Separation of Powers- Neither Practical Nor Desirable

Baron Montesquieu is a prominent French jurist who was greatly inspired by the English legal system and political arrangement. He introduced the theory of ‘Separation of Powers’ in his books ‘Esprit de Lois’ (Spirit of Law). Though the history of the theory can be traced back to ancient Greek thinkers like Aristotle and Plato, and subsequently the 16th and 17th century, it was Montesquieu who systematically doctrinated the theory and gave it a scientific formulation.

Montesquieu’s theory has three aspects:

1) The government has three functions “that of making laws, that of executing public affairs and that of adjudicating on crimes or individuals cases.”

2) There should be three corresponding organs of government; the legislature, the executive and the judiciary.

3) The three functions should be held by three separate branches in order to uphold and protect liberty.

Read Also: Separation of Power: Meaning and Concept

Many philosophers, jurists and politicians have regarded this theory as an important tool to prevent the concentration of power and tyrannical rule. Even then, most countries of the world have not adopted this concept as it impractical and rigid. Even in the Indian Constitution, it can be observed that there is no strict separation of powers, the three organs of government do not work in isolation but in a symphony. Though Montesquieu claims to be inspired by the political arrangements in England, England does not follow his theory of Separation of Powers. Under the British parliamentary system of government, there is a close relationship between the British parliament and the Cabinet. There is no separation of judiciary from the legislature and the British House of Lords acts as the highest court of appeals. The British Constitution has never been based on the theory of separation of powers.

The primary problem with this theory is that it is not possible to implement it. When it says separation of powers, what it really means is the separation of the functions of the government. It has divided the government into three rigid, watertight components. But the government is a single entity, it can not be separated in three watertight compartments that perform different functions. The functions of the government often coincide and are complementary. Thus the government cannot function effectively and smoothly if there is no coordination. Complete separation of functions in the government would lead to undesirable consequences as it would limit unity and coordination in the government. As the government is a single entity, with different functions these functions are interrelated and the organs are interdependent. For example, Legislature is dependent on the executive for guidelines and policy matters, Executive is dependent on Judiciary for judicial advice, etc. The point is, it is impossible to imagine breaking up the government and its functions in 3 different watertight compartments. Doing so would lead to conflicts, dead-locks and inefficiency in the government. It may create a conflict of interest and tussle for power within the 3 different organs.

It is also important to note that the separate functions which Montesquieu talked about, like lawmaking cannot be the exclusive domain of any one organ. It has now become necessary to delegate the functions of the legislature to the executive( delegated legislation). It is essential to provide for delegation of functions and symphony in the different functions performed by the organs of the government to ensure no one organ wield excessive power or excessive workload.

Montesquieu has based his theory on the wrongful assumption that the three organs of the government are equal. Clearly, the legislature is always regarded as the primary organ of the government. Law-making is the first and most important function of the government. And though the three organs are equally respected and held in high esteem, it does not mean that the three organs are equal and perform equal functions.

The power of the government is one whole, there can be no separation of powers in the government. To perceive the government as different entities would be to undermine it. Absolute and rigid separation is not possible, the three organs of the government cannot really be separated in different water-tight compartments. It is neither desirable as it will only lead to conflicts, deadlocks and inefficiency in the working of the government. In today’s time when the government is more than just a police state, it is impossible to imagine it as three different organs in isolation. Though Montesquieu’s theory is relevant to the extent that it upholds liberty and avoids the abuse of power, its strict implementation is neither desirable nor practical.

Dewangi Sharma

ILS Law College, Pune

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