Chapter 4.1 - Division of Power and Functions of the King

The functions of a government may be divided into three categories, viz. the executive, the legislative, and the judicial. Hence, three organs of government, i.e. legislature, executive and judiciary have come into structure. The function of the legislature is to enact various laws to govern the state. The executive executes the laws and governs the state. The judiciary protects the laws, decides the cases according to law and punishes the offenders. According to the doctrine of separation of powers, these three functions and powers should be kept separate and be exercised by three separate organs of the government. This doctrine was formulated systematically and clearly for the first time by Montesquieu in his book Esprit des Lois (The spirit of the laws) published in the year 1748. He proclaimed that accumulation of the legislative, executive, and judicial powers in the same hand would result in tyranny.^[1] At present, under the political system of India, the executive, the legislative and the judicial power and functions are usually distributed in three distinct but coordinated entities. Thus, the separation of power is in existence. In ancient times, these functions were not delegated into separate bodies.

The Vyavahārādhyāya bears information for the different functions of the king, of which the duties and powers contained in that chapter are of judicial nature. On the other hand, the powers and functions described under rājadharmaprakaraṇa marks affinity with the executive functions in modern sense. It is noteworthy that in practice, either the king did not enjoy legislative power or the legislative power of the king was extremely limited at the time of the composition of the Yājñavalkyasmṛti.

The Smṛti itself lays down the rules and regulations for general applications and the laws governing the conduct of the king himself, as it says-

vyavahārānnṛpaḥ paśyet...dharmaśāstrānusāreṇa…/^[2]

This fact brings out the important difference between the concept of the kingship in India, and the concept of kingship in the western countries.^[3] Moreover, to that extent, the doctrine of separation of the law making (legislative) and law enforcing (executive) powers at the time of the Vyavahārādhyāya seems to be in use, which is long before the doctrine of separation of power emerged formally. The king was the highest executive and the highest judiciary.

In the Vyavahārādhyāya, there is one reference regarding the king made law, which reads as-

dharmo rājakṛtaśca yaḥ/^[4]

Though, the supreme legislative power was vested with the Dharmaśāstras, however, the king might have enjoyed the scope to exercise certain limited legislative activity on the matters, which were not instructed by the Dharmaśāstras. The need of royal instructions, having the effect of laws, must have arisen for the smooth functioning or continuity of every section of the administrative machinery.^[5] Therefore, the Vyavahārādhyāya of the Yājñavalkyasmṛti perhaps suggests the existence of limited law made by the king, which is not mentioned in the Manusmṛti.

Footnotes and references:

[1]:

Takwani, C. K., Lectures on Administrative Law, page32-33

[2]:

Yājñavalkyasmṛti, 2.1

[3]:

Vide, Rama Jois, M., Legal and Constitutional History of India, page13

[4]:

Yājñavalkyasmṛti, 2.186

[5]:

Lingat, R., The Classical Law of India, trans. from the French, with additions by J. Duncan M. Derret,page230