Abhinav Ravi*
Introduction
In a recent lecture, Justice Narasimha of the Supreme Court of India spoke of the importance of the composition and institutional structure of “fourth branch” institutions. The theory of separation of powers has typically identified the legislature, the executive, and the judiciary as being the branches of government. However, discourse on fourth branch institutions has witnessed significant growth over the last few decades. This “fourth branch” of government includes institutions such as the Election Commission, the Comptroller and Auditor General, the Lokpal, the Enforcement Directorate, and other such constitutional and quasi-constitutional bodies.
While the question of what these institutions ought to be called continues to be debated, I simply refer to them as “fourth branch institutions” because the term importantly connotes the separateness and independence of these institutions from the three generalist branches. Moreover, the scope of this branch is ambiguous, in that it is unclear exactly what institutions ought to qualify as constituting the fourth branch, and precisely what features constitute the commonality between institutions in the branch. I do not attempt to explore these questions in this article, as the argument that I wish to make here requires only a rough idea of what the fourth branch is and includes.
Statutes and judgments are increasingly being evaluated for the recognition that they accord to the independence of the fourth branch. These evaluations generally hinge on the degree to which the structural independence of these institutions is formally guaranteed. By “structural independence”, I refer to the legal or formal independence that the law affords to the institution. For instance, a structurally independent institution could have independent appointment processes, guaranteed career paths, high salaries, and other such design features which attempt to insulate the institution from the influence of the other branches- particularly, from the executive branch. The degree of independence afforded to the institution by its design features, therefore, constitutes its structural independence.
A question that naturally follows from this criticism is why the features which constitute the design of the institution, such as processes of appointment, terms of service, and the degree of legal insulation from executive interference, are taken to secure the operational independence of the institution. Contrasted with structural independence, I take “operational independence” to mean the actual independence exercised by the institution in its ordinary functioning. It is plausible that an institution with design features that attempt to insulate it from executive interference nevertheless operates in ways that favour the interests of the ruling dispensation. Such an institution, while structurally independent, could not be said to exercise operational independence.
James Madison’s provocation from The Federalist Papers provides us with a version of this scepticism. Madison argues that we require external controls on government because men are not “angels”. The primary means of controlling executive power is our dependence on people occupying positions of leadership in institutions. However, human imperfection necessitates the creation of what he calls auxiliary precautions. This article explores whether one speaks only of auxiliary precautions when one advocates for stronger design features and enhanced structural independence as a measure to insulate the fourth branch from executive interference.
It is important to note that structural independence has little inherent value. Its value only arises from its ability to produce or facilitate operational independence. The article investigates the relationship between structural and operational independence. It explores the extent to which design features can fulfil their purpose of bringing about autonomy in the functioning of fourth branch institutions. The article concludes that although structural independence might perhaps facilitate operational independence by equipping fourth branch institutions to better resist executive interference in their operations, it certainly cannot be spoken of as bringing about operational independence.
Structural Independence As An Auxiliary Precaution
If “structural independence” is taken to mean the formal independence that the law affords to the institution, then it follows that a structurally independent institution would have a high degree of legal insulation from executive interference. In his formulation of the “integrity branch” of government, Ackerman argued that through their design features of high salaries, a guaranteed minimum budget, and guaranteed career paths, institutions in this branch would be protected from legislative reduction.
Khaitan argues that structural independence should be pursued through what he calls the Independent Institutions Bill. This law would seek to secure structural independence for institutions by establishing mechanisms of appointment and accountability. For example, the law would establish Independent Institutions Committees, which would serve to ensure that the ruling dispensation does not have complete discretion in the appointment of nominees to institutions. Institutional decisions made by a body of persons rather than by a single person, statutorily protected salaries and perks, restrictions on transfers and interim appointments, and regular reporting mechanisms are some of the features that would enable the institution to better resist executive influence over its operation.
What renders precautions such as these, auxiliary, in Madisonian terms, is that we ultimately rely on the incumbents of the office, rather than on structural design, to guarantee the independence of the institution. Design features are not ends in themselves. Rather, they serve to secure the ends of ensuring that a non-partisan person is appointed to lead the institution, and of ensuring that external influence on the incumbents of the office is minimal.
In this sense, design features do not perform their function of guaranteeing the independence of the institution in a direct manner. Rather, they create the structural conditions under which the likelihood that the incumbents of the office will act in a manner that advances the political interests of the ruling dispensation is reduced or minimised. Structural design is only a means of influencing human nature and of attempting to ensure that incumbents of the office discharge the functions of the office in ways that better accord with constitutional goals.
Design features may, therefore be thought of as crucial to the independent operation of the fourth branch. Despite his characterisation of precautions as auxiliary, Madison notes that the necessity of these precautions is undeniable. He argues that the collective experience of humankind has taught us the importance of auxiliary precautions. It is on this logic that Madison justifies the separation of powers between different state organs.
Tushnet shows that the traditional idea of separation of powers between the three generalist branches (the legislature, the executive, and the judiciary) is structurally and functionally insufficient. It is structurally insufficient because a single political party could control both the legislative and executive branches, thus weakening the system of checks-and-balances. It is functionally insufficient because there are certain political domains where the interests of parties conflict or converge. For instance, it would make little sense to have the ruling dispensation perform the function of election management which is otherwise performed by the Election Commission. This insufficiency warrants the creation of the fourth branch, which is separate and independent from the three generalist branches. These institutions are in this sense, an extension of the classical idea of separation of powers.
The separation of powers, as a feature of constitutional design, is itself an auxiliary precaution. It is only by the extension of this logic that we characterise institutional design, which is intended to ensure structural independence, as an auxiliary precaution. The separation of powers is intended to prevent the concentration of powers in a single state organ. Extending this logic, design features which seek to fortify the independence of these institutions and strengthen their separateness are also auxiliary precautions. The idea of separation of powers draws contours for the legitimate exercise of power, and design features of each institution strengthen or preserve its structural independence.
On The Importance And Sufficiency Of Auxiliary Precautions
If one were to accept the arguments made in the previous section, that structural design is only an indirect mechanism of ensuring institutional independence, one may then raise three questions. First, even if design features are only indirect or auxiliary precautions, are they sufficient precautions to ensure the operational independence of the fourth branch? Second, even if they are insufficient in themselves, are they necessary conditions to ensure the operational independence of the fourth branch? Third, are there other measures that may be taken to ensure the desirable operation of the fourth branch in a constitutional democracy?
Design features, as argued so far in this article, create conditions that are facilitative of operational independence. In other words, the structural independence of institutions also creates conditions that are often necessary for the operational independence of the fourth branch. If institutional design fails to protect the institution from partisan appointments and external influence, then political actors have incentives to gain effective control of the fourth branch. While this argument does not speak to the sufficiency of structural independence, it may be said that sound institutional design is often (but not always) a necessary condition for operational independence.
While structural independence may often be necessary for the operational independence of the fourth branch, it does not necessarily follow that it is sufficient. This is because operational independence is fundamentally a matter of human nature and relationships. For example, the Indian judiciary is a structurally independent institution in that appointments to the judiciary are made by a collegium, which is constituted entirely by members of the higher judiciary.
Yet, Mohan Gopal and Sondhi show that executive interference into judicial appointments can take different avatars. Gopal argues that under the NDA regime, there was a marked increase in the number of judges in the higher judiciary who turned to religious texts as authoritative sources of law. Institutions being rendered compliant is of particular concern where there is a single dominant political party that is able to extend its influence into the operation of the other branches of government. In the context of judicial independence in China, it has been argued that in states with a single dominant political power, the independence of other institutions is only a matter of political will and depends on whether the dominant power believes that the costs of undermining these institutions are outweighed by the benefits. In the context of the Election Commission of India, Michael Pal argues that the institution has been more effective during the tenure of coalition governments, and less so in political contexts where there was a single dominant party. The conceptual point underpinning these examples is that operational independence, in political contexts where there is a single dominant party, is more easily undermined. This statement holds true regardless of the structural independence that is afforded to fourth branch institutions.
It is precisely because executive interference into the operation of other institutions can take on different forms that structural independence is not sufficient to ensure the independence of the fourth branch. While sound institutional design might create conditions that are facilitative of operational independence, it does not necessarily follow that operational independence is actually brought about. Despite sound institutional design, the independence of fourth branch institutions may be compromised by informal organisational factors that design simply cannot account for.
Shifting Focus
So far, we have responded to the first two questions raised at the beginning of this section. In summary, it was argued that while structural independence is often a necessary condition for operational independence, it is not a sufficient condition. This leaves with us the question of what other means may facilitate the operational independence of the fourth branch.
It is perhaps true that because institutional independence is ultimately a matter of human relationships, the operational independence of fourth branch institutions can never be guaranteed. Making an argument along similar lines, Tushnet asks whether fourth branch institutions can ever operate effectively where they are needed most, such as in political settings where there is one dominant political party that is able to influence the operation of these institutions.
Any discussion about fourth branch institutions must perhaps be tempered by the discomfort that arises out of this provocation. How can one hope to design institutions to be independent when it is likely that a dominant political party can (and perhaps, will) extend its influence to curtail the operational independence of the branch? It is perhaps so that a structurally independent institution is better equipped to resist executive interference than an institution which lacks such independence. However, this certainly does not imply that the resistance to executive dominance will actually occur. One can only state on the basis of institutional design that a certain institution is better placed to exercise independence, but never that it in fact exercises such independence.
Conclusion
Over the course of this article, I have sought to explore the degree to which the structural design of an institution can be said to bring about its operational independence. I argue that given the nature of executive aggrandisement, the operational independence of institutions may always be undermined by informal organisational factors, irrespective of the structural independence afforded to the institution. I conclude that design features are only auxiliary precautions in that they are only facilitative, and never by themselves determinative, of the operational independence of the institution.
*Abhinav Ravi is a B.A., LL.B. (Hons.) student at National Law University, Delhi
