Others, including this blog, have already explained the Court’s two opinions. Therefore, in this piece, I will skip discussing the basic facts and issues outlined in the case. This post, moreover, does not seek to excavate reasoning I thought latent in the two opinions. Instead, I want to bring an argument about the ECI’s functioning into conversation with the guarantor-institution argument advanced so far.
This post uses two concepts: operational accountability and structural accountability. Theoretically developed by Professor M Mohsin Alam Bhat, operational accountability refers to oversight over an institution’s functions, whereas structural accountability is ensured by “creating processes that protect [fourth-branch institutions’] independence, competence and neutrality.” In this post, I argue that the ECI, due to the nature of the extra-legal functions it has arrogated to itself, can only be held accountable through securing its structural independence, as opposed to through operational accountability—leaving the Court with no alternative but to overhaul the appointments process.
The guarantor-branch argument
Government is traditionally thought to consist of three branches—the executive, legislature, and judiciary. ‘Fourth-branch institutions’ are a relatively recent conceptual development. As Mark Tushnet has it, fourth-branch institutions comprise specialized bodies—electoral commissions, ombudsperson offices—that protect and stabilize constitutional democracy. In Sri Lanka, for instance, the Constitutional Council—which has been replaced and reinstated more than once since its inception—oversees appointments to certain commissions, including the election commission. South Africa also constitutionally entrenches certain institutions; a chapter called “[s]tate institutions supporting constitutional democracy” has special provisions for, inter alia, the country’s electoral commission, human rights commission, and the public prosecutor. The ECI has been, historically speaking, a relatively successful guarantor institution; India’s democratic legitimacy rests, more than anything else, on its having conducted largely free and fair elections federally at regular intervals (with the notable exception of the Emergency in 1975–77). However, controversies over the years have sometimes cast doubt on its popular legitimacy—necessarily rooted in its ability to transcend the partisan fray—largely based on the control the executive wielded in the status quo ante over appointments to the ECI..
This judgement, the argument goes, is the first step in the process of shielding these institutions from executive capture. Non-self-enforcing norms, in this case democracy, require independent institutions. Democracy, as evidence worldwide shows, is susceptible to democratic backsliding, a process in which liberal institutional norms are steadily eroded to ensure the longevity of the government du jour. In India’s case, because of the way our Constitution was drafted, this might require straying away from the traditional Montesquiean separation of powers. India, unlike countries like South Africa or Sri Lanka, has not baked in sufficient safeguards in its Constitution to sequester certain institutions from executive control. Protecting constitutional democracy, therefore, would require reimagining our rigid interpretation of the doctrine. We can therefore frame this judgement differently: as a verdict that shores up the separation of powers, when understood more expansively than the state’s three-way ramification.
The Court’s verdict, therefore, is said to be justified within this framework. However, while it answers why independence is required, the path the Court picked is still open to questioning. To justify the second part, we must examine the nature of the ECI’s powers. This element, I argue, completes the reasoning for the Court’s decision to (temporarily) replace the existing framework for selecting election commissioners (ECs).
Operational and structural accountability
Professor Bhat argues that the nature of the ECI’s powers repels operational accountability. What are these powers? According to article 324(1) of the Constitution of India, “the superintendence, direction and control” over the preparation of electoral register and conduct of elections is vested with the ECI. However, as Justice KM Joseph notes, this responsibility has steadily grown to encompass a wide range of powers. The ECI, he writes, “may exercise [article 324] in an infinite variety of situations” (para 156). After the 2002 Gujarat pogrom, for instance (discussed in para 157 of the verdict), the ECI refused early elections in the state. The violence deepened fissures between the Hindu and Muslim communities. State complicity was documented and alleged. In those conditions, the conduct of free and fair elections, in any meaningful sense, was an impossibility. The Supreme Court sided with the ECI, going so far to say that even Parliament could not supersede its power to determine election schedules.
This is only one constituent element in the ECI’s constellation of regulations. Much of the ECI’s powers are what Professor Bhat dubs “ANN regulations”—modalities of architecture, nudge, and notice. The ECI has exclusive control over physical electoral infrastructure, like electronic voting machines and so on. It also has the power to recognize and de-recognize political parties (the subject of recent controversy). Alongside these architectural regulations, the ECI has a Model Code of Conduct (MCC), a classic example of a nudge—it’s not legally binding, after all. Lastly, asset and criminal case disclosure requirements are what regulation scholars have called notice.These run the gamut of extra-legal election powers.
The Court has been complicit, through its “jurisprudence of deference,” in the ECI’s gradual colonization of powers. What Professor Bhat is referring to is the Court’s complaisance and alliance with the ECI—not only has it submitted to the ECI’s wisdom, but it has also seen it as a co-equal in its election reform cases. However, the nature of the powers the ECI has arrogated to itself pose another problem: they are often done without the subjects of the regulation knowing. As a result, Professor Bhat points out, the ECI can make considerable covert changes, without due process or deliberation, and that the scope for error is considerably wider. The ECI’s opaque process of determining electoral schedules (a double-edged power the Court was happy to endorse in 2002) as well as selective enforcement of the MCC are regulations that, arguably, do not lend themselves to judicial or popular oversight.
The ECI’s decisions count for much in today’s fragmented electoral landscape. Compared to the period of Congress hegemony, the coalition period has, on one scholar’s view, coincided with growing political consciousness, increasing the ECI’s responsibilities. Therefore, to allow the existing state of affairs to continue—with de facto executive control over appointing ECs—would severely compromise democracy.
Steeling the appointment process
Given the inability to oversee these extra-legal powers, which are largely exercised in situations that are then presented as faits accomplis, ensuring independence is the only way to secure accountability—structurally, if not operationally. The Constitution does not leave the ECs defenceless: article 324(5) provides them fixed and relatively secure terms. However, owing to an inability to reach a consensus in the Constituent Assembly, appointment was left to future parliamentary wisdom. In the absence of a statute, however, the task of appointing ECs has fallen on the Executive.
The dangers of such a state of affairs were laid bare in the case of Arun Goel’s recent appointment as an EC, discussed at length by Joseph J. Goel served as a high-ranking bureaucrat before he sought voluntary retirement six weeks ahead of his superannuation. He was then appointed an EC post-haste. As he was a month shy of sixty at the time of his appointment, this meant that he could not serve the full six-year term—section 4(1) of the Chief Election Commissioner and Other Election Commissioners (Conditions of Service) Act 1991 says that an EC must vacate her office upon turning sixty-five. A proviso says that in the event she turns sixty-five before the six-year period, she must vacate her office upon turning sixty-five. However, according to Joseph J, this exception has swallowed up the rule. This “undermines the independence of the Election Commission” (para 195). The threat posed by executive control over appointments is therefore not a hypothetical question.
The Court thus engaged in a “gap-filling” exercise, devising a temporary committee comprising the prime minister, leader of opposition in the Lok Sabha (or leader of the largest single party in opposition, if no leader of opposition has been officially notified by the Speaker), and chief justice of India. Many have already cast doubt on the efficacy of such a committee. But, as Gautam Bhatia notes, this constitutes a valuable first step in ensuring the independence and structural accountability of the ECI.
The Court’s constitution of a new mechanism of appointing ECs is an important step in pushing back against what Tarunabh Khaitan calls “killing the Constitution with a thousand cuts”—a pattern of subtle and incremental assaults on constitutionalism, arguably more insidious than the Emergency régime’s frontal assault on constitutional norms. However, as Joseph J’s history of the ECI tells us, this is not régime-specific; the constitutional design of the ECI renders it vulnerable to executive-led institutional erosion.
While the optimism over the judgement is not uncalled for, the fight for electoral accountability is far from over. The selection committee is temporary; the final committee will be set up by Parliament. It is entirely within the realm of possibility that Parliament creates an asymmetric committee, and a case challenging it is set into cold storage. This—by which I mean the set-up of the ECI—is a larger problem with the Constitution itself, as Bhatia highlights. We will have to think with and through this beyond the courtroom. This article was first published in the Indian Constitutional Law and Philosophy blog: https://indconlawphil.wordpress.com/2023/03/09/decoding-the-supreme-courts-election-commission-judgment-iii-on-assuring-accountability-guest-post/