Separation of Powers; Comparative Analysis of the Doctrine an International Perspective
Volume III, Issue III, 2020
The Doctrine of Separation of Powers deals with the mutual relations among the three organs of the government, viz., legislative, executive and judiciary. The origin of this principle goes back to the period of Plato and Aristotle. But the rule of separation of powers was propounded for the first time by the French Jurist, Montesquieu. He formulates this theory in his famous book ‘L Esprit deploys’ (The Spirit of the Laws) published in 1748.
According to this theory, powers are of three kinds; Legislative, executive and judicial and that each of these powers should be vested in a separate and distinct organ, for if all these powers, or any two of them, are united in the same organ or individual, there can be no freedom. If for instance, legislative and executive powers unite, there is an apprehension that the organ concerned may enact tyrannical laws and execute them in tyrannical manner. Again, there can be no liberty if the judicial power be not separated from the legislative and the executive. Where it joined the legislative, 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. The Doctrine of Separation of Powers has been accepted and adopted by the constitution of the United States of America, moreover in India and England this doctrine has not been strictly applied. This paper compares the doctrine of separation of powers in the United States of America, India and England and the reiteration of this demarcation in the three nations by the judiciary.
Keywords: Separation of powers, Constitution, Democracy, Government, Legislative, Executive and Judiciary.