Question; Critically evaluate the theory of "separation of power"?
Or; Explain the separation of powers theory.
Or, Write an essay on the principle of separation of powers.
Or" explain in detail the principle of separation of powers.
Or, Discuss The theory of separation of power based on wrong assumptions.
Or; Discuss the merits and demerits of separation of power theory.
Or; Critically examine the theory of separation of powers.
Or; Explain the importance of the principle of separation of powers.
Principle of separation of powers
Meaning of Separation of Powers
The Separation of Power Principle is the name of the independence of the three powers of the government, the executive, the executive and the judiciary. Scholars believe that only by keeping these three powers of the government in separate hands, the interests of the people will be protected. Thus according to the separation of powers principle, the legislature, executive, and judiciary should not interfere in each other's work.
definition of separation of power
According to Gatick, "The principle that different institutions of individuals should perform different government functions, each department should be confined to its field of work without interfering with other departments and be completely independent in its field, is called the principle of separation of powers."
According to Iqbal Narayan, "The expression and use of power should be free in all three forms, administration, execution and justice. The powers relating to these three should be in separate hands; the departments related to them should be completely independent in their respective fields and anyone- Do not interfere in the power and rights of other departments; this principle is called the principle of separation of power.
Support the theory of separation of powers
Proponents of the separation of powers theory hold that different abilities are needed to make laws, administer laws and do justice. Therefore, these three powers of the government should not be commanded by one person but by different persons.
Montesquieu said, "If the powers of the Legislative Council and the Executive are concentrated in a single person or body, then independence will end."
Hamilton clearly said, "The concentration of all these powers in one place of the legislature, executive, and judiciary is the definition of tyranny."
The theory of the history of separation of power
Historically, the separation of powers theory is associated with the name of the 18th-century French thinker Montesquieu. But in the formulation and development of this theory before Montesquieu, the ideas of Greek thinkers Plato, Aristotle, Roman thinker Cicero, Palivius, 14th century Marsilio of Pedua, 16th-century French thinker Bodun, 17th century John Locke etc. have contributed.
The credit for propounding the separation of powers theory before Montesquieu goes to the father of political science, Aristotle. Although Plato had presented the idea of a mixed state through his treatise "Lodge", Aristotle(Arastu), in Aristotle's book Politics, has three departments named Assembly, Magistracy and Judicial. is mentioned.
John Locke has also considered this principle in his book "Civil Government". Locke has differentiated three powers of modern government. He has mentioned the legislature, the executive and the foreign department. Lock said that if all three powers are in the hands of one person, then there is a possibility of spreading corruption.
Bodan is the first modern thinker to propose the idea of separation of powers. He supported the devolution of judicial functions to a separate institution.
Montesquieu's theory of separation of powers
Just as Austin's "theory of sovereignty" is famous, Montesquieu's theory of separation of powers is also famous in political science. Montesquieu has elaborated on this principle in his book "The Spirit of Law". The rulers of Montesquieu had an autocratic state, and the freedom of individuals was not secure. Therefore, he was a strong supporter of the protection of individual liberty. In 1726 AD, he visited England and was impressed by the prevailing spirit of freedom there. By studying the external structure of England's governance, he discovered this secret of independence. He saw that England's legislative, executive and judicial functions are performed by separate departments, whereas in France, they are all under the same autocratic monarch. It is due to the centralization of powers that the freedom of the people in France is in danger, and it is because of the separation of powers that individual liberty has been protected in England. From this, Montesquieu concluded that to protect individual liberty and civil rights, all the powers of the government should not be concentrated in a single person but should be divided among different individuals or groups of people.
Explaining the principle of separation of powers, Montesquieu has written, "If the laws and the powers to enforce them are combined in the hands of a single person or group of persons, then freedom is impossible…. should, he should be confined to his field of work and should not try to influence or exert control over the work of other organs." If the administrative and executive powers are concentrated in the same hands, then no Freedom cannot exist! Similarly, if the power of justice cannot be separated from the power of the legislature and the executive. Similarly, if judicial power is not separated from the legislative and executive power, even then, independence cannot be possible! If the same person or community starts doing all three things, then freedom will be destroyed, and the state will start doing its own thing.
British thinker Blackstone and other thinkers supported Montesquieu's views. Blackstone said, "Wherever the right to make laws and implement their vests in a single person or group of persons. Their public liberty is destroyed because the ruler Can make tyrannical laws and implement them arbitrarily. Suppose judicial rights are combined with the legislature. In that case, the rights of life, liberty and property of the subjects come into the hands of arbitrary judges, who give all the decisions according to their opinion. Not according to the basic laws. If the judiciary is combined with the executive, the place of the legislature becomes secondary. Madison also considered the division of powers as necessary for individual freedom.
Evaluation of Separation of Power Theory
Montesquieu's purpose was clear. He opposed the autocracy of governance and the uncontrolled and limitless use of the powers of the government by an individual or institution. Therefore, he supported the functioning of every organ of the government decently. He did not want one part of the government to interfere in the affairs of the other. For this, it supported the policy of "Power should be a check to power". Laski states that the judiciary must be independent of the executive to maintain independence. Separation of power in this sense There is an enduring truth in the principle of the law, for it is clear that if the executive can modify judicial decisions at will, it will be the uncontrolled master of the state."
Importance or merit of separation of powers theory
The separation of powers theory has the following properties--
1. Defence of individual liberty
It is said that power makes a man evil, and the more power a man has, the worse he becomes. When the entire power of the state is concentrated in a single person or group of people, then the government becomes tyrannical, but when the power of governance is divided among the legislature, executive and judiciary, then the freedom of the individual and his rights are protected. Therefore, the separation of power is very important for individual freedom.
2. Guarantee of fairness
Due to the separation of power of governance and being completely independent in their respective areas, the legislature and executive cannot interfere in the field of judiciary. Therefore, they fail to influence judicial decisions in any way. In this way, the poor and powerless person in society also gets a guarantee of getting fair justice. Judges also dispose of the charges fairly and impartially.
3. Making laws based on public welfare
When controlled by the legislature, the king or the central government gets the decision passed according to his selfishness and personal interests and tries to become autocratic. But, on the contrary, when the legislature is free from the clutches of the executive, then being independent in its sphere, it always makes laws that are public welfare. Therefore, the legislature must be independent in its sphere of public interest.
4. Increase in Administrative Efficiency
When the three powers of governance are separate and independent, the executive gets more opportunities to oversee the administration. It enforces those laws which are made in the public interest and not in personal interest. Therefore, people have immense interest in implementing public welfare laws, and administration becomes more precise, efficient and efficient.
5. Each organ of government is more responsible
Based on separation of power, the three organs of the government are divided into executive, legislature and judiciary, so each department performs its specific functions with special ability, dedication and a sense of greater responsibility. No department can pass its responsibility on to others if found guilty. So they work with a sense of greater responsibility.
Defects of Separation of Power Theory
The following are the demerits of the separation of powers principle--
1. Decrease in the Responsibility of the Executive
If the executive and the legislature become independent, the executive will not be responsible to the legislature and will act arbitrarily. Therefore, at that time, the executive's responsibility will also decrease.
2. Lack of cooperation of organs
With the separation of powers, the three organs of the government will work independently, and they will not cooperate. This will stop the work of the government completely.
3. Weakness of Governance
Due to the lack of cooperation of the organs, the government becomes weak. Similarly, due to the disturbance of balance in the organs of the government, the body system becomes weak, and there is slackness in the work of the government.
4. Impracticality of Division of Power
No definite line can be drawn for the functions of the government. The works done by the government are so close to each other that they cannot be divided. Hence the division of power theory is an impractical theory.
5. Civil Liberties Not Guaranteed
The mere division of the power of governance into different parts does not guarantee the protection of civil liberties.
Criticism of separation of power theory
From the theoretical point of view, the principle of separation of powers presents the basis for the establishment of ideal governance, but in practice, it is not possible to implement this principle in its original form. For this reason, this theory has also been criticized. The main grounds of criticism are as follows--
1. Complete Separation Not Possible
Separation of Power Theory supports the complete separation of the three organs of governance, but it is impossible. The state is an organic organization. Various organs are intertwined with this. There is a mutual dependence between the three organs; all three get power from each other and cooperate, and the whole government is a unit in which different departments work together. According to Gatil, "Government is made up of many organs performing different functions, but it has a common function and purpose, for the support of harmonious cooperation between them is extremely necessary. Therefore, a firm line of separation must be drawn between the different departments. can."
2. Fear of Deadlock
In the separation of power, there is a fear of deadlock in the functioning of the three organs of the government. Such a deadlock can often arise when the executive is of another idea (party), and the legislature is of another.
3. This principle is useless for a public welfare state
This happens because the work is done in a planned manner in a public welfare state. This is possible only when the executive is strong.
4. Theory Inspired by Wrong Examples
This theory is based on the delusion of Montesquieu that there is more freedom in Britain because there is a separation of power. In contrast, in practice, there is no separation of power, but the law of law is the reason for the person getting more rights.
5. Separation of Powers Not Necessary to Protect Freedom
The proponents of the Separation of Power theory have emphasised that separating the three organs of governance is necessary for the individual's freedom. But in practice, separation of power does not guarantee civil liberties. It is of no less importance that, as a result of the separation of power, three centres of power may develop in place of one, and as a result of separation, three centres of power may develop in place of one, and the citizen may get crushed between these power centres. For civil liberties, the rule of law, the system of fundamental rights, the establishment of the "right to information", etc., are important.