SEPARATION OF POWERS & JUDICIAL ACTIVISM
The doctrine of Separation of Powers deals with the mutual relations among the three organs of the Government namely legislature, executive and judiciary. The origin of this principle goes back to the period of Plato and Aristotle. It was Aristotle who for the first time classified the functions of the Government into three categories viz., deliberative, magisterial and judicial. Locks categorized the powers of the Government into three parts namely: continuous executive power, discontinuous legislative power and federative power. “Continuous executive power” implies the executive and the judicial power, “discontinuous legislative power” implies the rule making power, federative power‟ signifies the power regulating the foreign affairs. The French Jurist Montesquieu in his book Spirit of Laws published in 1748, for the first time enunciated the principle of separation of powers. That’s why he is known as modern exponent of this theory. Montesquieu`s doctrine, in essence, signifies the fact that one person or body of persons should not exercise all the three powers of the Government viz. legislative, executive and judiciary. In the view of Montesquieu: “When the legislative and executive powers are united in the same person, or in the same body or Magistrate, there can be no liberty. Again, there is no liberty if the judicial power is not separated from the Legislative and Executive power. The man object behind the theory of separation of powers is to protect the people again capricious tyrannical and whimsical powers of the State.
Separation of powers in United Kingdom: The famous English Jurist Blackstone supported the doctrine of Montesquieu. According to him, “where ever the right of making and enforcing the Law is vested in the same man or in the same body of men there can be no liberty”. During the 17th century in England Parliament exercised legislative powers. The King exercised executive powers, and the Courts exercised judicial powers, but with the emergence of cabinet system of Government i.e. Parliamentary form of Government, the doctrine remains no good. According to Wade and Phillips the doctrine of separation of powers implies: (i) The same person should not form more than one organ of the Government. (ii) One organ of the Government should not exercise the function of other organs of the Government. (iii) One organ of the Government should not encroach with the function of the other two organs of the Government. In England the King being the executive head s also an integral part of the legislature. His ministers are also members of one or other Houses of Parliament. This concept goes against the idea that same person should not form part of more than one organ of the Government. In England House of Commons control the executive. So far as judiciary is concerned, in theory House of Lords is the highest Court of the country but in practice judicial functions are discharged by persons who are appointed specially for this purpose; they are known as Law Lords and other persons who held judicial post. Thus we can say that doctrine of separation of powers is not an essential feature of British Constitution. Donoughmore Committee has aptly remarked: “In the British Constitution there is no such thing as the absolute separation of legislative, executive and judicial powers......”
Separation of powers in USA: The principle of separation of powers finds a good mention in the Constitution of United States. Madison, the Federalist observed; “The accumulation of all powers legislative, executive and judicial, in the same hands whether of one, a few or many and whether hereditary, self appointed or elective, may justly be pronounced the very definition of tyranny.” In American Constitution we find that legislative, executive and judicial powers are vested in separate entities. Section 1 of Article 1 declares: “All legislative powers herein granted shall be vested in a...
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