“Power analyze the separation of powers doctrine,
“Power tendsto corrupt, and absolute power corruptsabsolutely.” – John Acton THE DOCTRINE OFSEPARATION OF POWERS The separation ofpowers, also known as trias politica, was coined by Charles-Louis de Secondat.
The Doctrine of Separation of Power is the indication to all the constitutionsof the world which came into existence since the days of the “Magna Carta”. To analyze theseparation of powers doctrine, the theory aspect will be managed, and a farreaching comprehension of the teaching as utilized as a part of our nationunder our parliamentary arrangement of administration will be made. There should notconcentration of powers in the hands of any particular institution or agency ofthe Government.The Legislature shouldbe concerned with the making law but not in its implementation / administeringit· The Administration (Executive) shouldnot control the legislature nor should it over take the justice system becausedoing so it might lead to arbitrary and capricious justice.· The Judiciary should be independent ofExecutive and Legislation.
· The Doctrine says that, in a freedemocracy, these three functions are separated and exercised by three separateorgans of the Government.Each organ while carryingout its activities tends to interfere in the range of working of anotherfunctionary because a strict differentiation of functions is not possible intheir relations with the general public. Thus, even when acting in range of their own power, overlapping functions tendto appear amongst these organs.That is why today all the systems might not be opting for the strict separationof powers because that is undesirable and unrealistic but consequences of thisconcept can be seen in almost all the countries in its diluted.In theory separation ofpowers doctrine, aims at separating power and distributing it such that oppressionby the government may be prevented altogether as equivalent power which acts inthree separate organs which act as a check and balance for each other. Thus handingover a different function to each organ and creating selective functions forthem, helps grouping of powers and makes this doctrine a success. In fact thisdoctrine has been adopted around the world in many constitutions and in ourdegree to an extent as well. It is an exceptional way of protecting humanliberty, freedom and creating a system of procedure of governance which isresponsible, reasonable and dependable.
The doctrine ofseparation of powers has become an integral part of the governmental structure.But, the practical application of the doctrine differs to a great extent. Intheory, the doctrine of separation of powers is supposed to have a threefoldclassification of functions and parallel organs.
But because of the diverse andcomplex nature of a modern state, where the process of law making,administration and settlement cannot be clearly defined to separateinstitutions, the application of this doctrine in strict sense is verydifficult. It the government’srole to protect individual rights, but governments have generally been the realviolators of these rights. Thus, various measures have been determined tolessen this probability.
The concept of Separation of Powers is one suchconcept. The basic assumption behind this is that when a single person or grouphas a large amount of power, they can become dangerous to citizens. TheSeparation of power is a way of removing the amount of power in any group’shands, making it more difficult to abuse. Being variable innature, the doctrine, can be understood as being clearly committed to the achievementof political freedom or liberty, an essential part of which is the restriction ongovernmental power, and that this can best be achieved by setting up divisionswithin the government to prevent the centralization of such power in the handsof a single body of men.
Characteristically, the doctrine is normative innature prescribing certain governmental arrangements which should be created orin order to achieve certain desirable ends. A major problem in an approach tothe literature on the doctrine of the separation of powers is that a fewwriters define exactly what they mean by it, what its essential views are, andhow it relates to the other ideas. For this reason generally, one can find muchconfusion and chaos in discussions relating to its origin as the exact natureof the claims being made for one thinker or the other are not measured againstany clear definition.
It is essential for the establishment and maintenance ofpolitical liberty that the government be divided into three branches ordepartments, the legislature, the executive, and the judiciary. To each ofthese branches there is a corresponding identifiable function of government,legislative, executive or judicial. Each branch of the government must beconfined to the exercise of its own function and not allowed to infringe uponthe functions of the other branches. Moreover, the people who make these threeagencies of government, must be kept separate and distinct where no individualshould be allowed to be at the same time a member of more than one branch. Inthis way each of the branches will be a check to the others and no single groupof people will be able to control the mechanism of the State.