Rethinking guarantor institutions: envisioning economic regulators as guarantors of economic democracy in India and the Global South

This paper attempts to widen the understanding of guarantor institutions in comparative constitutional law by focusing on economic regulators in India and the Global South. Guarantor institutions in constitutional theory are constitutionally entrenched institutions that exist to protect and enforce specific constitutional norms valuable to a polity. However, economic regulators are considered distinctive from guarantor institutions due to not fulfilling the same constitutional mandates as guarantor institutions and lacking constitutional entrenchment. I argue that economic regulators do fulfil the role of protecting a constitutional norm – that being the norm of economic democracy and, therefore, must be viewed as guarantor institutions. I posit that economic democracy is a norm of social welfare, and the regulation of markets by economic regulators ensures that markets operate in a democratic and equitable manner. I concede, however, that as they stand, economic regulators in India cannot truly be considered guarantor institutions due to a lack of constitutional entrenchment. In order to rectify this and for economic regulators to effectively carry out their role as a guarantor institution, I argue for a system of their entrenchment through an umbrella oversight body that takes inspiration from entrenched umbrella bodies in Sri Lanka and Nepal. Through the process of entrenchment, it is hoped that economic regulators have more stringent oversight, adequate capacity and staffing, and function in a transparent and impartial manner to effectively further economic democracy.