GOVERNOR

Governor - Power, Tenure, Qualifications, Appointment 

The state executive is made up by Governor, Chief Minister, Council of Ministers and Advocate-General of State. Governor, as President, heads the state government. Article 153-167 in the Indian Constitution deal with the provisions related to the state governments of the country.

Governor is a titular head or constitutional head and at the same time, he is the agent of the centre as the union government nominates Governor in each state. This duality of roles has always been in the news and is important for IAS Exam. Aspirants should know about the appointment of Governor, his functions and his role in the state alongside Chief Minister and Council of Ministers.

Table of Contents:

Who is a Governor? How is a Governor Appointed? What is the term of Governor’s office?

Who is qualified to become a Governor? What are the conditions of his office?

What are the powers and functions of Governor? Executive Powers of the Governor Legislative Powers of the Governor Financial Powers of the Governor Judicial Powers of the Governor

What is the Constitutional Position of Governor? Governor’s Discretionary Powers

Important Constitutional Articles related to the Governor

Who is a Governor?

Governor is a nominal executive head of the state. He forms an important part of the state executive where he acts as the chief executive head. Central Government nominates the governor for each state.

How is a Governor Appointed?

The Indian President appoints Governor for each state by warrant under his hand and seal. Central Government is responsible to nominate the governor for each state.

Note:

• Unlike elections of President, there is no direct or indirect election for the post of Governor.
• Office of a governor is not a part of union executive and is an independent constitutional office. The governor doesn’t serve the union government and neither is subordinate to it.
• The nomination of a governor by the Union and his appointment by the President in India is based on the Canadian model of government.

What is the term of Governor’s office?

Since the Governor holds the office under the pleasure of the President, his office has no fixed term. President can remove the Governor and the grounds upon which he may be removed are not laid down in the constitution.

Governor may also get transferred from one state to another by the President. He also can be reappointed.

Note:

• An interregnum is not allowed; following which a Governor may sit in the office beyond 5 years (expiry of the term) till the new governor assumes the charge of the office.
• On President’s discretion, Chief Justice of the High Court of the concerned state can also be appointed as the Governor on a temporary basis when and how the President thinks fit. (Example – On the governor’s death, Chief Justice of HC can be appointed as the governor.)

Who is qualified to become a Governor?

Unlike Lok Sabha or Rajya Sabha members or even in the case of Prime Minister or President who have a set of qualifications to meet to hold the office; Governor has to meet only two qualifications:

1. He should be an Indian Citizen
2. He should be 35 years old or more

Note: There are two conventions that the government follow before nominating a person as a Governor:

1. That person is not appointed as the governor who belongs to the state. He shall be an outsider having no relation with the state he is being appointed to.
2. Consultation of the Chief Minister is taken by the President before appointing a governor

It should also be noted that both the above conventions are not absolute and have been ignored by the union government in many instances.

What are the conditions of his office?

There are a few conditions for a person to be appointed as a Governor:

1. He cannot be a member of Lok Sabha and Rajya Sabha. If he has been a member of either of the house, he should vacate the seat on his first day as Governor in the office.
2. He should not hold any office of profit.
3. For his residence, Raj Bhavan is provided to him without the payment of rent.
4. Parliament decides his emoluments, allowances and privileges.
5. When a governor is responsible for two or more states, the emoluments and allowances payable to him are shared by the states in such proportion as the President may determine.
6. Parliament cannot diminish his emoluments and allowances during his term of office.
7. He is given immunity from any criminal proceedings, even in respect of his personal acts
8. Arrest or imprisonment of Governor cannot take place. Only civil proceedings can be initiated for his personal acts that too after giving two months’ of prior notice.

What are the powers and functions of Governor?

Executive Powers of the Governor

The following comes under his executive powers:

1. Every executive action that the state government takes, is to be taken in his name.
2. How an order that has been taken up his name is to be authenticated, the rules for the same can be specified by the Governor.
3. He may/may not make rules to simplify the transaction of business of the state government.
4. Chief Ministers and other ministers of the states are appointed by him.
5. It is his responsibility to appoint Tribal Welfare Minister in the states of:
   1. Chattisgarh
   2. Jharkhand
   3. Madhya Pradesh
   4. Odisha
6. He appoints the advocate general of states and determines their remuneration
7. He appoints the following people:
   1. State Election Commissioner
   2. Chairman and Members of the State Public Service Commission
   3. Vice-Chancellors of the universities in the state
8. He seeks information from the state government
9. A constitutional emergency in the state is recommended to the President by him.
10. The governor enjoys extensive executive powers as an agent of the President during the President’s rule in the state.

Legislative Powers of the Governor

The following are the legislative powers of the governor:

1. It’s in his power to prorogue the state legislature and dissolve the state legislative assemblies
2. He addresses the state legislature at first session of every year
3. If any bill is pending in the state legislature, Governor may/may not send a bill to the state legislature concerning the same
4. If the speaker of the legislative assembly is absent and same is Deputy Speaker, then Governor appoints a person to preside over the session
5. As President nominates 12 members in Rajya Sabha, Governor appoints ⅙ of the total members of the legislative council from the fields of:
   1. Literature
   2. Science
   3. Art
   4. Cooperative Movement
   5. Social Service
6. As President nominates 2 members in the Lok Sabha, Governor nominates 1 member in state legislative assembly from Anglo-Indian Community.
7. He can consult Election Commission for the disqualification of members
8. With respect to the bill introduced in the state legislature, he can:
   1. Give his assent
   2. Withhold his assent
   3. Return the bill
   4. Reserve the bill for the President’s consideration (In instances where the bill introduced in the state legislature endangers the position of state High Court.)

Note: Governor can reserve the bill for the President’s consideration in the following cases:

• When provisions mentioned in the bill violates the constitution (Ultra-Vires)
• When provisions mentioned in the bill oppose Directive Principles of State Policy
• When provisions mentioned in the bill hinders the larger interests of the country
• When provisions mentioned in the bill concern the national importance
• When provisions mentioned in the bill mention the acquisition of property that is dealt with Article 31A in the constitution. (Read more about important articles in the Indian Constitution in the linked article.)

1. An ordinance can be promulgated by him when either Legislative Assembly or Council (Unicameral/Bicameral) are not in session. (Read the Ordinance Making Power of President & Governor in the linked article.)
2. The following reports are laid by him:
   1. State Finance Commission
   2. State Public Service Commission
   3. Comptroller and Auditor General (Concerning the state finance)

Financial Powers of the Governor

The following are the financial powers and functions of the Governor:

1. He looks over the state budget being laid in the state legislature
2. His recommendation is a prerequisite for the introduction of money bill in the state legislature
3. He recommends for demand for grants which otherwise cannot be given
4. Contingency Fund of State is under him and he makes advances out that to meet unforeseen expenditure
5. State Finance Commission is constituted every five years by him. (Read about Finance Commission of India.)

Judicial Powers of the Governor

The following are the judicial powers and functions of the Governor:

1. He has following pardoning powers against punishment:
   1. Pardon
   2. Reprieve
   3. Respite
   4. Remit
   5. Commute
2. President consults the Governor while appointing judges of High Court
3. In consultation with state High Court, Governor makes appointments, postings and promotions of the district judges
4. In consultation with the state high court and state public service commission, he also appoints persons to the judicial services.

What is the Constitutional Position of Governor?

The Constitutional position of governor can be understood by the following articles:

Constitutional Position of the Governor
Article	Provision
Article 154	He is the executive head of the state. All the executive functions will be performed by him or by the officers subordinate to him in accordance with the Constitution
Article 163	He will aided and advised by the Chief Minister and Council of Ministers unless he is performing a function at his own discretion Note: The power to act at his own discretion is a power that is not given to the President. 42nd Amendment Act made the advice of Council of Ministers’ binding on the President but not on the Governor in state
Article 164	Council of Ministers are collectively responsible to the state legislative assembly Note: This provision is the foundation of the state parliamentary system

The Constitution has mentioned the authority of the governor to decide the validity of his actions taken in his own discretion in circumstances where his actions are called into action.

Governor’s Discretionary Powers

The Governor of state, unlike the President of India, is conferred with power to act at his own discretion. There are two categories of discretion for the governor. One is Constitutional Discretion and the other is Situational Discretion. Read more about the Constitutional Discretion of Governor in the linked article.

Important Constitutional Articles related to the Governor

IAS aspirants should know the articles in the constitution that are related to the governor:

Articles	Provisions
153	Governors of states
155	Appointment of Governor
156	Term of office of Governor
157	Qualifications for appointment as Governor
158	Conditions of Governor’s office
160	Discharge of the functions of the Governor in certain contingencies
161	Power of the Governor to grant pardons and others
175	Right of the Governor to address and send messages to the house or houses of the state legislature
176	Special address by the Governor
201	Bills reserved by the Governor for consideration of the President
213	Power of Governor to promulgate ordinances
217	Governor is consulted by the President in the matter of the appointments of the judges of the High Courts
233	Appointment of district judges by the Governor
234	Appointments of persons (other than district judges) to the judicial service of the state by the Governor

PRIME MINISTER & COUNCIL OF MINISTERS

Prime Minister & Council of Ministers - Power & Function of Prime Minister

Article 75 of the Indian Constitution mentions that a Prime Minister is one who is appointed by the President. There is no specific procedure for his election or appointment. Article 74(1) states that there shall be a Council of Ministers with a Prime Minister at the head to aid and advise the President. Thus, the Indian Constitution itself recognizes a Council of Ministers. The topic, ‘Prime Minister & Council of Ministers’ is important for IAS Examand its three stages – Prelims, Mains and Interview.

This article will mention in detail about Prime Minister and Council of Ministers who form an important part of the Union Executive.

Table of Contents:

Is Prime Minister of India elected or appointed?

Power and Function of Prime Minister

Prime Ministers of India List

Relationship between the Prime Minister and the President of India

Council of Ministers

Is Prime Minister of India elected or appointed?

President of India appoints a person as the Prime Minister who is either the leader of the party which holds a majority of seats in the Lok Sabha or is a person who is able to win the confidence of the Lok Sabha by gaining the support of other political parties. All other ministers are appointed by the President on the advice of the Prime Minister.

Note: President can also appoint Prime Minister on his own discretion but only when no party has a clear majority in the Lok Sabha. To get the list of Prime Ministers of India, candidates can check the linked article.

Power and Function of Prime Minister

Prime Minister of India serves the country by following various functions. He performs his functions taking responsibilities as:

• The leader of Country: The Prime Minister of India is the Head of the Government of India.
• Portfolio allocation: The Prime Minister has the authority to assign portfolios to the Ministers.
• Chairman of the Cabinet: The Prime Minister is the chairman of the cabinet and presides the meetings of the Cabinet. He can impose his decision if there is a crucial opinion difference among the members.
• Official Representative of the country: Prime minister represents the country for high-level international meetings
• The link between the President and the Cabinet: The Prime Minister acts as the link between President and cabinet. He communicates all decisions of the Cabinet to the President which is related to the administration of the affairs of the Union and proposals for legislation.
• Head: The Prime Minister is the head of Nuclear Command Authority, NITI Aayog, Appointments Committee of the Cabinet, Department of Atomic Energy, Department of Space and Ministry of Personnel, Public Grievances and Pensions.
• Chief Advisor: He acts as the chief advisor to the President

Like Prime Minister is the head of Union Parliament, the Chief Minister is the head of state parliament. Read more about the Chief Minister & Council of Ministers in the linked article

Who is eligible to be a Prime Minister?

To become an Indian prime minister one has to be

• A citizen of India.
• A member of either Rajya Sabha or Lok Sabha
• He should have completed his 30 years if he is a member of the Rajya Sabha or can be 25 years of age if he is a member of the Lok Sabha

Position of the Prime Minister

Right from the days of the first Prime Minister Pandit Jawaharlal Nehru, the Prime Minister is treated at a much higher pedestal. His preeminence rests on his commanding position in the Cabinet, coupled with fact that he is the leader of the majority party.

During the period of the Congress rule, the Prime Minister was usually the President of his party and the major campaigner in the elections. All these positions of power when combined in one person make him rank much above an ordinary Minister. The death or resignation of the Prime Minister automatically brings about the dissolution of the Council of Ministers. It generates a vacuum. The demise, resignation or dismissal of a Minister creates only a vacancy which the Prime Minister may or may not like to fill. The Government cannot function without a Prime Minister but the absence of a Minister is easily tolerated and compensated.

Relationship between the Prime Minister and the President of India

There are a few articles in the Indian Constitution that deal with the relationship both Prime Minister and the President share with each other. The articles are:

• Article 74
• Article 75
• Article 78

Articles	Relationship between Prime Minister and the President
74	Mentions how Prime Minister and President are both connected with council of ministers. The Council with PM as head advise President on various issues.
75	Mentions three things: President appoints PM and other ministers are appointed by the President on the advice of the PM. Ministers hold their office during the pleasure of the President. Council of Ministers is collectively responsible to the Lok Sabha.
78	PM communicates all decisions made by the council of members to the President. President can also refer issues for the consideration of the council of members.

Facts about Indian Prime Ministers for UPSC

Aspirants may like to read a few facts about Prime Ministers which can come useful in UPSC 2020 while writing answers in UPSC Mains. The facts are given in the table below:

Longest-Serving Indian Prime Minister	Jawaharlal Nehru (1947 – 1964)
Second Longest-Serving Indian Prime Minister	Dr. Manmohan Singh
Acting Prime Minister Twice	Gulzari Lal Nanda
The first woman Prime Minister to receive the Bharat Ratna	Indira Gandhi
First Non-Congress Prime Minister of India	Morarji Desai
Indian Prime Minister received Pakistan’s highest civilian award	Morarji Desai
Youngest Indian Prime Minister	Rajiv Gandhi
First Prime Minister from South India	P.V. Narasimha Rao
First Prime Minister of India who was a member of the Rajya Sabha	H.D. Deve Gowda

Council of Ministers

Which articles in the Constitution deal with the Council of Ministers?

Two articles – Article 74 and Article 75 of the Indian Constitution deal with the Council of Ministers. Where article 74 mentions that the council will be headed by the Prime Minister of India and will aid and advise the President, article 75 mentions the following things:

• They are appointed by the President on the advice of Prime Minister
• They along with the Prime Minister of India form 15% of the total strength of the lower house i.e. Lok Sabha. (The number cannot exceed 15%)
• 91st Amendment Act provided for the disqualification of the minister when he stands disqualified as a member of Parliament. (Difference between Lok Sabha and Rajya Sabha can be referred to in the linked article.)
• A Minister ceased to exist as one if he is not a member of either house of Parliament for six consecutive months.
• Parliament decides the salary and allowances of the council of ministers.

Is the advice tendered by the Council of Ministers’ binding on the President?

Yes, the advice is binding on the President and this provision was introduced by the 42nd Amendment Act 1976 and 44th Amendment Act 1978. The acts also mentioned that the advice given by the council cannot be inquired into by any court. Read about the 42nd Amendment Act and the 44th Amendment Act in the linked articles given below:

• 42nd Amendment Act
• 44th Amendment Act

Collective Responsibility of the Council of Ministers

In England, the Cabinet system is based on conventions. The framers of our Constitution considered it fit to incorporate the system in the Constitution. The principle of collective responsibility finds a place in Art. 75(3) where it is stated that the Council of Ministers shall be collectively responsible to the Lok Sabha. In other words, this provision means that a Ministry which loses confidence in the Lok Sabha is obliged to resign. The loss of confidence is expressed by rejecting a Money Bill or Finance Bill or any other important policy measure or by passing a motion of no-confidence or rejecting a motion expressing confidence in the Ministry. When a Ministry loses the confidence of the Lok Sabha the whole of the Ministry has to resign including those Ministers who are from the Rajya Sabha. The Ministers fall and stand together. In certain cases, the Ministry may advise the President to dissolve Lok Sabha and call for fresh elections.

Types of Ministers

The Indian Constitution does not categorize ministers into ranks, however, in practice seen in India, ministers are of four types:

1. Cabinet Ministers—He is present and he participates in every meeting of the Cabinet.
2. Minister of State with independent charge—He is a Minister of State who does not work under a Cabinet Minister. When any matter concerning his Department is on the agenda of the Cabinet, he is invited to attend the meeting.
3. Minister of State—He is a Minister who does not have independent charge of any Department and works under a Cabinet Minister. The work to such Minister is allotted by his Cabinet Minister.
4. Deputy Minister—He is a Minister who works under a Cabinet Minister or a Minister of State with independent charge. His work is allotted by the Minister under whom he is working.

CITIZENSHIP AMENDMENT ACT 2019

Citizenship Amendment Act 2019 (CAA) 

The Citizenship Amendment Bill (CAA Bill) was first introduced in 2016 by the Lok Sabha by amending the Citizenship Act of 1955. This bill was referred to a Joint Parliamentary Committee, whose report was later submitted on January 7, 2019. The Citizenship Amendment Bill was passed on January 8, 2019, by the Lok Sabha which lapsed with the dissolution of the 16th Lok Sabha.  This Bill was introduced again on 9 December 2019 by the Minister of Home Affairs Amit Shah in the 17th Lok Sabha and was later passed on 10 December 2019. The Rajya Sabha also passed the bill on 11th December. 

The CAA was passed to provide Indian citizenship to the illegal migrants who entered India on or before 31st December 2014. The Act was passed for migrants of six different religions such as Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan. Any individual will be considered eligible for this act if he/she has resided in India during the last 12 months and for 11 of the previous 14 years. For the specified class of illegal migrants, the number of years of residency has been relaxed from 11 years to five years.

CAA 2019

• Citizenship Amendment Bill 2019 gets Parliament’s nod.

What is Citizenship?

• Citizenship defines the relationship between the nation and the people who constitute the nation.
• It confers upon an individual certain right such as protection by the state, right to vote and right to hold certain public offices, among others, in return for the fulfilment of certain duties/obligations owed by the individual to the state.

Citizenship in India

• The Constitution of India provides for single citizenship for the whole of India.
• Under Article 11 of the Indian Constitution, Parliament has the power to regulate the right of citizenship by law. Accordingly, the parliament had passed the Citizenship act of 1955 to provide for the acquisition and determination of Indian Citizenship.
• Entry 17, List 1 under the Seventh Schedule speaks about Citizenship, naturalization and aliens. Thus, Parliament has exclusive power to legislate with respect to citizenship.
• Until 1987, to be eligible for Indian citizenship, it was sufficient for a person to be born in India.
  • Then, spurred by the populist movements alleging massive illegal migrations from Bangladesh, citizenship laws were first amended to additionally require that at least one parent should be Indian.
• In 2004, the law was further amended to prescribe that not just one parent be Indian; but the other should not be an illegal immigrant.

To know more about citizenship in India, refer to the linked page.

Who is an illegal migrant in India?

Under the Act, an illegal migrant is a foreigner who:

• Enters the country without valid travel documents like a passport and visa, or
• Enters with valid documents, but stays beyond the permitted time period.

Illegal migrants may be put in jail or deported under the Foreigners Act, 1946 and the Passport (Entry into India) Act, 1920.

The  scenario before the passing of the Act

• Under the existing laws, an illegal migrant is not eligible to apply for acquiring citizenship. They are barred from becoming an Indian citizen through registration or naturalisation.
  • The Foreigners Act and the Passport Act debar such a person and provide for putting an illegal migrant into jail or deportation.
• A person can become an Indian citizen through registration.
  • Section 5 (a) of Citizenship act of 1955: A person of Indian origin who is ordinarily resident in India for seven years before making an application for registration;
  • And they should have lived in India continuously for 12 months before submitting an application for citizenship.
• Under the Citizenship Act, 1955, one of the requirements for citizenship by naturalization is that the applicant must have resided in India during the last 12 months, as well as for 11 of the previous 14 years.

What the Act intends to do?

• The Citizenship Amendment Act 2019 aims to make changes in the Citizenship Act, the Passport Act and the Foreigners Act if the illegal migrants belong to religious minority communities from three neighbouring countries of Bangladesh, Pakistan and Afghanistan.
• Simply put, the Citizenship Amendment Act will grant the illegal non-Muslim migrants the status of legal migrants despite them having come to India without valid documents and permission.

Features of CAA 2019

• The Act seeks to amend the Citizenship Act, 1955 to make Hindu, Sikh, Buddhist, Jain, Parsi, and Christian illegal migrants from Afghanistan, Bangladesh, and Pakistan, eligible for citizenship of India. In other words, the Act intends to make it easier for non-Muslim immigrants from India’s three Muslim-majority neighbours to become citizens of India.
  • The legislation applies to those who were “forced or compelled to seek shelter in India due to persecution on the ground of religion”. It aims to protect such people from proceedings of illegal migration.
• The amendment relaxes the requirement of naturalization from 11 years to 5 years as a specific condition for applicants belonging to these six religions.
• The cut-off date for citizenship is December 31, 2014, which means the applicant should have entered India on or before that date.
• The Act says that on acquiring citizenship:
  • Such persons shall be deemed to be citizens of India from the date of their entry into India, and
  • All legal proceedings against them in respect of their illegal migration or citizenship will be closed.
• It also says people holding Overseas Citizen of India (OCI) cards – an immigration status permitting a foreign citizen of Indian origin to live and work in India indefinitely – can lose their status if they violate local laws for major and minor offences and violations.

Exception

• The Act adds that the provisions on citizenship for illegal migrants will not apply to the tribal areas of Assam, Meghalaya, Mizoram, and Tripura, as included in the Sixth Schedule of the Constitution.
  • These tribal areas include Karbi Anglong (in Assam), Garo Hills (in Meghalaya), Chakma District (in Mizoram), and Tripura Tribal Areas District.
• It will also not apply to the areas under the Inner Line Permit under the Bengal Eastern Frontier Regulation, 1873.

Criticism

It is against Muslims

• The fundamental criticism of the Act has been that it specifically targets Muslims. Thus, the religious basis of citizenship not only violates the principles of secularism but also of liberalism, equality and justice.
  • It fails to allow Shia, Balochi and Ahmadiyya Muslims in Pakistan and Hazaras in Afghanistanwho also face persecution, to apply for citizenship.
  • A key argument against the CAA is that it will not extend to those persecuted in Myanmar and Sri Lanka, from where Rohingya Muslims and Tamils are staying in the country as refugees.
  • Neither is religious persecution the monopoly of three countries nor is such persecution confined to non-Muslims.

It violates Article 14

• Critics argue that it is violative of Article 14 of the Constitution, which guarantees the right to equality.
  • The CAA is in the teeth of Article 14, which not only demands reasonable classification and a rational and just object to be achieved for any classification to be valid but additionally requires every such classification to be non-arbitrary.
  • The Act is an instance of class legislation, as classification on the ground of religion is not permissible.

Why North East is objecting to CAA?

• In the Northeastern states, the prospect of citizenship for massive numbers of illegal Bangladeshi migrants has triggered deep anxieties, including fears of demographic change, loss of livelihood opportunities, and erosion of the indigenous culture.
• The Act appears to violate the Assam Accord, both in letter and spirit.
  • The Assam Accord, signed between the then Rajiv Gandhi-led central government and the All Assam Students’ Union (AASU), had fixed March 24, 1971, as the cutoff date for foreign immigrants. Those illegally entering Assam after this date were to be detected and deported, irrespective of their religion.
  • The Citizenship Amendment Act moved the cutoff date for six religions to December 31, 2014, something that is not acceptable to the Assamese-speaking people in Brahmaputra Valley, who insist that all illegal immigrants should be treated as illegal.
• There is also an economic problem. If tens of thousands leave Bangladesh and start staying legally in Assam and North East, the pressure will first show in the principal economic resource—land.
  • Also, since these will be legitimate citizens, there will also be more people joining the queue of job hopefuls that can potentially lower opportunities for the indigenous and the locals.
• It also boils down to the political rights of the people of the state. Migration has been a burning issue in Assam.
  • There is a view that illegal immigrants, who will eventually become legitimate citizens, will be determining the political future of the state.

Other issues surrounding CAA

• CAA does not consider Jews and atheists. They have been left out of the Act.
• The basis of clubbing Afghanistan, Pakistan, and Bangladesh together and thereby excluding other (neighbouring) countries is unclear.
  • A common history is not a ground as Afghanistan was never a part of British India and was always a separate country.
• Countries such as Nepal, Bhutan, and Myanmar, which share a land border with India, have been excluded.
  • The reason stated in the ‘Statement of Objects and Reasons’ of the Act is that these three countries constitutionally provide for a “state religion”; thus, the Act is to protect “religious minorities” in these theocratic states.
  • The above reasoning fails with respect to Bhutan, which is a neighbor and constitutionally a religious state with the official religion being Vajrayana Buddhism.
    • Non-Buddhist missionary activity is limited, construction of non-Buddhist religious buildings is prohibited and the celebration of some non-Buddhist religious festivals is curtailed. Yet, Bhutan has been excluded from the list.
  • Focus only on religious persecution:
    • On the classification of individuals, the Act provides benefits to sufferers of only one kind of persecution, i.e. religious persecution neglecting others.
    • Religious persecution is a grave problem but political persecution is also equally existent in parts of the world. If the intent is to protect victims of persecution, the logic to restrict it only to religious persecution is suspect.
  • The seemingly unconstitutional provisions of the CAA will deny equal protection of laws to similarly placed persons who come to India as “illegal migrants” but in fact grant citizenship to the less deserving at the cost of the more deserving.
    • The provisions of CAA might lead to a situation where a Rohingya who has saved himself from harm in Myanmar by crossing into India will not be entitled to be considered for citizenship, while a Hindu from Bangladesh, who might be an economic migrant and have not faced any direct persecution in his life, would be entitled to citizenship.
    • Similarly, a Tamil from Jaffna escaping the atrocities in Sri Lanka will continue to be an “illegal migrant” and never be entitled to apply for citizenship by naturalization.
  • There is also a reduction in the residential requirement for naturalization — from 11 years to five. The reasons for the chosen time frame has not been stated.

Arguments put forward by supporters of the Act

It is not against Muslims

• The Ahmediyas and Rohingyas can still seek Indian citizenship through naturalization (if they enter with valid travel documents).
  • In any case, since India follows the principle of non-refoulment (even without acceding to the Refugee Convention 1951), they would not be pushed back.
  • If a Shia Muslim is facing persecution and is in India seeking shelter, his case to continue to reside in India as a refugee shall be considered on its merits and circumstances.
  • With regard to Balochi refugees, Balochistan has long struggled to be independent of Pakistan and including Balochis in the CAA could be perceived as interference in Pakistan’s internal affairs.
  • The CAA, therefore, does not exclude Muslims from Pakistan, Bangladesh and Afghanistan to apply for Indian citizenship. They can continue to do so in the same way singer Adnan Sami, for example, applied for citizenship.
• It is important to note that even minorities shall not be granted automatic citizenship. They would need to fulfill conditions specified in the Third Schedule to the Citizenship Act, 1955, namely, the good character requirement as well as physical residence in India
• Harish Salve, one of India’s biggest names in national and international law, has stated that the Citizenship Amendment Act is not anti-Muslim
  • Salve stated that the countries specified in the CAA have their own state religion and Islamic rules. He added that Islamic majority nations identify their people as per who follows Islam and who does not. Addressing governance problems in neighbouring countries is not the purpose of the CAA.
  • Over the issue of Rohingyas, Salve stated that a law that addresses one evil does not need to address all the evils in all countries. It is notable here that Myanmar, though a Buddhist majority nation, does not have a state religion and Myanmar does not feature in CAA bill.

The Act is not a violation of Article 14

Sovereign space

• To begin with, the justiciability of citizenship or laws that regulate the entry of foreigners is often treated as a ‘sovereign space’ where the courts are reluctant to intervene.
  • Thus in Trump v Hawaii No. 17-965, 585 U.S. (2018), the US Supreme Court upheld travel ban from several Muslim countries holding that regulation of foreigners including ingress is “fundamental sovereign attribute exercised by the government’s political departments largely immune from judicial control.”
  • Indian courts have generally followed a similar reasoning. In David John Hopkins vs. Union of India (1997), the Madras High Court held that the right of the Union to refuse citizenship is absolute and not fettered by equal protection under Article 14.
  • Similarly in Louis De Raedt vs. Union of India (1991), the Supreme Court held that the right of a foreigner in India is confined to Article 21 and he cannot seek citizenship as a matter of right.

With respect to North East

• Citizenship Amendment Act does not dilute the sanctity of the Assam Accord as far as the cut-off date of March 24, 1971, stipulated for the detection/deportation of illegal immigrants is concerned.
• Citizenship Amendment Act is not Assam-centric. It is applicable to the whole country. Citizenship Amendment Act is definitely not against National Register of Citizens (NRC), which is being updated to protect indigenous communities from illegal immigrants.
• Further, there is a cut-off date of December 31, 2014, and benefits under Citizenship Amendment Act will not be available for members of the religious minorities who migrate to India after the cut-off date.

Historical Connections

• The Act does not give a carte blanche to Hindus and Christians and Sikhs from other countries to come to India and get citizenship. Just these three countries. Why?
• Because each of these has been civilizationally tied with India. The circumstances in which they were partitioned from India have created a situation where Hindus and other minority population have been dwindling ever since the partition took place.
• Regarding including other countries in the neighbourhood the argument could be that we can deal with them separately if the need arises as we did in the case of persecuted Sri Lankan Tamils.

Conclusion

The parliament has unfractured powers to make laws for the country when it comes to Citizenship. But the opposition and other political parties allege this Act by the Government violates some of the basic features of the constitution like secularism and equality. It may reach the doors of the Supreme Court where the Supreme Court will be the final interpreter. If it violates the constitutional features and goes ultra-wires it will be struck down, if it is not we will continue to have the law.

But one thing that is most important is, an equilibrium has to be attained by New Delhi as this involves neighboring countries too. Any exaggerated attempt to host the migrants should not be at the cost of goodwill earned over the years. India being a land of myriad customs and traditions, a birthplace of religions and the acceptor of faiths and protector of persecuted in the past should always uphold the principles of Secularism going forward.

Nehru-Liaquat Pact

• It was an agreement between the Governments of India and Pakistan regarding Security and Rights of Minorities that was signed in Delhi in 1950 between the Prime ministers of India and Pakistan, Jawaharlal Nehru and Liaquat Ali Khan
• The need for such a pact was felt by minorities in both countries following Partition, which was accompanied by massive communal rioting.
• In 1950, as per some estimates, over a million Hindus and Muslims migrated from and to East Pakistan (present-day Bangladesh), amid communal tension and riots such as the 1950 East Pakistan riots and the Noakhali riots.

Under the Nehru-Liaquat pact

• refugees were allowed to return unmolested to dispose of their property
• abducted women and looted property were to be returned
• forced conversions were unrecognized
• minority rights were confirmed

What did India and Pakistan agree upon?

• “The Governments of India and Pakistan solemnly agree that each shall ensure, to the minorities throughout its territory, complete equality of citizenship, irrespective of religion, a full sense of security in respect of life, culture, property and personal honour, freedom of movement within each country and freedom of occupation, speech and worship, subject to law and morality,” the pact said.
• “Members of the minorities shall have equal opportunity with members of the majority community to participate in the public life of their country, to hold political or other office, and to serve in their country’s civil and armed forces. Both Governments declare these rights to be fundamental and undertake to enforce them effectively.”

Context

• Amit Shah referred to the Nehru-Liaquat pact on a few occasions in Parliament to justify the Citizenship Act.

PRESIDENT OF INDIA

President of India - Article 52-62

Indian President is the head of the state and he is also called the first citizen of India. He is a part of Union Executive, provisions of which are dealt with Article 52-78 including articles related to President (Article 52-62.)Under these articles, information on how a President is elected, his powers and functions and also his impeachment process is given.

   Table of Contents:

Who is President of India?

How is President elected? Who does not take part in the President’s elections? What is the term of President’s office? Questions related to President’s elections for UPSC

What are the qualifications of President? What are the conditions of the President’s office?

What is the procedure for impeachment of a President? Can the President’s office be vacant?

What are the powers and functions of President of India? Can the President’s office be vacant? Legislative Powers of President Financial Powers of President Judicial Powers of President Diplomatic Powers of President Military Powers of President Emergency Powers of President

Who is President of India?

Indian President is the head of the state. He is the first citizen of India and is a symbol of solidarity, unity and integrity of the nation. He is a part of Union Executive along with Vice-President, Prime Minister, Council of Ministers and Attorney-General of India.

How is President elected?

There is no direct election for the Indian President. An electoral college elects him. The electoral college responsible for President’s elections comprises elected members of:

1. Lok Sabha and Rajya Sabha
2. Legislative Assemblies of the states (Legislative Councils have no role)
3. Legislative Assemblies of the Union Territories of Delhi and Puducherry

Note:

• Value of the vote of an MLA is given below:

• Value of the vote of MP is given below:

Who does not take part in the President’s elections?

The following group of people are not involved in electing the President of India:

1. Nominated Members of Lok Sabha (2) and Rajya Sabha (12)
2. Nominated Members of State Legislative Assemblies
3. Members of Legislative Councils (Both elected and nominated) in bicameral legislatures
4. Nominated Members of union territories of Delhi and Puducherry

What is the term of President’s office?

Once President is elected, he holds office for five years. He sits in the office even after the completion of five years given no new election have taken place or no new President has been elected till then. He can also be re-elected and there is no cap on his re-election.

Questions related to President’s elections for UPSC

There are a few facts which an IAS aspirant must know for UPSC 2020. Those facts are in given in a question-answer format in the table below:

What is the principle of election used in the President’s election?	Proportional Representation with means of a single transferable vote
How does voting take place in the election of Indian President?	It is a secret ballot system of voting
What is a quota of votes in President’s elections?
How is the Supreme Court (SC) involved in the President’s election?	Any dispute related to his election is taken up by SC. SC’s decision is final. Note: After the election of President is declared null and void, the acts done by the President in his office remain valid even after his removal.

What are the qualifications of President?

A candidate has to meet some qualifications to be elected as the president. Those qualifications of the President are:

1. He should be an Indian Citizen
2. His age should be a minimum of 35 years
3. He should qualify the conditions to be elected as a member of the Lok Sabha
4. He should not hold any office of profit under the central government, state government, or any public authority

What are the conditions of the President’s office?

There are a few conditions for the candidate running for the President’s elections:

1. He cannot be a member of Lok Sabha and Rajya Sabha. If he has been a member of either of the house, he should vacate the seat on his first day as President in the office
2. He should not hold any office of profit
3. For his residence, Rashtrapati Bhavan is provided to him without the payment of rent
4. Parliament decides his emoluments, allowances and privileges
5. Parliament cannot diminish his emoluments and allowances during his term of office
6. He is given immunity from any criminal proceedings, even in respect of his personal acts
7. Arrest or imprisonment of President cannot take place. Only civil proceedings can be initiated for his personal acts that too after giving two months’ of prior notice.

What is the procedure for impeachment of a President?

The only condition for the initiation of impeachment of Indian president is the ‘violation of the constitution.’

Note: Indian Constitution contains no definition of ‘violation of constitution.’

The impeachment process of President is given below. (We have taken Lok Sabha as the first house to initiate the impeachment charges, however, Rajya Sabha too can initiate the impeachment charges against President and in that case, it will pass the resolution and send the charges to Lok Sabha which will investigate and pass it if it finds those charges valid.)

Can the President’s office be vacant?

Yes, his office can be vacant in the following ways:

1. When President of India completes his term of five years in the office
2. If the President resigns by putting forward his resignation to the Vice-President of India
3. If Lok Sabha/Rajya Sabha initiates an impeachment charge and they stand valid, he is removed
4. If he dies in the office
5. If Supreme Court declares his election invalid

What are the powers and functions of President of India?

Executive Powers of President

1. For every executive action that the Indian government takes, is to be taken in his name
2. He may/may not make rules to simplify the transaction of business of the central government
3. He appoints the attorney general of India and determines his remuneration
4. He appoints the following people:
   1. Comptroller and Auditor General of India (CAG)
   2. Chief Election Commissioner and other Election Commissioners
   3. Chairman and members of the Union Public Service Commission
   4. State Governors
   5. Finance Commission of India chairman and members
5. He seeks administrative information from Union government
6. He requires PM to submit, for consideration of the council of ministers, any matter on which a decision has been taken by a minister but, which has not been considered by the council
7. He appoints National Commissions of:
   1. Scheduled Castes
   2. Scheduled Tribes
   3. Other Backward Classes
8. He appoints inter-state council
9. He appoints administrators of union territories
10. He can declare any area as scheduled area and has powers with respect to the administration of scheduled areas and tribal areas

Legislative Powers of President

1. He summons or prorogues Parliament and dissolve the Lok Sabha
2. He summons a joint sitting of Lok Sabha and Rajya Sabha in case of deadlock
3. He addresses the Indian Parliament at the commencement of the first session after every general election
4. He appoints speaker, deputy speaker of Lok Sabha and chairman/deputy chairman of Rajya Sabha when the seats fall vacant (to know the difference between Lok Sabha and Rajya Sabha check the linked article.)
5. He nominates 12 members of the Rajya Sabha
6. He can nominate two members to the Lok Sabha from the Anglo-Indian Community
7. He consults Election Commission of India on questions of disqualifications of MPs.
8. He recommends/ permits the introduction of certain types of bills 
9. He promulgates ordinances
10. He lays the following reports before the Parliament:
    1. Comptroller and Auditor General
    2. Union Public Service Commission
    3. Finance Commission, etc.

Financial Powers of President

1. To introduce the money bill, his prior recommendation is a must
2. He causes Union Budget to be laid before the Parliament
3. To make a demand for grants, his recommendation is a pre-requisite
4. Contingency Fund of India is under his control
5. He constitutes the Finance Commission every five year

Judicial Powers of President

1. Appointment of Chief Justice and Supreme Court/High Court Judges are on him
2. He takes advises from Supreme Court however, those advise are not binding on him
3. He has pardoning power: Under article 72, he has been conferred with power to grant pardon against punishment for an offence against union law, punishment by a martial court or death sentence.

Note: Pardoning powers of the president includes the following types:

• Pardon with the grant of pardon convicts both conviction and sentence completely absolved
• Commutation  with this nature of the punishment of the convict can be changed
• Remission reduces the term of the imprisonment
• Respite  awards lesser punishment than original punishment by looking at the special condition of a convict
• Reprieve stays the execution of the awarded sentence for a temporary period

Diplomatic Powers of President

1. International Treaties and agreements that are approved by the Parliament are negotiated and concluded in his name
2. He is the representative of India in international forums and affairs

Military Powers of President

He is the commander of defence forces of India. He appoints:

1. chief of the Army
2. chief of the Navy, and
3. chief of the Air Force

Emergency Powers of President

He deals with three types of emergencies given in the Indian Constitution:

1. National Emergency (Article 352)
2. President’s Rule (Article 356 & 365); and
3. Financial Emergency (Article 360)

What is the Ordinance Making Power of the President?

Article 123 deals with the ordinance making power of the President. President has many legislative powers and this power is one of them. President promulgates an ordinance on the recommendation of the union cabinet. To read more on Ordinance Making Power of the President, check the linked article.

What is the Veto Power of the President?

When a bill is introduced in the Parliament, Parliament can pass the bill and before the bill becomes an act, it has to be presented to the Indian President for his approval. It is on President of India to either reject the bill, return the bill or withhold his assent to the bill. The choice of the President over the bill is called his veto power. Veto Power of the President of India is guided by Article 111 of the Indian Constitution.