Instrument of Instruction: The Constituent Assembly’s leap of faith gone wrong

Earlier this week, Senior Advocate Arvind Datar wrote a column on constitutional conventions, emphasising their importance in constitutional discourse.

As India marks 75 years of its Constitution, Mr Datar proposed enumerating constitutional conventions since the year 1950 and ensuring their adherence by functionaries. The suggestion is particularly relevant today, as Governors appointed by the Union government increasingly undertake actions which are prima facie violative of constitutional provisions and conventions to assert authority over state governments.

Interestingly, the Constituent Assembly had initially sought to codify certain conventions – especially those concerning the President and Governors. However, this decision was unexpectedly reversed at the last moment. In this column, I will explore the debates within the Assembly and the rationale behind the withdrawal of the codification.

Before examining the debates, it is important to understand constitutional conventions. These are long-established practices and customs followed by constitutional functionaries, eventually acquiring the force of de facto uncodified law. The United Kingdom, which lacks a single written Constitution, is governed by a combination of statutory law, judicial decisions and conventions. When India drafted its Constitution, it codified some British parliamentary conventions while leaving others uncodified, with the expectation that they would still guide parliamentary practice. In cases of constitutional silence, the courts have relied on conventions as interpretative tool and, in some instances, even enforced them.

As discussed in a previous column, the key constitutional framework of our Constitution was shaped by the inputs of the Union Constitution Committee headed by Jawaharlal Nehru, and the Provincial Constitution Committee headed by Vallabhbhai Patel. As early as July 17, 1947, Patel informed the Assembly that a schedule incorporating conventions and traditions related to responsible governance would be drafted and incorporated in the Constitution. Initially, this schedule was to cover conventions surrounding the Governor, but later, the Drafting Committee led by Dr BR Ambedkar informed the Assembly that a similar schedule for the President would also be incorporated.

The codified version of these conventions was called the ‘Instrument of Instructions’ which provided guidelines on the exercise of discretionary powers by the President and the Governor. It should be noted that the adoption of the Westminster system meant that much like the monarchy in the UK, the President and the Governor would serve as titular heads of state with limited powers. They would be bound by the advice of the Council of Ministers except in specific scenarios - such as the appointment of the Prime Minister or Chief Minister after elections and the referral of bills by the Governor to the President - where they would exercise individual discretion. Emphasising its significance, Ambedkar compared the Instrument to the Directive Principles of State Policy, noting that it would guide the President and the Governor in exercising their discretionary powers in administrative matters.

The text of the Instrument of Instruction is available in The Framing of India's Constitution by B Siva Rao, and it highlights that the framers covered, among other matters, the appointment of the Prime Minister/Chief Minister after elections, the appointment of other state functionaries and reservation of a duly passed bill by the Governor for Presidential assent.

Dr Ambedkar submitted the draft Constitution to President Rajendra Prasad on February 21, 1948. It was introduced in the Assembly for discussion on November 4, 1948 and was finally, adopted on November 26, 1949. However, just days before its adoption, the Assembly members were taken by surprise. On October 11, 1949, TT Krishnamachari, a member of the Drafting Committee, informed the Assembly that he sought the deletion of Schedule IV, which contained the Instrument. The proceedings record that several members responded in unison, “How can it be deleted?”

The President then asked Dr Ambedkar to explain the government’s position, but Ambedkar ceded the floor to Krishnamachari. Justifying the deletion, Krishnamachari argued that the Instrument was unnecessary and superfluous. He contended that the President and the Governor should not be given explicit directions, and their exercise of powers should instead be guided by conventions that evolve over time.

The Committee’s reversal on the Instrument was unexpected, given that it had previously defended and justified its inclusion. Responding to Krishnamachari, member B Das remarked that the deletion of the Instrument came as a surprise “at the fag end of the day.” Dr Ambedkar later intervened and provided two additional reasons for its removal. First, he argued that the Instrument lacked enforceability, as there was no authority to ensure its compliance, rendering it redundant. Second, he maintained that since the President and the Governor had minimal discretionary power under the Constitution, the Instrument would serve no practical purpose.

Ambedkar’s reasoning was, at best, wishful. First, in recommending the removal of the Instrument, he assumed that given the limited discretion available to the President and Governor, they would neither possess the effective power to interfere with an elected government nor misuse their discretion for partisan objectives. However, history has proven otherwise. Time and again, Presidents and Governors have exploited constitutional silences and disregarded conventions to exercise their discretion in ways that undermine democratic governance.

Second, Ambedkar contended that the Instrument was superfluous because it lacked an enforcement mechanism. However, he overlooked the fact that even without legal enforceability, a violation of the Instrument would have attracted public censure. Any government that sought to use the President or Governor for partisan ends would have been compelled to justify its departure from constitutional provisions and conventions. Moreover, if enforcement was indeed a concern, the Drafting Committee could have provided for judicial review over a functionary’s failure to adhere to the Instrument, rather than discarding it altogether.

Since independence, Union-appointed Governors have repeatedly sought to exercise powers beyond their constitutional mandate - whether by arbitrarily appointing Chief Ministers, withholding assent to bills through pocket vetoes, or refusing to summon the state legislature in a timely manner. This trend has been particularly pronounced when the Union government commands a supermajority in Parliament. In such situations, a codified Instrument would have served as a crucial safeguard, deterring constitutional functionaries from exceeding their authority.

Fortunately, where the Constituent Assembly erred, the judiciary has intervened. Time and again, courts have relied on constitutional conventions to curb executive overreach and uphold the integrity of constitutional provisions and practices.

Swapnil Tripathi is an Advocate and a DPhil (in Law) Student, University of Oxford. He tweets at S_Tripathi07.