The recent controversy on the independence of the RBI from the government raised important issues of principle. Some analysts said that the government was elected while the RBI was not, and in a democracy the elected body must take precedence over the unelected one. This is at best a partial truth and at worst a very dangerous argument. Successful democracies depend as much on unelected institutions as elected ones.
Which institutions are the most respected in India? The Supreme Court, Election Commission and the armed forces. All three are unelected. Some will mention a fourth (also unelected) institution, the Comptroller and Auditor General. By contrast, citizens view most elected politicians as rascals and brigands.
This does not mean that elected politicians have no legitimacy. But their legitimacy flows from the fact that their power is temporary, given for a few years by voters and withdrawable for non-performance. The mere fact that politicians are elected does not place them above institutions like the courts, Election Commission or Constitution.
Lalu Yadav won more than one election while being tried for corruption, and declared that he had been exonerated by the “people’s court”. That was rhetorical rubbish. An election is not a people’s court, and does not determine criminal guilt. That must be determined by a non-elected legal process that disregards totally the mere fact that the accused is politically popular.
James Madison, a key architect of the US constitution, said that elected governments could easily become instruments of majoritarian tyranny, or tyranny of powerful vested interests. He noted that true freedom required the primacy of individual rights, which should not be trampled on by temporary elected majorities. Hence he emphasised the need for checks and balances on elected governments, typically through empowered but unelected institutions, to check political actions that might have short-term attractions but carry long-term dangers.
Individual rights flow from equality before the law, enshrined in the Constitution. Group rights, however, are mainly politics. Much political activity aims to secure advantages (or penalties) for this or that group, in the name of religion, caste, ethnicity, regionalism, or other such divides. Such activity can violate the fundamental rights of individuals, and hence can be struck down by the courts.
Remember, the Constituent Assembly that framed the Constitution was unelected. Did that diminish its legitimacy, or make it inferior to elected bodies? Not at all. Indeed, a key feature of the Constituent Assembly was that its members didn’t have to worry about getting reelected, and so could resist pressures from this or that group. They were empowered to focus on the long run, on basic principles that merited precedence over short-term expedients, temptations and moods.
Of course, the unelected Constituent Assembly could be challenged by subsequent elected governments, that amended the Constitution over a hundred times. But every amendment required a two-thirds majority in both Houses of Parliament plus the sanction of a majority of states. This ensured that Constitutional amendments were deliberated on at several levels, enjoyed very wide legitimacy, and could not be engineered for short-term political gains by politicians seeking to stay in power by hook or crook.
India’s top unelected bodies are not entirely independent of political control. Governments have a role in appointing judges, election commissioners, chiefs of the armed forces, and CAGs. This ensures some limited accountability to elected governments. Some analysts feel that the government has been robbed of a sufficient say in judicial appointments by the Constitutional interpretation of the Chief Justice. But even Supreme Court judges can be impeached by Parliament. Their independence is not absolute.
In sum, every democracy needs checks and balances. India needs independent, unelected institutions to check the power of elected governments. At the same time, India also needs political checks on independent institutions, that cannot remain completely unaccountable. Debates on the strength and legitimacy of such checks and balances are both inevitable and healthy in a democracy. There will always be potential or actual clashes between different principles. A Constitution is a living document that will sometimes need to change with the times, for all values are not written in stone.
In the Odyssey, Ulysses told his crewmen to plug their ears to avoid being seduced by the songs of the sirens. He told his crew to tie him to the mast, and ignore all the pleas he might make when tempted by the sirens, for his own good. Every elected government should submit to being tied to the mast by unelected but independent institutions, to avoid succumbing to short-term siren temptations.
