BA LLB note for 1st semester: What is meant by the principle of ‘Separation of powers’? Give illustrations, State and analyse the theory of ‘Separation of Powers’. How far: is it practicable for modern welfare state ? , What do you understand by the theory of separation of powers? Add your criticism ?
Table of Contents
SEPARATION OF POWERS
– Q. 1. What is meant by the principle of ‘Separation of powers’? Give illustrations.
. State and analyse the theory of ‘Separation of Powers’. How far: is it practicable for modern welfare state ?
What do you understand by the theory of separation of powers? Add your criticism ?
Ans. Primitive society was not complex and the work with the government was not very heavy. In fact, the state was only a police state and responsible only for the collection of revenues, punishing the people and defending them only from external aggressions. T’he state activity did not extended beyond that. The king was the foundation head of law, chief executive to implement them as well as chief justice of the state to interpret them. He, thus, had all the executive, legislature and judicial functions. But these days scope of state activity has considerably increased. From a police state, it has now become a welfare state in which scope of state activity has widely increased. From simplicity it has now got a complex character. As Gettell has pointed out, “Because of the extent of modern states in area and population and because of the wide range of interests with which their Governments deal, a large number of persons are occupied in a Government, and considerable distribution of power among various organs is necessary.”
Problem of relationship between the executive and legislature or judiciary has been a problem since the time of Aristotle. He divided the function of government into there distinct and divisible parts. We find indirect references about this theory in the writings of Cecero, Locke and Bodin. But none of them could develop this theory to its logical conclusions. It was only in the writings of Montesquieu, that theory was developed to its logical conclusions. Montesquieu, a French thinker of 18th century, mentioned this theory in his book L’Esprit des Lois or the Spirit of Laws’ published in 1784.
Enunciation of Theory. Montesqueive was living in France at a time when the country was under absolute monarchy. The monarch combined in himself all the three powers, i.e., the executive, legislative and judicial. He felt that the people of France were not enjoying freedom at all and their sufferings were because there was combination of powers. He also travelled to England where he saw that the legislature had no
executive powers, the monarch had no courage to enter the floor of: the House and that the judiciary was quite independent of both the executive and the legislature. He also saw that the people of England were enjoying perfect liberty. This was because there was separation of powers in England. He, therefore, came to the conclusion that “Liberty can consist in the power of doing what we ought to will, and in not being constrained to do what we ought not to will….. there would be an end of everything were the same man or the same body …… to exercise these three powers.” He further said that “….. when the legislative and the executive powers are united in the same person or body of persons, there can be no liberty, for apprehension may arise lest the same body of persons or authority should enact tyrannical laws and execute them in a tyrannical manner.”
Blackstone’s view. Views of Montesqueiue were closely followed by Blackstone an English Jurist, who also believed in the theory of separation of powers. In this book ‘Commentaries on the Laws of England he said, ‘In all tyrannical governments, the supreme power and rights both of making, defending and enforcing laws is vested in the same man or one and the same body of men and when these two powers are united together there is no public liberty.”
After Blackstone this theory was supported by Madison. He believed that …… the accumulation of all powers, legislative, executive and judicial, in the same hands …. may justly be pronounced the very definition of tyranny.’
Criticism. Theory of separation of powers as expounded by Montesquieu and followed by Blackstone and Madison has been put to much criticism on the following grounds :
(i) It is impracticable. The theory of Separation of Powers, though very nice to look at and hear, unsound and impracticable. It is impossible to divide the three departments into water-tight compartments. On the contrary, if this water-tight compartment is allowed to exist it will create many deadlocks. Smooth and harmonious working of state will come to a standstill. There departments of the government, namely the executive, the legislative and the judiciary, are interconnected with each other and have over-lapping functions. This theory is, therefore, impracticable.
(ii) It is undesirable. As pointed out by Garner, this theory is not only impracticable but also undesirable. But ‘undesirability he meant As is it was found that the theory could be put into practice, it
was not desirable to put that into practice. It is argued that from all
canons it is essential that state should be treated as a homogeneous unity. Any division, in thc homogencous character of the state will mean betraying the nation. Division in various departments shall mean dividing the nation itself. Gettell says that “governments are not machines, but are bodies of men. The functions perfomed by the various parts adjust themselves to one another by a gradual and constantly changing process.”
(iii) It is not essential for individual liberty. Montesquieu has argued that theory will ensure individual liberty but he forgets that liberties never come either by theories or by slogans but by vigilance. Constant vigilance is the price for liberty and those who pay this price are rewarded. Simple letters of the law or theory will not help the individuals in getting liberties. As pointed out by Gettell “In a democratic state, concentration of authority in the organ most directly representing the people may secure greater liberty than divided powers granted to independent and irresponsible organs.”
(iv) Negative attitude of liberty. This theory takes liberty in its negative sense. It implies that the people should have a right to do whatever they want to do. They theory implies that no department should check activities of any other department and that each and every department be free to do whatever it likes. Thus it means that individual should not be checked by stale authority and that is one department curbs his liberty he should have access to other departments for getting his grievances redressed. Such an attitude towards liberty is clearly dangerous
(v) Divided Responsibility or No Responsibility. If this theory is put into practice, it will result in divided responsibility. For all actions, delays and deadlocks each department will try to blame and othc., and yet none will be willing to accept the responsibility. Whether wanted or unwanted, desirable and undesirable. each department will try to clear its lines in the public. Thus, there shall be no possibility of fixing responsibility on any department. On the contrary if there is one deparment, e.g., the executive government, then it shall alone be called upon to explain for its conduct and behavior: This very department shall be held responsible before the public for all its failures. The national shall thus get an opportunity to replace such an executive from office.
(vi) Role of Political Parties. In all democratic, party system has, Come to stay. In fact, it is an integral wheel of democratic machinery
and acts as a link between the elected and the electorates. If a single political party happens to control both the executive and legislature, të then idea of separation of powers will cease to exist because both shall follow the same policies and programmes. On the other hand, if different two political parties control the executive and the legislature, there shall be deadlocks. Thus in both cases, the theory does not work. .
(vii) Inequality of organs, Montesquieu’s theory is based on the idea that all the three departments of government, namely the executive, the legislature and the judiciary, enjoy co-equal powers. It also believes that for all purpose all the three organs are at par. Though, in theory this may be said so yet in practice who can deny that the legislature is required to perform many more functions and has a superior hand over other departments. Ils superiority is also established because it controls national finances. The organ which has the power to impose taxes and allow expenditure has definite superiority over other organs. Therefore, Montesquieu’s theory falls on the ground since he fails to recognise this basic and fundamental distinction.
(viii) Division of functions and not ‘powers’. Theory of separation of powers has also been critised on the ground that Montesquieu has failed to distinguish between ‘powers’ and ‘Functions’. What his intention was that there should be clear cut demarcation in the functions of each department. But has has confused ‘functions’ with ‘powers’, e.g., power of making and unmaking government in a democracy vests in the people, i.e., the electorates. He has suggested division of functions.
(ix) Theory is based on wrong notions. Montesquieu has based his theory on the notion that the people of England enjoy liberty because, there is complete separation of powers. But he is miserably wrong. He forgets that there is complete fusion and merging of power in parliamentary forms of government in which the executive and legislature are so closely linked together that it is impossible to separate them. The real executive, i.e., the ministers are members of legislature as well. In England, from where he took inspiration Upper House of legislature, i.e., House of Lords, is also the highest court of appeal, and thus there is complete merger of legislature with judiciary. He took inspiration from a wrong source and thus the very foundations of this theory are faulty and defective.
Influence of theory. The theory had sufficiently strong influence in its age. la the 18th century when the constitution of First French was enacted its impact was very clear. French Constituent
Assembly declared that “Every society in which the separation of power is not determined has no constitution.” The framers of U.S. Constitution were also much influenced by it. That is perhaps the reason that the Constitution of U.S.A. has provided for complete separation of powers of the executive, the legislature and the judiciary. The executive having no right to enter the floor of the House and legislature setting as an isolated body deliberating its own business. At the top being judiciary with the powers of declaring any law as unconstitutional and ultra vires. The Constitution has also introduced a system of checks and balances which each organ checks and counter checks the activities and working
of other organs.
Conclusion. It cannot be denied that basically Montesquieu theory of separation of powers is most desirable and ought to be accepted. No one can deny that concentration of power and authority can result in oppression and tyranny. But in its extreme form it is dangerous for good government. As pointed out by Geitle, “Extreme separation of powers prevents the unity and co-ordination necessary to administer the legally expressed will of the state extreme checks and balances create friction and deadlocks that prevent smooth and efficient governments.” This has been found in the working of U.S. Constitution where this theory in actual operation has proved a faiiure and the followers of the Constitution have been forced to revise their opinion. They have ‘introduced an element of liberalisation by the doctrine of implied powers through the help of courts.
But complete giving up of the theory is equally dangerous. It will also lead to dangerous consequences which the society may not be willing to bear. We may, therefore, safely conclude that separation to the extent possible according to needs and requirements of each state is most desirable. It must be the aim of each state to have complete separation with efficiency in administration and harmony in the working of each department.
Q. 2. How far in your opinion the theory of ‘Separation of Powers’ is relevant to the needs of a modern state ?
Ans. Theory of ‘Separation of Powers’ in Modern States. Montesquieu lived in the 18th century and accordingly expounded his theory as per the circumstances and conditions of his times. He was living in a despotic age in which every rule: ruled his subjects with an iron hand. The state was then a police state with the sole duty of with collecting taxes and spending them either for personal glamour or
maintaining strong armies or waging wars. The ruler was one in all and combined in himself all executive, legislative and judicial power. Many a time he was also a tyrant. The subjects enjoyed no liberties, had no rights, claimed no authority and their good citizenship depended on complete obedience of the orders of rulers. It was the foremost duty of each and every citizens of the state to bow before the wishes of the ruler and in actual practice, the citizens also did so. In the circumstances Montesquieu was right to think that concentration of powers was denial of liberty and that decentralisation of power and authority will be in the interest of individuals.
But conditions in a modern state are quite different. Today even the humblest is not going to bow before the unwanted commands of any authority. Democracy has brought awakening, wisdom and sense of respect and prestige. The people know their rights as well as their duties. They also understand that rights and duties must go hand in hand. The functions of the state too have drastically changed. The state has become a welfare state instead of a police state. The nature and character along with the extent and magnitude of its functions has also changed. The state is required to look after the welfare of the people in all circumstances and is responsible for the promotion of social, economic and political welfare of the people.
Whether these vast functions can be performed with “Theory of separation of powers” as its basis or versa is a problem. Some persons believe that there should be clear separation of powers. They argue that with more and more powers, functions and authority vested in the executive government any concentration of powers will be most dangerous and destructive. If the rulers in the past were despotic the executive of today with vast authority can also become so. The therefore, strongly feel that there should be complete and water-light division of departments. Each department should act as a check upon the activities of the other. There should be provision and scope for each individual to represent his case to the other and higher department or officer.
On the other hand, there are others who are of the opinion that there should be no separation of powers at all. They believe that “separation’ will lead to many complex problems. According to them state is an organic unity. It is solid one and can work as one united force. Any division in it will lead to delays, inefficiency and red-tapism. It is also felt that in a modern state complete separation too is not possible because each department has overlapping functions. Executive is required to perform legislative functions, similarly judiciary
performs executive and legislative and judicial functions, and so on. Separation can set the whole social order into anarchy and chans, Modern overlapping of functions can well be understood when Banker says that “If the growth of the legislative organ, in consequence of the development of the cabinet system, was the notable feature of eighteenth century, it may be said that the growth of the executive organ, in consequence of the extension of rights and corresponding extension of rights and corresponding extension of services which mostly fall to the lot of the executive, is the noblest features of the 20th century.”
Moreover, the present age is the age of planning in which unplanned economy is not only considered undesirable but dangerous to society. Each state is now a plan-ridden state because it is felt that planning helps in useful, exploitation of national resources. Planning cannot works successfully and smoothly unless there is close understanding among various departments. Each department counter-acting the activities of the other will frustrate the very purpose of planning.
Then come the ‘civil services. These services are organised on unified basis and have become an integral, indispensable and most important part of our administrative set-up. It is expected of each civil servant to work with honesty, integrity, and for the nation as a whole. He is required to look after the welfare and working of a single department but for the nation as one unified single whole. Any separation will make the working of civil services most un-scientific. It shall also be throwing the administrative set-up in all states out of gear which no nation can afford.
Then is the ‘party system’ which has come to stay. Political parties are essential for the working of all democratic institutions and these days act as a link between the rulers and the electorates. Even if theory of separation of powers is accepted in principle with the existence of strong party system either there will be absolute harmony or deadlocks and thus useless in both the case. :: Conclusion. It is basically agreed that ‘separation of powers’ is essential for promoting civil liberties and ending despotism and tyranny. But it is not in tune with the needs of a modern state. Water-tight compartments of various departments is both undesirable and impracticable. The need is there, but the theory should not be implemented at the cost of efficiency and smooth working of government
social, economic and political set-up in country.