Law and You > Administrative Law > The Doctrine of Separation of Powers
The modem government cannot function without powers. Each organ of die state enjoys the specific types of powers, at the same time, there are limitations on these powers. If powers are not restricted there is a danger of tyranny. Unlimited and uncontrolled power is always harmful to the protection of the rights and liberties of people. For the stability of any political society, the balance of power is essential. Separation of powers limits the powers and neutralizes the element of oppression. The premise behind the Separation of Powers is that when a single person or group has a large amount of power, they can become dangerous to citizens. The Separation of Power is a method of removing the amount of power in any group’s hands, making it more difficult to abuse. Separation of powers forms a vital part of modem constitutionalism. It has influenced the structures of governments tremendously. Locke and Montesquieu are regarded as the founders of the doctrine of separation of powers.
According to the doctrine of separation of powers, there are three main organs of the Government in State i.e. legislature, executive, and the judiciary. Legislature performs the function of legislation, the executive performs the function of execution and administration, while the judiciary performs the function of adjudication. According to the doctrine of separation of powers, these three powers and functions of the Government must, in a free democracy, always be kept separate and exercised by separate organs of the Government. Thus, the legislature cannot exercise executive or judicial power; the executive cannot exercise the legislative or judicial power of the Government.
According to Wade and Philips, the separation of power means three different things:-
- That one organ of the Government should not exercise the functions of another, e.g. the Ministers should not have legislative powers;
- That one organ of the Government should not control or interfere with the exercise of its function by another organ, e.g. the Judiciary should be independent of the Executive or that Ministers should not be responsible to Parliament; and
- That the same persons should not form part of more than one of the three organs of Government, e.g. the Ministers should not sit in Parliament.
The doctrine of separation of powers is of ancient origin. The history of the origin of the doctrine is traceable to Aristotle.61 In the 16th and 17th centuries, French philosopher John Bodin and British politician Locke respectively had expounded the doctrine of separation of powers. But it was Montesquieu who for the first time gave it a systematic and scientific formulation in his book ‘Esprit des Lois (The Spiriti of the laws) published in the year 1748.
The “pure doctrine” of separation of power which is formulated by Montesquieu trails as ‘It is essential for establishment and maintenance of political liberty that the government be divided into three branches of departments, the legislature, the executive, and the judiciary. To each of these three branches, there is a corresponding identifiable function of government, legislative, executive, and judicial. Each branch of government must be confined to the exercise of its own function and not allowed to encroach upon the functions of the other branches. Furthermore, the persons who compose these three agencies of government must be kept separate and distinct. In this way, each of the branches will be a check to others and no single group of people will be able to control the machinery of the state.”
The main elements of this theory are:
- There is division of the agencies of government into three categories: the legislature, executive and the judiciary;
- There are three specific “functions” of the government. The functions must be separated if freedom is to be assured;
- The three branches of government shall be composed of quite separate and distinct groups of people, with no overlapping membership; and
- Each branch of government will act as a check on exercise of arbitrary powers by the others.
Montesquieu wrote “there would be an end of everything were the same body, whether of nobles or of the people ,to exercise those three powers, that of enacting laws, that of executing the public relations ,and of trying the causes of individuals.”
Merit of the Doctrine of Separation of Powers:
Thus, the position is that the doctrine of separation of powers in the strict sense is undesirable and impracticable. Therefore it is not fully accepted in any country of the world. Nevertheless, its value lies in the emphasis on those checks and balances which are necessary to prevent an abuse of the enormous powers of the executive.
To set checks and balances System:
Checks and balances is one of the features of the doctrine of separation of powers. As per this feature each organ, along with its own power, enjoys some checking powers over the other two organs. In the process, a system of checks and balances governs the inter-organ relations.
Demerit of the Doctrine of Separation of Powers:
In theory the doctrine of separation of powers was very sound. However, in practice many defects surfaced when it was sought to be applied in real life situations.
Unhistorical:
Montesquieu was inspired by the British Constitution of the first part of the eighteenth century as he understood it. In reality there was no separation of powers under the Constitution of England. In British Constitution, this doctrine was never adopted.
Complete separation is neither possible nor desirable:
The assumption behind the doctrine is that the three functions of the government, namely, legislative, judicial and the executive are separable from each other, which is not true in reality. Actually these three functions are overlapping in the modern concept of welfare state. Such separation may result in the efficiency of the government.
Not supportive to the concept of welfare state:
The modern state is a welfare state and it has to solve many complex socio-politico-economic problems of a country. In this state of affairs it is not possible to stick to this doctrine.
Impracticable in itself:
In practice it has not been found possible to concentrate powers of one kind in one organ only. The legislature does not act merely as a law-making body, but also acts as an overseer of the executive, the administrative organ has legislative function. The judiciary has not only judicial functions but also has some rule-making powers.
Separation of powers can lead to deadlocks and inefficiency:
The separation of powers may lead to deadlocks and inefficiency in the working of the government. It may create a situation in which each organ can get engaged in conflict and deadlocks with other two organs
Thus, the position is that the doctrine of separation of powers in the strict sense is undesirable and impracticable. Therefore it is not fully accepted in any country of the world. Nevertheless, its value lies in the emphasis on those checks and balances which are necessary to prevent an abuse of the enormous powers of the executive.