Rethinking Fourth Branch Institutions

**Himanshu and Lavanya

Introduction

The constitutional position of fourth-branch institutions requires a revisiting of the historical evolution of separation of powers doctrine. Modern constitutional democracies rely on a network of unelected oversight institutions in order to monitor the excesses of state power. Various fourth branch institutions now perform functions not envisaged by the classical theory of the separation of powers. The functional importance of these fourth-branch institutions has grown exponentially, but their institutional design has not yet kept pace. Such institutional design raises important constitutional concerns regarding how democratic accountability should be structured in the administrative age. This article argues that the principal design failure of Indian fourth-branch institutions lies not merely in threats to formal independence but in their persistent informational dependence on the executive.

From Formal Separation to Functional Accountability

Constitutional structure is often judged through a formalist separation characterised by a ‘precise and absolute division of powers’.  Martin Flaherty undermines this notion in a number of ways.  For much of the eighteenth century, constitutional thought was dominated by the tripartite model of mixed government. Such a model was influenced by a republican commitment to legislative authority often at the expense of executive or judicial power. Hence, separation of powers merely constituted a ‘peripheral doctrine’ without any concrete structure.

The formalistic understanding advanced by Locke, Blackstone, and Montesquieu sought to provide crisp, neat answers to the intractable separation of powers. Such a view continues to plague us still. American constitutionalists did not seek to provide a comprehensive conception of separation of powers when they employed the general language of separation. Rather, they made common use of the rhetoric even while establishing mechanisms that violated the formalist conception of doctrine.

Vile contends that early State Constitutions actually embraced a rigid notion of separation of powers only to pave the way for frameworks that later turned towards “checks and balances”. From this, one could draw two inferences. First, Vile’s treatment illustrates the malleability of separation of powers, showcasing a shift in doctrine from a formalist version of the doctrine (“pure” separation of powers) to a later, functionalist version (“checks and balances”). Second, his version showcases that the formal version of the doctrine proved historically unstable rather than institutionally absolute.

In general, the separation of powers reflected a reconceptualisation of accountability and balances. Often, it is noticed how constitutions mix certain core powers that in most formal theories were best kept distinct. In the American context, McDonald, takes a sharp departure from the formalist doctrine of separation of powers and observes that it “had clearly been abandoned in the framing of the Constitution.” Rather, the constitution time and again shows how both the basic division of powers, as well as their frequent mixture serves the fundamental goal of ensuring that the branches of government remain balanced, extending accountability throughout government, thereby enhancing efficiency. The pursuit to secure balance among various branches came at the expense of accomplishing a clean division of powers.

Such an insight is crucial as it allows us to situate the fourth branch of government beyond the traditional imagination of the tripartite structure. Separation emerged not as a rigid architectural innovation but to ensure accountability and balance. Viewing it from this perspective provides room to allow for the functioning of fourth branch institutions within the existing framework without classifying it as ‘deviation’ per se. It marks a shift from rigid taxonomy towards structural innovation, where modern institutions emerge due to increasing constitutional functions.

Bruce Ackerman’s analysis of the theory of ‘separation of powers’ captures this transformation. In his view, the traditional tripartite model relies on a rigid separation of the legislature, executive, and judiciary. This model cannot effectively supervise the modern bureaucratic state. As a result, modern democracies have created new institutional forms outside the classical scheme. The doctrine of separation of powers has historically evolved to demonstrate that formal institutional independence has never, by itself, been regarded as a sufficient guarantor of constitutional accountability.

The reform discourse surrounding the growing prominence of fourth-branch institutions in India, remains fixated on rigid independence as the primary design objective. Indian Courts have time and again emphasized against executive interference through the introduction of various safeguards. Despite such mechanisms, several independent bodies continue to experience crises of credibility and political contestation.

If rigid separation is not historically foundational, the more pressing question becomes how modern constitutional systems should design institutions that operate outside the classical tripartite frame. 

From Independence to Legitimacy 

The debates on institutional reform have treated the independence of the fourth branch institutions as the principal guarantor of their operational efficiency. However, recent scholarship calls for a more nuanced approach. It states that the formal autonomy of institutions is not sufficient, and the resilience of democratic institutions depends upon political morality and public engagement. The Indian experience of constitutional law illustrates this distinction with particular clarity. 

Adequacy of powers and accessibility to the public constitute important features in ensuring effectiveness as fourth branch institutions. For such institutions’ legitimacy, they must demonstrate two types of independence:-institutional and decisional. Institutional independence refers to the separation of the operational sphere and the executive. The second category, the decisional independence, enables such institutions to possess a degree of enforcement power along with the ability to make their decisions away from external or partisan influences.

In the case of Anoop Baranwal v Union of India, the petitioners questioned the executive dominance in the appointment of the Election Commission. The Supreme Court was called upon to fill in a ‘legislative vacuum’.  Based on notions such as ‘legitimate power of reciprocity’, the Supreme Court noticed the problems of loyalty and mutuality to the appointing body, as the appointing executive will always find loyalty from the members of the ECI. This risk would impact decisional autonomy as explained earlier. The court’s intervention reflected an attempt to ensure that institutional integrity is preserved to ensure public confidence in the electoral process. The ECI experience thus illustrates how appointment reforms alone cannot secure functional autonomy in the absence of broader institutional design safeguards.

Fourth Branch bodies constantly operate within the political domain thus enhancing the need for strengthened public confidence. Without such confidence, even robust institutional safeguards may prove insufficient for the endurance of democracy, which is rooted in values of public participation. In this context, legitimacy has both procedural and performance-based dimensions. Procedural requirements include transparency, reasoned decision-making, and accessibility while substantively such institutions must showcase consistent and non-partisan functioning over time. The prevailing discourse emphasises procedural safeguards thereby neglecting legitimacy concerns. As demonstrated through the example of ECI, the mere existence of these institutions is insufficient; they need to be armored to preserve constitutional integrity. In addition to structural integrity, democratic resilience depends on several other factors such as political morality, public engagement and legitimacy. Therefore, a reconceptualised design approach must treat independence as necessary but not self-executing.

Informational Capture: The Hidden Threat to Fourth-Branch Autonomy

The most under-theorised threat to fourth-branch institutions is informational capture. Procedural safeguards in the appointment, functioning, and removal process help in securing independence. However, the dependence of these institutions on executive-controlled data and bureaucratic cooperation raises doubts about informational autonomy. Informational asymmetry and control over information can translate into control over outcomes. 

Institutional actors who depend on external data sources for their functioning face systemic disadvantages as their outcomes are dependent on the data provided. Such informational capture operates through subtle mechanisms. These include selective data sharing, bureaucratic delay, and classification barriers. Such subtle mechanisms underscore the contention that mandated tenure protection cannot secure the manipulation of outcomes generated through the flow of information. 

These concerns are visible in the functioning of the Comptroller and Auditor General (CAG) of India. CAG acts as “watchdog of public purse” and serves as a sentinel of public finance. The CAG derives its power from Articles 148 to 151 of the Indian Constitution and reflects the classical independence model. The institution of CAG is provided for security of tenure, a removal procedure that is equivalent to the removal procedure of a Supreme Court Judge, and is charged with expenditure on the consolidated fund of India. These safeguards allow for objective financial assessment while simultaneously protecting from executive influence. 

Although the CAG is constitutionally protected, its work is heavily reliant on the executive in practice. The audit process needs departments to share documents and financial data on time. In cases where papers are delayed, information is kept classified, the effectiveness of the audit is severely compromised. Such instances of partial compliance weaken the real autonomy of the CAG. It becomes a watchdog without assured access to information. Hence, the institutional legitimacy depends not only on independence but also on the methodological process. 

This reflects a deeper structural feature.  Excessive insulation undermines legitimacy while a lack of autonomy risks executive interference. In such a scenario, Donnell’s framework provides analytical clarity on this problem of empowerment and retrenchment. He suggests that accountability mechanisms must be both autonomous and answerable. They should be embedded within a broader ecology of democratic controls. Therefore, structured autonomy is best understood as constitutional safeguards aimed at preserving the legitimacy of India’s integrity institutions.

Comparative Analysis

The South African Constitution provides a comparative perspective of the integrated model of the fourth-branch institutions compared to that presently visible in India. Chapter 9 of the Constitution of the Republic of South Africa expressly establishes “state institutions supporting constitutional democracy,” including the Public Protector and the Auditor-General. Section 181(2) guarantees that these bodies operate independently and remain subject only to the Constitution and the law, while simultaneously requiring other organs of state to assist and protect them to ensure their effectiveness. This shows that the South African Constitution model embeds accountability within independence. 

Section 181(5) requires institutions to remain directly accountable to the National Assembly and to report on their activities at least once a year. The South African Constitutional Court in Economic Freedom Fighters v Speaker of National Assembly reinforced the contention that the institutions created by Chapter 9 are both independent and constitutionally accountable mechanisms intended to strengthen democratic governance. The South African constitutional framework conceives independence as a broader ecosystem of transparency, reporting, and institutional support.

The contrast is instructive. Whereas the South African Constitution embeds independence within an enforceable support-and-reporting framework, the Indian constitutional design relies predominantly on insulation without corresponding guarantees of institutional capacity or information access. Therefore, the Indian framework requires not merely insulation-based reform but an affirmative duty structure that ensures timely information flows to integrity institutions.

Structured Autonomy: A Design Framework for Fourth-Branch Institutions 

Transformative constitutionalism involves a state commitment where the constitutional machinery; consisting of the legislature, executive and judiciary, actively seeks to pursue a transformational vision in order to bring about social transformation. The mandate of transformative constitutionalism fundamentally alters our conceptualisation of the modern separation of powers, transitioning it to a radical model that involves collaboration of the state as a whole. 

As Modi argues, it is the idea of a collective enterprise that remains essential to the fulfilment of the objectives of the welfare state rather than a strong adherence to a pure separation of powers. It calls for a collaboration among organs of the government to ensure that public values such as welfare, autonomy, transparency, efficiency, and fairness are protected and secured for the benefit of citizens. 

While the principle of interinstitutional settlement may result in overlapping exclusive domains, policymakers must ensure that institutional comity and functional integrity accompany it. Modi introduces a transformative reconstruction founded upon mutual “pushes and incentives”. These mechanisms pave the way for coordinate institutions and actors to fulfill their function in line with the transformative program.

Increased interdependence among coordinate institutions may reduce autonomy because dominant actors may influence them. Such power asymmetries inherent within the structural design allow bodies to stray beyond the range of permissible outcomes. Defining the range of permissible outcomes is also an onerous task as transformative constitutions prioritise substantive equality over procedural legality. This task entails political judgement, and lawmakers must place necessary safeguards to ensure that constitutional legitimacy characterises it.

In this context, O’Donnell’s notion of ‘horizontal accountability’ becomes informative. He argues that for this kind of accountability to be effective, state agencies must possess both the authority and the willingness to oversee, control, redress, and/or sanction unlawful actions of other state agencies. 

Horizontal accountability expands the classical tripartite structure to pave the way to include various overseeing agencies, ombudsmen, accounting offices, etc. Identifying such agencies leads to differentiation from those who perform ‘vertical accountability’ work, which involves the conventional process of the people holding elected officials to account. It leads to an addition of a third axis of ‘social’ or ‘societal’ accountability in which citizens, civil society and non-state actors exercise power to control government outside or alongside formal vertical accountability mechanisms. 

Their autonomy is not ancillary; rather, it arises because constitutional actors perceive these institutions as important protectors of specific constitutional norms. Without structural safeguards, the objective of transformative constitutionalism, while laudable at first sight, may risk being undermined by asymmetrical power relations embedded within the administrative architecture. 

Conclusion

This piece has primarily argued three structural challenges prevalent in fourth branch institutions-legitimacy deficits, the accountability paradox, and informational capture. These challenges demonstrate how accountability must be ensured not only through constitutional safeguards but also through other guarantees to secure public confidence in functioning of these institutions. 

The comparative experience of South Africa, particularly through Chapter 9 institutions, demonstrates that constitutional designers can embed independence within a broader ecology of transparency, reporting, and institutional support.

The piece proposes a structured autonomy model that reconceptualises independence as a composite design value comprising institutional safeguards, decisional autonomy, informational guarantees, internal capacity, and structured transparency. Such a design allows fourth-branch institutions to provide deeper constitutional commitment to democratic resilience. 

**This essay was placed second in the DD Basu Essay Competition, organised by Charkha, the constitutional law team, in collaboration with the NUJS Constitutional Law Society.

**Disclaimer: The views expressed in this blog do not necessarily align with the views of the Vidhi Centre for Legal Policy.