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    Jamia Hamdard: Separation of Powers: Neither Practicable Nor Desirable

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    Mirza Saquib
    The document discusses the separation of powers doctrine and whether it is practicable or desirable to implement. It provides context on theorists like Montesquieu who developed the concept of separating government powers into legislative, executive, and judicial branches. However, the document argues that a total separation is neither practical nor desirable. It is difficult to separate the functions of government into rigid compartments without coordination. Some overlap and sharing of powers is needed for effective governance. While independence of branches is important, absolute separation could lead to conflicts and lack of cooperation between organs of the state.

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    Jamia Hamdard: Separation of Powers: Neither Practicable Nor Desirable

    Uploaded by

    Mirza Saquib
    52 views5 pages
    The document discusses the separation of powers doctrine and whether it is practicable or desirable to implement. It provides context on theorists like Montesquieu who developed the concept of separating government powers into legislative, executive, and judicial branches. However, the document argues that a total separation is neither practical nor desirable. It is difficult to separate the functions of government into rigid compartments without coordination. Some overlap and sharing of powers is needed for effective governance. While independence of branches is important, absolute separation could lead to conflicts and lack of cooperation between organs of the state.

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    ASSIGNMENT

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    The document discusses the separation of powers doctrine and whether it is practicable or desirable to implement. It provides context on theorists like Montesquieu who developed the concept of separating government powers into legislative, executive, and judicial branches. However, the document argues that a total separation is neither practical nor desirable. It is difficult to separate the functions of government into rigid compartments without coordination. Some overlap and sharing of powers is needed for effective governance. While independence of branches is important, absolute separation could lead to conflicts and lack of cooperation between organs of the state.

    Copyright:

    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
    Download as docx, pdf, or txt
    52 views5 pages

    Jamia Hamdard: Separation of Powers: Neither Practicable Nor Desirable

    Uploaded by

    Mirza Saquib
    The document discusses the separation of powers doctrine and whether it is practicable or desirable to implement. It provides context on theorists like Montesquieu who developed the concept of separating government powers into legislative, executive, and judicial branches. However, the document argues that a total separation is neither practical nor desirable. It is difficult to separate the functions of government into rigid compartments without coordination. Some overlap and sharing of powers is needed for effective governance. While independence of branches is important, absolute separation could lead to conflicts and lack of cooperation between organs of the state.

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    © All Rights Reserved
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    of 5

    JAMIA HAMDARD

    ASSIGNMENT ON
    SEPARATION OF POWERS:
    NEITHER PRACTICABLE NOR
    DESIRABLE

    DR. ISHAAN AHMED


    SUBMITTED TO -
    ABHIMANYU
    SUBMITTED RATHORE
    BY -
    SEMISTER - 3RD(2020)
    SECTION - A
    DEPARTMENT - LAW
    E-MAIL - [email protected]
    CONTACT NO. - 9997989551
    ACKNOWLEDGEMENTS

    I am using this opportunity to express my gratitude to everyone who supported me throughout the course
    of this assignment. I am thankful for their aspiring guidance, invaluably constructive criticism and
    friendly advice during the project work. I am sincerely grateful to them for sharing their thankful and
    illuminating views on a number of facts related to the assignment.

    I express my warm thanks to ISHAAN SIRfor giving this opportunity.

    I would also like to thank my project external source and all the sources which provided me with the
    information being required and conductive conditions for thisassignment
    SEPARATION OF POWER : NEITHER PRACTICABLE NOR DESIRABLE
    Introduction
    The regulation of partition of forces examines the possibility that the administrative capacities must be
    founded on a three sided division of lawmaking body, leader and legal executive. The three organs ought to be
    independent, particular and sovereign in its own circle so one doesn't intrude the region of the other. Aristotle
    who originally saw and saw that there is a specialization of capacity in every Constitution built up this
    teaching. Later different scholars like Montesquieu, John Locke and James Harrington depicted these
    capacities as administrative, chief and judicial.All the speculations that were sent by these political
    masterminds according to the convention of partition of forces were on a fundamental assumption that the
    freedoms of individuals ought to be shielded from the domineering and dictatorial rulers when all the forces
    are vested and practiced by exactly the same people. At this note it is essential to cite Cooley who stresses the
    significance of the principle of detachment of forces as:

    "This game plan gives every office a specific autonomy, which works as a restriction upon such activity of
    others as might infringe on the rights and freedoms of the individuals, and makes it conceivable to set up and
    implement ensures against endeavors at oppression".

    The composers of the Indian Constitution didn't perceive the regulation of partition of forces from an
    unbending perspective. In contrast to the American Constitution, this principle has not been carefully applied
    in the Indian Constitution. It can't be unequivocally observed however can be seen through the separation made
    in the release of capacities by the various parts of the legislature in the Constitution. This precept isn't totally
    strange to our Constitution. As we review, applicable exemplary law like Ram Jawaya v. Territory of Punjab
    [A.I.R. 1955 S.C. 549] obviously clarifies this rule. Boss Justice Mukherjea in the moment casesaid:
    "It can possibly be said that our Constitution doesn't consider suspicion, by one organ or part of the State, of
    capacities that basically have a place with another. The chief to be sure can practice the forces of departmental
    or subordinate enactment when such powers are assigned to it by the council. It can likewise, when so
    engaged, practice legal capacities in a restricted way".
    Consequently, it tends to be induced from the over that these organs of the administration are permitted to
    practice their capacities however inside specific cutoff points. These cutoff points are silver lined naturally and
    similar likewise ensures limitable infringements. The Constitution of India has been established upon the key
    guideline of Rule of law. It must be recalled that the nature of greatness of administration is assessed on the
    standard of viability and the quality of judicial component.

    Denotation:
    A total and supreme separation of power is essentially and hypothetically unrealistic. However, it is
    consistently conceivable to give an expansive significance to this doctrine. The essential idea of the separation
    of powers would mean:
    a. That similar people ought not to shape part of more than one of the three organs of government.
    b. That one organ of government ought not control or meddle with crafted by another.
    c. That one organ of government ought not to practice the elements of another.
    Such a reasonable outline is consistently alluring to keep the democratic arrangement of a country flawless.
    On the off chance that legislative and executive powers are vested in a similar individual, there would be no
    liberty. The equivalent follows if judiciary was unmistakable from the assembly and executive. In the event
    that all powers are vested in a similar body it will prompt assertion. Giving legislative power to judiciary
    would add up to biasness and executive power would prompt imperialism and oppression. Starting today, the
    Parliament practices political and monetary command over the Executive, and there are inalienable governing
    rules to keep every organ inside the restrictions of Constitutional power. There is no relationship in this world
    which is great and is inclined to specific pressures and strains. In any case, the exit plan to this issue is through
    the advancement of sound shows. There ought to be shared regard for one another remembering the reason for
    their activity of these powers. Eventually the point is to accomplish a 'government assistance state'; hence a
    sound coordination among the three can do something amazing.
    a. The Legislative
    b. The Judiciary
    c. The Executive

    Montesquuieu’s Theory of Separation of Powers:-


    Montesquieu, an extraordinary backer of human poise, built up the hypothesis of separation of powers as a
    weapon to maintain the liberty of the individuals. He accepted that the utilization of this hypothesis would
    forestall the excess of a specific organ which spells risk for political liberty. As per him each man depended
    with some power will undoubtedly abuse it. At the point when the executive, the legislative and the judicial
    powers are given to a similar individual there can be no liberty. Again there is no liberty, if the judicial power
    isn't isolated from the lawmaking body and executive.
    In basic words Montesquieu's view is that the focus or centralization of legislative, executive and judicial
    capacities either in one single individual or an assortment of individual outcomes in maltreatment of power and
    such an association gets overbearing. He contended that the three organs of government ought to be composed
    to such an extent that each ought to be endowed to various people and each ought to perform particular
    capacities inside the circle of power allocated to it.

    Neither Practicable nor Desirable:-


    The essential issue with this theory is that it is unimaginable to expect to actualize it. At the point when it says
    separation of powers, what it truly implies is the separation of the elements of the government. It has isolated
    the government into three unbending, watertight parts. Yet, the government is a solitary substance; it cannot be
    isolated in three watertight compartments that perform various capacities. The elements of the government
    often concur and are corresponding. Consequently the government can't work viably and easily if there is no
    coordination. Complete separation of capacities in the government would prompt unwanted results as it would
    restrict solidarity and coordination in the government. As the government is a solitary substance, with various
    capacities these capacities are interrelated and the organs are related. For instance, Legislature is reliant on the
    executive for rules and strategy matters, Executive is subject to Judiciary for judicial council, and so on the
    fact of the matter is, it is difficult to envision separating the government and its capacities in 3 distinctive
    watertight compartments. Doing so would prompt clashes, stops and shortcoming in the government. It might
    make an irreconcilable situation and tussle for power inside the 3 unique organs.
    It is likewise imperative to take note of that the different capacities which Montesquieu discussed, such as
    lawmaking can't be the restrictive area of any one organ. It has now gotten important to assign the elements of
    the legislature to the executive (designated legislation). It is fundamental to accommodate assignment of
    capacities and orchestra in the various capacitiesperformed by the organs of the government to guarantee
    nobody organ employ extreme power or exorbitant outstanding burden.

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