“Constitutional Convention is like a medicine which can cure even that disease which cannot be cured by the doctor”, in simple words it is the convention which can cure all difficult situation where there is no law to govern such situations”
The study of the constitutional convention is always anchored on an assumption that has so far remained unchallenged. The constitution of India comprises both written rules enforced by the courts and unwritten rules or principles necessary for constitutional government. Talking the constitutional conventions they are the informal and uncodified procedural agreement that is followed by the institution of the state. Written rules mandate that they are to be followed in particular specified situations and on the other hand unwritten rules come into action when there is no given written rule to cover the situation at hand. Constitutional have always been regarded to be the rules of political practices. These conventions have a binding effect on those who apply these constitutional conventions, however, these conventions are not considered laws as they are not enforced by the courts nor they are made by the legislature, still, they are considered to be important.
In India, these constitutional conventions tend to play a very important role apart from the other laws. Can anybody believe in the fact that the Indian Constitution being the lengthiest, bulkiest and most detailed constitution in the world also follows the constitutional conventions? This clearly specifies that the Indian constitution in itself does not deal with all aspects. It is due to this fact only that constitutional conventions are being followed. Convention has been considered as a tool or weapon which is used to deal with the complex situation where there is no specified law. This convention has been considered medicine to cure a disease which is not been able to be cured by a doctor in other words where there is no law constitutional conventions come into play.
“Convention exist to protect some principles of the constitution that would be negatively impacted”- Andrew Heard
Constitutional Conventions are used as an instrument of national cooperation and the spirit of cooperation is the essential feature of the constitution. They are the rules elaborated for effecting that cooperation.[1] These conventions are always referred to as an informal and uncodified procedural agreement that has been formed by the state to tackle that situation which has not been well inter-operated in the constitution. These conventions have to play a vital role where the law is silent. Since it is also an evident fact that these conventions are not enforced in the courts because the very important reason that is stated behind this is that the constitutional convention is not enumerated into the category of law and rules.
These conventions are not interpreted by the court nor they are made by the legislature but still they assume importance in the modern scenario. Does anybody found the reason behind this? India is only the country with the highest document of laws and has framed the world’s lengthiest, bulkiest and most detailed constitution of the world. But still, India is dependent on these constitutional conventions for proper functioning. Why this is so? The reason is very simple to understand. The main purpose in order to have the constitutional convention is that these conventions ensure that the legal framework of the Constitution retains its flexibility to operate in tune with the prevailing constitutional values of the period. .
Although conventions are not legally enforceable in the court and the sanction behind these conventions is moral and political, some conventions of the constitution which set the norms of behaviour of those in power or which regulate the working of various parts of the constitution and their relation to one another may be as important if not of greater significance as the written word of the constitution itself. This is particularly true of the role of the “Constitutional Convention” in a system of parliamentary democracy having the constitutional distribution of powers between two or more levels of government.
Often constitutional conventions are more important than written constitutional provisions. Let’s take an instance to clarify the importance of the Constitutional Convention; the President of India is empowered by the constitution to appoint the Prime Minister but the constitution provides no guidance as to who should be appointed as Prime Minister. Here in this complex situation, the constitutional convention came into action by guiding the President in discharging his duty mentioned in the constitution.
The term constitutional convention was first used by British Legal scholar A.V Dicey.[2] Dicey wrote that the actions of political actors and institutions are governed by two parallel and complementary sets of rules:
- The one set of rules is in the strictest sense “laws” since they are rules which (whether written or unwritten, whether enacted by statute or derived from the mass of custom, tradition, or judge-made maxims known (as the common law) are enforced by the courts.
- The other set of rules consists of conventions, understandings, habits, or practices that—though they may regulate the conduct of the several members of the sovereign power, the Ministry, or other officials—are not really laws, since they are not enforced by the courts. This portion of constitutional law may, for the sake of distinction, be termed the “conventions of the constitution”, or constitutional morality.[3]
Another scholar who defined well the aspect of these conventions was Peter Hogg and he defined it as follows-
“Conventions are rules of the constitution which are not enforced by the law courts. Because they are not enforced by the law courts they are best regarded as non-legal rules, but because they do in fact regulate the working of the constitution they are an important concern of the constitutional lawyer. What conventions do is to prescribe the way in which legal powers shall be exercised. Some conventions have the effect of transferring effective power from the legal holder to another official or institution. Other conventions limit an apparently broad power, or even prescribe that a legal power shall not be exercised at all”.[4]
Conclusion
According to Dicey, constitutional conventions are means whereby the discretionary authority of the government is regulated. The main purpose of these conventions is to guide the use of constitutional discretion. Thus, every time there is a general election or there might be a situation in which members can request for dissolution of the House of People, the question that always arises is whom will the President invite to form the next government? What if the President invites someone to form a government who does not have a clear majority in the Lok Sabha? Will the President need the advice of the Cabinet to dissolve the House? These are some of the important questions to which the Constitution provides no answer to anyone else.
This might be that complex situation in which no law or no constitution of a country has the answer. The thing that solves all these situations is “Constitutional conventions”. These constitutional conventions are referred to as “Catalyst” which make certain things possible which in their absence would not be possible. It is also an evident fact that some of the constitutional conventions are well established and may be relied upon by those conventions absolutely. While some of these conventions are vague and may lead to manipulation for political purposes. There has always been a demand for the codification of these constitutional conventions but if these conventions are codified then in such a scenario the nature of the flexibility of these conventions will be lost.
Therefore, the main purpose of the Constitutional Conventions is to ensure that the legal framework of the Constitution retains its flexibility to operate in tune with the prevailing constitutional values of the period, or even in those times of complex situations it helps the Constitution to adapt and make amends according to the needs and desire of the changing times, as the Founders of our Constitution couldn’t have foreseen and safeguarded the Constitution from future loopholes and hence left certain matters to be governed by the constitutional conventions as they are as important, and have “a greater significance, as the written word of the Constitution itself”.
[1]Ivor Jennings: The Law and the Constitution 13 (1979).
[2] A. V Dicey “Introduction to the Study of the Law of the Constitution” 1883
[3]AV Dicey, Introduction to the Study of the Law of the Constitution, 10th edition, pp. 23-24.
[4]Peter Hogg, Constitutional Law of Canada, p. 7.
