Art 1. Vol 5. 2026 

Article 324 of the Constitution vests the superintendence, direction and control of elections in a single body and says remarkably little about how that body should think. It provides for a Chief Election Commissioner and as many other commissioners as the President chooses to appoint. For most of the Republic’s history, barring a brief spell in 1989-90, the Commission was one man. Since 1993 it has had three members, bound by a rule that reads, on its face, almost too simple to need explaining: the Commission’s business is to be transacted, as far as possible, unanimously; where the three disagree, the majority prevails¹. A statute passed in 2023 carries the same formula forward². Everything difficult about collective decision-making inside a constitutional body sits inside the phrase “as far as possible.”

That phrase has recently drawn unusual attention. A newspaper investigation reported that two of the Commission’s three members had placed a series of written objections on record over several months, some concerning decisions they said were taken without their knowledge³. The Commission’s own response held that every decision of the full body had been unanimous, and that differing observations are a routine feature of internal deliberation⁴. This essay takes no position on which account is correct. The underlying facts are contested, and some of them may not become public for years. What interests it is the shape of the disagreement rather than its content. Neither side disputes the constitutional text. Neither disputes that the body decides collectively. Where they part is on what collective decision-making actually consists of: who drafts, who signs, what counts as an objection, and who gets to say afterward what the institution decided.

The text of Article 324 cannot settle that question, because it was never written to answer it. This is exactly the terrain that the legal theorist Upendra Baxi mapped out in his account of Indian constitutionalism as a “theory of practice.” For Baxi, a constitution is not exhausted by its document or by what courts eventually say about it. It is continuously produced by the people who staff its institutions, in the ordinary, undramatic business of deciding who does what and whose name goes on the file. Read through that lens, the recent controversy looks less like a breakdown of a constitutional rule than a rare glimpse of the place where the rule actually lives. This essay argues that the neutrality of India’s electoral authority rests less on the fifty-odd words of Article 324 than on a working culture of shared knowledge, recorded dissent and internal transparency, and that Baxi supplies the vocabulary for understanding why that culture is both indispensable and unusually fragile.

A Theory Built for Citizens, Borrowed for the State

Baxi’s argument rests on a distinction he draws between three layers of constitutional life. The first, which he calls C1, is the text itself: the words of the Constitution and the statutes made under it. The second, C2, is the ongoing work of interpreting and applying that text, chiefly through courts but also, he insists, through legislatures, executives and administrative bodies going about their daily business. The third, C3, is the underlying theory or ideology through which people understand what the text and its interpretation are for. Baxi’s real innovation is to argue that these three levels are not stacked neatly on top of one another. They are locked in a continuous, two-way relationship, in which practice at C2 quietly reshapes what the text at C1 is taken to mean, long before any court says so⁵.

Baxi built this framework to recover a set of actors that conventional constitutional theory tends to overlook: citizens, social movements, subaltern groups, people who interpret the Constitution from outside the courtroom and the legislature. His sympathies, and most of his examples, lie with those on the receiving end of state power rather than with the state’s own internal workings. It would be a stretch to claim he was writing about disagreements among electoral commissioners. But the reach of his argument is broader than his own examples. Baxi is explicit that C2 includes executive and administrative interpretation, not only judicial interpretation, and that constitutional meaning is made wherever an institution decides how to act under an ambiguous mandate⁶. An election commission choosing how to record its own disagreements is doing exactly that kind of interpretive work. The theory of practice does not require a citizen on one side of the transaction. It requires only a text that underdetermines the outcome, and an institution left to fill the gap through habit.

What The Text Settles

On one point the constitutional text is unambiguous. The 1995 Supreme Court ruling in T.N. Seshan v Union of India rejected the argument that a Chief Election Commissioner enjoys any superior authority over the other two members, holding that the Commission decides as a genuinely collegial body and that the Chief Election Commissioner is, at most, first among equals⁷. The governing statute goes further still: it requires that even the internal allocation of work among the three members be settled unanimously, and only failing that does majority rule take over⁸. On paper, this is one of the more carefully levelled playing fields in the Indian constitutional order. Three votes, one value each, no institutional tiebreaker built in favour of the chair.

What the text does not settle is everything procedural. Nothing in Article 324 or its enabling statutes specifies how a dissent should be recorded, who drafts a decision issued in the Commission’s name, or what obligation exists to inform all three members before an order goes out under it. There is also a structural asymmetry the equal-vote arithmetic conceals: the Chief Election Commissioner can be removed only through the elaborate parliamentary process reserved for a Supreme Court judge, while the other two commissioners can be removed by the President on the Chief Election Commissioner’s own recommendation⁹. Formal equality in the vote sits alongside informal inequality in security of tenure. Baxi’s point that unwritten practice can quietly work against the promise of a written text applies here with unusual precision. The statute guarantees three equal votes. It says nothing about who holds the pen.

Practice, or how paperwork becomes constitutional

This is not the first time the internal life of the Commission has surfaced in public. Earlier episodes of recorded disagreement, in 2009 and again in 2019, involved a single commissioner objecting to a specific decision on a specific matter. What distinguishes the present controversy, according to the investigation that revealed it, is that the objecting commissioners were not merely dissenting from an outcome. They were recording that decisions had been taken and orders issued while they say they remained unaware of them¹⁰. That is a different kind of claim. A dissent about outcome accepts that the process functioned and disputes only its conclusion. A dissent about knowledge disputes whether the process functioned as the statute assumes it will.

The same set of internal documents has since been described in two irreconcilable ways: as formal, on-record objections by one account, and as routine operational observations, indistinguishable from the ordinary back-and-forth of deliberation, by the other. This is Baxi’s interpretive plurality operating not on a grand constitutional question but on a stack of internal notes, and it matters for a simple reason. Whether an objection counts as dissent, and whether dissent gets minute, determines whether the Commission’s internal process can ever be examined by anyone outside it. A convention around this used to exist, if the recollections of former commissioners are any guide: differences, they have said, were customarily “ironed out” before a decision left the building, producing something close to genuine unanimity rather than a bare majority dressed up as one. A convention of that kind can decay without a single word of the statute changing. That erosion, invisible at the level of text, is precisely what Baxi’s idea of habitus is built to describe.

The Theory Beneath The Umpire

Underneath these procedural questions sits a genuinely theoretical one, which is what the Commission understands itself to be. Is it a technocratic administrator of an electoral roll, whose legitimacy rests on procedural correctness and nothing more? Or is it a guardian institution, whose legitimacy rests on being seen to stand outside the political contest it referees? Is internal unanimity a sign of institutional health, evidence that disagreement is resolved through argument rather than suppressed by hierarchy, or is it a sign of institutional weakness, evidence that dissent has nowhere safe to go? Baxi calls this reflective layer C3, the cultural software running beneath any given C1 text and C2 practice, and he is candid that liberal constitutional theory usually bundles free and fair elections in with judicial independence and the separation of powers as one of the unexamined institutional goods a constitution is simply assumed to protect¹¹.

Baxi’s deeper argument is that this assumption of neutrality is never something a text can guarantee on its own. Neutrality, where it exists, is a product of practice, which means it can also be a casualty of practice. Applying his own method to the present episode forces two disciplines at once: refusing to accept the Commission’s account of itself as unanimous simply because it says so, and refusing to accept a critic’s version of events as more truthful simply because it is more dramatic. Both are self-descriptions offered by interested parties, and both deserve the same scepticism.

Expectation, Experience, and the Citizen as Interpreter

Baxi’s distinction between constitutional expectation and constitutional experience captures the gap the controversy has opened for the ordinary voter. What is expected of the Commission is something close to independent verifiability: that its fairness could, in principle, be checked from outside. What voters may now be experiencing, at least in part, is an institution whose internal workings only became visible through leaked notes and a subsequent press statement, rather than through any procedure built for the purpose. The German sociologist Niklas Luhmann, on whom Baxi draws, distinguishes a disappointed expectation that produces adjustment from one that produces a standing claim of entitlement. The political reaction to the story, running from demands for a formal institutional inquiry to considerably more sweeping calls for wholesale annulment of past results, is citizen interpretation of exactly the kind Baxi describes: ordinary people asserting a reading of the Constitution’s promise that the text itself does not spell out. Baxi is careful, and this essay follows him, not to treat every such reaction as equally well-founded. He is explicit that popular constitutional interpretation is not automatically emancipatory, and some of the responses to this controversy sit well outside any plausible reading of what a procedural failure, real or alleged, would actually license under Indian constitutional law.

It is worth testing one of Baxi’s own claims against how the law has since moved. He notes that Indian citizens have an individual right to vote and to contest elections but no collective, judicially enforceable right to a system of free and fair elections as such¹². That was truer when he wrote it than it is today. The Supreme Court’s 1975 ruling in Indira Nehru Gandhi v Raj Narain placed free and fair elections within the basic structure of the Constitution, immune even from constitutional amendment¹³. The gap Baxi identifies has narrowed at the level of doctrine. What has not changed is his sharper point: a citizen may have no individual complaint mechanism for a claim about how the Commission conducts its internal affairs, however entrenched the underlying principle. A right can sit in the basic structure and still be practically unreachable by the person who wants to invoke it, which is Baxi’s argument about rightlessness in miniature, transposed from the citizen confronting the bureaucracy to the citizen confronting an institution whose internal deliberations are, by design, its own business.

Three Objections

Three objections to this reading deserve a direct answer rather than a footnote. The first is that disagreement inside a three-member body is not a scandal but a sign of health; a commission that never dissented would be a rubber stamp, not an umpire. This is true, and Baxi’s own commitment to interpretive plurality supports it. The real question his framework raises is not whether disagreement exists but whether it is legible, whether the fact and content of a dissent can be established after the event by someone who was not in the room.

The second objection is that a “theory of practice” risks explaining everything and therefore nothing, since any institutional behaviour can be redescribed as practice overriding text. The answer is that the framework earns its keep precisely where the text is genuinely silent, as it is here on questions of recording and disclosure, and says nothing useful where the text is clear, as it is on the equal weight of each vote. The theory is a tool for locating gaps, not a licence to treat the whole Constitution as up for grabs.

The third is that a single investigative report, contested by the institution it concerns, is thin ground for a theoretical essay. The strongest version of the argument does not depend on resolving that dispute. Even if the Commission’s account is accepted in full, and every decision really was unanimous, the episode still demonstrates that unanimity inside a constitutional body is unverifiable from the outside unless the body’s working practices make it so. That conclusion holds regardless of which account of the underlying facts eventually proves correct.

What Follows ?

None of this points towards a new institution or a fresh constitutional amendment; Baxi’s own instinct runs the other way, towards taking existing practice more seriously rather than layering new architecture on top of it. The available correctives sit at the level of practice, not text: published reasons for decisions taken over a recorded objection, a formal channel for minority views comparable to a separate opinion in a judicial bench, and clarity, settled unanimously as the statute already requires, on how work is allocated among the three members before a controversy forces the question into the open. India already has one working model for this in the monetary policy committee that sets interest rates, whose minutes record each member’s vote and reasoning individually rather than presenting a single institutional voice. Nothing in Article 324 forbids an election commission from doing the same.

The Constitution guarantees the electorate three equal votes on the body that runs its elections. What it cannot guarantee, because no text can, is that those three votes will be recorded, communicated and remembered in a way that lets anyone outside the room verify that equality was actually exercised. That guarantee, if it exists at all, lives exactly where Baxi always insisted constitutional meaning is made: not in the document, but in the file note nobody outside the institution ever reads until, on occasion, somebody does.

References

1.Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991, s. 10, inserted by Act 4 of 1994 with effect from 1 October 1993.

2.Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.

3.Press investigation into the internal functioning of the Election Commission of India, September 2026.

4.Press statement issued by the Election Commission of India, September 2026.

5 Upendra Baxi, “Outline of a ‘Theory of Practice’ of Indian Constitutionalism,” in Rajeev Bhargava (ed.), Politics and Ethics of the Indian Constitution (Oxford University Press).

6 T.N. Seshan v Union of India, (1995) 4 SCC 611.

7.Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991, s. 10(1).