Constitutional Conventions hold court: The judiciary should heed its melody without erasing the lyrics of separation of organs of state

"It is the constitution we are expounding." This timeless quote by Justice John Marshal highlights the significance of extracting and enlivening the enduring values enshrined in its text. The Constitution is not merely a charter of rights. It is a visionary document which anchors discussions on questions vital for sustaining a republic.

Despite the marathon constituent assembly debates which birthed it, the text of our Constitution can’t foresee every eventuality. Our polity can only feel the omnipresent warmth of the constitutional fabric when conventions are thread through the gaps between its texts.

When properly understood through a settled meaning, conventions can structure and limit the discretionary power of authorities besides coordinating the interactions amongst constitutional authorities. A classic example is the collective responsibility of the Council of Ministers and the President’s or Governor’s deference to their judgment while performing executive functions.

The judiciary, having been conferred (and having enhanced) its role of the custodian of the Constitution, has had an interesting brush with constitutional conventions in the past. The most prominent episode was its decrying the executive’s dishonoring of conventions governing judicial appointments, deeming it an affront to its independence. It read "consultation" in Article 124 as concurrence as a remedy, which gave it a veto over the selection of judges.

One can aver that this deviation from a literal reading of the provision solidified the perception of judicial impartiality. This may have led members of other organs to approach the judiciary for a principled resolution of contentious issues even if it involved ceding a portion of their autonomy.

Yet, this begs the question, how can courts derive strength from and uphold conventions without compromising the hallowed principle of separation of powers?

A recent paper contends that the judiciary can either employ or enforce constitutional conventions once they are recognized through the Jennings Test. Three steps are employed as part of the Jennings Test: Firstly, what are the precedents? Secondly, did the actors in the precedents believe that they were bound by a rule? And thirdly, is there a reason for the rule?

Both techniques can give great leeway to courts to interpret/develop or nullify an extant convention. The authors of the paper advise the judiciary to not quarantine itself or be passive bystanders when confronting possible violations by another organ. They assert that by virtue of its moral standing in the public consciousness, a mere declaration of the violation of existing conventions by another organ is sufficient to deter them from continued defiance.

The courts are also asked to shun an advisory role in sketching the content of a convention. For this may diminish their stature (if the advice is discarded) or make them unquestionable arbiters of the internal norms of another organ (if the advice is adopted).

The courts are further exhorted to desist from becoming guardians of other institutions in the garb of preserving conventions. This is to prevent corrosion of intra-institutional accountability by dissuading members of that organization from shifting the onus of making tough decisions onto the judiciary (most often the Apex Court). This is significant to armor the judiciary against an insidious capture by venal political interests seeking refuge under its cover for their illegitimate practices.

Thus, courts should only bother with “power-shifting conventions, which transfer power from those who have legal power, to those who can legitimately wield it". In playing this role, judges can uphold the legitimate allocation of power – legitimate, not according to judges, but according to constitutional actors themselves.

A recent illustration of the judiciary’s use of the doctrine of reasonable expectation to uphold power-shifting conventions is its verdict on the dispute between the Lieutenant Governor (LG) and the Council of Ministers (CoM) of the Union Territory of Delhi. Here, the Supreme Court asked the LG to respect popular legitimacy and its expression by the legislative assembly. The LG’s power to invite the Union government in the administrative setup of Delhi was deemed legitimate only if he differed from his CoM in matters of national importance.

While normatively, the executive is answerable to the legislature, in practice, it can be drummed to march to the beat of a singular political party. Although in bicameral legislatures, the Upper House can act as a credible countervailing force, it is generally the courts which must (or ought to) assume this mantle.

Most state legislatures don’t have second chambers which can check improprieties committed by those elected directly. The absence of this oversight is compounded by the retention of political allegiances by the supervisor of these institutions i.e. the Speaker.

This casts doubts on the impartiality of their adjudication of disputes, particularly those which imperil the continuity of the government, and by extension, their stay in office. Their perceived inaction or the bona fides of their deductions becomes suspect and liable to be questioned in the courts.

While Articles 122 and 212 preclude impugning the Speaker’s errors due to procedural irregularities, the Court has distinguished certain actions of the Speaker to be quasi-judicial in nature and thus amenable to their review.A primary example is legislators questioning the finality of the certification of money bills by the Speaker in the Supreme Court. The second example is the repeated questioning of the Speaker's unwillingness to decide on petitions seeking disqualification of legislators for unlawful defection to a rival party.

In a recent challenge centered on the same issue, Justice Nariman had invoked the principle of quia timet to enjoin the Speaker to conduct such inquests within a reasonable time. However, what is a reasonable will be contextual, with Speakers being unable to rely on past precedents. This is because the previous incumbents have left behind imperceptible footprints by choosing not to walk on the desired path.

To avoid this malady, Nariman J mooted the formation of a tribunal of retired judges to examine such petitions. He bolstered this suggestion by quoting passages from Kihoto Hollohan, where Verma J had said that ruling on disqualification petitions due to unlawful defection shouldn’t be the sole preserve of the Speaker. The judges in the Hollohan case had deemed this function to be quasi-judicial in nature. Nariman J further buttressed this opinion by stating that Parliament is the final arbiter in impeachment proceedings initiated against judges of the higher judiciary.

A principled rebuttal to the move hinges on the violation of separation of powers, leading to inversion of parliamentary supremacy over the executive. The undermining of the Speaker’s pre-eminent status as the symbol of the legislature will impair their ability to ensure the smooth conduction of business within their precincts. This is because aggrieved parties may constantly subject his judgments in other unrelated spheres to judicial scrutiny.

Secondly, this new method of disqualifying legislators will not make it analogous to the current method for impeaching judges. In the latter, though the process is initiated and conducted by another body [Parliament under Article 124(4)], a committee of members from the judiciary investigates the complaint after acceptance of notice for impeachment by the Speaker/Chairman. The committee then frames the charges and submits a final report. Thus, as the impeachment of judges of the Apex Court is not beyond its own purview, the disqualification of a legislator should not be unilaterally decided by a foster institution.

This brings us to the critical question: What should be done if constitutional statesmen repeatedly dishonor the conventions attached to their office? Is altering the nature of offices necessary to obviate the degradation of the stature of their office in a bargain for political gains?

For instance, would the Speaker’s conduct become unimpeachable, if a constitutional amendment forced them to sever political ties post elevation, as is a convention in the UK? Or are other techniques like enhancing the punishment for unlawful defections to match the stringent durations under the Representation of People’s Act required to dent any dubious designs of the Speaker?

Finally, if the judiciary desires to remain the moral fulcrum for nudging other institutions to discharge their uncodified but unique duties, then they have to stop crouching under conventions to remain insular and unaccountable. The superior courts should use their plenary powers to spread the power of the master of the roster amongst a band of judges rather than allowing the Chief Justice to hold this portfolio as a matter of convention.

Further, the creation of a collegium for reviving the convention of primacy of judges to maintain judicial independence needs to be re-examined. Only once the judiciary fulfills these tasks, can it mute the murmurs of its decisions being completely non-partisan when reminding other pillars of the state to perform their duties. This will make it the giant on whose shoulders, we the people, would tread the fertile future envisioned by our Constitution.

The author is a final year student at Campus Law Centre, Faculty of Law, Delhi University.