Beyond the immediate controversy sparked by the letter from the Department of Law and Justice to the Indian Election Commission (EC) on a meeting called by the Prime Minister’s Office (PMO) on the Joint Voters List, is the ground of the institutional structure of India and its traditions and conventions. The letter is the product of a changing landscape; therefore, it would be appropriate to draw some logical conclusions from the ministry’s press release and part of the ministry’s letter that appeared in the media and was not denied.
The statement said that the PMO had sent its communication convening the meeting only to the cabinet secretary, legal secretary and secretary, legislative department. It was the secretary of the legislative department (SLD) who “saw fit” to “invite officials of the electoral commission to this meeting”. The PMO did not seek, at the initial stage, to involve the EC in the meeting. It was quite normal that SLD suggested involving the EC in this meeting. In accordance with current practice, the legislative department would have requested the participation of the EC only after having authorized it with the PMO. It is inconceivable even for a nodal department to take such an initiative on its own.
The text of the letter from the legislative department has not been released, but the available excerpt indicates a troubling contradiction with the statement. The statement said the “final operative paragraph” of the EC letter “requested the secretary of the Election Commission of India to attend the meeting.” However, this is hardly in keeping with the content of these specific words in the published excerpt: “The Principal Secretary of the WP will chair a meeting… and expects the CEC to be present during the conference”. These words are as “operational” as possible. They admit of no other explanation. So, is it defensible to suggest that the Chief Electoral Officer (CEC) was not “expected” at the meeting? The distinction between the CEC and the institution it heads, the EC, is obvious.
It was right that the CEC be outraged by the letter and he was “extraordinarily generous” in accepting the lame “clarification” of LTC. In the absence of transparency, doubts will remain that at least some PMO officials or some government secretaries now “expect” heads of independent constitutional bodies, such as the CEC, to attend meetings. convened by the principal secretary of the Prime Minister. This has a clear bearing on the institutional balance of the Indian regime.
The national good requires that the three state organs and the independent constitutional organs function harmoniously in accordance with their constitutional and legal mandates. Their internal relations must also be marked by a desire to preserve the dignity of others. Obviously, they have to consult with each other, but it has to be in accordance with convention and tradition. Kanhaiya Lal Misra, a legendary High Court lawyer in Allahabad, well known for his wisdom and knowledge, said this about the meaning of traditions and conventions: “Muscles and nerves, blood flowing ( are) which institution like the High Court its strength, its resilience and even its glory ”. What Misra said about the high courts generally applies to the whole political system.
That is why those who lead the organs and institutions of the State must respect the conventions and traditions and zealously protect them. It is through such efforts – and not through convenience – that they can maintain the expected role of their institutions and the balance of the regime.
Of course, traditions and conventions are not set in stone. They change over time. This is all the more true as many of them come from the colonial era. This happened in India from the 1960s onwards. Traditions and conventions cannot be allowed to stand in the way of national progress either. But the only sure criterion for judging the evolution of conventions and traditions in the functioning of institutions and in their interaction between them 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 also been observed in India, where elected Indian leaders of different ideological convictions have at times sought to flout other bodies and institutions through notions of “bureaucracy and justice engaged” and sticks and carrots. Therefore, democratic regimes seek to impose constraints through independent institutions. It is wrong to view these institutions as part of the executive. Consultations between independent institutions and the executive should take place, but it would be appropriate and gracious for the political and bureaucratic executive to show respect for independent institutions.
The judiciary has also flexed its muscles through interpretations, which endowed it with creative power in a way that departs from tradition, but also through elastic interpretations of the Constitution as in matters of appointment of judges. And those who run the state judiciary have themselves violated conventions even though they have remained within the law. The first to do so was no less than an Indian chief justice, who resigned his post to run as the opposition candidate for president in 1967.
The time has come for those who run state bodies and institutions and the public to scrutinize the entire body of Indian state conventions to strengthen its democratic regime. This is especially true in these times of fierce ideological contestation and unrestrained politics.
The writer is a former diplomat