Montesquieu the checks and balances among the

Montesquieu in his work the spirit
of laws provides a bleak picture of human nature wherein he observes that human
beings have an inclination to do evil and according to him his involvement with
them have taught him that a man invested with power is sure to abuse it and his
endeavors will mostly be to carry out that power to the maximum extend.1

Even in the French declaration of
the rights of man the article 16 states that a society where rights are not
secured or separation of power not established has no constitution.2

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From this statement it is quite
evident that separation of power becomes fundamental to the structure of a
constitution and the effective functioning of a law and order in any nation.

 

 Separation of power could mean
one of the following:-3

1. The difference in the function
among the three branches

2. The difference in the personnel
among the three branches

3. Ensuring the checks and balances
among the three branches 

 

In the United States,
the doctrine is followed in the rigid sense while it is not so in the UK or in
India. The most focused upon aspect in the Indian Constitution is the step of
ensuring checks and balances , each one has its own powers but with limitations
which can be checked by the others to eliminate abuse of power.

 

In India there are instances
where such functions overlap like in the case of maintaining law and order
where section 144 is enforced, it is mostly done by the executive magistrate
who is usually a member of the executive i.e. a collector who is allowed to
also carry out the role of the magistrate in a limited sense. There are also
instances where the legislature delegates the powers to the members of the
executive for better efficiency. 

1.      History

 

Aristotle was the first one to
suggest such a separation. In his book ‘The
Politics’ he suggested three elements that needs to be arranged in order to
have a well arranged constitution and he also mentioned that the differences in
the various constitutions across the world would be a result of the differences
in the functioning of the three elements. The three elements as per Aristotle were
– first the deliberative which is responsible for discussions of common
importance, second the official who has the duty to implement the methodologies
adopted in the discussions made by the deliberative and third the judicial
element where the actions of all the people in the deliberative or officials
can undergo scrutiny in case of breach of law. 4

The more famous adaptation of the version
was that of Montesquieu who divided the government into three branches –
legislature, executive and judiciary where each of them are in charge of the
formation , implementation and dispute resolution aspects of  law.

Montesquieu believed in the
philosophy of limited power through dissonant harmony. He believed that it was
healthy to have differences amongst the various branches in a way that each had
its own powers as well as limitations avoiding situations of excessive power at
the hand of a single individual.5

1 (Online Library of Liberty)

2 (Avalon Project – Declaration of the Rights of Man –
1789)

3 (Alder)

4 ( Historical Development Of Separation Of Powers)

5 (Alder)

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