Research

Only available on StudyMode
  • Download(s) : 43
  • Published : December 26, 2012
Open Document
Text Preview
Chapter-I
DOCTRINE OF SEPARATION OF POWER

A) Meaning of Separation of Powers
The doctrine of separation of powers implies that there should be three separate organs of government with their separate sets of functions and powers. In other words, it implies that the three organs of government should be kept apart from each other in interest of individual liberty. The functions of the government should be differentiated and performed by different organs consisting of different bodies of persons so that each department be limited to its respective sphere of activity and not be able to encroach upon the independence and jurisdiction of another. The whole idea is based on the maxim that power should be check to power. Thus, the constitution should be so designed that no organ of the government be made to do things to which it is not obliged or empowered. “Legislative bodies are concerned in the making of law; executive officials in the enforcement law; and judicial officials in the interpretation of the meaning of law and its application of it to individuals in cases of dispute or of failure to observe it. The theory that these functions should be performed by different bodies of persons, that each department should be limited to its own sphere of action without encroaching upon the others and that it should be independent within that sphere, is called theory of Separation of Powers.” Separation of power is a system of government where power is split among multiple groups and branches. This means instead of all the powers to govern a country is separated among different branches. The premise behind the separation of powers 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 method of removing the amount of power in any groups hands, making it more difficult to abuse. For clarifying the concept of Separation of Powers, a few definitions are being given below: Montesquieu in the following words stated the Doctrine of Separation of Powers, “there would be an end of everything , were the same man or same body, whether of the nobles or the people, to exercise those three powers, that of enacting laws, that of executing laws, that of executing the public resolutions, and of trying the causes of individuals.” Blackstone & Jefferson were also in concurrence with Montesquieu. They also believed that if right of making and enforcing the law or two functions of government are vested in same man, it would result in making of tyrannical laws and can precisely be the definition of despotic government. John Locke in his book, “The Second Treatise on Civil Government”, stated that, “the three arms of government must not get into one hand for it may be too great a danger for the same person to have the power of making laws and executing them at the same time whereby they may exempt themselves from obedience of the law they make and suit the law both in its making and execution in their own interest.”

Madison wrote: "the accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny." Madison recognised the need for a division of powers in order to protect the people from tyrannical government; but it should not be assumed that the separation of powers was treated merely as a brake on power. Though the doctrine made it harder for an oppressive regime to rule, it also aimed to enhance good government.

Probably the leading modern work on separation of powers is by Professor Vile, published in England in 1967: "Constitutionalism and the Separation of Powers" where the following definition is given: A 'pure doctrine' of the separation of powers might be formulated in the following way: It is essential for the establishment and maintenance of political liberty that the government be divided into three branches or departments, the legislature, the...
tracking img