'Fourth branch' and fall of the Election Commission from Seshan's highs

New Indian Express

27-06-2025

A 'fourth branch' of government...
Modern constitutions increasingly feature them—a constellation of institutions tasked with protecting constitutional democracy.
Among the most prominent of these are electoral bodies, anti-corruption agencies, ecological tribunals, and ombudsman offices. In India, these include the Election Commission, Comptroller and Auditor General, Information Commissions, Lokpal, National Green Tribunal, among others.
Much like Santa's elves, these institutions work quietly behind the scenes, performing essential functions that keep democracy functional—often without receiving due credit. And while elves become most visible during Christmas, these institutions come to the fore during moments of democratic stress—elections, corruption scandals, or constitutional breakdowns. They are presumed to be independent and non-partisan.
Raison d'être of the Fourth Branch
South Africa's post-Apartheid Constitution refers to these entities as "State Institutions Supporting Constitutional Democracy". The traditional Montesquieuan framework of three branches of government—legislative, executive, and judiciary—is increasingly seen as insufficient for modern constitutional design.
American legal scholar Bruce Ackerman, in The New Separation of Powers (2000), conceptualised an "Integrity Branch" devoted to rooting out corruption, as a fourth branch of governance. Similarly, Martin Loughlin spoke of the rise of the "ephorate" in modern democracies, drawing from ancient Greece, where ephors were empowered to supervise the state and conduct inquiries.
Today's fourth-branch institutions are the ephors of our times.
Governance is sustained over time not only through structural integrity but also through the promotion of civic virtues—or what Jürgen Habermas calls "constitutional patriotism." These institutions are the state's extra limbs that embody and protect those virtues.
Hans Kelsen, among the most influential jurists of the 20th century, was the one who proposed a fourth function of governance: the preservation of constitutional order through a dedicated guardian of the constitution.
Today, fourth-branch institutions largely fulfil this role. Moreover, some of these institutions require and possess specialised expertise unavailable within the traditional three branches.
In contemporary democracies, political parties wield real power—often beyond the constitutional framework. Parties in power may resort to enacting policies that entrench their hold on power, such as manipulating electoral rules or engaging in large-scale corruption.
Alarmingly, opposition parties often do not challenge these practices, anticipating a future opportunity to use the same tools. This dynamic creates an urgent need for independent constitutional guardians—like the fourth-branch bodies we have been discussing—and robust institutional design.
An umpire in flux
Ironically, fourth-branch institutions are most successful where they are least needed.
The Indian experience validates this paradox: the independence of institutions like the Election Commission has steadily eroded since the rise of the BJP as a dominant political force with no foreseeable challenger.
Malaysia's 2018 general election offers a cautionary example. Since 1957, Malaysian politics was dominated by the Barisan Nasional (BN) coalition. The Election Commission, responsible for delimitation and elections, was seen as an extension of BN.
During the 2018 elections, it scheduled polling for a Wednesday—an inconvenient day for many working citizens and overseas Malaysians. It also redrew constituencies in ways that clearly advantaged the ruling coalition.
In India, the Constitution vests the Election Commission with sweeping powers to supervise, direct, and control the conduct of elections to Parliament and the offices of the President and Vice President. Its mandate includes maintaining voter rolls, ensuring free and fair voting, and accurate vote counting.
For decades, the Commission earned praise for maintaining the integrity of India's elections. A 1999 report even found it had the highest level of public trust among all public institutions.
Under TN Seshan's assertive leadership—bolstered by the weak coalition governments—the Election Commission emerged as a robust pillar of democracy. However, since the return of a dominant-party system under the BJP, the Commission's strength has visibly declined.
The decline in trust
Recent years have seen a growing perception that the Election Commission of India (ECI) operates with partisan bias. Critics allege selective enforcement of the Model Code of Conduct, often acting against opposition parties while overlooking violations by the ruling party. Inflammatory statements by powerful leaders often go unpunished, raising concerns about neutrality.
Though there is no conclusive proof of tampering with Electronic Voting Machines (EVMs), the ECI's resistance to full-scale VVPAT audits—as recommended by the Supreme Court and civil society—has increased public skepticism. The Commission has also failed to check the misuse of electoral bonds, which obscure the sources of political funding.
The process for appointing Election Commissioners is also a concern. The ruling party has effectively monopolized appointments, excluding the Chief Justice from the selection panel. The departure from the assertive, independent style of leaders like Seshan has been striking. Current commissions are seen as more deferential to the executive.
Santa's elves are traditionally seen as neutral, diligent helpers—just as fourth-branch institutions are expected to operate independently, irrespective of who is in power. But when the elves go idle, Santa's sleigh ride becomes meaningless. If fourth-branch institutions fail to uphold constitutional democracy, the only alternative is to strengthen other institutions and civic movements that promote constitutional patriotism and civic virtue.
(Faisal CK is Deputy Law Secretary to the Government of Kerala. Views are personal.)