Constitutional Customs and the Appointment of Chief Justice of India

19 Pages Posted: 2 Aug 2009 Last revised: 12 Aug 2009

Date Written: August 1, 2009


Custom is recognised as a source of law in international law and also in India. Art. 13 of the Indian Constitution recognizes custom as a law. But the only condition for it to be of binding nature is that it should not have been superseded by any legislation. This article examines the question as to whether customary law exist in the constituion of any country. This article deals with the issue of constitutional customs in the light of the appointment of Judges. I have also recommended the formation of National Judicial Commission. The purpose of this article is to examine certain question like; whether there exist any constitutional custom; what are the conditions which are necessary for existence of a custom in the constitution; which provisions of the constitution may be developed as a custom; whether the President is bound by the custom of appointing Judges of Supreme Court on advice of the Chief Justice. I have also examined the present appointment procedure of the Judges. Regarding this I have referred to questions like has this system stood the test of time‘ Does it sub-serve the purpose for which it was devised‘ Is it result oriented‘ Does it meet with the requirements expected of it in the Constitution itself‘ Are their any short comings of this system‘

I have proposed the theory of constitutional custom. Till now the Indian Judiciary has not decided any case on this theory. The very purpose of this article is to present the theory of constitutional customs so, that the Indian Judiciary while interpreting the constitution can take note of this theory.

Keywords: constitutional custom, appointment of judges, national judicial commission

JEL Classification: ZOO

Suggested Citation

Sharma, Sharda Girijesh, Constitutional Customs and the Appointment of Chief Justice of India (August 1, 2009). Available at SSRN: or

Sharda Girijesh Sharma (Contact Author)

P.G Dept. of Law, Patna University ( email )

Ashok RaJ Path
old pATNA
Patna, Bihar 800001

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