INTRODUCTION
The doctrine of separation of powers was adopted by the Convention of 1787. It was assumed not to promote efficiency but to preclude his exercise of arbitrary power. The purpose was not to avoid friction but to save the people from autocracy.
MEANINGS OF SEPARATION OF POWER
According to Black’s Law Dictionary:
Separation of powers is the division of governmental authority into three branches of government viz, legislative, executive and judicial, each with specified duties on which neither of the other branches can encroach.
THEORY OF SEPARATION OF POWERS
The French jurist Montesquieu propounded the doctrine of separation of powers. He propounded this concept in his book, “The Spirit of Laws”, in 1748.
In the words of Montesquieu:
“There can be no liberty when the legislative and executive powers are joined in the same person or body of Lords because the Monarch or the body will make unjust laws to be administered tyrannically. Nor is there any liberty if the judicial power is not separated from the legislative and the executive power.”
EXPLANATION OF THE THEORY
The theory of separation of powers, proposed by Montesquieu, advocates for dividing government powers into three branches: the legislative, executive, and judicial. Each unit has specific functions and acts as a check on the others, preventing the concentration of power in a single authority.
This system ensures a balance of power, fosters accountability and protects individual liberties by preventing any branch from becoming too dominant or tyrannical.
SEPARATION OF POWERS IN THE BRITISH CONSTITUTION
THE LEGISLATURE AND THE EXECUTIVE:
(i) The sovereignty of Parliament is one of the fundamental tenets of the law of the British Constitution.
(ii) The Sovereign, the executive head, also forms part of the Parliament. The Ministers are usually members of one or the other House of Parliament, and the Cabinet is responsible not to the Executive Head but to the Parliament.
(iii) Though the legislature, i.e., the Parliament, is sovereign and the government can retain power only so long as it commands the confidence of the majority in the Parliament, the Government, by two-party systems in England, usually represents the majority party and tends to control and guide the Parliament. The Parliament, thus, in effect, accepts the leadership of the Government in matters of legislation
(iv) The Parliament exercises judicial power so far as it can commit and punish anyone for contempt or breach of its privileges.
(v) No measure relating to the raising of revenue or the expenditure of public money is considered by the Parliament except on the recommendation of the Executive. However, the Executive cannot impose any taxes without the concurrence of the legislature
THE JUDICIARY:
(i) The Monarch, the Executive Head, is, in theory, the fountainhead of Justice.
(ii) The Monarch is responsible for making many judicial appointments. Superior judges are appointed by the Crown or the Lord Chancellor and removable by the Crown on the address by both Houses of Parliament. Sovereignty has the prerogative of mercy in respect of persons convicted in Courts.
(iii) The House of Lords, a part of Parliament, is also the ultimate Court of Appeal.
(iv) The Lord Chancellor is a member of the House of Lords sitting as a Court and a member of the Government.
(v) The Judiciary exercises legislative functions as it prescribes the rule of the Court. It also, in a way and practice, lays down new law even though the theory is that the function of the judiciary is to administer and apply law enacted by the Parliament.
CONCLUSION
The absolute Separation of Powers, as suggested by Montesquieu, is practically impossible. England also has no separation of powers because there is an intimate interrelation between three functional wings and a good amount of blending or overlapping. There is the concept of cooperation between the three wings, i.e. legislature, executive, and judiciary.
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