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Separation Of Power Essay

4923 words - 20 pages

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PRINCIPLE OF SEPARATION OF POWERS AND CONCENTRATION OF AUTHORITY Tej Bahadur Singh Deputy Director (Administration) I.J.T.R., U.P., Lucknow 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, discontinous legislative power and ...view middle of the document...

Where it joined with the executive power, the judge might behave with violence and oppression. There would be an end of every thing were the same man or the same body to exercise these three powers...2 Montesquieu‟s “Separation” took the form, not of impassable barriers and unalterable frontiers, but of mutual restraints, or of what afterwards came to be known as “checks and balances”. The three organs much act in concert, not that
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I.P. Massey : Administrative Law, Edn. 1970, p. 35. Montesquieu, De L‟ Espirit des lois, 1748 quoted in Justice D.D. Basu: Administrative Law, Edn. 199, p. 23.

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their respective functions should not ever touch one another. If this limitation is respected and preserved, “it is impossible for that situation to arise which Locke and Monstequieu regarded as the eclipse of liberty- the monopoly, or disproportionate accumulation of power in one sphere.”3 The man behind the principles is to protect the people again capricious tyrannical and whimsical powers of the State. United Kingdom: The famous English Jurist Blackstone supported the doctrine of Montesquieu. According to him, “whereever 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. The renowned constitutional Bagehot observed. “The cabinet is a hyphen which joins, buckle which fastens, the legislative part of the State to the executive part of the State.” According to Wade and Phillips the doctrine of separation of powers implies: (i) (ii) (iii) The same person should not form more than one organ of the Government. One organ of the Government should not exercise the function of other organs of the Government. One organ of the Government should not encroach with the function of the other two organs of the Government.

Now the question in subject is whether this doctrine finds a place in England? 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:
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Carleton K. Alien: Law and Orders, Edn. 1965, p. 10,19.

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