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Separation of Powers
1. Introduction:
According to Montisquieu, there are three organs of the
government, the legislative, the exective and the judiciary, and they are free
from each other. This separation and independence of powers of the organs is
the very esserice of democracy.
2. Explanation:
Montesquieu observes in his book
“The Spirit of Law” when the legislative and the executive powers are united in
the person or in the same body of the magistrates, there can be no liberty,
because apprehension may arise, lest the same monarch should enact tyrannical
laws to execute them in a tyrannical manner.
3. Need for Separation of Powers:
The conditions of life in modern
states have become very complex and for this purpose political thinkers have
suggested certain devices by which governmental work can be carried on in order
to make the people happy and prosperous giving them the maximum amount of
liberty, without loss of efficiency of administration. Briefly speaking, this
theory implies that each department should limited to it own sphere of action without
encroaching upon the others and that each should be independent within its own
sphere.
4. The Theory of Separation of Powers:
It is necessary for the student of
constitutional law to known how the machinery of government works, to what extent
the various powers are combined in the same person or body of persons, how far
are they separate.
5. Application of the theory to Modern
government:
It is difficult to say that to
what extent the three functions of the state should be combined or separated in
modern governments. The different constitutions of the modern world tell us
that there cannot be rigid separation of powers but there is a tendency all
over the world towards union or unity of purpose.
6. Separation of Powers and the British
Constitution:
The three organs of government
exist in England as in other countries. The executive and the legislative wing
are inter-related rather blended.
i.
Legislature and the Executive:
The sovereign who is the head of the executive also forms part
of the parliament.
The legislature i.e. the parliament is sovereign and the
government can retain power only so long as it commands the confidence of the
majority in the parliament.
ii.
Judiciary:
The monarch is
responsible for making much judicial appointment. The judiciary exercises
legislative functions in so far as it prescribes rule of court. The judicial
powers are entrusted to the executive agencies.
8. Important
point:
We
notice that in England the doctrine of separation of powers has been used to
maintain the independence of judiciary and to guard against granting of excessive
powers to the minister in the field of delegated legislation.
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