Goforthelaw.com - Legal Education and Awareness
  Home  |  About Us  |   R & D   -   LL.B. Previous Question Papers   |  Articles   |  Moot Court   |  Discussion Forum   |  Directories   |  Law Web Journal   |  Contact Us   |   Login  

A. P. LEGAL SERVICES PVT. LTD.
Legal Empowerment through Professional Excellence

Frequently Asked Questions 

Follow Goforthelaw on Facebook Follow Goforthelaw on Twitter Follow Goforthelaw on Blogger Join Goforthelaw on LinkedIn Subscribe - RSS feed here

 
Article Details
 
Login to comment! 3 Comments Login to refer to a friend!
Title Application of Principle of Separation of Powers in all walks of Public Life
Log In Here
Email Id
Password

New User ? Click Here to Register
Forgot Password Click Here


Article by Lakshma Reddy S
Category Advocates
Content

Introduction

I have tried to study the rise and fall of empires, nations as political entities through the study of rise and fall of public powers of the individuals or body of individuals occupying the offices or centers of sovereign public powers and have broadly categorised the powers exercised by such sovereign public persons or body of persons into three broad classes i.e. legislative, executive and judicial capable of affecting the rights and liberties of private individuals who constituted the subjects of such sovereign public power and found that the rise and fall of the political entities of the subject nations and the strength and weakness of its subjects varied with different permutations and combinations of these different class of powers in the same or different persons. The once produced tyranny the other produced private enterprise or otherwise one helped great empires and greater political entities, the other hindered or helped to divide the political entities. It is like energy acquiring the character of force with a magnitude and direction in one case, capable of doing a work in the desired direction, the other, for the loss of direction and destruction of the work. I have tried to analyse the effects of combination of two or more powers of the above three broad classes of powers in the one or same persons in the hierarchy and its affect on the rights and liberties of the citizens as well as on the public interest by analysing the historical precedents. I have broadly analysed historical events from Greek history, Roman history, Indian history, Islamic and Christian movements, British Empire, American model of government and different combinations of the powers like political power with economic power, legislative power with executive power etc. or all the powers in one or more persons in hierarchy in the history.

 

I have first analysed the combinations of different governmental powers and the sources of abuse of power, then public power with private enterprise and lastly religious power with public power and their likely impact on the rights and liberties of individual persons and finally I have suggested that the personal separation of powers should be affected in all walks of public life possessing the public powers which includes the corporate power as a part of public power and the model for effecting the personal separation of power at all levels of public powers. The reader is given to critically view the correctness or otherwise of such an idea and its usefulness and practicability in the modern social public life.

 

 

Combination of Different Governmental Powers - Sources of Abuse of Power

 

            It is axiomatic that all men are by nature endowed with certain inalienable rights including “right to life, liberty, pursuit of happiness”. When the men live in society, it is a social compact by which the whole people coordinate with each person and each person with whole people that all shall be govern by certain laws and principles for the common good.   These ideas are the two reflections of historical processes formulated by the great political thinkers, among which include Plato, Aristotle, Locke, Rousseau and Hobbes.

 

            It is axiomatic that institutions of Government are devised as a means to end and not an end in itself i.e. the Government is created by contract or otherwise to serve the welfare of the people. It is stated in the Massachusetts document “the end of Government is to secure the existence of body politics, to protect it and to furnish the individuals who compose it with the power of enjoying in safety and tranquility, their natural rights and blessings of life”. A Government which fails to serve the ends for which it was set up has breached express or implied contract under which it was established forfeiting the loyalty of it’s people and it is the right of the people to alter or to abolish it and to institute new Government, laying its foundations on such principles and organizing it’s powers in such ways as to them shall seem most not likely to affect their safety and happiness which is found in history and experience. There is always conflict between private interest and public interest when any person is vested with public power to dispense with or dispose off life, liberty and property of others. There is a tendency of that person to maximize his own self-interest in the expense of the public if there are no restrictions and checks and balances in exercise of such public power by that person. If all the public powers are vested in the same person, then the rights of the public are at peril as the person symbolizes the tyranny with no predictable rights and remedies to the public at large. The public powers have been broadly classified into three categories i.e. legislative, executive and judicial. If all such three powers vested in the same person, it is nothing but tyranny. If more than two powers combine in one person, it is still possible for abusing the public power for personal ends at the expense of the public unless there exist the clear checks and balances in system. The combining of two powers may be of either legislative and executive or legislative and judicial or executive and legislative or executive judicial or judicial legislative or judicial executive. Any one or more combination in one person may be either less or more productive of public mischief.

 

            The first person who has critically analyzed the functioning of various governmental powers in actual working in various systems of Government and the conflicts/governmental powers with the private powers, rights and liberties of it’s people was a Montesque. He has declared the doctrine of separation of powers to minimize the  abuse of governmental powers by persons vested with public powers. He has studied various constitutions and systems of government and found that the personal separation of powers is the best guarantee against the arbitrary powers and control over the life and liberty of its subject and the said doctrine was further expounded and adopted by the framers of the American Constitution and incorporated the same in their Constitution.

 

            The doctrine of separation of powers implying personal separation of powers, was stated by the Montisquo in the following words.

 

            “ When the legislative and executive powers are united in the same person, or in the same body or magistrates, there can be no liberty. Again, there is no liberty if the judicial power is not separates from the legislative and executive powers. Where it joined with the legislative power, the life and liberty of the subject would be exposed to arbitrary control; for the Judge would then be the legislator. Where it joined with the executive power, the Judge might behave with violence and oppression. There would be an end of everything were the same man or the same body to exercise these three powers…

 

            The same was understood and expounded by the Madison in the pederlist No.47 as “The accumulation of all powers, legislative, executive and judicial, in the same hands whether of one, a few, or many and whether hereditary, self-appointed or elective, may justly be pronounced the very definition of tyranny”.

 

            I totally agree with the said observations and findings and anything less than that is productive of abuse of public power and public mischief.

 

            All powers can be divided into two categories i.e. public power and private power. It can further be stated that public power includes all powers that is not purely private power. The sovereign power exercise by the state bodies is a part of the public power. This can also be stated in its converse i.e. public interest and private interest. The inter-relationship between these two powers is a continuing one. It is not static. It always remains in a dynamic disequilibria.

 

            A study of this dynamic disequilibria of the relevant historical period consists in the analysis of the various branches of social life. Time becomes an important variable in the study of these relationships. The science and technologies, material progress and the institutional arrangements in the social life affects the power, structures and equations and which in turn also affects the science and technology, material progress and social institutions. It can be said that there will be a dialectical relationship between these institutional and the power structures and material progress.

 

            For instance, you take the economic laws, an individual if acting as an entrepreneur as a producer, will try to maximize his economic interest and profit by using all powers at his disposal and when the same person acts as a consumer, will try to maximize his utility given the budget constraint. It is in tune with law of nature. But if the same person is holding the public power at his command, the conflict of his public duty with the tendency of an individual as a human being to maximize his self-interest either in the form of maximizing his own profit or maximizing his own utility is writ at large. Various devices have been suggested and practiced by people to minimize this conflict of interest.

 

            In the case of sovereign state powers and the offices created to exercise such powers, the powers and the offices have been broadly classified into three categories i.e. legislative, executive and judicial. Each of these state powers have the capacity to affect the rights and liberties of the private persons and citizens rights, liberties and properties. Therefore, every person desires that the said powers should be so exercised as to not to affect their rights, liberties and properties and even if they take any decision, which affects their interest, there should be reasonable safeguards and on certain principles of predictability. They always entertain an apprehension that if more power is concentrated in such persons holding the public offices, their rights and liberties are at peril. In the history, it is true that the person holding the public power always mixed it with his private interest and the same will become a threat to the interest of the public. When dictatorial powers are conferred or usurped by certain individuals or bodies of individuals, they always tended in the end as capable of being exercised for their private ends. Therefore, the people demanded for establishment of institutions which divides these powers into separate persons as a checks and balances system for due exercise of the public powers. The British legal history is an illustration of this process where judicial powers have been separated from the King and so also the legislative powers while the King was exercising royal prerogative as the State head of executive. But the British form of Government later times combined the executive though separate, but yet forming part of legislature and responsible to the legislature did not totally separate these two wings. The relationship between the executive and legislatures in British form of Government has become an embodiment of same person capable of exercising both legislative and executive powers making the crown titular head. If the leader of the majority party in the Legislature is elected as the Prime Minister as the executive head of the State, he is representing in a way the head of the executive i.e. combining two powers in one person. In case of American form of Government, the powers are separated, the mode of electing the heads of these three wings are separated and fine tune of checks and balances system has been evolved to check the powers and also to meet the emergency situations. A study of Roman, Greek and experience also indicates the evolution of separation of powers theory. But separation of powers theory in practice and during the end of the period before institution of the concept of emperor, the executive became too powerful with all the military powers at his command with all political rivals removed and the other institutions of legislative and judicial wings too weak to resist the persons occupying the office with dictatorial ambitions of subverting all the powers and institutions to their private ends.

 

In India too, though the legislative executive and judicial powers are recognized as separate, but the constitution has not strictly separated the persons occupying these offices and exercising those powers and the same phenomenon appears from top constitution offices to lower down posts and offices. The executive head of the State, the President acts through its Principal Officer i.e. the Prime Minister and the Cabinet is also elected by the legislatures and controlled by them. In practice, the person heading the executive as a Prime Minister is also heading the legislatures i.e. the same person combining the capacity to exercise both powers of legislative and executive. Similarly in exercising statutory powers and the enactments made by the Legislature, the ministers are empowered not only to exercise the executive powers, but they are also empowered to frame rules and also to exercise the quasi-judicial powers in the form of summit to religions and appeals from the orders of their sub-ordinate offices. This in affect putting the ministers in control of legislative, executive and even quasi-judicial powers. Quasi-judicial powers except the strictly judicial powers vested in the superior courts and the sub-ordinate courts i.e. the Minister is combining in himself all the three powers minus the strictly judicial powers making him with near despotic powers. Similarly, in case of several heads of departments, they are combined with administrative as well as quasi-judicial powers i.e. combining more than one power and less than dictatorial powers, i.e. in all these cases where there is a possibility of abusing the public power for private interests and private ends. For example, in the case of taking a policy decision by the State Government through its Minister in formulating a development scheme and its implementation process, he has at his disposal vast data of information and in formulating the policy, he has every capacity to so formulate the scheme as to further his own interest without disclosing the same to any other person. This is a sort of insider trading by misappropriating the vast data of information placed before him for his private ends. This  happens many times than not and happened in the history. I was little surprise to hear these complaints even as long as before the establishment of Greek Democratic Constitution. There is an allegation that in Greek history that when the Salon was chosen as an Arbitrator with dictatorial powers in between the two warren of factions to settle the disputes about various political powers and the relief’s to be given to the poor impoverished debt ridden farmers vis-à-vis the dominant land owning ruling section the country. It is alleged that he has made of his relatives and friends to take huge debts and purchase with the said debts the landed properties for his relatives and friends and after that he has declared the debt relief to all the debtors making the whole creditors as vagabonds and his relatives and friends who have borrowed the debts and through the debt purchased the lands as rich and powerful and it was possible because he was made of powerful enough not only to announce law but also to execute the same i.e. combining both legislative and executive powers in one person. After nearly more than 2500 years of civilization and experience, we still hear the same complaints and allegations in many countries. It is because the same conflict of interest between public power and private interest and abusing the public power for private interest when the same person is holding two powers which is less than dictatorial but capable of producing large public mischief as in the case of Solan. In India, we see the allegations of manipulation of voters, manipulation of land acquisition and developmental schemes, manipulation of establishing industrial centers or irrigation projects or power projects and the allegations of corruption and nexus between the politicians, bureaucrats and criminals. When Montesquo said that power corrupts the individual, the more the power, the more the corrupt becomes and all the power in one person make him despotic and tyrannical and in such a situation, the life, liberty and property of the individuals will be at the mercy of such persons which is intolerable in a democratic system of Government, therefore, he suggested the doctrine of separation of powers.  Doctrine of separation of powers as understood by many of the jurists, judges, lawyers and politicians are not mere separation of legislatures, executive and judicial offices as a separate, but it is the personal separation of powers i.e. if the same person holds in whatever capacity either legislative or executive or executive and quasi-judicial or legislative, executive and judicial or all the three in different forms in the same person is a formidable threat to the free exercises of powers within ones own jurisdiction. This is in consonance with the theory that every person will try to maximize his own interest as if it is a law of nature with few exceptions to it and therefore, unless the same person is prevented from exercising more than one power in relation to the same subject matter, the potential roots of abuse of power and corruption and criminal behavior from the point of view of public interest will not be cured.

 

Adam Smith has found that the increase in productivity, Science and Technology is accompanied by increasing social division of labour and specialization in persons and vice-versa. Similar process is also to be seen in various institutions that gives rise on the basis of development in the material progress brought into the society i.e. the increasing complexity of the society is reflected in the numerous sub divisions of the existing trade, business, occupations and professions into small and smaller areas of specializations: so also in governmental or public offices and the persons exercising such powers i.e. as the social division of labour and specializations including the public offices and powers are the index of level of developmental a State or Country as it progressed. The new technologies as driving forces have given impetus to globalisation as a process in all spheres and with it, its accompanying phenomenon of super specialization into smaller and smaller sub division of labour as well as power specialization is taking place. The capacity of the said persons to affect the number of persons in the global arena is also increased, whereas the individual private power is becoming smaller and smaller as a unit. The public power is becoming bigger and bigger at the other end of the poles. This again is begging the question that the right, liberty and property of an individual is becoming unsafe in the hands of such larger and bigger public powers including the governmental powers. This again calls for Re-looking of measures to additional safeguards of the rights and liberties of an individual as a person or citizen.

 

I view that all persons by nature are selfish as aptly put by Hobbes. It is also well established in the economic theory and accepted all over the world that every person has a tendency to maximize his own interest and this principle is again founded on in natural law and on the basis of this principle, the theory of perfective competition among all other persons with equal right to compete as a legal right has been laid. Adam Smith in his book “Wealth of Nations” has advocated it as the principle to be adopted by all the countries to maximize the wealth of nations. He has also found a contradiction that wherever two or more business people joined together for an opportunity to discuss their business interests, they will always try to unite themselves as a public power to maximize their own interests at the cost of the consumers and he suggested measures to prevent any such unholy alliance among the traders to cheat the people, this again in a way is a recognition of the ever recurring conflict between public interest and private interest and it is not surprising that such business people or for that matter, any group of people constituting a homogeneous interest group joining hands with persons exercising sovereign public powers who have such capacity as to combining in themselves more than one power and together cheat the people, in that all of them maximizing their own private interest at the cost of the public interest at large. We see the said in all layers of power existing social, economic political system. The executive is heading the legislature, the executive is heading the investigation and prosecution of crimes, the executive is heading the discharge of quasi-judicial powers constituting more than 90% of conflict situations between the citizen and state and other public powers wherein the executive deciding the issues in the first instance, exercising of appeal and revisional powers and all of them under the same Cabinet of persons combining in their own persons of such powers. The same persons are in control of public monies and their spending and the theoretical separateness of legislative and judicial without actual personal separation is the potential cause of present public malady and the root cause for the criminal behavior of the politicians, bureaucrats having nexus with the criminals with practically no remedy for the victims of their criminal acts. 

 

 

ABOUT SOLON :

 

            I was referring to similar complaints as well as 6th B.C during the Greek period. We heard the work Draconian laws referring to the Draco with the Greek history. Perhaps he made the law of contract so stringent and with it the law of debt also enforce mercilessly by the nobles and rich, the independent farmers were often compelled to mortgage to forms in a desperate effort to keep solvent. But over the period, the creditors became the owners of the land and its old owner, the descendant of generations of present proprietors sank into arrears of debt and the person became the security for his debt, thus becoming a slave that can be sold out. It was during the period of turbulence between rich and poor, the Solon was chosen in the year 594 B.C as Archon with extraordinary powers, but the extraordinary powers for the purpose of mediating between rich and poor and reforming the constitution. At the time he was considered as one of the wise man with widest experience that was possible in his time.

 

 

 

PUBLIC POWER – PRIVATE ENTERPRISE

 

            Public power by itself is not an anathema to the rights, liberties and properties of the people. Concentration of wealth and mass productive units on global scales involve concentration of public powers to take decisions involving equally global scales or otherwise. This appears to be inevitable tendency towards which we are tending to. In the communistic countries, we have witnessed concentration of public powers with no right to property as is understood in the common law world to the individuals, as an extreme putting the life, liberty, safety of an individual at the total mercy of the public power and the person combining all the public power in himself or the body of persons. There is also a demand from the people who deny any power to state to regulate except to the bear minimum necessity of maintaining the law and order, defense and security of the person or nation i.e. a system of laissez-faire. Both these doctrines have found their echo in Marxist ideology and Adam Smith’s classical ideas. These are extremes are found to be not practical. But the intermediate types have been found one in the Presidential Form of Government the other the Parliamentary Form of Government and other forms of Government combining some of the features in both the models. If we further analyze, we find that the Montesque Doctrine of Separation of Powers is more acceptable in terms of guaranteeing life, liberty and property of a citizen while allowing full freedom to the extent possible for the development of the productive forces and material progress of any society. An analysis of historical events in the British constitutional history as well as roman history make me to believe that both the empires spread their influence to the extent of acceptability of their institutions as symbols of liberty and progress so long as there were personal separation of powers and even if there are combinations, there were adequate automatic checks and balance mechanism. When there was a failure of checks and balance in case of combination of two or more powers in one person, it tended to confuse the private interest with public interest by persons combining the said powers in themselves and there arose a perceptible threat to the rule of law and the rights and liberties of the citizens.

 

            In the roman history, we find that the powerful politicians being elected as the first consul of the state combined in themselves the powers of executive and military powers as well as rule of territories through their legislative powers outside the home city and in conquered territories. They have the power to appoint new members to Senate so as to influence the decisions in favour of the consul in any conflicting situations including by way of intimidations and many times than not such an executive and dictatorial powers given to them in the case of emergency are abused to perpetrate their own power by putting the opposition members under fear of life and when it went to the extreme form in the case of Caesar who got himself declared as dictator for his life and later tried bring back monarchy for democratic republic with ambition to create an empire in which he was supreme without any check i.e. combining all powers in himself. There again, the process of creation of empire inevitably led to the necessity creating offices capable of taking decisions for the efficient administration of the empire and to meet the emergencies in defense of the empire. But the question there in was again whether such office or power should combine in himself, all powers without there being any check either from the existing law making institutions or the senatorial advisory bodies or a check from the judicial offices. It is combining of such unbridled dictatorial powers in one person in the name of Roman Emperor and not the power itself that was in fact appears to have been opposed by all the vigilant public at the time and the same was rectified by the succeeding imperator Augustus in whom though all the executive power is concentrated, but still the other offices exercising their respective powers were given their due with only the emperor exercising his “influence” and not displacing and so long as this balance continued the roman empire thrived and cherished by all. And its fall is also accompanied by imbalance in the power structure and systematic failure of other organs. In terms of any rule of law, rights and liberties of its citizens except through bruit force.

 

            Similarly if we analyse the British Constitution during the period where it has built the empire, created new innovative institutions and offices to govern the new territories while maximising its trade and political interest through the interesting balance of powers between King through his royal prerogative and Parliament in which again three different estates representing different broad interest groups and the judicial offices as a system that was created over the period. In all these periods where there was executive power of the King through his royal prerogative subject only to law made by the Parliament restricting in clear the terms, the exercises of his royal prerogative in respect of any matter while the judiciary has laid principles of common law through its various judicial decisions in cases of conflict of private interest as well as the public and private, there was a full swing of private enterprise. The several charters and grant of fiefs through the royal prerogative, they were like contractual delegation of authority to sudden several commercial establishments and enterprising group of people or individuals subject to certain conditions as to their relations to the crown and the payment of profit derived through the grant of monopoly trade or otherwise. These private enterprising people have established their colonies overseas over the 16th, 17th and 18th centuries under the liberty granted to them by taking their existing domestic institutions overseas. The institutions of rule of law and control during this period when the overseas trade through colonisation of other continents was in swing by the astonishing private enterprise of the British people the King was powerful except to violate any law made by the Parliament and in case there is any conflict between the King and the Parliament, the Parliament was independent and refused to grant financial aid by allowing any new taxes and the King was exercising his power of influence over the Parliament by way of summons, influencing the members of the Parliament to see the reason to accept the King's version on any subject and through his own power of executive in enforcing the law and order and defense of the realm and through war and peace on the other countries. The King was always empowered to make any great enterprise for personal advantage except with the supplies made by the Parliament who never acceded to unless they see itself in the interest of the country. Similarly whenever any law is made by the Parliament in the derogation of powers of the royal executive prerogative, the courts struck down them as encroachment to the traditionally ear-marked to royal prerogative and whenever there is any encroachment of rights of the people through royal prerogative not authorised by law or custom, the courts struck down them as contrary law, to natural law and reason. In this scenario, the separation of powers were balanced under the British Constitution unlike in other Continental Europe where no such balance between the King and other branches of power like by any legislative chambers or judicial offices with any resistible strength to the extent of challenging the encroachment and capable of protecting the life, liberty and property of a citizen from the hands of the King or his officers. It is in fact, this difference which has preserved the rights, liberties and properties of a citizen through the institutions that has been evolved in England that has made the British enterprise overseas win over the French, Dutch, Portuguese though they have started an early expedition, but lost their initiative because of their dependence on the arbitrary royal support or as in case of French, the support of Napoleon whose single vision, was not matched by the institutional environment of the country. But this fine balance between three wings of the State constituting the total state power has gradually started tending towards usurpation of power of the royal prerogative as well as the Parliament by a group of politicians who have become rich and vocal through overseas trade and money power to challenge the authority of the King to appoint and dismiss his own secretaries as an executive prerogative and to start counter influencing the crown to appoint persons of their own choice and as commanding the influence of the Parliament, thereby converting the Royal prerogative to their own prerogative which inturn evolved itself into a sort of executive combining in themselves the powers of both executive and Parliament by converting the crown into the titular head. This we see at various stages of George I to George III and till we see in the year 1867, when the change was complete and crown was made powerless by persons who are commanding the majority in the Parliament particularly the house of commons as the Prime Minister to be appointed by the crown as heading the executive and to form his own ministers and the cabinet practically converting all the powers hither to royal prerogative in the person of the King to the person of Prime Minister and who is also head of the majority party in the Parliament, House of Commons i.e. combining in himself all the powers of executive and legislative for all practical purposes. This process by selfish politicians with the newly acquired riches and money power to purchase the political power and there upon to aggravate their own self-interest by using political power is not without any adverse affects.  This process of selfish politicians combining in themselves these two powers have now been felt by the overseas private entrepreneurs and the people as a threat to their own interest in the rival politicians cum business people combining themselves in the mother country. This conflicts as often lead to such a degree that it is not the rule of law with public interest while preserving the rights, liberties and properties of their citizens as a whole without discrimination, but it was antithesis in combining their own self-interest or their interest of groups as supporters of their political power and this alienated in the overseas colonist one by one starting with declaration of independence by the american people in 1776 and ultimately the country lost its empire and is not to be seen as a country with institutions which are to be imitated for future in the new era of globalisation because of its tendency to combine self-interest as public interest by exercising public power in the person of the Prime Minister of the Executive head combining more than two powers and which institution is also to be found from top to bottom posts and public offices which is feeding ground for public corruption and criminal behavior undermining the rule of law and jeopardizing the private enterprise. Therefore, I have reason to think that the parliamentary institutions as it stands now in England as well as in India needs review from the point of view of separation of powers theory in all public offices and courts and I, therefore, feel that it has to be further extended even to private corporate sector where the public power in contrast to private rights, liberties and properties is concentrated with propensity and potentiality to effect the innocent private rights and liberties, be it multi-national corporations or other juristic personalities.

 

            To sum up, the public power is necessary spring up of the corresponding material, wealth and progress as the sum up of the rights and duties of the members of the country or global world while the process of individualisation through ones own rights and duties in the mass of private and public wealth at the other end of the process, the concentration of public power in the political state and other public bodies takes place. Any decision taken by the state or other public bodies have their necessary effects on the private rights to life, rights and liberties of a citizen or a person. Every public office or post is to be manned by a natural person who is always subject to. The vicissitudes of natural instincts of a person which includes private self-interest and a tendency to maximise his selfish interest while exercising the public power. The selfish interest may be categorised as enlightened self-interest where he seeks name and fame, while maximising public interest, self-interest which is to be found in the ordinary prudent man and self-interest amounting to greediness which always affects the public interest. Though in cases where the public office is held by people with enlightened self-interest is likely not to be a threat to the life, liberty and properties of private individuals and the public interest, but in cases where the people of self-interest which amounting to greediness is always undermines the right, liberty and properties of the private citizens or a person and the whole public interest and it is only the interest of that person who occupies the public office or post that matters and he uses all subterfuges, cam outflows to maximise his own self-interest practising art of fraudulent misrepresentations and cheating at the cost of others many times without regard to the interest of the country or its people. We should create an institutional environment, which prevents the occurrence of the people with such greediness to occupy the public posts and even if they occupy the same, there must be sufficient checks and balance system to prevent the abuse of the public power for his personal ends. The doctrine of personal separation of powers of the Montesquo is one among perhaps other yet to be found better devises to control the exercises of the public power from being abused for personal ends and the presidential form of government with separation of personal powers as the main stay in all spheres of public life is one to be recommended though not in itself the exhaustive one. In India, I feel that the Prime Minister post should be separated from the existing parliamentary election process and to be directly elected as the President while abolishing the office of the President.

 

 

RELIGION - PUBLIC POWER

 

            Public power includes the power exercised by the persons holding the offices or posts held by the religious institutions. The power of such religious offices, also include powers in the nature of legislative, executive and judicial. For instance, the persons holding the highest offices, or even a delegate of such offices may be vested with powers to lay down new rules of conduct and norms for their own followers or in case their power is combined with a sovereign power to lay down such rules of conduct or  norms to all the people within their constituent states. Laying of rules of conduct or the norms is one thing and the execution of the said norms is another thing and in case of any dispute or difference as to the infringement of the rules or conduct or non-compliance inviting civil or criminal penalties, the authority vested with the power to interpret the rules and decide the disputes is a separate power in the nature of judicial power. The power of executive authority vested in these religious offices also included the power of acquiring, hold and dispose off the property by the said religious institutions and also to carry on the trade and business. These powers are vast enough public power, capable of potentially and actually affecting the life, liberty and property of other people and other persons holding similar public powers. If such persons are vested with more than two powers to combine in himself as a natural person or body of persons, there is every likelihood of them tending to exercise the said public power by mixing his personal interest or ends to the detriment of public interest or the purpose for which the public have delegated the said power to him to perform i.e. abusing the public power for personal ends. If we analyze the origin growth and development of some of these religious institutions we see that it is not much different from the persons holding other public or sovereign powers whatever the motives one may have. Wherever there were adequate personal separation of powers or adequate checks and balances against persons holding such combined powers we see it was used for public good without much encroaching into the private rights and liberties of individual persons or even when conflicting with the other similar public powers or sovereign powers and where such checks and balances were not existing, they always tended in the natural manner to be tyrannical with unpredictable burdens on the life, right, liberties and properties of the members constituting such societies. The oldest known religious institutions in the world related to laying of norms for persons with reference to their mode of worshiping the God and the manifestation of God through different phases of human life such as the stage of conception, the birth, childhood, adulthood age of marriage, old age and death and the continuation of one's soul after death and the obligation of the children towards their ancestors who died and in all these or some of the stages, the ways and means one should conduct himself having regard to one's relationship to the nature, to the ultimate God and whoever is transgressing the norms are visited with sweet penalties which included ostracizing or excommunicating the said person from the families or social groups. But we do not see the oldest known such institutions appeared to be under the control of the King or sovereign power while laying down of such religious legislative edicts or dharma and were not exclusively within the control of the King or sovereign and further we have no known history where any one person has exercised all such powers in himself. There may be writers who have either codified or compiled or have written commentaries or interpreting based upon specific instances of the application of law/dharma to the individual cases brought before the royal courts or otherwise. In India, which is one of the oldest civilizations with continuity of religious thought processes and institutions, we have such separation and not see combining all powers in one person. We have Manu Dharma, which is a guide to the people and the King and in the same book, we see innumerable number of penalties imposed on persons violating the code of conduct and one of the punishment imposed was ostracizing or ex-communicating the persons from the existing known caste groups and imposing on them  penalties to take up the work of more onerous and degrading type depending upon the nature of the violation and the sin they have committed, thereby creating a new set of castes and communities. It also refers to several major set of people who are ostracized and driven out for not conforming to the religious social standards laid down. But we do not see who executed those orders. It is obviously the King or sovereign power who must have executed those orders with the help of existing social groups whose religious rights have been violated. In all the instances, we see that the law laid down not by the King or by any one particular religious leader or person holding the office, but a customary law from ages unknown i.e. the persons who are executing the law were not persons who have laid the law. But still these customs and the rituals laid down for each social groups and the persons who are in the position of executing those norms in many times than not are vested with the power of interpretation i.e. exercising their judicial sort of power and when these two powers are combined, the same person exercising such religious offices either in one community or caste.

 

It has a natural tendency to be abused. Perhaps, such an abuse must have had its reaction and a new ways of search for truth and ones relationship with the God brought down many new founders of new ways of search of truth and God and we see the several such religious leaders in India. The most prominent among them being Buddha and Jain and later several persons like Sankaracharya, Madvacharya, Ramanujacharya and of late Mahatma Gandhi, but still the search goes on. If we analyse the western civilization, the known history starts back from Homestone Greek where several gods were worshipped and their statues and temples were built. The sovereign power in a person of King have always himself treated as servant of the God and below religious persons holding the religious offices under the respective temples of God and there was no apparent conflict between the said religious power with the sovereign powers and further we see no instances of the religious persons holding the said offices never exercising any power of executing the religious code of conduct by themselves. The people were free to worship their own God and offer such sacrifice or gifts donations to such religious offices as they thought fit to their circumstances and there was no combining of political power or economic power extending over two territories during this period. Towards during the Alexander’s period where he has tried to create an Empire extending over large territories over the different continents and this has brought conflict and confluence of ideas, powers, interest including submission of large public power extending over the continents by way of religious, economic, social, cultural effects, but before it was crystallized, it was tumbled by the death of Alexander. But its affects continued through out the period because of mixture of people through marriages and also continuation of the institutions created by him. This was followed by the rise of Roman Empire, which has its lasting affects on the western civilization including its affects on religious thought processes and powers. It has centralized a huge territories under its command and control, established several business centres with Rome as a headquarters and as such, large net work has created conditions for movement of people from one end to the other by various business connections and military operations. It has laid down laws governing several sets of people and tried to bring about uniformity either upon itself or under conditions of pressure and demand from other excluded or partially excluded sections of the empire. In all this period while with the rise of Empire, there arose great public power with the concentration of political, military and economic power at one end and the individual citizen and persons at other end. The Gulf between rich and poor and the Gulf between the socially high in status and the rest of the people continued to rise due to the operation of economic and legal system combined with political and military powers in favour of rich with no independent judicial remedies at a later date, to estranged and victims of system. At this moment, appeared the Christian faith as a radical idea against social order against the rich and powerful in the social hierarchy and their protest manifested itself in the form of search for new answers for the existence of their life on earth. It has manifested itself it's protest against the worshiping of several gods in the form of statues or idols installed in the temples, and dictating the human office, roman empire or the Caesarian God on earth, which in history is called paganism and submitting themselves to directly to their professed one God and such worshipping through a congregation of people under the roof of a Church and refused to submit themselves to the existing rituals as the mode of worship professed and practiced in the roman world and this has  irritated the people and it was felt that such people were ominous to their future and as the people gathered around the idea of one God as against the existing prevalent view of multi-gods gained public power in the sense of considerable number of people consenting provided by the said faith then it appears from history that a struggle and strife between the existing faith to service the new faith ensued in the form of public power and we see from history that when the Christianity was propagating its new idea and faith in confrontation with the existing order of things, it has preached virtues like love, sacrifice and voluntary suffering for others and at the same time discharging ones duty towards state and sovereign by paying ones duties and voluntary self sacrifice and resistance in the face of hardship without recourse of violence against others, but persevering ones faith in the one God through whom and to whom they owe their life and meaning of life except the temporal worldly affairs assigned by the God to the King. When it was a small power the persons holding such offices or posts in the institutions created by these religious organisations did not have much impact on the rights, life, liberties of any citizen. But as it grew in power in the sense of having large following believing in the new faith and when in a conflict between the existing official faith and the new faith and when it was in opposition not holding any official legislative power capable of imposing upon anybody against their will except to its followers who have voluntarily and willingly come to its fold. There was not much occasion of combining of two or more powers in one person. But we see in the history that when it was only recognised as the official religion and faith by the Constantain in the 4th century, then the persons holding the religious offices now officially declared as the new faith it has become possible for such people to combine in themselves now laying down the new code of conduct in all religious matters and to interpret and also to execute the same to its followers as well as to others and also to enforce the same by way of imposing penalties. During the course of the period, we see that there was a centralisation of power through an office called Pope and the Bishaps and various other categories of posts below the down to the lowest one i.e. the phrist and they have also created a new courts ecclesisite parallel to the Royal Courts and this has brought a new situation which is unknown in the history i.e. a law made by the King, a law made by the Pope and the King's laws executed through its courts and the Pope's laws executed through it's courts i.e. parallel public powers touching the sovereignty and the claim for sovereignty of laying down the ultimate rules as the code of conduct with the public. We have seen the history with these persons holding these religious offices or posts have used either ways and means to amass wealth in their own religious institutions and have used the same for gaining much larger public power so as to contest the claims of sovereign power within the public power and the smaller people including the princes and other sovereign kings were made to arraign or come in conflict with these religious offices or posts, whenever there is a conflict between the law declared to their own courts by these religious institutions and the sovereign kings. We have also seen that such higher officials holding the religious offices have used their powers for more and more centralisation of their own power in the name of religion by subordinating all other sovereign and other public powers, claimed themselves above the law made by the King, and also claimed the right of only divine representative on earth to rule all others. The history has shown us that people holding such public power are always capable of mixing their public power with private interest or ambition. The history is repeat with such instances where the popes or the representatives when commanded huge public power across several nations, the rights and liberties of the people were totally at jeopardized position. The period now has been treated as dark-age and the power which they exercises for other than relevant considerations is manifested at times for instance between the Pope came in conflict with Henry Vills in England on the issue of his divorce to his wife Catherine Charles V, the Holy Roman Emperor, sister of the Emperor  the interest of the Henry VIII who wanted to marry Anne Boleyn after divorcing the Roman Catholic wife. The ecclesiastical courts under the Pope and the officers who were empowered to decide the issue by the Pope had to face the conflict between the King and Pope and similarly the Royal courts under him have approved the action and the ecclesiastical court constituted by Pope have disapproved and refused to sanction the same. Though as a matter of right, the King as a person is entitled to ask for any divorce and for marriage, but the ecllessted court were under the pressure to act by the Pope to safeguard the interest of the Emperor against the King of England, result was declaration of independence of the King and his subjects through King in Parliament including the religious offices in his jurisdiction from the jurisdiction of the Pope and confiscation of all the properties of the Church in England wherever they transgress the commands of the Sovereign King Henry VIII by the State. Here also the both religious office as well as the Sovereign King have exercised their power beyond their own recognised sphere so as to further their own personal interests by combining their own tyrannical sovereign power to their own personal ends. Several similar instances we see in the history both the past and the present. In the Muslim Religion also when Mohammad started his own religious tenets as against the existing mode of worshiping the images or idols in Makka and other Arabian countries, he has spread his ideas of the only God, Allah, not susceptible for any such images or idols and to which everyone has to surrender himself and worship by way of prayers accepting plinching surrender to him as the only God and Savior of the humanity and with that idea he thought against the existing rulers who have driven him off from Macca to Madina and after acquiring sufficient following of devotees, he has acquired a public power and use the same to defeat the kings and himself acquired the power of Sovereign and established his own rule in the name of God and he has combined in himself all the power i.e. legislative, executive and judicial both this worldly as well as other worldly and used that power against all opposition as a Jihad (Holy War). At the end of his life, we see him not any more than other ordinary mortals in the matter of succession to his office and he has left it to his own nephew and later his wife and his brother-in-law and who ever have occupied subsequently to the offices of such religious position have been combining in themselves all the powers of tyrannical nature combining in himself the legislative, executive and judicial powers in respect of all matters touching the person all in the name of total surrender to God and himself as the representative of the God on earth. And everybody indoctrinates and is given freedom to do all such things as is within his power to defeat their alleged enemies of their faith as a part of his duty to God, the Allah, subject to the law laid down in Qhuran and as interpreted by religious leaders and which duty is treated as in middle ages popes in Christian world, as above the law of secular sovereign powers of the country only. This is happening in Taliban as well as Iran and in Pakistan Muslim Worlds or in any other countries of muslim population.

 

A natural person in a human society is an ordinary mortal and intercepted by life and death in this world under the universe created by God. He is subject to the laws of nature as well as laws of social organisation, which he is a part. His natural instinct for the survival of his life on earth is by its very nature is bound to search for the truth of his life and its meaning vis-a-vis the ultimate God. This happens in all the time when he is in search of happiness as well as on the brink of extraction of his life. In all these circumstances, his soul is at strife and asks for answers to this ever recurring questions touching  the life and this again calls forth people who specialises by devoting lot of their time in studying the issues relating to the matters brought before him and such people who are acclaimed by people or claimed by themselves as persons with religious experience will be looked forward by the Laymen who have no such time for guidance and thereby they contract out or submit their own power or liberty to the people who have such acclaim or claim superiority in religious matters and experience and thereby the people who claim or have such superiority acquire a greater and greater public power in themselves, but it does not end there. Such people start arrogating to themselves not only matters concerning within their own jurisdiction, but matters which are beyond their own sphere under the guise of religious matter and thereby mixing their own public power with that of other powers and thereby combining themselves more than two powers and if there is no checks and balance, such people by a natural instinctual process exercises for their own personal ends in the name of religious faith. This happened in India while many muslim rulers tried to spread their faith in order to make themselves more tyrannical and for personal aggrandizement. Aurangazeb is an example of such mixing of political power with religious matters. In all these cases whether in the Soviet experience of communist parties combining all powers in themselves abusing the said power many times than not for their personal gains at the cost of rights, life, liberties and properties of the others so also many kings, popes, political parties in the new modern democratic countries and even the political leaders within the democratic countries with no checks and balances against their powers whether in the parliamentary form of Government like U.K and India or even in a case like America where the executive is so powerful in the matters of war and peace over the other countries as the Commander-in-Chief like in case of Roman Dictators over the territories other than Roman have been tending to abuse their position to mix their public power with the personal interest in a cases where there is no vigilance on the part of other coordinate constitutional organs to check such abuse and nip it at bud itself. In history we see such wars of one country with others by those who mixed their real intention for the possession of women as a personal power by mixing it with the power of the State with his own person as in the case of Paris with Napoleon Trozon war or in the case of Anthony  and Cleopatra vs. Ceasor Oelavias and even in the case of Napoleon who has risen to power at the time when right by birth is replaced by merit as a criteria to earth, he himself at the end of his life has again tended to establish his own right by birth, hereditary concepts, and distributed the state offices to his own relatives and mixing his own private interest as if within public interest. Similarly in India, the Gandhi family abusing the name of Mahatma Gandhi and mixing the public interest with their own private interest. And even in America, the Bush is said to be using his own personal business interest as the interests of his country in the matter of making war and peace over other countries in exercise of all the powers of office of executive and Commander-in-Chief of the country as is viewed by many people. These are instances where the public powers are being mixed up with private interest by combining in themselves more powers in the absence of any proper checks and balances in the system or because of the failure of other organs in checking such abuse and also because of failure of sufficient public opinion as a pressure against abuse of such powers.

 

I see this tendency to increase in future with increasing public power to the global proportions and global institutions taking place as a matter of convenience and necessity of the global transactions and unless sufficient and adequate institutional environment to safeguard in prevention of combining of more than two powers in the same person over the same subject matter and maintaining such personal separation of powers or even a more workable foot proof institutional mechanism is devised and enforced the life, liberty and property of individual citizen and a person will become more at peril and the warnings of original framers of the Constitution of America as well as Montesquo should be ever reminding everybody of this and succeeding generations.

 

            I, therefore, suggest that every public power including sovereign public power other than private power has to be divided into its three component powers i.e. legislative, executive and judicial at every level and its organizational hierarchy and the persons occupying any of the offices or posts connected with one branch should not hold the office or post connected to the other two branches of public power and there should be total personal separation of power in so far as judicial branch is concerned and the State should take every step for personal separation of these powers against all the existing governmental, public, private institutions exercising public powers and further to see that who ever intends to create an institutional organization with public powers should create such offices and posts on the basis of principle of separation of powers and the persons holding such offices on the basis of personal separation of powers and the persons holding the judicial power not under the control of said institution but under the control of the sovereign judicial power of the State. It should be made a condition by the State at the time of granting such charter or permission either under Companies Act, Cooperative Societies Act, Trust Act or any other such acts for registration as a juristic person including political parties and religious bodies and in case of breach of such institutional environment should provide an opportunity to fall in line with the above said principle, failing which said institution should be disorganized and disbanded. This should be made applicable for all including local self-governments, public or private corporate bodies, charitable endowment trust or other organizations wherever there is a likelihood of concentration of public power and there should be adequate checks and balances within these three offices or posts one with the other without however much affecting private initiative and public good.

You have to be logged in to view the contact details of the author.
Login to comment! 3 Comments Login to refer to a friend!
View Comments
test test 1
Lakshma Reddy S

The sovereign democratic power in a republican form of government is entrusted under the constitution to the legislative,executive,and judiacial bodies is to be exercised by persons nominated by persons in control and management of political  parties in power in states or center and such political parties are not subjected to checks and balances as required to mantain the seperation of powers for effective prevention breeding grounds for abuse of public powers and  tyrannical situations.

Let us take any political party in india including the congress party and their functioning.The decisions of political party on policy and prescriptions,the quantum of  public information and power they often possess affecting the rights and liberties of citizens and international developments,and lack of transerancy and exclusiveness they practise affecting the public administration, and yet they are not subjected to the principle of seperation of power theory,in effect producing the curruption in public life with no effective remedy to persons or institutions effected under our constitutional system of governance.

The parliement  and other legislative assemblies which are  assigned the function of legislation and the parliement and other legislative members(elected on being nominated by political parties) paid out of public fund to discharge their  function as legislative member but many of the legislative members are busy to influence the executive and judicial branch in the interests of their own followers or their own family interests in violation of constitutional prescriptions of equlity before law and equal oppurtunities to all citizens. They punish the officiala who do not tow their dictates and follow the law either try to  change the law or tranfer the officers who oppose their interests.

It is also  evident in many cases of dispensing the governmental largessess including the execrsise of aquisition and requisition of private properties for public purposes.

we need the application of following prescription to political parties  to miimise and to remedy this malady for good governance and  free development of the country: 

 

"State should take every step for personal separation of these powers against all the existing governmental, public, private institutions exercising public powers and further to see that who ever intends to create an institutional organization with public powers should create such offices and posts on the basis of principle of separation of powers and the persons holding such offices on the basis of personal separation of powers and the persons holding the judicial power not under the control of said institution but under the control of the sovereign judicial power of the State. It should be made a condition by the State at the time of granting such charter or permission either under Companies Act, Cooperative Societies Act, Trust Act or any other such acts for registration as a juristic person including political parties and religious bodies and in case of breach of such institutional environment should provide an opportunity to fall in line with the above said principle, failing which said institution should be disorganized and disbanded".

 

 

Lakshma Reddy S

corruption of public power which include the statutory and even the sovereign power legislative,executive,judicial powers under the constitutions in india or otherwise elsewhere has become the source of threat to pubic as well as the private rights and liberties of gerearal public.THe rise of huge corporate bodies with public interests in it with huge economic power to take decisions affecting the public at large is also afflicted with abuse of such public power for private iterests of its managers not only in india but all over the world and hue and cry raised in recent past over the executive pay of this corporate banks and other bodies is an illustration of this growing malady.

 one of  the remedy to minimise this growing threat to life ,liberty, properties of people at large is montesque personal seperation of powers in all walks of public life.It is stated as follows:

 I, therefore, suggest that every public power including sovereign public power other than private power has to be divided into its three component powers i.e. legislative, executive and judicial at every level and its organizational hierarchy and the persons occupying any of the offices or posts connected with one branch should not hold the office or post connected to the other two branches of public power and there should be total personal separation of power in so far as judicial branch is concerned and the State should take every step for personal separation of these powers against all the existing governmental, public, private institutions exercising public powers and further to see that who ever intends to create an institutional organization with public powers should create such offices and posts on the basis of principle of separation of powers and the persons holding such offices on the basis of personal separation of powers and the persons holding the judicial power not under the control of said institution but under the control of the sovereign judicial power of the State. It should be made a condition by the State at the time of granting such charter or permission either under Companies Act, Cooperative Societies Act, Trust Act or any other such acts for registration as a juristic person including political parties and religious bodies and in case of breach of such institutional environment should provide an opportunity to fall in line with the above said principle, failing which said institution should be disorganized and disbanded. This should be made applicable for all including local self-governments, public or private corporate bodies, charitable endowment trust or other organizations wherever there is a likelihood of concentration of public power and there should be adequate checks and balances within these three offices or posts one with the other without however much affecting private initiative and public good.

I invite the comments over it.

 
WorldLII (World Legal Information Institute) Supreme Court of India - Judgements from 1950 - Legislation (ACTS) from 1836 - Law Commission of India - Reports from 1999 -
Causelist Websites A.P High Court Daily Causelist | Central Administrative Tribunal | A.P State Administrative Tribunal  |   Supreme Court of India  |   Causelists for all Courts |
Terms and conditions - Disclaimer - Website Map    | Copyright 2009 - 10 www.goforthelaw.com. All rights reserved