Separation of Powers
It is generally accepted that there are three main categories of governmental functions—(i) Legislative, (ii) Executive, and (iii) Judiciary. According to the theory of separation of powers, these three powers and functions of the Government must, in a free democracy, always be kept separate and be exercised by three separate organs of the government.
Thus, the Legislature cannot exercise executive or judicial power; the Executive cannot exercise legislative or judicial power and the Judiciary cannot exercise legislative or executive power of the Government.
- Historical background:
The doctrine of separation of powers has emerged in several forms at different periods. Its origin is traceable to Plato and Aristotle. In the 16th and 17th centuries, French philosopher John Bodin and British politician Locke expressed their views about the theory of separation of powers. But it was Montesquieu who for the first time formulated this doctrine systematically, scientifically and clearly in his book ‘Esprit des Lois’ (The Spirit of the Laws), published in the year 1748.
- Montesquieu doctrine:
“When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty, because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner. Again, there is no liberty if the judicial power be not separated from the legislative and the executive.
Where it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would then be the legislator. Where it joined with the executive power, the judge might behave with violence and oppression.
Miserable indeed would be the case, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions and that of judging the crimes or differences of individuals.”
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- Effect of the doctrine:
The doctrine of separation of powers as propounded by Montesquieu had tremendous impact on the development of administrative law and functioning of Governments. It was appreciated by English and American jurists and accepted by politicians.
- Importance of the doctrine:
On the whole, the doctrine of Separation of powers in the strict sense is undesirable and impracticable and, therefore, it is not fully accepted in any country. Nevertheless, its value lies in the emphasis on those checks and balances which are necessary to prevent an abuse of enormous powers of the executive. The object of the doctrine is to have “a Government of law rather than of official will or whim”.
Montesquieu great point was that if the total power of Government is divided among autonomous organs, one will act as a check upon the other and in the check liberty can survive. Again almost all the jurists accept one feature of this doctrine that the judiciary must be independent of and separate from the remaining two organs of the Government, viz., Legislature and Executive.
The most important aspect of the doctrine of separation of powers is judicial independence from administrative discretion. “There is no liberty, if the judicial power be not separated from the legislative and executive.” The judiciary is beyond comparison the weakest of the three departments of power.
It has no influence over either the sword or the purse; no direction either of the strength or of the wealth of society and can take no active resolution whatever. It may truly be said to have neither force nor will, but merely judgment. There is no liberty, if the judicial power be not separated from the legislative and the executive.
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