The grundnorm of the country i.e. the constitution has been composed in such a manner that it consolidates within itself both written rules as well as certain uncodified rules. The written rule showcases the specific action that has to be taken in a particular situation; on the other hand, the uncodified rules come into force when there is no written law on that particular scenario. These uncodified rules have been over the period termed by various jurists and scholars as Constitutional Conventions. The analysis of constitutional convention has constantly been made on a presumption of its existence in the constitution. These conventions often fall within the realm of rules of political practice and are observed as binding by those to whom they apply.
Constitutional Conventions are not framed by the legislature so they don’t acquire the status of law or rules and as a result, are neither interpreted nor enforced by the judiciary, though it still maintains its binding character. Despite not being recognized as law the convention holds importance in the present scenario. So the question that arises here is what was the reason that the world’s longest and most detailed constitution left a sphere to be covered by constitutional conventions? The rationale for such an act is simple and easy to comprehend. The main purpose was to secure that the constitutional legal structure retains its adaptability to work in a dynamic environment as per prevailing constitutional values. The creators of the constitution deliberately left certain matters to be dictated by convention hence, thereby furnishes the person holding constitutional office a degree of discretion.
The commands behind the constitutional conventions are moral and political. These conventions set forward some norms that govern the behavior of a person who is in power, or regulate the working of various institutions under the constitution and their relation with each other. In this manner conventions are equally important as written rules. The above-mentioned point is the real role of constitutional conventions under a democratic arrangement having a constitution that states distribution of powers. There are certain situations, where unwritten rules hold much more value than written rules, for instance, as per constitution the appointment of Prime Minister has to be done by President, but the constitution remains silent as to who should be appointed as the Prime Minister. In this area, the constitutional convention comes into effect and due to nature of post involved, it acquires much more value.
Constitutional Conventions Definitions
The term constitutional convention has come under the scrutiny of various jurists over the period. It was first done by British scholar A.V.Dicey, according to him the “act of various institutions in a state and the political personalities are governed by two sets of rules. One set of rules consists of laws that are enforceable in the court of law and these rules can be written, unwritten, enacted by legislation, by custom, tradition, judge-made laws, etc. The second set of rule consists of conventions, habits, practices that govern the behavior of various personalities but are not enforceable in the court of law.” And this second set of rules, which are not exact laws, are termed by him as “Conventions of the Constitution” or “Constitutional Morality”.
The conventions have evolved over the period and are not highlighted in any singular document. These are the practices that have gained existence through precedents, but these precedents are not the same as the precedents of court. According to Sir Ivor Jennings, to establish a convention three questions have to be answered. Firstly that what are precedents? Secondly did political actors feel bound by such rule? And lastly, whether there exists a good viable reason for the existence of such a rule? For him, all conventions are based on these 3 points. If there is good reasoning attached with the existence of a precedent then the rule will come into force, however, if it lacks reason and an obligatory feeling then such rule is of no use. However this is not an absolute test to determine which practice amounts to constitutional convention.
Austin defines these conventions as “positive morality of the constitution”. Fenwick, H, defined the same as “non-legal, generally agreed rules about how government should be conducted and, in particular, governing the relations between different organs of government.”
Thus, conventions are voluntary obedience arising towards certain practices over a period however, there is no fixed time prescribed for its existence therefore it is difficult to identify the existence of any particular convention.
Characteristic of Constitutional Conventions
- The non-legal rights, obligation, power of the person holding office in the three branches of the government, and the relation between each government organ and government is defined and implemented by conventions.
- The conventions can be asserted in common terms and their applicability in most situations are clearly and precisely stated. However, in certain circumstances, they are uncertain and debatable.
- The constitutional conventions are different from rules of law but still they have the ability to alter the applicability of rules of law. Despite the differences, conventions in most of the situations are considered equal to the rule of law and in certain situations even more important than the laws.
Need for Constitutional Conventions
The creators of the Constitution have left certain areas of discretion for political actors. This freedom gives liberty which may sometimes lead to misuse of the same. A fact about the Indian Constitution situation is that enough heed has not been paid to bring decent conduct and convention code in matters of discretion. The conduct code that was created in the earlier year has been discontinued and is not functioning properly as per the need.
Moreover, discretion has led to many social, political and economic disputes due to which more dependents have been placed upon an extra-constitutional method for settling the same and this point raises a concern as despite having the lengthiest and detailed law there is still a need to go for non-constitutional methods. Hence these extra-constitutional arrangements are to be halted plus misuse has to be regulated and for this relevant code and conventions are required.
The constitutional convention somehow manages the psychology of the people who are in a position to exercise powers. Hence, standardized convention that has been followed over a period and is ideal has to be followed, and thus calls for the need of such convention. If these standardized conventions are not obeyed by the person in position and the discretion is misused then whole parliamentary system may come to deadwood.
Instances of Constitutional Conventions
The Constitutional Conventions mostly come into play while regulating relation between executive and legislature.
Hung Lok Sabha Situation
Generally, the Prime Minister is asked to show a majority in the house by a vote of confidence. However, there may arise a state of hung Lok Sabha where neither party acquires majority. In such a situation, it is upon the President to decide which leader will be in a position to grasp such majority support. This very area and power of the President fall under the domain of constitutional convention. Presently is a settled convention that it is not always the leader of a single largest party who will be called to be the leader of the majority in the house. The President will call that person who can command the majority whether or not he is the leader of the single largest party.
Such convention and discretion of the President have always fallen under the debate head during the time of election especially when no party is able to gain majority. Amendment of article 75 of the Constitution also recommended that provisions related to the appointment of the Prime Minister and the Chief Minister should be strengthened by the proper codification of these particular conventions but, no action has been taken till date.
Appointment of Prime Minister by President
Article 75(1): As per the constitution under normal circumstances, the leader of the majority in Lok Sabha, i.e. the house of the people, will be selected as the Prime Minister. But under conditions where the Prime Minister died in office or resigns, it is the President who will exercise his discretion and judgment while making the decision. Plus there may be circumstances where the party is without a recognized leader or where two parties can form a government, in these cases it is the President who will explore the possibility of identifying a person who can guide those two parties and can call for support of the Lok Sabha. Thus, at these points President will consider conventions regarding appointment procedure.
Dissolution of the house
The Lok Sabha and Vidhan Sabha dissolve after every 5 years which is the end of their term. However, there are circumstances when the house is dissolved before such tenure, and such decision is taken by the President or Governor, hence, bringing in light the conventions.
The controversy which revolves around such discretion is: whether the president has full discretion to dissolve the house or it has to act as per the expressed advice of the Council of Ministers headed by the Prime Minister? Article 74(1) of the Constitution clearly states that the President has to act as per the advice of the ministers, however in the case of Shamsher Singh vs State of Punjab the court enlisted certain reservations where the President is not obliged to act on advice. Such exceptions include a situation regarding the dismissal of the government where it has lost the majority and is denying leaving the office and the dissolution of the house is required. The court also held that Article 60 clearly states that the President must preserve, protect and defend the constitution, thus, the President in the spirit of constitution will be bound to reject the advice if such advice is unconstitutional. Hence in this way discretion is maintained and so does the role of conventions.
Constitutional Convention and Constitutionalism
Most constitutional scholars claim that there is more to the constitution than constitutional law. The concept of constitutional conventions has an aspect related to constitutionalism theory. The theory of constitutionalism put forward the idea that there should be authorities and power given to the government but at the same time, there should be limitations on those powers. Some scholars claim that these constitutional limitations should be inside the constitution in written form whereas some claim that it’s not necessary to be in written form.
So which principle does India follow? Concerning India, Dr. BR Ambedkar has constantly stressed the point that India has adopted the British model of Government. Similarly Ivor Jennings also asserted that the machinery of the Government of India is essentially British and the British constitutional conventions have been incorporated by India. Hence in India as per British convention, the limitations are not required to be in written form, therefore, bringing in force constitutional conventions for effectively restricting the government in the absence of any legal limitation.
Enforceability of Constitutional Conventions
The constitutional conventions are not enforceable by the courts as they are not laws or rules written in any legislation of the country.
Constitutional conventions are termed as rules, so what are rules? The rules are defined as “statements prescribing conduct that has to be taken in a given situation and which imposes an obligation on those who are regulated by the rule.” An important point that is highlighted under the definition is the term obligation which brings out the underlying meaning of constitutional convention. Where a person is under an obligation to act in a particular manner as per convention, the failure to act in such a prescribed manner gives rise to legitimate criticism in terms of constitutionality.
The conduct of the members of the Parliament is governed by various practices, customs, and constitutional conventions. Concerning traditions and custom, there is no strict penalty in case of failure; however, the same cannot be said for constitutional convention even though they are not enforced by the court. Hence it can be said that constitutional conventions are a binding set of rules but lack legal enforceability.
Indian judiciary on Constitutional Conventions
Constitutional Convention and 99th Amendment
Constitutional convention doesn’t fall under the domain of court’s interpretation but Judiciary as a custodian of the constitution has always come forward in interpreting the same. One of the prominent instances was discrediting the executive role in the appointment of the judges and thus upholding the existing constitutional convention regarding appointment and independence of the judiciary.
The history of the appointment case started with the first judge case where the Supreme Court said that the President or the Governor will appoint the judges after consultation with the Chief Justice of India and the Chief Justice of High Court. The Supreme Court also pointed out that “any convention which is against existing constitutional principles or is against the basic intention of any law cannot be accepted as a constitutional convention. Furthermore, the origin of such convention must be proved within its provision itself.”
Further, in the second judge case, the court reversed its ruling and said that consultation means concurrence. In this very case, Justice Kuldip Singh held that “there is no distinction between constitutional law and the existing, established constitutional convention. Both branches are the same and binding in the field of their operation.” The court also held that “once it is established that a particular convention exists and is operating then such a convention automatically becomes a part of the constitutional law and is as binding as the law of land.” Plus if any convention is serving well within its boundaries and there is no ample reason to discard such constitutional convention.
In the third judge case the Supreme Court followed the earlier ruling however said that collegium has to be made. Then came the 99th amendment which altered the role of judicial members and established National Judicial Commission in order to replace the existing collegium system. However, the judges of the Supreme Court struck down the same. The Supreme Court at this point held that “absolute power regarding appointment of the judges has to be made as per the pre-existing constitutional convention and not under the amendment made by the act.” Hence in this way Supreme Court recognized the binding character and relevance of constitutional convention.
In the case of State of Rajasthan vs Union of India, Chief Justice Beg held that “constitutional conventions are so attached and linked to constitutional provision which makes them essential for identifying the true function of constitutional provisions” hence, the two cannot be viewed apart. In Madras Bar Association vs Union of India, the National Tax Tribunal Act 2005 validity was challenged on the ground that it is inconsistent with convention regarding the essential characteristic of court. The court accepted the same and held the act unconstitutional by giving importance to existing conventions. Similarly in Consumer Education Research Society vs Union of India constitutional validity of an act was questioned on the ground that it would alter that who can compete for election to Parliament. Under the case one of the primary and potential grounds identified by the Supreme Court for holding an act invalid was “breach of constitutional conventions”.
Constitutional conventions are the tools by which the discretionary powers provided in the constitution are regulated. They are the set of binding unwritten rules which supplements the legal rules of the constitution. These conventions have filled the area and answered the questions where the law of the land was silent. Conventions over the period have aided the constitution in maintaining its flexibility and adaptability to existing values and needs.
Some conventions are well established and recognized in their standard form however there are some which are vague and manipulated by political purposes eventually giving rise to dispute, due to which codification of same seems the best option. But the flexibility attached with the conventions is its basic essence and the same cannot be taken away by claim for codification. The codification of the convention will eventually give jurisdiction to the court to enforce and interpret the same and hence will take away this flexibility.
There is no doubt that despite being uncodified rules court will still protect convention if needed, as evident by various mentioned cases. Moreover the act of codification will be an action taken against the intention of the makers of the Constitution who with a specific aim left certain discretions in the hand of a person occupying political post. The future is unpredictable, the environment is dynamic, hence, the rigid system of codified law cannot cover all situations that might arise in future thus, it is more reasonable to leave the conventions in its present state and detach the same with the idea of codification.
 Ashutosh Salil & Tanmay Amar, Constitutional Conventions: The Unwritten Maxims of the Constitution( Jun 20, 2021, 11:38 AM)
 Pranav Kaushal & Lakshay Bansal, Constitutional Convention: A Word Having Greater Significance As The Written Words Of The Constitution Itself (Jun 20, 2021, 12:17 PM)
 Constitutional Conventions Preserving Legal Structure of Government, Law Teacher( Jun 7, 2019) https://www.lawteacher.net/free-law-essays/constitutional-law/constitutional-conventions-preserving-legal-structure-of-government-constitutional-law-essay.php#citethis
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 Constitutional Conventions Obligation, Law Teacher ( Aug 7, 2019)
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 Collegium System for the Appointment of Judges, Dhristi IAS ( Jan 28, 2021)
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Author: Anshika Patel from U.P.E.S., Dehradun.