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The Theory of Separation of Powers emerged as a distinct doctrine in the “Espirit De Lois” or “Spirit of laws” which is a book written by Montesquieu in 1748. Basically this doctrine of Separation of Power was given by Aristotle but a whole new concept was given by the writings of Locke and Montesquieu on which this theory was propounded to differentiate between legislative, executive and judicial power. This doctrine is popularly known as “trias politica”. This doctrine saw its emergence in Greece at first and gradually became widespread in Roman Republic as a part of constitution of the Roman Republic. Montesquieu was a social philosopher and was against arbitrary rule by government on its subjects. His theory also lays down that it is the nature of authority to abuse itself and clear rule has to be placed to limit arbitrary rule. An arbitrary government is not a good government as government is always by the people, for the people and of the people that is, it a machinery through which the will of people is expressed. According to the theory restraint in exercise of government power was needed for good governance and each power should be divided amongst each organ of government. At the same time to keep a check on the arbitrary power of government it was an essential requirement to have a system of check and balances that one doesn’t become more powerful. According to the Montesquieu theory, state’s authority is divided into three organs legislative, executive and judiciary. He also emphasised that, to promote liberty, the three organs must be separate and should act independently. In his book Montesquieu also explained the three powers of government, legislative power to legislate laws, the power of executing the matters of state and the power of judiciary to enforce on civil cases.
These three organs of government in a free democracy and federal states must always be kept separate and exercising separate functions. Meaning thereby that, “legislature cannot exercise legislative or judicial functions, the Executive cannot exercise legislative or judicial functions and similarly the Judiciary cannot exercise legislative or executive power of the Government”. If the legislative and executive powers are in control of the same person, there can be no liberty because they can enact tyrannical laws and execute them in oppressively. If judiciary is not separated from the legislative and executive there would have been no liberty. If the same person is the legislature and judge this would be sheer oppression to people as law will be delivered by arbitrarily by the hands of arbitrator. Even if judicial power is exercised by the executive then also judge would self control the law. In short there will be a scenario of arbitrariness if the above three power are exercised by the same person. Thus enactment of law, execution of laws and trying of cases should be done by different organs. A stricter separation is not possible for every country as each country differs in background and culture but adoption of this theory can be seen as a part of every country’s governance.
The concept of “separation of powers” is a very rigid concept and therefore it is not acceptable widely in many countries. The main objective of the Doctrine of separation of power is that the law should prevail and government should be of law rather than having government on wills and wishes of the authority or the ruler. This is because government is always the agency through which the will of the people of the state is formulated. Power rests with the government. Power corrupts and absolute power corrupts absolutely. This is true for all times and for all ages. Concentration of authority degenerates into tyranny, corruption and abuse of powers. The functions of the state, for all the welfare purposes are performed by the government through its three branches legislature, executive and judiciary. All the branches of the government have equal importance and function. So one should not override or control the other. Each branch of the government should be made independent of the other. The most vital component of the doctrine of separation of power is that there should be autonomy or independence of judiciary which implies that it should be free from the other authority or impedance of other organs of the state, for at exactly that point equity would be conveyed appropriately.
To close this hypothesis of separation of powers has additionally been scrutinized on numerous grounds, one of it being that it is not alluring on the grounds that if there is separation of powers, the distinctive organs of the legislature won’t have the capacity to work in collaboration and concordance. Accordingly there might be continuous halts that would convey the administration apparatus to stop. But we cannot deny the need of separation of power as Montesquieu has rightly stated that “There would be an end of everything, were the same man or same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.”