Separation
of Powers
Ø
Govt.
is the agency or the machinery through which the will of state is formulated,
expressed or realised.
Ø
Power
rests with the government. “Power corrupts and absolute power corrupts
absolutely”. This is true for all times & ages.
Ø
The
functions of the state, for all practical purposes, are performed by the govt.
through its 3 branches: Legislature, Executive, and Judiciary.
Ø
All
branches have equal importance & functions, so one should not override or
control the other.
Ø
Each
branch should be made independent of each other.
v
Montesquieu’s Contribution
of the Theory of Separation of Powers:
à During the 18th century – Louis, the ruler of France enjoyed the absolute powers of state. He combined in himself all the powers of the 3 organs of govt.
à The people had no liberty under such an oppressive and despotic rule.
àDuring this period, Baron de Montesquieu, the French Philosopher happened to visit England & was very much impresses by the liberty that was being enjoyed by the people there.
à He came to conclusion, that the British People enjoyed this liberty due to the prevalence of the Principle of Separation of Powers.
à This emerged as a distinct doctrine in the “Espirit De Lois”, i.e., “The Spirit of Louis” of Montesquieu.
à During the 18th century – Louis, the ruler of France enjoyed the absolute powers of state. He combined in himself all the powers of the 3 organs of govt.
à The people had no liberty under such an oppressive and despotic rule.
àDuring this period, Baron de Montesquieu, the French Philosopher happened to visit England & was very much impresses by the liberty that was being enjoyed by the people there.
à He came to conclusion, that the British People enjoyed this liberty due to the prevalence of the Principle of Separation of Powers.
à This emerged as a distinct doctrine in the “Espirit De Lois”, i.e., “The Spirit of Louis” of Montesquieu.
v
Intro to Montesquieu’s
Theory
à According to him, Moderation in exercise of government authority was an essential requisite of a good govt.
à In order to realise such moderation, he felt that each power should be exercised by a different organ of govt.
à Among various organs of govt. there should be a system of checks and balances, so that one organ might not become all powerful.
à According to him, Moderation in exercise of government authority was an essential requisite of a good govt.
à In order to realise such moderation, he felt that each power should be exercised by a different organ of govt.
à Among various organs of govt. there should be a system of checks and balances, so that one organ might not become all powerful.
v
In his “Espirit De Lois”,
Montesquieu wrote
à that in every State there are 3 kinds of powers:
1) The Legislation Power – make laws, amends previous ones;
2) The Executive Power – establishes order, makes war and peace; and
3) The Judicial Power – punishes crime.
à for if all these powers or any 2 of them are united in the same organ or individual then there can be no liberty.
à that in every State there are 3 kinds of powers:
1) The Legislation Power – make laws, amends previous ones;
2) The Executive Power – establishes order, makes war and peace; and
3) The Judicial Power – punishes crime.
à for if all these powers or any 2 of them are united in the same organ or individual then there can be no liberty.
v
Basic Principles of Theory
of Separation of Powers
1) No Concentration of Power:
à Powers should not be concentrated in the same body or in the same person.
à If all the powers are placed in the same branch of govt. there is bound to be tyranny.
2) Diffusion of Powers Needed:
à Powers are to be diffused by bringing about a division of powers on the basis of foundations
3) System of Checks and Balances
à The theory of Separation of Powers involves a complex system of Checks and Balances. It means the executive organs wields some control over the other two, the legislature over the other two and judiciary over other two.
à This method of one branch halting the power of the other branches will act as an antidote to despotism.
1) No Concentration of Power:
à Powers should not be concentrated in the same body or in the same person.
à If all the powers are placed in the same branch of govt. there is bound to be tyranny.
2) Diffusion of Powers Needed:
à Powers are to be diffused by bringing about a division of powers on the basis of foundations
3) System of Checks and Balances
à The theory of Separation of Powers involves a complex system of Checks and Balances. It means the executive organs wields some control over the other two, the legislature over the other two and judiciary over other two.
à This method of one branch halting the power of the other branches will act as an antidote to despotism.
v
No
one is to have controlling power over either of the others and such Separation
is necessary for the purpose of preserving the liberty of the individuals and
for avoiding tyranny.
v
Criticism/Demerits:
1) The theory of Separation of Powers makes a mistake in assuming that the three branches of govt. are equally powerful. As a matter of fact, the legislature is by far the mightiest of all.
2) The theory of Separation of Powers is not desirable. Therefore, if there is complete Separation of Powers, the different organs of the govt. will not be able to work in co-operation and harmony.
3) Separation of Powers throws govt. into alternating conditions of coma and confusion.
4) Separation of Powers will lead to clash in between the organs.
5) Separation of Powers should not be given importance as co-operation between organs is more important.
1) The theory of Separation of Powers makes a mistake in assuming that the three branches of govt. are equally powerful. As a matter of fact, the legislature is by far the mightiest of all.
2) The theory of Separation of Powers is not desirable. Therefore, if there is complete Separation of Powers, the different organs of the govt. will not be able to work in co-operation and harmony.
3) Separation of Powers throws govt. into alternating conditions of coma and confusion.
4) Separation of Powers will lead to clash in between the organs.
5) Separation of Powers should not be given importance as co-operation between organs is more important.
v
Merits:
1) Aims at individual liberty, it is a safeguard against despotism..
2) Separation of Powers is desirable for maintaining the efficiency of administration.
3) It will help to avoid dictatorship.
4) Each organ acts as check upon the other.
1) Aims at individual liberty, it is a safeguard against despotism..
2) Separation of Powers is desirable for maintaining the efficiency of administration.
3) It will help to avoid dictatorship.
4) Each organ acts as check upon the other.
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