developed in ancient India as well, by Kautaliya, although the concepts of a
Dharma, based on the authority of the assemblies of those who were learned
in the dharmashastras, also competed for control over exercise of royal
secular power. High philosophy and religion, however, often seem to have
influenced and affected the actual exercise of sovereign power and such slight
law-making as the King may have attempted. The ideal King, in ancient
India, was conceived of primarily as a Judge deciding cases or giving orders
to meet specific situations in accordance with the Dharma Shastras. It also
appears that the actual exercise of the power to administer justice was often
delegated by the King to his judges in ancient India. Indeed, according to
some, the theory of separation of powers appears to have been carried so far
(See: K.P. Jayaswal in ‘‘Manu and Yajnavalkva’’ – A basic History of Hindu
Law – 1930 Edn. p. 82) that the King could only execute the legal sentence
passed by the Judge.
534. We know that Semetic prophets, as messengers of God, also became
rulers wielding both spiritual and political temporal power and authority
although to Jesus Christ, who never sought temporal power, is ascribed the
saying: ‘‘render unto Caesar the things that are Caesar’s and to God things
that are God’s. According to the theory embodied in this saying, spiritual and
temporal powers and authorities had to operate in different orbits of power
altogether. Another theory however, was that the messenger of God had been
given the sovereign will of God Almighty which governed all matters and
thus could not be departed from by any human authority of ruler In the
practical administration of justice, we are informed, Muslim caliphs
acknowledged and upheld the jurisdiction of their Kazis to give judgment
against them personally. There is an account of how the Caliph Omar, being
a defendant in a claim brought by a jwe for some money borrowed by him for
purposes of State, appeared in person in the Court of his own Kazi to answer
the claim. The Kazi rose from his seat out of respect for the Caliph who was
so displeased with this unbecoming conduct that he dismissed him from
office. (See: Sir A. Rahim’s ‘‘Muhammadan Jurisprudence,’’ (1958) p. 21)
535. The theory, therefore, that there should be a separation of functions
between the making of laws, the execution of laws, and the application of
laws, after ascertaining facts satisfactorily, is not new. It is embedded in our
own best traditions. It is dictated, if by nothing else, by common sense and
the principle of division of labour, without an application of which efficient
performance of any duties cannot be expected.
536. We may now look back at the theory and practice of sovereignty in
Europe. There, wise Kings, in the Middle ages, sought the support of their
subjects in gatherings or ‘‘colloquia’’, which in the words of Mr. De Juvenile
(See: ‘‘Sovereignty an Inquiry into the Political Good’’ p. 177),‘‘had the triple
character of a session of justice, a council of State and the timid beginnings of
a legislative assembly were the means by which the affairs of the realm came
more and more into the hands of the King’’. He goes on to observe: ‘‘The
council of the King and the Courts of justice progressively developed an
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