Judicial Powers of the President

At a Glance

• What it is The President’s role in the judiciary: appointments, advisory opinions and pardons
• Article Article 143 (advisory), Article 72 (pardon)
• Appointments Chief Justice and judges of the Supreme Court and high courts
• Advice Supreme Court’s opinion is not binding on the President
• Exam link UPSC Prelims, Polity: President

Where Does It Fit?

This is the ninth topic of the category on the President. The President’s judicial powers cover appointment of judges, seeking advice from the Supreme Court and granting pardons. The President does not decide cases but plays a part in the judicial system.

The Three Judicial Powers

1. The President appoints the Chief Justice and the judges of the Supreme Court and high courts.
2. The President can seek advice from the Supreme Court on any question of law or fact; the advice is not binding on the President.
3. The President can grant pardon, reprieve, respite and remission of punishment, or suspend, remit or commute the sentence of any person convicted of any offence, in all cases where the punishment or sentence is by a court martial, where it is for an offence against a Union law, and where the sentence is a sentence of death.

Advisory Jurisdiction (Article 143)

Article 143 authorises the President to seek the opinion of the Supreme Court in two categories: any question of law or fact of public importance which has arisen or is likely to arise; and any dispute arising out of a pre-constitution treaty, agreement, covenant, engagement, sanad or similar instrument excluded from the original jurisdiction of the Court. In the first case the Court may tender or refuse to tender its opinion. In the second case the Court must tender its opinion. In both cases the opinion is only advisory and not a judicial pronouncement, so it is not binding on the President, who may follow it or not. It nevertheless gives the government an authoritative legal opinion on a matter it is about to decide. References under Article 143 are decided by a Bench of at least five judges.

References Made So Far

The President has made fifteen references to the Supreme Court under its advisory jurisdiction, in chronological order: Delhi Laws Act (1951); Kerala Education Bill (1958); Berubari Union (1960); Sea Customs Act (1963); Keshav Singh’s case relating to the privileges of the legislature (1964); Presidential Election (1974); Special Courts Bill (1978); Jammu and Kashmir Resettlement Act (1982); Cauvery Water Disputes Tribunal (1992); Rama Janma Bhumi case (1993); consultation process to be adopted by the Chief Justice of India (1998); legislative competence of the Centre and states on natural gas and liquefied natural gas (2001); the constitutional validity of the Election Commission’s decision on deferring the Gujarat Assembly elections (2002); Punjab Termination of Agreements Act (2004); and the 2G spectrum case verdict and mandatory auctioning of natural resources (2012).

How Questions Are Framed

Examiners test this topic with statements about the nature of the opinion and the extent of the pardon. The usual traps are that the Supreme Court must always answer a reference (it need not in the first category, though it must in the second), that its opinion binds the President (it does not), that the President can pardon any offence under any law (only Union law, court martial and death sentence cases), and that the President removes judges (judges are removed only by Parliament). Another common trap is to confuse a presidential reference with a writ jurisdiction case: the advisory opinion is not a judgment, and no party is bound by it.

Pardoning Power

The pardoning power is a judicial power that the President exercises independently of the judiciary, not as a court of appeal. Its purpose is to keep the door open for correcting any judicial errors and to give relief from a sentence the President considers unduly harsh. It is covered in detail in topic 13.13 with the forms of pardon, the differences between the President’s and Governor’s powers and the principles laid down by the Supreme Court in Kehar Singh (1988).

The power of appointment of judges is exercised on the advice of the council of ministers, with the process of consultation of the Chief Justice of India, a subject that was itself referred to the Supreme Court in the 1998 reference. The President does not have any power of removal of judges: that is done only by Parliament on the ground of proved misbehaviour or incapacity after an address by both Houses, and the President acts on that address.

Why Is This Topic Important?

• Advisory jurisdiction Appears often in Prelims
• References list Selected references are tested
• Pardoning link Leads to 13.13

What Came Next?

The next topic covers the financial powers of the President.

Key People and Terms

• Advisory jurisdiction Opinion given on a reference
• Sanad Pre-constitution instrument
• Court martial Military court
• Reprieve Stay of a sentence
• Remission Reducing the period of sentence

Exam Corner

Mains Angle

Questions on this topic usually ask about the advisory role. Use these points to add depth.

• Independence Pardon is independent of the judiciary
• Non-binding opinion Authoritative but not enforceable
• Safeguard Corrects judicial errors
• Appointment Role in the judiciary through the executive