Here is an essay on the ‘Separation of Powers’ for class 11 and 12. Find paragraphs, long and short essays on the ‘Separation of Powers’ especially written for school and college students.
Separation of Powers
Essay Contents:
- Essay on the Genesis of Separation of Powers
- Essay on Origin and Development of the Theory of Separation of Powers
- Essay on the Separation of Powers in England
- Essay on Separation of Powers in the USA
- Essay on the Separation of Powers in India
- Essay on Value of the Theory of Separation of Powers
- Essay on Criticism of the Theory of Separation of Powers
Essay # 1. The Genesis of Separation of Powers:
There are three distinct activities in every government through which the will of the people are expressed. These are legislative, executive and judicial functions of the government. Corresponding to these three activities there are three organs of the government, namely the legislature, executive and judiciary.
The legislative organ of the government makes laws, the executive enforces them and the judiciary applies them to specific cases arising out of the breach of law.
Now the question comes what should be the relation among these three departments of the government. In other words, whether there should be complete separation of powers or there should be co-ordination among them. St. Thomas Aquinas, who belonged to the medieval period, was a campaigner against the theory of separation of powers.
He said:
“The greater the unity within the government itself, the greater the likelihood of achieving unity among the people.”
In the ancient period, there was nothing like separation of powers and the King would himself make law, execute it and act as the judge. But modern governments believe in the separation of power based on the doctrine of division of labour to ensure uprightness and efficiency in the discharge of such powers.
Then comes the other question- what is meant by the doctrine of separation of powers? We have just noticed the different functions of the government, which are three in number, namely the legislative, executive and judicial. Corresponding to these three kinds of functions there are three departments, namely the legislature, the executive and the judiciary.
The legislature makes amends and repeals the laws. The function of the executive is to enforce these laws. The judiciary is entrusted with the tasks of interpreting and applying them to specific cases arising out of breach of laws.
These three types of functions or organs may be kept in the hands of one person or a body of persons. This will be a case of absence of separation of powers. It is more common in practice today to assign these three organs to three distinct bodies.
In the latter case there will be the presence of separation of powers. In the second type of division of powers the legislature will only legislate and will refrain from executing the law or interpreting it.
Similarly, the executive will only execute the law and refrain from making law or interpreting it. Likewise, the judiciary’s exclusive function will be to adjudicate and not to make or enforce law. The theory of separation of powers believes that combination of these two or three powers in one person or one set of persons will result in tyranny, as it happened in medieval Europe.
Essay # 2. Origin and Development of the Theory of Separation of Powers:
It is not possible to say precisely since when the theory of separation of powers was first propagated or experimented. The earliest known date is that of Aristotle (4th century B.C.) and Cicero (106 – 43 B.C.). In Aristotle’s view the state will have before it three functions, namely deliberative, magisterial and judicial.
A French philosopher, Jean Bodin, made a fresh emphasis on the need of separation of these three powers. He specially hammered on keeping the judiciary outside the purview of the other two organs. According to Bodin, the judiciary has a special case of remaining separate and independent of others.
The above is a hazy account of the origin and development of the doctrine of separation of powers. It was the celebrated French philosopher Charles-Louis Montesquieu (1689-1755) who was the first to scientifically study this theory so much so that this theory is associated with his name. He held out this theory in his book The Spirit of Laws published in 1748.
The reason for Montesquieu’s holding a brief for separation of power was his experience of the tyrannical regime of Louis XIV who had all-pervading powers in France.
He would identify himself with the state and would take pride in saying:
“I am the state.”
He arrogated to himself all the legislative, executive and judicial powers of France.
For Montesquieu, the doctrine of separation of power involving mutual exclusiveness of the organs of the government consists of three elements.
First, there are three organs of the government, namely legislature, executive and judiciary; second, each of these organs must work strictly within its own sphere and there ought not to be any encroachment of anyone on the other; third, if there is encroachment, it is bound to cause tyranny.
The three organs are three water-tight compartments and the functions of one cannot at all be exercised by the other. When the three organs of the state overstep the mutual exclusiveness in their functioning and seem to encroach upon each other, the question arises who is superior over whom in terms of jurisdiction and power.
According to Montesquieu, there was no civil liberty in France because of the combination of all powers in the hands of a single person.
So he emphatically observed:
“There would be an end of everything, were the same man, or the same body whether of the nobles or the people, exercise these three powers.”
His visit to England in 1730 made him see the excellent liberties enjoyed by the people of England and he construed this to the separation of powers in England. Here Montesquieu fell into error, because there was no separation of powers in England. So he erroneously concluded that civil liberty in England was safe, because the English constitution was based on the principle of separation of powers.
But the French philosopher was perfectly correct to observe:
“When the legislative and the executive powers are united in the same person or in the same body of persons, there can be no liberty, because they make tyrannical laws and execute them in a tyrannical manner. Again, if judicial authority is combined with legislative, the life and liberty of the subjects would be subjected to arbitrary control. If judiciary is joined with executive, the judge might behave with violence and oppression.”
Thus the crux of the need for a separation of powers is couched in the above observation of Montesquieu. After Montesquieu the important constitutional figures to give credence to the doctrine are Sir William Blackstone and James Madison. Both are at one with Montesquieu that only answer to the abuse of powers is the separation of powers.
Blackstone hammered home:
“Whenever the right of making and enforcing the law is vested in the same man or one and the same body of men, there can be no public liberty.”
According to Madison:
“The accumulation of all powers, legislative, executive and judicial in the same hands may justly be pronounced the very definition of tyranny.”
Essay # 3. Separation of Powers in England:
In England, with the immense increase in legislative business, the vast rule-making powers which the government acquires under every new law and the free use of the party whip to keep the majority in line, it is indeed the executive which exercises increasing control over the legislature.
England must have executive, legislative and judicial branches, but what is significant is that the government in England is not established according to the principle of separation of powers, since there the legislative chooses the executive, which depends upon the legislative both for power and holding of office.
So there is no separation of power in England. Yet, England has the best type of civil liberty protected and the English judges are never influenced by the executive. It shows the maturity of public opinion holding the balance even in the absence of separation of powers.
Essay # 4. Separation of Powers in the USA:
One of the basic features of the constitution of the USA is the distribution of national powers among three departments whose political and constitutional independence are guaranteed.
Thus the power of the President, for example, comes not from the congress but from the constitution. What is most important is that the personnel of each of the three branches are chosen by different procedures and hold office independently of the other branches. It is this independence of the three branches, not just the distribution of functions, which is the central feature of the American system of separation of powers.
The framers of the American constitution feared concentration of powers in a single branch. To them, separation of powers and checks and balances were desirable to prevent official tyranny and even more importantly to prevent single segment of the population – majority or minority – from gaining complete control of the government.
It was hoped that by making each branch accountable to different groups a variety of interests would be reflected. For that reason, compromises and balancing of interests became inevitable.
The doctrine of separation of powers is also described as a “sharing of powers by separate institution.” Thus each department is given a voice in the business of the other. And each is, at the same time, made dependent upon the cooperation of the others in order to accomplish its own business.
It is through this blending of powers by politically dependent branches that the doctrine of checks and balances is made effective.
The makers of the constitution of the USA accepted as an unchallengeable maxim that the only way to avoid governmental tyranny is to put the legislative, executive and judicial powers in separate departments. This separation of power is not only a political theory about the proper organisation of the government but also a doctrine of constitutional law involving the Supreme Court of the country.
It is in accordance with this principle that the federal courts decline to perform non-judicial functions. It is on this ground too that the exercise of non-legislative functions by the Congress in connection with legislative investigations are judicially ensured in the USA.
Essay # 5. Separation of Powers in India:
Justice K. Subba Rao, former Chief Justice of India, observed in the famous Golaknath case:
“The constitution of India has created three major instruments of power, namely the legislature, executive and judiciary. It demarcates their jurisdiction minutely and expects them to exercise their respective powers without overstepping their limits. They should function within the sphere allotted to them.”
Mrs. Indira Gandhi laid more emphasis on it:
“Democracy could not survive unless the three organs of the government – judiciary, legislature and executive confine their functions to their respective fields. Although unlike the American constitution, the Indian constitution does not recognise any rigid separation of powers, the political usefulness of the doctrine of separation of powers is now widely recognised.”
The constitution of India divides the three categories of executive, legislative and judicial functions. Though this division of functions is not based on the doctrine of separation of powers as in the USA, yet there is broad division of functions between the appropriate theories so that, for example, the legislature will not be entitled to arrogate to itself the judicial function.
In this connection the Supreme Court of India observed:
” The Indian constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the government have been sufficiently differentiated and consequently it can very well be said that our constitution does not contemplate assumption, by one organ or part of the state, of functions that essentially belong to another.
Essay # 6. Value of the Theory of Separation of Powers:
The theory of separation of powers exercised significant influence in the eighteenth century Europe. The most monumental constitutional document that came in the fashion of the separation of powers is the federal constitution of the USA of 1789. As a corollary to it was modelled some of the constitutions of the provinces of the USA.
So it is said that the practicability of the separation theory was first tried in the USA.
Herman Finer was, therefore, correct when he observed:
“The United States constitution is an essay in the separation of powers and is the most important polity in the world that operates on that principle.” In the USA the President is given exclusively the executive authority, the Congress the legislative and the Supreme Court the judicial.
So if one is to know the practical implementation of the separation of powers, for him the best model is the constitution of the USA. When monarchy was overthrown in France and a republic was established there instead, the framework of the First Republic of France was in line with the separation of powers.
The rumble of the separation of powers was heard like a thunder in the French Constituent Assembly of 1789, which declared:
“Every society in which the separation of powers is not determined has no constitution.”
Essay # 7. Criticism of the Theory of Separation of Powers:
The eighteenth century was the palmy days for the theory of separation of powers. But it faced attacks in the nineteenth century.
The following are some of the scathing criticisms of the theory:
1. The Theory of Separation of Powers Violates the Organic Unity of the Government:
The major attack on this theory of separation of power is that it attacks on the organic unity of the functions of the government and injects a kind of dissension in the governmental functions by emphasising on the demarcation of governmental powers. According to John Stuart Mill, absolute separation and independence of the governmental powers would result in frequent deadlocks and general inefficiency.
Harold J. Laski believed that separation of powers would result in confusion of powers. Herman Finer’s view is that complete separation of powers would degenerate lack of unity, harmony
and efficiency.
For R. M. MacIver:
“The line between legislative enactment and executive or judicial decision is never hard and fast.”
He pointed out that in a modern state the legislature performs some executive and judicial functions. Similarly, the executive is also endowed with some legislative and judicial, functions.
2. The Theory of Separation of Powers is Impracticable:
The constitution of the USA is the finest example of the separation of powers. There the legislative powers are exclusively given to the Congress, the executive power is the sole concern of the President and the judicial business is carried out by the Supreme Court. But in the USA also there is no water-tight separation of powers. There the President is not only the chief executive but the chief legislator also.
The senate of the USA, which is the upper house, shares with the President in some of his executive functions like making appointments and treaties. We may, therefore, accept the view of R. M. MacIver that “the absolute separation of powers prescribed by Montesquieu is obviously impossible.”
According to Montesquieu’s famous political theory, a democratic state must necessarily keep separate the three great organs of government, namely, the executive, the legislature and the judiciary. In practice, such a separation is never fully achieved and overlapping of the three functions cannot be avoided. The threads of the three powers always become intertwined to a greater or lesser extent.
The degree of separation is usually determined by the political climate of a state. Perhaps the USA comes closer to the ideal of complete separation, where it is almost nil with the totalitarian countries.
In this context De Tocqueville rightly said that the more pronounced the separation – particularly where constitutional checks and balances control the working of all three powers – the more remote is the danger of dictatorship. England is a country where the separation of power does not exist. Yet the judges of England enjoy wide independence.
3. The Theory is Unworkable in a Parliamentary System of Government:
In a parliamentary system of government the executive is responsible to the legislature as it is in England and India. So Montesquieu’s formula of keeping the legislature away from meddling in the executive is ineffective in a parliamentary government.
In England and India there is a good deal of intimacy between the executive and the legislature so much so that the executive survives on the blood donated by the legislature.
The legislature makes the executive and can unmake it also. In England the House of Lords, which is the upper house of the parliament is the highest court of law. Even the executive in England and India has a big hand in the making of laws of the land. So Montesquieu has no place in a parliamentary form of government.
4. The Theory Wrongly Suggests that all the Organs are Equal in Strength:
Montesquieu would have us believe that all the three organs of the government are equal in power. This is not correct. As a matter of fact, in all democratic countries the most powerful organ is the legislature, because it makes and unmakes the laws which are the veins of every nation. It is the legislature which acts as the springboard and dominates over other departments.
It is the legislature which acts as the mouthpiece of the people, because it is directly elected by the people.
So R. M. MacIver rightly said:
“This objection is an essential condition of all responsible governments, without which democracy cannot exist.”
Its primacy over other organs is also discernible in the fact that it controls the purse of the nation. All money bills are to be passed by the legislature and this power of the legislature is a big noose that it can tighten around the neck of other organs.
5. The Theory does not ensure Individual Liberty:
The very charm or attraction of the theory of separation of powers as propounded by Montesquieu was that it guarantees individual liberty by eliminating the abuse of powers. This is not correct. England which has no separation of powers, enjoys the fruits of democracy and civil liberty more and better than any other country of the world.
This is so because the character of the English race is one of conscience and vigilance to safeguard their own liberty. So John Stuart Mill rightly said that eternal vigilance is the price of liberty. Mill did not believe in the theory of Montesquieu that separation of power is a sure elixir to invigorate civil liberty.
Conclusion:
Complete separation of powers is neither desirable nor practicable. For the purpose of obtaining efficiency there may be specialisation of functions and to that extent there may be some kind of separation of functions. So Montesquieu should have used “separation of functions” instead of “separation of powers.”
In this context Harold J. Laski wrote:
“It is necessary to have a separation of functions which need not imply separation of personnel.”
So we may go through with the suggestion that the strict separation of powers is not only impracticable as a working principle of government but it is not to be desired in practice.
So we may conclude with the words of R. M. MacIver:
“The absolute separation of powers prescribed by Montesquieu is obviously impossible.”
We shall now go to study what should be or what is in actual practice the relation among the three organs of government:
i. Relation between the Legislature and the Executive:
In the constitutional structure, the relation that exists between the legislature and the executive is a controversial one. According to Charles-Louis Montesquieu and Sir William Blackstone, the two principal organs, namely the legislature and the executive, should be kept separate and exclusive.
But John Stuart Mill and Harold J. Laski held the contrary view that there should be coordination between the legislature and the executive.
Moreover, it is not possible to keep these two departments into two water-tight compartments. In practice, the legislature discharges some executive functions and the executive, in its turn, performs some legislative functions also. We are going to discuss them now.
(a) Executive functions of the legislature:
The legislature is prone to perform the following executive functions:
(i) The legislature has a special role in the executive field, particularly in the parliamentary form of government. As a matter of fact, the life of the executive in a cabinet form of government is totally dependent on the will of the legislature. It is the legislature which elects the executive from itself.
After election, the executive has to be responsible to the legislature. If the legislature expresses its no-confidence in the executive, the latter must resign. Thus, from birth to its death, the executive is tied to the chariot-wheel of the legislature.
(ii) Even in a presidential form of government the legislature has its share in the executive field. Thus in the USA the Senate which is the upper house, shares the executive functions of the President like making appointments and making treaties.
(b) Legislative functions of the executive:
The executive also performs some legislative functions as noted below:
(i) In a parliamentary system of government the chi
ef executive like the Queen of England and the President of India summons and prorogues the legislature. The authority can dissolve the lower house and order for fresh elections.
(ii) It is a practice in almost all the countries of the world to refer the bill passed by the legislature to the chief executive for approval. Unless the chief executive okays the bill, it cannot be law. The chief executive can withhold his assent which is called the veto power of the executive over the legislature.
(iii) When the legislature is in recess, some urgent laws can be made by the chief executive by promulgating ordinances which will have the force of law. The life of an ordinance varies from state to state. It is a short-term measure. This is a direct legislative fiat of the executive.
(iv) In a parliamentary form of government the executive has a mass of legislative spade-work. It is the executive that initiates a bill in the legislature. So in a cabinet government a minister initiates bills in the legislature. A bill sponsored by a private member has little scope of success in the absence of direct patronage from the ministers.
Thus we find that the Prasar Bharati Bill to ensure autonomy to the All India Radio and the Doordarshan was piloted by the Minister for Information and broadcasting in the V. P. Singh Government.
(v) The executive makes what is called “delegated legislation”. The legislature cannot make the minutest details of all laws. It frames only the broad laws. The minor aspect of the legislation is done by the rule-making powers of the executive. These rules and regulations which have the same force as law is the exclusive legislative domain of the executive.
(vi) The executive also shares the legislative functions of the nature of financial legislations like the budget and the Finance Act. In England and India, no money bill can be introduced in the legislature without the prior approval of the Queen or the President.
(vii) The executive supplies the leadership to the legislature. It initiates, formulates and explains the legislative policy and asks the legislature to accept it. Even the President of the USA has such a myriad of legislative functions that he has come to be nicknamed the “chief legislator”.
In the parliamentary government the legislature chooses the executive as its trustee and supervises over the functioning of the trust. From whatever angle of vision we look at it, the legislature and the executive are two wheels of a chariot and must have a harmonious and meaningful relation.
Conclusion:
The orthodox separation of power between the legislature and the executive is not possible and a student of political science knows how these three wings transgress and poach into other’s field. The recent trend is the ascendancy of the executive over the legislature.
As a matter of fact, the legislation is dictated by the executive as per its own policy and programme, because the legislature consists of the majority members belonging to the political party, to which the executive belongs.
Mrs. Indira Gandhi wanted to abolish the privy purse and, in order to get the needed majority, she ordered for a mid-term poll. When she got the needed majority in the parliament the parliament made the constitutional amendment. Thus the desire of the executive was ritualised by the legislature that gave the post facto approval.
ii. Relation between the Legislature and the Judiciary:
Although the legislature and the judiciary must not muddle with other’s playground, we find some kind of affinity between these two organs of government.
(a) Judicial functions of the legislature:
The legislature performs some judicial functions. We shall describe these below:
(i) Some legislatures are by themselves courts of law. For example, the House of Lords, which are the upper house in England, is the highest court of appeal in that country. But in other countries, the legislature, instead of being a regular court of law, discharges some functions that partake the nature of a court of law.
For example, the Senate, which is the upper house of the USA, is the highest forum to impeach the public servants. Similarly, the parliament of India acts as a court of law while impeaching the President of India.
(ii) The trial or punishment for the purpose of removing the Judges of the Supreme Court and the High Courts of India takes place in the chamber of the two houses of parliament. It is the parliament, i.e., the legislature that can take a resolution for the removal of a judge.
(iii) Disputes with regard to the election cases are decided by the parliament of England. The parliament has the power to punish its members for breach of privilege. For the same charge the parliament can arrest a private citizen. No appeal lies in any higher courts against such decisions.
(b) Legislative functions of the judiciary:
The judiciary also plays a very fruitful legislative role.
(i) It is common knowledge that when a new case comes up before the judiciary that cannot be covered by the existing laws, the judges are to make new laws by giving what are called the rulings. These laws are called the judge-made laws or judicial laws. These are also commonly called the judicial precedents.
When a judge has to open ground in a barren field he is to go by his conscience based on justice, equity and good sense.
(ii) The books on law including the constitution of a country contain the written laws of that country. But these laws are of dubious interpretations. Who will then tell what the real meaning of these laws are? It is the judiciary that will play that vital role. The Supreme Court of the USA by mountains of decisions has changed the complexion of the constitutional laws and, as a matter of fact, handed down a new constitution.
The old and original constitution has been disfigured beyond recognition. It is for this reason that Harold J. Laski called the Supreme Court of the USA the third chamber of American legislation.
iii. Relationship between the Executive and the Judiciary:
It is admitted in all hands that the executive must not interfere with the judiciary for the sake of safeguarding the civil liberty of the individuals. According to Charles-Louis Montesquieu, if the executive is given judicial functions that executive will be oppressive. But simple arithmetic is no solution for a political conviction.
So we find the executive and the judiciary travelling beyond their limits. Nowhere and never have judges been able to go against the established system. Their independence has never reached higher than the ruling class. Thus we find that the Supreme Court of the USA upheld slavery which had to be abolished by an executive fiat in the hands of the President of the USA, Abraham Lincoln.
So Lord Bacon put it in his famous essay of judicature:
“Judges are lions, but lions under the throne”.
The political throne upon which the executive sits has always a primacy over the judiciary.
(a) Judicial functions of the executive:
The executive performs some judicial functions as a matter of expediency.
Some of them are jotted down here:
(i) It is the executive that selects and appoints the judges in most of the countries of the world. By such appointing powers the executive exercises a kind of control over the judiciary.
(ii) The chief executive of almost all countries is the highest authority to grant pardon, reprieve and respite. It is a major judicial power of the executive, because it can annul the punishment put upon a person by the ordinary courts of law.
(iii) In the continental countries like France the public servants are tried not in ordinary courts of law but in administrative co
urts which are manned by the executive.
(iv) In modern India there are some administrative tribunals or statutory tribunals, like Motor Vehicle Claims Tribunal, Income-tax Appellate Tribunal, etc., that are run by the executive just like regular courts of law.
(b) Executive functions of the judiciary:
The judiciary too, in certain cases and to a certain extent, discharges some functions which partake the nature of executive functions.
The following are some of the pointers in that direction:
(i) As a matter of fact, the judiciary has no executive function. What it has is a kind of control over the executive by declaring null and void a decision of the executive if it is unreasonable or outside the power of the executive.
In the USA every executive measure must go to the Supreme Court for clearance. It means that whether the executive measure is reasonable or constitutional must be scrutinised by the courts of law.
This system is called the judicial review. Although the system of judicial review does not obtain in India, any executive action can be challenged by any individual in the Supreme Court or the High Courts to test whether these measures are within the power of the executive.
(ii) The Supreme Court and High Courts in India are empowered to appoint their local officials and subordinate staff. This is an executive function of the judiciary. The judiciary also appoints receivers, guardians and trustees and appoints clericals and other functionaries.