Separation of Powers PDF

# SEPARATION OF POWERS ## Separation of Powers - Means the mutual exclusiveness of the principal organs of government. - Requires that: - Legislature cannot exercise executive or judicial functions. - Executive cannot exercise legislative or judicial functions. - Judiciary cannot exerci...

# SEPARATION OF POWERS ## Separation of Powers - Means the mutual exclusiveness of the principal organs of government. - Requires that: - Legislature cannot exercise executive or judicial functions. - Executive cannot exercise legislative or judicial functions. - Judiciary cannot exercise legislative or executive functions. According to Wade & Phillips, the doctrine of "separation of powers" visualizes three basic propositions: - That the same persons should not form part of one of the 3 organs of the government - That one organ of the government should not control or interfere with the function of another organ. - That the one organ of the Govt should not exercise the functions assigned to any other organ. ## Reasons for the Origin of the Doctrine: - There is an old adage "Power Corrupts & absolute power corrupts absolutely" - There has been an age old conflict between individual liberty and the government. - Confidence on individuals when sweeping powers are conferred demands that those powers be also evolved so as to ensure that the government be also involved, so as to effectively answer the demands of power in an undue manner. - The protagonists of the view that "Separation of Power" were led to the establishment of authoritarian & totalitarian regimes. **Concept of "Separation of Powers" is of ancient origin.** - It has its origin in Ancient Greece & Rome. - Doctrine is traceable to Aristotle - The first Modern formulation of the doctrine was given by French Writer "Montesquieu" - Before him, it was also supported by English philosopher "**John Locke**" - "He said the legislative Power should be divided between King and parliament. - The term "Tria politica" or "Separation of Powers" was coined by "Montesquieu" - In his book, "Spirit of laws," he explained this concept. **Separation of Powers was the inspiration behind American & French revolution.** - In 1688, the Bill of rights was enacted. In that year, the King of England recognized the legislative powers of Parliament. - The King also recognized the judicial powers of courts. - "Spirit of Laws" written by Montesquieu in 1748. - Separation of Powers seems to be impracticable The truth is that each of the three functions of govt. contains elements of the other two. Any rigid attempt to separate those functions must either fail or cause serious inefficiency. ## Benefits of Separation of Powers: - It prevents power from vesting in a single body. - The separation of powers doctrine also intends to improve the energy of the government by allowing each branch to specialize in its unique function. - It also encourages democratic deliberations because claims in a democracy are based on constant & continuous assertion or pressure, & discussions are facilitated, & constant dialogues is claims prevent a single body enjoying supremacy. - **System of Checks & Balances** - This implies that the functioning of one organ is to be checked / measured by some other organ. - The most notable example of checks & balances in the doctrine is the power of the judiciary to oppose the executive conduct of a constitution and the fundamental rights. ## Defects in the Doctrine of Separation of Powers - The doctrine is based on the assumption that the three functions of the government, i.e., legislative, judiciary, executive, are independent & distinguishable. - But in fact, it is not so. There are no watertight compartments to demarcate a line between one power and another. - Modern State is a welfare state and has to solve complex socio-economic problems. Thus, it is not always possible to stick to the doctrine. - The modern interpretation of "Separation of Powers" is that there should be a distinction between essential and incidental powers. - A complete separation of powers may lead to constitutional deadlock. Thus, it is neither possible, feasible, nor desirable. ## Separation of Powers in U.S.A. - **Legislative Power**: - The law-making power is vested in the Congress. - Congress has the sole power to declare war as well as to raise support & regulate the military. - Congress qualifies the treaties to which the president has to consent to and consent to presidential appointments to federal executive. - Congress defines the law in cases not specified by the Constitution. - It regulates the interstate commerce and controls the federal budget. - **Executive Power**: - It is vested in the president of U.S.A - The president executes the instructions of Congress. - The president is the commander in chief of the army and navy. - He has the power to grant reprieves & pardons for offenses against the United States. - **Judicial Power**: - It is vested in the Supreme Court of U.S.A. - The Supreme Court determines which law Congress intended to apply in any given case. - Ut exercise judicial review. - In determines how a law acts to determine the disposition of prisoners. ## Separation of Powers in India: - India does not have a rigid separation of powers as under the Indian Constitution. - Parliament in India enjoys limited & restricted powers to which is not like British parliament because of the doctrine of Sovereignty of Parliament. - There is no express Separation of Powers. The presumed separation of power as executive is a part of legislature.