Abstract
AbstractComparative law and politics literature widely recognizes the role of election management bodies (EMBs) in securing the well-being of constitutional democracies. Scholars have noted the political desirability of both independence and accountability of these institutions. But striking balance between these two values is easier said than done. This Article highlights the dilemma of accountability by focusing on India's Election Commission (ECI) as a paradigmatic version of a powerful EMB. Scholars of Indian politics have long noted the institution's widening powers – often beyond the original constitutional intent or parliamentary legislation – over the last few decades. This, they argue, has impaired its institutional accountability. This Article adopts a fresh perspective on the ECI's expansive functions, and the attendant concerns these raise. It argues that the ECI regulates the electoral process not through what we may ordinarily identify as the law. The most compelling and consequential of its functions are through extra-legal modalities of regulation. Drawing from recent scholarship on regulation, the Article argues that the ECI shapes the electoral environment and behaviour through non-legal modalities of architecture, nudge and notice-based regulations. Much like the other fields where they are deployed, these extra-legal modalities exhibit unique, and in many ways, inherent limitations with respect to transparency. It is thus this character of the ECI's functions – rather than only their widening breadth – that poses the most significant challenge for democratic accountability. Based on this assessment, the Article notes that for powerful EMBs like the ECI, accountability in the form of on-going operational accountability is inherently limited in compelling ways. This increases the stakes for accountability of these institutions through other means, particularly by securing their constitution, composition and tenure.
Highlights
There has been increasing scholarly appreciation for the role of fourth branch institutions in securing the health, vibrancy and longevity of constitutional democracies.1 One of the most significant of these institutions, election management bodies (EMBs), are especially crucial for preserving the integrity of democratic processes.2 Political insulation allows EMBs to prevent capture and Downloaded from https://www.cambridge.org/core
Scholars have noted the political desirability of both independence and accountability of these institutions. Striking balance between these two values is easier said than done. This Article highlights the dilemma of accountability by focusing on India’s Election Commission (ECI) as a paradigmatic version of a powerful EMB
The Article shows that the ECI primarily regulates the electoral process not through what we may ordinarily consider as the law, in the form of rules for guiding behaviour and prohibitions backed by sanction
Summary
Architectural regulations are different from legal regulations in at least three important respects: focus, modus operandi and efficacy. I will focus here on two examples: the registration of political parties, and determination of election schedules In both these instances, the ECI has focused regulation on the design of electoral activity, or in other words, the electoral architecture. The Court ruled at para 40 that since the legislative framework does not provide this power explicitly, the ECI cannot de-register political parties. The ECI’s authority runs parallel to the ordinary legal framework, and sometimes even trumps parliamentary legislation These features give enormous discretion to the ECI, transforming it from a managerial agency to a regulative institution that shapes the structure of Indian democracy
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