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Allahabad High Court
Janaganavadi Bharat vs Govt. Of India And Ors. on 9 July, 2004
Equivalent citations: AIR 2004 All 427, 2004 (4) AWC 3356
Bench: M Katju, R Tripathi


ORDER

1. Heard learned counsel for the petitioner and Sri K.C. Sinha, learned counsel for the Central Government.

2. The prayer in this petition is that once a person is appointed as Prime Minister or Minister in the Central Government he has to vacate his seat in Parliament.

3. We cannot accept this contention. Under our Constitution we have followed the Parliamentary system of democracy as in England, and not the President system as in the United States of America. In England a Minister has also to be a Member of Parliament, whereas in America a member of the U.S. Congress (the Parliament of America) cannot be a member of the President’s Cabinet. Thus there is strict separation of powers in America but there is no strict separation of powers in England. We have followed the British system and not the American system under our Constitution.

4. In fact Article 75(5) of the Constitution states :

“A Minister who for any period of six consecutive months is not member of either House of Parliament shall at the expiration of that period cease to be a Minister.”

5. Thus it is evident from the above Constitutional provision itself that a minister has to be a Member of Parliament, and if he is not a Member of Parliament within six months of his appointment he will cease to be a Minister. This provision clearly demonstrates that we have followed the British system of democracy and not the American system.

6. It may be added that the theory of separation of powers between the legislature, Judiciary and executive was first propounded by the French political thinker Montesquieu who visited England in the 18th Century and thereafter wrote his famous book called Le Spirit de Lois’ (The Spirit of the Law). In this book Montesquieu wrote that in England there was strict separation of powers between the legislature, judiciary and executive, and this was praiseworthy as this separation of powers led to checks and balance between the organs of the State, which ensured that there would be no despotism.

7. However, it was subsequently found that Montesquieu misunderstood the British system of democracy and in fact there is no absolute separation of powers in England. For instance, the Lord Chancellor in England is (1) the Speaker/Chairman of the House of Lords (the Upper House of Parliament) (2) the head of the British judiciary (like the Chief Justice of India), and (3) the Law Minister in the Government. Thus the Lord Chancellor holds three offices, legislature, executive and judicial.

8. In India also, since we have followed the British system of democracy, there is no absolute separation of powers under our Constitution. For example the President of India can issue ordinances under Article 123 which amounts to a legislative function, although the President is executive head of the State, vide Article 53 of the Constitution.

9. Hence, the claim that there is absolute separation of powers between the legislature, exeuctive and judiciary in the Indian Constitution is not correct.

10. Thus there is no force in this petition and it is dismissed.


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