India, Oct. 15 -- On Monday, October 12, the Supreme Court made an important clarification. In a case challenging the allegedly unilateral special intensive revision (SIR)-related decisions taken by chief election commissioner Gyanesh Kumar, the Court stated that it had not adjudicated the amendments to Form 6 - the form new voters must fill for enrolment. The clarification came in relation to an October 5 observation by the Chief Justice of India Surya Kant - Justices Joymalya Bagchi and V Mohana are the other members of the bench hearing the case - that the changes had not been "approved" by the Supreme Court. The Court said on Monday that since it had not ruled on the changes, it had neither approved nor rejected them. The clarification remains in stark contrast to the Election Commission's own public stand, according to which certain controversial changes that had been made to Form 6 - such as listing the details of one's parents in the 2002 SIR - had been granted the Supreme Court's imprimatur. While the fallout of this will become apparent in the days to come, the episode revealed somethingelse: The Election Commissionhad made a hugely consequential alteration to a statutory instrument - one that directly impacted citizens' voting rights - without any public deliberation or oversight. This, in turn, reveals a deeper problem: A lot of effective law-making, at present, takes place with little to no involvement of the actual representative body - Parliament. It has long been accepted that the size, scale, and complexity of the modern-day administrative State preclude the legislature from being involved in every act that could have an impact on legal rights and liabilities. For modern-day States to function, legislatures need to delegate a significant portion of this task to executive bodies and to other, fourth-branch institutions. It is, therefore, enough that laws passed by Parliament enunciate legislative policy and set out the contours of the legal framework. The task of day-to-day administration within that legal framework can then be left to other bodies. Thus, what courts must guard against - and step in to prevent - is excessive delegation. While that has been the theory, in practice, Indian courts have shown extreme deference to executive action that purports to act within broad statutory frameworks. Executive-made rules are almost never struck down on grounds of being outside the scope of the parent statute (what, in technical terms, is known as ultra vires), and laws are almost never struck down on grounds of excessive delegation. A good example of this phenomenon was seen during the Covid-19 pandemic. During the pandemic,the executive invoked the Disaster Management Act, which gave it very broad rule-making powers to take steps in cases of "disasters." To start with, it was doubtful whether the Act - which had been passed in the wake of the Odisha cyclone and was meant to deal with localised natural disasters - was meant to beused for an ongoing national public health crisis. Be that as it may, having invoked the DMA, the executive then essentially "managed"the pandemic through asuccession of executive orders that had a far-reaching impact on fundamental rights, as they included restrictionson movement, livelihood, privacy, and so on. Parliament was accorded no role in addressing the pandemicat any point. While on a couple of occasions this issue was raised in court, it was swiftly dismissed. Indeed, during the pandemic, it was only the legislature of the state ofKerala that passed specific legislation to deal with the issue: Even at the level of the states, it was the executive that ran the show, including passingfar-reaching externment orders - for example, in Maharashtra. The Election Commission's unilateral alteration of Form 6 is, therefore, just the latest example of how essentially law-making acts have been outsourced to non-representative bodies. Even the decision to have a nationwide SIR of the electoral rolls was taken without parliamentary involvement, and the results are there for all to see. This reflects a deeper malaise at the heart of Indian democracy: Our representatives spend most of their time on governance activities at the constituency level, while technocratic or executive bodies, acting opaquely, make decisions that should ideally belong to the legislature. There may be objections that the contemporary legislature is notparticularly known for the quality of its deliberation: Laws are passed without meaningful debate, andexecutive control over the party through the anti-defection law means that Parliament is hamstrung inexercising its powers of oversight and accountability. That, however, is a call for strengthening Parliament through structural reform, as well as bringing about a shift in the extent to which Parliament has surrendered control over law-making to executive and technocratic bodies. Indeed, one has to follow from the other: Recovering parliamentary control over law-making only makes sense if Parliament itself is restored to a position where it becomes, once again, a representative and deliberative body. Specific to the Election Commission, the responsibility lies at least partly with the Supreme Court, which in the early 2000s vastly expanded the powers of the Commission with a view to keeping politicians in check. However, given that the appointment of the Commission is itself within executive control, an expansion of those powers - as we have seen - is fraught with risk. What is needed, therefore, is reform of both the Election Commission and Parliament, so that law-making can once again be public, deliberative, and accountable....