Seperation of Powers – 1

The Term “Separation of Powers” was coined by the French Political Philosopher, Baron Bay Montesquieu in his book “The Spirit of Laws” in the year 1748.

According to Monstesquieu “When the legislature and Executive Powers are United in the same person or in the same body of people, there can be no liberty, there is no liberty if the powers of judging is not separated from the legislative and executive and hence there would be an end to everything if the same man or same body of man were to exercise those powers”.

Montesquieu in his book”The Spirit of Laws “has urged for a Constitutional Government with three Separate Branches of Government. Each of the three branches would have defined powers to check powers of other branches. He described the separation of political powers among a legislature, executive and the judiciary. His idea was to defend a form of government which was excessively centralized with powers in the hands of a single monarch.

John Locke, another philosopher of the 18th Century paid great attention to the problems of concentration of governmental powers. He stated that liberty suffers when the same human being makes the law and executes them. The Doctrine of Separation of Powers is a check against Tyrannical Rule.

MONTESQUIEU’S THEORY OF SEPARATION OF POWERS

The French Jurist Monstesquieu gave a very systematic and scientific formulation of the Doctrine of Separation of Powers. According to his theory, it means that no one person or body should be vested with all the three types of powers and there must be a division of functions on the following basis-

(a)   The legislature should make laws but not administer or enforce them

(b)   The executive must administer the laws so made but neither influence the legislature no stand in judgment of the same

(c)   The judiciary must determine the rights and upheld justice without taking over the functions of law making or administration

He further stated that such a separation is necessary, that in order to ensure that justice does not become arbitrary in nature

In short, Montesquieu has stated certain principle of this theory which is follows-

a)    No Concentration of Powers- This means that no one organ of the Government shall be vested completely with all the powers. There shall not be concentration of powers in the hands of any particular organ of the government shall be vested with limited powers pertaining to their respective spheres. With this, no one organ can have monopoly of powers and hence the balance is maintained

b)    Diffusion of powers needed- This means that in a constitutional set up, the powers are diffused amongst the various organs of the government. For instance, the power and authority to make and to bring the Amendments lies with the organ called executive whose primary duty is to execute the laws in the society in another words to administer the laws

c)     Finally the law which is administered shall be interpreted and adjudicated upon the organ called judiciary. Judiciary is responsible for ensuring whether the laws made by the legislature and constitutional or not

1)    System of Checks and Balances- Another principle of this doctrine is the system of checks and balances which exists between the three organs of the Government. One organ has the power to keep a check on another organ so that arbitrariness does not arise.

For instance, the judiciary has a power to keep a check on the legislature and executive by a way of Judicial Review. This means that if any law made by the legislature is against the principles of Constitution or Democracy, then in that case the Judiciary has the power to strike down that law.

2)   Preserving the Liberty of the Individual- This would mean that the Rights, Freedom and Liberty of the citizens are safeguarded and protected at the same time. If there does not exists separation of powers, tyranny is bound to occur and hence that would result into the liberty of the citizens being hampered sufferance. Absence of concentration of powers would automatically deliver justice and ensure that the freedom and liberty of subjects are not comprised with.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

Do follow me on FacebookTwitter  Youtube and Instagram.

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If you would also like to contribute to my website, then do share your articles or poems at adv.aishwaryasandeep@gmail.com

We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs.

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