Constitutional convention vs Constitutional law

The most elaborate consideration of Constitutional convention was undertaken by the Constitution Bench of this Court in Supreme Court Advocate on record Association and others vs. Union of India, (1993) 4 SCC 441, Justice Kuldip Singh in his judgment has elaborately considered the Constitutional convention. This Court held that conventions are found in all established Constitutions and soon develop even in the newest. In paragraphs 340 and 341 following was laid down:

“340. The written Constitutions cannot provide for every eventuality. Constitutional institutions are often created by the provisions which are generally worded. Such provisions are interpreted with the help of conventions which grow with the passage of time. Conventions are vital insofar as they fill up the gaps in the Constitution itself, help solve problems of interpretation, and allow for the future development of the constitutional framework. Whatever the nature of the Constitution, a great deal may be left unsaid in legal rules allowing enormous discretion to the constitutional functionaries. Conventions regulate the exercise of that discretion.

A power which, juridically, is conferred upon a person or body of persons may be transferred, guided, or canalised by the operation of the conventional rule. K.C. Wheare in his book Modern Constitutions (1967 Edn.) elaborates such a rule as under: “What often happens is that powers granted in a Constitution are indeed exercised but that, while they are in law exercised by those to whom they are granted, they are in practice exercised by some other person or body of persons. Convention, in short, transfers powers granted in a Constitution from one person to another.”

341. The primary role of conventions is to regulate the exercise of discretion – presumably to guard against the irresponsible abuse of powers. Colin R. Munro in his book Studies in Constitutional Law (1987 Edn.) has summed up the field of operation of the conventions in the following words: “Some of the most important conventions, therefore, are, as Dicey said, concerned with ‘the discretionary powers of the Crown’ and how they should be exercised. But it is not only in connection with executive government and legislatureexecutive relations that we find such rules and practices in operation. They may be found in other spheres of constitutional activity too; for example, in relations between the Houses of Parliament and in the workings of each House, in the legislative process, in judicial administration and judicial behaviour, in the civil service, in local government, and in the relations with other members of the Commonwealth.””

Supreme  Court held that every act by a constitutional authority is a ‘precedent’ in the sense of an example which may or may not be followed in subsequent similar cases, but a long series of precedents all pointing in the same direction is very good evidence of a convention. On the requirements for establishing the existence of a convention, this Court quoted with approval the test laid down by Sir W. Ivor Jennings in ‘The Law and the Constitution’. In paragraphs 345 and 346 following was laid down:

“345. Every act by a constitutional authority is a ‘precedent’ in the sense of an example which may or may not be followed in subsequent similar cases, but a long series of precedents all pointing in the same direction is very good evidence of a convention.

346. The requirements for establishing the existence of a convention have been succinctly laid down by Sir W. Ivor Jennings in The Law and the Constitution, Fifth Edn., (1959) as under: “We have to ask ourselves three questions: first, what are the precedents; secondly, did the actors in the precedents believe that they were bound by a rule; and thirdly, is there a reason for the rule? A single precedent with a good reason may be enough to establish the rule. A whole string of precedents without such a reason will be of no avail, unless it is perfectly certain that the persons concerned regarded them as bound by it.””

Supreme Court after referring to several treatises on the constitutional law held that the constitutional functionaries have to follow the same as a binding precedent. In paragraphs 351 and 353 following was held:

“351. It is not necessary for us to delve into this subject any more. We agree that a convention while it is a convention is to be distinguished from the law. But this does not mean that what was formerly a convention cannot later become law. When customary rules are recognised and enforced by courts as law, there is no reason why a convention cannot be crystallized into a law and become enforceable. “Conventions can become law also by judicial recognition” stated K.C. Wheare in Modern Constitution (1966 Edn.). It is no doubt correct that the existence of a particular convention is to be established by evidence on the basis of historical events and expert factual submissions. But once it is established in the court of law that a particular convention exists and the constitutional functionaries are following the same as a binding precedent then there is no justification to deny such a convention the status of law.

Supreme  Court are of the view that there is no distinction between the “constitutional law” and an established “constitutional convention” and both are binding in the field of their operation. Once it is established to the satisfaction of the Court that a particular convention exists and is operating then the convention becomes a part of the “constitutional law” of the land and can be enforced in the like manner.”

SourceK. Lakshminarayanan Vs. Union of India & ANR. [[Civil Appeal No.11887 of 2018 arising out of SLP (C) No. 8249 of 2018]