Democracy is the only form governance which gives scope for self-correction
(Universal Declaration of Democracy, IPU). Thus, a weak democracy stems from the
fusion of powers. The rise of independent institutions in India has been the
manifestation of the need of separation of power between the three wings of the
government. An impartial body to regulate various wings and aspects of
governance has become integral to abstract yet pertinent idea of ‘good
governance’. The appointment of P C Ghose as the Lokpal without a leader of
opposition in the selection committee, the controversy regarding removal of the
CBI director Alok Verma by the Government and CVC, Issues on the Independence of
RBI, etc are an indication of how the idea of independent institutions is a seed
which is soon germinating.
The Chairman of the Finance Commission recently called for a permanent status to
the body rather than constitution every 5 years to avoid issues of management.
This is inspite of the constitutional status given to the Commission. Another
such body into lime light is the National Institute of Transforming India (NITI
Ayog) which was formed via a resolution of the Union Cabinet. NITI Ayog though
an important institution of cooperative federalism and decision making is
without any constitutional mandate. What happens to this office after the
results of the Lok Sabha elections, 2019 and/or a change in government, it a
question to consider. Another such Institution is the office of CAG which has
also been subject of controversy. Political leaders have suggested that the
appointment to the office of CAG to be made by a bipartisan collegium consisting
of the Leader of Opposition instead of just being based on the recommendation of
Prime Minister. Similarly, the appointment of CVC P.J.Thomas based on the
recommendation of a High Powered Committee (HPC) headed by the Prime Minister of
India on March 3, 2011 was quashed by the Supreme Court, noting that the HPC did
not consider the relevant materials on the pending charge sheet against him. The
office of Attorney General whose appointment solely depends on the discretion of
the executive has not got unquestioned.
Though our Constitution might not be a picture perfect portrayal of Separation
of Powers but the Apex court has remarked that ‘the executive is derived from
the legislature and is dependent on it for its legitimacy.’ (Ram Jawaya v.
Punjab (1955). The offices of Lokpal, CBI Director, RBI Governor, CAG, etc.
have derived their legitimacy from the Prime Minster and his cabinet and not
from the legislature. This is reflected by the controversies in these offices
time and again. Had legislature been involved Lokpal’s appointment would have
been made in consultation with the leader of the single largest opposition party
(if not the leader of opposition). Again the CBI director’s removal would have
involved more transparency.
These and several other issues point towards the need to have clarity in terms
of these institutions. This would not only divide party politics from the above
institutions but also strengthen the fourth wing of our democracy.
The fourth wing of the democracy can then serve as an important and impartial
check on the powers of the legislature, executive and the judiciary. One of the
best way to do so it through a constitutional or legislative recognition to
these Independent Institutions as is done by in South African constitution.
Chapter nine institutions refer to a group of organisations established in terms
of Chapter 9 of the South African Constitution to guard democracy.
Constitutional recognition and legislative support would ensure that these
offices exercise their powers and perform their functions "without fear, favour
or prejudice". All we need to do is that the offices being appointed or
controlled by the President (in consultation with the Prime Minister or Cabinet)
be regulated by an Independent Institutions Committee. Such a committee would be
consisting of the members from the cabinet, opposition parties, judicial
members, etc. thus ensuring transparency in appointment and removal. If India's
democracy has to thrive and it aspires to create independent and autonomous
institutions of these nature, it needs to go to this legislative route.