Operation of the conventions

All power – judicial power being no exception – is held accountable in a modern Constitution. Holders of power too are expected to live by the standards they set, interpret, or enforce, at least to the extent their office demands. Conventions and practices, long followed, are known to be legitimate sources, and as binding upon those concerned, as the express provisions themselves.

This was emphasised, by a nine-Judges Bench in Supreme Court Advocates-on-Record Association’s case:

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 Edition) 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 legislature-executive 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.

…Sir Ivor Jennings puts it as under:

The laws provide only a framework; those who put the laws into operation give the framework a meaning and fill in the interstices. Those who take decisions create precedents which others tend to follow, and when they have been followed long enough they acquire the sanctity and the respectability of age. They not only are followed but they have to be followed.

…We 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.

(emphasis supplied)


Categories: CIVIL