Separation Of Powers – Meaning And Concept

INTRODUCTION

The word separation of powers was coined by Montesquieu[1]. He has discussed the theory in his book Espirit De Lois i.e., the spirit of laws. The principle deals with the separation of powers between the three organs of the government i.e. the legislature, the executive and the judiciary. The principle emphasizes that a single organ should not be empowered with all the powers rather it should be distributed equally between three organs of the government and thus establish a system of checks and balances. Thus, the legislature should have the power to make laws only, the executive to implement the law and the judiciary to interpret the laws.

Separation of Powers according to Montesquieu

1. According to Montesquieu, the freedom of an individual can be safeguarded only if there is a separation of powers between the organs of the government.
2. Montesquieu believed that the concentration of power in a single organ can be dangerous.
3. It was in the nature of authority to abuse itself unless clear limitations were laid down.

Basic principles of the Theory of Separation of Powers

1. No concentration of powers

According to Montesquieu the powers should not be concentrated in a single authority. The concentration of powers in a single authority may lead to tyranny and thus hampering the liberty of the people.

2. Diffusion of Powers

The separation of powers implies that the powers are to be separated between the different organs of the government. Every organ should have definite functions and the powers must be demarcated clearly.

3. Checks and Balances

The theory of separation of powers establishes a system of checks and balances, where every organ checks that the other is not misusing its powers. It means that each organ exercises a certain control over the other so that the other organ doesn’t act arbitrarily.

It must be noted that Montesquieu hasn’t advocated the water-tight compartmentalize between the three organs of the government. He did not want that any of the branches should have a monopoly of power and thus, this may lead to abusing the power[2]. Thus, he advocated the system of checks and balances.

Thus, the theory of separation of powers indicates three things:

1. An individual should not be part of more than one organ. For example, the executives should not be part of parliament.
2. One organ should not interfere with the working of other organs. For example, Judiciary should be independent of any control of the executive and the legislature.
3. One organ should not exercise the functions of others.

Criticism of the theory of Separation of Powers

1. The theory emphasizes that the liberty of individuals can be ensured by the separation of powers. However, it must be noted that liberty depends upon the outlook of the people rather than the theory[3].
2. The theory assumes that all the organs of the government. However, it is the legislature which is the most powerful.
3. The theory is not desirable as the organs won’t be able to work in co-operation.
4. Separation of powers will result in organs safeguarding their powers rather than protecting the powers of other branches[4].

Merits of the theory of Separation of Powers

1. The theory emphasises the liberty of an individual.
2. The theory is true in respect that the concentration of powers leads to tyranny.
3. The theory has emphasised on Independent judiciary.
4. Separation of powers maintains the efficiency in administration.
5. The theory establishes a system of checks and balances.

Separation of Powers in India

In India, the Separation of Powers is not followed strictly but the functions and powers of different organs of the government have been significantly differentiated. The Constitution of India has adopted the British parliamentary system. The Cabinet or the Council of Ministers enjoy the majority in the legislature, thus, in India, the executives are also part of the legislature.

However, independence of the judiciary is maintained to an extent in India. If the legislatures pass a law or make an unconstitutional amendment then the judiciary can declare it null and void. A judge can be removed by the impeachment process. The Parliament is also empowered to accept the bills aiming at increasing the salaries and allowances of the judges[5]. Judiciary also advise the government when asked for advice on a legal matter.

Thus, to sum up, the separation of power is not strictly followed in India.

[1 http://www.ncsl.org/research/about-state-legislatures/separation-of-powers-an-overview.aspx

[2] Dr. S.R. Myneni, Political Science for Law Students, Separation of Powers and Organs of Government, 353-354.

[3] Id.

[4] Id.

[5] Id., 360

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