The executive carries out those laws and the judiciary interprets and deems how these laws apply in specific cases. The theory of separation of powers states that these three organs of government should separated from and independent of one another and each should be supreme within its own sphere.
This functional division of powers of the government is known as the separation of power whereas regional division of powers goes by the name ‘federalism.”
The theory of the separation of powers is desirably two reasons. Firstly, since the functions of modern government are manifold and of a varied nature, the efficiency of Ministration requires that they should be separated and they can be best performed by different authorities.
Secondly, for the sake of maintenance of liberty, powers should be separated. Lord Acton has rightly said “Power corrupts, absolute power corrupts absolutely”- Power is. There fore, corruptive in nature unless there is a check on it. Too much concentration of power leads to loss of individual liberty.
Development of the Theory:
Aristotle was the first political scientist to distinguish between the three functions of the State. He divided the governmental functions into Deliberative, Magisterial and Judicial, corresponding roughly to the executive and the judicial functions of modern governments.
However, in early societies, there was no clear distinction among these functions as the king was the sole lawgiver, the chief executive and the supreme judge. Polybius and Cicero, two Roman writers who came after Aristotle, hinted at the three-fold division of State functions. They laid emphasis on a “balanced equilibrium of power”. But in ancient Rome, the theory was not strictly followed. During the middle Ages no contribution was made to the theory of separation of powers.
Bodin, the French political philosopher of the 16th century, was the first modern writer to demand a separation of powers. He insisted on the separation of judicial function from the other two functions.
John Locke, an English political Philosopher, divided the powers of government into the legislative, the executive and the federative.
By federative functions, Locke meant the diplomatic power and the functions of maintaining the, interest of the communities and individuals in relation to other, communities. Sometimes executive and federative functions are, exercised the same body of men.
Locke forgot to mention an important organ of government, namely, the judiciary. The theory of separation of powers emerged finally from the writings of Montesquieu, the celebrated French writer of the 18th century.
He is the most exhaustive and pronounced author on the theory of separation of powers and he is mainly responsible for bring], the theory into limelight. Therefore, he is known as the modern originator of the doctrine of separation of powers.
Montesquieu, in his book, “The Spirit of Laws” published in 1748, gave the classic exposition of the idea of separation of powers. He lived in France during the Bourbon monarchy which had established ‘enlightened despotism’ and where people enjoyed no freedom.
The monarch combined in his person all the three powers. His authority was unquestionable and his word was law Louis XIV, the French monarch, once asserted, “I am the State,
Montesquieu developed his idea of separation of powers as a theory of liberty. For him liberty was the highest good and signified moral freedom, that is, freedom under law. He admired the British system which, he believed, ensured the greatest liberty to its subjects.
In England liberty was secured because of the theory of separation of powers. Thus, he concluded that if France would incorporate the theory of separation of powers, it won guarantee liberty to the people. He was completely against royal despotism.
He explained the theory in the following way: “When the legislative and executive powers are united in the same person or in the same body of Magistrates, there can be no liberty, because apprehension may arise lest the same monarch or Senate should enact tyrannical laws and execute them in tyrannical manner.
Again, there is no liberty if the judicial power be not separated from the legislative and the executive. When it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control for the judge who would then be the legislator where it joined with the executive power, the judge might behave violence and suppression.
Further, he explained. “These powers (here he means only the two parts of the legislative plus the executive) should bring about a state of repose or in action.But since by the necessary movement of things, they are obliged.
To move they will be forced to move in concert.”
To explain language, the separation of powers implies the following three things:
(1) the governmental process involves three major activities “namely, legislative, executive and judicial and each should accordingly be performed separately,
(2) the same person or body of persons should not be entrusted with more than one function of government,
(3) each organ should check and balance the other and thus prevent encroachment upon each other’s sphere of activity.
The essence of the theory of separation of power is that it establishes ‘government by laws and not by men’ by limiting the powers of different organs. As pointed out earlier, it safeguards individual liberty and promotes administrative efficiency.
Blackstone, an English jurist, who published his book “Commentaries on the Laws of England ” in 1765, supported Montesquieu by saying that “wherever the right of making and enforcing the law is vested in the same man or in the same body of men, there can be no liberty.” He added the theory of checks and balances to it. Most of the democratic governments like the U.S.A. are based on the theory of separation of powers with necessary checks and balances.
Criticism of Theory of Separation of Powers
1. The theory has been criticised on the ground that government is an organic unity. The different organs of the State are mere parts of it. These parts have no expression without the whole. The smooth working of a modern government calls not so much for separation and isolation of powers as it does for co-operation and co-ordination of them.
2. The theory leads to troublesome deadlocks. If the three organs “love like three parallel lines which do not meet, there is Possibility of inertia and anarchy. For the smooth working of government, there should be a certain degree of harmony among the various organs of government. The cabinet, in a parliamentary form of government, serves as a co-ordinating link.
3. Some critics maintain the view that the efficient working of a government demands 110 separations of powers. A good principle of Political Science is that power and responsibility should march together. If powers are divided in this way they tend towards irresponsibility. Separation of powers therefore, often means confusion of responsibility.
4. The theory of separation of powers cannot alone safeguard the liberty of the citizens. Liberty does not depend upon mere mechanical device of separation of powers. It depends upon the spirit of the people, their outlook, their laws institutions, traditions and customs, etc. Eternal vigilance of people is said to be final guarantee of liberty.
5. Critics also argue that functions of government do not fall into three classes. This tripartite division is unscientific. Some authors recognise a two-fold division of governmental functions, viz. The law-making or resolving organ and the law-executive or administrative organ. Some other authors maintain a fivefold division of governmental functions, viz (a) executive (non-permanent), (b) legislative, (c) judiciary (d) civil services (permanent executive), and (e) electorate.
6. The theory assumes that all organs are equal. This is far from the truth. In practice, the legislative organ is superior to the two organs in most of the countries. The Legislature lays down the rules which the Executive is to execute and the Judiciary is to apply them in individual cases.
7. Lastly, Garner states that the theory is impracticable as a working principle of government. The strict separation of powers is neither possible nor desirable. Therefore, it is not strictly adopted in any modern State. The communist States reject this theory out and out.