Courts, Unwritten Conventions and the Constitution of India

Dr. Sayantani Bagchi contends that Indian courts engage with constitutional conventions not as free-standing enforceable claims but as instruments of broader constitutional inquiry, enforcing them only indirectly. Drawing on the Dicey’s distinction between law and convention, Ivor Jennings’ threepronged test, and the Constituent Assembly’s deliberate choice to leave certain constitutional spaces uncodified, the author argues that courts follow a three-stage analytical method when confronted with conventionbased claims: first, situating the convention within its constitutional, and statutory framework, then verifying its factual existence through consistent institutional practice, and finally assessing its compatibility with underlying constitutional values. The collegium system in Supreme Court Advocates-onRecord Association v. Union of India, the Public Accounts Committee chairmanship in Ambika Roy v. State of West Bengal, and the Puducherry nomination dispute in K. Lakshminarayanan v. Union of India serve as the article’s three central case studies, illustrating both the presence, and the variable rigor of this framework across decisions. The author concludes that while the three-stage structure provides a tentative methodological foundation, judicial engagement with conventions remains uneven, ranging from the exhaustive historical inquiry in the Second Judges case to the considerably more restrained approaches in the later decisions: reflecting a judiciary still negotiating the terms of its relationship with India's unwritten constitutional order.

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