SEPARATION OF POWER: A COMPARATIVE STUDY
The research topic deals with the concept of „the separation of powers. The researcher would like to highlight the concept of separation of powers and then gradually comes to the point separation of powers in England and US. After that the researcher would like to articulate the separation of powers in India.
The doctrine of “the separation of powers” as usually understood is derived from Montesquieu whose elaboration of it was based on a study of Locke’s writings and an imperfect understanding of the eighteen century English constitution.
Montesquieu, a research scholar, conceived the principle of separation of power. He found ...view middle of the document...
But constant experience shows us that every man invested with power is liable to abuse it, and to carry his authority as far as it will go …. To prevent this abuse, it is necessary from the nature of thing that one power should be a check on another…”
Writing in 1748, Montesquieu said: “When the legislative and executive powers are united in the same person, or in the same body or magistrates there can be no liberty. Again there is no liberty if the judicial power is not separated from the legislative and executive powers where it joined with the legislative power, the life and liberty of the subject would be exposed to arbitrary control; for the judge would then be the legislator. Where it joined with the executive power, the judge might behave with violence and oppression. There would be an end of everything where the same man or the somebody to exercise these three powers.”
Though in the face of complex socio-economic problem demanding solution is a modern welfare state, it may no longer be possible to apply the separation theory strictly, nevertheless, it has not become completely redundant and its chief value lies in emphasizing that it is essential to develop adequate check and balance to prevent administrative arbitrariness.
It is very much essential to a democratic country for the smooth running of the government to protect the individual liberty and to avoid the confrontation among the legislative, executive and judiciary, the separation of powers in a check and balance form is highly needed so that three organ cannot trespass with the confined area of the other. But in a rigid sense it is impossible and in a balance and check form it is quite possible which makes filtration of the arbitrariness of the powers of other as because if any organ gets the three powers in hand definitely it becomes absolute and despotic which does causes the hardship of the individuals in a country and the idea of democratic value and constitutionalism would be jeopardized. With the changing needs of the society it is important that the reasonable restriction should be upon the executive, legislative and judiciary in a compartment form but not in watertight compartment form.
IDENTIFICATION OF ISSUES
Issue No. 1:
How far separation of powers is maintainable in accordance with intermingle of powers among the legislative, executive and judiciary?
Issue No. 2:
Whether in a rigid sense separation of powers is possible in a country like India?
Issue No. 3:
How far is it correct that separation of powers is a myth rather than reality?
COMPARATIVE STUDY OF THE SEPARATION OF POWER
(I) SEPARATION OF POWERS IN U.S.A.
The doctrine of separation of power is implicit in the American Constitution. It emphasizes the mutual exclusiveness of the three organ of the government. According to it, the legislature can not exercise executive or judicial power; the judiciary cannot exercise the other two powers.
The express letters to the U.S.A....