Governing democracy outside the law: India's election commission and the challenge of accountability

Bhat, M. Mohsin Alam (2021) Governing democracy outside the law: India's election commission and the challenge of accountability. Asian Journal of Comparative Law. ISSN 19320205 (In Press)

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Comparative 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 ordin�arily 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 char�acter 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.

Item Type: Article
Subjects: Social Sciences and humanities > Social Sciences > Law and Legal Studies
JGU School/Centre: Jindal Global Law School
Depositing User: Amees Mohammad
Date Deposited: 08 Feb 2022 09:00
Last Modified: 16 Jun 2022 07:16
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