CONSTITUTIONALISM & CONSTITUTIONAL CONVENTION

1. CONSTITUTIONALISM & CONSTITUTIONAL CONVENTIONS By – Jasbir Singh Bajaj (Former IAS)

2. CONSTITUTION • The Constitution of India is the fundamental law of the land. • Document of people’s faith and aspirations • “The beauty of the Indian Constitution is that the entire structure of the country is based thereupon. It is the very pillar upon which the democracy of India stands.” • – Justice V.N. Khare • (UOI v. Naveen Jindal) • Constitution is the rule book of the nation codifine the rule of LAW

3. CONSTITUTIONALISM • Constitutionalism -APolitical Philosophy • Thefunctions of the government of a state must be in accordance with the provisions of the constitution • It is the trust, belief and faith that power will not be miss used • It Favors Rule of Law rather then Rule of men leading to limitation on governance.

4. FEATURES OF CONSTITUTIONALISM • Constitutionalism puts limitations on the government: • Power prescribed – • Power to grant pardon etc. (Art. 72, 161) • Extent of executive power of Union and States (Art.73, 162) • Procedure prescribed- • Procedure for impeachment of President ((Art. 61) • Special procedure for Money Bills (Art. 113)

5. CONSTITUTIONALISM FAVORS CHECKS AND BALANCES Separation of powers and checks and balances among the branches of the government is core to establish the principle of Constitutionalism. Navtej Singh Johar v. Union of India, (2018) 1 SCC 791,

6. CONSTITUTIONALISM PROTECTS DEMOCRATIC PRINCIPLES The Constitution of India is fully enriched textually with the democratic principles but the existence of Constitutionalism makes it a reality. L.R. Coelho v. State of Tamil Nadu, (2007) 2 SCC 1,

7. MERE EXISTENCE OF A CONSTITUTION IS NOT ENOUGH Mere existence of the constitution is not a guarantee to constitutionalism. It is the political maturity and traditions of the people that import meaning to constitution. R.C. Poudyal v. UOI, AIR 1993 SC 1804,

8. CONSTITUTION MAY BE WRITTEN OR UNWRITTEN Constitutionalism implies that the exercise of the political power should be bound by limitations, controls, checks and rules whether these exist in the form of written or unwritten constitution.

9. DIVISION OF POWERS IS A NECESSITY OF CONSTITUTIONALISM “The essence of constitutionalism is the control of power by its distribution among several state organs or offices in such a way that they are each subjected to reciprocal controls and forced to cooperate in formulating the will of the State”. Government of NCT Delhi v. UOI , (2018) SCC 50,

10. CONSTITUTIONALISM TO BE TRANSFORMATIVE “To understand the concept of transformative constitutionalism with some degree of definiteness, the ideals enshrined in the Preamble would be a guiding laser beam. The ultimate goal of our magnificent Constitution is to make right the upheaval which existed in the Indian society before the adoption of the Constitution.” Navtej Singh Johar v. UOI. (2018) 1 SCC 791

11. WAY TO PUT CONSTITUTIONALISM IN A CONSTITUTION • By political way • Separation of powers among the branches of the government. • No centralized power in the government (Decentralization) • By judicial way • Independence of judiciary. • Judicial review on the administrative and legislative power

12. CONSTITUTIONAL CONVENTIONS • Constitutional law consists of: • Legal norms – enforced and applied by courts • No-legal norms – arise in course of time by practices followed over an over again These norms are called “Conventions or Usages” Constitution does not sanction them but they exist

13. CONSTITUTIONAL CONVENTIONS • Informal • Uncodified • Unwritten Procedural agreements Though the Indian Constitution is the lengthiest constitution in the world, the farmers of the conventions, can be interpreted as informal, uncodified and unwritten procedural agreements. These Constitutional Conventions are much as important written texts in the Constitution. Ram Jawaya v. State of Punjab, Shamsher Singh v. Sate of Punjab

14. CONSTITUTIONAL CONVENTIONS Features of Constitutional conventions • Constitutional Conventions are requisite. • Constitutional Conventions lead discretion in the authority. • Constitutional conventions ensure flexibility. • Conventions evolve or change over time.

15. CONSTITUTIONAL CONVENTIONS SHOULD NOT BREACH CONSTITUTIONAL PRINCIPLES. S.P. Gupta v. UOI, AIR 1982 SC 149 • Constitutional Conventions may be inseparable from Constitution. • State of Rajasthan v. UOI, AIR 1977 SC 1361 • Legally unenforceable – have moral and political Sanction • Constitutional Conventions may also be bindings. “there is no distinction between the ‘Constitutional Law’ and an established ‘constitutional conventions’ and both are binding in the field of there operation”

16. INSTANCES OF CONSTITUTIONAL CONVENTIONS IN THE CONSTITUTION • Appointment of Prime Minister or Chief Minister, by the President or Governor, as the case may be [Article 75(1)] • Options in Hung Lok Sabha/Assemblies • Dissolution of the House - power to dissolve the Lok Sabha(Article 85) by the President but no mention of procedure or circumstances.

17. Discretion of President/Governor • “there are certain exception 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.” • Samsher Singh v. State of Punjab, AIR 1974, SC 2192 • Appointment of senior-most Judge as Chief Justice • Interpreted by Supreme Court with Article 124(1) where consultation with • chief justice is mandated • First judges case (S.P Gupta v. UOI, AIR 1982 SC 149 • Second Judges case (Advocates-on-Records Association v. UOI (1993) 4 SCC 441 • Third Judges case ( In Re Under Article 143(1) of the Constitution, AIR 1999, SC

18. PREVIOUSLY ASKED QUESTIONS: • What is Constitutionalism ? Explain the said concept in its negative and positive aspects in the context of India’s tryst with constitutionalism and constitutional governance. (2014) • What do you understand by the term “Constitutional Conventions” are they relevant in a country like India having a lengthy written constitution with preamble? (2012) • It has been impossible to resist the growth of “conventions of constitution “ in India though the constitution is a highly comprehensive document which presents every matter in utmost details. Discuss. (1989)