Separation of Powers

Theory of separation of powers The functions of the government are vast and varied. It is necessary to entrust these functions to specific organs, so that the responsibility for  performing these functions may be effectively fixed. The division of governmental power under any constitutions may be of two kinds; the functional division such as legislative, executive and judicial and the territorial division of federalism. f ederalism. The three branches to which these functions belong are known as the Legislature, the Executive and the Judiciary respectively. Political liberty in a state is possible when restraints are imposed on the exercise of these powers. The functions of the government should be differentiated and assigned to separate organs to limit each section to its own sphere of action so that these organs independently interact between between themselves. This is what is known as the theory of separation of powers. po wers. Montesquieu, the celebrated French Scholar asserted that concentrated  power is dangerous and leads to despotism of government. As a check against this danger he suggested to separate the functions of executive, legislature and the judiciary so that one o ne may operate as a balance against the other. However Montesquieu was not the first scholar to develop the theory of separations of powers. Its origin can be traced back to Aristotle, the father of Political Science. Of course he did not n ot discuss the issue in great g reat details. He only analysed the functions of the three branches of government, the deliberative, executive and the judiciary without suggesting their separation. Besides many other philosophers at a later stage from thirteenth century onwards gave some attention to the theory of separation of powers. Jean Bodiri one of the earliest thinkers of the

modern period sees the importance of separating the executive and  judicial powers. But actually it acquired greater significance in eighteenth century. John Locke was one of the eighteenth century philosophers to pay greater attention to the problems of concentration of governmental power. He argued that the executive and legislative powers should be separate for the sake of liberty. Liberty suffers when the same human being makes the law and executed them.  Montesquieu’s Theory

Montesquieu, the noted political philosopher of France is regarded as the chief architect of the principles of Separation of powers. He in his book "The Spirit of Laws" published in 1748 gave the classic exposition of the idea of separation of powers. During his days the Bouborne monarchy in France had established despotism and the people enjoyed no freedom. The monarch was the chief law giver, executor and the adjudicator. The statement by Louis XIV that 'I am the state' outlined the character and nature of monarchial authority. Montesquieu, a great advocate of human dignity, developed the theory of separation of powers as a weapon to uphold the liberty of the people. He believed that the application of this theory would prevent the overgrowth of a particular organ which spells danger for political liberty. According to him every man entrusted with some power is  bound to misuse it. When the executive and the legislative powers are given to the same  person there can be no liberty, because it is apprehended that the same  person may enact oppressive laws to execute them whimsically. Again there is no liberty, if the judicial power is not separated from the legislature and executive. If the judicial and legislative powers are

exercised jointly the life and liberty of the subjects could be exposed to arbitrary control; for the judge could then be the legislator. If it joined to the executive power the judges might behave with violence and oppression. If the same person or body of persons exercises these three  powers that of enacting laws, executing them and of trying the cases of individuals, he maintained, that could spell the doom of the whole system of governance. In simple words Montesquieu's view is that concentration of legislative, executive and judicial functions either in one single person or a body of  persons results in abuse of authority and such an organisation becomes tyrannical. He argued that the three organs of government should be so organized that each should be entrusted to different persons and each should perform distinct functions within the sphere of power assigned to it.

 Advantages i) Separation of powers according to Montesquieu is the best guarantee of the liberty of people. ii) Separation of power promotes efficiency in the administration.

Criticism i) Complete separation of powers is neither possible nor desirable. ii) Separation of powers is likely to lead to inefficiency in administration. iii) The theory is based on the supposition that all the three organs of the government are equality important, but in reality it is not so.

iv) Liberty of the people largely depends more on factors like their  psyche, political culture, consciousness, and institutions than separation of powers However, separation of power is useful if used judiciously to bring about a balance between the vigorous action of the welfare state and the enjoyment of the liberty of the people.