THE CONCEPT OF SEPARATION OF POWER

"The accumulation of all powers, legislative, executive and judicial, in the same hands may justly be pronounced the very definition of tyranny."

Introduction:

Government is the agency or the machinery through which the will of the State is formulated, expressed and realised. Power rests with the government. Power corrupts and absolute. This is applicable not only to men, but also to institutions. This is true for all times and for all ages. Concentration of authority degenerates into tyranny, corruption and abuse of powers. The functions of the State for all practical purposes are performed by the government through its three branches—legislature, executive and judiciary. All the branches of the government are of equal importance and function. So one should not override or control the other. Each branch of the government should be made independent of the other.

Aristotle in his book "Politics" mentioned three branches of the government, namely, the deliberative, executive and judiciary. 

Roman writers like Cicero and Polybius praised the Republican constitution of Rome because in it they found a balance between the Senate, Consuls and Tribunes.

Jean Bodin , the French publicist was the first modern writer to demand a separation of powers. He argued that "if the King were both law maker and judge, then a cruel king might give cruel sentences." 

John Locke in his book "Two Treatises on Civil government" also distinguished the State powers as legislative, executive and federative.

According to Locke, the federative power related to the conduct of foreign affairs. He agreed to combine the federative and executive powers. But he opposed the concentration of executive and legislative powers in the same organ. 

Montesquieu's Contribution to the Theory of Separation of Powers

During the 18th century Louis,  the ruler of France enjoyed the absolute powers of the State. He combined in himself all the powers of the three organs of the government, i.e., executive, legislative and judicial. The people had no liberty under such an oppressive and despotic government.

During this period, Baron de Montesquieu, the French philosopher happened to visit England and was very much impressed by the liberty that was being enjoyed by the people there. He came to the conclusion that the British people enjoyed liberty due to the prevalence of the principle of separation of powers. The theory of separation of powers, however, emerged as a distinct doctrine in the "Espirit De Lois" (1748), i.e., 'The Spirit of Laws" of Montesquieu.

In essence, Montesquieu's theory lays that it was in the nature of authority to abuse itself and that unless clear limitations were laid down, arbitrary rule would be inevitable. According to him, moderation in exercise of government authority was the essential requisite of a good government. In order to realise such the moderation, he felt that, each power should be exercised by a different organ of government and among the various organs ' government there should be a system of checks and balances so that one organ might not become all powerful.

In his 'Spirits of Laws', Montesquieu wrote, "In every state there are three kinds of powers, the legislative power, the Power executing the matters falling with the law of nations, and power executing the matters which fall within the civil law. Through the first, the Prince of Magistrate makes the laws for the time being or for all time, amends or repeals those Previously made. Through the second, he makes war and peace, sends and receives ambassadors, establishes order and prevents invasions. Through the third, he punishes crimes and judges the disputes of private individuals. This last is called the judicial Power, second is known as the executive power."

Montesquieu states that "when the legislative and executive powers are united in the same persons or in the same body of magistrates there can be no liberty, because apprehensions may arise, lest the same monarch or separate should enact tyrannical laws, and execute them in tyrannical manner. Again, there is no liberty if the judicial power is not separated from the legislative, and executive. Where it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would be then the legislator. Where it joined to the executive power, the judge might behave with violence and oppression. There would be an end of everything, were the same man or the 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 of trying the cases of individuals."

Basic Principles of the Theory of Separation of Powers:

The following are the basic principles of the theory of Separation of Powers :-

(1) No concentration of powers-

The theory of separation of powers involves that powers should not be Concentrated in the same person or in the same body of persons. If all Powers are placed in the same branch of government, there is bound to be tyranny.

(2) Diffusion of powers needed-

The theory of separation of Powers implies that powers are to be diffused by bringing about a division of powers on the basis of functions.

(3) System of checks and balances-

The theory of separation of powers involves a complex system of checks and balances. It means the executive organ wields some control over the the legislature and the judiciary; the legislature over the executive and judiciary; and the judiciary over the executive and the legislature. This method of one branch halting the power of the other branches will act as an antidote to despotism.

Montesquieu did not advocate water-tight compartmentalism of executive, legislature and judiciary as generally considered by critiques. Dr. Finer has remarked, "Montesquieu was searching for means to limit the crown to make a Constitution to build canals through which and not over which power should stream to create intermediary bodies to check and balance probable despotism and not wishing to fly to the extreme of democracy. In fact, Montesquieu was too cautious. He did not like any of the branches of the government so created to have the monopoly of power and to go to the extent of abusing it. Hence, he advocated checks and balance also. This was to ensure the liberty of masses against any possible apprehension of it being deprived on account of high-handedness on the part of the legislature, executive or judiciary."

In short, the theory of the separation of powers merely mean that a different body of persons is to administer each of the three departments of governments and that no one of them is to have a controlling power over either of the others and such separation is necessary for the purpose of preserving the liberty of the individual and for avoiding tyranny.

Subsequently, Blackstone, an eminent English Jurist analysed the concept of separation of powers. He declared that law-making and law enforcing powers were vested in the same person in all tyrannical governments. As a result, the life, liberty and property of the citizens and subjects were exposed to the arbitrary dictates of the autocratic rulers. The accumulation of all powers—legislative, executive and judicial, in the same hands of a monarch, or aristocrats or democrats precisely constitutes the very definition of tyranny. The American Federalist (1788) says, "The accumulation of all powers, legislative, executive and judicial, in the same hands may justly be pronounced the very definition of tyranny."

Demerits of the Theory of Separation of Powers:

(1) There is no relationship between public liberty and the separation of powers. Liberty depends more on the spirit and outlook of the people and their laws and institution than on mere constitutional machine. Liberties of the people do not depend on the theories and dogma. They should be protected and preserved by the vigilant an educated public opinion. As Pericles pointed out the secret of liberty is courage'. Separation of power ensures liberty but it is not the very essence of liberty.

(2) In the words of Prof. Garner, the theory of separation of powers is impracticable as a working principle of government as the government is an organic unit. It cannot be divided into water-tight compartments. 'Governments are not machines, but are bodies of men'. To divide them is to destroy them. That is why no country in the world has been able to follow this theory strictly.

(3) Finer remarks, "The theory of separation of powers throws the government into alternating conditions of coma and confusion."

(4) As Mill says, "The separation of powers will result in a clash between the three organs of government, as each one will take interest only in-its own powers."

(5) If all branches are made separate and independent of each other, each branch will try to safeguard its powers and will not protect the powers of other branches. In such case administrative efficiency cannot be attained.

(6) Montesquieu went wrong in his interpretation of the British Constitution. In Britain there is no separation between the executive and legislative organs.

(7) It may be pointed out that the legislature which controls the purse is superior to the rest of the branches. Hence, the three branches of the government cannot be equated as done by Montesquieu.

(8) The growth of administrative adjudication is another development which is against the doctrine of separation of powers. The executive is being vested with judicial Powers as well as other duties otherwise the officers do not feel secure while performing their duties.

Merits of the theory of separation of power:

(1) It aims at individual liberty. It is a safeguard against despotism.

(2) Its basic principle that concentration of powers leads to dictatorship is true for all times and ages.

(3) It emphasises the necessity of providing independence to judiciary though executive and legislature cannot be rigidly executed. Then only rights and freedoms are secure.

(4) The separation of powers is desirable for maintainin the efficiency in the administration.

(5) The separation of powers saves the people from the arbitrary rule of the executive.

(6) Each organ acts as a check upon the other.

(7) The three functions require distinct qualities in the men who conduct them.

(8) It helps us to understand the value of liberty.

DISCLAIMER-

The person behind is a law learner and loves sharing her leaning with all. The purpose is to enlighten nation with general legal knowledge.The gist of this article is full from innumerable sources for edifying purpose.