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Mainstream, VOL LVIII No 50, New Delhi, November 28, 2020

The Institutional Life of Elections in India | Susan Sreemala

Saturday 28 November 2020

BOOK REVIEW

by Susan Sreemala *

Election Commission of India: Institutionalising Democratic Uncertainties 
Authors : Ujjwal Kumar Singh, Anupama Roy
Publisher: Oxford University Press, 09-Aug-2019
ISBN; 0199096961, 9780199096961
Length: 384 pages

Intuitively, elections mediate democracy. They provide the apparatus of political representation in democracies and much has been said about the method, outcomes, and environments in which elections perform the legwork of democracy in India. Amidst the seemingly unending accounts of elections in India, Ujjwal Kumar Singh and Anupama Roy provide a revitalising perspective on elections in India through their monograph on the Election Commission of India: Institutionalising Democratic Uncertainties (2019).

Singh and Roy’s intervention comes at a time when the debate on the electoral procedure is saturated with claims that the question of procedure is rooted in a “simple-minded belief in the magic of design” [1]. This idea, so popular in the study of elections in India in the past few decades, has effectively diverted attention away from a procedural and institutional study into understanding democratic processes towards capabilities that enable people to enter the arena of democratic politics i.e. processes. The dominance of the idea of electoral regulation as mere design is quickly unravelled as the book deftly navigates decades of legal-political and ideological negotiations on seeming technicalities which hold substantive weight in circumscribing the terms of democratic politics. The shift in focus that the book, from process to procedure, opens up critical terrain to engage with the varied approaches and guiding principles of electoral conduct since independence. The most crucial point of entry that Election Commission India offers is to revitalise the debate on procedure by re-examining it as dynamic and situated in a unique legal form- and worthy of, if not crucial to any understanding of democratic outcomes. In times when elections are treated like “games” in a saturated media environment, Singh and Roy’s re-examination of the institutions of democracy bring unprecedented clarity to the working (and the inexhaustible claim of its success) of the Indian democratic project.

Two electoral events happened in the course of two weeks at the beginning of November, 2020. The United States presidential elections and the Bihar state assembly elections happened in the midst of unprecedented uncertainties. Both races unravelled in a moment where anything was possible, the outcome of power was not predetermined, and both elections were very high stakes with burden of the hardships of the months preceding it. However, as the results unravelled in real time, the close electoral races ceased to resemble each other. A crucial difference comes to light- the lack of a unified body for the governance of the US elections. With discussions on the Electoral College system and the certification of results by state executive and legislatures, essentially “political” bodies, the significance of institutionalisation becomes manifest.

Singh and Roy’s expansive account of the Election commission is impressive not only in the shift in perspective of viewing Indian elections but also in that it offers a thorough historical account of a form of electoral governance that has not been articulated, much less analysed. Both authors bring to the book recurring themes from the body of their work on citizenship and extraordinary laws [2]. With a measured optimism for the project of “institutionalising democratic uncertainities”, they take the reader through comprehensive history of electoral regulations without compromising on any of their analytical rigour. The book is the authoritative monograph on the history and politics of the Election Commission of India and offers a coherent chronology of its evolution without making it the organising principle of the book.

While the first chapter provides an account of the first general election which was called an ‘act of faith’ and was for long, considered the largest experiment in representative democracy- it also situates and anticipates later arguments about the sort of bureaucratic and political concerns of electoral regulation. The first chapter is not only an account of the first general election but thematically addresses the significance of “institutionalising” various procedural norms and certainties to make citizens visible. It traces various discussions of migration, enrolment, and delimitation of constituencies to their originary moment. In articulating the normative concerns over exclusion and the ecompassing quality of consolidating the electorate it becomes clear that the concerns of making political community are central to the process of electoral regulation. Recognising the constitutional imperative that guided the creation of the Representation of People Act, 1950 and 1951- the core of their analysis lies in the evolution of these imperatives into various legal forms - supplementary and moral. It navigates the contestations of the political community - its constitution and its capacity for disenfranchisement and acts as a valuable extension to the work of Anupama Roy in Mapping Citizenship in India.

The second chapter continues to engage with these questions of bringing more people into the fold of an electorate of inclusion to the voter rolls and its bearing on citizenship, The irreconcilable contest between the categories of the citizen and the voter are fleshed out in this chapter which have been flagged off and anticipated in Roy’s earlier work, especially with regard to the question of enfranchising migrants in the post-partition period and in the Assamese problem of the “foreigners”. The notable difference in their consideration of these questions from Roy’s previous work is the legitimate authority of the election commission in determining the question of inclusion adjudicated through various negotiations of its legal status through notable judgements.

The third chapter provides the most definitive formulation of the insight into the legal space occupied by the Election Commission as an independent legal entity that draws its mandate from the constitution, the RPA, 1951 and performs its task of electoral management through a system of supplementary legality. It details the nature of the Model Code of Conduct as a distinct moral force, and makes an argument for allowing the function of electoral regulation outside statutory force. It is in this “special” legal zone, which are recurrent themes in Singh’s work on exceptional laws, that one finds the most extensive articulation of the normative core of Singh and Roy’s book.

While working through the dense archival material the authors produce a pivotal normative framework while grappling with what would otherwise be nothing more than mundane procedure. Singh and Roy advance a crucial formulation that guides their evaluation of the work of the Election Commission of India, that of creating procedural certainties and democratic uncertainties. They identify Election Time as a specific and distinct moment of the reversal of ordinary power when the exercise of popular sovereignty is made possible, where the will of people is made visible. The distinctive legal zone occupied by the Election Commission of India is guided by these normative concerns- of maintaining a radical uncertainty about power. To understand the unique temporality and the associated normative ends in which the conduct of elections happens, one could use the idea of Election Time. Election Time is a historically and legally constituted category that Singh and Roy examine as having certain temporal properties with normative ends, as special time constituting a reversal of normal/ordinary power, and characterised as an “electoral trial which generates certain ideological content and deliberation. The significance of ‘election time’ is marked by the imperatives to maintain procedural certainty to produce an uncertainty of outcome through stringent implementation of the electoral regulations (ibid.) which “supplements an absence of law” (pp. 228). The nature of electoral regulation then becomes an act of ensuring procedural certainity to the conduct of elections. The creation of such procedural certainty is manifest in the extensive documentation of the bureaucratic procedures and the standards of electoral conduct. An account of the Election Commission’s workings is therefore the only point of entry into the supplementary framework of legality in which electoral regulations operate. As the book observes that the election commission operates within a sphere of supplementary legality as the legislature and the judiciary are legally unable to influence the mandate of the election commission within Election Time.

In this context Singh and Roy explore the politics of the election commission itself- marking its own ‘phases’ as it evolved its regimes of statutorily non-binding regulation. They look at the influence of the various Chief Election Commissioners, identifying the evolving approaches of the election Commission, especially with the evolution of the Model Code of Conduct. The history of the Model Code of Conduct is a unique accomplishment of the book as it identifies its evolution from being a code of consensus in its early formulation to the drawing up of an official code of conduct which allowed for some innovation on the part of the Election Commission. It is here that the normative concerns of the Election Commission become most evident. The core of the Election Commission’s guiding imperatives, as it becomes clear, is in creating the capacity for deliberate and informed choice, even more than the vote itself. The regulation of campaigns being the object of the Model Code of Conduct, the democratic imperative of the Election Commission is to ensure a politics of dialectics. The participatory nature of evolving the regulations themselves become crucial while the Election Commission works to curtail the advantages of the ruling party.

Their last chapter on creating democratic spaces culminates in a discussion on how the procedural domain of electoral democracy is an expression of popular sovereignty and sustains democracy amid changing dynamic of political processes. They engage with questions of trust and transparency in the electoral system, campaigns and the vote along with the content of deliberations by the voter-citizen with their political rights at the centre of discussion about the declaration of criminal records, the disqualification debate (based on criminal record and education) and the problem of corruption.

Singh and Roy offer little comment on the substantive outcomes enabled by the configurations of electoral regulation in this book. The majority of the material under scrutiny is narrative reports, official and otherwise, and the election commission’s articulations of itself which effectively places the book within the constraints of an institutional account. The book is not a direct comment on the contemporary and maintains a certain distance from a history of electoral outcomes which have ordered the teleology which characterises most attempts at understanding electoral politics in India. It is, however, foundational. Published right at the time of the pivotal 2019 elections, it provides no easy answers to the democratic anxieties of our time but purposefully guide the considerations of grappling with the creation of democratic outcomes.

In looking at the reliance of the electoral commission’s regulatory style through a certain “moral force” it also uncovers the foundation for organising democratic politics. It opens up the discussions on campaign regulation, institutional autonomy, and the involvement of para-political agencies. With this foundation in place it becomes possible to engage with these questions in a changing landscape of electoral regulations.

Emerging changes in the conduct of elections already necessitates a serious reckoning with the nature of electoral regulation in India. In a press note dated 10th January, 2019 the Election Commission of India introduced the nature of the concerns that informed the Sinha Committee Report on Section 126 of the Representation of People Act (RPA), 1951 as follows:

The task of maintaining campaign silence during last 48 hours before the conclusion of polling is becoming increasingly onerous in the light of the increasing influence of digital media. So, apart from the regulation by law and ECI instructions, the resolve, proactive support and sustained effort by all stakeholders ...will remain necessary to contain the evil impact.

The purported “evil impact” is understood more clearly in the media handbooks informed by the committee’s findings as it specifically addresses the changes that have caused a “wave of information explosion mostly through digital platforms” [3] It can be evidenced in these concerns that they are temporally bound (evidenced in one of its forms as the 48 hours of campaign silence) and temporally situated (in their response to a novel phenomenon), are responded to through a process of “electoral management”(ibid), and the goal of such a response is to preserve certain normative ends of this temporal frame (evident in qualifying the changes that need to be combatted as “evil”).

Even as one feels the need for some sort of electoral reform, the collaborations between new actors such as social media companies and the press have left electoral regulations in India in unfamiliar territory. There is widespread acknowledgement that the 2014 Indian general elections brought on a form of electoral campaigning that was “substantially mediatised”(Verma and Sardesai, 2014), professionalised (Banerjee,2014) and adopted novel mediums and technologies to relate to an urban, middle-class voter base (Einar and Sreedharan, 2014) although, its significance in determining electoral outcome was seen, in even the most sympathetic accounts, as indirect, at best . The significance of digital media in the 2019 elections is almost entirely uncontested as a series in the Economic and Political Weekly on Elections in the age of Social Media [4] introduces itself as follows:

In the wake of digital, and social media expansion in India, public discourse and the autonomy of public opinion has been challenged. India’s 2019 general election was the first national election contested within a truly digital consumption society, wherein approximately half the voting population had access to digital pathways, and another one-third had access to social media.

The nature of Election Time and electoral regulation in a changing media landscape must be understood and its temporal and normative imperatives must be informed by the evaluations of such a “digital consumption society”. Therefore, a crucial conceptual problematic that the scholarly accounts of emerging concerns around new media environments and elections need to account for is to consider the changing landscape of Election Time with the normative weight it holds.

Singh and Roy’s book shows that operating within a zone of supplementary legality, the Election Commission of India is the logic of popular sovereignty made manifest in institutional form. Its value beyond the immediate concerns of institutional politics lies in the fact that it is also a text on the ethics of democratic practice. In identifying the guiding principles of the Election Commission of India, they also provide a valuable resource to help us articulate our anxieties about preserving democracy. The historical perspective they offer is foundational to understand how India has institutionalised democracy. The books opens up for the reader a foundation upon which to navigate the uncertainties of making democracy happen, and with an informed and solid hold on the workings of an institution historically committed to democratic practise it allows for a normative framework whose core commitment is to the maintenance of a radical uncertainty about who holds power.

References:

Bannerjee, Siddharth. "The professionalisation of Indian elections: Reflections on BJP’s 2014 campaign." South Asia@ LSE (2014).

Thorsen, Einar, and Chindu Sreedharan, eds. India Election 2014: First Reflections. Centre for the Study of Journalism, Culture & Community, Bournemouth University, 2015.

Verma, Rahul, and Shreyas Sardesai. "Does media exposure affect voting behaviour and political preferences in India?." Economic and Political Weekly (2014): 82-88.

Yadav, Yogendra. "Understanding the second democratic upsurge: Trends of Bahujan participation in electoral politics in the 1990s." Transforming India: Social and political dynamics of democracy 145 (2000).

* (Susan is a postgraduate student at the School of Law, Governance, and Citizenship at Ambedkar University, Delhi)


[1Singh and Roy respond to this formulation and defence of process over the procedure by Yogendra Yadav in his seminal essay Understanding the Second Democratic Upsurge: Trends of Bahujan Participation in Electoral Politics in the 1990s (2000, pp. 298) .

[2Anupama Roy’s work on citizenship, especially in Mapping Citizenship in India (2010) engages with the theme of inscribing the citizen through various political, legal and juridical interventions approaching numerous themes of inclusion and exclusion from a political community from the perspective of another parallel legal history. Ujjwal Kumar Singh’s work on exceptional laws in India explores the domain of sovereign power that is placed outside of the “ordinary” legal system offering crucial interventions in the conception of the exception interlocking with the ordinary through a mode of understanding and situating legal regimes as following heterogeneous logics co-existing within an over-arching system of state power. Even as exceptional laws are juxtaposed as the corollary to the concerns of rights in a liberal constitutional democratic order in his work on anti-terror laws, Election Commission of India offers insight into a legal framework that works on the logic of popular sovereignty inverting the very same order to democratic ends.

[3Election Commission of India, Handbook for Media pp. iii. The Sinha Committee report also provided new terrain for the involvement in para-political actors such as the key participation of The Internet & Mobile Association of India in these deliberations which are further avenues in which the core framework provided by Singh and Roy can be extrapolated.

[4https://www.epw.in/elections-age-social-media/ the special issue offers numerous reflections on social media and offers critical insight into possibilities for more effective electoral regulation of social media - a discussion which must grapple with the concerns Singh and Roy provide.

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