1. Violation of Organic Unity of Government:
The theory is criticised on the ground that the government is an organic unity and absolute demarcation of powers is impossible. It is neither practicable nor desirable to divide it into three water-tight compartments. As pointed out by J.S. Mill, complete separation and independence of the various departments of the government would result in frequent deadlocks and general inefficiency.
According to Laski, the spectacle of separation of powers is a spectacle of confusion of powers. According to Finer, it throws the government in coma and convulsions. The government would suffer from deadlocks and delays, from jerks and jolts.
The government based on theory of separation of powers would lack unity, harmony and efficiency. In practice it has been observed that one organ depends upon the other for its efficient working. The legislature in modern times if performing certain executive and judicial functions.
Likewise the executive is performing legislative and judicial duties. A similar position applies to the judiciary. According to Maclver, “the line between legislative enactment and executive or judicial decision is never hard and fast.
The practicability of this theory was tried ” America. As Finer observes, ‘the U.S. Constitution is an essay in till
the theory or separation of powers separation of powers and is the most important polity in the world that operates on that principle.
The President was given exclusively the executive authority, the Congress, the legislative and the Supreme Court the judicial power. However, in practice, the legislature and the executive have moved in concert. The President is today the ‘chief legislator’ along with being ‘chief executive’.
The Senate shares executive power with the President in the matter of appointments and treaties; they need ratification by the Senate by two-third majority. Thus as Maclver says, “the absolute separation of powers prescribed by Montesquieu is obviously impossible”. Thus in practice there is very little separation of powers.
3. Parliamentary Government in England:
Montesquieu while formulating this theory got inspiration from England. In his opinion, the English people enjoyed maximum liberty because the government in England was based upon the principle of separation of powers.
The conclusion drawn by him betrays his perfect misunderstanding about the Constitution of England, because England was then having a full fledged parliamentary system of government which was essentially based upon the principle of “intimacy between the executive and the legislature”.
In fact, the cabinet form of government is the very negation of this theory because the Cabinet is not only the real executive but also it controls and leads the legislature. Then the House of Lords is the highest judicial body in the land. Further, the Lord Chancellor is the member of the Cabinet, chairman of the House of Lords and head of the judiciary.
4. Not Powers but Functions:
Montesquieu labels his theory as ‘separation of powers’. In fact, the word ‘powers’ should not have been used. He should have used the word ‘function’ instead. Powers in a democracy are held by the people as the popular sovereign. The government is to perform certain functions delegated to it by the people.
5. Inequality of Organs:
The theory leads to the conclusion that all the departments of the government enjoy equal powers. In fact, all the organs do not enjoy equal importance. The legislature is essentially superior because it makes the framework in which the whole government machinery operates.
The supremacy of the legislature is further confirmed by the fact that it exercises control over the finances of the state. By this power the legislature exercises control overall other organs, in view of theory of popular sovereignty and democracy, the executive and the judiciary must be subordinated to legislative control. As Maclver says This objection is an essential condition of all ‘responsible’ governments without which democracy cannot exist.”
6. No Guarantee for Individual Liberty:
Lastly, it is argued that separation of powers is necessary for safeguarding individual liberty. It is a matter of common experience that the British people enjoy no less liberty than the Americans, although the English Constitution is not based upon the theory of separation of powers.
Likewise the Swiss enjoy a lot of individual liberty although the Swiss Constitution is not based on the theory of separation of powers. This shows that individual liberty does not depend upon the separation of powers or on any other political devil of this nature.
It can best be secured by the vigilance of the people, and their love for liberty. The citizens will have more liberty if the activities of the government are determined by law rather than if the government is based on the theory of separation of powers.
The theory of strict separation of powers, may be impracticable but in general the theory has got its appeal. A certain amount of independence and separation of each organ of government are highly desirable. In the words of Laski, “It is necessary to have a separation of functions which need not imply separation of personnel.”
Points to Remember
The theory was put forward by Montesquieu. The theory in a nutshell means the separation of the three organs of the government. In no case should these three organs of the government be combined in a single body. The theory exercised profound influence over political thought in the 18th century. It has been subjected to serious criticism.
(i) Strict separation of powers is impracticable.
(ii) The theory presupposes equality of all the organs but it is wrong
(iii) It failed in America as a working principle of government.
(iv) Montesquieu misunderstood the working of the government in England.
(v) The liberty of the people cannot be guaranteed by separation of powers.