The term Separation refers to division. The doctrine separation of power refers to the division of powers between the different organs ruling a country. This means a country has 3 main governmental functions- 1. Legislative, 2. Executive, 3. Judicial functions respectively.

In order to carry our these functions there are 3 main organs of the government- 1.Legislature, 2.Executive, 3.Judiciary. It is precisely mentioned by Montesquieu that power should not be concentrated in hands of one person like a monarch to run a country. He analyzed the British administration and pointed out that their success lies in the division of  powers between the sections of government.

When the legislative and executive functions fall into the hands of one person it leads to tyrannical laws, abrasive decisions, and a biased ruling. He further states that if the judiciary and legislature are combines then the life of the citizens are at mercy of the lawmaker and if executive and judiciary come together the judge can behave violently by imposing decisions.

The theory and doctrine proposed by Montesquieu had a profound impact on makers of constitutions in many parts of the world. They tried to inculcate this doctrine into their constitution to help keeping check on the workings of the government. But even at that time, his homeland France was under absolute monarchy, hence they declared that there was nothing known as a constitution in a country where separation of powers was not recognized and accepted.

The doctrine had its on defects in its place. It sounded very apt when on paper, but the ground reality was different. Montesquieu previously stated that England practiced separation of powers but it was not the case. The Donoughmore Committee stated that there was no rigid separation of powers in the Constitution of Britain.

Secondly, it is just an assumption made that there are only three functions of the government- legislative, executive and judiciary. This aspect completely ignored the fact that there are quasi- legislative, quasi- executive and quasi- judicial functions of the government as well. They functions can never be like watertight compartments.

In the development of a welfare state, there are no rigid problems that arise. The problems are complex in nature therefore sticking to this rigid doctrine cannot be considered an option as it will be absurd. The modern interpretation of this doctrine strives to establish a distinction between the “essential” and “discretionary” powers. This can be held to be more practical and reliable.

The motive behind Montesquieu’s development of this doctrine was to protect the individuality of a person, protection of liberty and freedom of an individual. But it was understood as time passed that a strict division cannot be helpful to protect the freedom and liberty. England did not have a separation of powers but still they exercised the right to man’s freedom and liberty. What was needed was a just and impartial law, along with an independent judiciary and an external vigilance to keep a check and control over its powers.

IMPORTANCE

The outline of the doctrine given by Montesquieu gave direction and highlighted the necessity for the division of powers. It paved way for the upcoming Constitutions and countries to formulate rules and regulations for and within the government themselves to keep a check on their working.

The necessity to separate the administration from the legislation, the legislation from the judiciary and the judiciary from the administration was clearly noted and emphasized upon.

With progressing developments, there were flaws that were noted as well like the issue of the organs being watertight compartments. It gave the thinkers a new direction and perspective to think and develop new and more dynamic spheres of law.

Aishwarya Says:

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