EC in a time of executive resurgence

Susan Ostermann/Amit Ahuja India in transition | Updated on July 17, 2018 Published on July 17, 2018

The Election Commission must zealously guard its hard-won powers and credibility against an aggressive executive

Scholarly and popular accounts of institutions in developing countries have largely been dominated by twin narratives of institutional capture and decay. The Indian Election Commission (EC), however, acts with integrity and has capably expanded its power.

What explains the EC’s surprising success? Having overseen the completion of 16 national and 350-plus state elections since Independence, the EC is one of the most widely-celebrated and trusted public institutions in India, enjoying substantial powers and conducting some of the longest elections in the world.

Yet, the EC was not always as prominent or powerful. Its profile has changed substantially since its creation in 1950. Understanding how a public institution, in general, and the EC, in particular, is able to enhance its powers is important because societies are well-governed to the extent that their public institutions can manage the demands imposed upon them. These demands cannot be underestimated in a diverse society with highly contentious politics.

Both India’s democratic system and state secure their legitimacy through regular free and fair elections that the EC is responsible for conducting. While we know that political control over the bureaucracy has limits, expansion of institutional power is not well understood, and the “set of internal and external incentives that shape the behaviour of these institutions” remain under-theorised.

This was true of the EC as well, until recent work by Devesh Kapur, Pratap Bhanu Mehta, David Gilmartin, Alistair McMillan, Ornit Shani, Robert Moog, Eswaran Sridharan, and Milan Vaishnav.

We build on this spate of contemporary work and use a historical process-tracing approach to determine the mechanisms by which the EC has been able to interpret its mandate expansively and enhance both its power and status, with Model Code of Conduct (MCC) implementation and election duration used to gauge expansion.

From the 1990s onwards, the MCC was enforced and the duration of national as well as State Assembly elections increased sharply. In addition to analysis of EC electoral data, we interviewed six Chief Election Commissioners, four Chief Election Officers, eight EC officials, over 60 party officials and leaders, and hundreds of voters in Uttar Pradesh, Bihar, Maharashtra, and Tamil Nadu.

Three conditions

The data suggest that, in a federal democracy, mandate expansion is contingent upon at least three conditions. First, institutional constraints must be weakened, as they were for the executive in particular with the decline of the Congress party’s dominance and emergence of coalition governments between 1989 and 2014.

Second, state-based actors must demand a competent, neutral arbiter, as state-based parties did during the phase of party system fragmentation and party proliferation in the 1990s and 2000s. Third, entrepreneurial bureaucratic actors must take advantage of moments of political opportunity, as TN Seshan did in in the early 1990s when he elevated the status of Chief Election Commissioner to that of a Supreme Court judge, introduced election observers and voter ID cards, and refused to take executive direction.

Those aspects of the federal bureaucracy that can credibly meet state-level demands under these conditions can expand their powers. In particular, the slow accretion of credibility over time through basic competence, when followed by equal treatment of key actors during periods of political uncertainty, allows institutions to strategically use accrued capital to substantially increase their power and status.

But what happens in the face of a resurgent executive?

The 2014 parliamentary elections saw the re-emergence of a strong executive after a gap of 30 years, with a Narendra Modi-led Bharatiya Janata Party (BJP) gaining a parliamentary majority. Our research suggests that a stronger executive was bound to reassert itself and reclaim the authority it had ceded to the EC over the years. Still, given the credibility the EC has accumulated, even a strong executive must avoid an open challenge to the EC’s institutional authority.

It should not be surprising, then, that the executive has instead turned to the tactic of limiting the EC’s authority from within by appointing pliant election commissioners. A recent example is illustrative. Under the leadership of Chief Election Commissioner AK Joti, a former Principal Secretary to Modi during his tenure as Gujarat’s Chief Minister, the EC deferred the 2017 Gujarat State Assembly elections.

This move went against the EC’s own convention and opposition parties alleged that the EC’s actions were designed to delay the implementation of the Model Code of Conduct and allow the BJP-led Gujarat government to announce new programmes that might convince voters to cast their ballots for the BJP.

In a separate incident, CEC Joti disqualified 20 legislators of the Aam Admi Party, from the Delhi Assembly. As this move occurred without following due process, the CEC was criticised for his actions.

Together, these actions point to a more consequential slide. The EC’s moves in Gujarat and Delhi have cast a shadow over the EC’s reputation for neutrality, something it has gradually built over decades.

But the election commissioners are not as helpless in front of a marauding executive as they were in the 1980s.

Today, entrepreneurial election commissioners can leverage the EC’s enhanced reputation to retain its authority and stand up to the executive.

To assert its authority, the EC can also draw on the demand for a reputable referee institution among India’s national and numerous regional political parties. It risks politicisation of the institution, however, if it relies solely on political party demand. And, ultimately, if the election commissioners, and the chief election commissioner in particular, are unwilling to protect the EC’s institutional autonomy from the executive who appointed them, the EC will struggle to maintain its power and reputation.

To the degree that the executive wins this battle, we expect shorter election duration and weaker Model Code implementation.

The EC stands out as a credible referee institution, not only in India’s neighbourhood, but across the developing world, where contested election results and biased referee institutions have often weakened the foundations of democracy.

However, the EC is not invincible. In fact, as the recent experience in the US has highlighted, neutrality of referee institutions and the credibility of the democratic process cannot be taken for granted even in long-standing democracies.

They are vulnerable to being undermined from the outside and from within.

Ostermann is Assistant Professor at the Keough School of Global Affairs, University of Notre Dame and Amit Ahuja is Associate Professor of Political Science at the University of California at Santa Barbara. This article is by special arrangement with the Center for the Advanced Study of India, University of Pennsylvania

Published on July 17, 2018
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