The Indian Constitution through the Lens of Power – IV: Guarantor Institutions

—Gautam Bhatia, Advocate, New Delhi, and independent legal scholar

[Editor’s Note: This is one of our ICONnect columns. For more on our 2023 columnists, see here.]

The previous three posts in this series have examined the Indian Constitution as a terrain of contestation around three axes of power: federalism, legislative/executive relations, and pluralism. In this post, I shall continue this conversation by examining a fourth axis: that of the “fourth branch,” or “guarantor” institutions.[1]  

Recent years have seen substantive theorising about the role of fourth branch, or guarantor institutions, in a constitutional democracy. These institutions are commonly understood as a set of bodies that administer or oversee an infrastructure of implementation that is required to make certain constitutional norms or rights effective[2]: for example, a free and fair election is impossible without an Election Commission. The specific function performed by a guarantor institution can vary: it could have to do with ensuring integrity in government functioning (e.g., an Auditor-General)[3], securing transparency (e.g., an Information Commission), effectuating specific rights (e.g., a Data Protection Commission), or providing an additional node for public participation (e.g., a Human Rights Commission, with provisions for fact-finding reports and other enquiries).

While there may be differences in the roles played by guarantor institutions, one thing that unites them is that they often stand between the individual and the State, and are charged with enforcing rights or norms against the State (in many cases, the executive). For this reason, securing the independence of guarantor institutions is seen as a constitutional imperative. For example, under the South African Constitution, these institutions are collectively known as “Chapter IX Institutions”, and their independence is specifically guaranteed within the Constitution.[4] Similarly, Chapter XV of the Constitution of Kenya is specifically titled “Commissions and Independent Offices,” and contains a similar guarantee.[5]

A perusal of the Indian Constitution reveals, however, no analogous chapter or set of provisions. There are two reasons for this. The first is that the Indian Constitution was drafted between 1947 and 1950, when the vocabulary of fourth branch institutions did not yet exist. The second, however, is an issue of constitutional design: the Indian Constitution places significant faith in the executive. For example, the two guarantor-institution analogous bodies that are found in the Indian Constitution are the Office Comptroller and Auditor General, and the Election Commission. The first is directly appointed by the executive. And as for the Election Commissioners, until a recent judgment of the Supreme Court, they were constitutionally mandated to be appointed by the executive, until Parliament were to pass a law on the subject. (It will surprise no one to learn that Parliament never passed a law on the subject).[6]

Over the years, with the need for Fourth Branch Institutions being keenly felt, Parliament has created a few by law. The National Human Rights Commission, for example, was established under the Protection of Human Rights Act,[7] and the Information Commission was established under the Right to Information Act.[8] However, the absence of constitutional entrenchment leaves these institutions vulnerable to executive takeover: for example, in 2019, Parliament amended the Right to Information Act, substantially eroding the independence of the Information Commissioners by bringing appointment procedures as well as tenure conditions under executive control.[9]

In the absence of constitutional entrenchment, the judiciary has – over the years – attempted to “read in” a constitutional basis for a certain set of guarantor institutions. This process began in a case concerning the independence of the anti-corruption bureau: noting that the independence of such an institution implicated constitutional values such as equality and the rule of law, the Supreme Court held that the appointment of the head of the anti-corruption bureau would be done by a three-member Committee consisting of the Prime Minister, the Leader of the Opposition, and the Chief Justice of India.[10]

The existence of this Committee has done little to dampen accusations that the anti-corruption bureau favours the government in power, thus suggesting that judicial solutions might be little more than a band-aid over deeper, structural problems. More recently, however, the Supreme Court attempted to craft a constitutional theory of fourth branch institutions in a case concerning the appointment of election commissioners. Linking the independence of the Commission with the constitutional right to vote, the Court held that practice of the executive appointing the Election Commissioners was meant to be a temporary expedient, until Parliament enacted a law on the subject. Parliament’s failure to do so over twenty years had created an unconstitutional situation where a directly interested party in the electoral game was in charge of appointing the “referee”; consequently, the Court stepped in to create an interim arrangement – the same three-member Committee responsible for appointing the Chairperson of the anti-corruption bureau – until Parliament saw fit to pass a law.[11]

While the judgment of the Supreme Court did a commendable job in articulating a theory of guarantor institutions flowing from the interstices of the Constitution, the absence of constitutional entrenchment makes it a fragile achievement: immediately after the judgment, the executive introduced a bill into Parliament seeking to take back control over the Commission by replacing the Chief Justice on the Committee with a government minister (thus allowing the executive to have a majority vote).[12] While this Bill is evidently contrary to the reasoning of the Supreme Court’s judgment, it has been justified on the basis that Parliament is merely discharging its constitutional duty to enact a law on appointments to the Election Commission – something that the judgment itself affirmed. If – and when – this Bill becomes a law, and is challenged, it will be interesting to see if a future bench of the Supreme Court will be able to affirm the interpretive position that the independence of guarantor institution flows from the constitutional structure and the role performed by these institutions, even without explicit textual support for such a proposition. While there is much to recommend such a position, the present tussle reveals once again limitations in the Constitution’s text and design, and an inbuilt drift towards centralised, executive power – this time, at the cost of independent guarantor institutions.

Suggested citation: Gautam Bhatia, The Indian Constitution through the Lens of Power – IV: Guarantor Institutions, Int’l J. Const. L. Blog, Nov. 15, 2023, at: http://www.iconnectblog.com/the-indian-constitution-through-the-lens-of-power-iv-guarantor-institutions/

[1] Tarunah Khaitan, “Guarantor Institutions”, (2021) The Asian Journal of Comparative Law 1.

[2] Mark Tushnet, The New Fourth Branch: Institutions for Protecting Constitutional Democracy (CUP 2021).

[3] Heinz Klug, “Transformative Constitutions and the Role of Integrity Institutions in Tempering Power: The Case of Resistance to State Capture in Post-Apartheid South Africa” (2019) 67 Buffalo Law Review 701, 702.

[4] Chapter IX, Constitution of South Africa, 1994

[5] Chapter XV, Constitution of Kenya, 2010.

[6] Article 324, Constitution of India.

[7] The Protection of Human Rights Act, 1993.

[8] The Right to Information Act, 2005.

[9] The Right to Information (Amendment) Act, 2019 [“RTI Act”]; PTI, “Centre notifies RTI Act amendments, ignores civil society concerns”, Business Standard (October 24, 2019).

[10] Vineet Narain v Union of India, (1998) 1 SCC 226.

[11] Anoop Baranwal vs Union of India, 2023 SCC OnLine SC 216.

[12] The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service And Term of Office) Bill, 2023.