Smooth functioning of a government is dependent upon a closer collaboration between all of its branches. Montesquieu himself had full perception of this requisite. While demarcating the spheres of these branches, he never contemplated a watertight compartmentalization.

The framers of the constitution while separating the functions of three branches of the govt, had realized that complete separation was not feasible in practice and they being men of experience in public affairs, altered their arrangements by adding checks and balances. If the principle of separation of powers was carried too far, it would have meant deadlocks and breakdowns,


As Munro says:
“The absolute independence of the three great departments of government would inevitably produce a deadlock and bring governmental activities to a standstill.”


The government is a unit and it cannot simply work if different constitutions of the units are so independent of each other. All the three branches of the government have their separate spheres of activity. All the powers are not vested in one branch and since all branches are independent of each other, it is necessary that each branch remains within its limits and it any branch tries to cross its limits it must be stopped to ensure the independence and equality of the other two branches.



Advantages of Checks and Balances:


The principle of checks and balances helps to ensure that no branch of govt. acts autocratically. All the branches of govt. may be checked by one another. No branch can become despotic and does not interfere in the jurisdiction of the other branches and since all check each other ultimately balance is maintained and none can assume supreme powers. Separation of powers secures the independence and equality of all the three branches rather than curtail their powers.


As Madison observed:
“Separation of powers does not mean that the three branches of the government should be wholly unconnected with each other.”



Features of Checks and Balances in U.S Constitution:

1) The president is the chief executive but he can make no appointments without the approval of the Senate. Thus, Senate can check the president if any of the proposed appointment is not found proper and therefore has a share in the executive powers.

2) The president can negotiate and conclude treaties with the foreign countries but they do not become effective unless ratified by the Senate by 2/3rd majority.

3) The Congress is the sole legislative power. All the bills passed by the congress have to be submitted to the president who may give his assent to a bill or veto it. Thus, he has a check on the legislative powers of the congress.

4) The congress, on the other hand, can also check the president. The president can be impeached and removed by the congress.

5) The legislative powers of the congress are checked not only by the president but also by the Supreme Court. All the laws passed by the congress and assented by the president may be found against the provisions of the constitution and thus declared ultra vires by the Supreme Court through its power of judicial review.

6) The Supreme Court itself is checked by the congress, as the congress fixes the numbers of judges and their pay.

7) Judges are appointed by the president and approved by the senate. “A president limited by the will of congress” , says Laski, “ is always like the sailor on an unwanted sea .”

8) Judges are ensured life tenure but even they can be impeached and removed from office.

Thus the powers are separated but lines of connection have also been provided. The separation of powers with precautionary checks and balances is the most characteristics feature of the U.S constitution. In the times of emergency the lines of connection have provided unity under a single leadership. During the U.S participation in world wars, the American president assumed all legislative powers during the emergency.



Criticism:


The principle of checks and balances has been criticized by many students of the U.S constitution.

• Zink say:
“This provision may prevent tyranny but it also leads to conflict and indecision----one branch of govt. may be operating on one policy while the other two may be following quite a different course.”

• “It prevents unity , frustrates leadership, divides responsibility and slows down action.” Say Ogg and Ray

• It is argued that the principle of checks and balances tends to concentrate powers in the hands of judiciary, which can declare any of the laws passed by the congress as void.

• Treaty of Versailles was not ratified by the senate in 1920, which was concluded by Wilson with several of the world leaders. This was too much a check.

It would not be an aggression to say that the U.S constitution is based on the principle of checks and balances.

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CSS 2009, 2010, 2011 Qualifier