Judicial Activism - A Comprehensive note PART - I

 

This article will be discussing deeply about the Constitutional History of India. And this article composed of two parts i.e., Part I & Part II. Part I contains meaning and concept of Judicial Activism, Theories of Judicial Passivism and Activism, Judicial Self-Restraint versus Judicial Activism, Evolution and development of Judicial Activism in India, and Judicial Activism and Separation of power.

PART - I

1. INTRODUCTION:

In 21st century all are witnessing a huge shift in the global balance of power. As the mastery of the west degression, the world is looking after the emerging powers of the new world order, like India. India gets corner view in the world face due to its successful nourishment of democracy and its tremendous economic growth, notwithstanding its cancerous corruption and unstable infrastructure. The journey from being rolled by British emperor for a long period to an independent sovereign country has not been easy for India. There are three branches of the government in India such legislative, executive and judiciary.

 

In 1922, Gandhiji said swaraj would not be the gift of the British Parliament, but must emergence from ‘the wishes of the people of India as expressed through their freely chosen representatives.’ He had expressed that Indians must shape their own destiny, that only in the hands of Indians could India become herself. Twenty- four years later these words were repeated during the opening session of the Constituent Assembly: they were, some said, the Assembly’s origin; all agreed that they were its justification.

 

The Constituent Assembly, brought into being by the will of the Indian people and, in the last scene of the last act, with the help of the British, drafted a constitution for India and it was adopted in 26^th January 1949 and come into force in the year 26^th January 1950. In the Constituent Assembly Indians were, for the first time in a century and a half, responsible for their own governance. They were, at last, free to shape their own destiny, to pursue their long-proclaimed aims and aspirations, and to create the national institutions that would facilitate the fulfilment of these aims.

 

In the words of B.R. Ambedkar-

 

‘By independence we have lost the excuse of blaming the British for anything going wrong. If hereafter things go wrong, we will have nobody to blame except ourselves.’

 

Jawaharlal Nehru believed, ‘This cannot be done by the wisest of lawyers sitting together in conclave; it cannot be done by small committees trying to balance interests and calling that constitution-making; it can never be done effectively when the political and psychological conditions are present, and the urge and sanctions come from the masses.’

 

There are three branches of the government in India such legislative, executive and judiciary.

 

The role of a judge and executive has been clearly stated even during the Vedic period:

“Rajno hi raksadhi krtah parasvadayinah sathah

Bhtya bhavanti prayena tebhyo reksedimah prajah”

 

Thus, meaning the king should give the charge of the protection of the subjects to such officers who are virtuous, well tried, qualified and from respectable families.

 

The traditional role of the Judge has been envisaged as that of an impartial arbiter who hears the forensic debate before him and renders judgment without ever stepping into the arena of debate. Lately, however, it has become fashionable for Judges to jump into the fray and actively participate in the debate by supporting one side or the other and this process masquerades under the felicitous name "judicial activism".

 

The expression ‘Judicial Activism' signifies the anxiety of courts to find out appropriate remedy to the aggrieved by formulating a new rule to settle the conflicting questions in the event of lawlessness or uncertain laws.

 

Under the Constitution of India, the three branches of the government, namely the Legislative, Executive and the Judiciary, have been assigned their own separate roles. It is when the Judiciary steps into the shoes of the Executive or the Legislature and embarks on the work of law making rather than interpreting laws, it can be deemed to be judicial activism.

 

Black’s Law Dictionary explains very well:

 

“Judicial activism is judicial philosophy which motivates judges to depart from strict adherence to judicial precedent in favour of progressive and new social policies which are not always consistent with the restraint expected of the appellate judges. It is commonly marked by decisions calling for social engineering and occasionally these decisions represent intrusions in the legislative and executive matters.”

 

Before the twentieth century, legal scholars squared off over the concept of judicial legislation, that is, judges making positive law. "Where Blackstone favoured judicial legislation as the strongest characteristic of the common law, Bentham regarded this as a usurpation of the legislative function and a charade or miserable sophistry. John Austin, rejected Bentham's view and defended a form of judicial legislation in his famous lectures on jurisprudence.

 

Judicial activism is an upgraded form of judicial review. Judicial review means overseeing by the judiciary of the exercise of power by other co-ordinate organs of government with a view to ensuring that they remain confined to the limits drawn upon their powers by the Constitution. The practice of judicial review of legislation was extended by Britain to colonies like India.

 

Later, when India got independence, this debate continued in the Constituent Assembly also. The debates show that the makers of the Constitution wanted a limited judicial review. Most of them were admirers of the Westminster model of democracy and wanted the courts in India to interpret the Constitution so as to cause minimum interference with the legislature. In their opinion, a single integrated judiciary, along with a uniform system of laws was essential to maintain the unity of the country. Apart from being the conscience-keeper of the Constitution and the protector of fundamental rights of the people, the framers wished to equip the judiciary with powers which would enable it to "keep the charter of Government current with the times and not allow it to become archaic or out of tune with the needs of the day". While the provisions relating to the judiciary were being drafted, there was general agreement on the issue that if independent India were to achieve a social revolution, the judiciary would have a vital role to perform and would therefore have to be well equipped for the purpose.

 

According to Justice V.G. Palishikar, judicial activism can be defined as the process of law-making by judges. It means an active interpretation of existing legislation by a Judge, made with a view to enhance the utility of that legislation for social betterment. Judicial activism is different from judicial pessimism which means interpretation of existing provisions of law, without an attempt to enhance its beneficial aspects by so interpreting the existing law to advance and progress the beneficial extent of that legislation.

 

Judicial institutions have a sacrosanct role to play in a constitutional democracy like India. Under Article 32 a person can approach the Supreme Court for violation of any of his fundamental rights as Article 13(2) also states that if a law passed by the state affects a fundamental right, it may be declared null and void by the Supreme Court. The High Courts are empowered with wider jurisdiction to entertain any petition not only for the enforcement of fundamental rights alone but also for any other purpose. The Supreme Court can also decide whether Parliament or State Legislature has made any law beyond its allotted powers. Even Parliament can enlarge jurisdiction and powers of the Supreme Court with respect to any matters in the Union List by enacting law to this effect and also through law give it power to use it writ jurisdiction under clause (2) of Article 32 for any other purpose. Further, power is vested in the Supreme Court to pass such decree or order as is need for doing justice in any case or matter pending before it. This provision containing inherent powers of the court contains no limitation regarding the case or circumstances which necessitates the court to exercise its power nor does it lay down any conditions to be satisfied before such power is exercised. But the courts itself through various judgments have said that Article 142 could not be used to build a new edifice where none existed earlier so to achieve something indirectly, which could not be achieved directly.

 

The role of Judiciary as it arguably bears a larger share of the immediate responsibility for preserving and defending the indispensable liberal dimension of the democratic regime than do the two branches in spite of having no control over the sword or purse. In this duty lies the best claim to the legitimacy that the courts can muster when they extend their writ in an activist fashion.

In the context of Indian experience, when this job of tailoring was adhered to by the Indian Judiciary, it was alleged as ‘judicial anarchy’ judicial over-activism or judicial despotism. Few critics, albeit labelled Judiciary as a ‘third chamber’ and ‘a super executive.’ It is alleged that Judiciary has usurped the authority of legislative and executive organs of the government. The opponents criticize Judiciary as anti-democratic and counter majoritarian.

 

One of the very important principles of just democratic governance is the application of Constitutional limits on the extent of government power. These limits include conducting periodic elections, granting civil rights, and promoting an independent judiciary, which allows citizens to seek protection of their rights and redress government functions. These limits help to make branches of government accountable to each other and to the people. An independent judiciary is must for safeguarding the rule of Law and is, therefore, vital facet of good governance.

 

 “A judge must be of sterner stuff. His mental equipoise must always remain firm and undeflected. It is essential that a judge should not allow his personal prejudice to go into the decision- making. A closed mind is antithetical to fair hearing. Prejudice tends to corrupt the ability to exercise independent judgment. It has a tendency to intrude upon a free mind and may influence the outcome.”

 

One of the essential features of the democratic republic established by the Indian Constitution is division of power between the three important wings of the State. The three wings are expected to operate in their respective fields so that democratic governments, both at the Centre and the States can function to fulfil the noble objectives enshrined in the preamble to the Constitution. As early as in 1951. In re Delhi Laws case (1951) the Supreme Court noted that though there are no specific provisions in the Constitution vesting legislative powers exclusively in the legislature and the judicial power in the judiciary, the essence of the doctrine of separation of powers was implicit in the constitutional scheme. Later in Indira Gandhi case in 1975 "separation of powers" was treated as a part of the basic structure of the Constitution.

 

The philosophy of justice-social, economic, political spelt out in the Preamble and article 38 of the Constitution is to be imbibed in culture and life of people not only by Judiciary but also by other organs of the State, hence, the importance of other two organs should not be over-shadowed by the role of judiciary.

 

Even Dr. B.R. Ambedkar in his speech before the Constituent Assembly expressed his views regarding putting checks on the authority of the various organs of the Government. To quote: “In fact, the purpose of a Constitution is not merely to create the organs of the State but to limit their authority, because, if no limitation was imposed upon the authority of the organs, there will be complete tyranny and complete oppression. It would result in utter chaos.

 

As originally enacted, the Constitution of India provided for a Supreme Court with a Chief Justice and 7 judges. In the early years, a full bench of the Supreme Court sat together to hear the cases presented before them. As the work of the Court increased and cases began to accumulate, Parliament increased the number of judges from the original 8 in 1950 to 11 in 1956, 14 in 1960, 18 in 1978, 26 in 1986 and 31 in 2008. As the number of the judges has increased, they have sat in smaller benches of two or three (referred to as a division bench) — coming together in larger benches of five or more (referred to as a constitution bench) when required to settle fundamental questions of law.

 

 In 2008, then Union Law Minister, H.R. Bharadwaj, explained the motivation for increasing the number of judgeships in the Supreme Court from 26 to 31 as follows:

 

“It has not been possible for the Chief Justice of India to constitute a five-Judge Bench on a regular basis to hear cases involving interpretation of constitutional law as doing that would result in constitution of a smaller number of Division Benches which in turn will result in delay in hearing of other civil and criminal matters.”

 

Despite increases in the number of judgeships, the pressure of the Court’s backlog remains so great that it continues to be difficult to constitute the requisite number of constitutional benches. As a result, matters of public importance continue to be decided by smaller benches of 2-3 judges. One example is a recent judgment on the legality of euthanasia – a complex issue concerning difficult questions of constitutional law, which was decided by a two-judge bench. Another example is the decision regarding the constitutionality of state sponsored militia in the state of Chhattisgarh, which was delivered by a two-judge bench.

In the early years, the Supreme Court interpreted the role of the Judiciary merely as determining in accordance with narrow procedural rules. In A.K. Gopalan v. State of Madras, the Supreme Court remarked, “In India the position of the Judiciary is somewhere in between the Courts in England and the United States. But our Constitution, Unlike the American Constitution, does not recognize the absolute Supremacy of the Court over the legislative authority in all respects, for outside the restricted field of constitutional limitations our parliament and the State Legislature are Supreme in their respective legislative fields and in that wider field there is no scope for the Court in India to play the role of the Supreme Court of the United States.” This perception changed by the time of Golak Nath case (1957), where the Supreme Court declared that fundamental rights could not be derogated from even by an amendment to the Constitution. Six years later, in Kesavananda Bharati case (1973), while overruling Golak Nath case, the court evolved another far-reaching doctrine under which Parliament was denied the power to amend the Constitution in a manner that violated its ‘basic structure’. The Supreme Court could not deny judicial review even by a constitutional amendment.

 

The first event that helped it gain legitimacy was the emergency of 1975. The 1977 elections saw the overwhelming defeat of the Congress party. The Janata party came to power. It immediately dismantled most of the amendments inserted during the emergency and also put in place some constitutional safeguards aimed at ensuring that the emergency provisions in the Constitution are not misused.

 

2. MEANING AND CONCEPT OF JUDICIAL ACTIVISM:

Judicial Activism is a term used for the unconventional role played by the court when it gives value judgments and grants relief to the aggrieved person or persons according to its moral and social sense of justice in a situation where statutory law is silent or even contrary. It has also been defined by some jurists as “non-interpretive judicial review.”

 

In Britain, where there was no written constitution and the Parliament was supreme, the role of the courts was to interpret the statutes. The courts were neither supposed to twist and turn the language of the laid statutory provisions nor add or delete words from it, as it could ruin the will of parliament that was supreme.

 

On the other hand, in countries with written Constitutions, like U.S.A and India, it is not the legislature which is supreme but it is the Constitution. Since, the task of interpreting the words of the constitution is in the hands of the courts, the judiciary has more say than their counter-parts in England. The first reported use of the term 'judicial activism' was by Arthur M Schlesinger in an article on the Supreme Court of the United States in the January 1947 edition of Fortune magazine. This was Roosevelt's Supreme Court.

 

The words 'judicial activists' appeared on top of the second page of the article referring to Justices Black, Douglas, Murphy and Rutledge. They were contrasted with 'Champions of Self Restraint' – Frankfurter, Jackson and Burton. Justice Reed appeared next to a photograph of Chief Justice Vinson above the title 'Balance of Power'. No definition of 'judicial activist' was offered in the article. However, Schlesinger sought to characterize the conflict he perceived between the two groups in a way that gave content to his coined term. The activist group, as he saw them, believed the Supreme Court could play an affirmative role in promoting the social welfare. The 'Champions' advocated a policy of judicial self-restraint, where one group saw the court as an instrument to achieve desired social results, the second saw it as an instrument to permit the other branches. Definitions and Expressions government to achieve the results the people want for better or for worse. In so characterizing the conflict, Schlesinger acknowledged the legal realism underpinning the Black/Douglas view which derived from ideas particularly dominant at Yale Law School. The Yale thesis, as he outlined it, was that judging is a matter of reverse engineering from result to reasons. On that theory: A wise judge knows that political choice is inevitable; he makes no false preteens of objectivity and consciously exercises the judicial power with an eye to social results.

 

3. THEORIES OF JUDICIAL PASSIVISM AND ACTIVISM:

 

Judicial passivism and judicial activism are contending and opposite theories of judicial attitude towards the construction of statutes and there are arguments galore for and against these two paradigms. The former concept emanates from the pure theory of separation of powers and is predicated on a declaration theory of judicial functions which assigns to courts the role of declaring what the law is and nothing more (jus dicere). Proponents of this school do not go beyond written laws as they believe that the legislature has written what is meant and meant what is written – ita scriptum est (it is so written). They are not concerned even if literal interpretations of statutes lead to absurdity, hardship or injustice. They are also opposed to vesting courts with discretionary powers, because the discretion of a judge, cautioned Lord Camden, is the law of tyrants – always unknown, different in different men, causal and depending on Constitution, temper and passion – and that in the best it is often caprice, while in the worst it is every vice, folly and passion. Judicial passivism is also called the bureaucratic tradition in which judges stick tenaciously to the written text treated as ex cathedra.

On the other hand, judicial activism is rooted in the concept that the end of any law is to arrive at justice, and if literal construction occasions injustice it defeats the very purpose for which the law was enacted.

Ordinarily, a judge is considered an activist when (s)he does not go by the literal meaning of the statute but gives effect to what, in her/his opinion, is congruous with the spirit of the law. The Harper Collins Dictionary of American Government and Politics defines it as the ‘making of new public policies through the decisions of judges’. According to The New Dictionary of Cultural Literacy, it is synonymous with the term ‘broad construction’ which the dictionary defines as a ‘theory of interpretation of the Constitution that holds that the spirit of the time, the values of the justices, and the needs of the nation may legitimately influence the decisions of a court, particularly the Supreme Court.

 

4. JUDICIAL SELF-RESTRAINT VERSUS JUDICIAL ACTIVISM:

 

The concept of judicial review has changing dimensions. To begin with, it is a product of judicial self-restraint. But sometimes it invites activism. The terms judicial restraint and judicial activism describe the degree of assertiveness of judicial power. Judges are said to exercise judicial restraint when they have closeness to statutes and previous cases in reaching their decisions; and they are said to exercise judicial activism when they are apt to interpret existing laws and rulings more loosely and interject their own values in the court decisions.

 

5. EVOLUTION AND DEVELOPMENT OF JUDICIAL ACTIVISM IN INDIA:

 

The term “judicial activism” came into currency sometime in the twentieth century to describe the act of judicial legislation i.e., Judges making positive law. Although, the underlying debate on judicial activism has been around since the days of Blackstone and Bentham.

 

In India, the Regulating Act of 1773, which symbolised the new concept of partnership between the Crown of England and the East India Company, was the first essay in constitution-making for India by the British Parliament. The Act created a Supreme Council in Bengal, comprising the Governor-General and four councillors, which was vested with chief executive authority over the other two provinces of Bombay and Madras. A Supreme Court was also founded consisting of a Chief Justice and three judges. However, the Regulating Act did not spell out the functions of the Supreme Court clearly, which brought it into fierce conflict was the Supreme Council which complained that the judges aimed at running a parallel government. Berating the encroaching spirit of the judges a document of 1781 reads:

 

They have subjected every zamindar in the country to their jurisdiction. They have granted writs of ejectment against persons who have bought estates by the order of the Governor-General and Council. They have ordered a writ of habeas corpus against the Naib Subha who would have executed it, to avoid the consequences of such a measure, entreated the Chief Justice to suspend the execution of the writ.

 

The collision between the Council and the court reached hideous proportions threatening to tear asunder the lifelong friendship between Warren Hastings and Sir Elijah Impey, the then Chief Justice. In May 1780 Impey complained that he was being sacrificed to a union between Hastings and Philip Francis. Hastings, however, successfully appeased the Chief Justice by giving him supervisory power over the working of the district courts.

 

Judicial review of legislative acts was in vogue in the British colonies including India, since colonial legislatures were not supreme as they derived their powers from the legislations enacted by the British Parliament. Thus, the Indian courts exercised the power of judicial review of legislation from the first Act by the British Parliament, enacted in 1858. The Calcutta High Court introduced the principle of judicial review in the following words:

 

The theory of every government with a written Constitution forming the fundamental and the paramount law of the nation must be that an Act of legislature repugnant to the Constitution is void. If void, it cannot bind the courts, and oblige them to give it effect; for this would be to overthrow in fact what was established in theory and make that operative in law which was not law.

 

The study of India reveals that the glimpses of judicial activism were visible, even during the pre-independence colonial era, in various judgments of the Privy Council which had the jurisdiction to review the decisions of the Company’s courts and the Crown’s courts in colonial India. In Emperor v. Sibnath Banerjee (1945), the Privy Council held that the Court can investigate the validity of orders passed under Section 59 (2) of the Government of India Act, 1935. Judicial review of the Privy Council however ended with the abolition of the Privy Council jurisdiction Act on 10th October, 1949.

 

The High Commissioner for India v. I.M. Hall (1948), is another case where the Privy Council incorporated the principles of ‘reasonable opportunity to the heard’ within the meaning of Section 240 (3) of the Government of India Act, 1935. Judgments given by the Federal Court constituted under the Government of India Act, 1935 in Niharendu Dutt Majumdar v. Emperor (1942), is yet another example of an activist judiciary. Here, the Federal Court held that mere criticism or even ridicule of the Government does not amount to sedition unless the Act was calculated to undermine respect for the Government so as to make people cease to obey it so that only anarchy can follow. However, the Federal Court constituted under the Government of India Act, 1935 mainly played the role of a literal interpreter. This was because the Constitution of 1935 had no specific chapter on the Bill of Rights and wide discretionary powers were conferred on the executive.

 

6. JUDICIAL ACTIVISM AND SEPARATION OF POWER:

 

The ultimate goal of our constitution, enunciated by our worthy founding fathers, in its preamble is to secure welfare state. For achieving this goal, the constitution has created three organs - the Legislature, the Executive and the Judiciary.

 

A bland justification for the judicial activism is that courts must ensure that justice is done. In this process the boundaries between the Legislature, the Executive and the Judiciary are breached leading to the violation of the doctrine of separation of powers.

 

The question is how to ensure justice. The Roman sentential fiat justicia ruat coelum caused some misconception as it is translated to mean ‘let justice prevail though the heavens fall’.

 

There is an opinion that the translation of ‘justicia’ into modern ‘justice’ is actually a mistranslation. In fact, for the Romans, justice meant their system of law, fiat jus ruat justiciam, ‘let the law prevail though justice may fall’. This doctrine can be carried to the extreme as was done by a Maltese judge. Malta is a small island which did not have room for more than one judge. In the eighteenth century, there was a judge named Cambro. One early morning while he was looking out of the window, he saw a man running and another frantically chasing him. Ultimately, the victim was overtaken just under the window and brutally stabbed with a knife. Just then the assailant saw a constable at some distance and fled, leaving the knife in sheath in the wound. Soon afterwards a baker happened to pass by with his basket of bread and found the victim lying dead. As he tried to take the knife out of the wound, he saw a constable coming towards him from a distance and was utterly terrified. He took the blood-stained sheath of the knife in his hand, put it into his basket and concealed himself beyond the entrance of a neighbouring house. Judge Cambro saw all this with his own eyes. The constable arrived there and found the dead body warm and still bleeding. He surmised that the murderer must be hiding somewhere close. He searched and soon found the baker with his hands stained with blood and the sheath in his basket fitted with the knife. Frightened, he lost his wit and gave incoherent replies during interrogation. The baker was put on trial before judge Cambro. Since no other judge was present, he had to try him. He found that the circumstantial evidence against the baker was clinching enough to convict him: he was found hiding near the place of occurrence immediately after the murder, his hands were stained with blood and the weapon used for the crime was found in his possession. Despite knowing personally that he was innocent, the judge pronounced him guilty of murder as required by the law, sentenced him to death, and the baker was executed. Later when the truth surfaced and the real story came to be known, a horrified public demanded Cambro’s blood, but there were jurists who supported and lauded his decision. He had done justice according to law notwithstanding his personal knowledge that the baker was innocent. On similar evidence he would have convicted anyone, and so he did with the baker.

 

Confrontation between different wings of government is not the result of clarity or ambiguity. It is a function of the struggle for power, and every wing tramples on others when it is strong. Antonio Gramsci has aptly described this: “The separation of power is a product of the struggle between civil society and political society in a specific historical period. In other words, there takes place within the society what Croce calls the ‘perpetual conflict between Church and State’ in which the Church is taken as representing the totality of civil society and the State as representing every attempt to crystallize permanently a particular stage of development, a particular situation. In this sense, the Church itself may become State, and the conflict may occur between, on the one hand, secular civil society, and on the other State/Church. Unity of the State in the differentiation of powers: Parliament more closely linked to civil society: the Judiciary power, between government and Parliament, represents the continuity of the written law. Naturally all the three powers are also organs of political hegemony, but in different degrees:

 

1. Legislature;

2. Judiciary;

3. Executive.

 

It is also to be noted that lapses in the administration of justice make an especially disastrous impression on the public: the hegemonic apparatus is more sensitive in the sector, to which arbitrary actions on the part of the police and political may also be referred.”

 

Aristotle believed that a good government has to be a limited one. The political enlightenment French thinker, Charles-Louis de Secondat, better known as Baron de Montesquieu, in his ‘Spirit of Laws’ propounded the doctrine of the separation powers to maintain checks and balance. He coined the term ‘separation of powers’ which became the guiding principles of the constitutions of modern democratic states. The model is also known at Trias Politica. Aristotle conceived a mixed government comprising the noblest elements of monarchy, aristocracy and democracy, rating none as ideal. The ancient Greeks developed it first and incorporated it into the constitutions that governed their city-state, but it first became prevalent during the Roman Republic. Its constitution expressly provided for separation of powers. The state was divided into branches or estates, each with separate and independent powers and areas of responsibility; the Executive, the Legislature and the Judiciary. In his Oceana, James Harrington refined these ideas to propose systems based on the separation of powers.

 

“There is no liberty where judicial power is not separated from both legislative and executive power. If judicial and legislative powers are not separated, power over the life and liberty of citizens would be arbitrary, because the judge would also be a legislator. If it were not separated from executive power, the judge would have the strength of an oppressor.”

 

“Miserable indeed would be the case, where the same man, or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and that of judging the crimes or differences of individuals.”

 

“All would be lost if the same man or the same body of principal men, either of nobles, or of the people, exercised these three powers: that of making the laws, that of executing public resolutions, and that of judging the crimes or the disputes of individuals.”

 

Thus argued Montesquieu, the great political philosopher of the Enlightenment, in favour of a system of governance in which different branches of government exercise different powers to avoid concentration of powers and preserve human liberty: -the Legislature should make law, the Executive should execute it, and the Judiciary should settle disputes in accordance with the law. This is the doctrine of separation of powers. Though supporters of this doctrine believe that it protects democracy by preventing the system from getting tyrannical, its critics refuse to accept it and point out the success of mingling powers in parliamentary democracies. Thomas Hobbes was its carping critic. Walter Bagehot subscribed to Hobbes’ view and opposed the splitting of sovereignty. He thought that it was deleterious to the health of the nation if at time of crisis one person is not in a position to take a final decision. The mellowing translation of the “separation of powers” doctrine into one of convenient “division of function” was not to arise till persistent trends compelled it. Before the advent of democracy in its present form, power was concentrated in the hands of the monarch. The monarch’s power was absolute the unqualified. Actually, the role of the monarch evolved from the idea of a single person acting as the leader of the community. The history of Rome tells us that the emperors had absolute control over the empire and its citizens. In Britain, Royal power was limited for the first time when King John Lackland was forced to sign an agreement in June 1215 popularly known as the Magna Carta.

PART - II