“Power is not possible in their relations with
to corrupt, and absolute power corrupts
– John Acton
THE DOCTRINE OF
SEPARATION OF POWERS
The separation of
powers, also known as trias politica, was coined by Charles-Louis de Secondat.
The Doctrine of Separation of Power is the indication to all the constitutions
of the world which came into existence since the days of the “Magna Carta”.
To analyze the
separation of powers doctrine, the theory aspect will be managed, and a far
reaching comprehension of the teaching as utilized as a part of our nation
under our parliamentary arrangement of administration will be made.
There should not
concentration of powers in the hands of any particular institution or agency of
The Legislature should
be concerned with the making law but not in its implementation / administering
The Administration (Executive) should
not control the legislature nor should it over take the justice system because
doing so it might lead to arbitrary and capricious justice.
The Judiciary should be independent of
Executive and Legislation.
The Doctrine says that, in a free
democracy, these three functions are separated and exercised by three separate
organs of the Government.
Each organ while carrying
out its activities tends to interfere in the range of working of another
functionary because a strict differentiation of functions is not possible in
their relations with the general public.
Thus, even when acting in range of their own power, overlapping functions tend
to appear amongst these organs.
That is why today all the systems might not be opting for the strict separation
of powers because that is undesirable and unrealistic but consequences of this
concept can be seen in almost all the countries in its diluted.
In theory separation of
powers doctrine, aims at separating power and distributing it such that oppression
by the government may be prevented altogether as equivalent power which acts in
three separate organs which act as a check and balance for each other. Thus handing
over a different function to each organ and creating selective functions for
them, helps grouping of powers and makes this doctrine a success. In fact this
doctrine has been adopted around the world in many constitutions and in our
degree to an extent as well. It is an exceptional way of protecting human
liberty, freedom and creating a system of procedure of governance which is
responsible, reasonable and dependable.
The doctrine of
separation of powers has become an integral part of the governmental structure.
But, the practical application of the doctrine differs to a great extent. In
theory, the doctrine of separation of powers is supposed to have a threefold
classification of functions and parallel organs. But because of the diverse and
complex nature of a modern state, where the process of law making,
administration and settlement cannot be clearly defined to separate
institutions, the application of this doctrine in strict sense is very
It the government’s
role to protect individual rights, but governments have generally been the real
violators of these rights. Thus, various measures have been determined to
lessen this probability. The concept of Separation of Powers is one such
concept. The basic assumption behind this is that when a single person or group
has a large amount of power, they can become dangerous to citizens. The
Separation of power is a way of removing the amount of power in any group’s
hands, making it more difficult to abuse.
Being variable in
nature, the doctrine, can be understood as being clearly committed to the achievement
of political freedom or liberty, an essential part of which is the restriction on
governmental power, and that this can best be achieved by setting up divisions
within the government to prevent the centralization of such power in the hands
of a single body of men. Characteristically, the doctrine is normative in
nature prescribing certain governmental arrangements which should be created or
in order to achieve certain desirable ends. A major problem in an approach to
the literature on the doctrine of the separation of powers is that a few
writers define exactly what they mean by it, what its essential views are, and
how it relates to the other ideas. For this reason generally, one can find much
confusion and chaos in discussions relating to its origin as the exact nature
of the claims being made for one thinker or the other are not measured against
any clear definition. It is essential for the establishment and maintenance of
political liberty that the government be divided into three branches or
departments, the legislature, the executive, and the judiciary. To each of
these branches there is a corresponding identifiable function of government,
legislative, executive or judicial. Each branch of the government must be
confined to the exercise of its own function and not allowed to infringe upon
the functions of the other branches. Moreover, the people who make these three
agencies of government, must be kept separate and distinct where no individual
should be allowed to be at the same time a member of more than one branch. In
this way each of the branches will be a check to the others and no single group
of people will be able to control the mechanism of the State.