Enforcing a Convention, and Breaking One
Chapter Twenty-Five
Syllabus topic 2, "Conventions in Constitutional Law."
Pages 110 to 113 of 676
In one line
No court will order compliance with a convention, but four things can happen instead, and three of them are legal.
In the wording a student can write in an exam: no court will enforce a convention directly, but its breach may be met by a judicial declaration that a course is unconstitutional in the conventional sense, by judicial review of the legal power the convention constrained, by a legal principle derived from the values the convention protects, or by the political consequences of the breach, and an answer should distinguish all four.
The rule and the four qualifications
The rule. No court will grant a remedy for breach of a convention as such. Reference re Resolution to Amend the Constitution, [1981] 1 SCR 753, decided on 28 September 1981, and R (Miller) v. Secretary of State for Exiting the European Union, [2017] UKSC 5, are the two authorities.
Qualification one: declaration. In Canada in 1981 the Court declared the federal course unconstitutional in the conventional sense. That is not a remedy, and it changed the outcome.
Qualification two: review of the underlying legal power. A convention almost always regulates the exercise of a legal power, and that power is reviewable on ordinary administrative and constitutional grounds. In Nabam Rebia v. Deputy Speaker, Arunachal Pradesh Legislative Assembly, (2016) 8 SCC 1, the Governor's power under article 174 was held exercisable only on the aid and advice of the Council of Ministers, and everything done under his own summons was set aside. The convention was not enforced; the power was reviewed.
Qualification three: a legal principle from the same values. In R (Miller) v. The Prime Minister, [2019] UKSC 41, the Supreme Court derived a limit on prorogation from parliamentary sovereignty and the accountability of the executive to Parliament. It enforced no convention and reached the same place.
Qualification four: political consequence. Loss of confidence, loss of office, loss of an election. This is the ordinary case and the one students underrate.
What the courts will not do, stated precisely
The clearest modern statement is Indian. In In re Assent, Withholding or Reservation of Bills by the Governor and the President, decided on 20 November 2025, on a Presidential Reference under article 143, the Supreme Court held:
that no timelines may be judicially prescribed for the exercise of the functions under articles 200 and 201;
that no deemed assent may be granted under article 142;
that the exercise of the article 200 function is not justiciable on its merits;
and that a limited mandamus lies where there is prolonged, unexplained and indefinite inaction.
Read those four together and the boundary is exact. The court will not write the convention into the provision, will not substitute its own decision, and will not review the decision on its merits. What it will do is require that a decision be taken at all, because a total failure to exercise a power conferred for a purpose is a legal wrong independent of the convention.
Enforcing a Convention, and Breaking One
That decision displaces so much of State of Tamil Nadu v. Governor of Tamil Nadu, decided on 8 April 2025, as had prescribed timelines and treated assent as deemed. An answer written from the earlier case alone is now wrong, and the date is the thing to get right.
A worked example
The head of State refuses assent to every Bill a government presents.
Convention: assent is given on advice.
Direct enforcement: none. No court will order the head of State to sign.
Review of the power: available in India, and narrow. A limited mandamus lies against prolonged, unexplained and indefinite inaction, on the 2025 Reference.
Derived principle: possible. A British court, faced with a systematic refusal, would have the reasoning of Miller No 2 available, and section 3 of the Dissolution and Calling of Parliament Act 2022 shows what Parliament may do about that.
Political consequence: the government cannot legislate, the legislature cannot function, and the office of the head of State becomes the issue at the next election.
The cases
Facts. Nabam Rebia v. Deputy Speaker, Arunachal Pradesh Legislative Assembly, (2016) 8 SCC 1, arose when the Governor of Arunachal Pradesh, during a political crisis, advanced the session of the Assembly on his own initiative and fixed its agenda, including a motion for the removal of the Speaker, against the advice of the Council of Ministers.
Held, by a Constitution Bench of five. The Governor's powers under article 174 to summon, prorogue and dissolve are to be exercised on the aid and advice of the Council of Ministers; the discretion preserved by article 163(1) is confined to the functions the Constitution expressly requires him to exercise in his discretion. The Governor's actions and all that followed were set aside and the position restored.
Why it matters here. It is the leading illustration of qualification two. The Court did not say that the Governor had broken a convention; it said that he had exercised a legal power outside its limits.
Facts. R (Miller) v. The Prime Minister, [2019] UKSC 41, [2020] AC 373, concerned advice to prorogue Parliament for five weeks.
Held, unanimously by eleven Justices. A decision to prorogue is unlawful if the prorogation frustrates or prevents, without reasonable justification, the ability of Parliament to carry out its constitutional functions. The advice was unlawful; the prorogation was null and of no effect.
Enforcing a Convention, and Breaking One
Why it matters here. It is qualification three, and the answer Parliament gave, section 3 of the 2022 Act, is the limit of qualification three.
Distinctions
| Response to a breach | Legal? | Example |
|---|---|---|
| Order compliance with the convention | No, never | Refused in 1981 and in Miller No 1 |
| Declare the course unconstitutional by convention | Yes, where the procedure allows | Patriation Reference |
| Review the legal power the convention constrained | Yes | Nabam Rebia; S.R. Bommai |
| Derive a legal principle from the same values | Yes | Miller No 2 |
| Require a decision to be taken at all | Yes, narrowly | In re Assent, 20 November 2025 |
| Political consequence | Not legal | Loss of confidence, loss of office |
What beginners get wrong
"Conventions are enforced by the courts in India." They are not. What is reviewed is the exercise of the constitutional power, and the 2025 Reference marks the outer limit of that review.
"Miller No 2 enforced a convention." It did not. It derived a legal limit from constitutional principles and said so.
"An unenforceable rule is not a rule." Canada in 1981 disposes of that.
Limits and criticism
Qualification three is contested. Deriving legal limits from constitutional values is the technique most criticised as judicial overreach, and the 2022 Act was Parliament's answer.
Qualification two depends on there being a reviewable power. Where the convention governs the internal conduct of a legislature, articles 122 and 212 exclude the courts.
Qualification four depends on functioning politics. Where the legislature, the press and the electorate are weak, breach carries no cost.
Quick revision
- The rule: no court orders compliance with a convention as such.
- Declaration: the Patriation Reference, [1981] 1 SCR 753.
- Review of the underlying power: Nabam Rebia, (2016) 8 SCC 1; S.R. Bommai, (1994) 3 SCC 1.
- Derived principle: R (Miller) v. The Prime Minister, [2019] UKSC 41, answered by section 3 of the 2022 Act.
- Requiring a decision at all: In re Assent, 20 November 2025, limited mandamus for prolonged, unexplained and indefinite inaction.
- No timelines, no deemed assent under article 142, no review on the merits of article 200.
- The 2025 Reference displaces the timelines and deemed assent in the 8 April 2025 decision.
Test yourself
1. Can a convention be enforced? Answer with the four qualifications. Not directly. But a court may declare a course unconstitutional in the conventional sense where the procedure permits the question, as in the Patriation Reference; it may review the exercise of the legal power the convention constrained, as in Nabam Rebia; it may derive a legal principle from the values the convention protects, as in Miller No 2; and the political system may impose the cost of breach.
Enforcing a Convention, and Breaking One
2. State the exact boundary drawn by the Indian Supreme Court in November 2025. No timelines may be judicially prescribed for the exercise of the functions under articles 200 and 201; no deemed assent may be granted under article 142; the article 200 function is not justiciable on its merits; and a limited mandamus lies where the inaction is prolonged, unexplained and indefinite.
3. Why is review of the underlying power not the same as enforcing the convention? Because the ground of review is a limit on the legal power, not the convention. In Nabam Rebia the Court held that article 174 must be exercised on advice because article 163(1) confines the Governor's discretion to expressly conferred discretionary functions. Had the Constitution given the Governor a discretionary power to summon, the convention would have been the same and the review unavailable.
4. What is the limit of the technique used in Miller No 2? A sovereign legislature can close it. Section 2 of the Dissolution and Calling of Parliament Act 2022 revived the dissolution prerogative as if the Fixed-term Parliaments Act 2011 had never been enacted, and section 3 provides that a court may not question the exercise or purported exercise of those powers, any decision relating to them, or the limits or extent of them.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.