In a recent column in the Indian Express, I have argued for the need to enact an Independent Institutions Bill. The point of the Bill is to guarantee institutional independence, functional autonomy and public accountability of the state’s fourth branch institutions. A bibliography on the fourth branch is available at the end. Here is a summary of the proposals:
An Independent Institutions Bill should seek the following objectives: One, multi-partisan appointments, two, operational independence and impartiality, and three, accountability to the legislature rather than the executive. The contours of this bill are outlined below.
Key to achieving these purposes is to put multi-partisan legislative committees — called Independent Institutions Committees (IICs) — in the driving seat. Parliamentary IICs could include two nominees of the ruling party/alliance (including any party providing support from the outside) and a nominee each from the three largest Opposition parties in each House. The vidhan sabha IICs could have one governmental nominee and one each from the two largest Opposition parties. These details can be fine-tuned, but a united Opposition should be able to defeat the government, forcing it to compromise with at least one key Opposition party. Thus designed, the IICs will include the voice of the powerful regional parties of the day, and not just the two national parties. The IICs should be guaranteed adequate staff and resources to permit the proper discharge their functions.
From this shortlist, the final selection should be made by the Lok Sabha’s IIC for central institutions, and the relevant vidhan sabha’s IIC for state institutions. Apart from fourth-branch institutions, parliamentary IICs could also deal with the appointments of governors while the state-level mechanism (involving the Rajya Sabha and vidhan sabha IICs) could be used to appoint police chiefs. All shortlisting and decisions on appointments must be made by a single-transferable vote. Appointment decisions should ideally be made before the post falls vacant — responsibility should be fixed for the failure to do so within three months of the vacancy arising.
The appointments should be for a fixed term. Removal from office should require at least four votes in the Rajya Sabha IIC, after a specially-instituted independent inquiry finds a breach of a statutorily specified offence. All institutional decisions should be made by a governing committee rather than the chief officer acting on her own. Except promotions within the institution, appointees should not be eligible for any public office after stepping down. Salaries, perks and staff provisions should be statutorily protected. Transfers and interim appointments may be made only by a majority vote in the Rajya Sabha IIC. A robust guarantee of non-interference by the executive should be anxiously policed by the courts.
The Bill should require fourth branch institutions to regularly publish reports about their functioning. Based on these public reports, the Lok Sabha or vidhan sabha IIC, as the case may be, should question their senior staff in annual, televised, hearings. The Rajya Sabha IIC may, by a majority vote, decide to summon them at any time for questioning on particular matters.
Further readings on 4th branch institutions:
Bruce Ackerman, The New Separation of Powers, 113 Harv. L. Rev. 633 (2000)
Charles Fombad, The Diffusion of South-African Style Institutions? A Study in Comparative Constitutionalism, in Constitutional Triumphs, Constitutional Disappointments: A Critical Assessment of the 1996 South African Constitution’s Local and International Influence 359 (Rosalind Dixon & Theunis Roux eds., 2018)
AJ Brown, The Integrity Branch: A “System,” an “Industry,” or a Sensible Emerging Fourth Arm of Government?, in Modern Administrative Law in Australia: Concepts and Context 301 (Matthew Groves ed., 2014)