“Convention exist to protect some principles of the constitution that would be negatively impacted”– Andrew Heard

A constitutional convention is an informal and uncodified procedural agreement that is followed by the institutions of a state. In some states, notably those Commonwealth of Nations states that follow the Westminster system and whose political systems derive from British constitutional law, most government functions are guided by constitutional convention rather than by a formal written constitution. In these states, actual distribution of power may be markedly different from those the formal constitutional documents describe. In India, the Constitution comprises both of written rules as well as unwritten rules.

Written rules are those enforced by the courts and unwritten rules find its existence in principles that govern the functions and duties of instrumentalities of the State. It is mandatory to follow the written rules in a particular specified situation, and on the other hand unwritten rules are exercised when the written rule is silent on the issue 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.[1] It is well known fact that the Indian Constitution is a detailed Constitution and defines and regulates the relation between the State and its subjects. But 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.

Sir Ivor Jennings suggested that in order to establish a convention three questions must be asked[2] :

1. What are the precedents?
2. Secondly, did the actors in the precedents believe that they were bound by a rule?
3. Thirdly, whether there is a good reason for the rule?

The term convention 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.[3]

Professor Dicey, writing about conventions of the Constitution in his book stated that conventions are a set of rules regulating the conduct of the several members of the sovereign power, of the ministry, and of the officials, ‘ which, though they would not be noticed by any court, have in practice nearly the force of law;’ for he argued that the sanction by which obedience to these conventions is enforced is the fact that ‘ the breech of these conventions will almost immediately bring the offender into conflict with the courts and the law of the land.’[4]

It is largely through Dicey’s influence that the term “convention” has been accepted to describe a constitutional obligation and obedience 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.[5] 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.[6] 

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 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”.[7]

ORIGIN

It is not possible to trace the origin of a convention as they evolve from practices. At any given time it may be difficult to say whether a practice has become a convention or not? Constitutional convention does not come from certain number of sources, their origin are unstructured and nobody can decide whether conventions exist or not. 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.

Characteristics of the conventions are[8]:

(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.

Enforceability of Conventions:

Constitutional conventions are not, and cannot be, enforced by courts of law. a judgement from the Supreme Court of Canada in its 1981 Reference, clearly states that, “They are generally in conflict with the legal rules which they postulate and the courts may be bound to enforce the legal rules.”[9] In other words conventions aid in making of certain acts, which would be permissible under a straightforward reading of the law, impermissible in practice. These conventions have to play a vital role where law is silent. Constitutional Conventions are not enforced in the courts because they are not enumerated into the category of law and rules. These conventions are not interpreted by the court nor they are made by the legislature but still are considered important in the modern times.

India is only the country with the highest document of laws and has framed the world’s lengthiest, bulkiest and most detailed constitution of the world. But still India depends on these constitutional conventions for the proper functioning. The main purpose is to ensure that in the dynamic world, the legal framework of the Constitution retains its flexibility to function according to the constitutional values and principles that underlies the Constitution.

Although conventions are not legally enforceable in the court and the sanction behind these conventions is moral and political, yet some conventions of the constitution which set the norms of behavior of those in power or which regulate the working of various part of the constitution and their relation 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 “Constitutional Convention” in a system of parliamentary democracy having the constitutional distribution of powers between two or more level of governments.

WHY NOT CODIFY THE CONVENTION?

It is impractical to codify the constitution. The effect of such codification will give jurisdiction to the courts to enforce the codified conventions and the flexibility of the conventions will be destroyed. Moreover, codified laws have limited scope. Though they are interpreted according to the circumstance at hand, it cannot be applied to every situation. The role of conventions are to fix this gap. Hence, it makes more sense to leave the conventions uncodified. With the objective of aiding the Constitution in retaining its value and flexibility, it helps the Constitution to adapt and make amends according to the needs 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.

 The Importance of Conventions?

1. Acts as tool to fix the situation: As previously stated The Indian Constitution is the lengthiest, bulkiest and the most detailed constitution in the world. But the Indian constitution does not deal with all aspects. Therefore room for constitutional conventions are made. It is considered as a tool or weapon which is used to deal with the complex situation where there the law is silent.
2. Maintain flexibility: Conventions fill the room left at the joints in the constitutional structure and protect them against ossification. 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.
3. One unfortunate fact of the Indian situation is that enough attention has not been paid to the evolution and observance of the right codes of conduct and conventions. Even the codes and conventions evolved in the earlier years have been broken too lightly in the later years. There is an increasing tendency to resort to extra-Constitutional methods to force settlement of political or economic issues imagined or real. This would be a cause for concern even in a small homogeneous country. In India, a heterogeneous country of huge dimensions, this cannot be a matter of grave anxiety. Hence, natural reaction would be that the loopholes in the Constitution which have permitted aberrant developments should be plugged.
4.  It is urged that, if conventions do not work, appropriate constitutional safeguards should be provided. If appropriate conventions are not followed and the discretion provided under certain circumstances is misused, the entire system may collapse. In order that appropriate conventions and codes of conduct get evolved, it is essential that incumbents of constitutional offices are selected from among persons of admitted competence and integrity and provided with reasonable security of tenure.

Instances of Constitutional convention:

Over the years many conventions have evolved. But the most controversial and debated Constitutional Conventions are – appointment of the Prime Minister and dissolution of the Lok Sabha. The conventions are compared with British conventions since most of our constitutional practices are derived from the United Kingdom.

1. Appointment of PM:

India has the bulkiest Constitution and yet certain aspects are left to conventions. One of them is the appointment of Prime Minister by the President.[10]In England, it is the monarchy whereas in India it is the President who makes this choice. The nature of the monarch’s choice necessarily depends upon the status of parties in the House of Commons. If a party has a clear majority, its recognized leader will be the Prime Minister.[11] When no party achieves majority, two situation arises:

• the formation of a coalition government
• the formation of a minority government

When a government is defeated, either in Parliament or at the polls, the monarch should send for the leader of the opposition. This rule is based on the assumption of impartiality of the crown.

The position with respect to appointment of Prime Minister is similar in India since our constitutional practices are to a large extent derived from English usages, customs and practices[12]. 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 recognized 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.

1. Options in a hung Lok Sabha:

A hung parliament is a term used in legislatures under the Westminster system to describe a situation in which no particular political party or pre-existing coalition has an absolute majority of legislators in a parliament or other legislature. Article 75(1) of the Constitution states that the President shall appoint the Prime Minister. Clause (3) adds that, “The Council of Ministers shall be collectively responsible to the House of the People.” 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?[13]

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 “appoint a person who has been found by him most likely to command a stable majority in Parliament as the Prime Minister”.[14] 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.

An 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. This again brings us back to the question, when and how does a practice become a convention? Ivor Jennings’s three-stage test mentioned before might be helpful in deciding whether a practice has crystallized into a convention or not but that is not a conclusive test for determining the existence of a convention. 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. 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:”

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. Such a move is welcome since it will help in avoiding confusion and controversies in the appointment of the Prime Minister and Chief Ministers. However, at the same time it must also be kept in mind that a Constitution cannot contain all and sundry provisions concerning a matter including that for the appointment of Prime Minister. 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.

1. 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 article 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.[15] 

Two major controversies in the dissolution of the House are:

• first, whether the advice to dissolve the House should be tendered by the Prime Minister alone or the Cabinet as a whole ,and
•  Second, whether the President’s discretion with respect to dissolution can override express advice to the contrary tendered by the council of Ministers.

In India, the discussion will be confined to the Presidential discretion in dissolving the House.

1. 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 Punjab[16], 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.

Such instances included situations regarding the dismissal of a government which had lost its majority in the House, but was refusing to quit office and the dissolution of the House of the People was required. 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. 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.[17] Hence the President will be bound to reject the advice if such advice is against the spirit of the Constitution.

• Refusal to dissolution

The question regarding the power of the President to refuse to dissolve the House on being advised to do so is also debated. Sir Ivor Jennings is of the opinion that the prerogative to refuse dissolution lies with the Crown in theory alone and cannot be exercised in practice.[18]

The advice to dissolve the House should be refused if the following situations exist[19]: (i) The existing Parliament is still viable and capable of doing its job. (ii) A general election would be 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.

Till date, the President has never refused to dissolve the legislature, on being advised to do so, but if the President is satisfied as to the existence of the above conditions, then the possibility of refusal cannot be ruled out. 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.[20]

Conclusion:

The importance of Constitutional convention cannot be debated. “Every act is a precedent but not every precedent creates rule”[21]. The origin of the conventions are not in codified rules. They evolve from practices which then became precedents. The codified rules and laws no doubt provides remedy to most of the situations. But not every aspect can be covered by the codified law. The uncodified principles and conventions fill this vacancy as they possess flexibility to adapt to the situation.

The main purpose of Constitutional convention is to regulate the discretionary powers conferred on the Government while exercising its functions. This power cannot be exercised arbitrarily as it only degrades the position of the office and leads to further malfunction in the system. Therefore the conventions are necessary to regulate such discretionary powers in order to maintain smooth functioning of the system.  From appointment of the Prime Minister to dissolution of the house, the conventions fill the loopholes where the law remains silent. Hence codification of the conventions becomes impractical because if they are codified they’d lose their flexibility, which is the very essential element of the convention. 

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[1] Colin Munro, “Laws and Conventions Distinguished” 91 LQR 218 (1975), at p. 218

[2] Re Amendment of the Constitution of Canada, (1981) 125 DLR (3d) 1, by the Canadian Supreme Court

[3] AV Dicey, Introduction to the Study of the Law of the Constitution, 10th edition, pp. 23-24

[4] Dr. Bool Chand- How will conventions arise in the Indian Constitution 

[5] M.J. Allen, et al (Eds.): Cases and Materials on Constitutional and Administrative Law 225 (1995). 

[6] Ivor Jennings: The Law and the Constitution 13 (1979). at p. 5

[7] Peter Hogg, Constitutional Law of Canada, p. 7

[8] Geoffrey Marshall: Constitutional Conventions 211

[9] Supreme Court of Canada, Attorney General of Manitoba et al. v. Attorney General of Canada et al. (September 28, 1981

[10] Article 74 of the Constitution of India

[11] Supra at 5 , p. 24

[12] U.N.R. Rao v. Indira Gandhi, (1971) 2 SCC 63 

[13] A.G. Noorani: Constitutional Questions in India 69 (2000)

[14] Id.

[15] D.D. Basu: Shorter Constitution of India 153 (1999)

[16] 26 (1974) 2 SCC 831 

[17] B.R. Kapur v. State of T.N., (2001) 7 SCC 231

[18] Hilaire Barnett: Constitutional and Administrative Law 163 (1996) at p. 163

[19] Rodney Brazier: Constitutional Texts 111 (1990)

[20] CAD, Vol. VII, at p. 107. 

[21]  Supra at 5

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Author: Pruthvi K from SDM Law College, Mangalore.

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