Legal Studies Textbook for Class 11 - CBSE PDF

LEGAL STUDIES Class 11 Central Board of Secondary Education Shiksha Sadan, 17, Rouse Avenue, New Delhi - 110002  LEGAL STUDIES FOR CLASS XI PRICE : Unpriced Edition Edition : First Edition 2013 Second Edition 2022 This book or part thereof ma...

LEGAL STUDIES Class 11 Central Board of Secondary Education Shiksha Sadan, 17, Rouse Avenue, New Delhi - 110002  LEGAL STUDIES FOR CLASS XI PRICE : Unpriced Edition Edition : First Edition 2013 Second Edition 2022 This book or part thereof may not be reproduced by any person or agency in any manner. Published by : Director (Academics) Central Board of Secondary Education Shiksha Sadan,17, Institutional Area,17, Rouse Avenue, Delhi-110002 Design & Layout : LAXMI PRINT INDIA 556, GT Road, Shahdara, Delhi-110032 www.cbseacademic.nic.in www.cbseacademic.nic.in www.cbseacademic.nic.in Preface L egal Studies was introduced in the year 2013 not only to allow flexibility in the choice of electives but to foster the interest of students in legal concepts, functioning of legal institutions, modes of legal reasoning as well as to provide them with the opportunity to examine a range of legal issues in their socio-economic contexts. As an introductory textbook of legal studies, the goal of this book is to engender an understanding of the effect that law has on different facets of social life. Students are expected to gain desirable levels of competencies by becoming familiar with not only how, but also why the law has become such a crucial part of our lives and learning about how law provides order and stability while also adapting to changing needs of Indian society. The suggestions and the opinion of experts in the field about the first edition have also been taken into account for revising it. The second edition have updated Acts and Laws such as Consumer protection act, RTI, POSH Act 2013 alongwith updated court cases. The units guide the student from an overview of the rationale behind the structure of the Indian legal system to a discussion of some major areas of the legal system. In each unit, a student will learn about fundamental legal concepts and principles and the scope of their application. Unit 1 and 2 provide an introduction to Political Institutions and Basic Features of the Constitution of India, detailing the manner in which law is created and administered, need and relevance of fundamental rights and duties and writ jurisdictions of different courts. Unit 3 and 4, concentrate on different areas of Jurisprudence and Nature and Sources of Laws by exploring basic principles and terminology. A complete chapter on Cyber Laws has been incorporated in view of the massive increase in cyber transactions and related issues during the last few years. Unit 4 addressing the structure and roles of Constitutional, Civil, and Criminal Courts, has been updated by adding content on Criminal law. Unit 5 deals with another important branch of the Legal system concerning with the Family Justice System providing information on various avenues to seek help and resolve issues swiftly and with the minimum of pain caused to those involved. The revised textbook offers newer practical strategies to guide the teachers in planning effective teaching-learning tasks for their students. I record my sincere gratitude to the experts associated with revision and vetting work. I sincerely hope that with the availability of the revised edition, teachers will be able to impart an understanding of legal concepts in a more up-to-date manner. Comments for further improvement of the textbook are always welcome. Dr Vineet Joshi Chairman CBSE www.cbseacademic.nic.in Acknowledgement Guidance and Support Dr. Vineet Joshi, IAS, Chairman, Central Board of Secondary Education. Dr. Joseph Emmanuel, Director (Academics), Central Board of Secondary Education. Material Production for the First Edition Prof. James J. Nedumpara, Professor, Jindal Global Law School, OP Jindal Global University, Sonepat, Delhi Mr. Sandeep Kindo, University of Wisconsin - Madison, USA Mr. Vinay Kumar Singh, Indian Society of International Law, New Delhi Dr. Anil Kumar Thakur, Panjab University, Chandigarh Ms Anjali Bansal, Panjab University, Chandigarh Mr. Ram Shankar, Assistant Professor & Joint Director (GA&E), CBSE. Content Updation Group (Second Edition) Ms. Disha Grover, Delhi Public School, Mathura Road, New Delhi Ms. Neelu Sofat Whig, Suncity School, Gurugram Ms. Charu Tiwari, Sanskriti School, New Delhi Ms Sanah Batta, Bloom Public School, New Delhi Ms. Piyush Vardhini, Amity International School, Mayur Vihar, New Delhi Ms. Mansi Nangia, Modern School, Barakhamba Road, New Delhi Legal Inputs and Book Review Dr. Pooja Singh, Advocate, Delhi High Court CBSE Coordinator Mr. Al Hilal Ahmed (Joint Secretary) www.cbseacademic.nic.in Contents 1 Unit 1 Introduction to Political Institutions 1-34 Chapter 1 : Concept of State 3 Chapter 2 : Forms and Organs of Government 13 Chapter 3 : Separation of Powers 24 2 Unit 2 Basic Features of the Constitution of India 35-64 Chapter 1 : Salient Features of the Constitution of India 37 Chapter 2 : Administrative Law 57 3 Unit 3 Jurisprudence, Nature and Sources of Law 65-104 Chapter 1 : Jurisprudence, Nature and Meaning of Law 67 Chapter 2 : Classification of Laws 78 Chapter 3 : Sources of Laws 83 Chapter 4 : Law Reforms 94 Chapter 5 : Cyber Laws, Safety and Security in India 98 4 Unit 4 Judiciary : Constitutional, Civil and Criminal Courts and Processes 105-130 Chapter 1 : Judiciary : Constitutional, Civil and Criminal Courts and Processes 107 5 Unit 5 Family Justice System 131-172 Chapter 1 : Institutional Framework - Marriage and Divorce 133 Chapter 2 : Child Rights 149 Chapter 3 : Adoption 155 Chapter 4 : Property, Succession and Inheritance 159 Chapter 5 : Prevention of Violence against Women 168 www.cbseacademic.nic.in www.cbseacademic.nic.in  Unit 1 Introduction to Political Institutions  TEXTBOOK OF LEGAL STUDIES XI-2022-2023 CHAPTER UNIT I 1 Concept of State Contents I. What is a State? II. The concept of State and Article 12 of the Constitution of India UNIT II III. What is Government? IV. Emergence of the State from Society V. Definition of State VI. Theories on the origin of State VII. Elements of a State VIII. Role of a State IX. Exercises UNIT III Learning Outcomes Students will be able to: Define the term “State” in legal and political context especially international law Identify and explain the elements that are required by any political institution to be recognized as a State Define, identify and illustrate the various roles played by states in the context of the governmental control being exercised on the citizens UNIT IV Evaluate the relevance of Modern Welfare States in today’s global scenario I. What is a State? Black’s Law dictionary defines ‘State’ as “the political system of a body of people who are politically organised; the system of rules by which jurisdiction and authority are exercised over such a body of people.” II. The concept of State and Article 12 of the Indian Constitution UNIT V Article 12 of the Constitution of India states that, “in this part, unless the context otherwise requires, the State includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.” www.cbseacademic.nic.in 3  TEXTBOOK OF LEGAL STUDIES XI-2022-2023 As per the definition provided above, State includes the following: 1. The Government and Parliament of India, i.e., Executive and Legislature of the Union UNIT I 2. The Government and Legislature of each State, i.e., Executive and Legislature of the State 3. All local and other authorities within the territory of India 4. All local and other authorities under the control of the Government of India Quick Facts about Article 12 Facts about Article 12 UNIT II What is Article 12 of the It defines the term ‘State’ which is used in Part-III of the Constitution? Constitution while mentioning the application of the provisions of Fundamental Rights of the Indian Citizen. Is Article 12 a Fundamental Article 12 in itself is not a Fundamental Right technically, but Right? it defines the term ‘State’ for the Fundamental Rights that are entailed in Articles 14 to 35. Is judiciary a State under There is no explicit mention of judiciary (Supreme Courts, Article 12? High Court, or Lower Courts) as a ‘State’ in Article 12. UNIT III However, judiciary cannot make rules that are in itself violative of Fundamental Rights. III. What is Government? Black’s Law dictionary defines ‘Government’ as “the structure of principles and rules determining how a state or organization is regulated.” What is the difference between State and Government? UNIT IV Some of the main differences between state and government are as follows: STATE GOVERNMENT A State has four essential elements— Government is only one element of the State. Population, Territory, Government and Sovereignty. Sovereignty is the hallmark of the State. It The government exercises power on behalf of the belongs to the State. State. UNIT V The State has sovereign ownership and The government has the responsibility to preserve, jurisdiction over its territory. State is a protect and defend the territory of the State. territorial entity and territory belongs to it. 4 www.cbseacademic.nic.in  TEXTBOOK OF LEGAL STUDIES XI-2022-2023 IV. Emergence of the State from Society The State is usually described as ‘society politically organized’. Society is an association of human beings, who live a collective life and form social relations to fulfil their needs of life. These may be UNIT I physical, emotional, intellectual or spiritual. The presence of the societal institutions like family, clans, tribes, villages, religious institutions, educational institutions, work place associations etc. in a society is a fact, which cannot be denied. Society is the whole web of social relationship based on kinship, affinity, language affinity, religious affinity, common conscience of individuals and territorial affinity. Social relationships are governed by necessity, custom, courtesy, morality, mutual understanding, agreement or even contract. When a society is governed by common set of laws, rules, regulations, and obey a supreme authority, it qualifies for being a State. The State fulfils the need of political organization of society to realize the purpose of collective living. This is what we understand from the famous phrases used by Aristotle (384-322 BCE) in his treatise Politics, where he observed that ‘Man is a social animal; Man is a political animal’. UNIT II Thus, the State is formed out of society. The society is the primary association. A State is formed to regulate the political activity of individuals for social order. The State depends on society for its existence, and not vice versa. R.M. MacIver (1882-1970) in his famous work ‘The Modern State’ has thus observed, ‘There are social forms like the family or church or the club, which owe neither their origin nor their inspiration to the state; and social forces, like custom or competition, which the state may protect or modify, but certainly does not create; and social motives like friendship or jealousy, which establishes relationships too intimate and personal to be controlled by the great engine of the state………. The State in a word regulates the outstanding external relationships of men in society’. UNIT III V. Definition of State According to J. W. Garner, ‘state is a community of persons more or less numerous, permanently occupying a definite portion of territory, independent or nearly so, of external control and possessing an organised Government to which the great body of inhabitants render habitual obedience’. The definition given by Garner contains all the elements of the state. The state must possess four elements, namely, population, territory, government and sovereignty. VI. Theories on the origin of State UNIT IV Political philosophers have given different theories on the origin of the state. Theory of Kinship The theory of kinship on the origin of State is based on sociological facts. The earliest advocate of this theory is Aristotle (384-322 BCE). In his treatise, ‘Politics’ Aristotle states, ‘Society of many families is called a village and a village is most naturally composed of the descendants of one family, the children and the children’s children…, for every family is governed by the elder, as are the branches thereof, on account of their relation, there unto…. and when many villages so entirely join themselves together as in every respect to form but one society, that society is state and contains in itself that UNIT V perfection of government’. In other words, family was the unit of society at the beginning. The blood relationship and kinship brought the members of the family together and they all accepted the authority of the head of the family. The name of the common ancestor was the symbol of kinship. Kinship created society and www.cbseacademic.nic.in 5  TEXTBOOK OF LEGAL STUDIES XI-2022-2023 society in turn created the State. With the expansion of family arose new families and multiplication of families led to the formation of clans. With the expansion of clans, tribes came into existence and ultimately the state came into existence. Family, discipline, command and obedience are supposed to represent the origin of government. This view finds support from the writings of R.M. MacIver (1882- UNIT I 1970) according to which curbs and controls that constitute the essence of government is first seen in the family. There is a difference of opinion among the scholars regarding the nature of kinship. Patriarchal Theory According to Patriarchal Theory, in the origin and development of State, the eldest male descendant of the family had an important role to play. The Patriarchal theory finds its support from Sir Henry Maine (1822-1888). In his book ‘The Spirit of Laws’ (1861), Maine explained that the state developed out of the family as legitimate legal system developed out of the unrestrained autocracy of the family head (patria potestas). Under patria potestas, the eldest male parent of the family had the final and UNIT II unqualified authority over the family and the household. He expanded the family ties by polygamy and thus created the bondage among the individuals on the basis of kinship to form a state. The congregation of families formed villages, and extension of villages formed tribes or a clan, ultimately to form State. Matriarchal Theory Matriarchal Theory finds support from political thinkers like McLennan (1827-1881), and Edward Jenks (1861-1939). According to them, patriarchal families were non-existent in the primitive ages. Polyandry (where a woman had many husbands) was the highest authority of the household. UNIT III McLennan described mater familias (mother as the head of family) as the martia potestas (mother as the final authority) in matters of possession and disposal of property of the family. Edward Jenks illustrates this process from his studies of primitive tribes in Australia. The Australian tribes were organized in some sort of tribes known as totem group. The totem groups were not organized on the basis of blood relationship but they were united by a common symbol like a tree or an animal. Men of one totem group would marry all the women of their generation belonging to another totem group. Thus, the system of marriage included polygamy as also polyandry. Kinship and paternity in such cases could not be determined but maternity was a fact. Edward Jenks points out that with UNIT IV the passage of time and beginning of pastoral stage in human civilization, the matriarchal society evolved into the patriarchal one. Patriarchal and matriarchal theories have been criticized on the ground that the authority of a state as a political institution over its individuals is not by nature but by the choice of individuals. The purpose of forming a state also The Minangkabau is the largest matriarchal society in the world. They differs to a great extent from that of are the indigenous tribe of the Sumatra region of Indonesia which UNIT V a family. The authority to run a state is made up of 4.2 million members. Ownership of land, as well as is conferred on the ruler not because the family name, is passed from mother to daughter whereas men are of his seniority, but on account of his involved in political matters. status and competence. 6 www.cbseacademic.nic.in  TEXTBOOK OF LEGAL STUDIES XI-2022-2023 Divine Theory According to the Divine Theory, state is established and governed by God or some super human power or the King as his agent and the religious scriptures. As God created the animals, plants, trees, UNIT I rivers, hills and other inanimate objects, the God also created the state for a particular end in view, that is, peace, protection and preservation of creatures on this earth. This theory found support from political thinkers such as James I (1566-1625) and Sir Robert Filmer (1588-1653). This theory implies individuals to obey and support some definite ruler with a high moral status equivalent to God. This theory adds moral character to state functions. Laws backed by religious sanctions appealed more to the primitive man to live under the authority of the king. Hindus, Christians, Muslims, Jews, and many other faiths of this world hold a similar view, that the origin of political authority had divine sanction. Hinduism considered King Rama and King Krishna as divine incarnations on this world. The Islamic states also seek to uphold the reign of God (Allah) on earth. Christianity also traced the origin of political theory to the will of God. UNIT II Social Contract Theory The Social Contract Theory traces the existence of the State to the mutual agreement and mutual consent of the people, to form a State. Thomas Hobbes and John Locke, both from England, and Jeans Jacques Rousseau from France, are the three political philosophers who propounded this theory. They assumed that, to escape from the pre-political condition of society, individuals entered into a social contract. These theories served as the basis for modern democracy. This theory established the obedience to political authority and that ultimate political authority rested with the consent of the people. The pre-political condition of mankind was described as the state of nature. UNIT III Thomas Hobbes (1588-1679), an English political philosopher, in his literary work Leviathan explains the origin of the state. He explains that prior to the emergence of a civil state, human beings were in the state of nature. Hobbes began his thesis with the concept of a state of nature,which he characterised as the pre-social phase of human nature. Their lives were under constant struggle with UNIT IV nature. The state of nature was a condition of unmitigated selfishness https://www.politicalscienceview.com/the-theory-of-social-contract/ and capacity. It was a condition of perpetual war ‘where every man was enemy to every other man’. The life of a human being was ‘solitary, poor, nasty, brutish and short’. To evade the state of nature, and for securing their natural rights of life, liberty and property as civil rights, individuals entered into a social contract to establish a state. The people authorized their right of governing themselves to the sovereign, which came into being as a result of the contract. The person or assembly of persons to whom the rights were surrendered became the sovereign and the individuals who agreed to submit to the authority become subjects. Sovereign here meant the King. UNIT V The ruler was not a party to the contract, and was not bound by any terms of social contract and free to rule as per his whims. The commands of the sovereign were laws for the governed and the sovereign was not accountable to people. People gave their ruler unquestioned obedience. In the words of R.G Gettle, Hobbes created the all powerful sovereign on account of his belief that without such sovereign power, law, order, peace and security could not be maintained in society. www.cbseacademic.nic.in 7  TEXTBOOK OF LEGAL STUDIES XI-2022-2023 Hobbes deprived the people of their right to revolt against the sovereign. Hobbes allowed individuals to disobey the commands only when the sovereign deprived them of their right to self-preservation or the ruler got conquered and submitted authority to a new emperor. UNIT I According to Hobbes, a change in the government meant the dissolution of the State. Thus, he did not maintain the difference between state and government as a political institution. John Locke (1632-1704) in his book ‘Two Treatises of Government’ explained that the state of nature was not a state of war, but a state of peace, natural rights, preservation, goodwill and mutual assistance. UNIT II Locke’s state of nature was pre-political. The people were social and had rights and liberties. The state of nature ensured three rights to individuals relating to life, liberty and property. The state of nature was one of inconvenience. Life was inconvenient because each individual had to interpret the law of nature for himself and had also to enforce it without the help of any other authority. The state of nature did not have the machinery to enforce the natural rights of individuals. To preserve such state of affairs two contracts were made: social and governmental. Social contract led to the formation of civil society and governmental contract to the establishment of government. Social contract was among the individuals to surrender their natural rights in exchange of civil rights. Governmental contract was between the individuals and the ruler, to establish a system of law and justice in the form of a State. The ruler was the party to the contract and was bound by UNIT III its terms. Unlike Hobbes, Locke traces the source of government’s authority to the consent of the community. Locke introduced the concept of limited government, in terms of the rulers, their powers, functions and tenure. He believed in limited monarchy. The King was the trustee of the people. If the ruler abused his powers and breached the popular trust, he may be changed by revolt by the people. According to Jean Jaques Rousseau (1712-1778) ‘the general will of the people’ led to the creation of the institution called the State. Rousseau in his literary work, ‘The Social Contract’ described the state of nature as a state of bliss and happiness. With the passage of time, increase in population and disparity of wealth and power, life became intolerable. Simplicity and happiness disappeared. UNIT IV Human beings then started to build their relations on cooperation and dependency. They entered into a ‘social contract’ to preserve their natural rights without submitting or subordinating to any ruler or authority. Individuals surrendered their rights to the general will of which individuals themselves were part, and hence they shared rights even after transferring them. Individuals were governed by a new authority in the name of general will (common good) of the people, in the form of direct democracy. Rousseau regarded general will of the people as sovereign. The common good depends on the UNIT V prevailing circumstances of a society. According to Rousseau, the government is merely the tool to execute the popular will. Thus, popular sovereignty is in continuous 8 www.cbseacademic.nic.in  TEXTBOOK OF LEGAL STUDIES XI-2022-2023 exercise and there is no scope of revolt in his theory. This theory is criticized on certain common counts. First, the individuals who were naive to the concept of political authority and civil rights could not, from any particular point of time, enter UNIT I into an agreement and start living a collectivized civil life. Second, if the existence of state is based on agreement of the members of a society, then the old agreement may be revoked for new in accordance with the self-interests of the members. Thus, a mechanically originated state will run under the constant fear of destabilization. VII. Elements of a State A. Population The state is a human association constituted by the people living there. Population is an essential element of a state. It is the people who make a state, without them there can be no state. The UNIT II people are the ones who create the state. They also maintain the resources, live on the land, and form the Government. The population must be large enough to make a state and sustain it. Plato (429-347 B.C.E) in his book ‘The Laws’ suggested a figure of 5040 citizens for constituting an ideal State. Aristotle (384-322 BCE) states that the population of a state should neither be so large that administration may be inconvenient nor so small that people may not lead a life of peace and security. Stephen Leacock (1869-1944), an English political writer had stated that the population must be sufficient in number to maintain a state organization, and that it ought not to be greater than the territorial area and resources that the state is capable of supporting. UNIT III On the nature of population, it may be homogeneous or heterogeneous in respect of race, religion, language or culture. Countries such as India, United States of America, and Canada have population marked with such diversity. People’s Republic of China has a population of more than 1400 million people, whereas the smallest state in the world Vatican has a population of only 821 people. B. Territory A state is a territorial institution. The fixed territory and population of a state gives it a physical identity in the eyes of municipal law and international law. UNIT IV The functions of a state, as a political and legal community of human beings, must first of all be exercised in a given territory. Territory is a geographical area that is owned and controlled by a government or country to exercise state sovereignty. Aristotle (384-322 BCE) favoured the State having moderate size. Montesquieu (1689-1775) said that there is a necessary connection between the size of the state and the form of government best suited to it. The fact is that the states of the world vary in terms of demographic strength. San Marino has an area of 36 sq. miles, whereas the United States of America has a territory of 37,38,395 square miles. Territory is therefore generally described as land which belongs to the state and individuals, internal waters and territorial sea (straits) which state claims for sovereignty and the airspace above this territory (land, bodies of water, atmosphere and natural resources). Resources such as UNIT V agriculture, livestock, minerals, oil, natural gas and forestry can be found on land. Territories constitute the physical basis of the state. Nomads and gypsies can have no state because they lead a wandering life. It is important that a state should possess an undisputed territory of its own over which it should have exclusive jurisdiction. Furthermore, it should have territorial contiguity, i.e., geographically it should be one composite whole. A fixed territory is www.cbseacademic.nic.in 9  TEXTBOOK OF LEGAL STUDIES XI-2022-2023 not essential to the existence of a state provided that there is an acceptable degree of what is characterized as ‘consistency’ in the nature of the territory in question, and of its population. In fact all modern states are contained within territorial limits. UNIT I In brief, a territory does not need to possess geographical unity, and it may even consist of territorial areas which lack connection, or are distant from one another. For instance, islands or other territories which are part of the mainland still constitute of territory of a state. C. Government Government is the political and administrative organ of a State. The state operates through its government. The state consists of all its citizens, and is a broader concept. The Government is the sum total of legislative, executive, and judicial activities of a state. It also includes internal bodies, sub-state governing authorities at the local and regional levels, such as the Municipal Corporations, Municipal Councils, Panchayats and Gram Sabhas in India. The government of a state makes provisions for the services of defence, foreign relations, levy of taxes, issue of UNIT II currency, building of roads, bridges, transportation, communication, water supply, electricity, health education and other types of social and physical infrastructure. The government of a state shall be so organized that it enforces law to maintain order, peace and security. As the role of a state changes, so does the form of government. D. Sovereignty Sovereignty is the crucial factor that distinguishes the state from other associations. Without Sovereign there can be no state in the technical sense of the term. Sovereignty is the most essential ingredient and characteristic in the formation of the state. No state can exist without internal and external sovereignty. Internal sovereignty means that the people residing within the UNIT III territory of the state give their unqualified obedience and support to the authority of the state, and further that the state is supreme in all its internal matters. It is by virtue of its sovereignty that the state makes its laws and decisions and issue commands which are binding on all citizens. The right to use legitimate coercion in its own right is exclusive to a state. Internal revolts or external aggressions may disturb a state, but the state continues to exist so long as it has legitimate sovereignty. External sovereignty is understood as the freedom of state from external control and influence. The state should be treated at par with other states and should not be assigned any inferior position. The state should be free to enact its own laws as well as foreign policy without any external pressure. Presently ‘international recognition’ is also considered as an essential element of the state. That UNIT IV implies the recognition of the sovereignty of the state over a given territory and population by other states. VIII. Role of a State Political thinkers have different opinion regarding the role of the state. In the words of Professor MacIver, “the state has no finality, can have no perfected form. The state is an instrument of social man.” To many scholars the functions of the state are also different. Some consider state as a moral and ethical institution whereas others consider it as an evil institution. MacIver has referred to different notions of the state such as class organization, legal institution, mutual insurance agency, unnecessary UNIT V evil, necessary evil, the march of God on earth, welfare system, power system, state as an organism etc. Andrew Heywood, an English political writer in his book Politics, classifies the role of the state based on the functions or responsibilities that are fulfilled by the state and the ones that are left to private individuals. It will be instructive to examine the following classifications: 10 www.cbseacademic.nic.in  TEXTBOOK OF LEGAL STUDIES XI-2022-2023 A. Minimal States The ideal of minimal states is a contribution of classical liberals. Names of political thinkers such as John Locke, Jeremy Bentham, J. S. Mill, Herbert Spencer, Robert Nozick, Friedrich Von UNIT I Hayek and Milton Friedman are generally associated with this approach. The idea is to ensure the widest possible individual liberty. People who ascribe a minimal role to the state believe that a laissez-faire (‘let it be’ or ‘leave it alone’) approach to the economy is most likely to lead to economic prosperity. States’ role is to protect individuals from interference in their liberty and that transactions between private individuals are voluntary and free. According to John Locke’s theory, ‘state acts as a night watchman’ whose services are called upon when orderly existence is threatened. The state must exercise the basic role of providing protection from external attacks, enforcing agreements and maintaining domestic order. Minimal states play a minimum role in interfering with the social and economic life of the subjects. B. Developmental States UNIT II A developmental state is characterized by having strong state intervention, as well as extensive regulation and planning. The term ‘developmental state’ describes the states’ essential role in harnessing national resources and directing incentives through a distinctive policy-making process. The first person to seriously conceptualize the developmental state was Chalmers Johnson (1931-2010). Johnson defined the developmental state as a state that is focused on economic development and takes necessary policy measures to accomplish that objective. C. Social Democratic States Social democratic states are the ideal type of states viewed by modern liberals and democratic UNIT III socialists. The state functions on the principle of fairness, equality and equal distribution of wealth to achieve social, political and economic justice, equality and empowerment of its people. The state is considered necessary to promote economic growth and social well-being of its people. D. Collectivized States They undertake the control of economic life, by bringing common ownership of all economic resources under their own control for the welfare of all. The state makes laws to control the private property of their citizens. People’s Republic of China follows such a policy. The state takes care of the economic needs of its citizens i.e. provides food, shelter, employment and the citizens must not act against the government policies. UNIT IV E. Totalitarian States Philosophers like Hegel and dictators such as Hitler and Mussolini held that the state must have absolute powers and individuals have no right against the state. According to this view, the state can do no wrong. The whole life of an individual is within the jurisdiction of the state. F. Modern Welfare State Irrespective of the classification, functions of a modern welfare state include the maintenance of law and order, establishment of justice, defence, public security and foreign relations, maintenance of public health and sanitation, water supply, transport and communication system, UNIT V supply of power, electricity and essential commodities,control of banking, currency and inflation, preservation of forests, checking of trading and control of prices and measurements etc. Other functions include the removal of social exploitation and establishment of social unity, provision of economic and other benefits to weaker sections, social security to old age people, widows, orphans and disabled,protection of workers by regulating minimum wages, pension, education www.cbseacademic.nic.in 11  TEXTBOOK OF LEGAL STUDIES XI-2022-2023 of the masses,encouragement of art and literature, scientific and technological research and cultural exchanges to increase the spirit of cultural unity and harmony among the masses. UNIT I IX. Exercises Based on your understanding, answer the following questions: Q-1 Write short notes on the following- 1. Patriarchal Theory 2. Developmental States 3. Social Contract Theory 4. Totalitarian States 5. Article 12 of the Constitution of India UNIT II Q-2 Write one point of difference between the following- 1. Internal and External Sovereignty 2. Matriarchal and Patriarchal theory of State 3. Minimal and Collectivised State 4. Social Contract theory by Hobbes and Locke 5. State and Government Q-3 Answer the following questions briefly- 1. List down the various theories on the origin of State. 2. Briefly explain the elements of a State. UNIT III 3. What are the various states on the basis of its role? Q-4 Answer the following questions in about 200 words 1. Explain the comparative views on social contract theory. 2. Define State. 3. Explain the emergence of State. Q-5 Hobbes stated ‘Man is born free, everywhere he is in chains’. In light of this statement, in which type of state would a man be chained the most and why? Give an example of such a State. If given a choice of residence, in which type of state would you like to reside? Give reasons. UNIT IV Q-6 Patria, a locatable place on the world map, having a considerable territory under its control, consisted of a population of 1 million people. It was ruled by Col. George, however, the place did not gain any international political recognition as one of the major elements was missing. Identify and explain all the elements of state. Q-7 How has the concept of state been defined in the Constitution of India? Why do you think it has been included in Part III of the Constitution? Q-8 How would you differentiate between India as a state and the various states of India? Q-9 Imagine yourself living in a state of nature. Which aspects of your life would you want to give up and what would you expect in return? What kind of social contract would you enter into and with whom? UNIT V 12 www.cbseacademic.nic.in  TEXTBOOK OF LEGAL STUDIES XI-2022-2023 CHAPTER UNIT I 2 Forms and Organs of Government Contents I. Introduction to the Organs of Government II. Forms of Government UNIT II A. Monarchy B. Aristocracy C. Dictatorship D. Democracy III. Main Organs of Government and its Functions A. General Functions of Legislature as Organ of Government B. General Functions of Executive as Organ of Government UNIT III C. General Functions of Judiciary as Organ of Government IV. Exercises Learning Outcomes Students will be able to: Construct the political system which forms the foundation of our legal system Describe all forms of government seen globally with relevant examples Differentiate between all forms of government UNIT IV Recall organisation of legislature globally and their advantages Identify the organs of government Explain the functions of legislature Enumerate the functions of executive and link it to modern welfare state Explain the functions of judiciary Evaluate the overlap in functions of all organs UNIT V www.cbseacademic.nic.in 13  TEXTBOOK OF LEGAL STUDIES XI-2022-2023 I. Introduction to the Organs of Government In the preceding chapter, we discussed ‘Government’ as an essential element of the ‘State’. Government can be said to be a set of institutions that exercises control through legal devices and imposes penalties UNIT I on those who break the law. A government normally functions by distributing its functions between its organs with each organ performing some specific functions. It primarily performs three functions: making the laws, enforcing the laws and adjudicating disputes. These three essential functions are termed legislative, executive and judicial functions. A government achieves the purpose of a state through the performance of the above functions. These functions constitute the minimal requirements of any form of government. The legislature makes laws, the executive implements them and the judiciary interprets laws and adjudicates disputes. This system of distribution of powers among the three organs of a government is called ‘Separation of Powers’. II. Forms of Government UNIT II A. Monarchy Monarchy is the oldest form of government. The state machinery worked according to the commands and rule of the monarch. Monarchy is thus a form of political regime in which the supreme and final authority is in the hands of a single person wearing a crown, irrespective of whether his office is hereditary or elective. It is the will of one person which ultimately prevails in all matters of governance. J.W. Garner (1871-1938) stated “In its widest sense, any government in which the supreme and final authority is in the hands of a single person is a monarchy, without regard to the source of UNIT III his election or the nature and duration of his tenure. In this sense, it is immaterial whether his office is conferred by election (by parliament or people) or is derived by hereditary succession, or whether he bears the title of emperor, king, czar, president or dictator. It is the fact that the will of one man ultimately prevails in all matters of government which gives it the character of monarchy.” With the development of Republican and Democratic forms of government, monarchial form of government declined. In some cases, as in the United Kingdom, monarchs are merely retained as the ‘ceremonial’ or ‘nominal’ heads of government, devoid of key political powers. As observed by C.C Rodee, “Constitutional monarchs are loved and respected by their people as the symbols of unity of the nation or empire, but are devoid of political power.” UNIT IV UNIT V 14 www.cbseacademic.nic.in  TEXTBOOK OF LEGAL STUDIES XI-2022-2023 B. Aristocracy The word ‘Aristocracy’ originates from the greek word ‘aristo’ which means ‘the best’ and another greek word, ‘kratein’, which means ‘to rule’. In aristocratic form of government, political power UNIT I of the state is vested in the hands of a few people. It is a form of government in which relatively small proportion of people determine the policies of the government. It can be a combination of priests, soldiers, professionals, landowners or men of wealth. As defined by Garner, Aristocracy is the form of Government “in which relatively a small portion of citizens have a voice in choosing public officials and in determining public policies.” Those few people are chosen from among the people of the state on varied basis, such as wealth (land owning class), education (nobles), religious positions (priestly class), family, succession, physical force etc. The ruler is considered as a class separate and superior from the ruled. UNIT II UNIT III C. Dictatorship In the words of Alfred Cobban (1901-1968), “It is the government of one man who has not obtained the position by inheritance, but either by force or consent or a combination of both. He possesses absolute sovereignty, that is all the political power emanates from his will and it is unlimited in scope. It is also exercised in an arbitrary manner by decree rather than by law. The authority of the dictator is not limited in duration, is not subject to any other authority, for such a restriction would be inconsistent with his absolute rule”. Dictatorial form of Government is the rule by a single person or a determined set of individuals. He controls and exercises the political powers of the state. He occupies the position by force, invasion, intervention and militarism, in contrast to a monarch. His dictates are law of the UNIT IV country. He implements them and adjudges according to his will. He holds the absolute power. He is not accountable or answerable to the citizens of the state. Modern Dictatorship plays the role of totalitarian states. D. Democracy Pericles (495-429 B.C.) the Greek leader defined democracy as a form of Government in which people are powerful. Bryce defined democratic form of government as one where the ruling power of the state was vested not in a particular class or classes but in the community as a whole. Democratic form of Government is the most popular form in the modern civilized states. UNIT V The word, ‘democratic’ originated from the Greek word ‘Demos’ meaning people and ‘Kratia’ meaning rule, i.e. rule by a popular vote. Abraham Lincoln (1809-1865), a former President of the U.S., in his speech at Gettysburg defined democracy as a ‘government of the people, by the people and for the people’. www.cbseacademic.nic.in 15  TEXTBOOK OF LEGAL STUDIES XI-2022-2023 ‘Government of the people’ implies equal distribution of political powers and influence among the citizens of the state, ‘government by the people’ implies participation of all citizens in forming a government, ‘government for the people’ implies the rule of government for the promotion of public welfare. UNIT I Democracy exists in two major forms: Direct or pure democracy and indirect or representative democracy. As defined by Garner, ‘A pure democracy so called is one in which will of the state is formulated or expressed directly and immediately through the people in mass meeting or primary assembly, rather than through the medium of delegates or representatives chosen to act for them’. The political power is in the hand of the citizens of the state as a whole to enact legislations, to administer regulations and the citizens, by common vote, elect their public officers. This is referred to as initiative, plebiscite or referendum. This form of democracy operated in Greek city state, Athens during 4th and 5th century BC and in Rome during the early stages of the Roman polity, as an ideal system of popular participation. This form of democracy is not possible in the states having large population and territory. In UNIT II contemporary times, this form of democracy is prevalent in the provinces of Switzerland. The voters meet in open air Parliament known as Federal Assembly, to deliberate upon and decide public affairs by way of Initiative, where a specified number of voters prepare a bill for acceptance or approval by legislature or general public. If approved it becomes law. Referendum is where the bill passed by the legislature is forwarded to the voters for final ratification. The term plebiscite is used where an important issue could not be decided by the government, and is decided by the votes of people. Voters recall their elected representatives when they are not satisfied by their conduct. The other form is Representative or Indirect Democracy, on the basis of universal suffrage. In UNIT III this form, citizens of the country elect their representatives on the basis of popular votes. The will of the state is formulated and expressed through the representatives. The representatives form a law making and law-executing agency for a fixed term. On the matters of governance, the representatives are accountable and answerable to the public in general. As observed by Garner, ‘this kind of democracy resembles its pure form in the sense that political power remains vested in the people, but the two differ in respect to their exercise’. Thus all the citizens of the state have equal opportunity of participation in the political affairs of the state in contrast to monarchy or dictatorial form of Government. The political power remains in the hands of people. UNIT IV UNIT V 16 www.cbseacademic.nic.in  TEXTBOOK OF LEGAL STUDIES XI-2022-2023 Presidential and Parliamentary form of Government In Parliamentary system the legislature and the executive are related to each other, by way of membership in the two bodies and their accountability. This form of government is well prevalent UNIT I in India and United Kingdom. The executive body, while implementing laws and discharging its responsibilities like health, education, food and public distribution, defence, police services etc., is responsible to the legislature. As stated by Professor M.P. Jain, “A notable principle underlying the working of parliamentary government is the principle of collective responsibility which represents ministerial accountability to the legislature. The principle of collective responsibility means that the Council of Ministers works as a team, as a unit and is responsible as a body for the general conduct of the affairs of the government. All the Ministers stand or fall together in Parliament, and the government is carried on as a unity.” This form of Government is also termed as Cabinet Government by Sir Ivor Jennings (1903-1965), an English lawyer and academician, and Prime Ministerial Government by Richard Crossman (1907- UNIT II 1974), an English author and politician. In the Presidential system, executive branch of the government is independent of the legislature for its tenure and actions. In the words of Garner, “Presidential government is that form in which the chief executive is independent of the legislature as to his tenure and, to a large extent, as to his policies and acts. In this system the nominal head of the state is also the real executive.” This form of government is prevalent in United States of America and Argentina. The President is elected by the people, whether directly or indirectly, for a fixed period unless removed on impeachment by the legislature on the grounds stated in the Constitution of the country. This system works on the principle of ‘separation of powers’ and ‘checks and balances’. UNIT III Unitary and Federal form of Government The Unitary form of Government is one where the whole state with all its units and provinces is organized under a single central Government. The local/provincial Governments are created by the central Government as its subordinates for better administration. The central Government delegates powers and authority to the local/ provincial Government. As remarked by Garner, “Where the whole power of Government is conferred by the constitution upon a single central organ or organs from which the local governments derive whatever authority or autonomy they may possess, and indeed their very existence, we have a system of unitary government. It is the characteristic of this form of government that there is no constitutional division or distribution of powers between central UNIT IV government of the state and subordinate local governments.” As remarked by Garner, “Federal Government as distinguished from a unitary government is a system in which a totality of governmental power is divided or distributed by the national Constitution or the organic act of Parliament creating it, between a central Government and the governments of individual states or other territorial sub divisions of which the federation is composed. Local/ provincial Government is considered as part of central Government with full autonomy.” As listed in the Seventh Schedule of the Constitution of India, the matters concerning national importance like international relations, war and peace, atomic energy, etc. are dealt with by the Central Government. The matters of regional and local importance listed in the state list can be legislated by the state UNIT V governments. There are matters on which both the Central and State governments are authorized to make laws which are included in the Concurrent list. Constitution of India despite having adopted federal features does not claim to establish India into a federation of states. In the words of K.C. Wheare, India’s system of Government is federal in character and unitary in spirit. During recent periods, the governments of most States have combined different forms stated above. www.cbseacademic.nic.in 17  TEXTBOOK OF LEGAL STUDIES XI-2022-2023 For instance the British Government combines Monarchy, Democracy, and Parliamentary forms. India is a Democratic Republic with Parliamentary form of government with Unitary and Federal features. UNIT I Composition of the Legislature UNIT II Legislature may be organized as Bicameral or Unicameral Legislature. In a Bicameral System, there UNIT III are two houses or chambers. Indian Parliament is a bicameral legislature, its houses being the House of People (Lok Sabha) and Council of States (Rajya Sabha). In the States of the Indian Union, the legislature consists of the Vidhan Sabha (lower house) and Vidhan Parishad (upper house). However, certain states have only one house. The House of People (Lok Sabha) consists of the representatives of citizens of the entire country living in states and union territories. Council of States (Rajya Sabha) consists of the representatives elected by the Legislative Assemblies of the states, and other nominated members from the field of art, culture, academics, sports, literature science and social service. The purposes and functions of the second chamber are to check hasty and ill-considered pieces of legislations, with the sober advice of experts and eminent persons. Thus, it becomes possible to examine issues from different standpoints, and to safeguard the interests of states in a federal system. UNIT IV Unicameral legislature implies one legislative house. This system of legislature is seen in Turkey, which is known by the name of Grand National Assembly of Turkey; in Bangladesh by the name of House of Nation, etc. This system is supported by the reason that the legislative body representing people’s interest must be one, failing which delays and conflicts may arise in the enactment of legislation. India has 28 States and 8 Union Territories. There are 24 states which have a unicameral structure. The list of these states are given below: 1. Arunachal Pradesh 2. Assam UNIT V 3. Chhattisgarh 4. Delhi 5. Goa 6. Gujarat 18 www.cbseacademic.nic.in  TEXTBOOK OF LEGAL STUDIES XI-2022-2023 7. Haryana 8. Himachal Pradesh UNIT I 9. Jharkhand 10. Kerala 11. Madhya Pradesh 12. Manipur 13. Meghalaya 14. Mizoram 15. Nagaland 16. Odisha 17. Puducherry UNIT II 18. Punjab 19. Rajasthan 20. Sikkim 21. Tamil Nadu 22. Tripura 23. Uttarakhand 24. West Bengal UNIT III The names of the six states having bicameral legislature are: 1. Andhra Pradesh 2. Bihar 3. Karnataka 4. Maharashtra 5. Telangana 6. Uttar Pradesh Difference between Unicameral Legislature and Bicameral Legislature UNIT IV Difference Unicameral Bicameral Number of House One Two Sharing of Power Concentrated in one house Shared between two houses Decision-Making Flexible and efficient as bills Time-Consuming as both are introduced and passed in the houses have to pass the only a single house bill hence, their approval is a UNIT V tedious task Suitability A unicameral legislature is Bicameral legislature is more best suited to smaller states. suited to larger states www.cbseacademic.nic.in 19  TEXTBOOK OF LEGAL STUDIES XI-2022-2023 III. Main Organs of Government and its Functions Let us now try to learn about the three main organs of government (the legislature, the executive and the judiciary), their functions and various related provisions. Here we also try to explain the UNIT I relationship between various organs of a government. A. General Functions of Legislature as Organ of Government Parliament, Assembly and Congress are the synonyms used for the term ‘Legislature’ in various countries. The word ‘Parliament’ is derived from the French word ‘parler’. Parliament means meeting for discussion. The following are some functions of this organ: 1. Expressing and formulating the will of the state and enactment of laws The legislature formulates and expresses the ‘will of the state’. The ‘will of state’ in a representative democracy is the will, opinion and sentiments of its citizens and the public issues concerning them. In a monarchy or dictatorial Government, the ‘will of the state’ is the interest and objectives UNIT II of its ruler. Laws when enacted are called ‘Acts’. These Acts are the direct source of law to control and regulate the institutions running in a state and society. All legislations are enacted for the achievement of certain objectives and purposes. For example, the Indian legislature enacted the Consumer Protection Act, 1986 with the purpose of protecting the interest of consumers and the speedy settlement of their disputes. 2. Ensuring accountability of the executive Article 75(3) of the Constitution of India states that the Council of Ministers shall be collectively responsible to the House of the People. Parliament exercises check and ensures executive and UNIT III administrative accountability through its control over finances. Parliament assesses governmental policies and performance of administration through procedures like questions, calling attention motions etc. Motion of No-Confidence may be moved and passed against the Council of Ministers, in the Lok Sabha. Parliamentary procedure and enactment of laws A Bill is a statute in draft and cannot become law unless it has received the approval of both the Houses of Parliament and assent of the President of India. A Bill can be introduced either by a Minister, when it is called a Government Bill; or a member other than a Minister, when it is known as a ‘Private Member’s Bill’. UNIT IV The legislative procedure for introduction and passing of Bills is laid down in Articles 107 to 108, in the Constitution of India, in the case of ordinary Bills; and in Articles 109-110 in the case of Money Bills. Article 111 provides details of assent to Bills by the President. a. Ordinary Bills may originate in either House of Parliament. b. A Money Bill contains provisions for imposition, abolition, alteration or regulation of any tax, custody of the Consolidated Fund or Contingency Fund of India, payment of money into or withdrawal of money from any such Fund and related matters. However, a Money Bill shall be introduced only in the House of People and not in the Council of States. UNIT V c. Annual Financial Statement is the annual statement of estimated receipts and expenditure of the Government for the ensuing financial year. Article 112 of the Constitution of India states that the President shall cause the statement to be laid before both the Houses of Parliament. The Members of Parliament debate on the provisions of the proposed Bill. Generally, a Bill is passed after three readings. 20 www.cbseacademic.nic.in  TEXTBOOK OF LEGAL STUDIES XI-2022-2023 3. Legislature and its judicial functions The Legislature performs judicial functions while hearing and trying cases of impeachment (removal from office before term). The Constitution of India lays down the procedure for UNIT I impeachment of President and Vice President of India, Judges of the Supreme Court and High Court and the Chief Election Commissioner. It performs judicial function while deciding on the privileges of the Members of the House. 4. Legislature and its Administrative functions In India, the elected members of both Houses of Parliament and elected Members of the Legislative Assemblies of the States form an electoral college to elect the President. The Vice- President is elected by an electoral college comprising of Members of both Houses of Parliament. The members of the Lok Sabha elect two members as the Speaker and Deputy Speaker, while the members of the Rajya Sabha elect the Deputy Chairman of the Rajya Sabha. UNIT II B. General Functions of Executive as Organ of Government Executive is often referred to as the ‘government’ of a state. In a representative democracy, the term ‘Executive’ has a broad meaning. The following are the functions of the executive organ: 1. Internal and External Administration of the State The chief function of the executive is the maintenance of internal and external administration - law and order, financial matters, infrastructure and industrial development, welfare and development of the people (health, education, labour, employment, rural and local development), environment UNIT III and forests, natural resource management, trade and commerce etc., on the internal front and defence, foreign affairs, international relations etc on the external front. 2. Executive and its Legislative functions The executive performs certain legislative functions. Delegated Legislation Delegated legislative functions are performed by the executive. Delegated legislation is an enactment made by an individual or body other than Parliament. By delegating the power to make a legislation to the Executive, the Parliament empowers different people or bodies to integrate more details to an Act of Parliament. Parliament along these lines, through essential UNIT IV enactment (for example an Act of Parliament), authorises the executive to make laws and guidelines through delegated legislation. It frames orders, rules, regulations, ordinances, by-laws, and circulars. They carry equal force of law if framed within the sphere and policy of the parent legislation. Ordinance Under Article 123 of the Constitution of India, the President has the power to promulgate an ordinance during the recess of the Parliament. An ordinance is a law that is promulgated by the President of India only when the Indian parliament is not in session. President promulgates an ordinance on the recommendation of the union cabinet. Using ordinances, immediate legislative UNIT V actions can be taken. However, it must be noted that for an ordinance to exist, it should be approved by the Parliament within six weeks of being introduced. Parliament is required to sit within 6 weeks from when the Ordinance was introduced. www.cbseacademic.nic.in 21  TEXTBOOK OF LEGAL STUDIES XI-2022-2023 3. Executive and its financial functions The executive imposes and collects taxes and incurs expenditure on the various activities of the state. It prepares budget of the financial year, maintains accounts of government departments UNIT I and prepares national policies. It also arranges financial grants from international entities like International Monetary Fund, World Bank etc. 4. Executive and Judicial functions Judicial functions of the executive include power to grant pardon (Presidential), to suspend or lessen the punishment on special grounds or to exchange one form of punishment for another, on the petition of a person convicted of any offence by the court. C. General Functions of Judiciary as Organ of Government 1. To Hear and Decide disputes UNIT II The first and the foremost function of the judiciary is to hear and decide a case, according to the substantive and procedural laws of the land. The role of the judiciary is expanding with the expanding role of the executive. Disputes may arise among citizens of a state, between citizens and state, among the federal units, between the various departments of the executive and in international relations, calling for intervention by the judiciary. Dispute settlement and adjudication require the independent functioning of judiciary, without political influence or interference. Impartial and time-bound justice delivery are essential requirements for the judiciary. 2. Judicial Review UNIT III Judicial review is the power bestowed upon the judiciary by the constitution, by virtue of which the judiciary can examine legislative enactments and executive orders of the governments, be it state or central, and declare them null and void if they contravene the provisions of Constitution. Judiciary and its Jurisdiction Judiciary refers to the set of courts having civil and criminal jurisdiction. With the expansion and diversification of state and its agencies, and expansion of arbitration and conciliation, tribunals and various for a have also become part of the conventional judicial system, such as the Motor Accident Claims Tribunal under Redressal Forums under the Consumer Protection Act, 1986 etc. UNIT IV The judiciary exercises jurisdiction on the basis of territorial limits, pecuniary/financial limits, appealable matters, matters for review and revision. The judiciary consists of Magisterial courts, District and Sub-District Courts at the lower level and the higher judiciary comprising of High Courts and the Supreme Court. Decision given by them is known as ‘judgment’, decree’, ‘order’, or ‘award’. 3. Interpretation of laws Wherever the law is ambiguous (confusing) or not clear or silent or appears to be inconsistent with other laws of the land, the courts after proper analysis determine or interpret the intent, purpose and meaning of the provisions of law. UNIT V 4. Advisor to the President The Supreme Court has special advisory jurisdiction in matters which may specifically be referred to it by the President of India under Article 143 of the Constitution. 22 www.cbseacademic.nic.in  TEXTBOOK OF LEGAL STUDIES XI-2022-2023 5. Role of Judiciary as an activist In India, perhaps the first instance of the activist role of the judiciary was after the Emergency, when the Supreme Court came up with public-interest litigation (PIL), a tool meant to ensure UNIT I justice for the under-privileged and the marginalized. 6. Legislative and executive function of the judiciary The judiciary has been empowered to frame rules and execute them for the smooth functioning of its own administration. This is also done to ensure independence of the judiciary. IV. Exercises Based on your understanding, answer the following questions: Q-1 Provide one point of difference between the following- UNIT II 1. Monarchy and Democracy 2. Parliamentary and Presidential form of government 3. Direct and Indirect democracy 4. Lok Sabha and Rajya Sabha 5. Unicameral and Bi-cameral legislature Q-2 Give an example for the following- 1. A country where unicameral legislature exists 2. A country where presidential form of government prevails UNIT III 3. A country where the monarch enjoys the absolute power 4. A country where direct democracy exists 5. A country where constitutional monarchy exists Q-3 Write brief notes on the following- 1. Money Bill 2. Annual Financial Statement 3. Democracy 4. Unitary form of government 5. Judicial function of executive UNIT IV Q-4 Explain the role of the following organs of Government. 1. Legislature 2. Executive 3. Judiciary Q-5 A country, Amerintina was governed by representatives on behalf of the citizens. Another country, Plicia was governed by the citizens themselves by various methods. Identify the above two forms of government and differentiate between their processes. UNIT V www.cbseacademic.nic.in 23  TEXTBOOK OF LEGAL STUDIES XI-2022-2023 CHAPTER UNIT I 3 Separation of Powers Contents I. Concept of Separation of Powers II. Historical Background and Evolution of Montesquieu’s Doctrine of Separation of Powers UNIT II A. Montesquieu’s Doctrine of Separation of Powers B. Basic Features of the Doctrine Separation of Powers as enunciated by Montesquieu C. Checks and Balances of Power D. Impact of the Doctrine III. Evaluation of the Doctrine of Separation of Powers A. Key Benefits and Advantages of The Doctrine of Separation of Powers B. Defects of the Doctrine UNIT III IV. Separation of Powers in Practice A. Separation of Powers in Britain B. Separation of Powers in the United States of America C. Separation of Powers in India V. Exercises Learning Outcomes UNIT IV After the completion of this chapter, the students will be able to: Define separation of powers Explain historical evolution of the Montesquieu’s doctrine of separation of powers Evaluate Montesquieu’s doctrine of separation of powers- it’s advantages, disadvantages, impact and defects Describe the concept of checks and balances of power Explain the relevance of Montesquieu’s doctrine in governance and comment on its limitations Analyse and compare the application of doctrine of separation of powers in UK, USA and India UNIT V I. Concept of Separation of Powers For the preservation of the political liberty of the individuals and democracy, it becomes necessary in a state to establish special organs for the exercise of powers. The powers of the government are 24 www.cbseacademic.nic.in  TEXTBOOK OF LEGAL STUDIES XI-2022-2023 divided between its organs in accordance with the nature of powers to be exercised. Broadly, the powers of a government in a state have been classified as the power to: i. Enact laws i.e., powers of the Legislature. UNIT I ii. Interpret laws i.e. powers of the Judiciary. iii. Enforce laws i.e. powers of the Executive. The theory of separation of powers in its simplest form implies that all the above functions should be entrusted to three different authorities. The three organs of the government should be kept separate and distinct. One organ should be independent of the control of others. UNIT II Each organ shall exercise its powers within its own sphere. This doctrine entails that each organ shall not encroach upon or interfere with the powers and independence of other organs of government. UNIT III If any organ encroaches into the terrain of the other organ, it shall be checked by another organ of the government. Thus, no new organ is created over and above the existing organs of government, to check encroachment. On the whole, separation of powers requires the existence of a written Constitution to define the formal powers of each organ. The powers shall be so defined and divided to create a system of checks and balances of powers among the organs. This view finds support from the writings of Carl J. Friedrich (1901-1984), a German-American political theorist. In the words of Wade and Phillips (Constitutional Law, 1960), separation of powers may mean three different things: i. The same persons should not form part of more than one of the three organs of the Government UNIT IV ii. One organ of the government should not control or interfere with the exercise of its function by another organ iii. One organ of the government should not exercise the functions of another II. Historical Background and Evolution of Montesquieu’s Doctrine of Separation of Powers A. Montesquieu’s Doctrine of Separation of Powers UNIT V The most original, systematic as well as scientific elaboration of the concept of ‘separation of powers’ has been given by the French philosopher Baron De Montesquieu (1689-1755) in the 18th century. Montesquieu’s theory on ‘separation of powers’ has become the model for governance of all democracies. www.cbseacademic.nic.in 25  TEXTBOOK OF LEGAL STUDIES XI-2022-2023 During his time, he saw the oppressive and despotic rule of French King Louis XIV (1661-1715). The ruler enjoyed the absolute powers of State, and the prevailing dictum was, ‘I am the State’. Liberty of the people was suppressed under the despotic rule of the King and his administrators. UNIT I During his visit to England, Montesquieu experienced the sense of liberty and freedom enjoyed by the citizens of England. He was very impressed with the thoughts of Locke. He compared their system of governance with the system prevailing in his country. He examined the separation of powers of the government, and their exercise by separate organs of the government namely, the King, Parliament and the law courts in the governance structure in England. The doctrine of the separation of powers emerged as a distinct doctrine in his famous book ‘Esprit Des Lois’ (The Spirit of Laws) published in 1748. B. Basic Features of the Doctrine Separation of Powers as Enunciated by Montesquieu UNIT II 1. Montesquieu proposed the theory of separation of powers. He advised that the division of powers UNIT III is necessary in between the legislative, the executive and the judicial system. 2. Different departments must exercise the three powers of the government with their respective personnel. He provided the reason for the division of powers between the three branches of the government as follows: a. When the legislative and executive powers are united in the same persons, there cannot be liberty. It may lead to apprehensions that the monarch may enact tyrannical laws and execute them in a tyrannical manner, as the same agency becomes the maker and executor of laws. b. Where judicial powers are combined with the legislative, the life and liberty of the subjects UNIT IV would be exposed to arbitrary control, as the Judge would be the legislator. c. Where the judicial power is combined with the executive power, the Judge might behave in a violent and oppressive manner. The prosecutor and the Judge would then be the same person and authority. d. If powers are vested in one organ, or exercised without separation, governance would not be effective. 3. It is inherent in any authority to abuse powers unless limitations are imposed on its exercise. 4. For safeguarding the liberty of people, each organ of the Government shall have the obligation UNIT V to act within its own sphere and not beyond it. If the authority acts beyond the permitted limits, it would be checked by the other organs. This means that the executive organ shall exercise some control over legislative and judiciary, the legislative organ over executive and judiciary, and the judiciary over legislative and executive organs. The system of checking the encroachment of powers by each organ and thus balancing the division of powers is termed as the system of ‘checks and balances’. 26 www.cbseacademic.nic.in  TEXTBOOK OF LEGAL STUDIES XI-2022-2023 This kind of overview is the correct meaning of the maximlepouvoirartere le pouvoir which means, power halts power. By separating the functions of the executive, legislature and judiciary, one power may operate as a balance against another and thus have a check on the power UNIT I exercised by another. UNIT II C. Checks and Balances of Power The origin of the concept of check and balances is specifically credited to Montesquieu. This concept provides a system-based regulation that allows one branch to limit another. UNIT III The following chart explains the operation of check and balance mechanism between different organs of the government in the United States. UNIT IV UNIT V D. Impact of the Doctrine Montesquieu advocated the adoption of this doctrine in his own country’s political system. His teachings gave boost to the French Revolution and led to the adoption of the Declaration of Rights in 1789. www.cbseacademic.nic.in 27  TEXTBOOK OF LEGAL STUDIES XI-2022-2023 The Declaration provided that: ‘Every society in which Separation of Powers is not determined has no Constitution. The French Constitution, 1791 made executive, legislative and judiciary independent of one another’. UNIT I James Madison (1751-1836), the 4th President of United States of America wrote in The Federalist that “The accumulation of all powers, legislative, executive, and judiciary, 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”. The doctrine of separation of powers forms the foundation on which the entire structure of the U.S. Constitution 1787 is based. Montesquieu thus became the intellectual father of the American Constitution. III. Evaluation of The Doctrine of Separation of Powers UNIT II The doctrine of separation of powers can be better understood in two forms. First, it implies that concentration of powers in the same person or same body of persons should be avoided. Secondly, it implies division of those powers which essentially and primarily belong to one organ and not the other. Then allied functions can be performed with the coordination of the other organs. Emphasis must be laid on modification of the concentration of powers. The doctrine can be better evaluated after studying its key benefits and defects. A. Key Benefits and Advantages of the Doctrine of Separation of Powers Different personnel, with respective capabilities for different organs, bring efficiency to the performance of functions and administration. This indeed serves the purpose of the State UNIT III and its people. Each organ must do its job to the best of its efficiency, and with due regard to its responsibility. The doctrine of separation of powers, safeguards the liberty and freedom of individuals. The doctrine requires that each organ must act within the sphere of law. Thus, it establishes the government of law rather than of official will. It aims at protecting freedom of individual from the tyrannical rule of absolute monarchy. Montesquieu developed the theory as a means of limiting the absolute powers of the ruler in France. One important aspect of this doctrine is to establish an independent judiciary that is free from administrative discretion. Montesquieu was interested in setting the judicial power as a UNIT IV check on and as arbiter between the other two organs. The system of check and balances within the organs of the government provides stability to the government by protecting the sovereignty of the state. It promotes harmonious exercise of powers and functions within the three organs. B. Defects of the Doctrine Historically speaking, there was no separation of powers under the British Constitution, as construed by Montesquieu. A. V. Dicey had observed that the British constitution had “a weak Separation of Powers”. As remarked by Barnett in Constitutional and Administrative UNIT V Law (2005), “Britain has an uncodified or unwritten Constitution. Much of the British constitution is embodied in written documents, within statutes, court judgments and treaties as the supreme and final sources of law. The statutes of Parliament can change the Constitution by passing new legislations. The Constitution has other unwritten sources, including Parliamentary constitutional conventions”. 28