Montesquieu developed the theory of separation of powers which proposes dividing the sovereign power of a state among legislative, executive, and judicial branches. This was intended to prevent tyranny and protect liberty. He argued each branch should have distinct and independent powers to check the others. While complete separation is impossible, the theory emphasizes limiting concentration of power. It influenced government designs like the US Constitution's system of checks and balances among the three branches.

1. Political Science
Separation of Powers
Submitted By:
Raj Kishor
Guided By:
Dr. Saroj Choudhary
Amity Law School, Amity University, Gwalior

2. Separation of power
A theoretical model for governance, common in democratic states,
which features the division of sovereign power into at least three organs
of state in order to forestall tyranny, by preventing the acquisition of a
monopoly of power by a monarch or oligarchy.
Separation of powers is a political doctrine originating from the writings
of Montesquieu in The Spirit of the Laws in which he urges for a
constitutional government with three separate branches of government.
Each of the three branches would have defined powers to check the
powers of the other branches. This idea was called separation of powers.
This philosophy heavily influenced the writing of the United States
Constitution, according to which the legislative, executive, and judicial
branches of the United States government are kept distinct in order to
prevent abuse of power. This United States form of separation of
powers is associated with a system of checks and balances.

3. In The Spirit of the Laws(1748), Montesquieu described the separation
of political power among a legislature, an executive, and a judiciary.
Montesquieu's approach was to present and defend a form of
government which was not excessively centralized in all its powers to a
single monarch or similar ruler. He based this model on the Constitution
of the Roman Republic and the British constitutional system.
Montesquieu took the view that the Roman Republic had powers
separated so that no one could usurp complete power. In the British
constitutional system, Montesquieu discerned a separation of powers
among the monarch, Parliament, and the courts of law.
Montesquieu did actually specify that "the independence of the judiciary
has to be real, and not apparent merely". "The judiciary was generally
seen as the most important of powers, independent and unchecked", and
also was considered dangerous.

4. Montesquieu was not the first scholar to develop the theory of
separations of powers. Its origin can be traced back to Aristotle, the
father of Political Science. Of course he did not discuss the issue in
great details. He only analyzed the functions of the three branches of
government, the deliberative, executive and the judiciary without
suggesting their separation. Besides many other philosophers at a later
stage from thirteenth century onwards gave some attention to the theory
of separation of powers. Jean Bodin one of the earliest thinkers of the
modern period sees the importance of separating the executive and
judicial powers.
But actually it acquired greater significance in eighteenth century. John
Locke was one of the eighteenth century philosophers to pay greater
attention to the problems of concentration of governmental power. He
argued that the executive and legislative powers should be separate for the
sake of liberty. Liberty suffers when the same human being makes the law
and executed them.

5. Theory
Montesquieu, the noted political philosopher of France is regarded as the
chief architect of the principles of Separation of powers. He in his book
"The Spirit of Laws" published in 1748 gave the classic exposition of
the idea of separation of powers. During his days the Bouborne
monarchy in France had established despotism and the people enjoyed
no freedom. The monarch was the chief law giver, executor and the
adjudicator. The statement by Louis XIV that 'I am the state' outlined the
character and nature of monarchial authority.
Montesquieu, a great advocate of human dignity, developed the theory
of separation of powers as a weapon to uphold the liberty of the people.
He believed that the application of this theory would prevent the
overgrowth of a particular organ which spells danger for political liberty.
According to him every man entrusted with some power is bound to
misuse it. When the executive and the legislative powers are given to the
same person there can be no liberty.
Because it is apprehended that the same person may enact oppressive
laws to execute them whimsically. Again there is no liberty, if the
judicial power is not separated from the legislature and executive.

6. If the judicial and legislative powers are exercised jointly the life and
liberty of the subjects could be exposed to arbitrary control; for the judge
could then be the legislator. If it joined to the executive power the judges
might behave with violence and oppression. If the same person or body of
persons exercise these three powers that of enacting laws, executing them
and of trying the cases of individuals, he maintained, that could spell the
doom of the whole system of governance.
In simple words Montesquieu's view is that concentration of legislative,
executive and judicial functions either in one single person or a body of
persons results in abuse of authority and such an organization becomes
tyrannical. He argued that the three organs of government should be so
organized that each should be entrusted to different persons and each
should perform distinct functions within the sphere of power assigned to it.

7. Checks and balances
To prevent one branch from becoming supreme, protect the "opulent
minority" from the majority, and to induce the branches to cooperate,
government systems that employ a separation of powers need a way
to balance each of the branches. Typically this was accomplished
through a system of "checks and balances", the origin of which, like
separation of powers itself, is specifically credited to Montesquieu.
Checks and balances allow for a system-based regulation that allows
one branch to limit another.

9. In India
 Parliament - Legislative
 Prime Minister, Cabinet, Government Departments & Civil Service -
Executive
 Supreme Court - Judicial
India follows a parliamentary system of government, which offers a clear
separation of powers. The judiciary branch is fairly independent of the
other two branches. Executive powers are vested with the President and
Prime Minister, who are assisted by the Cabinet Secretary and
other Secretaries. But practically the separation of powers does not exist
between Legislature and Executive, as Prime Minister is elected by
Parliament itself. Hence in India, there is no separation between Legislature
and Executive. All three branches have "checks and balances" over each
other to maintain the balance.

10. Disadvantages:
Government is an organic unity. The various parts are closely interwoven.
Therefore absolute separation of powers is both impossible and
undesirable. In every modern government the executive has some kind of
law making power to fill the gaps in the structure. Finer observes that rule
making is no more or less than secondary legislation. The legislature in
almost every country has to perform some judicial function by way of
trying of impeachments.
Maclver feels that this theory of separation of powers leads to isolation and
disharmony. The various branches of the government tend to exhibit a
sense of understanding and cooperation to achieve its end when they work
together. But when they are separated to carry on exclusive work of their
branch they become arrogant and refuse to work with other branches of
government. This gives rise to lot of administrative complications. Every
branch suffers from the vice of exclusiveness leading to loss of cooperation
and harmony producing inefficiency of the government.

11. The theory of separation of powers which upholds the system of checks
and balances for the sake of equality of powers is based an wrong
assumptions. It is not possible to accept the view that all organs of
government mutually check each other.
The theory also makes the mistakes in assuming that all the three
branches of government are equally powerful. But precisely this is not the
case. With the growth of positive states the legislature has been reduced
to a subordinate position paving way for the executive supremacy which
largely restricts and regulates the former.
'Finally, the relationship between public liberty and separation of powers
is not very significant. Liberty of the individuals largely depends on the
psyche of the people, their outlook, the existing institutions, traditions,
customs and political consciousness. The people of Great Britain are not
less free than that of U.S.A. because there is less separation of powers in
the former.

12. Yet however the theory of separation of powers is not altogether without
any significance. The complexity of modern society and the accepted
concepts of a welfare a state demand more and more action and service
on the part of the
government. The crux of the problem of modern government is to find a
synthesis combining the answer to two needs, the need for the welfare of
the state and the need for freedom for the people.
The welfare state assumes concentration of power on the executive level
and consequently supremacy of the executive over the legislative
branch. Of course it becomes alarming unless controlling and balancing
devices are properly developed to keep pace with the ever changing face
of the executive power. The doctrine of separation of powers from that
point of view because more important today that perhaps any other time.

13. Advantages:
i) Separation of powers according to Montesquieu is the best
guarantee of the liberty of people.
ii) Separation of power promotes efficiency in the administration.
Points to Remember
Montesquieu developed the theory of separation of powers. He
pointed out that the legislative, executive and judicial powers of
government should be vested in three separate organs. They should
not be concentrated in the hands of one man or a group of men.

14. Criticism
i) Complete separation of powers is neither possible nor desirable.
ii) Separation of powers is likely to lead to inefficiency in adminis-
tration.
iii) The theory is based on the supposition that all the three organs of
the government are equality important, but in reality it is not so.
iv) Liberty of the people largely depends more on factors like their
psyche, political culture, consciousness, and institutions than separation
of powers
However, separation of power is useful if used judiciously to bring
about a balance between the vigorous action of the welfare state and the
enjoyment of the liberty of the people.

15. Thank You