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Constitutional Design of Electoral Governance in Federal States
Published online by Cambridge University Press: 02 November 2021
Abstract
This article explores the constitutional politics of electoral governance in federations by focusing on the role of election commissions, drawing mainly on examples from Asia. All democracies face the challenge of insulating electoral governance from interference and capture. Compared to unitary states, federations confront the additional dilemma of how to disperse authority over electoral governance across multiple orders of government. Federal democracies must decide whether electoral governance should be a matter for the center or the states. I argue that the basic choice is between what I will call the ‘unitary model’ and the ‘division of powers model.’ The main institution of electoral governance is the electoral management body or ‘EMB.’ In the unitary model, a central EMB administers both national and state-level elections. In the ‘division of powers model’, both a central and state-level EMBs exist, with the state commissions administering elections in the component units of the federation. In federal democracies generally, but especially in Asia, the allure of the unitary model has been strong. The article draws on the example of the Constituent Assembly in India to illustrate what is at stake in how federal constitutions allocate authority over electoral governance.
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References
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84 The 19th, 20th, 22nd, and 24th Amendments to the Constitution were either partly or entirely preoccupied with electoral matters and were made between 2010 and 2017.
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106 Shani (n 99) 185: ‘The revised constitutional election provisions aimed to ensure and fortify the autonomy and integrity of the election machinery, and to safeguard and give an explicitly expression to the notion of universal franchise on the basis of a single joint electoral roll.’
107 ibid 191. Madhav Khosla's own account resonates with that of Shani: India's Founding Moment: The Constitution of a Most Surprising Democracy (Harvard University Press 2020), 129–133.
108 ibid 188. The research office of the Constituent Assembly Service looked to the UK, US, South Africa, Australia, Canada, Brazil, Chile, Cuba, the Dominican Republic, Ecuador, Nicaragua, Panama, and Uruguay.
109 ibid; Brij Bushan, Constituent Assembly Service, Internal Note of 5 March 1949.
110 Shani (n 99) 188. The U.K. adopted an independent election commission only as late as 2000. Its independence has been watered down to some extent through a revised appointment process. See James, Toby, ‘Electoral Modernisation or Elite Statecraft? Electoral Administration in the U.K. 1997–2007’ (2010) 5(2) British Politics 179CrossRefGoogle Scholar.
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113 Constituent Assembly Debates, 15 June 1949.
114 K.H. Cheluva Raju, ‘Dr. B.R. Ambedkar and Making of the Constitution: A Case Study of Indian Federalism’ (1991) 52(2) Indian Journal of Political Science 153, 158 covers the emphasis by Ambedkar and others on ‘a strong Center….’.
115 Soske (n 111) 64. Ambedkar cannot be accused of being hostile to the recognition of difference in constitutional design. He supported separate constituencies for Muslims in India in the Constituent Assembly, though ultimately lost the argument. See Raja Sekhar Vundru, Ambedkar, Gandhi, and Patel: The Making of India's Electoral System (Bloomsbury 2018) and Khosla (n 107) 129–133.
116 Khosla (n 107) 36. A weakness in Article 324 evident to some participants in the Constituent Assembly Debates was the appointment process. Prof. Shiban Lal Saxena worried about capture of the ECI through appointments made formally by the President but informally by the Prime Minister. He therefore advocated a requirement of 2/3 support in both houses of Parliament so as to avoid appointment of any ‘party man’ who would act counter to ‘independence and impartiality of the Election Commission.’ Constituent Assembly Debates, 15 June 1949.
117 Rosalind Dixon and David Landau develop the concept of constitutional ‘abuse’ in a series of works. Constitutional abuse can stem from judicial review: ‘Abusive Judicial Review: Courts Against Democracy’ (2020) 53(3) UC Davis Law Review 1313. It can also be carried out by the executive or legislature, especially through constitutional borrowing: ‘1989–2019: From Democratic to Abusive Constitutional Borrowing’ (2019) 17(2) International Journal of Constitutional Law.
118 ‘The first reason is that this is a matter which requires careful consideration and that it has been hinted in a section of the press that in some provinces the Governments are helping the registration of their own supporters.’ Shri Pataskar, Constituent Assembly Debates, 15 June 1949.
119 Shani (n 99) 18.
120 ibid.
121 ibid.
122 ibid 185.
123 K.M. Munshi, Constituent Assembly Debates, 16 June 1949. See Shani (n 99) 192 for a discussion of the context.
124 Khaitan, Tarun, ‘Killing a Constitution with a Thousand Cuts: Executive Aggrandizement and Party-State Fusion in India’ (2020) 14(1) Law and Ethics of Human Rights 49CrossRefGoogle Scholar.
125 Nazifa Alizada and others, Autocratization Turns Viral: Democracy Report 2021 (Gothenburg, V-Dem Institute 2021) 13. India is now classified by V-Dem as an ‘electoral autocracy.’
126 Khaitan (n 124).
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128 Pal (n 11).
129 Tushnet, ‘Institutions Protecting Constitutional Democracy’ (n 11) 105–106.
130 See Mohsin Alam Bhat, ‘Governing Democracy Outside the Law: India's Election Commission and the Challenge of Accountability’ in this special issue for an in-depth analysis of the role of the ECI.