Power Must Never be Trusted Without a Check

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“Power must never be trusted without a check”-John Adams. When a government is to be formed, one of the major concerns of the forefathers of a nation is that there is enough liberty given to each organ of the state so as to ensure their proper functioning and liberty, the government is supposed to be divided into three separate organs (the legislature, the executive and the judiciary )with a special system of ‘checks and balances’. This was the system proposed by Montesquieu an eighteenth century philosopher.

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Almost all forms of governments around the world, including the Indian Government tried to adopt a similar structure. It was a good beginning of the process for forming a successful government, however the problem starts when we enter into the twenty first century and the government still remains hung over to the ideas of Montesquieu and his theory of having only three organs – the legislature, the executive and the judiciary. In order to understand this issues with this theory, we shall discuss the ideas and critiques pointed out by Bruce Ackerman in his article “Goodbye Montesquieu”, where he explains how a “a new separation of powers “ is emerging in the twenty first century. For the ease of understanding lets consider the situation with the Indian Government. The Indian Government has not adopted a rigid separation of powers, which complicates the situation even more. There is a broad categorization of the three major organs – the legislature, the executive and the judiciary, but their boundaries are not as strong as that in the United States of America. In a nation like India, which is the world’s largest democracy, one has to be cautious while demarcating the organs of the government. As observed by Nicholas Robinson in an article, there is a continuous tug of war between the legislature and the executive for power. We saw how, political redress though having a higher level of access to the people could not fetch them even a satisfactory level of remedy while the judiciary which has a lower access to people had a better rate of grievance redress. The winner among the three being administrative redress, which leads to the formation of another organ dividing the ‘pure trinity’- delegated legislation. The legislature in India is a huge organ with a number of powers and responsibilities, in order to reduce its burden the legislature is often delegated to the executive, once again diminishing the line of separation of powers between the three organs. So how does one draw a line or keep a balance while separating powers? This proves that India does not really follow a rigid separation of powers, as also observed by Hon‟ble Chief Justice B.K. Mukherjea in the case of Ram Jawaya V. State of Punjab: “The Indian Constitution has not indeed recognized the doctrine of separation of powers in the absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption by one organ or part of the State of the functions that essentially belong to another.”[1] Thus we can say that the problem is not really separation of powers but when the separated powers and functions are not properly defined.

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