Beyond the immediate controversy generated by the Ministry of Law and Justiceâs letter to the Election Commission of India (EC) on a meeting convened by the Prime Ministerâs Office (PMO) on the common electoral roll, lies the terrain of Indiaâs institutional structure and its traditions and conventions. The letter is a product of a changing landscape; hence, it would be appropriate to derive certain logical conclusions from the ministryâs press communique and a portion of the ministryâs letter that has appeared in the media and which has not been denied.
The communique clarifies that the PMO had only addressed its communication convening the meeting to the cabinet secretary, law secretary and secretary, legislative department. It was the secretary, legislative department (SLD) who âthought it appropriateâ to âinvite officials of the Election Commission to this meetingâ. The PMO did not seek to, at the initial stage, involve the EC in the meeting. It was completely in order for SLD to suggest involving the EC in this meeting. In keeping with standard practice, the legislative department would have approached the EC for its participation only after clearing it with the PMO. It is inconceivable for even a nodal department to take such an initiative on its own.
The text of the legislative departmentâs letter has not been released but the available excerpt points to a troubling discrepancy with the communique. The communique states that the âfinal operative paragraphâ of the EC letter ârequested Secretary, Election Commission of India to attend the meetingâ. However, this is hardly in harmony with the contents of these specific words in the published excerpt, âPrincipal Secretary to PM will chair a meeting âŚand expects CEC to be present during the conferenceâ. These words are as âoperationalâ as can be. They do not admit any other explanation. Thus, is it tenable to suggest that the chief election commissioner (CEC) was not âexpectedâ to attend the meeting? The distinction between the CEC and the institution he heads, the EC, is obvious.
It was correct for the CEC to take umbrage with the letter and he was âextraordinarily generousâ in accepting SLDâs lame âclarificationâ. In the absence of transparency, doubts will linger that at least some PMO officials or some secretaries to the government now âexpectâ heads of independent constitutional bodies, like the CEC, to participate in meetings convened by the principal secretary to the prime minister. That has an obvious bearing on the institutional balance of the Indian polity.
The national good requires that the three organs of the state and independent constitutional bodies function harmoniously in accordance with their constitutional and legal mandates. It also needs that their inter-se relations are marked by a desire to maintain each otherâs dignity. Clearly, they need to consult each other but that has to be in keeping with convention and tradition. Kanhaiya Lal Misra, a legendary advocate of the Allahabad High Court, well known for his wisdom and learning, said this about the significance of traditions and conventions: âThe muscles and the sinews, the coursing blood (are) that give(s) to an institution like the High Court its strength, its resilience and even its gloryâ. What Misra said about high courts applies generally to the polity as a whole. That is why those who head state organs and institutions need to abide by conventions and traditions and zealously guard them. It is through such endeavours â and not the path of convenience â that they can sustain the role that is expected of their institutions and the polityâs balance.
Naturally, traditions and conventions are not set in stone. They evolve through the passage of time. This is all the more so when many of them are derived from colonial times. This has happened in India from the 1960s. Traditions and conventions also cannot be allowed to come in the way of national progress. But the only sure yardstick to judge changes in conventions and traditions in the functioning of institutions and in their interaction among themselves is this: Have they strengthened the foundations of Indian democracy in all its manifestations?
The historical experience of the ages shows that all political power is inherently expansive. This has been witnessed in India too where elected Indian executives of different ideological persuasions have sought, at times, to ride roughshod over the other organs and institutions through notions of âcommitted bureaucracy and judiciaryâ and sticks and carrots. Hence, democratic polities seek to put constraints through independent institutions. It is wrong to consider these institutions as part of the executive. Consultations between independent institutions and the executive should occur, but it would be appropriate and graceful for the political and bureaucratic executive to show respect for independent institutions.
The judicial organ too has flexed its muscles through interpretations, which have creatively empowered it in a manner that is a departure from tradition but also through elastic interpretations of the Constitution as in the matter of judgesâ appointments. And those who head the judicial organ of the state have themselves broken convention even if they have remained within the law. The first to do so was no less than a chief justice of India, who resigned his office to stand as the Opposition candidate for the presidency in 1967.
The time has come for those who head the organs of state and the institutions and the public to scrutinise the entire corpus of the Indian stateâs conventions to strengthen its democratic polity. This is especially so in these times of fierce ideological contestation and no holds-barred politics.
This column first appeared in the print edition on December 27, 2021 under the title âCommission and omissionâ. The writer is a former diplomat
