Written By: Vishad Srivastava
Constitutional convention, two words which utmost decide the fate of any country but if I decode these words all this turn out to be just a common word but where the difference lies is in their applicability. The word convention means an agreement between the parties or a pact or a mutual engagement between two persons, possessing all subjective requisites of contract but which did not give rise to an action nor receive the sanction of law as bearing an “obligation” until the objective requisite the solemn ceremonial was supplied. In other words, convention was an informal agreement of the parties which forms the basis of the contract and which became a contract when external formalities were superimposed. A constitution is written a book of the rule according to which our nation works but constitutional convention are that agreement which is not described in our Constitution but it is left fare open to the politician or the organ of government to form the convention according to the need and time scenario. Two sets of principles make up the constitutional law. One set of rules is contained in the written constitution of a country and another set is referred to as the “conventions of the constitution”. The convention is a means of bringing about constitutional development without formal changes in the law. The conventions grow up, around and upon principles of the written constitution. Necessary conventional rules spring up to regulate the working of the various parts of the constitution, their relation to one another and their subject. The convention enables a rigid legal framework to be kept up with changing social needs and changing political ideas. The convention enables the men who govern to work the machines. The written constitution cannot provide every eventuality.Constitutional institution is always created by the provision which is generally worded. Such provision is interpreted by the help conventions which grow with the passage of time. Conventions are vital so far as they fill up the gaps in the constitution itself, help solve the problem of interpretation and allow for the future development of the constitutional framework. Whatever be the nature of the constitution a great deal may be left unsaid in the legal rules allowing enormous discretion to the constitutional functionaries. Conventions regulate the exercise of that discretion. A power which judicially is conferred upon a person or body of a person may be transferred, guided or canalized by the operation of the conventional rule. The primary role of the convention is to regulate the exercise of discretion which is presumably to guard against the irresponsible abuse of power. Every act by a constitutional authority is a precedent in the sense of example which may or may not be followed in subsequent similar cases but a long series of precedent all pointing in the same direction is very good evidence of convention. The requirement for establishing the existence of convention have been succinctly laid down by Sir W. Ivor Jennings in The Law and the Constitution as follows: “ We have to ask ourselves three question’ first what are the precedent, secondly did the actors in the precedent believe that they were bound by rules, and thirdly is there a reason for the rule” A single precedent with good reason will be enough to establish a rule. A whole string of precedent will be of no use unless persons associated with that precedent are bound by that precedent. A convention, while it is a convention, should be distinguished by the law but this did not mean that what was formerly a convention cannot later become a law. When customary rules are recognized and enforced by the court as law there is no reason why a convention cannot be crystallised as law and become enforceable as a law. It is no doubt that convention needs to be brought by the factual evidence and its history must be brought into the picture but since when any customary rule is practiced for a long time then slowly it becomes precedent and thereafter a convention or in better terms a law in itself. The constitution of India has borrowed the British form of government, making the cabinet collectively responsible for the act of the house of the people. The machinery of government is essentially based on the British form of government and whole British convention has either been inducted in the constitution or has been adopted as unwritten law. During constitutional assembly debates, it was discussed to have a convention whether in written or unwritten form and later on it was decided to be it in unwritten form so that laws are compatible to the relative political and social scenario.
Some characteristics of the constitutional convention which can be drawn that:
- Constitutional convention is nonlegal rights, powers and confer obligation on the authorities of different organ
- Applicability of convention in many instances it is clear but in few scenario, it becomes doubtable where it becomes debatable the authenticity of the convention
- They somewhat resemble to rule of law and minutely differs from Dicey’s concept in their test of applicability and intelligible differentia
Now talking for constitutional convention in India there are bunch of conventions which are remarkable as well as debatable and first in the list in Article 75(1) which stated that The Prime Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Prime Minister but here in India the Prime Minister is the Leader of largest Party and this is nowhere mention in our constitution or in any statue but it has become customary practice.Although this customary practice was successful till there was a government with a full majority and when there was the resignation of any Prime Minister no such convention was there. In the history we see convention emerges from the situation when India politics faces a new type of government formation after the sack of Janta Party so President Reddy sought to invite Charan Singh for Prime Minister as according to him he was the compatible leader according to the scenario so that was the first time when convention played its unsung role. The Constitution does not require that a person must prove or establish his majority in Lok Sabha before he is invited to be the Prime Minister. The President may first invite him and appoint him the President and the ask him to prove his majority or seek of the vote in confidence in Lok Sabha within a reasonable period. A Sarkaria Commission report was made for the convention of work of the governor and President and center state relationship. This 1600 page committee report where it tries to start a new convention for the governor (mainly) but many of its recommendation was not accepted and it all came down but till now whether to appoint Prime Minister or Chief Minister conventions are playing their role effectively.
Now moving on further towards the main aspect of the constitutional convention that is the appointment of judges and collegium system in the Indian judiciary both have been utmost debatable topics where many a times convention was called into the question.
Supreme Court Judges Appointment and Collegium System
Article 124 which stated that Establishment and constitution of Supreme Court
1 There shall be a Supreme Court of India constituting a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than seven other Judges
2 Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years: Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted.
In clause (1) provides for the establishment of a supreme court of India. The court consist of a Chief Justice and until Parliament by law prescribes large number. Under this power, Parliament has increased their judge’s seat. The Court has held that the number of Judges should be commensurate with the amount of work. Otherwise, the judiciary cannot perform its work and will not be able to provide its constitutional obligation. Clause (2) lays down the method of appointment of judges of the Supreme Court. Every judge of the supreme court is appointed by the president by warrant under his hand and seal. The President’s power of appointment of judges is not unfettered. The constitution expressly requires him to consult such of the judges of the Supreme Court and of High Court as he may deem necessary. It also requires him to consult such of the judges of the supreme court and of the high courts as he may deem necessary. It also requires him to always consult the Chief Justice of India in the appointment of a judge other than the chief justice of India. According to court interpretation which eventually becomes a precedent and then convention, has given the provisions regarding the process of appointment of the judges is initiated by the Chief Justice through a collegium consisting of himself and four of the senior-most judges of the court. The recommendation of the collegium is binding on the President. He may, however, not appoint a person whom for the specific reason he does not consider suitable for appointment. In such case, the collegium is binding on the President. He may, however, not appoint a person whom for specific reasons he does not consider suitable for appointment. In such case, the Collegium must reconsider its recommendation. On reconsideration, it may either drop the name of the person not found suitable by the President or reiterate its recommendation. In the latter case, the President is bound to accept the recommendation. The court has overruled its earlier interpretation which gave primacy to the President in the appointment of judges. The Constitution gives no indication of the procedure of the appointment of the Chief Justice. Over the years a convention was developed that seniormost puisne judge would become chief justice whenever the vacancy arose. The Supreme Court has held that as a matter of rule the seniormost judges of the Supreme Court shall always be appointed the Chief Justice of India if he otherwise fit to be appointed. Doubts are expressed on the soundness of the interpretation of the Court on the appointment of judges and the Chief Justice. But in view of the fact that the independence of the judiciary is a basic feature of the Constitution and that the executive in the past has from time to time used the power of appointment to undermine the independence of Judiciary, against which measures similar to Court’s interpretation has been suggested and it is the court interpretation which should take care of any arbitrariness on the part of the Chief Justice by providing for a collegium. Collegium convention is one of the most debatable and a review seeking convention. Let us see the emergence of the collegium system and process involved which made it a debatable issue and awful convention.
The emergence of Collegium system: The Framers of the Indian Constitution, while drafting it, understood the necessity to have an independent judicial system. Dr. Ambedkar in the Constituent Assembly Debates stated that “our judiciary must both be independent of the executive and must also be competent in itself. And the question is how these two objects could be secured”. The tectonic shift that took place from 1981, where a 7-Judge Bench of the Supreme Court declared that the executive would hold primacy in judicial appointments, to the judiciary getting primacy in the appointment of Judges in 1998 has resulted in a need to structure a more viable, just an acceptable process of judicial appointments. The aforesaid cases are popularly known as 3 judges case where the convention of collegium system was invented and as a precedent, it was followed first time in the case of S.P Gupta vs Union of India or the first judge’s case but to understand this we need to understand the history of appointment of judges into the administration.
The history of judicial appointment begins with the enactment of high court Act, 1860 whereby High Court was set up in each province and a further appeal was set up for the privy council which is in England. In 1935 British Parliament enacted Government of India Act, 1935 section 200 of this act created the federal court at New Delhi and a federal court has the power to only entertain constitutional matter and the further case would be a move to Privy Council. After attaining Independence privy Council was removed by Privy Council Act. On 26 January 1950 Supreme Court was established where all the appeals will be finally heard. Now in the Constitution of India the provision for appointment of judge in Supreme Court is mentioned in Article 124(2) where it is mention that Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty five years: Provided that in the case of appointment of a Judge other than the chief Justice, the chief Justice of India shall always be consulted Earlier it was provided in the Government of India Act, 1935 the appointment of judges to High Courts was prerogative of the crown and no provision to consult chief Justice. But when our Constitution was drafted then in Constitutional Assembly Debates it was followed that Chief Justice should be given an opportunity of consultation.
This was all history but the real tussle started in the matter appointment of Justice was that whether there will be executive supremacy or there will be judicial supremacy. Now let us look at both these aspect.
Executive Primacy- Executive Primacy means President will be no longer under obligation to take consult with the Chief Justice but if he deems necessary for the purpose only that situation he may consult chief justice of India. The Supreme Court in Union of India vs. Sankalchand Himatlal Seth that the word consultation means full and effective consultation but President has right to take a differing view or a contrary view. Therefore consultation does not mean concurrence and therefore President is not bound by it. After this come to the case of First judges case which is known as S.P. Gupta vs Union of India case where it was clearly stated that Independence of judiciary does not mean freedom of judges to act arbitrarily it means that judges must have freedom in discharging their judicial function. In order to maintain the independence of judiciary it has to be protected against interference direct or indirect, it should also follow that constitutional provision that is made should not be constructed that would undermine the institution independence. Our Constitution has devised a wholesome and effective mechanism for the appointment of Judges which strikes a just balance between the judicial and executive powers so that while the final appointment vests in the highest authority of the executive, the power is subject to a mandatory consultative process which by convention is entitled to great weight by the President. Apart from these safety valves, checks and balances at every stage, where the power of the President is abused or misused or violates any of the constitutional safeguards it is always subject to judicial review. The power of judicial review, which has been conceded by the Constitution to the judiciary is in our opinion the safest possible safeguard not only to ensure the independence of judiciary but also to prevent it from the vagaries of the executive. Another advantage of the method adopted by our Constitution is that by vesting the entire power of the President, the following important elements are introduced:
(1) a popular element in the matter of administration of justice, (2) linking with judicial system the dynamic goals of a progressive society by subjecting the principles of governance to be guided by the Directive Principles of State policy, (3) in order to make the judiciary an effective and powerful machinery, the Constitution contains a most onerous and complicated system by which Judges can be removed under Article 124(4), which in practice is almost an impossibility.
(4) in order to create and subserve democratic processes the power of appointment of the judiciary in the executive has been vested so that the head of the executive which functions through the Council of Ministers, which is a purely elected body, is made accountable to the people.
If absolute powers were to be vested in the judiciary alone for all its spheres of activities (appointment, retirement, removal, etc.) then the element of absolutism may have crept in, resulting in irreparable harm to the great judicial institution. Another reason why the power of appointment in the judiciary was not vested absolutely was to avoid judicial interference in the day-to-day working of the legislative or parliamentary institutions. Dr. Singhvi submitted that independence of judiciary comprises two fundamental and indispensable elements, viz., (1) independence of the judiciary as an organ and as one of the three functionaries of the State, and (2) independence of the individual Judge.There can be no quarrel that this proposition is absolutely correct. Our Constitution fully safeguards the independence of Judges as also of the judiciary by a three-fold method-
(1) by guaranteeing complete safety of tenure to Judges except for removal in cases of incapacity or misbehavior which is not only a very complex and complicated procedure but a difficult and onerous one.
(2) by giving absolute independence to the Judges to decide the cases according to their judicial conscience without being influenced by any other consideration and without any interference from the executive. Article 50 clearly provides that the State shall take steps to separate the judiciary from the executive in the public services of the State. This important Directive Principle enshrined in Article 50has been, carried out by the CrPC, 1973 which seeks to achieve complete separation of judiciary from the executive.
(3) so far as the subordinate judiciary (is concerned the provisions of Arts, 233-236 vest full and complete control over them in the High Court. Only at the initial stage of the appointment of munsiffs or the District Judges, the Governor is the appointing authority and he is to act in consultation with the High Court but in all other matters like posting, promotion, etc., as interpreted by this Court in Samsher Singh’s case, the High Court exercises absolute and unstinted control over the subordinate judiciary. Promotion, the holding of a disciplinary inquiry, demotion, suspension of Sub Judges lie with the High Court and the Governor has nothing to do with the same. Hinting at the nature of the separation of powers brought about by our Constitution, this Court in Chandra Mohan v. the State of U.P. made the following observations
The Indian Constitution, though it does not accept the strict doctrine of separation of powers, provides for an independent judiciary in the States; it constitutes a High Court for each State, prescribes the institutional conditions of service of the Judges thereof, confers extensive jurisdiction on it to issue writs to keep all tribunals, including in appropriate cases the Governments, within bounds and gives to it the power of superintendence over all courts and tribunals.
Judiciary Primacy: Now another case which came up change the wave of complete this convention and made it to another aspect that is where judiciary was given primacy which means CJI opinion was most important and not much of president and the case was Supreme Court Advocate on Record vs. Union of India,1993 wherewith due to the prominence it was stated that C.J.I should be given at the utmost primacy nor the President. It was the case where writ petition was filed that to seek another view in the first judge’s case and it was stated The constitutional scheme excludes the scope of absolute power in any one individual. Such a construction of the provisions also, therefore, matches the constitutional scheme and the constitutional purpose for which this provision was enacted. It is also useful to refer to certain observations of the referring Bench in Subhash Sharma, the significance of which cannot be doubted. It was observed therein, as under, In India, however, the judicial institutions, by trading, have an avowed apolitical commitment and the assurance of a non-political complexion of the judiciary cannot be divorced from the process of appointments. The constitutional phraseology of “consultation” has to be understood and expounded consistent with and to promote this constitutional spirit. These implications are, indeed vital the appointment is rather the result of collective, constitutional process. It is a participatory constitutional function. It is, perhaps, inappropriate to refer to any ‘power’ or ‘right’ to appoint Judges. It is essentially a discharge of a constitutional trust in which certain constitutional functionaries are collectively repositories… What Edmond Burke said is to be recalled:
All persons possessing a position of power ought to be strongly and awfully impressed with an idea that they act in trust and are to account for their conduct in that trust to the one great Master, Author and Founder of Society. In view of the fact that the constitutional functionaries to whom the task has been entrusted discharge a ‘participatory constitutional function’, it is instructive to recall the prophetic warning of Dr. Rajendra Prasad in his speech, President of the Constituent Assembly, while moving for the adoption of the Constitution of India. He said: We have prepared a democratic Constitution. But successful working of democratic institutions requires those who have to work them willingness to respect the viewpoints of others, capacity for compromise and accommodation. Many things which cannot be written in a Constitution are done by conventions. Let me hope that we shall show those capacities and develop those conventions. The way in which we have been able to draw this Constitution without taking recourse to voting and to divisions in lobbies strengthens that hope. Whatever the Constitution may or may not provide, the welfare of the country will depend upon the way in which the country is administered. That will depend on the men who administer it. If the people who are elected are capable and men of character and integrity, they would be able to make the beat even of a defective Constitution. If they are lacking in these, the Constitution cannot help the country. After all, a Constitution like a machine is a lifeless thing. It acquires life because of the men who control it and operate it, and India needs today nothing more than a set of honest men who will have the interest of the country before them. There is a fissiparous tendency arising out of various elements in our life. We have communal differences, caste differences, language differences, provincial differences and so forth. It requires men of strong character, men of vision, men who will not sacrifice the interests of the country at large for the sake of smaller groups and areas and who will rise over the prejudices which are born of these differences. We can only hope that the country will throw up such men in abundance. In India today I feel that the work that confronts us is even more difficult than the work which we had when we were engaged in the struggle. We did not have then any conflicting claims to reconcile, no leaves and fishes to distribute, no powers to share. We have all these now, and the temptations are really great. Would to God that we shall have the wisdom and the strength to rise above them, and to serve the country which we have succeeded in liberating. In the case of Special Reference No.1 of 1998 case which basically laid down certain principle where it was stated with support of 1993 judgment only and highlight was made there that-
- Consultation with the chief justice of India does not mean consultation with the chief justice and rather it requires consultation with a plurality of judges.
- Collegium- The chief justice of India has to form collegium of 4 senior most judges of supreme court for appointment of judges of Supreme Court
- Appointment of higher court judges it maintains that C.J.I for appointing of high court judges it must consult with 2 senior most judges.
- The opinion of collegiums judges should be given primacy.
- Merit is predominant but seniority should be given primacy.
Recent Development- When the concept of collegium was adopted by Indian judiciary to appoint judges was accepted by society at large at that time but recent appointment of the judges shows that they have close nexus with the seniormost judges which is very disturbing for constitution., merit is not taken into consideration now rather than closeness with the judge is now taken into consideration and many are involved in corruption. The latest example is of medical scam where C.J.I has directed for the initiation of proceeding of impeachment for Allahabad High Court Judge. Consequently after 11 years another petition was filed before the Supreme Court for reconsideration of its earlier judgements in Suraz India Trust vs Union of India basically the collegium system was challenged on certain grounds and sought to review earlier decision of five and nine judges bench by 2 judges bench because of technical ground matter was not decided and placed before honorable Chief Justice for appropriate judgement. National Judicial Appointment Commission Act was 99 amendment brought by the government which brought Article124 A. In this article there was the role of government also in the appointment of judges but this was seen as a major intrusion of the legislature into the judiciary. This amendment struck down by the court in Supreme Court Advocate on Record vs Union of India, 2015 in which the questions before the Court were that whether the Collegium system is an established mechanism for an appointment or the Parliament has any authority to create another alternative for the same. Agreeing with the contention of Attorney General Mukul Rohatgi, Chelameshwar, J. observed that the 99thAmendment does not abrogate the basic structure of the Constitution, as it does not invest the absolute power to the President to appoint or transfer judges. Furthermore, the NJAC Act ensures that no unworthy candidate shall be appointed as a Judge as long as 2 members from the Commission view the candidate to be incompetent. He further added that the presence of the Law Minister does not in anyway undermine the independence of Judiciary but his exclusion would severely undermine the say of a democratic government chosen by the people and would be destructive to the basic feature of checks and balances.
The Constitutional Convention is a good concept but it was not used as much as in benefit they should be taken out of it. Hereby they mean the legislature for whom convention concept was brought to help the nation and the society with the advancement in political as well as the technological scenario. Collegium or appointment of Prime Minister is an open-ended debate but we have to look into the other side of the coin and when we see from that point of view then we can say that any convention whether of collegiums or Prime Minister appointee it is the sole intention which makes any convention successful or unsuccessful.It was the vision of P.V Narasimha Rao government who uses the economic convention too liberalize the Indian economy and revive the same. After looking into the debatable events we can only comment that sole good convention is not the criteria to be successful but people ability and intention also matters. It same as rising and demise of the collegium system once it was appreciated but now times have come that it has come in the ground of critical review.
 9 Black Law Dictionary 202(2 edition 1912)
 Supreme Court Advocate on Record vs. U.O.I(1993) 4 SCC 441
 2H.M. Seervai Constituional Law of India 2706,(3 edition, 1984)
 1 V.N.Shukla Constituion of India 346(10 edition,2001)
 Dinesh Chandra vs. Chaudhry Charan Singh, AIR 1980,SC 114
 Subhash Sharma vs Union Of India, 1991, SCC 574
 S.C.Advocates on Record vs. Union of India, AIR 1994 SC 268
 S.P.Gupta vs. Union of India, AIR 1982 SC 149
 M.P Singh Securing Independence of Judiciary 245(10 edition,2000)
 U.O.I vs Sankalchand Himatlal AIR 1977 SC 2338
 ChandraMohan vs State of U.P AIR 1980 SCC 213
 Supreme Court Advocate on Record Association vs Union India