1.

Write a note on principles of Separation of Powers by Montesquieu in his

book ‘The Spirit of Laws’

The doctrine of Separation of Power emerged as a distinct doctrine in his famous

book The Spirit of laws. The main principle of Separation of Powers as stated by
Motesquieu are as follows:
➢ He wrote that in every state there are three kinds of power legislative ,
executive and judiciary. He laid his view that in England, the liberty of people
was preserved by institutional arrangements such as king, Parliament and
Law Courtsin.
➢ Power should be divided between different branches of government
➢ Each organ shall be separate and distinct and shall exercise its power within
its own Sphere.(Separation of Powers)
➢ Each branch should have some authority over the other branch to check the
cases of abuse of power. (Checks and balance system).

2. Trace the history of the doctrine of Separation of Powers.

➢ This doctrine of separation of powers was first evolved in ancient Greece and
Rome. The doctrine propounded by Aristotle divided the power according to
class interest comprising monarchy, aristocracy and democracy. Aristotle in
his treatise politics, he called the organs of government as deliberative,
executive and judicial. He only gave a description about the organisations
without stating the separation of power of each organ. According to Aristotle
the best form of government is where laws rather than people ruled.
➢ Marsilus of Pauda in 14th Century in his book “Defender of peace” made a
clear separation between the executive and the legislative functions in 14 th
century.
➢ John Locke in 17th Century advocated the idea that the power of Government
should be limited, the limit being set by people. However, Locke did not
mention separate judicial power in his classification.
➢ Bardon de Montesquieu in 18th Century, the French Philosophers expanded
the study of John Locke and incorporated the ideas of a division of state and
separation of powers. He was the first political thinker who gave a detailed
account of separation of progress in his book “The Spirit of Laws”. He
compared the system of governance in England with system prevailing in
France. He concluded that concentration of power results into corruption of
officials and curtailment of individual liberties. Therefore, the power should be
divided between different branches of Government i.e. executive, legislative
,Judiciary (Separation of Powers). Each branch should have some authority
over the other branch to check the cases of abuse of power (Checks and
Balances).

3. State the basic features of Separation of Powers advocated Montesquieu.

 i) Division of powers: The concept of separation of power advocated by
Montesquieu lays down following reasons for division of power between
the three organs of the Government.
➢ The Executive should not exercise the legislative or judicial powers
because this may threaten the freedom and liberty of individuals.
➢ The Legislative should never exercise the executive or judicial powers as
this may lead to arbitrariness and hence, end the liberty.
➢ The Judiciary should not exercise the executive or legislative powers
because then a judge would behave like a dictator.
ii) Effective Governance: If all powers are vested in one organ or exercised
without separation, such governance would be ineffective. Therefore, in the
interest of welfare of people for an effective governance the power should be
divided among the organs of the government.
iii) Limitation of Power: The Power vested in one authority will be abused if
limitations are not imposed on its exercise.
iv) Checks and balance of power: In order to safeguard the liberty of people,
each organ of the government shall have obligation to act within its own limit.
If any authority acts beyond the permitted limits, it would be checked by the
other organs. The executive organ shall exercise some control over the
legislative and judiciary, the legislative organ over judiciary and executive, the
judiciary shall have some control over the legilativve and executive.
V) Power halts Power: By separating the functions of executive, judiciary and
legislative the power of each organ is balanced against the other. Therefore in
this way, each organ exercises a check on the other organ and the power of
one organ is halted by the power of an other organ

4. Trace the incorporation of doctrine of separation of powers in US Constitution.

The theory of separation of powers finds its best expression in the united states
of America. The doctrine of separation of powers forms the foundation and basic
structure of US Constitution. Montesquieu is regarded as the intellectual father of
the American Constitution. In order to avoid the concentration of power, the US
constitution distributes the between Executive, legislative and executive. The
three organs of Government of USA and its division of powers are as follows

Legislative -
Executive Congress Judiciary

President
President House of representative – Supreme Courts and other
Lower House sub-ordinate courts
Senate – Upper house
➢ The President appoints the members of the cabinet with the approval of
congress as executive heads of the Departments. The president and his
secretaries are not the members of the congress. President has his powers to
recommend measures, to summon Congress in special session and to veto
bills passed by congress(except money bills). The president could intervene in
the business of the court through his power of Pardon for all offenses except
treason. The US congress delegates law making powers to the executive after
laying down the legislative policy and principle.
➢ The law-making power is vested in congress . The congress acts in a judicial
capacity in cases of impeachment of the president and Supreme Court
Judges. The Senate shares powers with president to make appointments,
declare war and ratify treaties.
➢ The Supreme Court has the power of judicial review. The court has the
powers to examine the laws passed by the congress and executive orders
declared by the president and declare null and void if it contravenes the
provisions of US constitution.

5. State the Merits and demerits of doctrine of separation of powers.

Merits:
➢ Efficiency in administration of Government: this principle allows all the
branches to specialize themselves in their respective field with an intention to
enhance and improve the efficiency of the government.
➢ Safeguards the liberty of individuals: This doctrine safeguards the liberty and
freedom of individuals. It establishes a government of law rather than official
will by the principle that each organ must act within the sphere of law.
➢ Limitation on absolute power: It limits the absolute power of monarch and
protects the people from tyrannical rule of monarch. It aims to eliminate
arbitrariness, totalitarianism and tyranny and promote an accountable and
democratic form of government.
➢ Independent judiciary: This doctrine establishes independent judiciary which
is free from administration. Montesquieu was interested in setting judicial
power as a check between the other two organs.
➢ Checks and balances: It promotes stability in the government by protecting
the sovereignty of the state by way of checks and balances. it keeps a check
on all the branches of the government by making them accountable for
themselves.
➢ Harmonious exercise of powers: It promotes harmonious exercise of powers
and functions within the three organs as one organ shall not interfere in the
functioning of an other organ of the government.
➢ Balances the Power: separation of powers maintains a balance among the
three organs of government by dividing the powers among them so that
powers do not concentrate on any one branch leading to arbitrariness.
Demerits:
➢ Hazardous and prevents unity: Absolute separation of powers may be
hazardous and prevents the unity and coordination needed to administer the
 legally expressed will of the state. Power tends to corrupt; absolute power
corrupts absolutely.
➢ Prevents the smooth functioning of the Government: Extreme checks and
balances may lead to deadlocks which prevents the smooth functioning and
the efficiency of the government.
➢ Failure and inefficiency in the government: It is extraordinarily difficult to
distinguish the powers of the legislature, executive and judiciary precisely. A
smooth and stable government can exist only if there is cooperation among
the three organs. Any attempt made to separate these organs into watertight
compartments may lead to failure and inefficiency in the government. For
example, legislature performs the judicial functions of impeachment of judges
and the executive function when it appoints the high officials of the state.
➢ Power V. Function:
This doctrine confuses the idea of function with the idea of “power”. The word
“function” implies the attitude of service, while the word “power” implies force.
The government performs activities to serve the purpose of the state.
Therefore, the three branches of government have different functions to
perform. They do not have the real powers as such.
➢ Parliamentary form of Government: This doctrine does not fit in parliamentary
form of government. For example the cabinet ministers not only perform
legislative functions but also executive functions. In British parliamentary
system house of lords also performed judicial functions and was the highest
judicial body of the land.
➢ Equal powers: Montesquieu envisaged that all the three organs have equal
powers. And shall occupy independent political status. This is not possible in
a welfare state that demands most of the functions from the government such
as health, education etc. It tends to increase the power of the executive and
develop the executive as multi-functional organ. Today, the executive
legislates and also exercises judicial jurisdiction and plans for the future
activities of the government.
➢ Criticism: The British political scientist Herman finer in his writings on “theory
and practise of modern government has observed that the Montesquieu was
searching a means to limit the power of the crown; to make a constitution to
build canals through which the power should steam to create intermediary
bodies to check and balance the despotism and yet did not fly to extreme
democracy.

6) Examine the statement, “the three organs of government and their functions
cannot be divided into watertight compartments”.

A smooth and stable government can exist only if there is cooperation among
the three organs. Any attempt made to separate these organs into watertight
compartments may lead to failure and inefficiency in the government.
 For example, legislature performs the judicial functions of impeachment of
judges and also the executive function when it appoints the high officials of
the state. The US congress i.e. legislature delegates law making powers to
the executive after laying down the legislative policy and principle. The
president could intervene in the business of the court through his power of
Pardon for all offenses except treason.