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Introduction
Power means ability. Separation of power means power's separation from one to another. When a
power divided into three branches in executive, legislative and judicial are called Separation of
powers. Government is process governing. It is the use of power divided from the law that is
approve by the legislature.It is means, methods manner or system of governing society and
organisation. Government is one of the most essential attributes of a state. We cannot have a
clear idea about a state without it.
The doctrine of separation of power means that separate of the organs of the government, the
legislative,executive or judicial should ever exercise the powers of the other. It means that three
departments of governments are to be separate and distinct. They are to be independent of one
another and each can exercise only the type of authority legislative, executive or judicial.
According to the theory of separation of powers, These three powers and functions of the
government must in a free democracy, always be kept separate and be exercised by three separate
organs of the government. Thus the legislature cannot exercise executive or judicial power, the
executive cannot exercise legislative or judicial power and the judiciary cannot exercise
legislative or executive power of the government.
Definition
According to Wade and Phillips, this doctrine of separation of power, means that the same person
should not compose more than one of the three departments of the government, one of
departments of the government, one department should not control and interfere with the acts of
the other two departments, and one department should not discharge two departments.
Separation of powers, therefore, refers to the division of government responsibilities into distinct
branches to limit any one branch from exercising the core functions of another. The intent is to
prevent the concentration of power and provide for checks and balances.
Historical background of Separation of Power
Thus Clement Waker, a member of the Long Parliament in 1648, saw distinctly enough the kind
of arbitrary, tyrannical rule against which the governed had to be protected. The remedy, le
thought, lay in a separation of governmental functions cast in terms of the Governing power,"
"the Legislative power," and "the Judicative power."
For Marchamont Nedham writing under Cromwell's Protectorate in 1656, the required separation
is that of legislative and executive powers into different "hands and persons." As used by him the
distinction resembles the sharp dichotomy between the formation of policy and its administration
favored by mid-twentieth-century American administrative theorists. Separation for Nedham, is
an indispensable means for acting responsibility and fixing accountability. An executive,
unanbiguously charged with executing a policy set by the "Lawmakers," can be hell liable for its
performance or nonperformance. Let that clear line of distinction and responsibility be blurred,
and liberty and the people's interest are alike in jeopardy.
John Trenchard's argument of 1698 carries Nedham's separation of power even further. One
might say that without separation of persons there cannot be a meaningful separation of powers,
Here, more than accountability is sought. The freedom of England depends on a truly
representative an uncorrupt House of Commons serving as a check on an executive which
already lus the power of the sword. Given the premise that it is certain that every Man will act
for his own Interest," the only safeguard against continual Heartburnings between King and
People" consists in so interweaving the representatives' interest with that of the people that in
acting for themselves, the representatives must likewise act for the common interest. As is true of
many eighteenth-century writers, Trenchard here drew on arguments for separation of powers
and for mixed or balanced government without sharply distinguishing the two.
The constituent assembly of France declared in1789 that there would be nothing like a
constitution in the country where the doctrine of Separation of power was not accepted.
Though theoretically, the doctrine of separation power was very sound, many defects surfaced
when it was sought to be applied in real life situation. Mainly, the following defects were found
in this doctrine:
1. Historically speaking, the theory was incorrect. There was no separation of power under
the British constitutions. At no point of time, this doctrine was adopted in England.
2. This doctrine was based on the assumption that the tree functions of government
legislative, executive and judicial are independent of and distinguishable from one
another. But in fact, it is not so. There are no watertight compartments. It is not easy to
draw a demarcating line between one power and another with mathematical precision.
3. It is impossible to take certain actions if this doctrine is accepted in its entirely. Thus, if
there legislature can only legislate, then it can not punish anyone, committing a breach of
its privilege; nor can it delegates any legislative functions even though it does not know
the details of the subject matter of the legislation and executive authority has expertise
over it; nor could the court frame rules of procedure to be adopted by them for disposal of
cases. Separation of power, thus can only be relative and not absolute.
Fundamental object of Montesquieu. In England, theory ’s doctrine was liberty and freedom of
an individual , but that cannot be achieved by mechanical division of functions and powers.
In England, theory of separation of powers are not accepted and yet it is known for the protection
of individual liberty. For freedom and liberty, it is necessary that there should be rule of law and
impartial and independent judiciary and eternal vigilance on the part of the subject
Firstly, it ensures that the different branches control each other. This is intended to make them
accountable to each other-these are the 'checks'.
Secondly , the separation of powers divides power between the different branches of
government-these are the 'balance'.
Balance aims to ensure that no individual or group of people in government is 'all powerful'.
Power is shared and not concentrated in one branch.
However ,there are some more reasons why separation of power is important. These are-
Its basic principle that concentration of powers leads to dictatorship is true for all time
and ages.
The separation of powers saves the people from the arbitrary rule of the executive.
This theory lays down the principle that governments should act according to certain well
established rules or law.
That is why we also often refer to the 'separation and balance of power'. The main purpose of the
separation of power is therefore to prevent the abuse of power.