The week that has just gone by witnessed the governors of three southern states—Tamil Nadu, Kerala and Karnataka—where there are governments of parties different from the party of the Union government, defying the Constitution by refusing to deliver the opening address at the commencement of the legislative session, almost triggering a constitutional crisis.
The Constitution in Art 87 (1) and 176(1) provides that the President/Governor shall address the first session of Parliament/state legislature after every general election and the first session every year. This is in accordance with the practice followed in the UK. This address contains the policy statement of the government and the programme for the coming year. The opening address is a mandatory requirement, and failure in that regard would be a breach of a mandatory constitutional provision and purported proceedings, if any, in the House would be a nullity.
The address is prepared by the cabinet, though delivered by the President/Governor. Parliamentary debates right from the beginning bear this out. The first prime minister, Pandit Jawaharlal Nehru had time and again clarified that the President’s Address is undoubtedly a statement of the government’s policy, it is not a private address of the President. This position shields the President from any controversy or criticism, and the criticism of the address, if any, has to be directed against the prime minister and his cabinet and not the President.
As Dr. Ambedkar very aptly and elegantly said in the Constituent Assembly while moving the draft Constitution on November 4, 1948, “…He [the President] is the head of the State but not of the Executive. He represents the nation but does not rule the nation. He is the symbol of the nation. His place in the administration is that of a ceremonial device on a seal by which the nation’s decisions are made known…” [emphasis supplied]. This clearly brings out the position and role of the President, who is elected. What then to speak of the unelected governor holding office at the pleasure of the President?
Constitutional law and propriety demand that the President/Governor read the opening address prepared by the ministry and reflecting its views and policies. The head of state is not a parallel centre of power, it cannot be: that would be an invitation to chaos. There are sufficient checks and balances in the Constitutional scheme. Articles 78 and 167 enable the exchange of views between the President/Governor and the ministry. The governor can always convey his views or reservations about anything to the ministry, which will give full, meaningful consideration to such views.
The chief minister is duty-bound to furnish all information sought by the governor. Not doing so would be a dereliction of constitutional duty, but that would not be a justification for the governor not to comply with the constitutional obligation to act in terms of the advice of the ministry. [cf. also State of Punjab v Governor of Punjab, (2024) 1 SCC 407]. Like in the case of every other function, this applies to the address to the legislature also: the constitutional duty and obligation to read/deliver it, the contents of which are within the discretion and responsibility of the cabinet.
The problem simply dissolves when we understand that there is nothing personal to the President/Governor in the matter of address, as in all other spheres. It matters not whether he agrees with what is contained therein or even if he is strongly opposed to it. He is only the formal voice of the ministry on such formal occasions. However, if he has such strong misgivings about it and does not wish to read it, his only option is to resign. Not reading the address would make him guilty of constitutional sacrilege.
It is a different matter that there have been occasions when, for various reasons, the governor has not been able to deliver the complete speech, or was prevented from delivering fully, and courts have held that the constitutional requirement under Art 176(1) was fulfilled.
A governor is, and has necessarily to be, apolitical. Appointed by the President, which means the Union government, the governor is not the spokesman or flag bearer of the Centre, the government or the party in power there. Even where he is remotely so, he is totally unfit to be a governor. The governor, sage or saboteur is a classic work brought out some time ago. Governors who do not fulfil their constitutional obligations and indulge in machinations are certainly saboteurs. Such governors ought to be recalled by the President to ensure the inculcation and fostering of constitutional culture. But is that not asking for the moon?
The recent behaviour of three governors on three successive days has only highlighted the seriousness of the issue. The Tamil Nadu governor gets the cake. He walked out without reading the speech. The Kerala governor omitted reading some portions and made his own changes/additions to the speech. The Karnataka governor read only a couple of sentences of the speech. Even if these gubernatorial blunders are not characterised as unconstitutional, they are perilously close to that and, in any event, are wholly improper and unpardonable.
The cardinal fallacy of the governors stems from the misconceived notions of their position—that it is their speech, it must reflect what they feel and agree with, and, in any case, there can be no criticism of their ‘masters’, the Central government. Nothing can be more alien to the Constitution and its ethos.
The cry in some quarters that the governor’s address at the commencement of the first session be done away with is not proper or wholesome. It has its sanctity in the scheme of things. Public opinion has to be built, constitutional awareness and culture have to be instilled and nourished. The Constitution belongs to us, the people and we, at once its servants and its masters, must keep the flag flying. Edmund Burke’s remark resonates: “Nobody makes a greater mistake than he who does nothing because he could do only a little.”
(The writer is a senior advocate. The opinions expressed in this article are those of the author and do not purport to reflect the opinions or views of THE WEEK)