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Constitutional Convention

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Biyas Datta
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24 views

Constitutional Convention

Uploaded by

Biyas Datta
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Conventions of the Constitution” or “Constitutional Morality”

“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 behaviour of
various personalities but are not enforceable in the court of law”
.
 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:-
 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.

Appointment of Prime Minister by President


Article 75(1)[8]: 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.[9] 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 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.”[13] 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.

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[14] 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.”

In the case of State of Rajasthan vs Union of India,[19] 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,[20] 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”.

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