CONSTITUTIONAL LAW/JURISPRUDENCE

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Constitutional Conventions: The Unwritten Maxims of the Constitution
by Ashutosh Salil & Tanmay Amar*

Cite as : 2005 PL WebJour 3

The Constitution of a country comprises both written rules enforced by courts, and "unwritten" rules or principles necessary for constitutional government. Written rules mandate that they be followed in a particular specified situation, while unwritten rules come into play when the situation at hand is not covered by the written rules. Constitutional conventions are rules of political practice, which are regarded as binding by those to whom they apply. However, they are not laws, as they are not enforced by courts or by the Houses of Parliament.1 Often constitutional conventions are more important than written constitutional provisions. For example, the President is empowered by the Constitution to appoint the Prime Minister2, but the Constitution provides no guidance as to who should be appointed as Prime Minister. Here conventions regarding the appointment of the Prime Minister play an important role in guiding the President.

Conventions are an instrument of national cooperation and the spirit of cooperation is as necessary as the Constitution. They are rules elaborated for effecting that cooperation.3

The authors have confined their study to the two most debated and controversial constitutional conventions—appointment of the Prime Minister and dissolution of the Lok Sabha. The conventions are compared with British conventions since most of our constitutional practices are derived from the United Kingdom. Instances from Indian politics are referred to in order to make the study more comprehensive and meaningful.

Constitutional conventions: A brief study

Following are some of the characteristics of the conventions4:

(i) Conventions are rules that define non-legal rights, powers and obligations of office-holders in the three branches of Government, or the relations between governments or government organs. (ii) Conventions in most cases can be stated only in general terms, their applicability in some circumstances being clear, but in other circumstances uncertain and debatable. (iii) They are distinguishable from rules of law, though they may be equally important, or more important. They may modify the application or enforcement of rules of law.

Constitutional conventions develop over time and are not outlined in any document.5 Conventions grow out of practices and precedents determine their existence. Such precedents are not authoritative like the precedents of a court of law. Every act is a precedent, but not every precedent creates a rule.6 Sir Ivor Jennings suggested that in order to establish a convention three questions must be asked: firstly, what are the precedents; secondly, did the actors in the precedents believe that they were bound by a rule; and thirdly, whether there is a good reason for the rule?7 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 the persons concerned regard themselves to be bound by it.8

It is largely through Dicey's influence that the term "convention" has been accepted to describe a constitutional obligation, obedience to which is secured despite the absence of the ordinary means of enforcing the obligation in a court of law. It must be noted that the obligations do not necessarily, or indeed usually, derive from agreement. It is more likely to originate from customs or practices arising out of sheer expediency.9 Conventions grow out of and are modified by practice. At any given time it may be difficult to say whether or not a practice has become a convention.10 Conventions do not come from a certain number of sources, their origins are amorphous and nobody has the function of deciding whether conventions exist or not.

The Choice of a Prime Minister

India has the bulkiest Constitution and yet certain aspects are left to conventions. One of them is the appointment of Prime Minister by the President.11 In England, it is the monarchy whereas in India it is the President who makes this choice. This choice demands independence of status and familiarity with political conditions, but no method of choice can altogether avoid bias. The nature of the monarch's choice necessarily depends upon the status of parties in the House of Commons. If a party has a clear majority, its recognised leader will be the Prime Minister.12

A completely different situation arises where no party gets a majority in the legislature. Here two possibilities arise—the formation of a coalition government or the formation of a minority government, as another dissolution at that time is not practicable.12 It is an accepted rule that when a government is defeated, either in Parliament or at the polls, the monarch should send for the leader of the opposition. This rule is based on the assumption of impartiality of the crown.12

It is the monarch's duty to find a government. It is no less the duty of political leaders to assist him. This duty is threefold—(i) A political leader must, if asked, place his views before the monarch. (ii) If the official opposition defeats the Government, it is the duty of its leaders to form a new government or to advise the monarch as to an alternative. (iii) It is the duty of the Government to remain in office as long as it can, without infringing constitutional principles.13

The position with respect to appointment of Prime Minister is similar in India since our constitutional practices are to a large extent derived from English usages, customs and practices.14 Article 75(1) of the Indian Constitution gives the President the right to appoint the Prime Minister. In normal circumstances it is the leader of the majority in the House of the People (Lok Sabha). But, in circumstances where the Prime Minister dies in office or resigns, the President will have to exercise his personal judgment. The party may have no recognised leader, or either of the two parties may be able to form a government and command the support of the House of the People. In such circumstances the President may explore the possibility of finding a person who could form a coalition with the help of two or more parties and command the support of the Lok Sabha. It was such discretion that President Reddy exercised in 1979 after the fall of the Janta Ministry in inviting Charan Singh to form the ministry and also in not inviting Jagjivan Ram to do so after Charan Singh resigned and advised the dissolution of the House.15

Options in a hung Lok Sabha

Article 75(1) of the Constitution states that the President shall appoint the Prime Minister. Clause (3) adds:

"75. (3) The Council of Ministers shall be collectively responsible to the House of the People."

Ergo, the Prime Minister must command a majority in the House at the time of the vote of confidence. However, in an uncertain situation, say in the case of hung Lok Sabha, how is the President to determine which of the party leaders will manage to secure majority support?16

Until they dropped it in the final stages of the proceedings of the Constituent Assembly on 11-10-1949, the framers of the Constitution had proposed instruments of instructions to guide the President and the Governors. Para two of the instructions to the President enjoined him to "appoint a person who has been found by him most likely to command a stable majority in Parliament as the Prime Minister".17 This is of little help except in that it explicitly permits the President to act on probabilities. A mistaken assessment will invite charges of partisanship.

In a letter dated 17-5-1967 to three former Chief Justices of India, Justices Mahajan, Sarkar and Gajendragadkar and eminent constitutional experts like M.C. Setalvad and H.M. Seervai, the then Home Minister Y.B. Chavan mentioned three views on the appointment of the Chief Minister and sought their legal opinion on it.18 The three views were: (i) The leader of the largest party in the legislature should be invited to form the Government irrespective of whether or not such a party commands a stable majority. (ii) If the party in power failed to secure an absolute majority in the newly- elected legislature, the leader of that party should not be invited to form the Government because the electoral verdict should be regarded as, in effect, disqualifying the party from holding office for another term. (iii) The Governor should make endeavour to appoint a person who is most likely to command a majority in the legislature.19

There was complete agreement on the third, an obvious choice but of little practical value. The Sarkaria Commission's report did not agree with this and propounded its own rules.20 The subject was also discussed in the report of the Committee of Governors, 1971, appointed by the President to study and formulate norms and conventions on the role of the Governors. It rejected the rigid arithmetical test of the leader of the largest single party.21 Three British works on constitutional and administrative law share this view. S.A. Smith speaks of a ministry "with a reasonable prospect of maintaining itself in office". Wade and Bradley opt for "that person who is in the best position to receive the support of the majority". Hood Phillips' formulation is "a ministry that can hold a majority in the House".22 The above authorities expose the absurdity of the then President R. Venkataraman's "objective" test of summoning the parties in the order of their numerical strength, that he propounded as a great contribution to constitutional practice.21

British precedent and the dicta of eminent authorities do not support any such arithmetical test. Another example of such absurdity is that of Dr. S.D. Sharma's decision to appoint Mr Vajpayee as the Prime Minister on 15-5-1996. The sole consideration behind Mr Sharma's decision seemed to be the "arithmetic" test that Mr Venkataraman talked about in his book, My Presidential Years. Such decisions lower the image of the high office of the President, more so, when the appointed Prime Minister fails to secure the majority in the House as it happened in the case of Mr Vajpayee, whose Government fell within 13 days of its appointment. Yet another example will be that of the case of Bihar where the Governor decided to ask Mr Nitish Kumar to form the Government despite the fact he was in no position to command majority in the House, and had to ultimately resign. Such decisions sully the image of the office of the President and Governors, and also go against the spirit of democracy.

Being leader of the single largest party does not necessarily mean being the leader of the majority members of the House. A person need not be the leader of the single largest party in the House to command the support of the House. The practice now more or less seems to be settled that the leader of the party who is able to secure the support of the House should be invited to form the Government. This again brings us back to the question, when and how does a practice become a convention? Ivor Jennings's three-stage test mentioned before might be helpful in deciding whether a practice has crystallised into a convention or not but that is not a conclusive test for determining the existence of a convention. There has been demand from several quarters to codify the convention with respect to the appointment of Prime Minister and Chief Ministers. The reason given is that having a written Constitution, we should not leave the appointments to these high offices on conventions.23 The controversy invariably surrounding every appointment (in cases where no one party has absolute majority) of the Prime Minister and Chief Ministers further strengthens the demand for codification of conventions. One of the suggestions that have been put forward is the amendment of Article 75 of the Constitution so as to have the following effect:24 "The Prime Minister shall be appointed by the President on the recommendation of the House of the People which recommendation shall be binding on the President". Thus the onus will be on the legislature to choose the Prime Minister, than on the President. Such a move is welcome since it will help in avoiding confusion and controversies in the appointment of the Prime Minister and Chief Ministers. However, at the same time it must also be kept in mind that a Constitution cannot contain all and sundry provisions concerning a matter including that for the appointment of Prime Minister. Moreover, the discretion to appoint the Prime Minister has been vested in none other than the President who is the head of the republic. Hence, the presumption that he will act impartially should always weigh in his favour.

Dissolution of the House

The Lok Sabha and the Vidhan Sabha of each State are dissolved at the end of their terms, every five years. However, this article only deals with irregular dissolutions, which occur before the term of a House is over. The theory behind the right to advise dissolution is that when the Government loses the confidence of the House, it may, instead of resigning, assert that the House itself has ceased to reflect the will of the electorate, which constitutes the political sovereign. Dissolution is thus an appeal to the electorate.25 Two major controversies in the dissolution of the House are first, whether the advice to dissolve the House should be tendered by the Prime Minister alone or the Cabinet as a whole and second, whether the President's discretion with respect to dissolution can override express advice to the contrary tendered by the council of Ministers. The former controversy had been raging among British jurists particularly in the last century, but has not been of much relevance in India, so the discussion here will be confined to the Presidential discretion in dissolving the House.

President's discretion

The question has often come up whether it is binding upon the President to follow the advice tendered by the Prime Minister, regarding dissolution of the House, when the Prime Minster has lost the confidence of the House. When the Prime Minister enjoys the support of the House, advice to dissolve the House would be binding, since no alternative government is possible. Article 74(1) provides that the President shall act in accordance with the advice tendered by the Council of Ministers with the Prime Minister at its head. However in the case of Samsher Singh v. State of Punjab26, Krishna Iyer, J. laid down certain exceptions in which the President was not obligated to act in accordance with the advice given by the Council of Ministers and was required to exercise his discretion. Such instances included situations regarding the dismissal of a government which had lost its majority in the House, but was refusing to quit office and the dissolution of the House of the People was required. However, the judgment also stated that even in cases regarding dissolution, the President should avoid getting involved in politics and act on the advice of the Prime Minister. Thus, the limits of the President's discretion are carefully circumscribed. However, the President, according to his oath of office, has to preserve, protect and defend the Constitution.27 So the President should not be bound by the unconstitutional advice of a ministry to dissolve the House. The House represents the will of the electorate, but the will of the electorate is subject to the Constitution.28 Hence the President will be bound to reject the advice if such advice is against the spirit of the Constitution.

As per Dr. Eugene Forsey, in a multi-party system (as prevalent in India) it may be necessary for the President to refuse dissolution and consult the leaders of the Opposition parties or call on such persons to form a government. If all possible alternative Prime Ministers decline the task, then the only course left open is to allow the present government's proposal for dissolution.29

President's independent initiative

There is a conflict of views regarding whether the head of the State can dissolve Parliament without such advice being given. There have been two instances in the history of Britain when the Crown dismissed a ministry that commanded the confidence of the House of Commons and dissolved the House.

The first instance was in 1784. The King, George III removed the Prime Minister from his office and installed Pitt as Prime Minister. He proceeded to dissolve the House of Commons and in the ensuing elections, Pitt won a decisive victory. But the question was raised whether the actions of George III were constitutional. George III believed that the House of Commons no longer represented the wishes of the nation. He was proved right in the elections. The authority of the House of Commons is derived from the fact that it represents the will of the nation. The chief object of dissolution should be to ensure that the will of Parliament comes in conformity with the nation's will. Hence, George III's actions are regarded as constitutional.30 In India, such action will be regarded as constitutional in exceptional cases, when the Council of Ministers acts in blatant disregard of constitutional practices, such as when the Ministry refuses to resign or advise dissolution after losing the vote of confidence in the Lok Sabha.

The second such instance occurred in 1834 when George IV dismissed the Prime Minister and appointed Peel in his place and then went on to dissolve Parliament. The ensuing elections went against Peel. From a constitutional point of view, the dissolution is regarded as a mistake as the belief that the House of Commons had stopped representing the will of the nation was wrong. However, the essential point to note is that both the dissolutions admit the principle that it is the verdict of the political sovereign (the people of the State), which ultimately determines the right of the Cabinet to remain in office. Dissolution is required when the wishes of the nation are presumed to be different from the wishes of the legislature. Hence dissolution has been described by Dicey as an appeal from the legal sovereign (the Crown) to the political sovereign.31

Another such case occurred in Australia in 1975, when the Governor- General of Australia dismissed Gough Whitlam's Labour Government which held a majority in the lower House.32

It has been argued that such a power needs to be retained by the Head of the State as it is intended to secure the ultimate supremacy of the electorate as the true political sovereign. However, some jurists argue against the granting of this power to the Head of the State. Walter Bagehot, a leading jurist, described the dissolution of 1834 as "a royal onslaught" and stated that monarchs should leave a Ministry trusted by Parliament to the judgment of Parliament.32

The power of control over the executive lies in the legislature. With the parliamentary process and opposition functioning correctly, there should be no reason for a situation to arise in which the power to dissolve the House needs to be taken independently by the Head of the State. A situation in which the Head of the State is obliged to protect the "sovereignty of the people" against its democratically elected Parliament would be an extreme paradox.32

In India, the question came up when the V.P. Singh government resigned in 1990, without advising the President to dissolve the Lok Sabha. The President, Mr R. Venkataraman held the view that Prime Ministerial advice was a must for dissolution. However, when Mr Chandrashekhar resigned as Prime Minister in 1991 and advised dissolution of the House, Mr Venkataraman said that the question of dissolution of the Lok Sabha would be considered separately. The President then waited a whole week before announcing the dissolution of the Lok Sabha on 13-3-1991 and stated that the advice of the Prime Minister was not the sole reason for taking the decision.33

Dr. B.R. Ambedkar had told the Constituent Assembly on 4th November, 1948 that the President could do nothing contrary to the advice of the Ministers nor could he do anything without their advice.34 But, on 30-12-1948 Dr. Ambedkar stated that dissolution and the appointment of the Prime Minister are two prerogatives that the President will enjoy.

No instance has occurred in India where the President dissolved the legislature on his own initiative. It is believed that such wide power to dissolve the House without advice cannot be vested in a single individual, who has not even been elected directly by the people and is not responsible to Parliament either. Moreover, it is not possible to work out adequate safeguards to ensure that such power is not abused. Therefore, the President cannot, on his own initiative, dissolve the Lok Sabha, except under very exceptional cases, when the Council of Ministers acts in blatant disregard of constitutional practices, as mentioned above. However, such situations are unlikely to arise in a parliamentary democracy where the Government goes to polls every 5 years.

Refusal to dissolution

The second question regards the power of the President to refuse to dissolve the House on being advised to do so. The monarch has to act upon the advice of the Prime Minister unless prepared to dismiss him from office.35 Such refusals have been witnessed in former dominions of Britain. In 1926, the Governor-General of Canada, Lord Byng refused dissolution to the Liberal Prime Minister Mackenzie King and instead dismissed him and invited the Conservative leader Meighen to form the Government. In 1939, the Governor-General of South Africa, Sir Patrick Duncan refused dissolution to Prime Minister General Hertzog, whose proposal that South Africa remain neutral in the Second World War was defeated in Parliament, and invited General Smuts to form a government. Sir Ivor Jennings is of the opinion that the prerogative to refuse dissolution lies with the Crown in theory alone and cannot be exercised in practice.36

Article 13.2.2 of the Irish Constitution allows the President to refuse dissolution only when the Government has lost majority support in the House. In 1994, the coalition government of Fianna Fail and the Labour Party collapsed. Instead of dissolving the House, the President invited another coalition government to assume office as it was better not to terminate Parliament and force fresh elections on people when an alternative government was possible.37

The advice to dissolve the House should be refused if the following situations exist:38 (i) The existing Parliament is still viable and capable of doing its job. (ii) A general election would be detrimental to national economy. (iii) The President could find another Prime Minister who would carry on his government for a reasonable period with a working majority in the House.

Further, other considerations such as how long the House has been in existence may be taken into account. The President may be reluctant to grant dissolution to a newly constituted House.

Till date, the President has never refused to dissolve the legislature, on being advised to do so, but if the President is satisfied as to the existence of the above conditions, then the possibility of refusal cannot be ruled out. Dr. Ambedkar was of the opinion that when the President receives advice for dissolution, he should test the feelings of the House if it agrees that there should be dissolution or it agrees that the affairs should be carried on with some other leader.39

The National Commission to review the working of the Constitution argued that one of the methods of restoring the stability and cohesion of functioning in the parliamentary system of government is to strengthen the institution of the Prime Minister and one of the ways of doing so is to empower the Prime Minister to advise dissolution of the House whenever he thinks that the House has exhausted its mandate and a fresh appeal to the electorate is called for. But, the proposition contemplates such a power in the Prime Minister even after he has lost confidence of the House. It is based on the view that the recognition of such power in the Prime Minister would impart much needed stability to the political system in the country and would enable the leader of the House to address determinedly issues of development, national security, etc. But, the Commission finally concluded that the present constitutional position needs no modification.40

Conclusion

As per Dicey, conventions are means whereby the discretionary authority of governmental organs is regulated.41 The main purpose of conventions is to guide the use of constitutional discretion. Thus, every time there is a general election or a request for dissolution of the House of People, the questions that start doing rounds are—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 heed to the advice of the Cabinet to dissolve the House? These are some of the important questions to which the Constitution provides no answer to.

Some conventions are well-established and may be relied upon absolutely, while some are vague and may lead to manipulation for political purposes. For example, appointment of the Prime Minister is to be done by the President and the prevailing convention is that the person enjoying support of the absolute majority of the House concerned is appointed to the respective office. The snag lies in ascertaining that support. The task of the President becomes difficult and open to criticism, as he has to often follow vague conventions and foreign precedents. The conventions being vague, the President may go on appointing the leader of the largest party in the Lok Sabha as the Prime Minister, despite the fact that the appointed Prime Minister is not in a position to secure majority in the Lok Sabha. The fractured verdict given by the electorates in the recent past has further exacerbated the problems of the President in appointing Prime Ministers.

In this background there arises the demand for a code of conventions to guide the President and the Governors in the exercise of their constitutional powers. As regards the status of such a code, the views of Professor Samford on the Resolutions adopted at the Australian Constitutional Convention of 1985, which recognised certain practices as conventions of the Australian Constitution, are relevant. As per him three approaches are possible. First, the code may be followed in preference to conventional practice then the codification itself becomes the source of the rule. This raises the issue of why old sources and rules should yield to the new codification. Second, it may be considered a guiding declaration, but then the purpose of codification is lost if it does not have any binding value. Thirdly, it may be considered as evidence of convention. But this is also of little help because it just makes the code a new source of conventions.42

If the effect of the codification is to give jurisdiction to the courts to enforce the codified conventions then that might impinge on the doctrine of separation of powers. Also the flexibility of the conventions will be lost. Moreover, codified laws cannot cover any and every situation that might arise. Hence, it makes more sense to leave the conventions uncodified.

The authors opine that uncertainties surrounding the appointment of the Prime Minister must be done away with through a constitutional amendment providing for the appointment of the Prime Minister by the Lok Sabha. Since the Prime Minister is supposed to be the leader of the House it makes more sense if the House itself appoints its leader instead of the President.

As regards dissolution without the Prime Minister's advice, such incidents have occurred in the UK and other Commonwealth countries. But in India, it has never occurred. As regards refusal to dissolution, such refusal is desirable if Parliament is still able to do its job and the general elections would adversely affect the country's economy and if an alternative Prime Minister can be found to carry on his government with a working majority.

* 4th Year, BA LLB (Hons.) National Law School of India University. Return to Text

1. Colin Munro, "Laws and Conventions Distinguished" 91 LQR 218 (1975), at p. 218. Return to Text
2. Article 75(1) of the Constitution. Return to Text
3. Ivor Jennings: The Law and the Constitution 13 (1979). Return to Text
4. Geoffrey Marshall: Constitutional Conventions 211 (1984). Return to Text
5. The Written and the Unwritten Constitution, at http://www.canadiana.org/citm/ specifique/written_e.pdf (last visited on October 31, 2003). Return to Text
6. Jennings, supra at fn 3 at p. 13. Return to Text
7. Applied in Re Amendment of the Constitution of Canada, (1981) 125 DLR (3d) 1, by the Canadian Supreme Court. Return to Text
8. Public Law Lectures on the UK Constitution, at http://www.kcl.ac.uk/depsta/law/ugrad/ study/course_ats/public/02_03/public_law_lecture_4_0203.pdf (last visited on October 31, 2003). Return to Text
9. M.J. Allen, et al (Eds.): Cases and Materials on Constitutional and Administrative Law 225 (1995). Return to Text
10. Jennings, supra at fn 3 at p. 5. Return to Text
11. Article 74. Return to Text
12. Jennings, supra at fn 3 at p. 24. Return to Text
13. Jennings, supra at fn 3 at p. 51. Return to Text
14. U.N.R. Rao v. Indira Gandhi, (1971) 2 SCC 63 Return to Text
15. M.P. Singh: V.N. Shukla's Constitution of India 344 (2001). Return to Text
16. A.G. Noorani: Constitutional Questions in India 69 (2000). Return to Text
17. Id. Return to Text
18. Noorani, supra at fn 16 at p. 70. Return to Text
19. Noorani, supra at fn 16 at pp. 70-71. Return to Text
20. Sarkaria Commission Report, Part 1, para 41.10.53—It recommended that the Governor should invite the parties to form the Government in the following order of preference—(i) An alliance of parties formed prior to the elections. (ii) The largest single party staking a claim to form the Government with the support of others, including independents. (iii) A post-electoral coalition of parties, with some of the parties in the coalition joining the Government. (iv) A post-electoral alliance of parties, with some of the parties forming a government and the remaining parties including independents, supporting the Government from outside. Return to Text
21. Noorani, supra at fn 16 at p. 73. Return to Text
22. Noorani, supra at fn 16 at p. 81. Return to Text
23. Constitution, President and Prime Minister, at http://www.lawindiainfo.com/consitution/cons-PrimeMinister.htm (last visited October 25, 2003). Return to Text
24. Id. Return to Text
25. D.D. Basu: Shorter Constitution of India 153 (1999). Return to Text
26. 26 (1974) 2 SCC 831 Return to Text
27. Article 60 of the Constitution. Return to Text
28. B.R. Kapur v. State of T.N., (2001) 7 SCC 231 Return to Text
29. Noorani, supra at fn 16 at p. 120. Return to Text
30. A.V. Dicey: An Introduction to the Law of the Constitution 433-436 (1996). Return to Text
31. Hilaire Barnett: Constitutional and Administrative Law 163 (1996). Return to Text
32. Ibid. Return to Text
33. T. Prasanna, "Dissolution of the Lok Sabha", 12 STUD ADV (2000) 160 at p. 170. Return to Text
34. CAD, Vol. VII, at p. 32. Return to Text
35. 8(2) Halsbury's Laws of England 201 (1996). Return to Text
36. Barnett, supra at fn 31 at p. 163. Return to Text
37. Barnett, supra at fn 31 at p. 169. Return to Text
38. Rodney Brazier: Constitutional Texts 111 (1990). Return to Text
39. CAD, Vol. VII, at p. 107. Return to Text
40. Report of the National Commission to Review the Working of the Constitution, Department of Legal Affairs, Ministry of Law, Justice and Company Affairs, 2002. Return to Text
41. Munro, supra at fn 1 at p. 220. Return to Text
42. Barnett, supra at fn 34 at pp. 47-48. Return to Text