22.
Explain the limitation of the theory of Separation of Powers.
In simple words, the theory of Separation of Powers advocates that the three powers of the government should be used by three separate organs. Legislature should use only law making powers, Executive should undertake only law enforcement functions, and Judiciary should perform only adjudication/Judicial functions. Their powers and responsibilities should be clearly defined and kept separate.
The limitations:
i. Complete Separation is not possible: The government is a single entity. Its three organs can never be completely separated. The legislative, executive and judicial functions are interdependent and inter-related functions and hence cannot be fully separated.
ii. Complete Separation is not desirable: Complete separation of three organs of government is neither possible nor desirable. It is not desirable because without among mutual coordination these cannot carry out its functions effectively and efficiently. Complete separation of powers can seriously limit the unity and coordination needed by the three organs.
iii. Impracticable in itself: We cannot fully use separation of powers. The function of law-making cannot be entrusted only to the legislature. The needs of our times have made it essential to provide for law-making by the executive under the system of delegated legislation. Likewise, no one can or should prevent law-making by the judges in the form of case law and equity law.
iv. Unhistorical: The theory of Separation of Powers is unhistorical since it has never been operative in England. While formulating and advocating this theory, Montesquieu advocated that it was at work in England. Under the British parliamentary system of government, there was and continues to be a close relationship between the British Parliament and the Cabinet. Even there is no separation of judiciary from legislature in so far the British House of Lords acts as the highest court of appeals. The British Constitution has never been based on the theory separation of powers.
v. The three Organs of Government are not equal: The Theory of Separation of Powers wrongly assumes the equality of all the three organs of the government. The legislature of the state is always regarded as the primary organ of government. The work of the government begins by law-making. However, in actual practice the executive acts the most powerful organ of the government. The judiciary is the weakest of the three organs, yet it is always held in high esteem by the people. Hence the three organs are neither equal nor equally respected.
vi. Separation of Powers can lead to deadlocks and inefficiency: Separation of powers can lead to deadlocks and inefficiency in the working of the government. It can create a situation in which each organ can get engaged in conflict and deadlocks with other two organs.
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