Partial preview of the text
Download Constitution law and family law and more Schemes and Mind Maps Law in PDF only on Docsity!
THE TAMIL NADU zo Dr. AMBEDKAR LAW UNIVERSITY (State University Established by Act No. 43 of 1997) M.G.R. Main Road, Perungudi, Chennai - 600 096. CONSTITUTIONAL LAW - I FIRST YEAR - SECOND SEMESTER STUDY MATERIAL By Dr. R. Srinivasan Director i/c., Department of Distance Education The Tamil Nadu Dr. Ambedkar Law University Chennai UNIT I Meaning and importance of Constitution: Constitution is the supreme law of each State. It lays down rules regarding the organization, powers and functions of government. It also defines the basic features of the State and the relation between the citizens and the State. The basic, fundamental law of a state which sets out how that state will be organized and the powers and authorities of government between different political units and citizens. Definition: In simple words, we can say a Constitution is the Constitutional law of the state. Constitutional law enjoys the position of being the supreme and fundamental law of the state. It lays down the organization and functions of the government of state. The Government can use only those powers which the Constitution grants to it. 1. “Constitution is the collection of principles according to which the powers of the government, the rights of the governed and the relations between the two are adjusted.” -Woolsey 2. “Constitution is a body of judicial rules which determine the supreme organs of state, prescribes their modes of creation, their mutual relations, their spheres of action and the fundamental place of each of them in relation to state.” -Jellinek 3. “Constitution of a state is that body of rules or laws, written or unwritten which determine the organization of government, the distribution of powers to the various organs of government and the general principles on which these powers are to be exercised.” -Gilchrist On the basis of these definitionsit can be said that the Constitution is the sum total of the Constitutional laws of the state. It lies down: (1) Organization and powers of the government; (2) Principles and rules governing the political process; (3) Relations between the people and their government; and (4) Rights and duties of the people. The government of state gets organized and works in accordance with the provisions of the Constitution. People get their rights protected from the Constitution. No one, not even the government, can violate the Constitution. Types of Constitution: I. Written Constitution: A written Constitution means a Constitution written in the form of a book or a series of documents combined in the form ofa book. It is a consciously framed and enacted Constitution. It is formulated and adopted by a constituent assembly or a council or a legislature. Garner writes, “A written Constitution is a consciously planned Constitution, formulated and adopted by deliberate actions of a constituent assembly or a convention.” It provides for a definite design of government institutions, their organizations, powers, functions and inter-relationships. It embodies the Constitutional 1 aiming to affect changes in a Constitutional law or in any ordinary law are passed through the same legislative procedure i.e., by a simple majority of votes in the legislature. Similarly, a Constitution is flexible when the procedure of amending it is simple and the changes can be made easily. (A) Merits of a Flexible Constitution: ¢ First, a major merit of the flexible Constitution is its ability to change easily in accordance with the changes in the social and political environment of the society and State. * — Secondly, itis very helpful in meeting emergencies because it can be easily amended. © Thirdly, because of its dynamic nature, there are less opportunities for revolt. The Constitution has the ability to keep pace with the changing times. The people do not feel the need for revolutionary changes. « — Finally, since the flexible Constitution keeps on developing with times, it always continues to be popular and remains up-to-date. (B) Demerits of a Flexible Constitution: © First, a flexible Constitution is often, a source of instability. Flexibility enables the government in power to give it a desired dress and content. ¢ — Secondly, it is not suitable for a federation. In a federation, a flexible Constitution can lead to undesirable changes in the Constitution by the federal government or by the governments of federating units, IV. Rigid Constitution: The Rigid Constitution is one which cannot be easily amended. Its method of amendment is difficult, For amending it, the legislature has to pass an amendment bill by a specific, usually big, majority of 2/3rd or 3/4th. For passing or amending an ordinary law, the legislature usually passes the law by asimple majority of its members. A rigid Constitution is considered to be the most fundamental law of the land. It is regarded as the basic will of the sovereign people. That is why it can be amended only by a special procedure requiring the passing of the amendment proposal by a big majority of votes which is often followed by ratification by the people in a referendum. (A) Merits of a Rigid Constitution: ¢ First, a rigid Constitution is a source of stability in administration. ° Secondly, it maintains continuity in administration. ¢ Thirdly, it cannot become a tool in the hands of the party exercising the power of the state at a particular time. * — Fourthly it prevents autocratic exercise of the powers by the government. ¢ Finally a rigid Constitution is ideal for a federation. (B) Demerits of a Rigid Constitution: © First, the chief demerit of a rigid Constitution is that it fails to keep pace with fast changing social environment. © — Secondly, because of its inability to change easily, at times, it hinders the process of social development. © Thirdly, it can bea source of hindrance during emergencies. © Fourthly, its inability to easily change can lead to revolts against the government. © Fifthly, a rigid Constitution can bea source of conservativeness. It can grow becomes old very soon because it cannot Keep pace with times. Thus, there are both merits and demerits of Flexible and Rigid Constitutions. The decision whether a state should have a flexible or a rigid Constitution, should be taken on the basis of the needs and wishes of society. No hard and fast rule can be laid down as to whether a state should have a flexible or a rigid Constitution In fact, a Constitution must have both a certain degree of rigidity as well as an ability to change for keeping pace with the changing times. An excessive rigidity or excessive flexibility should be avoided. The Constitution of India is partly rigid and partly flexible. In several respects, it is a rigid Constitution but in practice it has mostly worked asa flexible Constitution. V. Evolved Constitution: An evolved Constitution is one which is not made at any time by any assembly of persons or an institution. It is the result of slow and gradual process of evolution. Its rules and principles draw binding force from the fact of their being recognised as ancient, historical, time-tested and respected customs and conventions. Some of these conventions get recognised by law and hence become enforceable while others are followed because these are supported by public opinion, their practical utility and moral commitment in their favour. Evolved Constitutions is the product of historical evolution and of political needs and practical wisdom of the people. The Constitution of Great Britain presents a key example of an evolved Constitution. VI. Enacted Constitution: An Enacted Constitution is a man-made Constitution. It is made, enacted and adopted by an assembly or council called a Constituent Assembly or Constitutional Council. It is duly passed after a thorough discussion over its objectives, principles and provisions. It is written in the form ofa book or asa series of documents and in a systematic and formal manner. The Constitutions of India the USA, Japan, China and most of other states are enacted Constitutions. Qualities of a Good Constitution: ¢ Constitution must be systematically written. * — Itshould incorporate the Constitutional law of the state and enjoy supremacy. © Itshould have the ability to develop and change in accordance with the changes in the environment and needs of the people. ¢ — Itshould be neither unduly rigid nor unduly flexible. © Iemust provide for Fundamental Rights and Freedoms of the people. 4 Every democratic Constitution guarantees to the citizens a protection against arbitrary governmental actions. A democratic state, like India, has a written and supreme Constitution which binds its entire people and their government. Constitutionalism: Meaning: The concept of Constitutionalism is that of a polity governed by or under a Constitution that ordains essentially limited government and rule of law as opposed to arbitrary authoritarian or totalitarian rule. Constitutional government, therefore, should necessarily be democratic government. In other words, Constitutionalism is a political philosophy in which the functions of government of a state must be in accordance with the provisions of the Constitution meaning thereby the actions of government must reflect Constitutionality. As the Constitutionalism is a political spirit or philosophy, so it is not necessary that the states who have a Constitution must be embodied with the concept of Constitutionalism. According to Douglas Greenberg, Consticutionalism is a commitment to limitations on ordinary political power, it revolves around a political process, one that overlaps with democracy in seeking to balance state power and individual and collective rights, it draws on particular cultural and historical contexts from which it emanates and it resides in public consciousness. Now to identify that whether Constitutionalism is present in India or not. It can be analyzed with the help of various provisions of Constitution that are:- Preamble, Judicial Review, Rule of law, Separation of power, Checks and balances and so on. There is no exhaustive list of features by which the validity or existence of Constitutionalism can be tested; but the every feature which limits the government and proves helpful to establish a position of sovereignty under fundamental principles of Constitutional jurisprudence may be a considerable point for Constitutionalism. In Indian context, Preamble may be a point to check the presence of Constitutionalism. Our Constitution enacted on 26th November,1949, since then, a question always a matter of great concern that whether preamble is a part of Indian Constitution or not. However, in 1960, In Re Beru Beri case, it was held that preamble is not a part of Constitution but after a long time, In case of Keshavanand Bharti v State of Kerala (1973), 13 judges largest bench of Indian Constitutional history rejected previous contentions and declared that “Preamble is a part of Indian Constitution”. Preamble explains the objectives of Constitution in two ways, one about the composition of bodies of governance and other about the objectives sought to be achieved in independent India. Objectives explained in preamble as follows:- © To constitute India into Sovereign, Socialist, Secular, Democratic Republic (words Socialist and Secular inserted by 42nd Constitutional Amendment,1976) Other provisions of preamble that are;- « — Justice - Social, Economic, and Political; « Liberty - of thought, expression, belief, faith and worship; « Equality of status and opportunity; « — Fraternity assuring the dignity of the individual and the unity and integrity of the nation (word unity inserted by 42nd Constitutional Amendment,1976) may be invoked to determine the ambit of Fundamental rights and Directive principles of state policy. 6 According to Justice Subbarao, Preamble is the soul of the Constitution, without which a body in the form of state cannot be survived. The objectives of Constitution ensure the dignified conditions for the people of India and provide them all rights and liberties within ambit of fundamental spirit of Constitutionalism embodied in entire body of the Constitution. E.g. Dr. Radhakrishnan, former President of India, has explained secularism in this country, as follows:- When India is said to be a secular state, it does not mean that we reject the reality of an unseen spirit or the relevance of religion to life or that we exalt irreligion. It does not mean that secularism itself becomes a positive religion or that the state assumes divine prerogatives.....we hold that not one religion should be given preferential status...This view of religious impartiality, or comprehension and forbearance, has a prophetic role to play within the National and International life. In other words, Secularism, which reflects no state religion, means every citizen has a right to profess religion of their own choice, which promotes automatically liberty of faith and worship. In this way, It can be surmised that preamble hold the spirit of Constitutionalism. Judicial review: Judicial Review, however, this doctrine is not clearly stated in Indian Constitution but its reflection is somewhere found in Article 13(2), Actually, this doctrine was firstly introduced in 1803 by Justice Marshall in Marbury v. Madison case, In USA where he clearly said that ‘It is the duty of judge to annul the law made by the legislature which violated the Constitution or contrary to it. The similar spirit found in Article 13(2) of Indian Constitution that the laws “which are inconsistent to part III of Constitution shall be declared null and void”, but it is not clearly defined that if any contrary law made, then who will check its validity, then an answer comes into light in reference to Justice Marshall that Judiciary can check such contrary acts of legislature and also can review the laws made by legislature and also a concept of “Higher law” emerged from this doctrine, because a judge has to follow the mandates or directions of Higher law while checking the consistency of provision. In written Constitution, Higher law depicts Constitution as Supreme but where there is no written Constitution; there are some principles which can be regarded as Supreme or Higher law principle. In Gopalan v. State of Madras (1950) has upheld that it is difficult to restrict the sovereign legislative power by judicial interference except so far as the express provision of written Constitution. It is only the written provisions of Constitution which may restrain legislative power, but where there is no written Constitution, then, who restrain legislative power, and then its answer is judiciary by following various principles, precedents, customs, usages, and different statutes can check the consistency. It clearly signifies that in absence of power of judicial review in hands of judiciary, judiciary is only a puppet of legislators. Justice Frankfurter said that judicial review, itself a limitation on popular government, is a fundamental part of our Constitutional system; means if there is no power of judicial review then the Constitution merely becomes a draft for the code of conduct for government as well as citizens, It also signifies as a Law without Sanction: However, this type of situation has been prevalent in India, till 2007, in different cases, such as Shankari Prasad case, Sajjan Singh case, Golak Nath case, Keshavanand Bharti case, N.Ramchandra case, traced a picture of conflict between legislature and judiciary, no clear cut demarcation of powers under which organs of government can overview the validity of their actions for upholding the true spirit of Constitutionalism in a political entity could be realized. But the Raja Ram Pal case and LR.Coelho v State of Tamil Nadu case 2007 have reshaped the whole demarcation and establish superiority of principles 7 Case Laws where principle of ‘Constitutionalism’ is legally recognized by Supreme Court — In ER. Coelho (Dead) By LRs. v. State of Tamil Nadu and Ors. (1999) view taken by the Supreme Court - The Constitution is a living document. The Constitutional provisions have to be construed having regard to the march of time and the development of law. It is, therefore, necessary that while construing the doctrine of basic structure due regard be had to various decisions which led to expansion and development of the law. The principle of Constitutionalism is now a legal principle which requires control over the exercise of Governmental power to ensure that it does not destroy the democratic principles upon which it is based. These democratic principles include the protection of fundamental rights. The principle of Constitutionalism advocates a check and balance model of the separation of powers, it requires a diffusion of powers, necessitating different independent centers of decision making. The principle of Constitutionalism underpins the principle of legality which requires the Courts to interpret legislation on the assumption that Parliament would not wish to legislate contrary to fundamental rights. The Legislature can restrict fundamental rights but it is impossible for laws protecting fundamental rights to be impliedly repealed by future statutes. Court described Common Law Constitutionalism in precise manner which may reveal our vehement exigencies. The protection of fundamental Constitutional rights through the common law is main feature of common law Constitutionalism. In Rameshwar Prasad and Ors. v. Union of India and Anr. (2006) it was observed that “The Constitutionalism or Constitutional system of Government abhors absolutism - it is premised on the Rule of Law in which subjective satisfaction is substituted by objectivity provided by the provisions of the Constitution itself."Moreover, when our theories have been glorified with such emblazonment why in execution part it is sterile. We are just enriching our theories with intellectual twists which can be exemplified as — Constitutionalism is about limits and aspirations. According to Justice Brennan, interpretation of the Constitution as a written text is concerned with aspirations and fundamental principles. In his Article titled ‘Challenge to the Living Constitution’ by Herman Belz, the author says that the Constitution embodies aspiration to social justice, brotherhood and human dignity. It is a text which contains fundamental principles. Fidelity to the text qua fundamental principles did not limit judicial decision making. The tradition of the written Constitutionalism makes it possible to apply concepts and doctrines not recoverable under the doctrine of unwritten living Constitution. Salient features of Indian Constitution: The Constitution of India has some distinct and unique features as compared to other Constitutions to the world. As Dr. B.R. Ambedkar, the Chairman of the Drafting Committee puts it, the framers had tried to accumulate and accommodate the best features of other Constitutions, keeping in view the peculiar problems and needs of our country. The following are the salient features of the Constitution of India. I. Longest written Constitution Indian Constitution can be called the largest written Constitution in the world because of its contents. In its original form, it consisted of 395 Articles and 8 Schedules to which additions have been made through subsequent amendments. At present it contains 395 Articles and 12 Schedules, and more than 90 amendments. There are various factors responsible for the long size of the Constitution. One major factors was that the framers of the Constitution borrowed provisions form several sources and several other Constitutions of the world. 9 They have followed and reproduced the Government of India Act 1935 in providing matters of administrative detail. Secondly, it was necessary to make provisions for peculiar problems of India like scheduled castes, Scheduled Tribes and backward regions. Thirdly, provisions were made for elaborate centre-state relations in all aspects of their administrative and other activities. Fourthly, the size of the Constitution became bulky, as provisions regarding the state administration were also included. Further, a detail list of individual rights, directive principles of state policy and the details of administration procedure were laid down to make the Constitution clear and unambiguous for the ordinary citizen. Thus, the Constitution of India became an exhaustive and lengthy one. IL. Partly Rigid and Partly Flexible The Constitution of India is neither purely rigid nor purely flexible. There is a harmonious blend of rigidity and flexibility. Some parts of the Constitution can be amended by the ordinary law-making process by Parliament. Certain provisions can be amended, only when a Bill for that purpose is passed in each house of Parliament by a majority of the total membership of that house and. by a majority of not less than two- third of the members of that house present and voting. Then there are certain other provisions which can be amended by the second method described above and are ratified by the legislatures of not less than one-half of the states before being presented to the President for his assent. It must also be noted that the power to initiate bills for amendment lies in Parliament alone, and not in the state legislatures. Pundit Nehru expressed in the Constituent Assembly, “While we want the Constitution to be as solid and permanent as we can make it, there is no permanence in Constitution. There should be certain flexibility. If you make anything rigid and permanent, you stop the nation’s growth, the growth of a living, vital organic people.” III. Democratic Republic India is a democratic republic. It means that sovereignty rests with the people of India. They govern themselves through their representatives elected on the basis of universal adult franchise. The President of India, the highest official of the state is elected for a fixed term. Although, India is a sovereign republic, yet it continues to be a member of the Commonwealth of Nations with the British Monarch as its head. Her membership of the Commonwealth does not compromise her position as a sovereign republic. The commonwealth is an association of free and independent nations. The British Monarch is only a symbolic head of that association. IV. Parliamentary System of Government India has adopted the Parliamentary system as found in Britain. In this system, the executive is responsible to the legislature, and remains in power only as long and it enjoys the confidence of the legislature. The president of India, who remains in office for five years is the nominal, titular or Constitutional head. The Union Council of Ministers with the Prime Minister as its head is drawn from the legislature. It is collectively responsible to the House of People (Lok Sabha), and has to resign as soon as it loses the confidence of that house. The President, the nominal executive shall exercise his powers according to the advice of the Union Council of Ministers, the real executive. In the states also, the government is Parliamentary in nature. V. Federation Article 1 of the Constitution of India says, “India, that is Bharat shall be a Union of States.” Though the word ‘Federation’ is not used, the government is federal. A State is federal when (a) there are two sets of governments and there is distribution of powers between the two, (b) there is a written Constitution, which is the supreme law of the land and (c) there is an independent judiciary to interpret the Constitution and settle disputes between the centre and the states. All these features are present in India. There are two 10 principles could help in making India welfare state. Though not justiciable these principles have been stated a; “fundamental in the governance of the country”. VIII. Fundamental Duties Anew part IV (A) after the Directive Principles of State Policy was incorporated in the Constitution by the 42nd Amendment, 1976 for fundaments duties. These duties are: © Toabide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem; ¢ Tocherish and follow the noble ideals, which inspired our national struggle for freedom; * Touphold and protect the sovereignty, unity and integrity of India; © — Todefend the country and render national service when called upon to do so; * To promote harmony and the spirit of common brotherhood amongst all the people of India - transcending religious, linguistic, regional or sec-tional diversities, to renounce practices derogatory to the dignity of woman; © — Tovalue and preserve the rich heritage of our composite culture; ¢ — Toprotect and improve the natural environments including forests, lakes, rivers and wild life and to have compassion for living creatures; © — Todevelop scientific temper, humanism and the spirit of inquiry and reform; ¢ — Tosafeguard public property and to abjure violence; © Tostrive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of Endeavour and achievement. The purpose of incorporating these duties in the Constitution is just to remind the people that while enjoying their right as citizens, should also perform their duties for rights and duties are correlative. IX. Secular State Asecular state is neither religious nor irreligious, or anti-religious. Rather it is quite neutral in matters of religion. India being a land of many religions, the founding fathers of the Constitution thought it proper to make ita secular state. India is a secular state, because it makes no discrimination between individuals on the basis of religion. Neither it encourages nor discourages any religion. On the contrary, right to freedom of religion is ensured in the Constitution and people belonging to any religious group have the right to profess, practice or propagate any religion they like. X. An Independent Judiciary The judiciary occupies an important place in our Constitution and it is also made independent of the legislature and the executive. The Supreme Court of India stands at the apex of single integrated judicial system. It acts as protector of fundamental rights of Indian citizens and guardian of the Constitution. Ifany law passed by the legislature or action taken by the executive contravenes the provisions of the Constitution, they can be declared as null and void by the Supreme Court. Thus, it has the power of judicial review. But judicial review in India constitutes a middle path between the American judicial supremacy in one hand and British Parliamentary supremacy in the other. 12 XI, Single Citizenship The Constitution of India recognises only single citizenship. In the United States, there is provision of dual citizenship. In India, we are citizens of India only, not of the respective states to which we belong. This provision would help in promoting unity and integrity of the nation. Constitutional Convention and its importance: The Constitution of a country comprises both written rules enforced by courts, and “unwritten” nules or principles necessary for Constitutional government. Written rules mandate that they be followed ina particular specified situation, while unwritten rules come into play when the situation at hand is not covered by the written rules. Constitutional conventions are rules of political practice, which are regarded as binding by those to whom they apply. However, they are not laws, as they are not enforced by courts or by the Houses of Parliament. Often Constitutional conventions are more important than written Constitutional provisions. For example, the President is empowered by the Constitution to appoint the Prime Minister, but the Constitution provides no guidance as to who should be appointed as Prime Minister. Here conventions regarding the appointment of the Prime Minister play an important role in guiding the President. Conventions are an instrument of national cooperation and the spirit of cooperation is as necessary as the Constitution. They are rules elaborated for effecting that cooperation. Constitutional conventions: A brief study Following are some of the characteristics of the conventions: Conventions are rules that define non-legal rights, powers and obligations of office-holders in the three branches of Government, or the relations between governments or government organs. Conventions in most cases can be stated only in general terms, their applicability in some circumstances being clear, but in other circumstances uncertain and debatable. They are distinguishable from rules of law, though they may be equally important, or more important. They may modify the application or enforcement of rules of law. Constitutional conventions develop over time and are not outlined in any document. Conventions grow out of practices and precedents determine their existence. Such precedents are not authoritative like the precedents of a court of law. Every act is a precedent, but not every precedent creates a mule, Sir Ivor Jennings suggested that in order to establish a convention three questions must be asked: firstly, what are the precedents; secondly, did the actors in the precedents believe that they were bound by a nile; and thirdly, whether there is a good reason for the rule? A single precedent with a good reason may be enough to establish the rule. A whole string of precedents without such a reason will be of no avail, unless the persons concerned regard themselves to be bound by it. It is largely through Dicey’s influence that the term “convention” has been accepted to describe a Constitutional obligation, obedience to which is secured despite the absence of the ordinary means of enforcing the obligation in a court of law. It must be noted that the obligations do not necessarily, or indeed usually, derive from agreement. It is more likely to originate from customs or practices arising out of sheer expediency. Conventions grow out of and are modified by practice. At any given time it may be difficult to say whether or not a practice has become a convention. Conventions do not come froma certain number of sources, their origins are amorphous and nobody has the function of deciding whether conventions exist or not. 13 legal opinion on it. The three views were: The leader of the largest party in the legislature should be invited to form the Government irrespective of whether or not such a party commands a stable majority. Ifthe party in power failed to secure an absolute majority in the newly- elected legislature, the leader of that party should not be invited to form the Government because the electoral verdict should be regarded as, in effect, disqualifying the party from holding office for another term.The Governor should make endeavour to appoint a person who is most likely to command a majority in the legislature. There was complete agreement on the third, an obvious choice but of little practical value. The Sarkaria Commission’s report did not agree with this and propounded its own rules. The subject was also discussed in the report of the Committee of Governors, 1971, appointed by the President to study and formulate norms and conventions on the role of the Governors. It rejected the rigid arithmetical test of the leader of the largest single party. Three British works on Constitutional and administrative law share chis view. S.A. Smith speaks of a ministry “with a reasonable prospect of maintaining itself in office”. Wade and Bradley opt for “that person who is in the best position to receive the support of the majority”. Hood Phillips’ formulation is “a ministry that can hold a majority in the House”. The above authorities expose the absurdity of the then President R. Venkataraman’s “objective” test of summoning the parties in the order of their numerical strength, that he propounded asa great contribution to Constitutional practice. British precedent and the dicta of eminent authorities do not support any such arithmetical test. Another example of such absurdity is that of Dr. $.D. Sharma’s decision to appoint Mr Vajpayee as the Prime Minister on 15-5-1996, The sole consideration behind Mr Sharma’s decision seemed to be the “arithmetic” test that Mr Venkataraman talked about in his book, My Presidential Years. Such decisions lower the image of the high office of the President, more so, when the appointed Prime Minister fails to secure the majority in the House as it happened in the case of Mr Vajpayee, whose Government fell within 13 days of its appointment. Yet another example will be that of the case of Bihar where the Governor decided to ask Mr Nitish Kumar to form the Government despite the fact he was in no position to command majority in the House, and had to ultimately resign. Such decisions sully the image of the office of the President and Governors, and also go against the spirit of democracy. Being leader of the single largest party does not necessarily mean being the leader of the majority members of the House. A person need not be the leader of the single largest party in the House to command the support of the House. The practice now more or less seems to be settled that the leader of the party who is able to secure the support of the House should be invited to form the Government. This again brings us back to the question, when and how does a practice become a convention? Ivor Jennings’s three-stage test mentioned before might be helpful in deciding whether a practice has crystallised into a convention or not but that is not a conclusive test for determining the existence of a convention. There has been demand from several quarters to codify the convention with respect to the appointment of Prime Minister and Chief Ministers. The reason given is that having a written Constitution, we should not leave the appointments to these high offices on conventions. The controversy invariably surrounding every appointment (in cases where no one party has absolute majority) of the Prime Minister and Chief Ministers further strengthens the demand for codification of conventions. One of the suggestions that have been put forward is the amendment of Article 75 of the Constitution so as to have the following effect: “The Prime Minister shall be appointed by the President on the recommendation of the House of the People which recommendation shall be binding on the President”. Thus the onus will be on the legislature to choose the Prime Minister, than on the President. Such a move is welcome since it will help in avoiding confusion and controversies in the appointment of the Prime Minister and Chief Ministers. However, at the same time it must also be kept in mind that a Constitution cannot contain all and sundry provisions concerning a matter including that for the appointment of Prime Minister. Moreover, the discretion to appoint the Prime Minister has 15 been vested in none other than the President who is the head of the republic. Hence, the presumption that he will act impartially should always weigh in his favour. Dissolution of the House: The Lok Sabha and the Vidhan Sabha of each State are dissolved at the end of their terms, every five years. However, this article only deals with irregular dissolutions, which occur before the term of a House is over. The theory behind the right to advise dissolution is that when the Government loses the confidence of the House, it may, instead of resigning, assert that the House itself has ceased to reflect the will of the electorate, which constitutes the political sovereign. Dissolution is thus an appeal to the electorate. Two major controversies in the dissolution of the House are first, whether the advice to dissolve the House should be tendered by the Prime Minister alone or the Cabinet as a whole and second, whether the President's discretion with respect to dissolution can override express advice to the contrary tendered by the council of Ministers. The former controversy had been raging among British jurists particularly in the last century, but has not been of much relevance in India, so the discussion here will be confined to the Presidential discretion in dissolving the House. President’s Discretion: The question has often come up whether it is binding upon the President to follow the advice tendered by the Prime Minister, regarding dissolution of the House, when the Prime Minster has lost the confidence of the House. When the Prime Minister enjoys the support of the House, advice to dissolve the House would be binding, since no alternative government is possible. Article 74(1) provides that the President shall act in accordance with the advice tendered by the Council of Ministers with the Prime Minister at its head. However in the case of Samsher Singh v. State of Punjab, Krishna Iyer, J. laid down certain exceptions 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. Such instances included situations regarding the dismissal of a government which had lost its majority in the House, but was refusing to quit office and the dissolution of the House of the People was required. However, the judgment also stated that even in cases regarding dissolution, the President should avoid getting involved in politics and act on the advice of the Prime Minister. Thus, the limits of the President's discretion are carefully circumscribed. However, the President, according to his oath of office, has to preserve, protect and defend the Constitution. So the President should not be bound by the unConstitutional advice of a ministry to dissolve the House. The House represents the will of the electorate, but the will of the electorate is subject to the Constitution. Hence the President will be bound to reject the advice if such advice is against the spirit of the Constitution. As per Dr, Eugene Forsey, in a multi-party system (as prevalent in India) it may be necessary for the President to refuse dissolution and consult the leaders of the Opposition parties or call on such persons to form a government. If all possible alternative Prime Ministers decline the task, then the only course left open is to allow the present government's proposal for dissolution. President's independent initiative There is a conflict of views regarding whether the head of the State can dissolve Parliament without such advice being given. There have been two instances in the history of Britain when the Crown dismissed a ministry that commanded the confidence of the House of Commons and dissolved the House. The first instance was in 1784. The King, George III removed the Prime Minister from his office and installed Pitt as Prime Minister. He proceeded to dissolve the House of Commons and in the ensuing elections, Pitt won decisive victory. But the question was raised whether the actions of George III were Constitutional. George III believed that the House of Commons no longer represented the wishes of the 16 
