In this article, the researcher will look at the contested convention that came up before the Supreme Court in Supreme Court advocates-on-record association v. Union of India[i] (hereinafter referred as Second Judges case) and will argue that the opinion of Justice Singh is justified according to Article 124(2) and Article 217(1) of the Constitution. However, the researcher will delve deeper into the study of constitutional conventions and will argue, that while arriving at his opinion, the reasoning employed by Justice Singh is flawed in nature.
From the commencement of the Constitution of India, judges of the Supreme Court and High Courts were appointed following the procedure provided under Article 124(2) and Article 217(1) of the Constitution of India. The appointments were made by the President after consulting with the Chief Justice of India (CJI) and other judges as he may deem necessary. However, with the passage of time, the meaning of the word “consultation” mentioned in Article 124(2) and Article 217(1), became a contentious issue. After some of the senior judges were superseded in the appointment of CJI during the 1970s, there was a perception that independence of the judiciary was under threat. Questions were raised regarding the role of executive in the appointment and transfer process of Supreme Court and High Courts judges. All this resulted in the series of cases over the years.
In S.P Gupta v Union of India[ii], Supreme Court held that the meaning of the term ‘consultation’ cannot be expanded to ‘concurrence’ and ruled that the executive has primacy over the judiciary in the appointment of judges. However, later in the Second Judges case, the court overturned S.P. Gupta judgement.
The Second Judges case was filed as a writ petition in the Supreme Court. This writ petition brought into reconsideration the controversial judgement of S.P. Gupta case. Primarily, the issues, in this case, were regarding the primacy of the opinion of CJI in the appointments of High Courts and Supreme Court judges. Petitioners argued that the interference of the executive in judiciary’s domain must be minimised and thus CJI’s recommendation should not be ignored. The bench delivered the judgement with a majority of 7:2. The majority opinion held that primacy must be given to the recommendation of CJI’s opinion formed after taking into consideration, the opinion of the two seniors most judges of the Supreme Court. The court also expanded meaning of the word ‘consultation’ by equating it with ‘concurrence’.
The contested convention in the case was the role of the judiciary in the appointment process. The question was whether an established convention can be read in Article 124(2) and Article 217(1) of the constitution to the effect that judiciary has primacy over the executive in the appointment procedure of the judges of High Courts and Supreme Court.[iii]
Justice Singh had given majority but concurring opinion. He discussed the importance of constitutional convention and its enforceability at length. The concept was first introduced by Dicey in 1885, where he identified some unwritten rules in the Constitution and called them “the convention of the Constitution”. Convention can be said as the practices that fill up the lacunae in the text of the Constitution and helps in its interpretation. Dicey suggested that the purpose of conventions is to ensure that legal powers, which were formally in the hands of the Crown, in practice are exercised by authorities in accordance with the principles of a representative form of government.[iv] Given the importance of conventions, it becomes extremely important to recognize them. It is not necessary that, if a practice is happening for a long period, it is a convention. Also, it will threaten the spirit of the constitution, if the existence of a convention is taken for granted without conforming it to some rule. As conventions are fundamentally used to interpret the law, an incorrect convention would lead to wrong interpretation of the law. Therefore, some of the jurists like Sir Ivor Jennings, Sir A.V. Dicey have laid down tests to recognize them. In the present case, the court has adopted the test given by Sir Jennings.[v] His test poses three questions to determine conventions. “(a) What are the precedents? (b) Did actors in the precedent believe that they are bound by a rule? (c) Is there a reason for the rule?”
The primary question in the present case was that although the literal interpretation of constitution suggests that executive has primacy over the judiciary in the appointment procedure, could a convention be read in Article 124(2) and Article 217(1) to establish that judiciary has primacy over the executive in appointment procedure. While dealing with the test, each of the three conditions was extensively discussed in the judgement.[vi] It was held that as all the three conditions are satisfied, there is a convention regarding the primacy of judiciary in the appointment procedure and thus it should be binding.[vii] Researcher profoundly agrees with the Supreme court’s adoption of Sir Jennings test and his conclusion of reading convention in Article 124(2) and Article 217(1).
However, while giving reasoning, Justice Singh said that once a constitutional convention is established by the court, there is no reason to deny them the status of law.[viii] He further puts Constitutional law and established Constitutional convention on the same pedestal.[ix] This role of the judiciary to enforce conventions faces criticism from all corners. The function of the conventions is to help in the interpretation of the existing law and not creating new law. However, it does not mean that courts should not enforce conventions entirely. Thus, ‘how’ and ‘when’ should courts engage with conventions must be analysed. While discussing ‘how’ the courts should engage with conventions, it is important to note the dominant view regarding this aspect of constitutional conventions. It has always been assumed that there is a shared ‘commonwealth approach’ to constitutional conventions. However, this dominant view is mistaken. There is substantial variation among the commonwealth jurisdictions in treatment of conventions. There are majorly three modes in which countries engage with conventions: Recognition, Employment and Enforcement. Thus, judicial engagement often depends on jurisdiction and type of convention.[x]
Similarly, ‘when’ the courts should engage with conventions primarily depends on the type of convention. Conventions could be categorised in three types: Intra-institutional conventions, Accountability conventions and Power shifting conventions. It has been argued that courts should not enforce either intra-institutional conventions or accountability conventions but should enforce power shifting conventions. Intra-institutional conventions regulate the internal affairs of an institution of the government. Convention of the resignation of a judge rather than facing parliamentary proceedings after judicial committee recommends removal is an example of Intra-Institutional Convention. By enforcing these conventions, courts will essentially breach the principle of comity- a practice among branches of government to let other branches to perform their constitutional responsibilities without any undue interference. Accountability conventions are related to a responsibility shared by institutions. Convention of ministerial responsibility that makes ministers accountable to our democratic representatives is an example of accountability convention. The purpose of these conventions is to hold ministers accountable through our democratic representatives. Judicial enforcement of these conventions will frustrate the very purpose of them. As judicial enforcement will mean that judges and not democratic representative are holding government accountable.[xi]
Thus, enforcement of both types of conventions will attract criticisms ranging from functions of a convention to breaching the principle of comity and frustrating the purpose of conventions. However, judicial enforcement of power shifting conventions will not attract any of these criticisms. Power shifting conventions are the conventions that transfer power from one authority to another. They do not regulate the internal workings of any institution. And thus, by enforcing power shifting convention, courts are transferring power from de jure authorities to de facto authorities and not undermining constitutional supremacy. Furthermore, by enforcing these conventions, courts would implement the legitimate allocation of the constitutional decision-making authority. And this upholding of legitimate allocation of authority is the appropriate role of courts.[xii]
The contested convention in the Second Judges case is also an example of power shifting convention.[xiii] As a literal interpretation of the law may indicate towards the primacy of the executive over the judiciary in the judicial appointments, but over a period of time, the convention has transferred de facto power to the judiciary over the executive. Thus, it can be concluded that judicially enforcing this convention will not weaken the constitution. But the reasoning of the court that there is no difference between constitutional law and constitutional conventions and both are binding seems to be problematic. As it is essentially suggesting that all constitutional conventions are binding and thus attracting criticisms as discussed above.
Through delving deeper into the understanding of constitutional conventions, the researcher is of the opinion, that courts are justifying in enforcing conventions, but only in certain cases. As in the present case, the contested convention is a power shifting convention, courts are justified in enforcing it. However, while giving its reasoning, the court put constitutional law and constitutional convention at the same pedestal. This line of reasoning would suggest that all conventions, including intra-institutional convention and accounting convention, could be enforced by courts, once it is recognized. However, as discussed above, enforcement of these conventions will necessarily threaten the constitutional supremacy.
[i] (1993) 4 SCC 441.
[ii] AIR 1982 SC 149.
[iii] Supreme (n 1) .
[iv] A. V. Dicey, Introduction to the study of the law of the constitution (first published 1885, 8th edn) 281.
[v] Supreme (n 1) .
[vi] Supreme (n 1) ,,.
[vii] Supreme (n 1) .
[viii] Supreme (n 1) .
[ix] Supreme (n 1) .
[x] F Ahmed, R Albert and A Perry, ‘Judging constitutional conventions’ (2019) 17 International Journal of Constitutional law <https://www.academia.edu/39319467/JUDGING_CONSTITUTIONAL_CONVENTIONS>.
[xi] F Ahmed, R Albert and A Perry, ‘Enforcing constitutional conventions’ (2019) 17 International Journal of Constitutional law <https://academic.oup.com/icon/article-abstract/17/4/1146/5710821?redirectedFrom=fulltext>.
ABOUT THE AUTHOR
Mouli Kaushal Jain
Mouli hails from the state of Madhya Pradesh. Currently, she is pursuing law from the National Law School of India University, Banglore (NLSIU).
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