CEN214 | Exploring Non-Conventional Governance: The Fourth Branch Institutions in India’s Constitutional Landscape

The traditional tripartite model of legislature, executive and judiciary was well suited to the conventional first generation Constitutions engaged predominantly in the enforcement of the principles of checks and balances and division of labour with a doctrinal leaning towards separation of powers .Such Constitutions envisaged predominantly police State. However, with the emergence of an interventionist and welfareist form of State, focus is shifted to have a more radical model encompassing collaboration of the State as a whole and an active buy-in from all its constituents, including citizens, toward achieving social transformation. In other words, in the post-colonial era, inclination of State craft is towards interaction amongst the Constitutional institutions as a cohesive whole rather than viewing them in isolation from one another.

Prof. Tushnet in his famous book demonstrates how classical constitutional theory identified the notions of: “civic virtue” and “structures of the government i.e. the tripartite model of governance to maintain the stability and the form of the Constitution. Although this theory would somewhat work in homogenous citizenry, in heterogeneous and deeply divided societies it is difficult to have a consensus on the conception of Civic virtue nor constitutional and political theorists have been able to come up with institutions or mechanisms that have any substantial chance of reliably reproducing civic virtue in the citizenry. The conventional tripartite model of Legislature, executive and judiciary is fraught with limitations to probe exercise of power by ever expanding administrative machinery and aggrandised executive. 21st centuary is witnessing subtle forms of incursions on democracy by deploying democracy itself and this new warfare by the politicians of present generations is beyond the potency of the conventional model of separation of powers,.

The contemporary scholars like Tushnet, Khaitan and Bruce Ackerman perceive Fourth Branch institutions as a novel and reliable technology to address the aforementioned difficulty. These fourth branch institutions like Election commission, Ombudsman, Central bank and auditor general etc are seen to be conceptually distinct and independent from the conventional structures of the government. According to the scholars, such Institutions ensure specialized knowledge informed policy decisions, balancing democratic accountability with effective governance.

To what extent framers of Indian Constitution were guided by this idea is a matter worth deliberation and research. The present course is a step in that direction. Prof. Upendra Baxi rightly argues that “There are indeed many good reasons for describing the Indian Constitution as an inaugural postcolonial form.” Though it replicates many aspects of the Government of India Act, 1935, the Indian Constitution creatively modifies the conventional notion of constitutionalism with judicious blend of four key ideas, i.e. governance, social development, the pursuit of rights and justice.

For effective accomplishment of these four overarching goals , conventional tripartite Institutions of Legislature, executive and judiciary are required to be complemented by fourth branch institutions or what may be termed as unconventional institutions of the government . Since this theme is still evolving, there is a fair amount of unsettlement on any stable or stipulated terminology to describe these institutions.

The main objective underlying this Course is to grapple with germinal questions around theoretical framework of this fourth branch institution. The course also seeks to address the aspects of constitutional design in major jurisdictions to engage with fourth branch institutions and of course would have a broad focus on the contentious relationship of these institutions with the primal constitutional structures of the government under the Indian Constitution. Particularly, it is worthwhile to examine the relationship of the judiciary with fourth branch institutions in the light of the emerging jurisprudence. Whether the design of the Indian Constitution is efficacious enough to provide adequate entrenchment to these institutions is a major issue expected to be deliberated and discuss during the course. Should judiciary in India revisit its role as guardian of Constitution by seeking collaborations with these new institutions is yet another discussion point of this course.