Institutional Independence Is About Distribution of Power Not Individual Virtue
SC's observations on EC appointments frame institutional independence as a function of individual virtue instead of the overall distribution of political power.
Published in the Indian Express
The Supreme Court’s interrogation of the Executive regarding the appointment process for the Election Commission has again foregrounded the issue of institutional independence in India. However, the Court’s observations run the danger of misdirection, framing institutional independence as a function of individual virtue instead of the overall distribution of political power. It is true that the leadership of any institution plays a pivotal role in elevating or degrading institutional integrity; however, the focus on selection glosses over variability in individual behaviour after occupying the seat of power. This is not necessarily due to corruption or opportunism but the outcome of the dialectical nature of the relationship between the individual, institution and the political context at the time. Indeed, often the balance of power has outsized influence on how well “independent” institutions function in a democracy but this is often disregarded in favour of a more personalised analysis.
In a democracy, power is derived directly or indirectly from The People. The source of political power is thus the organisation of public opinion. However, most institutions in a democracy are downstream of politics - their role is to enforce not build political consensus. Institutions thus do not have an independent source of political power and rely instead on the backing from political intermediaries for their mandate. Institutions may be tasked to produce “truth” in line with defined processes such as investigating agencies. Other institutions may be required to adjudicate between competing claims in line with the existing normative consensus. Examples include the judiciary which applies laws passed by state and central legislatures or the election commission which is mandated to ensure a level-playing field for all political parties and candidates. Still other institutions may be empowered for oversight of fixed functions like the RBI for monetary policy and so on. In each of these instances, the institution and its role is an outcome of political consensus wherein the political intermediaries have agreed to delineate some function of governance and bequeath to this institution. The institution draws legitimacy from the specific mandate but operates in the dynamic space in the changing balance of power between different political factions. When the balance of power is relatively stable and equally distributed between competing factions, institutions have greater room to operate. However, if the balance of power tilts too far towards one faction, institutional independence starts to atrophy, especially if powerful factions don’t exercise self-restraint and adhere to norms.
It is felt that even in these circumstances, institutions will be able to maintain independence if Executive influence on appointments and post-retirement sinecures were to be limited. There is some merit in this argument; however this analysis underestimates the ability of political power to exert itself. Even when institutional design insulates the appointment process from the Executive to a large degree - such as in the case of the Judiciary - political power can manifest in multiple ways. At the individual level, dissent can be neutralised through inducement, marginalisation, intimidation, blackmail, harassment, propaganda, transfers, incarceration etc through various arms of the State. A purposeful State needs only a pretext. The availability and alacrity of this coercive arsenal is driven by the likelihood of regime change. Consolidation of political power reduces the threat of blowback and increases the likelihood of allied institutional complicity. Large distributed institutions also have internal contradictions which can be exploited. The Executive can also make it so difficult for independent-minded individuals to function that they may be forced to exit on their own.
Over a longer timeline, countervailing institutions themselves can be defanged. The expansion of the Election Commission represents one such dilution where different election commissioners can be played off each other to control the institution. This is similar to the “packing the court” strategy which is being mooted by some Democrats in the United States in response to a right-leaning Supreme Court. Undermining institutional legitimacy is another approach to institutional dilution. The repeated public commentary about corruption in the judiciary, opacity in the Collegium’s functioning and judicial overreach could pave the way for such a dilution by undermining judicial credibility and thus legitimacy in public opinion. Bypassing Standing Committees for legislative scrutiny is another example of undermining an institution itself.
It is evident that institutional independence is a larger and more complex issue than appointments alone. What we are seeing in India now is consolidation of political power in one faction, which is also rejecting many of the pre-existing consensus which underpinned governance in our country. Institutions are thus coming under pressure. Re-establishing consensus - and institutional independence - is a political battle which requires mobilising public opinion and organisation. Finally, a word of caution. Liberals should be circumspect about broad brush statements which reduce public trust in institutions; instead criticism when warranted must be targeted and specific. Democracy is necessarily mediated through institutions and widespread institutional distrust can only pave the way for autocracy and populism.