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Montesquieu theory of separation of powers

This Article is to examine the system of Separation of Powers as advanced by the Constitution of India and the complexity faced by the three organs of government, viz., Legislature, Executive and Judiciary. The basic idea is that each of these organs should perform only one type of function. One organ must not concentrate on all the functions, otherwise, it will be a threat to democracy, for, in such matter, it may act in an arbitrary manner. The American Constitution scheme of separation of Powers has also been analyzed comparatively. The Doctrine of Separation of power has a principal purpose and that is to spread over governmental authority so as to guard against absolute and arbitrary powers of the states, and to assign each exercise to the institution best fit to discharge it. The principle behind the doctrine is that, if all power is focused in only one organ, there may raise the risk of tyrannical, jeopardizing one of the basic foundation of The Constitution Of India, i.e., democracy. Anyhow, each wing of the government should have a keen eye to ensure they do not end up violating fundamental as well as legal rights of the people. Although, while considering the doctrine of separation of powers, we have moved from the subject of law to that of political theory.

The proposition of the doctrine of suppuration of powers examined that the governmental functions must be based on three different and indeed independent bodies i.e., legislature, executive and judiciary. These three organs must be independent, distinct and sovereign in their own ambit and shall not disturb the functioning of the other. Theorists like Aristotle, Montesquieu, John Locke, and Harrington perceived and saw that there is a specialization of function in each Constitution developed the doctrine of superheating of powers and described them as legislative, executive and judicial. All the political thinkers were of the same opinion that, the rights and liberties of the people must be protected from absolute and autocratic rulers when all the powers are conferred and functioned by the same people.

There is an old proverb that, “power corrupts and absolute power corrupts absolutely”. In order to develop successful managing system, the man had been looking for a mechanism to restrain the forces of absolutism and authoritarianism. “Separation of Powers” was evolved to be one such mechanism.

It may be impossible to affirm exactly the origins of the doctrine of Separation of powers. Although, if we analyze the works of the Greek philosopher Aristotle, it is possible to observe a primitive doctrine of separation of powers. Thus in his Politics, Aristotle stated that:

There are three elements in each constitution in respect of which every serious lawgiver must look for what is advantageous to it; if these are well arranged, the constitution is bound to be well arranged, and the differences in constitutions are bound to correspond to the differences between each of these three elements. The three are, first the deliberative, which discusses everything of common importance; second, the officials. .; and third, the judicial element.

John Locke (1632-1704), the English political theorist also propose a threefold classification of powers. Composing in The Second Treatise of Government, Loke classified three-tier system: Legislature, Executive and Federative. In Locke’s analysis the legislature was superior and however the executive and federative powers were definite, the one concerned with the implementation of domestic law within the state and the other with a defense and external affairs, he, however, had a perspective that ‘they are almost united’ in the hands of same persons. Absent from his categorization is any reference fo independent judiciary. In addition, the correct functioning of these powers is achieved not through separation but on the grounds trust. Consequently, Locke’s analysis does not become the explanation of the separation of powers.

The doctrine achieved its full development in the hands of Charles Louis de Secondat, also known as Baron de Montesquieu (1689-1755). He realized that freedom was not secured if the executive and legislature were conferred by the same persons. He concluded the very idea of the separation of powers from his observation and ideas of the relation between the Parliament and the Stuart King. He thought parliament wouldn’t be arbitrary, and denial to the king of legislative power could make the rule by extemporary decrees impossible. Montesquieu having experienced dictatorship in monarchical France envied the other side of the channel. The Englishmen stood under the warm sunshine of the Magna Carta, was observed by him in the second half of the 17th century. The English Kind was left with no authority as soon as he lost his legislative and tax powers to the Parliament.

Montesquieu stated in his book, De L’Esprit des Lois ( The spirit of the Laws) 1748:

When legislative power is united with executive power in a single person or in a single body of the magistrates, there is no liberty, because one can fear that the same monarch or senate that makes tyrannical laws will executive them tyrannically. Nor is there liberty if the power of judging is not separate from legislative power and from executive power. If it were joined to legislative power, the power over the life and liberty of the citizen would be arbitrary, for the judge would be the legislator. If it were joined to executive power, the judge could have the force of an oppressor. All would be lost if the same man or the same body of principal men, either of nobles, or of the people, exercised these three powers: that of making the laws, that of executing public resolutions, and that of judging the crimes or the disputes of individuals.

The Doctrine in India has not been concord a constitutional status. Article 50 laid down the directive principle, which prompts separation of judiciary from the executive, no constitutional device incorporates any formalistic and dogmatic division of powers. The Parliament is given responsibility to make the law for the union. The executive is in charge of implementation of law and judiciary is given an independent status under the Constitution of India. Although, many deviations which nullify the exercise of the doctrine.

The President is conferred to executive powers of the union by the virtue of Article 53 and Governor is conferred to execution powers by the virtue of Article 154. With the cooperation and advice the council of ministers at the center under Article 74 and also at the state, the president and governor can use or exercise their powers. As soon as the state legislature is dissolved, the president is Entitled to make laws, also known as Presidential’s rule under Article 356. The President is vested with the power to vest with the power to disqualify any member of the house as per Article 103. The President appoints the Judges of the Supreme Court and parliament has the power to impeach judges. Under Article 75, The Union Council of Ministers is accountable to the Lok Sabha. The President can be impeached by the house as per Article 61. In certain regards, the Parliament is too concrete of the Judicial functions.

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