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Separation of Powers

The document discusses the concept of separation of powers, which divides government into legislative, executive, and judicial branches. It aims to prevent any one branch from having too much power. While India follows a separation of functions rather than strict powers, there are checks and balances, such as the judiciary striking down unconstitutional laws. The concept originated with Aristotle and was further developed by philosophers like Locke and Montesquieu. The purpose is to guard against abuse of power and ensure freedom. Separation of powers means each branch has different persons and does not interfere with other branches. It is important for preventing arbitrary rule and protecting civil liberties.

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Tamizh Kavi
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117 views2 pages

Separation of Powers

The document discusses the concept of separation of powers, which divides government into legislative, executive, and judicial branches. It aims to prevent any one branch from having too much power. While India follows a separation of functions rather than strict powers, there are checks and balances, such as the judiciary striking down unconstitutional laws. The concept originated with Aristotle and was further developed by philosophers like Locke and Montesquieu. The purpose is to guard against abuse of power and ensure freedom. Separation of powers means each branch has different persons and does not interfere with other branches. It is important for preventing arbitrary rule and protecting civil liberties.

Uploaded by

Tamizh Kavi
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as DOCX, PDF, TXT or read online on Scribd
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1) SEPARATION OF POWERS

Introduction:
Separation of powers is the division of the legislative, executive, and judicial functions of
government. It minimizes the possibility of arbitrary excesses by the government, since the
sanction of all three branches is required for the making, executing, and administering of laws.
The constitutional demarcation precludes the concentration of excessive power by any branch of
the Government. In India, a separation of functions rather than of powers is followed. Unlike in
the US, in India, the concept of separation of powers is not adhered to strictly. However, a
system of checks and balances have been put in place in such a manner that the judiciary has the
power to strike down any unconstitutional laws passed by the legislature. Today, most of the
constitutional systems do not have a strict separation of powers between the various organs in the
classical sense because it is impractical.
Historical Background:

 This concept was first seen in the works of Aristotle, in the 4th century BCE, wherein he
described the three agencies of the government as General Assembly, Public Officials
and Judiciary.
 In the Ancient Roman Republic too, a similar concept was followed. Each branch is
divided into separate branches, with separate and independent powers, and areas of
responsibility so that powers of one branch is not in conflict with that of other branches.
 The Modern design of the principle of separation of powers was elaborated in
constitutional theory of John Locke (1632- 1704).
 In modern times, it was 18th-century French philosopher Montesquieu who made the
doctrine a highly systematic and scientific one, in his book De l’esprit des lois (The Spirit
of Laws).
 His work is based on an understanding of the English system which was showing a
propensity towards a greater distinction between the three organs of government.
Purpose of the Separation:
The purpose of separation of powers is to prevent abuse of power by a single person or a group
of individuals. It will guard the society against the arbitrary, irrational and tyrannical powers of
the state, safeguard freedom for all and allocate each function to the suitable organs of the state
for effective discharge of their respective duties.
Meaning of Separation of Powers:
Separation of powers divides the mechanism of governance into three branches i.e. Legislature,
Executive and the Judiciary. Although different authors give different definitions, in general, we
can frame three features of this doctrine.

1. Each organ should have different persons in capacity, i.e., a person with a function in one
organ should not be a part of another organ.
2. One organ should not interfere in the functioning of the other organs.
3. One organ should not exercise a function of another organ (they should stick to their
mandate only).
Thus, these broad spheres are determined, but in a complex country like India there often arises
conflict and transgression by one branch over the other.
Significance of the doctrine
Whenever there is a concentration of power in one centre/authority, there is bound to be greater
chances of maladministration, corruption, nepotism and abuse of power. This principle ensures
that autocracy does not creep into a democratic system. It protects citizens from arbitrary rule.
Hence, the importance of the Separation of Powers doctrine can be summed up as follows:

1. Keeps away autocracy


2. Safeguards individual liberty
3. Helps create an efficient administration
4. Judiciary’s independence is maintained
5. Prevents the legislature from enacting arbitrary or unconstitutional laws
6. It helps maintain constitutional balance between 3 organs of the government.

According to Dicey, the doctrine rests on the necessity of preventing the government, the
legislature and the courts from encroaching upon one another’s province.

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