Judicial overreach is not the answer to our democracy’s flaws

The Supreme Court entertaining a petition on the appointment of an Election Commissioner and the casual comments of judges on the bench during the hearing raise certain uncomfortable questions. Is the court biting off more than it can chew? More important, are we missing the woods for the trees?

That a constitutional functional should be able to act without fear or favor is undeniable. Ideally, there should be a transparent, credible process for selection of key functionaries of state. But the notion that the Election Commission over the years has not discharged its duties in a competent and impartial manner is erroneous. The assumption that the Supreme Court should intervene in constitutional appointments is a perversion of the Constitution. The court has a vital role in protecting our liberties, determining the constitutionality of laws and rules, functioning as a federal court settling disputes between the Union and states, or between states, and as a last court of appeal. But it cannot usurp the functions of the elected Government or Parliament.

Democracy is an incredibly complicated, delicate system. We need constitutional authorities to ensure fairness and predictability. Our Constitution makers wisely created the Supreme Court, Election Commission, Finance Commission, Comptroller and Auditor General, and the Union Public Service Commission. By and large, they have functioned well and strengthened our democratic process. Some constitutional authorities — particularly in the states — could not acquire the same stature and credibility.

In a raucous democracy in an extraordinarily diverse society with mass poverty, the elected representatives, political parties and governments are always under scrutiny and subject to harsh criticism. Sometimes this criticism is justified. At all times healthy skepticism is a necessary safeguard against tyranny. Constitutional authorities must act as guardrails of democracy, but there is no case for their usurping the role of elected governments. World over, people’s trust in elected legislatures and governments is declining. There is always a temptation for unelected institutions to encroach upon executive domain.

Our Supreme Court, with good intentions, has taken over the power to appoint judges of constitutional courts. When Parliament enacted the 99th Amendment to create a process for judicial appointments, the court struck it down on questionable grounds. In no other democracy does an unelected institution appoint itself. All legitimacy in a democracy should be traced to the citizen. The voter directly elects the legislature.

Where there is clear separation of powers the executive is elected by the voters directly. In a parliamentary executive system like ours, the cabinet is a creature of the legislature. All other organs should trace their legitimacy to either the elected legislature or the executive. The Supreme Court has erred in taking over judicial appointments. The loss of credibility of politicians in general allowed the court to get away with this judicial overreach.

By all accounts, the collegium system has not worked well. Judicial appointments by the collegium have sometimes been questionable. There is no evidence that the courts are functioning better now than in earlier days. The CBI director, by law, is appointed by a collegium of the Prime Minister, Leader of the Opposition and the Chief Justice of India. And yet the CBI is often, and rightly, criticized for being a caged parrot. There is no doubt that our institutions need to perform better, and that rule of law in letter and spirit should be observed. But the easy conclusion that the Supreme Court can solve all challenges of politics and democracy is a dangerous delusion.

The Election Commission since its inception in 1950 has performed creditably. Sukumar Sen, the first Chief Election Commissioner for nearly nine years, conducted the first two general elections and established traditions, procedures and practices which are serving us well even now. Indian elections today involve about 80 lakh public servants managing the whole process, including nominations, enforcing the code of conduct, conducting polling in over 10 lakh booths, counting and declaration of results. The three-member Election Commission is merely at the apex of the system, but the real work is done by the chief electoral officers in states, district magistrates and commissioners of large cities functioning as district election officers, the returning officers and the vast machine under their supervision. Our lower bureaucracy in general is not known for competent delivery or responsiveness and integrity. However, because of the systems and practices perfected over decades, the same moribund, inefficient bureaucracy is transformed into a competent, empowered, well-oiled machine during conduct of elections.

Successive Election Commissioners acted with fierce independence and integrity though they were appointed by the political executive. T Swaminathan, SL Shakdher, RVS Peri Sastri, TN Seshan and many other reputed CECs were appointed by elected governments and conducted free and fair elections. On occasion there were questions about a few appointments. But the established traditions and practices, the culture of independence of the bureaucracy across the country during election time, the intense public scrutiny and total transparency of the process ensured that our elections were conducted in an exemplary manner, given the complexity, vastness and general democratic deficit

Look at the US Despite its long history, powerful institutions, enormous wealth, technological excellence, high-quality public discourse and public awareness, election results are contested and democracy was almost derailed because of mistrust in an election. In India, every election verdict was accepted by the people and parties, and peaceful transfer of power is institutionalized against heavy odds.

Let us not look for problems where they don’t exist. Conduct of election is not our real problem. Nobody can deny that our people are voting freely and voluntarily. The flaws of yesteryears have been substantially corrected through voter ID cards, EVMs, greater accountability of lower bureaucracy, etc. True, voters are often influenced by money power, promise of freebies at the cost of real functions of government, and primordial loyalties of caste , religion and region. But these problems can only be addressed through political and systemic correctives, not judicial and bureaucratic intervention or conduct of election.

Our democracy is flawed. These flaws are undermining our governance and jeopardising the future. But these are challenges that need to be addressed politically through innovative mechanisms. They cannot be fixed by the Election Commission or the Supreme Court. Let these August institutions do their jobs well. But let them not exceed their role and usurp democracy. Such unrestrained overreach will weaken democracy. True power lies in restraint. There is no substitute for improving the nature of our politics and building a better democracy. Let us build enlightened public opinion to reform our political process and governance and work assiduously and deliberately to improve both. There are no short cuts.

The author is the founder of the Lok Satta movement and Foundation for Democratic Reforms. Email: [email protected] / Twitter @jp_loksatta

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