Doctrine of Separation of Powers: Meaning and History
The separation of powers, also known as trias politica, was first developed in ancient Greece and was widely used by the Roman Republic. The concept was the result of centuries of political and philosophical development. This model divides the state into branches or estates with independent powers and responsibilities. The usual consists of division into an executive, a legislature, and a judiciary. After the fall of the Roman Empire, until the 18th century, the dominant form of governmental structure in Europe was concentrated power resting on the hereditary ruler. The single exception to this was the development of Parliament in England in the 17th century.
Aristotle was the first person to write about separation of powers. In his book entitled Politics, he has described three agencies of government three agencies of government – the General Assembly, the Public Officials, and the Judiciary.
The theory of three branches of government re-emerged with John Locke’s Two Treatise of Government (1689). He defined them as ‘legislative’, ‘executive’ and ‘federative’. He however did not consider them as co-equals. According to him, legislative branch is supreme than the other two. The other two namely the executive and federative functions were to be exercised by the monarch. His model corresponded with the dual form of government existing in England at that time – The Parliament and the Monarchy.
Montesquieu’s theory of separation of powers
Montesquieu was a French philosopher who is known for the theorization of the concept of separation of powers in his book De L‘ Espirit des Lois (The Spirit of Laws), in 1748. Montesquieu laid sown his theory largely based on the English system. He laid greater emphasis on the political and natural liberty of a citizen. He explained the union of executive and legislative power would lead to despotism of the executive. Similarly, he also explained that the union of legislative power and the judiciary would not safeguard individuals against the state. Hence, he explained that the human liberty can be safeguarded only if the concentration of powers in a person or a group of persons could be avoided.
Montesquieu divided the government into legislative, executive and judicial functions. He understood legislative power as an activity of declaring the general will of the state. He apprehended the executive power as that of executing the public resolutions embodying the general will of State. Similarly, he understood judicial power as the power of deciding civil and criminal cases. Out of all, Montesquieu considered judicial power to be frightening as it has the power to harm a subject’s life, liberty or property.
Though, Montesquieu is credited for the theory of separation of powers, he is criticized by some that he completely misconstrued what he saw in England.
Separation of power in Ancient India
The roots of separation of power are also found in Vedas. Narad Smiriti has the very principle of separation of power. In those days, Deewan was head of the Executive wing. Senapati maintained law and order and Kaji was the judicial head. However, their positions were all subordinate to a king, who was the supreme authority. King was the one who made laws and can be compared to the present form of legislature. Hence, in ancient times also, one can find a separation of powers and functions.
Meaning of Separation of Powers
The basic premise behind the doctrine of separation of powers is that when power gets concentrated in a single person or a group of persons, they can be dangerous to the citizens. Hence, the principle of separation of powers aims at removing the concentrated power and preventing abuse. Generally, all the powers of the government can be categorized into three classes:
- Enactment of making laws
- Interpretation of that enacted laws
- Enforcement of the enacted law
These are simply put as Legislative, Executive and Judicial powers of the government. The executive makes policy decisions and implement laws. Legislature issue enactments and the judiciary adjudicate disputes. The doctrine of separation of powers implies independent functioning of each pillars of the democracy.
Hence, the principle of separation of powers deals with the mutual relations among the three organs of the government – legislature, executive, and judiciary. It states that the three main categories of government functions – Legislative, Executive and Judicial and three powers in a democracy must be maintained separately and exercised by separate organs of the government. It also tries to bring exclusiveness in the functioning of the three organs of the government and strict demarcation of power among them. It simply implies that three organs of the government to be independent of the other and none should perform functions belonging to the other.
According to Wade and Philips, the concept of Separation of power means three different things:
- Same person should not form part of more than one of the three organs of the government. Example: Ministers should not be made to sit in the Parliament.
- One organ of the government should not control or interfere with the exercise of its functions by another organ. Example: judiciary should be independent or the Ministers should not be made responsible to the Parliament.
- One organ of the government should not exercise the functions of another. Example: Ministers not to have legislative powers.