The Theory of Separation of Power is a doctrine of constitutional law under which the three branches of government (executive, legislative, and judicial) are kept separate.
Theory of Separation of Power:-
Separation of powers, division of the legislative, executive, and judicial functions among separate and independent bodies. Such a separation, it has been argued, limits the possibility of arbitrary excesses by the Government since the sanction of all three branches is required to make, execute, and administer laws.
Meaning of Separation of Powers.
In many countries, the legislature is under the executive, and in certain countries, the legislature has the right to remove the executive. Similarly, in certain other countries, the judiciary can declare the laws made by the parliament illegal. It indicates that the three organs of the Government have some relation or the other with one another. But the writers who believe in the principle of the separation of powers think that all government management should not be concentrated in the hands of one organ. Otherwise, there will be no freedom.
They believe that the legislature should only make laws, the executive should implement that law and run the administration according to those laws. The judiciary should decide the disputes according to those laws. Montesquieu laid stress on the limitation of each organ and declared that there should be no control of one organ over the other. One organ should neither interfere in the sphere of the other nor should it influence the other. Each organ should be completely free in its sphere.
History of the Theory
Before Montesquieu, certain writers explicitly indicated the separation of powers indirectly, but they did not explain the theory in detail as has been done by Montesquieu. First of all, Aristotle described the three organs of the Government. But he did not explain their mutual relations in detail. The Roman writer Cicero and Polybius praised the Roman Constitution very much. The reason for the success of the Roman Constitution was the system of checks and balances.
In the fourteenth century, political philosopher Marsigilo of Padua also differentiated between the legislative and executive organs of the Government. In the sixteenth century, the French writer Jean Bodin emphasized the freedom of the judiciary and said that the executive and judicial power should not be in the hands of one person so that there should be no despotic rule. The leaders of the Glorious Revolution were of the firm belief that the power to make laws and implement them should not rest in the hands of one person so that despotic rule should not be established. In his book, Civil Government, John Locke, a staunch supporter of the Glorious Revolution, emphasized the separation of executive and legislative powers.
Views of Montesquieu.
French writer Montesquieu has given the best explanation of this theory in his book Spirit of Laws, 1748. Montesquieu lived at Louis XIV, the author of the famous phrase “from the state.” The monarch combined in his person all the three powers. Montesquieu happened to Visit England in 1726, and he was tremendously impressed by the spirit of freedom prevailing there. He analyzed the people’s freedom and concluded that the release of the people was made possible because in England, all the three organs of State were working separately, and they were free of each other’s control. He was very much impressed by the powers of the British Parliament and the freedom of the judiciary.
Therefore, he said that it was necessary for the protection of freedom in France that all three organs should function separately. The concentration of all the three powers in the hands of one person was not desirable because it would destroy the people’s freedom. He laid particular emphasis on the freedom of the judiciary on the making of the legislature or the Parliament of his country powerful.
When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty because apprehension may arise lest the same monarch or senate should enact tyrannical laws and execute the in a tyrannical manner. Again there is no liberty if the judicial power is not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.
To explain briefly and in simple language, Montesquieu’s thesis, therefore, is that concentration of Legislative, Executive and Judicial functions in one person in a body of persons results in the abuse of authority and such an organization tyrannical. He, accordingly, pleaded that the three departments of Government should perform distinct functions within the spheres of powers assigned to them.
Blackstone’s Blackstone, the English jurist, expressed similar viewers. In his Commentaries on the Laws of England, Blackstone said,
Whenever the right of making and enforcing the law is vested in one and the same man or it one and the same body of men, there can be no public liberty. The magistrate may enact tyrannical laws and execute them in a tyrannical manner since he is vested with all the power which he as legislator thinks proper to give himself……. Were if (the judicial power) joined with the legislature, the life, liberty and property of the Subjects would be in the hands of arbitrary judges whose decisions would be regulated only by their own opinions and not by any fundamental principles of law from which though legislators may def art, yet which the judges are bound observe, Were it joined with the executive, this union might be an over-balance the Legislature.
Madison, the founding father of the American Constitution says,
The accumulation of all powers, legislative executive and judicial in the same hands whether of one a few or many and whether hereditary self-appointed of elective may justly be pronounced the very definition of tyranny.
Practical Effect of the Theory:-
The theory has great effect on France and America. This theory prepared the ground for the French Revolution, and when in,1789 after the Revolution, human rights were declared. It was said that there is no separation of powers in the countries where there is no such thing as the Constitution. According to the Constitution of,1791 the executive, judiciary and legislature were kept apart from and free from one another. Though during Napoleons regime, this theory got little importance, yet it did not disappear altogether in France. The event, today the impact of this theory can be discovered on the minds of the people.
The founding fathers of the American Constitution are especially influenced by this theory. Dr. Finer has written,
We shall never know, whether the Fathers of the American Constitution established the separation of powers from the influence of the theory, or to accomplish the immediately practical task of safeguarding liberty and property.
Undoubtedly, the founding fathers of the American Constitution wanted to limit the powers of each organ of the Government to protect the people’s liberty. Madison unequivocally maintained that Montesquieu is the oracle who is always consulted and cited in the subject. The theory of the separation of power was not a new thing for the founding fathers of the constitution has before 1776, the executive was continuously separate under the Governor and the legislature was also a separate body.
Prior to the attainment of freedom, the controversy between the two took a serious turn. The founding fathers of the American Constitution were also aware of the principle of Judicial Review, because legality of the rules, framed by the British Government relating to the colonies could be challenged in the Judicial Committee of the Privy Council. Therefore, Lipson writes,
History, therefore, joined hands with philosophy in writing a separation of powers into the federal Constitution.
After freedom all powers were concentrated in the hands of the legislature and the people felt that a sort of dictatorship of the legislature was established. Therefore, when the framers of the American Constitution met in Philadelphia, they did not give any discretionary power to any organ of the Government. In order to check the misuse of powers, they established control of one organ over the other. The influence of this theory was profound particularly on the constitution-makers of America.
This is quite evident from the declaration of the Constitution of Massachusetts. In the Government of this Commonwealth, the legislative department shall never exercise the executive and judicial powers or either of them; the executive shall never exercise the legislative and judicial powers or either of them; the judicial shall never exercise the legislative and executive powers or either of them to the end that it may be a Government of the laws and not of men.
While writing about the Constitution of Virginia, Jefferson wrote, All the powers of the Government, legislative, executive and judiciary, result to the legislative body. The concentration of these on the same hand is precisely the definition of a despotic Government. It will be no alleviation that these powers will be exercised by a plurality of hands and not by a single one. One hundred and seventy. three despots would surely be as oppressive as one.
In the Kelbourne S. Thompson case, the Supreme Court in its decision writes,
It is believed to be one of the chief merits of the American written Constitutional law that all powers entrusted to the Government whether state or national are divided into three grand departments the executive, the legislative, and judicial that the function appropriate to each of these branches of Government shall be vested in a separate body of public servants and the perfection of the system requires that the lines which separate and divide these departments shall be broadly and clearly defined.
Dr. Finer is also of the same view, The American Constitution was consciously and elaborately made an essay in Separation of Powers and is today the most important policy in the world which operates upon that principle. The theory had a great influence on the people of Mexico, Argentina, Brazil, Australia and Chile and they adopted the qualities of this theory to a certain extent in one form or another. In France also in order to make the executive free from the control of the judiciary, separate administrative courts were established. In England and other countries of the European Continent, no special consideration was given to this theory.
Criticism of the Theory of Separation of Powers:-
The theory has been criticized for the following reasons:
(1) Absolute Separation of Powers is not possible.
The critics are of the view that there is unity, in the Government, as it is in the human body. If all the organs of the Government are separated from one another, there will be no mutual cooperation among them. On the contrary, there will be a deadlock among them and it will become difficult to run the Government. Thus this theory is not desirable.
(2) The theory is not practicable
Therefore even in U.S.A., it has been modified by a system of checks and balances. The theory of the separation of powers is not practicable. If it is given a practical shape, the functioning of the Government will come to standstill. For instance, the legislature makes the laws. If those laws are not implemented by the executive and if the judiciary does not punish the criminals according to those laws, how will that government function?
Thus the powers of the Government cannot be separated completely. Therefore, when this theory was given recognition in the U.S.A., the system of checks and balances was also adopted along with it. There are three organs of Government in the U.S.A., ie. the legislature, the executive, and the judiciary.
Each organ functions independently. Congress makes the laws, the President implements these laws and the judiciary interprets these laws. Though each organ of the Government is independent in the U.S.but, the President has been given the veto power. The Congress can remove that veto only by a 2/3rd majority.
The President has been given the power to sign treaties and to make political appointments but they have to be ratified by the Senate. Congress can remove the President through impeachment. The President can send messages to the Congress and, if the need arises, he can call a special session of the Congress. The judges of the Supreme Court are appointed by the President, but they can be removed by Congress through impeachment. The Supreme Court can declare the law made by Congress illegal if they violate the Constitution.
(3) The basis of the theory is confusing.
Montesquieu made the British Constitution as the basis of his theory because the judiciary was independent in Britain and the freedom of the people was protected. But Montesquieu’s view proved to be wrong. The reason is that there is a Parliamentary Government in Great Britain. In g Parliamentary Government. there is no separation of powers because the executive (Council of Ministers) is under the Parliament in it. In England, the Lord Chancellor is both the Chairman of the House of Lords and also an important member of the cabinet. Hence, there is no question of the separation of powers in England. One thing is, of course, there, it is that the judiciary is free from the control of the executive and it is the guardian of the freedom of the people.
(4) The Organs of Government are mutually dependent.
Separation is not possible among the organs of the Government and they are dependent on one another to a great extent. A critical study of the organization of the modern governments, reveals that the organs of the Government perform mixed functions. For example, though the main job of the executive is to run the administration, yet it has a great contribution in the making of the laws, because it prepares the outlines of many Bills and gets them passed by the Parliament. In U.S.A. too many Bills are prepared under the orders or the will of the President and they are introduced in the Congress by the members of his party. Secondly, in some countries in order to face an emergency, the executive can issue Ordinances for a short period and they are Implemented like laws. Similar is the practice in India.
(5) All the Organs of the Government are not co-ordinates.
The theory of the separation of powers has been recognized because of the fact that there are three organs of the government-executive, legislative, and judicial-and all these organs are equal. But this is altogether wrong because the importance of the legislature has increased due to the emergency of democracy. In a Parliamentary Government, the executive is under the legislature. Besides, the will of the nation is expressed through the legislature.
Laski is of the view,
The powers both of executive and judiciary and their limits in the declared will be legislative organ.
He further says, Legislatures could not fulfill their task unless they were able both to interfere in the execution of law and also on occasions, to overrule statute, the decisions of the judges the results of which are widely felt to be unsatisfactory.
Certain writers have also criticized the theory for the reason that there are not three organs of the Government. For example, Bluntschli says that there are five Organs of the Government:
- Arrangement and care of the physical interests.
- Care and arrangement of the elements of civilization.
Certain other writers do not attach any importance to the second and the third organs of the Government given by Bluntschli. They consider them as one of the organs of the executive, but Bluntschli considers them as separate organs. Modern writers like Goodnow, Jenks, and Powell are the supporters of the two-fold division of the Government.
They consider the judiciary as one of the organs of the executive, but in the words of Gilchrist, To regard the judicial functions as part of the executive is unsound.
J.Q. Dealey, an American writer believes that there are seven organs of the Government:
- Legislative Department.
- Judicial Department.
- Legal Sovereignty.
- A special court for the effective interpretation of the constitution, and
Such a classification opens the way to almost endless sub-divisions of all which | may be useful for description but not for general classification.
(6) The theory will lead to inefficiency in Government.
Mill in his book, Representative Government, writes, If the principle of separation of powers is applied in its complete form disintegrating the realities, governmental machinery will come to a standstill.
Dr. Finer says that the principle of the separation of powers makes the administration inactive and autocratic. Laski is of the view their as a result of the separation of powers, jealousy suspicion and internal conflicts increase along with inefficiency.
(7) The Authoritarian Objection.
The leaders of dictatorial regimes oppose the theory of the separation of powers because this theory does not help in the concentration of powers on one hand. For example, during Hitler’s regime, one of the Nazi jurists wrote, The separation of powers belongs to a political era in which political unity was reduced-to a minimum in the interest of an autonomous bourgeois society.
However, national and ethnic unity and oneness demand that all political powers be gathered in the hands of one leader. In the U.S.S.R. too, the separation of power is opposed, because the concentration of powers is also found there.
Soviet writer Vyashinsky writes,
From top to bottom the Soviet social order ts permeated by the single general spirit of the oneness of authority of the toilers. The programme of the All-Union Communist Party rejects the bourgeois principle of separation of powers.
(8) The Democratic Objection.
There is even democratic objection to the doctrine of the separation of powers because this doctrine imposes a limitation on the powers of the executive. They say that during Montesquieu’s time the main function of the state or the Government was to protect the country from foreign invasion, maintain law and order and establish judicial system. At that time it was considered that it was good for the Government not to interfere in the affairs of the people because most of the rulers were absolute and selfish. The idea of the welfare state had not gained popularity then. But today, the idea of a welfare state has gained much importance.
Therefore, the powers and functions of the executive have increased considerably. Further due to emergence of political parties, the separation of legislature from the executive has almost been abolished and coordination has been established between the two. In America too, the system of the separation of powers has lost its importance.
(9) Individual liberty possible even without separation of powers.
Montesquieu was of the view that without the separation of powers, individual freedom was not possible. But this is not true. In the times of Montesquieu, there no separation of powers in England, but the people enjoyed freedom. The reason for this was that judiciary was free in that country and the system of the rule of law prevailed. In countries like India, Japan, France, West Germany, Italy and some other democratic countries, though there is no separation of powers, yet the people are enjoying freedom, This is so because the people have been given fundamental rights through the constitution and the judiciary is independent.
After discussing the theory, we come to the conclusion that complete separation of powers is neither possible, nor practicable, nor it is justified. If there a complete separation of powers, there shall be many hindrances in the way of the Government and its functioning will become impossible.
Probably Montesquieu was not completely in favor of the separation of powers, but he wanted to impose limitations on the absolute powers of the king. Therefore, he considered the separation of powers to be essential. It may be for the reason that, in his time, the French King Louis XIV had concentrated all the powers in his own hands.
Blackstone also realized this and he said that complete separation of powers is as dangerous as their concentration. Therefore, we can say that complete separation of powers is not proper. However, in spite of the mutual relations among different organs of the Government, their functions should be separate. Otherwise, the entire efficiency of the administration will vanish. Thus in India, where the principle of separation of powers has not been adopted, the functions have definitely been separated.
For instance, the Parliament makes laws in our country, the executive implements them, and the judiciary interprets those laws. Since the Parliamentary system of Government has been adopted in our country, the cabinet is responsible to the Parliament.
The principle of the separation of powers is quite important as its aim is to check the executive from being absolute and the independence of the judiciary be ensured so that the freedom of the people is protected. Thus in India efforts have been made to make the High Courts and the Supreme Court free from the control of the executive. The idea of the freedom of judiciary has gained popularity in many countries of the world.
In some democratic countries like Japan, France, Italy, West Germany, Belgium, Holland, Norway, and Sweden, this principle has been adopted to some extent, and the executive in these countries does not interfere in the decision of the judiciary. In countries where there is dictatorship, the judiciary is not free and, consequently, the freedom of the people is not safeguarded.
The stress on individual liberty under the principle of the separation of powers is also not unwarranted. Although many countries have not adopted this principle, yet the freedom of the people has been kept intact by granting fundamental rights to the people under the constitution.