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Published online by Cambridge University Press: 02 November 2021
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.
1 Pastor, Robert, ‘The U.S. Administration of Elections: Decentralized to the Point of Being Dysfunctional’ in Wall, Alan and others (eds), Electoral Management Design (International IDEA 2006) 273Google Scholar.
2 I use the term ‘sub-national’ at points in this article to indicate orders of government other than the federal/union/central government. It is not meant to imply the absence or presence of a ‘national minority’ in the sub-national unit. I also use the terms ‘state’ or ‘province’ inter-changeably or generic terms such as ‘component unit.’
3 Gerken, Heather, The Democracy Index: Why Our Election System is Failing and How to Fix It (Princeton University Press 2009) 158CrossRefGoogle Scholar.
4 Sweden and Switzerland also have high levels of decentralization: Hyde, Susan D and Pallister, Kevin, ‘Election Administration, Election Observation, and Election Quality’ in Gandhi, Jennifer and Ruiz-Rufino, Ruben (eds), The Routledge Handbook of Comparative Political Institutions (Routledge 2015) 241, 251Google Scholar.
5 Mozaffar, Shaheen and Schedler, Andreas, ‘The Comparative Study of Electoral Governance – Introduction’ (2002) 23(1) International Political Science Review 5, 7CrossRefGoogle Scholar.
6 Helena Catt and others, Electoral Management Design (rev edn, International IDEA 2014); Rafael López-Pintor, Electoral Management Bodies as Institutions of Governance (UNDP 2000).
7 Hyde and Pallister (n 4) 245–258 provides an overview of the evidence and competing claims.
8 Schedler, Andreas, ‘The Nested Game of Democratization by Elections’ (2002) 23(1) International Political Science Review 103Google Scholar; Schedler, Andreas (ed), Electoral Authoritarianism: The Dynamics of Unfree Competition (Lynne Rienner Publishers 2006)Google Scholar.
9 See for example the case of Australia: Kildea, Paul, ‘The Constitutional Role of Electoral Management Bodies: The Case of the Australian Electoral Commission’ (2020) 20 Federal Law Review 1Google Scholar.
10 Chernykh, Svitlana and others, ‘Constitutions and Election Management’ in Norris, Pippa, Frank, Richard W., and Coma, Ferran Martinez i (eds), Advancing Electoral Integrity (Oxford University Press, 2014) 94Google Scholar.
11 Pal, Michael, ‘Electoral Management Bodies as a Fourth Branch of Government’ (2016) 21 Review of Constitutional Studies 85Google Scholar; Tushnet, Mark, ‘Institutions Protecting Democracy: A Preliminary Inquiry’ (2018) 12(2) Law & Ethics of Human Rights 181CrossRefGoogle Scholar; Tushnet, Mark, ‘Institutions Protecting Constitutional Democracy: Some Conceptual and Methodological Preliminaries’ (2019) 70 University of Toronto Law Journal 95, 96Google Scholar.
12 The exceptions include: Indraneel Datta, ‘Are Centralized Election Management Bodies Suitable for Federal Structures?' in John Kincaid and Rupak Chattopadhyay (eds), Policy Issues in Federalism International Perspectives (Forum of Federations and Viva Books 2008) 173.
13 Bhattacharyya, Harihar, Federalism in Asia (2nd edn, Routledge 2020) 16CrossRefGoogle Scholar.
14 See for example Article 219 of the Constitution of the Islamic Republic of Pakistan, which provides authority over elections to multiple jurisdictions and bodies within Pakistan to the Election Commission, including over local government.
15 Dixon, Rosalind and David Landau develop the concept of a ‘democratic minimum core’ in ‘Abusive Judicial Review: Courts Against Democracy’ (2020) 53(3) UC Davis Law Review 1313, 1322–1326Google Scholar.
16 In the massive literature on federalism, influential federal cases in democracies outside of Asia include Argentina, Australia, Austria, Belgium, Brazil, Canada, Germany, Mexico, Nigeria, South Africa, Switzerland, and the United States. There are many more democracies with informal devolution or decentralization, including the UK, Spain, and Italy.
17 Bhattacharyya (n 13); Kumar, Niraj, ‘Federalism in Asia and Africa Beyond India’ (2019) 65(1) Indian Journal of Public Administration 259CrossRefGoogle Scholar. Myanmar is no longer a democracy after the recent military coup in 2021. The electoral management body is controlled by military appointees and the regime has already attempted to shift the electoral system: ‘Myanmar's NLD Rejects Military's Call for Proportional Representation Election System’ The Irrawaddy (4 March 2021) <https://www.irrawaddy.com/news/burma/myanmars-nld-rejects-militarys-call-proportional-representation-election-system.html>.
18 Anderson, George and Choudhry, Sujit (eds), Territory and Power in Constitutional Transitions (Oxford University Press 2019)Google Scholar. On Asia, see specifically the chapters on Indonesia (Jacques Bertrand) and Sri Lanka (Asanga Welikala).
19 It is possible of course to have only sub-national commissions, but no national one. With the exception of campaign finance reserved to the Federal Election Commission, that is effectively the US model.
20 Pastor, Robert, ‘The Role of Electoral Administration in Democratic Transitions: Implications for Policy and Research’ (1999) 6(4) Democratization 1CrossRefGoogle Scholar.
21 This question is sometimes framed as ‘accommodation’ versus ‘integration’: See Sujit Choudhry (ed), Constitutional Design for Divided Societies: Accommodation or Integration (Oxford University Press 2008).
22 Riker, William, Federalism: Origins, Operation and Significance (Little and Brown 1996)Google Scholar; Volden, Craig, ‘Origin, Operation, and Significance: The Federalism of William H. Riker’ (2004) 34(4) Publius: The Journal of Federalism 89CrossRefGoogle Scholar.
23 Kumar (n 17) 229 argues for example that India, Pakistan, Malaysia, and Myanmar were heavily influenced by the United Kingdom's export of the model found in the British North America Act 1867, now styled in Canada as the Constitution Act 1867, which establishes federalism in Canada in sections 91 and 92.
24 Riker (n 22) famously makes this point, but see David McKay, ‘William Riker on Federalism: Sometimes Wrong but More Right Than Anyone Else?’ (2004) 14(2) Regional and Federal Studies 167.
25 Choudhry, Sujit, ‘Classical and Post-Conflict Federalism: Implications for Asia’ in Dixon, Rosalind and Ginsburg, Tom (eds), Comparative Constitutional Law in Asia (Edward Elgar 2014) 163, 164, 177–178Google Scholar.
26 James Madison, ‘Federalist No. 51’ in Alexander Hamilton, James Madison, and John Jay, The Federalist (George Carey and James McClellan eds, Liberty Fund 2001) <https://oll.libertyfund.org/title/jay-the-federalist-gideon-ed#lf1631_label_191 >. See Tom Ginsburg, ‘Constitutional Design and Territorial Cleavages’ in Anderson and Choudhry (n 18); Levy, Jacob, ‘Self-Determination, Non-Domination, and Federalism’ (2008) 23(3) Hypatia 60CrossRefGoogle Scholar.
27 Watts, Ronald, Comparing Federal Systems in the 1990's (McGill-Queen's University Press 1996)Google Scholar; Elazar, Daniel, Exploring Federalism (University of Alabama Press 1987)Google Scholar.
28 Choudhry (n 25) 164.
29 See generally Fleming, James E. and Levy, Jacob T. (eds) Federalism and Subsidiarity (Nomos Vol. 55, NYU Press 2014)CrossRefGoogle Scholar.
30 Gardner, Jim, ‘The “States-as-Laboratories” Metaphor in State Constitutional Law’ (1996) 30(2) Valparaiso University Law Review 475Google Scholar.
31 Wheare, Kenneth Clinton, Federal Government (Oxford University Press 1953)Google Scholar.
32 Watts (n 27) 7; Bhattacharrya (n 13) 18.
33 Ginsburg (n 26) 354.
34 Volden (n 22) 92.
35 Dixon, Rosalind and Ginsburg, Tom, ‘The Forms and Limits of Constitutions as Political Insurance’ (2017) 15(4) International Journal of Constitutional Law 988CrossRefGoogle Scholar. Dixon and Ginsburg develop a sophisticated typology of political insurance and identify federalism as a form of ‘power-based’ or policy-focused political insurance in some scenarios at 996. See also Dixon, Rosalind and Ginsburg, Tom, ‘Constitutions as Political Insurance: Variants and Limits’ in Delaney, Erin F. and Dixon, Rosalind (eds) Comparative Judicial Review (Edward Elgar 2018) 36Google Scholar.
36 Watts (n 27) 7.
37 See the overview in Hueglin, Thomas O., ‘Federalism and Democracy’ in Skogstad, Grace and others (eds), The Global Promise of Federalism (University of Toronto Press 2013) 17Google Scholar.
38 Stepan, Alfred, Arguing Comparative Politics (Oxford University Press 2001) ch 15Google Scholar.
39 Wheare (n 31).
40 Bhattacharrya (n 13) ch 8.
41 Arendt, Hannah, ‘Thoughts on Politics and Revolution’ in her Crises of the Republic (Harcourt Brace 1972)Google Scholar.
42 Riker, William, The Development of American Federalism (Kluwer Publishers 1987), xiii.CrossRefGoogle Scholar
43 Jacob Levy (n 26).
44 Levy, Jacob, ‘Federalism, Liberalism, and the Separation of Loyalties’ (2007) 101(3) American Political Science Review 459CrossRefGoogle Scholar.
45 Hueglin (n 37) 30.
46 Erk, Jan and Anderson, Lawrence, ‘The Paradox of Federalism: Does Self-Rule Accommodate or Exacerbate Ethnic Divisions?’ (2009) 19 Regional & Federal Studies 191CrossRefGoogle Scholar.
47 See for example, Palermo, Francesco, ‘Owned or Shared? Territorial Autonomy in the Minority Discourse’ in Malloy, Tove and Palermo, Francesco (eds), Minority Accommodation Through Territorial and Non-Territorial Autonomy (Oxford University Press 2015)Google Scholar.
48 For a nuanced exploration of this issue, see Tarr, G. Alan, Williams, Robert F., and Marko, Josef (eds) Federalism, Subnational Constitutions, and Minority Rights (Praeger 2004)Google Scholar.
49 Anderson, Carol, One Person, No Vote: How Voter Suppression is Destroying Democracy (Bloomsbury 2019)Google Scholar. The refrain of ‘state's rights’ is closely associated with discrimination and voter suppression in the United States: Anderson, 41–42, 91.
50 Alfred Stepan argues that the relationship between federalism and democracy remains under-theorized: Arguing Comparative Politics (Oxford University Press 2001), 14. See also the helpful overview of the central issues in constitutional federalism by Richard Simeon, ‘Constitutional Design and Change in Federal Systems: Issues and Questions’ (2009) 39:2 Publius: The Journal of Federalism 241. Simeon at 241 argues: ‘…the reality is that there are very few clearly established generalizations [regarding federalism]’ and ‘no robust empirical findings about the political consequences of decentralization, pro or con, are to be found.’ See also Treisman, Daniel, The Architecture of Government: Rethinking Political Decentralization (Cambridge University Press 2007), 5CrossRefGoogle Scholar.
51 Notable exceptions include Chernykh (n 10); Saxena, Rekha, ‘The Election Commission and Indian Federalism’ (2012) 15:1 Think India Quarterly 194Google Scholar.
52 On consociationalism, see from its leading scholar, Lijphart, Arend, Patterns of Democracy: Government Forms and Patterns in 36 Countries (Yale University Press 1999)Google Scholar. Federalism fits as a method of power-sharing. Belgium and Switzerland are the key cases. See Bogaards, Matthijs, Helms, Ludger, and Lijphart, Arend, ‘The Importance of Consociationalism for Twenty-First Century Politics and Political Science’ (2019) 25(4) Swiss Political Science Review 341CrossRefGoogle Scholar.
53 Elklit, Jorge and Reynolds, Andrew, ‘Analysing the Impact of Election Administration on Democratic Politics’ (2001) 38(1) Representation 3CrossRefGoogle Scholar; James, Toby, Comparative Electoral Management (Routledge 2019)CrossRefGoogle Scholar; Hyde and Pallister (n 4) 246–248.
54 Catt and others (n 6); Hyde and Pallister (n 4) 244.
55 Chernykh and others (n 10).
56 Catt and others (n 6). On Latin America, see Fabrice E. Lehoucq, ‘Can Parties Police Themselves? Electoral Governance and Democratization’ 23(1) International Political Science Review 29 and Hartlyn, Jonathan, McCoy, Jennifer, and Mustillo, Thomas M., ‘Electoral Governance Matters: Explaining the Quality of Elections in Contemporary Latin America’ (2008) 41(1) Comparative Political Studies 73CrossRefGoogle Scholar. On Africa, see Mozaffar, Shaheen, ‘Patterns of Electoral Governance in Africa's Emerging Democracies’ (2002) 23(1) International Political Science Review 85CrossRefGoogle Scholar; Makulilo, Alexander and others, Election Management Bodies in East Africa (Open Society Foundations 2015)Google Scholar; Open Society Initiative of Southern Africa, Election Management Bodies in Southern Africa (Open Society Initiative for Southern Africa 2016); Ismaila Madior Fall, Election Management Bodies in West Africa (Open Society Foundations 2012). On South Asia, see Michael Pal, ‘The South Asian Fourth Branch: Designing Election Commissions for Constitutional Resilience’ (in press).
57 Ackerman, Bruce, ‘The New Separation of Powers’ (2000) 113(3) Harvard Law Review 633CrossRefGoogle Scholar.
58 Mozzafar and Schedler (n 5).
59 ibid 7.
60 Lehoucq (n 56); Hartlyn, McCoy, and Mustillo (n 56).
61 James (n 53) 271. James compares centralized versus decentralized models for election administration across federal and unitary countries. He does not separate out a comparison between federal and unitary systems or centralized and decentralized federations.
62 Both have a central commission and then provincial or state commissions. Information and best practices are shared, but they are distinct entities.
63 Sudhir Krishnaswamy argues in the context of India that ‘a tired air hangs about contemporary academic and professional debates on legal and constitutional federalism’: ‘Constitutional Federalism’ in Tushnet, Mark and Khosla, Madhav (eds) Unstable Constitutionalism: Law and Politics in South Asia (Cambridge University Press 2015), 356CrossRefGoogle Scholar.
64 Constitution of India, art 324(1); Constitution of the Islamic Republic of Pakistan, Part VIII, arts 213–226; Constitution of Nepal, arts 245–257; Constitution of Malaysia, art 114.
65 Article 324(1) of the Constitution of India reads: “The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice President held under this Constitution shall be vested in a Commission.”
66 Alan Wall and others, Electoral Management Design: The International IDEA Handbook (International IDEA 2006).
67 Fleming and Levy (n 29).
68 Constitution of Nepal, parts 21–27. See, for example, Part 22, whereby the Auditor General is granted authority over federal, state, and local government offices: s 241(1). Malagodi, Mara, ‘The Rejection of Constitutional Incrementalism in Nepal's Federalisation’ (2018) 46(4) Federal Law Review 521CrossRefGoogle Scholar; Malagodi, Mara, ‘The Locus of Sovereign Authority in Nepal’ in Tushnet, Mark and Khosla, Madhav (eds), Unstable Constitutionalism: Law and Politics in South Asia (Cambridge University Press 2015) 45Google Scholar.
69 James (n 53) ch 10.
70 For a discussion of appointments to election commissions and the broader constitutional politics, see Mark Tushnet, ‘Institutions Protecting Democracy’ (n 11) 191–193.
71 Dixon, Rosalind and Ginsburg, Tom, ‘Introduction’ in Dixon, Rosalind and Ginsburg, Tom (eds), Comparative Constitutional Law in Asia (Edward Elgar 2014), 2CrossRefGoogle Scholar.
72 Stepan (n 38); Grammond, Sébastien, ‘Compact is Back: The Supreme Court of Canada's Revival of the Compact Theory of Confederation’ (2016) 53(3) Osgoode Hall LJ 799Google Scholar. Where there are political or legal consequences that flow from the distinction, the categorization of a given country as ‘federal’ or ‘confederal’ or a ‘compact’ tends to be much disputed.
73 Shelby County v Holder, 570 US 529 (2013).
74 Voting Rights Act 1965, 42 USC 1973 (a).
75 Hasen, Richard, The Voting Wars (Yale University Press 2013)Google Scholar; Anderson, Carol, One Person, No Vote (Bloomsbury 2019)Google Scholar.
76 Shelby County (n 74) 530, per Roberts CJ.
77 For a recent analysis of federal authority over elections, and the possibility of more robust interpretation of its own powers by Congress, see Stephanopoulos, Nicholas, ‘The Sweep of the Electoral Power’ (2021) 36(1) Constitutional Commentary 1Google Scholar.
78 George Guess, Dysfunctional Decentralization: Electoral System Performance in Theory and Practice (Center for Democracy and Election Management 2009); James (n 53) ch 10.
79 Suryaprasad, K, Article 356 of the Constitution of India: Promise and Performance (2nd rev edn, Synergy Books 2012)Google Scholar.
80 See generally Bhattacharrya (n 13).
81 Kumar (n 17). Unlike Kumar, I exclude here Iraq, which is sometimes included in analysis of Asian democracy and other times included with countries of the Middle East.
82 ibid 230.
83 ibid.
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.
85 Pal (n 11) 105–106.
86 Election Commission of India, ‘The Setup’ (26 October 2018) <https://eci.gov.in/about/about-eci/the-setup-r1/> accessed 22 July 2021.
87 Sauvé v Canada (Chief Electoral Officer), 2002 SCC 68, para 9; Frank v Canada (Attorney General), 2019 SCC 1, para 1.
88 Douglas, Joshua A., ‘The Foundational Importance of Voting: A Response to Professor Flanders’ (2013) 66(1) Oklahoma Law Review 81Google Scholar; Douglas, Joshua A., ‘Is the Right to Vote Really Fundamental’ (2008) 18(1) Cornell Journal of Law and Public Policy 143Google Scholar.
89 Joseph Fishkin, ‘Equal Citizenship and the Individual Right to Vote’ (2011) 86 Indiana Law Journal 1289; Yick Wo v Hopkins, 118 US 356, 370 (1886).
90 Fishkin (n 89) 1345. See the UN Declaration of Human Rights, art 21(3), referring to ‘universal and equal suffrage.’
91 Waldron, Jeremy, Law and Disagreement (Oxford University Press 1999), ch 11CrossRefGoogle Scholar, ‘Participation: The Right of Rights.’
92 Song, Sarah, ‘The Boundary Problem in Democratic Theory: Why the Demos Should be Bounded by the State’ (2012) 4(1) International Theory 39CrossRefGoogle Scholar; Erman, Eva, ‘The Boundary Problem and the Ideal of Democracy’ (2014) 21(4) Constellations 535CrossRefGoogle Scholar.
93 Cohen, Elizabeth, The Political Value of Time (Cambridge University Press 2018)CrossRefGoogle Scholar.
94 Anderson (n 75).
95 Take for example the view of Stuligross, David and Varshney, Ashutosh, ‘Ethnic Diversities, Constitutional Designs, and Public Policies in India’ in Reynolds, Andrew (ed), The Architecture of Democracy: Constitutional Design, Conflict Management, and Democracy (Oxford University Press 2002), 455Google Scholar: ‘…communal or ethnic violence tends to be locally concentrated.’
96 Wheare (n 31) 48: ‘Dictatorship, with its one-party government and its denial of free election, is incompatible with the working of the federal principle. Federalism demands forms of government which have the characteristics usually associated with democracy or free government.’
97 James Madison, ‘Federalist No. 10’ in Alexander Hamilton, James Madison, and John Jay, The Federalist (George Carey and James McClellan eds, Liberty Fund 2001) <https://oll.libertyfund.org/title/jay-the-federalist-gideon-ed#lf1631_label_191>. See also Peter S. Onuf, ‘James Madison's Extended Republic’ (1990) 21 Texas Tech Law Review 2375; Liebman, James S. and Garrett, Brandon L., ‘Madisonian Equal Protection’ (2004) 104(4) Columbia Law Review 837CrossRefGoogle Scholar.
98 Constituent Assembly Debates, 15 June 1949.
99 ibid; Shani, Ornit, How India Became Democratic: Citizenship and the Making of the Universal Franchise (Cambridge University Press 2018) 185–191Google Scholar.
100 Tushnet, ‘Institutions Protecting Constitutional Democracy’ (n 11); Ackerman (n 57); Pal (n 11).
101 Tushnet, ‘Institutions Protecting Constitutional Democracy’ (n 11) 96; Tushnet, ‘Institutions Protecting Democracy’ (n 11) 185. See also Murray, Christina, ‘The Human Rights Commission et al: What Is the Role of South Africa's Chapter 9 Institutions?’ (2006) 9 Potchefstroom Electronic Law Journal 122Google Scholar; Klug, Heinz, ‘Accountability and the Role of Independent Constitutional Institutions in South Africa's Post-Apartheid Constitutions’ (2015–16) 60 New York Law School Law Review 153Google Scholar; Klug, Heinz, ‘Transformative Constitutions and the Role of Integrity Institutions in Tempering Power: The Case of Resistance to State Capture in Post-Apartheid South Africa’ (2019) 67(3) Buffalo Law Review 701Google Scholar.
102 Fombad, Charles, ‘The Diffusion of South African-Style Institutions? A Study in Comparative Constitutionalism’ in Dixon, Rosalind and Roux, Theunis (eds), Constitutional Triumphs, Constitutional Disappointments: A Critical Assessment of the 1996 South African Constitution's Local and International Influence (Cambridge University Press 2018) 370Google Scholar;. Klug, Heinz, Constituting Democracy: Law, Globalism and South Africa's Political Reconstruction (Cambridge University Press 2000), ch 6CrossRefGoogle Scholar, ‘Global Impact: International Imperatives and their Hybridization.’
103 Lehoucq (n 56).
104 Bhattacharyya (n 13).
105 Jamal Greene and Madhav Khosla, ‘Constitutional Rights in South Asia’ (2018) 16(2) International Journal of Constitutional Law 470, 476. See generally, Mark Tushnet and Madhav Khosla (eds), Unstable Constitutionalism: Law and Politics in South Asia (Cambridge University Press 2015).
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.
111 Jon Soske, ‘The Other Prince, Ambedkar, Constitutional Democracy, and the Agency of the Law’ in Cosimo Zene (ed) The Political Philosophies of Antonio Gramsci and B.R. Ambedkar (Routledge 2013) 59.
112 ibid 64. One could also see Ambedkar's contributions here in light of his overall advocacy for a form of ‘constitutional morality.’ See Constituent Assembly Debates, 4 November 1948 and 25 November 1949; Sujit Choudhry, Madhav Khosla, and Pratap Bhanu Mehta, ‘Locating Indian Constitutionalism’ in Sujit Choudhry, Madhav Khosla, and Pratap Bhanu Mehta (eds) The Oxford Handbook of the Indian Constitution (Oxford University Press 2016), 2–4.
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).
127 Ganguly, Sumit, ‘An Illiberal India?’ (2020) 31(1) Journal of Democracy 193CrossRefGoogle Scholar.
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.