—Aparna Chandra, Associate Professor of Law and M. K. Nambyar Chair Professor on Constitutional Law, National Law School of India University, Bengaluru.
[Editor’s Note: This is one of our ICONnect columns. For more on our 2024 columnists, see here.]
The Autocrats’ Playbook
This is the year of elections. Sixty-four countries, representing over forty-five percent of the world’s population, will go to the polls in 2024. Of these, nearly half are in various stages of autocratization, leading commentators to claim that democracy itself is on the ballot this year.
Hyperbole aside, the elections this year will be consequential for the state of democracy around the world. Incumbent autocrats have all the incentives to hang on to power and are likely to use a range of techniques to do so. However, as Kim Lane Scheppele has noted, unlike autocrats of yore, their present day counterparts “come to [or retain] power not with bullets but with laws.”
Take India for example. The world’s largest democracy goes to the polls starting next week to decide whether Narendra Modi will secure a third term in office. On the surface, India is a multi-party democracy, with regular free and fair elections, overseen by an independent Election Commission, and a liberal Constitution defended by independent courts that protect the political rights of citizens. However, since 2018, V-Dem has categorised India as an electoral autocracy, in part because the Modi government (along with regime aligned individuals and entities) has used a range of (extra-) legal tools to alter the electoral landscape and consolidate his hold on power. These include, inter alia, changing campaign finance laws to disproportionately benefit his party; altering the appointment procedure for election commissioners that downgrades their independence; gerrymandering; suppressing dissent through the use of civil defamation, criminal laws, and financial, tax and other regulatory mechanisms; stymieing opposition parties by buying out opposition leaders through coercion or persuasion (leading to the fall of opposition governments in state legislatures); using the central government’s fiscal and other powers to block opposition ruled states from carrying out their governance agendas; selectively targeting opposition political parties and leaders for corruption and other criminal and regulatory offences; using tax laws to freeze bank accounts of opposition parties to limit their ability to campaign; disqualifying electoral candidates on frivolous grounds; and using compromised electoral officials for voter suppression and electoral fraud, etc.
The Modi government is of course not alone in using legal processes to entrench its power. Autocrats around the world use a similar playbook to hollow out electoral integrity from within. In this form of ‘lawfare,’ both autocrats and their opponents use legal tools, institutions and processes to respectively entrench and challenge authoritarianism. One consequence for courts around the world, including in Africa, other parts of Asia, Europe, Latin America, and North America, is that they are being confronted at an unprecedented rate with a range of questions around electoral integrity and dysfunction, i.e., with the judicialization of electoral processes.
It is, of course, by no means certain that the judiciary will come to the aid of democracy in such situations. Courts often engage in ‘abusive’ practices of their own and lend their legal and political legitimacy to autocrats. That said, how should democratically inclined judges respond to such legal moves, especially in contexts where the democratic dysfunction is systematic and systemic instead of occasional, opportunistic line crossing?
The Anti-Entrenchment Principle
An argument could be made that as a survival strategy judges should take a hands-off approach, leaving it to electoral processes to sort out democratic dysfunction. After all, interventionist judges may end up appearing (or being projected as) partisan, thereby inviting backlash, potentially squandering their limited political capital and jeopardizing their institutional stability. Also, since the line between unconstitutional entrenchment of power and legitimate electoral reform is often debatable, too strong an intervention by judges may freeze existing arrangements in place, curb democratic experimentation, and stultify much needed electoral change.
On the other hand, if the very basis of competitive politics is being undermined, then there may not be any space or scope for the electoral process to correct democratic dysfunction. On this view, judges should intervene to secure the background and baseline conditions for democratic decision-making. Arguing along these lines (but not in the context of systemic democratic decline and autocratization), John Hart Ely famously argued that the proper role of judges is “representation-reinforcement,” especially for those “discrete and insular” minorities who are locked out of majoritarian electoral processes.
More recently, proponents of ‘neo-Elysian’ political process theories, such as Stephen Gardbaum and Rosalind Dixon, have refined and extended Ely’s framework to account for the fragile status of courts in circumstances of democratic decline. Variations aside on how robust judicial review must be in such circumstances, constitutional scholarship of this genre generally suggests that courts must intervene to keep open the channels of competitive electoral politics, especially where “the ins are choking off the channels of political change to ensure that they will stay in and the outs will stay out.” Therefore, at a minimum, anti-competitive, monopolistic behaviour by incumbents, that seeks to rig electoral rules and ‘lock-up’ the political market, requires judicial intervention, so as to “protect the competitive vitality of the electoral process.” We can call this an anti-entrenchment principle of judicial review.
Much of this scholarship has focused on the role of judges in securing electoral integrity and preventing entrenchment in the context of constitutional violations. However, constitutional judicial review does not exhaust the engagement of judges with questions of anti-competitive behaviour by incumbent autocrats. The scholarship on autocratic legalism, authoritarian constitutionalism, and the role of courts in autocratizing regimes has shown that beyond the realm of constitutional cases the run-of-the-mill legal processes and institutions of the state – judicial, administrative, regulatory, and investigative – are routinely (ab)used by autocrats to entrench their own power. So, for example, as Rosalind Dixon has argued, autocrats often target opposition parties through “legal or regulatory actions that are time-consuming and costly to defend, and often lead to fines or other financial penalties that undermine the financial competitiveness of those parties, but which serve antidemocratic rather than democratic ends.” Autocratic entrenchment thus relies on a range of legal tools, including crucially the judicial process itself, to delegitimize and de-fang the political opposition, and to make electoral markets anti-competitive.
As a corollary, judges do not face questions of anti-competitive behaviour by autocrats only in the constitutional law domain. To take the example of India once again, many such issues come up before judges while adjudicating matters as diverse as arrest and bail applications of political opponents in corruption cases; challenges to tax audits against opposition parties; claims of civil and criminal defamation against members of the opposition or journalists; sentencing opposition leaders for minor or regulatory violations; applications to stay a lower court order against an opposition leader or party pending decision on merits in an appeal; review of administrative decisions of electoral officials rejecting the candidature or other claims of opposition parties and their members, etc.
Even in the context of constitutional review, judges not only decide cases on merits, but also engage with a range of other judicial process/power related questions such as whether to prioritize for hearing cases that involve political opponents or potentially anti-competitive behaviour by incumbents, whether to stay the application of an allegedly anti-competitive law pending a full decision on merits; whether to accord presumption of constitutionality to such laws, and what remedies to provide, consistent with (what conceptions of) separation of powers, in order to set right anti-competitive behaviour by incumbent autocrats, etc.
Courts thus become arenas where electoral battles are fought, often by proxy, in a diverse range of cases. But much of the existing theories on the role of courts in polities facing democratic decline and autocratic advance do not explore how judges should respond to these various ways in which the legal and juridical processes are used for entrenching (or challenging) electoral dysfunction. What principle/s should judges use in deciding the numerous questions about process and substance that arise in the context of electoral politics, beyond the domain of constitutional law? Should they adopt, as incumbents often urge them to do, formal legality to treat all such cases as they would any other? Or should such cases be treated differently? If so, what would be the principled distinction between these and other cases?
The Role of Judges in Non-Constitutional Cases
Incumbents often invoke formal legality and (thin/formal/‘mere’) rule of law principles to restrict the opposition’s ability to effectively compete in the electoral market. They may argue, for example, that a political opponent’s bail application should not be given special treatment in being heard out of turn when so many others are languishing in prison pending trial; courts should extend the general presumption of constitutionality of legislations to those laws that directly operates on the electoral process; a political party whose bank account has been frozen for allegedly defaulting on its taxes should not be provided any extra leeway in accessing party funds during elections when other assessees are not accorded the same privilege; courts should not prioritize the adjudication of electorally consequential cases over other matters on the ground that all cases are of equal importance, and more broadly that each such electorally consequential matter is ‘just’ another case, to be dealt with like any other. In this way, incumbent autocrats can use the legal process to delay, deflect, or drag out a case, and thus limit the opposition’s ability to effectively compete in the electoral market.
Judges must make difficult choices in these situations. Caught in the in-between space straddling formal democracy and functional autocracy, ongoing constitutional retrogression and compromised institutions with perhaps some residual resilience and legitimacy, and a systemic attack on competitive politics on various fronts, how should a democratically inclined judge decide this range of questions in diverse areas of law? Should they account for the electoral context and consequence of a case, and potential anti-competitive use of the legal process in making their decision? Or should they treat all cases alike?
The compartmentalization between constitutional judicial review and non-constitutional cases through which autocrats entrench themselves, has left a gap in our vocabulary to challenge the routine use of criminal and civil justice processes, tax and regulatory structures, or even the common tools of administrative law for such anti-competitive electoral behaviour.
In principle however, there is little distinction between constitutional and non-constitutional methods of monopolizing power. As Stephen Gardbaum has argued (in the context of constitutional judicial review):
In antitrust terms, here the government is effectively forging an artificial monopoly for itself, through hostile takeovers of, if not ‘competitors,’ those institutions designed to impose a form of (political) market discipline on it. Democratic governance is effectively converted from a multi- to a single-player enterprise.
In such cases, the anti-entrenchment principle should form the regulative ideal to orient judicial practice in electorally consequential cases across legal domains. This principle supplies the substantive content in deciding whether to treat a case as warranting special consideration, heightened scrutiny, and urgent decision, different from the norms that apply to the standard case. In this sense, anti-entrenchment operates like a substantive equality principle: judges understand that elections do not operate on a level playing field – power is skewed in favour of the party in government. They decide claims and cases in a way that protects against “the systematic abuse of dominant position” by incumbent governments.
So, for example, if an impugned measure or claim entrenches the power of the current government and limits the possibility of displacement, or significantly increases the costs of displacement, then this is suspect, and the government bears a high burden to justify such a measure. Stated this way, the anti-entrenchment principle could apply to the constitutionality of a legislation on campaign finance, as much to the question of granting bail to an opposition politician, or to the prioritization of an electorally consequential case. The principle supplies the difference between a corruption case against a bureaucrat who is accused of taking a bribe, and a sitting chief minister belonging to an opposition party, who is accused of the same; between refusing a stay on a law passed by Parliament that is challenged for violating the constitution generally, and a law that reduces the independence of the election management body; or between the scheduling or the considerations that go into deciding run-of the-mill bail cases, and those against opposition politicians when elections are imminent.
Overall then, the anti-entrenchment principle (1) recognizes the incentive for those in power to self-deal and entrench themselves, which (2) requires heightened scrutiny and suspicion of their conduct in electorally consequential cases and (3) requires judges to go beyond formal legality and adjudicate in a way that counters self-entrenchment moves by the incumbent government.
To be clear, anti-entrenchment is a principle and not a rule of decision. It does not foreclose alternative decisional possibilities but supplies an important factor to be considered in making such decisions.
The Limits of Anti-Entrenchment
Two questions immediately arise with respect to the breadth and scope of application of the anti-entrenchment principle: first, what understanding of democracy (and therefore of democratic dysfunction) should underpin the anti-entrenchment principle? And second, what are electorally consequential cases or claims to which the principle should apply?
I would argue that the anti-entrenchment principle should be based on a thin, minimalist, Schumpeterian conception of democracy “as little more than selection of rulers by competitive elections.” Such a thin meaning of democracy does not address the various ways in which democratic dysfunction and erosion take place in autocratizing polities. Nonetheless, such a limited approach is most appropriate as a regulative ideal for the judiciary, both as a matter of principle and as strategy.
On principle, a wide conception of the anti-entrenchment principle might disable legitimate uses of state power by incumbent governments. For example, “populist” welfare policies can skew electoral preferences in favour of incumbent governments. Striking down such policies on the ground that they entrench the incumbent government would significantly restrict the scope for reasonable policy making. Similarly, conceived too broadly, the principle may well become meaningless since any rights limiting action could potentially impact thicker notions of democracy.
Strategically, concerns about judicial capacity and legitimacy should also caution against having too capacious an understanding of democracy undergirding the anti-entrenchment principle. Therefore, the doctrine’s application should be limited cases with proximate consequences for competitive electoral politics.
Similarly, casting a wide net for the principle as a temporal matter might also be undesirable. Of course, autocrats do not engage in anti-competitive behaviour only close to elections. As a principle and a regulative ideal, the anti-entrenchment principle is a consideration that should always weigh with judges in exercising their powers, but the weight should increase or decrease with context. Imminent elections may call for a more stringent deployment of the principle. Novel situations do arise at such moments, such as a fraught and high stakes political context, where time may be of the essence, other avenues of accountability such as the legislature (which may have been dissolved) may be absent, and innovative remedies and interim reliefs may be needed to level the playing field, etc.
Overall, the anti-entrenchment principle, as I conceive it here, is a guide for decision-making in electorally consequential contexts, to be applied by democratically inclined judges for disabling incumbent autocrats from using formal legality to undermine free and fair electoral competition between parties. Obviously, even this narrow, limited conception of the anti-entrenchment principle requires well-intentioned and democratically inclined judges who work in courts that continue to retain some modicum of legal and political legitimacy. With much of the world going to the polls in challenging circumstances this year, it remains to be seen whether judges have the willpower and ability to stand against the tide of autocratic entrenchment.
Suggested citation: Aparna Chandra, The Role of a Judge in an Electoral Autocracy, Int’l J. Const. L. Blog, Apr. 12, 2024, at: http://www.iconnectblog.com/the-role-of-a-judge-in-an-electoral-autocracy/
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