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Separation of Power

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Synopsis

I. Introduction.

II. Meaning

II. Historical Background.

IV. Montesquieu’s Doctrine.

V. Wade and Philips.

VI. Effect.

VII. Defects.

Separation of Power

I. Introduction.

According to Jain, if the Rule of Law as enunciated by Dicey affected the growth of Administrative Law in Britain, the Doctrine of separation of powers had an intimate impact on the development of Administrative Law in the United States.

II. Meaning

The three main categories of Governmental functions are legislative, the executive and the judiciary. These three powers and functions of the Government must in a free democracy kept separate and be exercised by the three separate organs of the Government according to the theory of separation of power. According to this theory, the legislature cannot exercise executive or judicial powers, the executive cannot exercise legislative or judicial power and the judiciary cannot exercise legislative or executive powers of the Government.

II. Historical Background.

The origin of the Doctrine of Separation is traceable to Plato and Aristotle. French Philosopher John Bodin and British Politician Locke expressed their views about the theory of separation of power in the 16th and 17th Century. It was Montesquieu who for the first time formulated this doctrine systematically, scientifically and clearly in his book Espirit des Lois (the Spirits of the Laws) published in 1748.

IV. Montesquieu’s Doctrine.

According to Montesquieu, 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 powers. Were it joined with the legislative, the life and liberty of the subjects would be exposed to arbitrary control, for the Judge would then be the legislator. Were it joined with the legislative power, the Judge might behave with violence and oppression. It would be a difficult situation the same man and the same body were to exercise all three powers of the executive, legislative and the judiciary. According to Montesquieu the secret of an English man’s liberty was the separation and functional independent of the three departments of the Government from one another.

V. Wade and Philips.

According to Wade and Philips, separation of power may mean three different things.

(i) The same person should not form part of more than one of the three organs of Government, e.g. the Minister should not sit in the Parliament.

(ii) One organ of the Government should not control or interfere with the exercise of its functions by another organ e.g. the judiciary should be independent of the executive or that Ministers should not be responsible to Parliament.

(iii) One organ of the Government should not exercise the functions of another e.g. the Ministers should not have legislative powers.

VI. Effect.

The doctrine of separation of powers as propounded by Montesquieu had tremendous impact on the development of Administrative Law and functioning of Governments.

Blackstone in his Book Commentaries on the Laws of England observed that if legislative, executive and judicial functions were given to one man, there was an end of personal liberty. The Constituent Assembly of France declared in 1789 that there would be nothing like a Constitution in the country where the doctrine of separation of power was not accepted.

VII. Defects.

According to C. K. Takwani following are the defects:

(i) Historically speaking the theory was incorrect. It can be observed that there was no separation of powers under the British Constitution. At no point of time this doctrine was adopted in England.

Donoughmore Committee observed “in the British Constitution there is no such thing as the absolute separation of the legislative, executive and the judicial powers”, it is said, Montesquieu looked across foggy England from his sunny vineyard in Paris and completely misconstrued what he saw.

(ii) This doctrine is based on the assumption that the three functions of the Government, namely legislative, executive and judiciary are independent of and distinguishable from one another. But in fact it is not so there are no water tight compartments. It is not easy to draw a demarcating line between one power and another with mathematical power precision.

(iii) Certain actions cannot be performed if this doctrine is accepted. If the legislature can only legislate, then it cannot punish anyone committing a breach of its privilege nor can it delegate any legislative functions even though it does not know the subject matter of the legislation and the executive authority has expertise over it nor could the Courts frame rules of the procedure to be adopted by them for the disposal of cases. Thus, separation of power can only be relative and not absolute.

(iv) The Modern State is a welfare State and it has to solve complex socio economic problems and in this state of affairs also, it is not possible to stick to this doctrine. Strict separation of power is a theoretical absurdity and practical impossibility.

(v) The Modern doctrine of separation of power means that the discretion must be drawn between essential and incidental powers and one organ of the Government cannot usurp or encroach upon the essential functions belonging to another organ, but may exercise some incidental functions thereof.

(vi) Fundamental object behind Montesquieu’s doctrine was liberty and freedom of an individual but that cannot be achieved by mechanical division of functions and powers. In England, theory of separation of power is not accepted and yet it is known for the protection of individual liberty. For freedom and liberty, it is necessary that there should be rule of law and impartial and independent judiciary and eternal vigilance on the part of the subjects.

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