Separation of Powers

The separation of powers is a model for federative and democratic nations. The state is structured into three distinct branches: legislative, executive, and judicial, each with distinct powers and responsibilities. In a nutshell, it is the norm that every state government should follow to adopt, execute, and apply laws effectively. If this rule is not observed, more power abuse and corruption will be observed. If this idea is followed, dictatorial laws will be less likely to be enacted since another branch will check them. It aspires for a clear division of power and a distinct purpose for each organ.

The concept of separation of power

Charles de Montesquieu was the first to use the term “separation of powers” or “trias –politica,” which means “three powers.” When Greece originally approved it, it went on to be widely used by the Roman Republic as the Constitution of the Roman Republic, which was the first time this had happened. Its origins may be traced back to Aristotle and Plato when this idea was included as a component of their wonders. In the 16th and 17th centuries, British politician Locke and French philosopher Justice Bodin stated their views on this idea, as did other thinkers of the same period. Montesquieu was the first to express this notion scientifically, properly, and systemically in his work “Esprit des Lois” (The Spirit of Laws), which was published in 1785 and is considered the foundation of modern legal theory.

When Montesquieu wrote his book “Esprit des Lois” in 1747, he was the first to establish the idea of separation of powers. He was also a French scientist. (This is the spirit of the laws.) As Montesquieu demonstrated, when power is concentrated in the hands of a single individual or group of individuals, a dictatorial government arises. Rather than being trapped in this situation, he suggested that the three branches of government, the Executive, the Legislative, and the Judiciary, should have a clear division of authority to restrict the government’s arbitrary character.

According to the separation of powers theory, there are three different ways to categorise governmental authority, which are as follows:

• The government’s three branches should not allow a single person to serve in more than one of the branches. Those in positions of authority, such as ministers, should not be permitted to sit in the House of Commons

• It should not be permissible for one government organ to interfere with the operations of another

• It is not acceptable for one organ of government to perform the functions of another organ of government.

Meaning of separation of power

Different authors provide their interpretations of the term “separation of powers.” Although there are several variations on this theme, the meaning of separation of powers can be broadly divided into three categories.

It is inappropriate for someone who is a part of one organ to also be a part of another organ.

The functioning of one organ should not impair the functioning of the other organs.

It is not acceptable for one organ to perform the function of another organ in the same body.

The concept of trias politica serves as the foundation for the separation of powers. According to this principle, a tripartite system is depicted in which powers are delegated and distributed among three organs, each of which has a distinct jurisdiction.

Three levels of administration

All organs must perform all functions systematically and appropriately, which is impossible. As a result, for the powers to function properly, they are divided among the three branches of government: the legislature, the executive, and the judiciary. Continue reading to learn more about the functions of each organ in greater depth.

Legislative

The primary function of the legislature is the enactment of legislation. Enacting a law expresses the state’s will and serves as a check on the state’s ability to exercise its autonomy. It serves as the foundation for the operation of the executive and judiciary branches of government. It is ranked first among the three organs because the function of implementing and applying the law cannot be carried out until and unless the law is framed and implemented. The judiciary serves as an advisory body, which means that it can make recommendations to the legislature on the formulation of new laws and the amendment of existing legislation. Still, it cannot carry out the legislative functions.

Executive

The organs responsible for implementing, carrying out, or enforcing the will of the state, as expressed explicitly by the constituent assembly and the legislature, are the executive and legislative branches. The executive is in charge of the administration of the federal government. It is referred to as the “mainspring of the government” because if the executive fails to function properly, the government will exhaust itself as a result of the imbalance. The executive consists of the minister’s chief of staff, advisors, the departmental head, and his ministers in a limited sense.

Judiciary

It refers to those public officials whose responsibility is to apply the law as framed by the legislature to individual cases while considering the principle of natural justice, or fairness, as applied to the situation.

Separation of powers in India

The Parliament has the authority to pass whatever law it sees fit, according to the provisions of the Constitution, and there are no constraints on its ability to pass legislation. The Constitution explicitly specifies the powers and responsibilities of the president (Article 62 to Article 72). According to its field of expertise, the Judiciary is self-sufficient, and neither the Legislature nor the executive is interfering with its judicial tasks or powers. Under Article 226 and 227 of the Constitution, as well as under Article 32 and Article 136 of the Constitution, the High Court and Supreme Court are each granted the power of judicial review, and any law enacted by the parliament can be considered invalid by the judiciary if it is found to be in violation of Fundamental Rights (Article 13). Following the reading of such laws, many jurists are of the opinion that the theory of separation of powers is recognised in India.

Conclusion 

It is not possible to apply the idea of separation power in its strictest sense in any current country, whether the United States, Nepal, France, or other European countries. Nonetheless, this idea continues to be relevant today. Our government is a well-organised institution that is difficult to separate into sections that are impenetrable by water.

For any government to run smoothly, collaboration and coordination between all three branches of government are essential to ensuring that the government’s mission is achieved. In his opinion, “this notion is impractical as a functioning basis of government,” according to Professor Garner. It is impossible to accurately separate the functions of each organ on the basis of precision.”