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 Head of State-President/Governor shall address the first session of Parliament/State legislature after every general election and the first session every year. This is mandatory. The Constitution originally mandated such address by the President/Governor at the commencement of every session. What obtains presently is what was substituted by the Constitution First Amendment in 1951.
Imagine-God forbid- the President of India declining to deliver the Opening Speech at the beginning of the first session of Parliament. That would plunge the nation in a constitutional crisis and governance would be stalled. Fortunately that has never happened, and hopefully, never will.
At the commencement of the first session after each General Election to the House of the People and the commencement of the first session of each year, the President shall address both Houses of Parliament assembled together and inform them of the cause of summoning. This position obtains at the State level also with the Governor required to address similarly. This is in accordance with the practice followed in the UK. The King opens the new session of Parliament and delivers the address which contains the programme of his government. This address contains the policy statement of the government and programme for the coming year. It gives an opportunity to the members including a private member to discuss the details of administration. It is obligatory for every House to make provision in the rules for allotment of time for discussion of the matters referred to in such an address and for precedence of such discussion over other business of the House.
No business can be transacted in either House until the legislature has been opened by the Opening Address to both Houses or the House, as the case may be, and the causes of the summons are declared. It follows that before the Head of State—President/Governor who is an integral part of the legislature has finished the Opening Address and charged the legislature with the agenda for transacting the business (though the House is not bound to confine itself only to those issues mentioned in the address), no Member can ask questions or make any comments in exercise of his rights which should commence only after the session has been opened. The Opening Address is a mandatory requirement and failure in that regard would be breach of a mandatory constitutional provision and purported proceedings, if any, in the House would be a nullity. This is the settled legal position enunciated by scholars and writers of undoubted repute and authority.
The Address is prepared by the Cabinet though delivered by the President/Governor. Apart from the clear and indisputable Constitutional position and the uniform authoritative enunciation by scholars, the Parliamentary debates right from the beginning also 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 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 to 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 that is prepared by the Ministry and reflects its views and policies. It is settled that 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. Arts 78/167 enable 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]. Finally he has to act on the advice of the Ministry. 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 occasion. And it is his constitutional obligation to deliver the Opening Address. 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. The constitutional position, requirement and obligation of the Governor is to read the full Address. He cannot refuse to read it or choose to read only portions of it with which he seems to have no differences or change the text and read it as he would like it to be. It is important to remember that 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 misfit to be a Governor. The Governor, Sage or Saboteur is a classic work brought out some time ago. Governors who do not faithfully fulfill their constitutional obligations and indulge in all sorts of machinations are certainly saboteurs. Such Governors ought to be recalled by the President to ensure inculcation and fostering of constitutional culture. But is that not asking for the moon?
Governors not adhering to the Constitution and constitutional culture and inappropriate conduct and behaviour on their part has not been unknown. The recent behaviour of three Governors on three successive days in the matter of delivering the Opening Address has only highlighted the seriousness of the issue. The Tamil Nadu Governor, R.N. Ravi gets the cake here also. He is reported to have walked out without reading the speech and repeating the gaffe for the third consecutive year. Kerala Governor, R.V. Arlekar is said to have omitted reading some portions and made his own changes/additions to the speech. Karnataka Governor, Thawarchand Gehlot read only a couple of sentences of the speech. Of course, in this case it may perhaps be said that the requirement under Art 176(1) has been complied with. Even if these gubernatorial blunders are not characterized as unconstitutional, they are perilously close to that and in any event are wholly improper and unpardonable. It is a strange quirk of irony that those who are to preserve, protect and defend the Constitution' themselves defile it. Quis Custodiet Ipsos Custodes- Who watches the Watchmen? It is ultimately public opinion, we the people. The cardinal fallacy of the Governors stems from their 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 including the ruling dispensation in Tamil Nadu that the Governor's Address to the legislature 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. As is well said, the cure for any ailment is not to cut off the ailing part of the body but to nurture it back to health. Public opinion has to be built, constitutional awareness and culture have to be instilled and nourished. The Constitution belongs to us, the people. It is presently in our keeping 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.”
Author is a Senior Advocate, Supreme Court of India and Karnataka High Court
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