The Supreme Court’s interrogation of the executive regarding the appointments to the Election Commission has foregrounded the issue of institutional independence. However, the Court’s observations tend to frame institutional independence as a function of individual virtue instead of the distribution of political power. While institutional leadership plays a pivotal role in elevating or degrading institutional integrity, the focus on selection glosses over variability in individual behaviour after occupying the seat of power. This isn’t necessarily corruption but the outcome of the dialectical relationship between the individual, institution and the prevailing political context. Indeed, often the balance of power has an 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, the source of political power is the organisation of public opinion. However, most institutions in a democracy are downstream of politics — their role is to enforce not build political consensus. These 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 investigative agencies. Other institutions such as the judiciary and election commission may be required to adjudicate between competing claims in line with the existing normative consensus. Some like the RBI may be empowered for fixed functions like the monetary policy and so on.
In each of these instances, the institution and its role is an outcome of political consensus wherein political intermediaries have agreed to delineate some function of governance and bequeath it to this institution. The institution draws legitimacy from the specific mandate but operates in the dynamic space in the changing balance of power between competing political factions. When the balance of power is relatively equally distributed, institutions have greater amplitude. 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 bn executive influence on appointments 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 — such as in 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, etc, through allied (state) institutions. The availability and alacrity of this arsenal are driven by the likelihood of regime change with the consolidation of political power reducing the probability of blowback. The executive can also make it so difficult for independent-minded individuals to function that they may be forced to exit on their own. Large distributed institutions also have internal contradictions which can be exploited.
Over a longer timeline, countervailing institutions themselves can be defanged. The expansion of the Election Commission represents one such dilution. This is similar to the “packing the court” strategy being mooted by US Democrats 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 another institutional dilution by undermining judicial credibility and legitimacy in public opinion. Bypassing Standing Committees for legislative scrutiny is another example of undermining an institution itself.
Institutional independence is a larger and more complex issue than appointments alone. What we are seeing in India now is a consolidation of political power in one faction, which is also rejecting much of the pre-existing consensus that 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 that 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.
The writer is executive director, Future of India Foundation