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Between Trust and Democracy: The Election Commission of India and the Question of Constitutional Accountability

The scholars of comparative law and politics have acknowledged the Election Commission of India (‘the ECI’) as the institution that has played a central role in maintaining electoral fairness and integrity in India. The ECI has consistently acquired wider powers, covering the administration of elections as well as a range of allied activities. Despite its important, there is a dearth of constitutional theorising about the institution. This also extends to the question of the ECI’s constitutional accountability. The severe criticism of the institution’s functioning by the opposition parties and the civil society particularly in the 2019 national elections necessitates a serious investigation into these institutional questions. This chapter critiques the Indian Supreme Court’s elections jurisprudence from the perspective of the ECI’s constitutional accountability, and argues that it has sidelined this serious aspect. In a series of celebrated judgments, the Court adopted the framework of discursive democracy that enhanced the demands of transparency and accountability of political actors. These judgments simultaneously strengthened the ECI but left its accountability unattended. The Court adopted a different framework with respect to the ECI. This framework was based on trust that relied on institutional competence and commitment. The chapter argues that the framework of trust has failed to address the serious concerns of the ECI’s accountability and transparency. It proposes that the Court must adopt tools from the framework of democracy to strengthen these values.