Creating Spaces for Democracy

The unfolding of electoral governance has shown that the powers of Parliament and the ECI remain overlapping and therefore contested, owing to the ambivalence in the Constitution on their relative powers. The precise areas of uncertainty and dispute exist around the competing claims of Parliament and the ECI over the power to govern and the responsibility to govern, respectively. While these contending claims apparently relate to the first level of electoral governance, that is, the level of lawmaking, since this is the level where Parliament is pre-eminent, the tension over unclaimed power manifests itself mostly at the levels of rule application and rule adjudication. This chapter explores areas of contestation over the question of ‘purity’ of the electoral space and democracy, and pertains to the right to know, political corruption and electoral finance, disqualification of members, regulation of electoral funding and expenditure, disenfranchisement of convicted offenders, and charge-sheeted candidates, among others.

Electoral Roll, the ‘Vote’, and Democracy

The ECI is a constitutional body entrusted with the responsibility of giving effect to the principle of equality of the citizen-voter, ensuring that no eligible voter was excluded from the electoral rolls on grounds of religion, race, caste, or gender. This role has unfolded in uneven and contradictory ways, made manifest in those contexts where the ECI has been implicated in disputes over citizenship. Disputes over electoral rolls show that the responsibility of superintending the preparation of electoral rolls has, in specific contexts, translated into the power of the ECI to identify legitimate voters and to sift out citizens from non-citizens. In addition, a stern adherence to procedures in contexts of suspicious increase of voters, has also led the ECI on a collision course with specific state governments. This chapter examines the ‘vote’ as a dynamic expression of inclusion, and also studies in this context the Systematic Voters’ Education and Electoral Participation (SVEEP) programme—a relatively recent innovation by the Election Commission—to register voters and educate them to cast an informed vote. This has been done through a field study in a district in Jammu region.

Conclusion

What is it that makes the Election Commission of India (ECI) a trusted institution, which performs its functions more effectively than other institutions of the state? Notions of India as a ‘flailing state’ point at the dissonance between the strength of higher bureaucracy in drafting policy and its weakness in implementing them. Others have talked of ‘embedded autonomy’ to puzzle over the bureaucratic state apparatus in India, which is not embedded enough to have strong networks in civil society and the dominant classes. The ECI can be seen, however, as an example of a centralised bureaucratic apparatus which has sustained itself as an institution where the head is as robust as its limbs in the states and districts. The robustness of the ECI and its ability to renew itself, despite flaws in its design, and the influence of the political field, has largely emerged from its ability to enhance its constitutional powers. The ECI’s powers of self-regulation and its tendency to consolidate and enhance its powers have contributed to making the ECI a relatively autonomous institution, with a distinctive identity deriving from the democratic logic of the state.

‘Election Time’ and the Model Code of Conduct

The expression ‘election time’ refers to the distinct temporal rhythms of elections, the modalities of democratic deliberation that are structured differently from those that obtain in normal times, and to the extraordinary legal regulation of elections. This chapter examines the Model Code of Conduct (MCC) as an innovation in electoral governance outside the framework of electoral laws as an expression of a ‘voluntary act of political morality and collective ethics’ by political parties. Through a study of specific cases, the chapter dwells upon the disputes over MCC, especially the manner in which it enhances the disciplinary powers of the ECI. While the Model Code does not have the force of law and is largely seen as having only a moral force compelling ‘voluntary adherence’, it has come to assume the complementary legality. In the absence of any statutory backing, the Model Code occupies, however, fuzzy grounds with regard to both its authoritative character and certainty of implementation.

The First General Elections

The first general election in India (1951–52), according to Chief Election Commissioner Sukumar Sen, was an ‘act of faith’, referring to the formidable task of holding the first general elections in a country that had moved into universal adult franchise immediately upon its liberation from colonial rule. The narrative reports of the ECI, prepared after every general election, and innumerable other documents of the ECI constitute a record of the development of bureaucratic practices specific to electoral governance. They also express the ways by which the ECI acquired an identity within the state apparatus commensurate with the constitutional responsibility of performing a political function, while remaining outside the political domain. Contestations over some of the core components of integrity in electoral governance, including questions of adequate representation, inclusive electoral rolls, and a code of conduct for political parties, among others, became crucial in the quest for procedural certainty. The resolution of these contests had ramifications within the political domain.

Introduction

When the framers of the Indian Constitution provided for an institution to ‘superintend, direct and control’ the conduct of elections, they had envisaged a body that would be sufficiently empowered to discharge the responsibility of making the exercise of franchise free and fair. The Election Commission of India (ECI) is not a statutory body. Provided for by the Constitution of India (Article 324), the ECI has a different pedigree, which generates a different set of rules of recognition and source of validation of its authority. The pedigree of the ECI’s powers, which can be traced to Article 324 in the constitutional architecture, has paved the way for the Article becoming, through authoritative judicial interpretations, a repository of the ECI’s powers. These powers buttress the autonomy of the ECI, making it also a site of contestation between itself and the different political regimes.