds it. The proviso lets the President return a Bill that is not a Money Bill “as soon as possible” with a request to reconsider it, and if both Houses pass it again the President “shall not withhold assent”. Since the 24th Amendment took effect on 5 November 1971, a Bill to amend the Constitution must be assented to as well, a route explained in our account of Article 368.

Two cases show the return, and the absence of a deadline, in use. PRS Legislative Research records that Parliament passed the Indian Post Office (Amendment) Bill in December 1986, that President Zail Singh neither assented nor returned it before leaving office in July 1987, that President Venkataraman returned it in January 1990, and that the government withdrew it in 2002. President Abdul Kalam returned the Parliament (Prevention of Disqualification) Amendment Bill in 2006. Madabhushi Sridhar of NALSAR University of Law wrote on 5 August 2006 that Kalam had asked for criteria that are “just, fair and reasonable” across states and union territories, and had questioned the retrospective effect and the inclusion of offices whose disqualification petitions were still pending. Parliament passed the Bill again, and the resulting Act, number 31 of 2006, is dated 18 August 2006.

Ordinances, law without Parliament for a limited time

Article 123 lets the President promulgate an ordinance when both Houses are not in session and the President is satisfied that circumstances require immediate action. An ordinance has the force of an Act, must be laid before both Houses, and ceases six weeks after Parliament reassembles, or sooner if both Houses pass resolutions disapproving it. The President can withdraw it at any time, and it is void to the extent that it covers anything Parliament could not legislate on.

A clause added to Article 123 by the 38th Amendment in 1975 made the President’s satisfaction final and beyond question in any court, PRS notes, and the 44th Amendment removed it from 20 June 1979. PRS, in a post of 27 September 2013, also recalls the case of RC Cooper (1970), which tested the Ordinance of 1969 that took over 14 major banks. As PRS summarises it, the Court held that the President’s decision could be challenged if immediate action was not needed or the ordinance was meant to avoid legislative debate.

The leading modern ruling is the Krishna Kumar Singh case, decided on 2 January 2017 by seven judges, on state ordinances under Article 213, the Governor’s counterpart to Article 123. The Supreme Court Observer reports that the Court held re-promulgating ordinances without placing them before the legislature to be a “fraud on the Constitution”, and held that ordinance-making is conditional and gives the executive no independent lawmaking power. Rights created by an ordinance survive its lapse only if undoing them would be irreversible, impractical and against a compelling public interest.

Appointments, and the two that reached the Supreme Court

The Constitution has the President appoint the Prime Minister (Article 75), the Attorney-General (Article 76), the Comptroller and Auditor-General (Article 148), Governors (Article 155), Supreme Court judges (Article 124), the Election Commissioners (Article 324) and the members of each Finance Commission (Article 280, every fifth year or earlier). Governors hold office “during the pleasure of the President” under Article 156, within a five-year term. Who actually picks the names is settled elsewhere, and two of those settlements have been contested in court.

For judges, the Department of Justice told the Rajya Sabha on 28 November 2024 that appointments follow a Memorandum of Procedure prepared in 1998 after the Second Judges case of 6 October 1993 and the advisory opinion of 28 October 1998. Proposals for the Supreme Court start with the Chief Justice of India, and the department says only people the Supreme Court Collegium recommended are appointed. It calls the process “continuous, integrated and collaborative” between the executive and the judiciary. Parliament tried a different design in the 99th Amendment, in force from 13 April 2015, which created a National Judicial Appointments Commission. A five-judge bench struck it down on 16 October 2015. Justice Khehar wrote that its judicial component did not secure primacy for the judiciary and so violated the “basic structure”, and the Court’s order declared the collegium system “operative”. Justice Chelameswar, in a separate opinion, wrote that the collegium’s proceedings were “absolutely opaque and inaccessible both to public and history”.

For Election Commissioners, Article 324(2) says the President appoints them “subject to the provisions of any law made in that behalf by Parliament”. No such law existed until 2023. In the Anoop Baranwal case of 2 March 2023 the Court directed that until Parliament legislated, a committee of the Prime Minister, the Leader of the Opposition and the Chief Justice of India would recommend names. Parliament then passed Act 49 of 2023, which received assent on 28 December 2023 and whose section 7 puts a Union Cabinet Minister nominated by the Prime Minister on the committee in place of the Chief Justice. The challengers say this gives the executive too large a role. The Union’s Attorney General argued that the 2023 directions were interim measures to fill a legislative gap and that Parliament may now fill it differently. On 23 September 2026 a two-judge bench divided on whether a larger bench must hear the challenge, and its joint order sent the papers to the Chief Justice of India to consider constituting a Constitution Bench.

Pardons, with a court-tested limit

Article 72 lets the President grant pardons, reprieves, respites and remissions, and suspend, remit or commute a sentence, in three kinds of case: every court-martial sentence, offences against laws on matters of Union executive power, and every sentence of death. Article 161 gives Governors a parallel power, and Article 72(3) keeps a Governor’s own power over death sentences under state law.

Shatrughan Chauhan (2014), as quoted in a later order, calls it well settled that this power is “exercised on the aid and advice of the Council of Ministers”, and courts review it only narrowly. Three judges restated the grounds in the Mukesh Kumar case, decided on 29 January 2020: Epuru Sudhakar (2006) allows review where an order was passed without application of mind, in bad faith, on irrelevant considerations, with relevant material kept out, or arbitrarily. The same order sets out one petition’s timeline. The petition was filed on 14 January 2020, forwarded by the Lieutenant Governor to the Home Ministry on 15 January and to the President on 16 January, and rejected on 17 January. The Court said a swift rejection is not in itself a ground for review, though delay may be, and dismissed the petition.

The President’s Secretariat publishes the outcomes. Its statement lists 36 numbered entries of rejected petitions, some covering several convicts, running from 2012 into 2020, and four commuted death sentences with decisions dated from 15 November 2012 to 1 January 2017.

When no party has a majority

Article 75(1) says only that the Prime Minister “shall be appointed by the President”, so a hung Lok Sabha is where the President’s own judgment matters most. Siddharth Sijoria of the Young Commonwealth Lawyers Association described the habits in an article of 15 July 2024. President Venkataraman invited the leader of the largest party, a rule President Sharma followed in 1996 when he invited Atal Bihari Vajpayee, whose government withdrew its confidence motion within 13 days. President Narayanan asked instead for letters of support from other parties before inviting anyone in 1998. By Sijoria’s account, a confidence vote was lost in April 1999, neither side could show enough letters, and Narayanan dissolved the Lok Sabha on 26 April.

Asking the Court, and the emergency powers

The President’s emergency powers under Articles 352, 356 and 360 each need Parliament’s approval within a fixed time, as our piece on the emergency provisions sets out. Article 143 adds a quieter power, to refer a question of law or fact of public importance to the Supreme Court for its opinion.

The President referred fourteen questions on 13 May 2025 about assent to Bills, and the Court’s opinion of 20 November 2025 held that the President “cannot be bound by judicially prescribed timelines” under Article 201. The same opinion says the President need not seek the Court’s advice each time a Governor reserves a Bill, and that references have been made “on numerous previous occasions”.