In his book, The Law and the Constitution, 5^th ed., p.80-83, Prof. Ivor Jennings has traced the expression “constitutional conventions” to Prof. A.V. Dicey’s Law of Constitution, 9^th ed., pp. 22-23. However, a reference to these conventions was first made by John Stuart Mill in Representative Government, 1^st ed., 1865, p.4, who referred to them as “unwritten maxims of the constitution”. 

Sir William Anson, in Law and Customs of the Constitution, Vol.I, 4^th ed., p.23 refers to them as “customs of the constitution”. (Interestingly, this edition was by Sir Maurice Gwyer, Chief Justice of the Federal Court of India). Prof. Jennings points out that constitutional conventions are important because they provide the flesh which clothes the dry bones of the law; they make the legal constitution work as new needs arise in the life of a nation. 

Constitutional conventions are practices or precedents that have been followed by the institutions of Government. Prof. Jennings has laid down three tests to identify constitutional conventions:

1. What the precedents are behind the practice sought to be established as a convention?

2. Whether the actors involved in the precedents believed that they were bound by a rule?

3. Whether there is a reason for the rule? 

These rules have been cited with approval by the Supreme Court of India in Supreme Court Advocates on Record Association v. Union of India, (1993) 4 SCC 441. In K. Lakshminarayanan v. Union of India, (2020) 14 SCC 664, 706 (para 82), the Supreme Court had to consider whether there was a constitutional convention that required any nomination to the Puducherry Legislative Assembly to emanate from the Chief Minister and could be made only with his concurrence. The court applied the above test and found out that there were no uniform precedents that supported such a convention. The facts showed that the Central Government had not accepted the recommendation of the Chief Minister as binding. Merely because the Central Government has accepted the recommendation of the Chief Minister in the past, it did not result in a constitutional convention.

While Prof. Jennings treated constitutional conventions as not binding, the courts in India have taken a different view and, as pointed out later, have applied it even to test the validity of a legislation. However, Prof. Jennings refers to a commentary by the German jurist, Oppenheimer, who observed that in Germany, constitutional conventions can not only supplement but also modify express provisions. (Oppenheimer, The Constitution of the German Republic, p.9)

In India, courts have recognised that constitutional conventions have an important role to play in understanding the real purpose and function of a constitutional provision. (See State of Rajasthan v. Union of India, (1997) 3 SCC 592, 621 at para 56). Justice Kuldip Singh, in the Second Judges case, has pointed out that constitutional conventions when linked with constitutional provisions cannot be viewed separately. He held that a written constitution cannot provide for every eventuality and the gaps that may arise can be filled up by constitutional conventions (Supreme Court Advocates on Record Association v. Union of India, (1993) 4 SCC 441, 651-652) 

However, it has been also held that constitutional conventions cannot override a specific provision of the Constitution, but can only supplement it. This makes the Indian view different from the views in the United Kingdom and in Germany. The net result is that the High Courts and the Supreme Court are entitled to apply constitutional conventions to interpret constitutional provisions and even decide the validity of statutory provisions.

In U.N.R Rao v. Indira Gandhi, AIR  1971 SC 1002, the Supreme Court held that Article 75(3) ought to be interpreted by having due regard to conventions that prevailed in the United Kingdom at the time our Constitution was framed.  It was also held that if a constitutional provision is clear, it will prevail over any constitutional convention that existed in the United Kingdom. 

When conventions have been judicially recognised, they are no less important than the rule of law (Indian Union Muslim League v. Union of India, AIR 1998 Pat. 156 : 1998 SCC OnLine Patna 470). Constitutional conventions have been applied to cases where the principles of separation of power had to be enforced. In Madras Bar Association v. Union of India, (2014) 10 SCC 1, 190 and 217. Section 7 of the National Tax Tribunal Act, 2005 was held to be unconstitutional since it violated a constitutional convention by transferring judicial power to decide substantial questions of law to a Tax Tribunal, which was only a quasi-judicial authority.  Nariman J. held that it was fundamental to our jurisprudence that substantial questions of law could only be decided by the High Courts and the Supreme Court. Similarly, the constitutional convention of the primacy of the judiciary in making judicial appointments was applied by the Supreme Court in declaring the National Judicial Appointments Commission (NJAC), created by the 99^th Amendment Act, 2014, as being unconstitutional. Justice Lokur noted that the convention of accepting the Chief Justice’s advice or opinion while appointing a judge to a superior court, existed from the days of the Government of India Act, 1919.

As we celebrate 75 years of Constitution, it is perhaps time to specify or enumerate the constitutional conventions that have crystallised from 1950 onwards. These constitutional conventions must be respected. The strengthening of institutions of Government depends not only on the written text but on constitutional conventions as well. These must be followed if these institutions are to fulfil their constitutional role. The practice of ignoring constitutional conventions for short-term benefits will eventually weaken the pillars of Government. For instance, it was always the constitutional convention to appoint the seniormost puisne judge as Chief Justice of India. This convention was departed in April 1973, when the three seniormost judges were superseded and Justice A.N. Ray was appointed as the Chief Justice. The breach of this constitutional convention caused long-term damage to judicial independence. Thus, it is important that every Government resists the temptation to ignore these conventions for short-term gains or to settle political scores.

Arvind P. Datar is a Senior Advocate.