Arushi Anthwal
Maharashtra National Law University, Mumbai
The pigeon hole principle can be understood in the context of a criticism against Montesquieu’s theory of separation of powers in which he creates three pre-determined and fixed branches of the government—the Legislature, the Executive and the Judiciary. This model of three however, is inadequate to meet the developments of the 21st century in which we witness new institutional forms and units of governance emerging which do not categorically fit in any of these three boxes created by Montesquieu.
In order to accommodate these new agencies thriving in the modern state, we require to broaden our framework and create new boxes instead of making deliberate and futile attempts at trying to categorize them under one of these three branches, mostly the executive.
Montesquieu’s holy trinity and states’ obsession with it is blinding us to the fact that as the functions of the modern state expand, new institutions are on a world-wide rise which are essential to governance because the modern state has more than just traditional functions of police and protection. Today the state is also a provider, economic controller, entrepreneur and arbitrator. New roles give rise to new agencies, which are intended to be kept independent so that government influence and concentration of power in few hands can be avoided.
To this extent these agencies do not fit in any of the pre-determined pigeon holes created by Montesquieu. The members of such agencies are not democratically elected like the legislature, do not function under the government so as to be the executive and though they may exercise adjudicatory powers the same are not exercised in a strict judicial set up.
Say for example, a private organization like a cooperative housing society that has the power to influence and regulate people’s actions. How far can they be allowed to regulate public affairs? And in tune with their public dealing, under which branch of the government can they be placed? Such questions cannot be answered by Monstequieu’s theory.
Monstesquieu’s pigeon hole theory fails to create a universal principle as is otherwise propounded. In a parliamentary system for instance the legislature and the executive overlap. In fact, there are many instances where we see judges exercising executive authority (as tribunal heads, heads of legal service authorities, Chief justice of a High Court being the chancellor of the state’s NLU etc.). On the other hand, under the presidential system constant struggle between the legislature and the executive forces the creation of ‘loyalists’ in the bureaucracy.
To understand the crucial failure of the doctrine of separation of powers in the modern context, let us analyze 3 such agencies, which do not fall into any of the classical organs of the State:
- Election Commission—
It is an independent and autonomous body entrusted with the task of preparation of electoral rolls and to conduct the elections in a free and fair manner. It is specifically provided for under the constitution of India under Article 324. This is to ensure that the body is free from any political or executive influence and to guard against any manipulation of vote-count. To ensure its integrity and independence it is often taken to be a separate branch of the government. In T.N. Seshan Chief Election Commissioner of India v. Union of India (1995), the Supreme Court observed that purity of the election process is maintained by an independent EC insulated from external pressures from the party in power or executive of the day. If one was to strictly follow Montesquieu’s theory, the EC would have to fall under the branch of the executive since it’s nature is clearly not legislative or judicial. Such forceful accommodation in a fixed category can have severe repercussions that may hamper the spirit of democracy. Bruce Ackerman[i] has explained such repercussions using the Bush and Gore elections of 2000 as an example. Because the Americans decided to have the executive oversee the elections the executive in Florida engaged in manipulations that called for a long re-count having the results delayed by over a month.
- Central Bank—
In India, The Reserve Bank of India is an autonomous statutory body created by the RBI Act, 1934. The independence of central banks is maintained to ensure that money supply is protected against any short-term political manipulations. The bank does not work as a department of the government and is rather a separate institution with a separate legislature/Board of its own. Its member are usually field experts like economists, bankers etc. who are not elected/nominated by the govt. This ensures objectivity in its decisions for economic stability without considering political windfalls. Hence, the autonomy of the central bank is essential for ensuring stable and sustainable growth in any economy. The executive’s growing influence in appointment or funding can negatively influence the working of the central bank.
- Ombudsman—
It is an office, which inquires allegations of maladministration and corruption against state functionaries. In India, the Lokpal and Lokayukta Act, 2013 provided for the establishment of Lokpal for the Union and Lokayukta for States. These are independent statutory bodies that do not fall under the ambit of the legislature, executive or judiciary and are in fact charged with a duty to keep a check against malpractices of these very branches of the government.
Thus, what appears, as a patent hole in the long praised and appreciated holy trinity of Monetsquieu, requires a closer scrutiny or as Bruce Ackerman puts it, it’s time to bid farewell to a concept that can no longer draw strict compliance.
REFERENCES:
[i] Bruce Ackerman, Good-bye, Montesquieu, Compartitive Administrative law
