Guest Post: The Democracy Branch – Reimagining the Role of the Data Protection Authority

[This is a guest post by Nikhil Pratap.]


In Justice K.S.Puttaswamy (Retd) v. Union of India (2017), the Supreme Court instructed the Justice Srikrishna Committee to formulate a comprehensive legislation for personal data protection. A law was deemed necessary in the context of the surveillance and privacy threats to individuals, primarily from the executive action. The main purpose of the law would be to incorporate data protection principles and also ensure accountability of government use of data.

The efforts on instructions of the Supreme Court eventually culminated in The Personal Data Protection Bill, 2019 (“PDP Bill”) which sets out data protection principles for collection and processing of personal data, both by government and private parties. It envisages a Data Protection Authority (“DPA”) having wide powers to carry out policy setting, monitoring enforcement, investigation, research, awareness and grievance redressal functions. The powers and the structure of the DPA in the PDP Bill are largely inspired from other sectoral regulatory bodies – such as SEBI or TRAI, which carry out core economic functions of the executive and are under its direct supervision and control.

It is the author’s argument that the proposed DPA in its current form greatly deviates from its originally envisaged primary function i.e. to ensure accountability of the executive (both Central Government and State Governments and its various arms) – while it collects and processes personal data of its citizens. Given the intent and context of the PDP Bill, setting up the DPA as a sectoral economic regulator under the control of the Central Government, amounts to defeating its mandate. To ensure that the Bill effectively meets its purpose, the DPA should be reimagined as a ‘Fourth Branch’ Institution or a ‘Democracy Branch’ Institution.

Fourth Branch Institutions

Constitutional theory traditionally divides the State into three branches – the Legislature, the Executive and the Judiciary. Under this traditional conception of State, institutional accountability of executive action lies with the other two branches of the government – namely, legislature and the judiciary. However, due to the design constraints of parliamentary democracy and collective responsibility, legislative accountability tends to get weakened as the executive usually commands the support of a parliamentary majority. (See recent decision of the Parliamentary Committee on review of PM Cares). This means that the judiciary is effectively the only institution responsible for protection of Constitutional checks and balances.

In such a context, the concept of a ‘Fourth Branch’ of the State gains immense significance and potential. There is growing literature which classifies institutions protecting the core ideals of democracy, as the ‘Fourth Branch’ or the ‘Democracy Branch’. (See Professor Bruce Ackerman and Professor Tarunabh Khaitan). The core democratic ideals which the Fourth Branch ought to protect depends on the conception of the democracy embraced by the Constitution. A ‘thinly’ defined democracy would limit these core ideals to fair processes such as free and transparent elections, oversight, impartiality and civil and political liberties whereas a ‘thickly’ defined democracy would also require protection of other constitutional values such as socio-economic rights and distribution of financial resources. The protection offered by the fourth branch institutions would thus vary depending on the constitutional values. However, in either case, these institutions are independent from the other branches of the State and provide for an additional layer of institutional accountability- apart from the judiciary.

Good examples of fourth branch institutions are the ‘Chapter IX’ institutions in the South African Constitution, which are called ‘State Institutions Supporting Constitutional Democracy’. These include institutions such as the South African Human Rights Commission, Electoral Commission, the Auditor General and the Commission for Gender Equality. Similarly in India, institutions such as the Finance Commission, Election Commission, the CAG, Lokpal, Information Commission, National Human Rights Commission may be considered as examples of the fourth branch even though they are not explicitly enumerated as such. The distinctive characteristic of the ‘Fourth Branch’ institution is that they are independent from the direct influence and control of the Executive.

While some of these fourth branch institution are constitutional bodies, they may be created through a statutory enactment as well. Gautam Bhatia argues that statutory bodies that provide a framework towards implementation of core fundamental rights or a democratic ideal are elevated to the status ‘constitutional statutes’. He draws a functional equivalence between constitutional bodies (such as the Election Commission) and the institutions created by constitutional statutes (such as Information Commission, CBI, CVC)- as both of them serve core democratic functions and ensure accountability- and concludes that both types of bodies are fourth branch institutions. As such they deserve equal protection of their independence from the executive, irrespective of their structure or manner of enactment. In this context, he argues that the recent Right to Information (Amendment) Act, 2019, which removed the fixed tenure and salary of the Information Commissioners is unconstitutional because it dilutes their constitutionally protected independence.

To ensure independence, members of the fourth branch institutions are usually not appointees of the executive but are appointed by a committee often having bipartisan legislative representation and in some cases representatives from the judiciary. Examples of appointment through such selection committees include the Information Commissioners, Central Vigilance Commissioners or the members of the National Human Rights Commission. Many fourth branch institutions have fixed terms and salary for their members. For example, the Comptroller and Auditor General of India has a fixed term of 6 years and can only be removed from office in the same manner and on the same grounds as that of a judge of the Supreme Court and his/her salary can be altered only by a law by the Parliament. Similarly, members of the National Human Rights Commission can be removed on ground of proved misbehaviour or incapacity as prescribed in law.

DPA AS A FOURTH BRANCH INSTITUTION

The question which then arises for consideration is why must the DPA be considered a fourth branch institution instead of a mere sectoral regulator such as TRAI, SEBI or CERC. To answer this question, we must first understand that in a welfare state such as India, the executive branch continues to play a dominant role in individual lives, and they process a wide range of personal data for functions such as healthcare, subsidies, census, surveillance and targeted governance. Intelligence and law enforcement agencies also collect and process swathes of personal data of individuals. Given the width and scale of executive action related to personal data, accountability of executive actions becomes necessary. This sentiment was captured in Puttaswamy, where Chandrachud J. observed :

180. (…) In a social welfare state, the government embarks upon programmes which provide benefits to impoverished and marginalised sections of society. There is a vital state interest in ensuring that scarce public resources are not dissipated by the diversion of resources to persons who do not qualify as recipients (…) Data mining with the object of ensuring that resources are properly deployed to legitimate beneficiaries is a valid ground for the state to insist on the collection of authentic data. But, the data which the state has collected has to be utilised for legitimate purposes of the state and ought not to be utilised unauthorizedly for extraneous purposes. This will ensure that the legitimate concerns of the state are duly safeguarded while, at the same time, protecting privacy concerns.

 

The potential dangers of privacy and surveillance posed by the executive has already been made evident in the constitutional challenge to the AADHAR scheme, where the Petitioners exhaustively presented the privacy, surveillance and security dangers to unchecked data processing by the government.

Further, the right to privacy has already been recognized as a civil political right which requires heightened protection from the executive abuse, for they are inextricably linked to a free exercise of other democratic rights such as a right to vote or the right to freedom of movement and association. Thus, protection of right to privacy as a fundamental right is not merely an end in itself but also instrumental in protecting the minimum democratic core of our Constitution. It is for safeguarding this fundamental right of privacy that the Supreme Court instructed the Committee chaired by Justice B N Srikrishna to draft an appropriate legislation, knowing fully well that an unchecked collection and use of personal data can lead to executive aggrandizement and adversely affect democracy.

The mandate of the PDP Bill was to constitute an independent body which would facilitate democratic and institutional accountability of the executive but in stark contrast, the DPA has now been modelled as a sectoral regulator; and much like any other sectoral regulator, the central government has retained executive control and supervision over the DPA. For example, the Selection Committee which appoints the members of the DPA comprises entirely of members from the executive i.e. secretaries from different departments of the Central Government. Their salaries and allowances are to be prescribed by the Central Government. The Central Government has also been empowered under the Act to remove any member of the DPA on the grounds enumerated in the PDP Bill. Emulating economic regulators, the PDP Bill has also vested its adjudicatory function in adjudicatory officers. The manner and term of appointment of these officers shall be decided by the Central Government.

Such pervasive executive control built into sectoral regulators is justified as they are bodies which set out, regulate and monitor economic policy. Since economic policy is a core function of the executive, it is only appropriate that the government has the functional autonomy and powers related to it. However, the same principal cannot apply to an accountability and democracy body such as DPA. Given the key role of DPA in protecting a core democratic ideal of the Constitution (and that too largely against the Executive itself), it neatly fits into the category of a fourth branch institution and not a sectoral regulator. It is therefore necessary that the DPA is reimagined as a robust and independent part of the ‘Fourth Branch’ lest the right to privacy becomes illusory over time.

Guest Post: Premature Termination of the State Election Commissioner – On the Constitutionality of the Andhra Pradesh Ordinance No.5 of 2020

[This is a Guest Post by Kshitij Maheshwari.]


Introduction

Last month, the Governor of Andhra Pradesh promulgated the Ordinance No.5 of 2020 (“Ordinance”), which amended Section 200 of the Andhra Pradesh Panchayat Raj Act, 1994 (“Act”) and also framed the Andhra Pradesh Panchayat Raj (Salaries and Allowances, Conditions of Service and Tenure of State Election Commissioner) Rules, 2020 (“Rules”).* Section 200(1) of the Act provides for the appointment of a State Election Commissioner (“SEC”). Section 200(2) of the Act, before its amendment, provided that an officer who was holding or had held an office not less in rank than Principal Secretary to the government could be appointed as the SEC. Post-amendment, the eligibility criteria has been modified, and only a former Judge of the High Court will now be eligible for appointment as the SEC. The newly framed Rules also provide that the SEC will hold the office for a term of three years and will be entitled to be considered for re-appointment for another three years. However, more importantly, the Rules also state that the incumbent SEC shall “cease to hold office” with effect from the date of promulgation of the Ordinance. Hence, in pursuance of the Ordinance, the incumbent SEC, N Ramesh Kumar, a retired bureaucrat, who was appointed on 30th January 2016 for a term of five years, was terminated and V Kanaraj, a former Judge of the Madras High Court, was appointed in his place. At present, the Ordinance is under challenge before the Andhra Pradesh High Court.

Section 200 of the Act is almost in pari materia with Article 243K of the Constitution. Article 243K deals with elections to the Panchayats in a state:

243K. Elections to the Panchayats.—(1) The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats shall be vested in a State Election Commission consisting of a State Election Commissioner to be appointed by the Governor.

(2) Subject to the provisions of any law made by the Legislature of a State, the conditions of service and tenure of office of the State Election Commissioner shall be such as the Governor may by rule determine:

Provided that the State Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of a High Court and the conditions of service of the State Election Commissioner shall not be varied to his disadvantage after his appointment.

(3) … (Emphasis supplied)

Article 243K(2) states that subject to any law made by the state legislature, the Governor has the power to determine the conditions of service and tenure of office of the SEC. This power, however, is limited by a proviso. A bare reading of the proviso which is divided into two parts by the word “and” (emphasized above), suggests that the Governor is precluded from determining the conditions of service and tenure of office of the SEC in a manner that would either (i) lead to the SEC being “removed” without following the same procedure, as is required to be followed for the removal of a High Court Judge or (ii) vary the “conditions of service” after the SEC’s appointment, to his disadvantage. Therefore, when determining the conditions of service and tenure of office of the SEC, a breach of any of the above two circumstances would violate Article 243K(2).

In this post, I will argue that the Ordinance and the amendments carried out thereunder, which led to the abrupt termination of the former SEC, are unconstitutional, as they violate both the conditions specified under the proviso.

The Governor has removed the SEC in violation of the constitutional mandate

The state government has contended that the termination in question – caused by the curtailment of the former SEC’s tenure – amounts to his ‘cessation’ from service, and not his ‘removal’. Hence, according to the government, the process of removal of a High Court Judge which is prescribed under Article 217(1) proviso (b) read with Article 124(4), was not required to be adhered to in the present case. Further, Section 16 of the General Clauses Act, 1897 (“GCA”) states that the power to appoint a person also includes the power to dismiss him. This also raises the question of whether the Governor can curtail the SEC’s tenure since he has the power to appoint him.

In my opinion, not only does the Governor not have the power to curtail the SEC’s tenure but for the reasons stated below, even the exercise of such power effectively amounts to the SEC’s ‘removal’ and not his ‘cessation’ from office.

First, once appointed, a High Court Judge is entitled to hold office until he attains the retirement age of sixty-two years, subject to earlier removal. He can be removed only by an order by the President, based on a motion passed by both Houses of Parliament and two-thirds of the members present and voting on the grounds of “proved misbehaviour or incapacity”. This intricate removal process coupled with the fixed age of retirement guarantee security of tenure to the Judge, which enables him to discharge his duties free from external pressures, and thus, helps safeguard the independence of the judiciary. By providing that “[T]he State Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of a High Court”, the proviso seeks to extend the security of tenure to the SEC in the same way that it protects a High Court Judge, albeit only during the fixed-term of his appointment. This allows the SEC to act independently and without the fear of dismissal for taking decisions that may not find favour with the executive, and thus, enable him to fulfill his mandate under Article 243K(1) of conducting elections in a free and fair manner. The curtailment of the SEC’s tenure, on the other hand, defeats the object and purpose of the proviso by adversely affecting his security of tenure. If such discretion is available with the Governor, it could easily be used by the executive to either browbeat the SEC to toe its line or, like in the present case, to unilaterally terminate his appointment. In either scenario, the threat to the SEC’s security of tenure would restrain him from discharging his duty effectively and independently, which is precisely the situation the prescribed removal process seeks to overcome. It is, therefore, submitted that the words “removed from his office” occurring in the first part of the proviso, contemplate termination of the SEC not just by removal by impeachment by the Parliament, but, they also apply to his termination on account of curtailment of his tenure. Since the manner of the SEC’s removal in the present case comes under the latter category, it needed to comply with the procedure for removal specified in the first part of the proviso to Article 243K(2).

Second, a perusal of the events leading up to the SEC’s termination indicates that his termination was not a part of electoral reforms, as has been averred by the government. In March 2020, the SEC postponed the elections to the village panchayats by six weeks due to the prevailing situation resulting from the outbreak of COVID-19, and ordered the transfer of several government officials, but directed that the Model Code of Conduct (“MCC”) would remain in place. Following this, the Chief Minister of the state openly criticized the SEC, and the government challenged his decision before the Supreme Court. The Supreme Court upheld the SEC’s decision to postpone the elections but directed that the MCC be lifted. It is in this backdrop that the SEC was terminated less than a month after the above order of the Supreme Court. It appears prima facie that the government wanted to punish the SEC for what it thought was misconduct on his part. But the first part of the proviso to Article 243K(2) indicates that an act of alleged “misbehaviour” has to be “proved” before the SEC’s removal. This ensures a deeper probe into any allegation against the SEC and under a procedure that is devised in consonance with the principles of natural justice. Therefore, notwithstanding that the Ordinance and the Rules are innocuously worded, the fact that the SEC’s termination has sought to be founded on the ground of misconduct, the requirements of the proviso had to be complied with. Accordingly, in the present case, the Court is bound to go behind the Ordinance to ascertain its true character. In Ram Ekbal Sharma v. State of Bihar, the Supreme Court dealt with a challenge by a government servant against an order of compulsory retirement issued against him. While quashing the impugned order, the Court held that the power of the State to terminate a civil servant under Article 311, which deals with the dismissal, removal, and reduction in the rank of civil servants, is not absolute and the Court can lift the veil to determine whether or not the order is punitive:

[E]ven though the order of compulsory retirement is couched in innocuous language without making any imputations against the government servant who is directed to be compulsorily retired from service, the Court, if challenged, in appropriate cases can lift the veil to find out whether the order is based on any misconduct of the government servant concerned or the order has been made bona fide and not with any oblique or extraneous purposes. (Emphasis supplied)

 

Being a constitutional functionary, the termination of the SEC must be subjected to an even higher threshold of judicial scrutiny. In the present case, retaliatory action against the SEC for his ‘misconduct’ was camouflaged as an order of cessation. The Ordinance is, therefore, liable to be quashed.

Curtailment of the SEC’s tenure has resulted in varying the conditions of service to his disadvantage

The second argument of the government is that since the terms “conditions of service” and “tenure of office” have been mentioned separately under Article 243K(2), and thereafter, only the term “conditions of service” has been mentioned in the second part of the proviso, this indicates that both the terms have separate connotations and the SEC’s tenure is not a condition of his service. Consequently, according to the government, the curtailment of the SEC’s tenure does not amount to varying the conditions of his service on which he was appointed, to his disadvantage. Moreover, Section 21 of the GCA states that the power to issue a rule also includes the power to amend or vary the same. Could it then be argued that the Governor who has the power to determine the conditions of service and tenure of office of the SEC, also has the power to amend the same after his appointment? In my opinion, such interpretation is untenable as it would lead to inconsistency and create an illogical situation. If the SEC’s tenure is not a condition of his service, the corollary would be that the Governor has the power to vary his tenure to his disadvantage, as the second part of the proviso states that “[T]he conditions of service of the State Election Commissioner shall not be varied to his disadvantage after his appointment”. However, this interpretation would be contradictory to and render the first part of the proviso meaningless, which, as discussed above, precludes the Governor from curtailing the SEC’s tenure after his appointment. Thus, the proviso has to be interpreted harmoniously along with the main provision so as to give effect to both the parts thereof and avoid this anomalous situation.

Concluding remarks

To summarize, once appointed, the SEC holds office during good behaviour, and not during the pleasure of the Governor. Unlike a government servant, there is no employer and employee relationship between the SEC and the Governor. The Ordinance causes the premature termination of the SEC by curtailing his tenure, which tends to put him on the same footing as a government servant. This, however, is entirely contrary to the intent of Article 243K(2), which confers the SEC with an irremovability protection in order to preserve his independence. Hence, the Ordinance is ultra vires the Constitution.


  • Note: The texts of the Ordinance and the amendment to Section 200 of the Act were not available on the Andhra Pradesh e-gazette at the time of publishing of this post.

The RTI Amendments: Constitutional Statutes in Precedent and Practice

In the previous two posts, Malavika Prasad and I have developed the concept of a “constitutional statute”, in the context of the recent amendments to the Right to Information Act. In the first post, I argued that a constitutional statute provides a statutory framework towards implementing a fundamental right, thereby fulfilling the State’s positive obligation to do so. This is what justifies the status of the Information Commissioners under the RTI, and the requirement of independence – akin to election commissioners and judges – flowing therefrom. In the second post, Malavika further refined the idea, arguing that not every statute implementing a fundamental right has the status of a constitutional statute. There must either be a delegation to Parliament expressly envisaged in the Constitution itself (such as the case of elections), or the statute must – in some way – regulate the relationship between the individual and the State; and it is the manner in which that relationship is structured that gives rise to the specific constitutional implications at issue (such as, in the case of the RTI, the requirement of that Information Commissioners be independent).

In this concluding essay in the series, I will address one important objection to this argument: that because, unlike Election Commissioners and Judges, Information Commissioners do not have formal constitutional status, it follows that the constitutional safeguards applicable to the former (especially the safeguarding of independence and autonomy) cannot apply to the latter. The theoretical justification was provided in the first post, where I discussed Tarun Khaitan’s idea of “fourth branch institutions”, which may or may not find specific place in the Constitution, but which nonetheless perform functions (such as regulating the individual/State relationship in the manner described above) that justify bringing them together under one head when it comes to issues such as independence and autonomy. And in this post, I will conclude the argument by discussing how this proposition has already been affirmed by the Supreme Court, in the context of cases involving the Central Vigilance Commission (CVC) and the Central Bureau of Investigation (CBI).

Recall that, upto a point, neither the CVC nor the CBI had any statutory foundation. That changed in Vineet Narain v Union of India. Recall that the case arose out of an allegation that the CBI was not doing its job under political pressure. After passing a series of interim orders effectively placing various investigations under its direct supervision, in its final judgment, the Supreme Court made the following observations:

In view of the common perception shared by everyone including the Government of India and the Independent review Committee (IRC) of the need for insulation of the need for insulation of the CBI from extraneous influence of any kind, it is imperative that some action is urgently taken to prevent the continuance of this situation with a view in ensure proper implementation of the rule of law. This is the need of equality guaranteed in the Constitution. The right to equality in a situation like this is that of the Indian polity and not merely of a few individuals. The powers conferred on this Court by the Constitution are ample to remedy this defect and to ensure enforcement of the concept of equality.

In other words, therefore, the independence of the CBI – as a body tasked with investigating offences that often involved powerful and politically influential people – flowed from the constitutional principles of equality and the rule of law. Having noted this, the Court then passed legislative guidelines under Article 142 (the Vishaka technique), which would hold the field until a suitable statutory framework was established. The Court once again repeated that these guidelines were being passed in order to implement equality and the rule of law.

And what of the Guidelines themselves? Apart from insisting that the CVC be given a statutory basis, the Court also laid down a number of guidelines to ensure independence: these included setting out the appointments process, specifying that the tenure of the CVC Director would be two years (recall that a fixed tenure is exactly what the RTI amendments have now done away with), putting brakes on transferring the CBI Director (another thing the RTI amendments now enable), and so on.

In other words, therefore, Vineet Narain stands for two propositions that are relevant to us. First, the Court found that the purpose of the CVC and the CBI was to – inter alia – guarantee the constitutional principles of equality and the rule of law, by ensuring that the highest and most influential of people would be brought to book if they broke the law. Flowing from this, the Court laid down a set of guidelines to ensure the independence of the officers in these posts. And secondly, the Court’s opinion was that fixed tenure and constraints upon transfers were crucial aspects of guaranteeing such independence.

Let us now fast-forward twenty-one years, to the notorious Alok Verma case of late 2018. Recall that the core issue in that case involved the transfer of the CBI Director. Of course, in 2018, there was a statutory framework. The CVC Act had been brought into force, and the DSPE Act had been amended to include the CBI Director. The Supreme Court’s guidelines – including those on independence – had been legislatively enacted. The question in Alok Verma involved the interpretation of that statutory framework.

After going through the history of the CVC and the CBI, in paragraph 24, the Court noted the submission of Alok Verma’s counsel:

Shri F.S. Nariman and Shri Dushyant Dave, learned Senior Counsels, who have argued the case for Shri Alok Kumar Verma, Director, CBI and Common Cause have contended that the history of the institutional framework surrounding the CBI leading to the statutory enactments in question and the views expressed in the judgment of this Court in Vineet Narain (supra), including the operative directions under Article 142 of the Constitution, can leave no doubt that the judicial endeavour should/must always be to preserve, maintain and further the integrity, independence and majesty of the institution i.e. CBI. This is the core intent behind the statutory enactments and the amendments thereto, details of which have been noticed. The Director of the CBI is the centre of power in an abundantly powerful organization having jurisdiction to investigate and to prosecute key offences and offenders having great ramifications and consequences on public life. There can be no manner of doubt that the Director who has been given a minimum assured tenure of “not less than two years” must be insulated from all external interference if the CBI has to live up to the role and expectations of the legislature and enjoy public confidence to the fullest measure. This is how the provisions of the cognate legislations i.e. the CVC Act, 2003 and DPSE Act, 1946 (as amended), must be interpreted, according to the learned counsels. It is specifically urged that the embargo under Section 4B(2) of the DSPE Act which mentions that the Director shall not be transferred except with the previous consent of the Committee must be construed in the broadest perspective to include any attempt to divest the Director, CBI of his powers, functions, duties, etc. in any manner whatsoever and not necessarily relatable to the transfer of the incumbent as is understood in ordinary parlance. According to the learned counsels, unless such a meaning is attributed to the provisions of Section 4B(2) of the DSPE Act, the legislative intent would be rendered futile and so would be the entire judicial exercise culminating in the operative directions of this Court in Vineet Narain (supra).

I have extracted the entire paragraph because, in essence, what Fali Nariman and Dushyant Dave argued in Alok Verma’s case is precisely the argument we are making here for constitutional statutes. The analysis starts with the functions being performed by the body. If these functions include implementing a constitutional right and standing between the individual and the State, then certain further requirements flow from that. One specific requirement is that of independence and autonomy (a characteristic feature of constitutional functionaries) – in turn, guaranteed by a fixed tenure, constraint upon transfers, and so on. And most notably, these requirements exist independent of the fact that the officials in question are not formally constitutional functionaries, and also, independent of the specifics of the statutory framework in place; rather, they flow from constitutional imperative, with the task of the statutory framework being to supplement and give effect to them (which is exactly why, in the absence of a statute, the Supreme Court passed legislative guidelines in Vineet Narain; without the above analysis, it should be clear, the Court could not have done what it did in Vineet Narain).

Notably, in Alok Verma’s Case, the Supreme Court agreed with this argument. In paragraph 32, it noted that the statutory framework of the CVC Act and the DSPE Act was a “sequel” to the directions in Vineet Narain (which, in turn, it is important to reiterate, flowed from the constitutional function being performed by the CBI). The Court then noted in paragraph 33 that – specifically – Vineet Narain’s observations on independence and insulation – grounded in the right to equality and the rule of law – “hold a special field.” The Court then applied these principles to interpret the DSPE Act and find that Alok Verma’s transfer was not in accordance with law.

Reading together the judgments in Vineet Narain and Alok Verma, what clearly emerges is the fact that even though the CBI was not – and never had been – provided for in the Constitution, its role and functions (implementing fundamental rights and standing between individuals and the State) required a guarantee of independence in a manner broadly similar (although, of course, different in the particulars) to constitutional functionaries. In particular, security of tenure and constraint upon transfers were treated as vital to securing that independence.

There is precedent, therefore, for the argument to treat the Information Commission as a “fourth branch” institution similar to the CBI. Although, of course, the two bodies perform very different functions, what unites them is that they implement fundamental rights, and – in different ways – stand between individual and State, with a view to making the latter accountable to the former. This is what gives the statutory framework regulating these bodies the status of constitutional statutes, and this (especially the latter) is what requires guarantees of independence with which the statutory framework itself must comply. And the focus on tenure and transfers shows that a dilution in those areas does undermine independence, and that therefore, a strong case can be made for holding it to be unconstitutional.

The Importance of Fourth Branch Institutions to Constitutional Democracy [Guest Post]

[This is a guest post by Tarunabh Khaitan.]


Democratic backsliding (generally speaking)

There is growing acknowledgement that the onward march of democracy in the late twentieth century has been arrested, at least on certain key parameters. As is argued at greater length in this paper, there are some key common characteristics to creeping authoritarianism of the twenty-first century (key points of this paper are discussed in this podcast interview).  In sum, what we are witnessing is a crisis of executive accountability (i.e, that of the political executive branch). There is a gradual erosion of all three forms of accountability-seeking mechanisms that are integral to democratic government: (i) electoral or vertical accountability to the people, (ii) horizontal or institutional accountability to the political opposition, judiciary and fourth branch institutions, and (iii) diagonal or discursive accountability to the academy, media and civil society. The paper further identifies the precise mechanisms through which executive aggrandizement is taking place. It argues that this aggrandizement is incremental and systemic, uses democratic rhetoric, and is effected by the fusion of the ruling party and the state. Finally, the paper emphasises the limitations of the judiciary in defending democracy on its own, and calls for greater attention to the role of political parties, fourth branch institutions, electoral systems and global institutions.

Is Indian democracy also backsliding?

Unfortunately, the list of key democracies that appear to be backsliding includes India. Admittedly, unlike Poland, Turkey or Hungary, India is not a paradigmatic case of democratic decay of our times. With Israel, United States, and South Africa, it is perhaps a borderline case—the trends are unmistakably there, but perhaps reversible. A new, work-in-progress, paper documents and examines the evidence for this claim about the state of Indian democracy. This paper finds that the NDA government in office between 2014 and 2019 has indeed sought to undermine each of the three key strands of executive accountability. Unlike the assault on democratic norms during Indira Gandhi’s Emergency in the 1970s, there is no evidence of a direct or full-frontal attack today. The BJP government’s mode of operation has been subtle and incremental, but systemic. Hence, the paper characterises the phenomenon as ‘killing a constitution by a thousand cuts’. The incremental assaults on democratic governance have typically been justified by a combination of a managerial rhetoric of efficiency and good governance (made plausible by the undeniable imperfection of our institutions) and a divisive rhetoric of hyper-nationalism (which brands political opponents of the party as traitors to the state).

What can be done about it?

At least in the Indian context, it is clear that the judiciary alone cannot protect democracy. This is not to say that we should give up on the judiciary. It has an important role to play, and the Supreme Court needs to urgently recalibrate its dual role as a constitutional court and an appellate court, to ensure that the latter function does not continue to cannibalise the former. But democracy needs to hedge its bets, rather than counting on a single institution for its protection. This is where the role of the ‘fourth branch’ becomes crucial.

Characterised as the fourth branch of the state — because of their distinctiveness from the executive, legislature and judiciary — these institutions are tasked with the protection of key constitutional values such as democracy, legality, impartiality, probity, human rights and price stability (for eccentric American reasons, they are called the ‘fifth branch’ in the United States). While Chapter Nine of the South African Constitution explicitly guarantees independence to the fourth branch of the state, the Indian Constitution does so implicitly by expecting Parliament to enact a law prescribing detailed mechanisms for appointments to and functioning of such institutions — for example, through Articles 280(2) (Finance Commission) and 324(2) (Election Commission). However, an Independent Institutions Bill remains a long-unrealised constitutional aspiration. In the Indian context, institutions of the fourth branch include the Election Commission, Lokpal, Central Bureau of Investigation, Reserve Bank, National Statistics Commission, National Human Rights Commission, Information Commission, commissions for various marginalised groups, Central Vigilance Commission, Comptroller & Auditor General, Attorney General, Public Service Commission, University Grants Commission, Finance Commission, Niti Aayog, media regulators and many others. Some of these institutions are constitutional; others have quasi-constitutional status.

One way to accomplish the independence of Fourth Branch institutions is through enacting an Independent Institutions Bill, whose contours are outlined here. Three key demands are stressed: one, multi-partisan appointments, two, operational independence and impartiality, and three, accountability to the legislature rather than the executive.

Manifesto Pledges to ‘Save the Constitution’

In its manifesto, the Congress Party claims that “Never before have the institutions that underpin a parliamentary democracy been so brazenly undermined, denigrated and captured as in the last 5 years. Examples of this include the Reserve Bank of India, Central Vigilance Commission, Election Commission of India, Central Bureau of Investigation, Enforcement Directorate, Central Information Commission, National Statistics Commission and National Human Rights Commission.” Well, yes, never before, except during the Emergency in the 1970s.

Putting that exception to one side, this recognition is followed by a key promise:

“Congress promises to restore the dignity, authority and autonomy of these institutions while making them accountable to Parliament. Congress promises that selection and appointment to these bodies will be transparent and will be with due regard to the importance of institutional integrity.” [para 24.01]

 

The CPM manifesto also contains a similar diagnosis of the state of Indian democracy. It claims that the BJP government “has mounted a brazen and continuing assault on all Constitutional authorities and institutions during these last five years. The BJP continuing to head the central government will further undermine the fundamental pillars of our Constitution.” Yet again, a similar record of the CPM government in West Bengal is glossed over. The Manifesto further pledges to “Protect the independence of Statutory, Constitutional and Regulatory Bodies by ensuring transparency in appointments to oversight, regulatory and adjudicatory bodies, like the CVC, CBI, ECI, National/State Human Rights Commissions, Lokpal, Lokayuktas, Womens’ Commissions, SC/ST Commissions etc”. It also seeks to safeguard the autonomy of particular institutions, such as the RBI and the Election Commission.

The Emergency and the party-state fusion under the Left rule in West Bengal significantly damaged Indian democracy. Of course, we cannot expect their 2019 manifestos to own up to these evils of their own past. But if these parties do win power, we need to be assured that their recognition that democracy needs a protected space for the political opposition and for independent and autonomous institutions is sincere. They cannot be allowed to get away with loving democracy only when in Opposition. We must not let them forget these manifesto promises if and when they come to power.

* The author is an associate professor of law at Oxford and Melbourne. He is also the General Editor of the Indian Law Review. All views expressed here are personal and may not be attributed to these institutions.