Does the Constitution protect the autonomy of ‘fourth branch’ institutions?

….The doctrine of constitutional statutes cannot do more than bring certain non-entrenched fourth branch institutions on par with their entrenched counterparts. This immediately brings up the question: how effective is the Constitution in protecting the independence and autonomy of those institutions that it does entrench within the text? 

To answer this, let us turn to the Election Commission. Article 324 of the Constitution stipulates that the superintendence, direction, and control of elections will be vested in an Election Commission. Article 324(2) states: 

The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President. 

It is perhaps not entirely surprising that in the seven decades after the Constitution’s birth, Parliament failed to enact any law, leaving appointments—by default—in the hands of the President. The Election Commission itself has had a chequered history, with its reputation for independence and impartiality more a function of the personalities of individual chief election commissioners, rather than the manner and process through which they are appointed.

It was in this context that the Anoop Baranwal case came to the Supreme Court. 

The judgment of the Supreme Court in Anoop Baranwal is complex and requires some unpicking. First, as a matter of constitutional history, the Court studied the Constituent Assembly Debates on the question of the appointment of election commissioners. It found that while there had been agreement in the assembly that the Election Commission must be independent and free from executive interference, there had been no consensus on how this was to be achieved. Proposals requiring parliamentary supermajorities, or instruments of instruction to the President, were put forward, but none of them carried enough support from the assembly. For this reason, the framers of the Constitution left it to Parliament to decide, by law, and drafted Article 324 as they did. But it also followed, therefore—according to the Court—that Article 324 carried with it a constitutional expectation both that Parliament would pass a law, and also that the design of such a law would guarantee the independence of the election commissioners from the executive. 

The Court then buttressed its historical argument with a structural argument. The constitutional right to vote would be meaningless without the existence of a body that was placed in charge of conducting free and fair elections (what, in this chapter, I have referred to as the ‘infrastructure of implementing’ a constitutional right). Under the Indian Constitution, this body was the Election Commission. There was, therefore, a direct link between the right to vote, and the role and functions of the Election Commission. This was further borne out by the range of functions vested in the commission, through statute: the allocation of party symbols, the recognition or de-recognition of political parties, adjudicating ‘splits’ within parties, enforcing the Model Code of Conduct during elections and penalizing parties for on-compliance, and so on.

The constitutional history, the role of the Election Commission in implementing the constitutional right to vote, and the vast powers vested in it to do so, led the Court to find that the continuing absence of legislation (and therefore, the default position of presidential appointments) was unconstitutional. The Court sought to remedy this through a judicially mandated interim arrangement. The arrangement was a familiar one, as we have seen above: a committee consisting of the Prime Minister, the leader of the Opposition, and the Chief Justice of India. 

A study of the Anoop Baranwal judgment reveals that the Court’s reasoning was consistent with our discussion in this chapter. The Election Commission is a fourth branch, or guarantor institution, whose task is to create and oversee the infrastructure of implementation of a constitutional right (in this case, the right to vote). The commission’s role, therefore, requires structural and institutional independence from the executive (a player in the very game that the commission is meant to referee). Appointments are a crucial facet of structural and institutional independence. Consequently, an arrangement where appointments to the Election Commission are under the control of the executive is unconstitutional—a position for which the Court found substantial support in the Constituent Assembly Debates. In essence, therefore, the Court drew out an implied guarantee of institutional independence from the executive, based on constitutional history, design, and structure. 

Understanding this also makes clear that Parliament’s legislative response was contrary to Anoop Baranwal. It is, of course, true that Anoop Baranwal itself made clear that its three-member committee was a temporary arrangement, until Parliament discharged its constitutional obligation to legislate under Article 324(2). However, the entire basis of Baranwal was that an Article 324(2) law would have to sufficiently guarantee the independence of the Election Commission. While there could be many different ways of guaranteeing this (from a non-partisan selection body to a multi partisan selection body), it is evident that executive control over selections violates that guarantee.

The problem, however, is that none of this is set out in the constitutional text. As with the unentrenched institutions that we have discussed in the previous sections, institutional independence that depends on implied limitations and structural readings is relatively easy to displace. 

The fate of the Anoop Baranwal judgment reflects this. The December 2023 law was justified on the basis that the Court, in Anoop Baranwal, had noted that its three-member committee was a ‘pro tem measure’, and that the final responsibility for legislation lay with Parliament. In its pre-general election March 2024 order refusing an interim stay upon the law, a two-judge bench of the Supreme Court repeated this justification, without going into the reasoning of Anoop Baranwal. The judgment, thus, was effectively nullified. 

This, then, is the peril of what we have called weak entrenchment. Even for those fourth-branch institutions that are specifically recognized by the Constitution (whether it is the Election Commission or the CAG), the constitutional text does not stipulate or guarantee their independence. On the contrary, by expressly providing for Presidential appointment as the default (albeit a temporary default), the Constitution facilitates and enables a reading (both by the Court, but also by the other branches) that executive control over fourth-branch institutions is not inconsistent with the constitutional scheme. This, in turn, makes judgments such as Anoop Baranwal not only outliers, but also easier to get around through legislation (by Parliament) or interpretation (by the Court itself). 

(This is an excerpt from ‘The Indian Constitution: Conversations with Power’ by Gautam Bhatia, published recently by HarperCollins. We thank HarperCollins for permission to run the excerpt.)

Read other book excerpts published on the Supreme Court Observer here.