PARADIGM OF LIBERTY & ACCOUNTABILITY: THE UNKNOWN GUARDIAN

OF THE CONSTITUTION

AUTHORED BY:

KARTIK DOOT

&

GAURAV HOODA
 PARADIGM OF LIBERTY & ACCOUNTABILITY: THE UNKNOWN GUARDIAN
OF THE CONSTITUTION

Kartik* & Gaurav**

1.1 INTRODUCTION

“A lady asked Dr. Franklin, Well Doctor what have we got? A republic or a Monarchy? A
Republic, replied the Doctor, if you can keep it.”
Benjamin Franklin

Inception of the term “Constitutional Conventions”

The term was first used by British legal scholar A. V. Dicey in his 1883 book, Introduction to
the Study of the Law of the Constitution. Dicey wrote that in Britain, the actions of political
actors and institutions are governed by two parallel and complementary sets of rules:

“The one set of rules are in the strictest sense "laws", since they are rules which
(whether written or unwritten, whether enacted by statute or derived from the mass of
custom, tradition, or judge-made maxims known as the common law) are enforced by
the courts....

The other set of rules consist of conventions, understandings, habits, or practices that—
though they may regulate the conduct of the several members of the sovereign power,
the Ministry, or other officials—are not really laws, since they are not enforced by the
courts. This portion of constitutional law may, for the sake of distinction, be termed the
"conventions of the constitution", or constitutional morality.”1

A century later, Canadian scholar Peter Hogg wrote,

“Conventions are rules of the constitution which are not enforced by the law courts.
Because they are not enforced by the law courts they are best regarded as non-legal
rules, but because they do in fact regulate the working of the constitution they are an

*The Author is a IV Year Student, pursuing B.A LLB. from the prestigious Army Institute of Law, Mohali
affiliated to Punjabi University, Patiala.
**The Author is a IV Year Student, pursuing B.A LLB. from the prestigious Army Institute of Law, Mohali
affiliated to Punjabi University, Patiala.
1
AV Dicey, Introduction to the Study of the Law of the Constitution, 10th edition, pp. 23-24.
 important concern of the constitutional lawyer. What conventions do is to prescribe the
way in which legal powers shall be exercised. Some conventions have the effect of
transferring effective power from the legal holder to another official or institution.
Other conventions limit an apparently broad power, or even prescribe that a legal
power shall not be exercised at all.”2

According to Jennings, the existence of a convention may be determined by asking whether

there is precedent for the rule; whether those operating under the convention believe themselves
obligated to do so; and whether there is a reason for the convention.3

Conventions therefore are often evolutionary and develop through usage. There is no
prescribed time or duration required to establish the existence of a convention. This, combined
with their unwritten nature, means that it can be very difficult to identify whether a particular
convention exists.4

In the case of Indian Union Muslim League & Ors. v. Union of India & Ors.5, at Paragraph
30, it was observed as follows:

“In this regard Professor J. D. Mitchell in his book "Constitutional Law 2nd Edition
1968" writes that conventions cannot be regarded as less important than the rule of
law. Similarly Sir W. Iver Jennings in his book "Law and the Constitution 5th Edition"
refers to the constitutional conventions. "Thus within the framework of the law there is
room for the development of the rules of practice, Rules which may be followed as
consistently as the rules of law and which determines the procedure which the men
concerned with Government follow." Mr. Mill refers to as "The unwritten maxims of
the Constitution," Dicey called them "conventions of the Constitution, and “while
Anson refers to them as” customs of the Constitution."

Thus, the short explanation of the constitutional conventions is that they provide the
flesh which clothes the dry bones of the law. They make the legal constitutional work,
they keep in touch with the growth of the ideas. A Constitution does not work by itself.
It has to be worked by men. It is an instrument of national cooperation and the spirit of
co-operation is as necessary as the instrument. The constitutional conventions are the

2
Peter Hogg, Constitutional Law of Canada, p. 7.
3
Jamie Grace, Constitutional and Administrative Law: Key Facts and Key Cases, Routledge 2015, p. 56.
4
https://lawexplores.com/constitutional-conventions/ accessed on 10th February 2018.
5
AIR 1998 Pat. 156.
 rules elaborated for effecting that co-operation. Men have to work the old law in order
to satisfy the new needs, constitutional conventions are the rules which they elaborate.”

Conventions are an instrument of national cooperation and the spirit of cooperation is as

necessary as the Constitution. They are rules elaborated for effecting that cooperation.6

Origin of the Concept

Constitutional conventions arise when the exercise of a certain type of power, which is not
prohibited by law, arouses such opposition that it becomes impossible, on future occasions, to
engage in further exercises of this power. For example, the constitutional convention that
the Prime Minister of the United Kingdom cannot remain in office without the support of a
majority of votes the House of Commons is derived from an unsuccessful attempt by the
ministry of Robert Peel to govern without the support of a majority in the House, in 1834–
1835.

Validity of Constitutional Conventions – Are they Legally Binding?

The most significant characteristic of constitutional conventions is that they are not legally
binding. Dicey stated that conventions may regulate conduct but ‘are not in reality laws at all
since they are not enforced by the courts’.

Marshall and Moodie describe conventions as ‘rules of constitutional behaviour which are
considered to be binding by and upon those who operate the constitution but which are not
enforced by the law courts’.

However, the courts may recognise the existence of a convention when coming to judgment.
For example7:

 Attorney-General v. Jonathan Cape Ltd8 (1976) – where the court recognised the
existence of convention, in this case the convention of collective ministerial
responsibility, but would not enforce it per se since it was a non-legal rule;

 Madzimbamuto v. Lardner-Burke9 (1969) – where it was held that no court could

declare an Act of Parliament invalid purely because it breached a convention, in this

6
Ivor Jennings: The Law and the Constitution, 13th Edition (1979).
7
Ibid.
8
3 All ER 484.
9
AC 645.
 case the convention that Westminster seek the approval of colonies before legislating
for them;

 Manuel v. Attorney-General10 (1983) – where it was confirmed that conventions are

non-legal rules and are unable to limit parliamentary supremacy. Consequently any Act
of Parliament that breaches convention will nevertheless be upheld by the courts.

Convention cannot crystallise into law. The only way a convention can become legally binding
is if it is put into statutory form. Examples of statutes incorporating former conventions include
the Statute of Westminster 1931 and the Parliament Act 1911.11

The breach of a convention may result in a number of consequences, depending on the

importance of the convention itself. Indeed, Dicey stated that the breach of some conventions
could result in legal consequences. However, it is rarely the case that breach of a convention
will have legal consequences: breaching a convention will most often result in political, not
legal, consequences.12

Our Apex Court in Supreme Court Advocates-on-record Association v. Union of India13 has
held that, "We are of the view that there is no distinction between the constitutional law and an
established constitutional convention and both are binding in the fields of their operation. Once
it is established to the satisfaction of the Court that a particular convention exists and is
operating then the convention becomes a part of the constitutional law of the land and can be
enforced in the like manner."

10
3 All ER 786.
11
Ivor Jennings: The Law and the Constitution, 13th Edition (1979).
12
Ibid.
13
AIR 1994 SC 268.
 1.2 CONSTITUTIONAL CONVENTIONS: THE UNWRITTEN PROTECTORS OF
THE GOVERNMENT

“Don’t interfere with anything in the Constitution. That must be maintained, for it is the only
safeguard of our liberties.”

Abraham Lincoln

A constitutional convention is an informal and uncodified procedural agreement that is

followed by the institutions of a state. The Constitution of a country comprises both written
rules enforced by courts, and "unwritten" rules or principles necessary for constitutional
government. Written rules mandate that they be followed in a particular specified situation, and
on the other hand unwritten rules come into play when there is no given written rule to cover
the situation at hand. Constitutional conventions are said to be rules of political practice, which
are regarded as binding by those to whom they apply, but they can’t be called exact laws, as
they are not enforced by courts or by the Houses of Parliament.14 Notwithstanding the fact that
ours is a detailed Constitution, the Constitution-framers left certain matters to be governed by
conventions, thereby giving to the holders of constitutional offices some degree of discretion
in respect of such matters.

The main purpose of the Constitutional conventions is to ensure that the legal framework of
the Constitution retains its flexibility to operate in tune with the prevailing constitutional values
of the period. Although conventions are not legally enforceable and the sanction behind them
is moral and political, yet some conventions of the constitution which set norms of behaviour
of those in power or which regulate the working of the various parts of the Constitution and
their relations to one another, may be as important, if not of greater significance, as the written
word of the Constitution itself. This is particularly true of the role of 'conventions' in a system
of Parliamentary democracy having a Constitutional distribution of powers between two or
more levels of Government.

Often constitutional conventions are more important than written constitutional provisions. For
example, the President is empowered by the Constitution to appoint the Prime Minister15 , but
the Constitution provides no guidance as to who should be appointed as Prime Minister. Here

14
Colin Munro, "Laws and Conventions Distinguished", 91 LQR 218 (1975), at p. 218.
15
Article 75(1) of the Constitution of India, 1950.
conventions regarding the appointment of the Prime Minister play an important role in guiding
the President.

A single precedent with a good reason may be enough to establish the rule. A whole string of
precedents without such a reason will be of no avail, unless the persons concerned regard
themselves to be bound by it. Conventions grow out of and are modified by practice. At any
given time it may be difficult to say whether or not a practice has become a convention.
Conventions do not come from a certain number of sources, their origins are amorphous and
nobody has the function of deciding whether conventions exist or not16 .

As the author’s topic requires proving whether or not the constitutional conventions are
necessary to preserve the legal structure of the government (with an illustration), the author’s
would confine his study to the one of the most debated and controversial constitutional
conventions - the Appointment of the Prime Minister. The conventions are compared with
British conventions since most of our constitutional practices are derived from the United
Kingdom and through this example, the researcher will try to illustrate the importance of
Constitutional Conventions.

Constitutional conventions: A brief study

Following are some of the characteristics of the conventions17:

(i) Conventions are rules that define non-legal rights, powers and obligations of office-
holders in the three branches of Government, or the relations between governments
or government organs.
(ii) Conventions in most cases can be stated only in general terms, their applicability in
some circumstances being clear, but in other circumstances uncertain and debatable.
(iii) They are distinguishable from rules of law, though they may be equally important, or
more important. They may modify the application or enforcement of rules of law.

Constitutional conventions develop over time and are not outlined in any
document.18 Conventions grow out of practices and precedents determine their existence. Such
precedents are not authoritative like the precedents of a court of law. Every act is a precedent,

16
http://dejurislawnotesin.cluster2.hostgator.co.in/law-notes/constitutional-law accessed on 11th February 2018.
17
Geoffrey Marshall: Constitutional Conventions 211 (1984).
18
The Written and the Unwritten Constitution, at http://www.canadiana.org/citm/ specifique/written_e.pdf
accessed on 10th February 2018.
but not every precedent creates a rule.19 Sir Ivor Jennings suggested that in order to establish a
convention three questions must be asked: firstly, what are the precedents; secondly, did the
actors in the precedents believe that they were bound by a rule; and thirdly, whether there is a
good reason for the rule?20A single precedent with a good reason may be enough to establish
the rule. A whole string of precedents without such a reason will be of no avail, unless the
persons concerned regard themselves to be bound by it.21

It is largely through Dicey's influence that the term "convention" has been accepted to describe
a constitutional obligation, obedience to which is secured despite the absence of the ordinary
means of enforcing the obligation in a court of law. It must be noted that the obligations do not
necessarily, or indeed usually, derive from agreement. It is more likely to originate from
customs or practices arising out of sheer expediency.22 Conventions grow out of and are
modified by practice. At any given time it may be difficult to say whether or not a practice has
become a convention.23 Conventions do not come from a certain number of sources, their
origins are amorphous and nobody has the function of deciding whether conventions exist or
not.

19
Jennings, supra at fn 11 at p. 13.
20
Applied in Re Amendment of the Constitution of Canada, (1981) 125 DLR (3d) 1, by the Canadian Supreme
Court.
21
Public Law Lectures on the UK Constitution, at http://www.kcl.ac.uk/depsta/law/ugrad/
study/course_ats/public/02_03/public_law_lecture_4_0203.pdf
22
M.J. Allen, et al (Eds.): Cases and Materials on Constitutional and Administrative Law 225 (1995).
23
Jennings, supra at fn 11 at p. 5.
 1.3 ILLUSTRATIONS FROM THE INDIAN POLITICAL SCENARIO

“Our Constitution is a ray of Hope: H for Harmony, O for Opportunity, P for People and E
for Equality.”
Narendra Modi

1. Appointee for the office of Prime Minister

The position with respect to appointment of Prime Minister in India is similar to the British,
since our constitutional practices are to a large extent derived from English usages, customs
and practices.24 Article 75(1) of the Indian Constitution gives the President the right to appoint
the Prime Minister. In normal circumstances it is the leader of the majority in the House of the
People (Lok Sabha). But, in circumstances where the Prime Minister dies in office or resigns,
the President will have to exercise his personal judgment. The party may have no recognised
leader, or either of the two parties may be able to form a government and command the support
of the House of the People. In such circumstances the President may explore the possibility of
finding a person who could form a coalition with the help of two or more parties and command
the support of the Lok Sabha. It was such discretion that President Reddy exercised in 1979
after the fall of the Janta Ministry in inviting Charan Singh to form the ministry and also in not
inviting Jagjivan Ram to do so after Charan Singh resigned and advised the dissolution of the
House.25

Options in a hung Lok Sabha: Article 75(1) of the Constitution states that the President shall
appoint the Prime Minister. Clause (3) adds:

"75. (3) The Council of Ministers shall be collectively responsible to the House of the People."

Ergo, the Prime Minister must command a majority in the House at the time of the vote of
confidence. However, in an uncertain situation, say in the case of hung Lok Sabha, how is the
President to determine which of the party leaders will manage to secure majority support?26

Until they dropped it in the final stages of the proceedings of the Constituent Assembly on 11-
10-1949, the framers of the Constitution had proposed instruments of instructions to guide the
President and the Governors. Para two of the instructions to the President enjoined him to

24
U.N.R. Rao v. Indira Gandhi, (1971) 2 SCC 63.
25
M.P. Singh: V.N. Shukla's Constitution of India 344 (2001).
26
A.G. Noorani: Constitutional Questions in India 69 (2000).
"appoint a person who has been found by him most likely to command a stable majority in
Parliament as the Prime Minister".27 This is of little help except in that it explicitly permits the
President to act on probabilities. A mistaken assessment will invite charges of partisanship.

In a letter dated 17-5-1967 to three former Chief Justices of India, Justices Mahajan, Sarkar
and Gajendragadkar and eminent constitutional experts like M.C. Setalvad and H.M. Seervai,
the then Home Minister Y.B. Chavan mentioned three views on the appointment of the Chief
Minister and sought their legal opinion on it.28 The three views were: (i) The leader of the
largest party in the legislature should be invited to form the Government irrespective of whether
or not such a party commands a stable majority. (ii) If the party in power failed to secure an
absolute majority in the newly- elected legislature, the leader of that party should not be invited
to form the Government because the electoral verdict should be regarded as, in effect,
disqualifying the party from holding office for another term. (iii) The Governor should make
endeavour to appoint a person who is most likely to command a majority in the legislature.29

There was complete agreement on the third, an obvious choice but of little practical value. The
Sarkaria Commission's report did not agree with this and propounded its own rules.30 The
subject was also discussed in the report of the Committee of Governors, 1971, appointed by
the President to study and formulate norms and conventions on the role of the Governors. It
rejected the rigid arithmetical test of the leader of the largest single party.31 Three British works
on constitutional and administrative law share this view. S.A. Smith speaks of a ministry "with
a reasonable prospect of maintaining itself in office". Wade and Bradley opt for "that person
who is in the best position to receive the support of the majority". Hood Phillips' formulation
is "a ministry that can hold a majority in the House".32 The above authorities expose the
absurdity of the then President R. Venkataraman's "objective" test of summoning the parties in
the order of their numerical strength, that he propounded as a great contribution to
constitutional practice.

27
Ibid.
28
Noorani, supra at fn 28 at p. 70.
29
Noorani, supra at fn 28 at pp. 70-71.
30
Sarkaria Commission Report, Part 1, para 41.10.53—It recommended that the Governor should invite the parties
to form the Government in the following order of preference—(i) An alliance of parties formed prior to the
elections. (ii) The largest single party staking a claim to form the Government with the support of others, including
independents. (iii) A post-electoral coalition of parties, with some of the parties in the coalition joining the
Government. (iv) A post-electoral alliance of parties, with some of the parties forming a government and the
remaining parties including independents, supporting the Government from outside.
31
Noorani, supra at fn 28 at p. 73.
32
Noorani, supra at fn 28 at p. 81.
British precedent and the dicta of eminent authorities do not support any such arithmetical test.
Another example of such absurdity is that of Dr. S.D. Sharma's decision to appoint Mr
Vajpayee as the Prime Minister on 15-5-1996. The sole consideration behind Mr Sharma's
decision seemed to be the "arithmetic" test that Mr. Venkataraman talked about in his book, My
Presidential Years. Such decisions lower the image of the high office of the President, more
so, when the appointed Prime Minister fails to secure the majority in the House as it happened
in the case of Mr. Vajpayee, whose Government fell within 13 days of its appointment. Yet
another example will be that of the case of Bihar where the Governor decided to ask Mr. Nitish
Kumar to form the Government despite the fact he was in no position to command majority in
the House, and had to ultimately resign. Such decisions sully the image of the office of the
President and Governors, and also go against the spirit of democracy.

Being leader of the single largest party does not necessarily mean being the leader of the
majority members of the House. A person need not be the leader of the single largest party in
the House to command the support of the House. The practice now more or less seems to be
settled that the leader of the party who is able to secure the support of the House should be
invited to form the Government.

There has been demand from several quarters to codify the convention with respect to the
appointment of Prime Minister and Chief Ministers. The reason given is that having a written
Constitution, we should not leave the appointments to these high offices on conventions.33 The
controversy invariably surrounding every appointment (in cases where no one party has
absolute majority) of the Prime Minister and Chief Ministers further strengthens the demand
for codification of conventions. One of the suggestions that have been put forward is the
amendment of Article 75 of the Constitution so as to have the following effect:34 "The Prime
Minister shall be appointed by the President on the recommendation of the House of the People
which recommendation shall be binding on the President". Thus the onus will be on the
legislature to choose the Prime Minister, than on the President. Moreover, the discretion to
appoint the Prime Minister has been vested in none other than the President who is the head of
the republic. Hence, the presumption that he will act impartially should always weigh in his
favour.

33
Constitution, President and Prime Minister, at http://www.lawindiainfo.com/consitution/cons-
PrimeMinister.html accessed on 08th February 2018.
34
Ibid.
2. Dissolution of the House

The Lok Sabha and the Vidhan Sabha of each State are dissolved at the end of their terms,
every five years. However, this manuscript only deals with irregular dissolutions, which occur
before the term of a House is over. The theory behind the right to advise dissolution is that
when the Government loses the confidence of the House, it may, instead of resigning, assert
that the House itself has ceased to reflect the will of the electorate, which constitutes the
political sovereign. Dissolution is thus an appeal to the electorate.35 A major controversy
surrounding the dissolution of the House is whether the President's discretion with respect to
dissolution can override express advice to the contrary tendered by the council of Ministers.

President's discretion:

The question has often come up whether it is binding upon the President to follow the advice
tendered by the Prime Minister, regarding dissolution of the House, when the Prime Minster
has lost the confidence of the House. When the Prime Minister enjoys the support of the House,
advice to dissolve the House would be binding, since no alternative government is possible.
Article 74(1) provides that the President shall act in accordance with the advice tendered by
the Council of Ministers with the Prime Minister at its head. However in the case of Samsher
Singh v. State of Punjab36, Krishna Iyer, J. laid down certain exceptions in which the President
was not obligated to act in accordance with the advice given by the Council of Ministers and
was required to exercise his discretion. However, the judgment also stated that even in cases
regarding dissolution, the President should avoid getting involved in politics and act on the
advice of the Prime Minister. Thus, the limits of the President's discretion are carefully
circumscribed. However, the President, according to his oath of office, has to preserve, protect
and defend the Constitution.37 So the President should not be bound by the unconstitutional
advice of a ministry to dissolve the House. The House represents the will of the electorate, but
the will of the electorate is subject to the Constitution.38 Hence the President will be bound to
reject the advice if such advice is against the spirit of the Constitution.

As per Dr. Eugene Forsey, in a multi-party system (as prevalent in India) it may be necessary
for the President to refuse dissolution and consult the leaders of the Opposition parties or call

35
D.D. Basu: Shorter Constitution of India 153 (1999).
36
(1974) 2 SCC 831.
37
Article 60 of the Constitution.
38
B.R. Kapur v. State of T.N., (2001) 7 SCC 231.
on such persons to form a government. If all possible alternative Prime Ministers decline the
task, then the only course left open is to allow the present government's proposal for
dissolution.39

President's independent initiative:

In India, the question came up when the V.P. Singh government resigned in 1990, without
advising the President to dissolve the Lok Sabha. The President, Mr R. Venkataraman held the
view that Prime Ministerial advice was a must for dissolution. However, when Mr
Chandrashekhar resigned as Prime Minister in 1991 and advised dissolution of the House, Mr
Venkataraman said that the question of dissolution of the Lok Sabha would be considered
separately. The President then waited a whole week before announcing the dissolution of
the Lok Sabha on 13-3-1991 and stated that the advice of the Prime Minister was not the sole
reason for taking the decision.40

Dr. B.R. Ambedkar had told the Constituent Assembly on 4th November, 1948 that the
President could do nothing contrary to the advice of the Ministers nor could he do anything
without their advice.41 But, on 30-12-1948 Dr. Ambedkar stated that dissolution and the
appointment of the Prime Minister are two prerogatives that the President will enjoy.

No instance has occurred in India where the President dissolved the legislature on his own
initiative. It is believed that such wide power to dissolve the House without advice cannot be
vested in a single individual, who has not even been elected directly by the people and is not
responsible to Parliament either. Moreover, it is not possible to work out adequate safeguards
to ensure that such power is not abused. Therefore, the President cannot, on his own initiative,
dissolve the Lok Sabha, except under very exceptional cases, when the Council of Ministers
acts in blatant disregard of constitutional practices. However, such situations are unlikely to
arise in a parliamentary democracy where the Government goes to polls every 5 years.

Refusal to dissolution

The advice to dissolve the House should be refused if the following situations exist:42 (i) The
existing Parliament is still viable and capable of doing its job. (ii) A general election would be

39
Noorani, supra at fn 28 at p. 120.
40
T. Prasanna, "Dissolution of the Lok Sabha", 12 STUD ADV (2000) 160 at p. 170.
41
CAD, Vol. VII, at p. 32.
42
Rodney Brazier: Constitutional Texts 111 (1990).
detrimental to national economy. (iii) The President could find another Prime Minister who
would carry on his government for a reasonable period with a working majority in the House.

Further, other considerations such as how long the House has been in existence may be taken
into account. The President may be reluctant to grant dissolution to a newly constituted House.
Dr. Ambedkar was of the opinion that when the President receives advice for dissolution, he
should test the feelings of the House if it agrees that there should be dissolution or it agrees that
the affairs should be carried on with some other leader.43

The National Commission to review the working of the Constitution argued that one of the
methods of restoring the stability and cohesion of functioning in the parliamentary system of
government is to strengthen the institution of the Prime Minister and one of the ways of doing
so is to empower the Prime Minister to advise dissolution of the House whenever he thinks that
the House has exhausted its mandate and a fresh appeal to the electorate is called for. But, the
Commission finally concluded that the present constitutional position needs no modification.44

43
CAD, Vol. VII, at p. 107.
44
Report of the National Commission to Review the Working of the Constitution, Department of Legal Affairs,
Ministry of Law, Justice and Company Affairs, 2002.
1.4 CONSTITUTIONAL CONVENTIONS VIS A VIS JUDICIAL CUL DE SAC: THE
WAY FORWARD

“The Constitution does not just protect those whose views we share; it also protects those
with whose views we disagree.”

Edward Kennedy

Examining the line of Tax Tribunals Case, in the case of Sampath Kumar, Chandra Kumar
and Union of India v. Madras Bar Association,45 -“Sections 5, 6, 7, 8 and 13 of the NTT Act
have been held by us (to the extent indicated hereinabove) to be illegal and unconstitutional on
the basis of the parameters laid down by decisions of constitutional benches of this Court and
on the basis of recognized constitutional conventions referable to constitutions framed on the
Westminster model. In the absence of the aforesaid provisions which have been held to be
unconstitutional, the remaining provisions have been rendered otiose and worthless, and as
such, the provisions of the NTT Act, as a whole, are hereby set aside.”

What is curious about this paragraph is its reliance upon constitutional conventions to strike
down legislation. This is surely a first! Constitutional conventions are – as the term suggests –
conventions, that is, practices that have acquired strong normative and binding force because
of a long period of consistent adherence. To hold a convention to be legally enforceable is a
category mistake – what distinguishes constitutional provisions from constitutional
conventions is precisely their legal standing. As the reasoning above demonstrates, the Court
had no need to resort to conventions: the reasoning in the Tribunals Cases was enough for it to
hold that a transfer of jurisdiction must be to a forum with the relevant trappings of a court.46

In the alternative, if it was of a mind to invoke the Westminster constitutional model, it could
simply have held that the independence of the judiciary was a structural feature of a
Westminster Constitution (as, incidentally, was held in some of the cases that the Court cited
from abroad, none of which relied upon conventions). Structural analysis, that is, inferring
constitutional obligations not directly from the constitutional text, but by way of necessary
implications from its overall scheme and structure – is an accepted form of constitutional
adjudication, widely prevalent in the United States, and – although controversial, most

45
2014 10 SCC 1.
46
http://blog.mylaw.net/supreme-court-correctly-holds-national-tax-tribunal-unconstitutionalbut-but-should-
ordinary-law-be-tested-against-basic-structure-and-constitutional-convention/ accessed on 13th February 2018.
famously in Kesavananda Bharati – used in India as well, on occasion (see, for instance, the
Delhi High Court’s finding of the word “sex” in Article 15 including “sexual orientation”). In
holding constitutional conventions to be legally enforceable, the Court has – with respect –
created an entirely unnecessary minefield for the future.

The idea of ‘constitutional convention’ is at the root of the current crisis in Supreme Court.
Every action within government is not available for such judicial scrutiny, such that those
actions of the president for calling the leader of the single-largest party to form the government,
not of the Speaker for his actions in the House, nor that of the foreign ministry in not placing
an international treaty before the House for ratification even if it involves a financial burden.47

In the judiciary, the discussions among judges as to how they arrive at a verdict or why someone
is recommended by the collegium to high office are also beyond the pale of challenge. Much
of this has nothing to do with established rule of law, it is so because with most of the
Commonwealth countries, this emerges from the British practice known as “constitutional
convention” — unwritten norms followed by constitutional authorities, which are born out of
custom and followed out of expediency. If, in the implementation of any of these conventions,
there would be doubts or reservations, no formal recourse can provided.48

Like the discretion of allotting cases among the judges of the SC vests with the Chief Justice
of India, and is yet another example of this convention. Ever since the misadventures of the
1970s, the very appointment of the senior-most judge of the SC as chief justice has also been
a matter of constitutional convention. By being so appointed, the appointed person becomes
the ex-officio heads the administrative side of the court and discharges tasks, most of which
are entirely mundane and some of which are almost menial. In all of this, he is assisted by no
less than 40 committees comprising various combinations of the other judges of the Court. 49

Recently former Chief Justice J.S. Khehar constituted a bench of the first seven judges to
consider Justice C.S. Karnan’s fate, another five from different faiths for the triple talaq verdict
and nine of varying constitutional hues for the privacy case. One would never know whether
there were objections to the manner in which these benches were constituted, but as far as
lawyers and laymen were concerned, they did send the message of representation and

47
http://indianexpress.com/article/opinion/columns/supreme-court-crisis-constitution-judiciary-cji-
unconventional-wisdom-5026083/ accessed on 07th February 2018.
48
http://newsfromsinus.blogspot.in/2018/01/chief-justice-of-india-assures-bci.html accessed on 05th February
2018.
49
Ibid.
objectivity. However, as in the present instance, when an overwhelming majority of the senior
judges have expressed their disquiet with the allocation of cases, the same constitutional
convention leads to the chief justice essentially being a judge in his own cause.50

If he chooses not to vary his decision, those aggrieved have no other recourse visibly apparent,
a judicial cul-de- sac as it were. It is in these circumstances that we find the shortcomings of
an unwritten convention.51

CONCLUDING REMARKS

The fundamental reason of the Constitutional Conventions is to ensure that the legal framework
of the Constitution retains its flexibility to operate in tune with the prevailing constitutional
values of the period, it helps the Constitution to adapt and make amends according to the nee
ds and desire of the changing times, as the Founders of our Constitution couldn’t have foreseen
and safeguarded the Constitution from future loopholes and hence left certain matters to be
governed by conventions as they are as important, if not of greater significance, as the written
word of the Constitution itself.

Some conventions are well-established and may be relied upon absolutely, while some are
vague and may lead to manipulation for political purposes. For example, appointment of the
Prime Minister is to be done by the President and the prevailing convention is that the person
enjoying support of the absolute majority of the House concerned is appointed to the respective
office. The snag lies in ascertaining that support. The task of the President becomes difficult
and open to criticism, as he has to often follow vague conventions and foreign precedents. The
conventions being vague, the President may go on appointing the leader of the largest party in
the Lok Sabha as the Prime Minister, despite the fact that the appointed Prime Minister is not
in a position to secure majority in the Lok Sabha. The fractured verdict given by the electorates
in the recent past has further exacerbated the problems of the President in appointing Prime
Ministers.

If the effect of the codification is to give jurisdiction to the courts to enforce the codified
conventions then that might impinge on the doctrine of separation of powers. Further, if the

50
http://newsfromsinus.blogspot.in/2018/01/chief-justice-of-india-assures-bci.html accessed on 06th February
2018.
51
http://www.zuccess.in/uploads/news/JANUARY-2018/1516070940815.pdf accessed on 11th February 2018.
conventions are codified and the effect of that codification is to give jurisdiction to the courts
to enforce the codified conventions then in such a scenario the flexibility of the conventions
will be lost. Moreover, codified laws cannot cover any and every situation that might arise.
Hence, it makes more sense to leave the conventions uncodified.

“I believe that a government has only one religion - India first. A government has only one
holy book - our Constitution. A government has only one kind of devotion - towards nation”

Narendra Modi