Why Arun Jaitley is Grumbling About ‘Tyranny of the Un-Elected’

Jaitley spoke against weakening the authority of the elected & creating a power-shift favouring ‘non-accountables’.

At a time when Finance Minister Arun Jaitley’s party and government are at loggerheads with the Reserve Bank of India (RBI), the Supreme Court – and stand accused of meddling in the affairs of India’s premier investigative agency (CBI) – it is unsurprising that he touched upon the subject of ‘separation of powers’ during the AB Vajpayee Memorial Lecture recently.

Though desisting from naming any institution, Jaitley, predictably almost, spoke against “weakening the authority of the elected, and creating a power shift in favour of the non-accountables”.

The Swadeshi Jagran Manch, the economic wing of the Rashtriya Swayamsewak Sangh (RSS), and at least one academic of note, has endorsed Jaitley’s line since.

Accountability Mechanism in Democracy

In all fairness, the current Bharatiya Janata Party (BJP)-led government is neither the first to be accused of overreach and nor is Jaitley the first politician to grumble about the so-called tyranny of the un-elected. “Why should those who do not submit to popular will, dictate terms to those of us who are judged every five years in the court of the people” – parties and politicians have routinely argued, when under fire for overstepping jurisdictional boundaries.

The central premise of this argument – that elections are the sole accountability mechanism in a democracy – and that those who do not contest them are fundamentally unaccountable.

Therefore, the latter party have little or no locus standi when it comes to interrogating the elected, on issues of public import – is questionable though. The ubiquity and persistence of the argument also means that it needs to be examined without training the lens on a specific party.

For starters, not every flash-point between various branches of government signals an ego-driven turf war. The tensions also owe to challenges in anticipating the range of real-life situations and conflicts. This, especially at a time when ideas and technologies are rapidly reshaping the terms of engagement in almost every field of human endeavor.

In other words, the doctrine of separation of power, while intended to keep institutions on their toes, can also see toes getting stepped on. Sometimes on account of narrow considerations, sometimes because laws and rules cannot practically codify responses to every constellation of circumstances.

Choices Available to the Voter

The recent flash-points in India reflect the two aetiologies, notwithstanding common concerns around corruption, and the emergence of an omnipresent, omnipotent state lacing them. While those over fundamentals like privacy, human rights and free speech are aimed at countering a mischievous reset of normals, a qualitatively different set of contests has emerged with private sector footprints in hitherto closed sectors, and increased awareness of the social and environmental costs of the dominant development paradigm. Reading every flash-point then, as a conspiracy to undermine the authority of the elected, may not be correct.

Secondly, while elections remain an important accountability mechanism, indeed salient to democracy, it is important to appreciate a few points that impinge on whether elections (as they happen in reality) can be exalted beyond a point.

In practice, choices before voters are hardly enviable and preferences expressed in voting booths are trade-offs between corruption and identitarian solidarity. More often than not then, the elected may be the more tolerable choice, far from the ideal one – that too of groups that are numerically influential at the constituency level.

Expecting all those elected in such circumstances to remain accountable to their constituents is a stretch. On the contrary, given the unpredictable ways in which power games can pan out, there are tendencies to make hay while in power, play constituents against each other and undeservedly reward the faithful. Put together, these are a concoction of corruption, exclusion and divisiveness that Indians are no strangers to.

Keeping Tyranny in Check

It is in the interregnum between elections then, that the tyranny of the elected unfolds, and it is to check such tyranny that the executive and judiciary are constitutionally granted countervailing power vis-à-vis the elected. In a sense, it is protection – by design – against the fallibility of the elected.

While expected to execute the priorities of the elected and interpret the laws they frame, the executive and judiciary have their own obligations to the Constitution in terms of upholding the values that it holds non-negotiable. And cannot be faulted for fulfilling it.

A ‘silent’, enduring settlement between the branches of government is neither possible nor desirable. For it can come only at the cost of a skewed power balance or inertia. The solution would be for both the elected and the non-elected to appreciate the value of listening to each other so that popular aspirations and issues receive the priority they must and responses to them tap into institutional memory and wisdom– without losing sight of constitutional imperatives.

Negotiation is inevitable in the process, but how productive and smooth it is, will depend on the frames of mind of those at the table. Eschewing the contempt implicit in ‘non-accountable’ will make for a good start though.

(Manish Dubey is a policy analyst and crime fiction writer and can be contacted at @ManishDubey1972. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)