Opinion Tamil Nadu Governor vs Stalin government: Does the governor have the right to delete portions of his address to the legislative assembly?

Does a governor have the right to edit the address prepared by the government? What are the constitutional implications of a governor deleting or adding paragraphs to the address? Does a governor have a duty to repeat even false facts and wrong figures?

A good governor must stay above politics and manifestly be seen as impartial and fair. In 1937, when the Congress won elections in seven provinces, it took office on the condition that the British governors would not interfere in the functioning of its ministries and refrain from exercising “discretion and special powers”. However, after Independence, India conferred the same special powers on governors.

The governor is an integral part of the legislative assembly. He calls its sessions and he dissolves the House. Under Article 176(2(b), he has the right to address the first session of the House. This address is an integral part of constitutional symbolism and has huge significance. True, the Constitution gives no discretion to governors in the matter of convening the session of the assembly. Parliamentary democracy being the basic structure of our Constitution, this is the prerogative of the Cabinet though Article 174 does say that the governor from time to time summons the assembly to meet at such time and place “he thinks fit”. Governors have no business to question the purpose of convening the sessions of the House. A five-judge bench of the Supreme Court in Nabam Rebia (2016) had observed that the Governor of Arunachal Pradesh, J P Rajkhowa, who advanced the session of the assembly without the advice of the chief minister, had exceeded his jurisdiction as he had no discretion in convening the assembly session.

The distrust between the governors and Opposition-ruled governments is today so much that to avoid the governor’s address, some Opposition chief ministers merely get the House adjourned rather than prorogued. In 2022, the Telangana governor was denied the opportunity to address the Telangana assembly.

Monday’s developments have revived the debate about the governor-Cabinet relationship and the role of the governor in parliamentary democracy though this is not the first time that a governor has refused to read the address sent by the Government. In 1967, Rajasthan Governor Sampuranand did it. In Yogender Singh Handa v. State of Rajasthan (1967), the Rajasthan High Court held that some portion read by the governor was good enough to deem the whole address as read. On February 8, 1965, when her request for “silence, silence, permit me to address” was ignored, West Bengal Governor Padmaja Naidu left the assembly without delivering the ceremonial address. The Speaker took the chair and announced that the governor had been pleased to make her speech and lay a copy of her speech on the table of the House.

It was subsequently held by Justice B N Banerjee of the Calcutta High Court in Andul Gafoor Habibullah v. Speaker, West Bengal Assembly (1966) that the governor cannot decline to deliver his address and refuse to fulfil his constitutional duty. Thus, the address under Article 176 is mandatory. However, the HC held that when the governor fails to deliver his address under Article 176 and walks out of the House after laying down the address on the table of the House, this is mere irregularity, not illegality. Thus, it cannot be questioned under Article 212, wherein the validity of the House proceedings cannot be challenged on the ground of mere irregularity in the procedure. The petitioner’s claim, in this case, was that since the House did not start its proceedings with the customary address by the governor, it has vitiated the proceedings of the House.

A later governor of West Bengal, Dharma Vira, too had skipped certain portions of the speech sent to him by the government, particularly the portion dealing with his dismissal of the first United Front Government in Bengal. The Calcutta High Court had by then upheld the governor’s decision and termed the dismissal as constitutional. Despite the governor’s orders, the chief minister had not convened the House and, therefore, the former had dismissed the then CM, Ajoy Kumar Mukherjee, and appointed P C Ghosh as chief minister. As per the convention, Dharma Vira insisted that he cannot speak about the office of governor in a derogatory manner.

The Calcutta HC held the governor has the right to delete or not read irrelevant portions or portions which do not deal with the policy of the government. He observed that “the Governor can exercise his discretion in leaving out of his address the irrelevant matter. The address is meant to guide the legislature in respect of the legislative programme to be taken up by the government. He may cut down the irrelevant issues, which have nothing to do with the policy and the programmes of the state legislature and which may be calculated to mislead the legislature itself”. But in the same year, D C Pawate, the governor of Punjab, had read the whole address including the portion critical of his action of dismissing the government.

As per settled British convention since 1829, the governor must read the full speech as it is basically the government’s statement about which the office, like that of the British monarch, has no responsibility. Leading British constitutional law authority Ivor Jennings in Cabinet Government says the king cannot upset the policy prepared by the government. The sovereign can suggest changes or revisions in the address to make it more attractive, but the last word remains with the Cabinet. A B Keith in his celebrated work, Constitutional Law, too is of the identical view that in the speech by the monarch, the king does not have any say and he has to merely state what the government wants to do in the new session of the House. Governors generally skip such portions of speech. The Tamil Nadu governor should have done the same.

Governors editing/deleting the speech may indeed create a constitutional crisis. The chief minister may refuse to defend the address in his response at the end of the debate on the governor’s address and with the chief minister commanding a majority, the House may reject the resolution on the governor’s speech. When the governor’s/president’s address faces such a defeat, it is considered a no-confidence motion and the chief minister or the prime minister as the case may be, needs to resign. Such a resignation for something that the government did not include in the ceremonial address but the governor had said on its own would not only be grossly unjust and unethical but absolutely undemocratic. We did have such resignations in the past when the unmodified texts of the governor’s address were not approved by the respective legislative assemblies. Chief Minister Gurnam Singh of Punjab in 1967 had resigned when the governor’s address was defeated on the floor of the House. UP CM C B Gupta too had to resign in similar circumstances when a resolution thanking the governor was defeated in the UP assembly. Thus, the governor has no discretion in editing the address.

However, chief ministers too must show prudence and not include irrelevant facts or statements that have little to do with the jurisdiction of the state government and business the House has to take up for deliberations during that particular session.

The governor reigns but does not rule. Ours was the idea under which the governor had a faint presence, like a full moon at noon. His primary role as a sagacious counsellor is “to be consulted, to warn and to encourage”. Both governors and chief ministers, as constitutional functionaries, should respect each other and at least have a working relationship.

The writer is a constitutional law expert