Election Petition deserves a regular hearing.

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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
ELECTIO N PETITIO N NO. 1 O F 201 2
PURNO AGITOK SANGMA … PETITIONER
VERSUS
PRANAB MUKHERJEE … RESPONDENT
J U D G M E N T
ALTAMA S KABIR , CJI .
1. The Petitioner herein was a candidate in the
Presidential elections held on 19th July, 2012,
the results whereof were declared on 22nd July,
2012. The Petitioner and the Respondent were the
only two duly nominated candidates. The
Respondent received votes of the value of 7,13,763
and was declared elected to the Office of the
President of India. On the other hand, the
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Petitioner received votes of the value of
3,15,987.
2. The Petitioner has challenged the election of
the Respondent as President of India on the ground
that he was not eligible to contest the
Presidential election in view of the provisions of
Article 58 of the Constitution of India, which is
extracted hereinbelow :-
“58. Qualifications for election
as President.- (1) No person
shall be eligible for election as
President unless he -
(a) is a citizen of India,
(b) has completed the age
of thirty-five years, and
(c) is qualified for
election as a member of the
House of the People.
(2) A person shall not be eligible
for election as President if he
holds any office of profit under
the Government of India or the
Government of any State or under
any local or other authority
subject to the control of any of
the said Governments.
Explanation.-For the purposes of
this article, a person shall not
be deemed to hold any office of
profit by reason only that he is
the President or Vice President
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of the Union or the Governor of
any State or is a Minister either
for the Union or for any State.”
3. According to the Petitioner, at the time of
filing the nomination papers as a candidate for
the Presidential elections, the Respondent held
the Office of Chairman of the Council of Indian
Statistical Institute, Calcutta, hereinafter
referred to as the “Institute”, which, according
to him, was an office of profit. It appears that
at the time of scrutiny of the nomination papers
on 2nd July, 2012, an objection to that effect had
been raised before the Returning Officer by the
Petitioner's authorized representative, who urged
that the nomination papers of the Respondent were
liable to be rejected. In response to the said
submission, the representative of the Respondent
sought two days' time to file a reply to the
objections raised by the Petitioner. Thereafter,
on 3rd July, 2012, a written reply was submitted on
behalf of the Respondent to the objections raised
by the Petitioner before the Returning Officer,
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along with a copy of a resignation letter dated
20th June, 2012, whereby the Respondent claimed to
have resigned from the Chairmanship of the
Institute. A reply was also filed on behalf of
the Respondent to the objections raised by Shri
Charan Lal Sahu. The matter was, thereafter,
considered by the Returning Officer at the time of
scrutiny of the nomination papers on 3rd July,
2012, when the Petitioner's representative even
questioned the genuineness of the resignation
letter submitted by the Respondent to the
President of the Council of the Institute, Prof.
M.G.K. Menon.
4. Having considered the submissions made on
behalf of the parties, the Returning Officer, by
his order dated 3rd July, 2012, rejected the
Petitioner's objections as well as the objections
raised by Shri Charan Lal Sahu, and accepted the
Respondent's nomination papers. Accordingly, on
3rd July, 2012, the Petitioner and the Respondent
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were declared to be the only two duly nominated
candidates for the Presidential election.
5. Immediately after the rejection of the
Petitioner's objection to the Respondent's
candidature for the Presidential elections, on 9th
July, 2012, a petition was submitted to the
Election Commission of India, under Article 324 of
the Constitution, praying for directions to the
Returning Officer to re-scrutinize the nomination
papers of the Respondent and to decide the matter
afresh after hearing the Petitioner. The Election
Commission rejected the said petition as not being
maintainable before the Election Commission, since
all disputes relating to Presidential elections
could be inquired into and decided only by this
Court. Thereafter, as indicated hereinabove, the
Presidential elections were conducted on 19th July,
2012, and the Respondent was declared elected to
the Office of the President of India on 22nd July,
2012.
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6. Aggrieved by the decision of the Returning
Officer in accepting the nomination papers of the
Respondent as being valid, the Petitioner has
questioned the election of the Respondent as the
President of India under Article 71 of the
Constitution read with Order XXXIX of the Supreme
Court Rules, 1966, and, in particular, Rule 13
thereof. The said Rule, which is relevant for a
decision in this petition, reads as follows :-
“13. Upon presentation of a petition
the same shall be posted before a
bench of the Court consisting of five
Judges for preliminary hearing and
orders for service of the petition
and advertisement thereof as the
Court may think proper and also
appoint a time for hearing of the
petition. Upon preliminary hearing,
the Court, if satisfied, that the
petition does not deserve regular
hearing as contemplated in Rule 20 of
this Order may dismiss the petition
or pass any appropriate order as the
Court may deem fit.”
[Emphasis supplied]
7. In keeping with the provisions of Rule 13 of
Order XXXIX of the Supreme Court Rules, 1966,
which deals with Election Petitions under Part III
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of the Presidential and Vice-Presidential
Elections Act, 1952, the Election Petition filed
by the Petitioner was listed for hearing on the
preliminary point as to whether the petition
deserved a hearing, as contemplated by Rule 20 of
Order XXXIX, which provides as follows :
“20. Every petition calling in
question an election shall be posted
before and be heard and disposed of by
a Bench of the Court consisting of not
less than five Judges.”
8. Mr. Ram Jethmalani, learned Senior Advocate,
appearing for the Petitioner, submitted that the
Respondent's election as President of India, was
liable to be declared as void mainly on the ground
that by holding the post of Chairman of the Indian
Statistical Institute, Calcutta, on the date of
scrutiny of the nomination papers, the Respondent
held an office of profit, which disqualified him
from contesting the Presidential election.
9. Mr. Jethmalani urged that apart from holding
the office of the Chairman of the aforesaid
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Institute, the Respondent was also the Leader of
the House in the Lok Sabha which had been declared
as an office of profit. Urging that since the
Respondent was holding both the aforesaid offices,
which were offices of profit, on the date of
filing of the nomination papers, the Respondent
stood disqualified from contesting the
Presidential election in view of Article 58(2) of
the Constitution.
10. Mr. Jethmalani submitted that Article 71 of
the Constitution provides that all doubts and
disputes arising out of or in connection with the
election of a President or Vice-President shall be
inquired into and decided by the Supreme Court
whose decision is to be final. Mr. Jethmalani
submitted that there were sufficient doubts to the
Respondent's assertion that on the date of filing
of his nomination papers, he had resigned both
from the office of Chairman of the Indian
Statistical Institute, Calcutta, and as the Leader
of the House in the Lok Sabha, on 20th June, 2012.
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Mr. Jethmalani urged that the doubt which had been
raised could only be dispelled by a full-fledged
inquiry which required evidence to be taken and
cross-examination of the witnesses whom the
Respondent might choose to examine. Accordingly,
Mr. Jethmalani submitted that the instant petition
would have to be tried in the same manner as a
suit, which attracted the provisions of Section
141 of the Code of Civil Procedure, which reads as
follows:
“141. Miscellaneous Proceedings. - The
procedure provided in this Code in
regard to suit shall be followed, as
far as it can be made applicable, in
all proceedings in any Court of civil
jurisdiction.
Explanation – In this Section the
expression “proceedings” includes
proceedings under Order IX, but does
not include any proceeding under
Article 226 of the Constitution.”
In addition, learned counsel also referred to
Rule 34 of Order XXXIX of the Supreme Court Rules,
1966, which provides as follows :-
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“Order XXXIX, Rule 34
Subject to the provisions of this
Order or any special order or
direction of the Court, the procedure
of an Election Petition shall follow
as nearly as may be the procedure in
proceedings before the Court in
exercise of its Original
Jurisdiction.”
11. Mr. Jethmalani pointed out that in the
Original Jurisdiction of the Supreme Court,
provided for in Order XXII of the Supreme Court
Rules, 1966, the entire procedure for institution
and trial of a suit has been set out, providing
for all the different stages in respect of a suit
governed by the Code of Civil Procedure. Mr.
Jethmalani submitted that the making of the
procedure for trial of Election Petitions akin to
that of the Original Jurisdiction of the Supreme
Court, was a clear indication that the matter must
be tried as a suit, if under Rule 13 of Order
XXXIX, the Court consisting of 5 Judges was
satisfied at a preliminary inquiry that the matter
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deserved a regular hearing, as contemplated in
Rule 20 of the said Order.
12. For the sake of comparison, Mr. Jethmalani
referred to Section 87 of the Representation of
the People Act, 1951, laying down the procedure
for the trial of Election Petitions and providing
that every Election Petition shall be tried by the
High Court, as nearly as may be, in accordance
with the procedure applicable under the Code of
Civil Procedure to the trial of suits. Mr.
Jethmalani urged that in matters relating to
election disputes it was the intention of the
Legislature to have the same tried as regular
suits following the procedure enunciated in
Section 141 C.P.C.
13. Mr. Jethmalani then drew our attention to
Article 102 of the Constitution and, in
particular, Clause 1(1)(a) thereof, which, inter
alia, provides as follows :-
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“102. (1) A person shall be disqualified
for being chosen as, and
for being, a member of either House
of Parliament –
(a) if he holds any office of profit
under the Government of India or the
Government of any State, other than
an office declared by Parliament by
law not to disqualify its holder;
(b)…………
(c)…………
(d)…………
(e)…………
Explanation: For the purposes of
this clause a person shall not be
deemed to hold an office of profit
under the Government of India or the
Government of any State by reason
only that he is a Minister either
for the Union or for such State.”
14. Mr. Jethmalani submitted that language similar
to the above, had been incorporated in Article
58(2) of the Constitution, which also provides
that a person shall not be eligible for election
as President, if he holds any office of profit
under the Government of India or the Government of
any State or under any local or other authority,
subject to the control of any of the said
Governments. Mr. Jethmalani submitted that as in
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Explanation to Article 102, the Explanation to
Clause (2) of Article 58 also indicates that a
person shall not be deemed to hold any office of
profit by reason only that he is the President or
Vice-President of the Union or the Governor of any
State or is a Minister either for the Union or for
any State. Mr. Jethmalani urged that Article 102
cannot save a person elected to the Office of
President from disqualification, if he holds an
office of profit.
15. Mr. Jethmalani submitted that from the
annexures to the affidavit filed on behalf of the
Respondent it was highly doubtful as to whether
the Respondent had actually resigned from the post
of Chairman of the Institute on 20th June, 2012, or
even from the Membership of the Congress Party,
including the Working Committee, and from the
office of the Leader of the Congress Party in Lok
Sabha on the same date, as contended by him. Mr.
Jethmalani submitted that from the copy of the
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letter addressed to Professor M.G.K. Menon,
President of the Institute, it could not be
ascertained as to whether the endorsement made by
Professor Menon amounted to acceptance of the
Respondent’s resignation or receipt of the letter
itself. Learned counsel urged that this was
another case of “doubt” within the meaning of
Article 71 of the Constitution of India which
required the Election Petition to be tried as a
suit for which a detailed hearing was required to
be undertaken by taking evidence and allowing for
cross-examination of witnesses.
16. It was also submitted that the expression
“office of profit” has not been conclusively
explained till today under the Presidential and
Vice-Presidential Elections Act, 1952, nor any
other pre-independence statute, and the same
required to be resolved by this Court. In this
regard, Mr. Jethmalani referred to the decision of
a three-Judge Bench of this Court in the case of
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Shib u Sore n Vs. Dayanan d Saha y & Ors . [(2001) 7
SCC 425], in which the aforesaid expression came
to be considered and in interpreting the provision
of Articles 102(1)(a) and 191(1)(a), this Court
held that such interpretation should be realistic
having regard to the object of the said Articles.
It was observed that the expression “profit”
connotes an idea of some pecuniary gain other than
“compensation”. Neither the quantum of amount
paid, nor the label under which the payment is
made, may always be material to determine whether
the office is one of profit. This Court went on
further to observe that mere use of the word
“honorarium” cannot take the payment out of the
concept of profit, if there is some pecuniary gain
for the recipient. It was held in the said case
that payment of an honorarium, in addition to
daily allowances in the nature of compensatory
allowances, rent-free accommodation and chauffeur
driven car at State expense, were in the nature of
remuneration and is a source of pecuniary gain
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and, hence, constituted profit. Mr. Jethmalani
urged that it was on the basis of such observation
that the Election Petition in the said case was
allowed.
17. Mr. Jethmalani also referred to the decision
of this Court in the case of Jay a Bachcha n Vs.
Unio n o f Indi a & Ors . [(2006) 5 SCC 266], wherein
also the phrase “office of profit” fell for
interpretation within the meaning of Article 102
and other provisions of the Constitution with
regard to use of the expression “honorarium” and
its effect regarding the financial status of the
holder of office or interest of the holder in
profiting from the office. It was observed that
what was relevant was whether the office was
capable of yielding a profit or pecuniary gain,
other than reimbursement of out-of-pocket/actual
expenses, and not whether the person actually
received monetary gain or did not withdraw the
emoluments to which he was entitled. The threePage
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Judge Bench, which heard the matter, held that an
office of profit is an office which is capable of
yielding profits of pecuniary gain and that
holding an office under the Central or State
Government, to which some pay, salary, emolument,
remuneration or non-compensatory allowance is
attached, is “holding an office of profit”.
However, the question whether a person holds an
office of profit has to be interpreted in a
realistic manner and the nature of the payment
must be considered as a matter of substance rather
than of form. Their Lordships further observed
that for deciding the question as to whether one
is holding an office of profit or not, what is
relevant is whether the office is capable of
yielding a profit or pecuniary gain and not
whether the person actually obtained any monetary
gain therefrom.
18. In the same connection, reference was also
made to the decision of this Court in M.V.
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Rajashekara n & Ors . Vs. Vata l Nagara j & Ors .
[(2002) 2 SCC 704], where also the expression
“office of profit” fell for consideration.
19. Mr. Jethmalani urged that having regard to the
above, the Election Petition deserved a regular
hearing, as contemplated in Rule 20 of Order XXXIX
of the Supreme Court Rules, 1966.
20. Appearing for the Respondent, Mr. Harish
Salve, learned Senior Advocate, submitted that
election to the office of the President of India
is regulated under the provisions of the
Presidential and Vice-Presidential Act, 1952,
hereinafter referred to as the “1952 Act”, and, in
particular Part III thereof, which deals with
disputes regarding elections. Mr. Salve pointed
out that Sections 14 and 14A of the Act
specifically vest the jurisdiction to try Election
Petitions under the 1952 Act with the Supreme
Court, in the manner prescribed in the said
sections. Accordingly, the challenge to a
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Presidential election would have to be in
compliance with the provisions of Order XXXIX of
the Supreme Court Rules, 1966, which deals with
Election Petitions under Part III of the 1952 Act.
Rule 13 of Order XXXIX of the Supreme Court Rules,
therefore, becomes applicable and it enjoins that
upon presentation of an Election Petition, the
same has to be posted before a Bench of the Court
consisting of five Judges, for preliminary hearing
to satisfy itself that the petition deserves a
regular hearing, as contemplated in Rule 20. For
the sake of reference, Sections 14 and 14A of the
1952 Act, are extracted hereinbelow :-
“14. (1) No election shall be called
in question except by presenting an
Election Petition to the authority
specified in sub-section (2).
(2) The authority having jurisdiction to
try an Election Petition shall be the
Supreme Court.
(3) Every Election Petition shall be
presented to such authority in accordance
with the provisions of this Part and of
the rules made by the Supreme Court under
article 145.
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14A. (1) An Election Petition calling
in question an election may be presented
on one or more of the grounds specified in
sub-section (1) of section 18 and section
19, to the Supreme Court by any candidate
at such election, or—
(a) in the case of Presidential
election, by twenty or more electors
joined together as petitioners ;
(b) in the case of Vice-
Presidential election, by ten or more
electors joined together as
petitioners.
(2) Any such petition may be presented
at any time after the date of publication
of the declaration containing the name of
the returned candidate at the election
under section 12, but not later than
thirty days from the date of such
publication.”
21. Mr. Salve submitted that the nomination papers
of the respective candidates had been scrutinized
by the Returning Officer in accordance with the
provisions of Section 5A of the 1952 Act.
Referring to Sub-Section (3) of Section 5E, Mr.
Salve submitted that after completing all the
formalities indicated in Sub-Section (3), the
Returning Officer had accepted the nomination
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papers of the Respondent as valid, which,
thereafter, gave the Respondent the right to
contest the election. Mr. Salve submitted that
Section 14 of the 1952 Act was enacted under
Clause (3) of Article 71 of the Constitution which
provides that subject to the provisions of the
Constitution, Parliament may by law regulate any
matter relating to or connected with the election
of a President or Vice-President.
22. Mr. Salve submitted that the election of the
President and Vice-President has been treated on a
different level in comparison with the election of
Members of Parliament and other State
Legislatures. While Article 102 deals with
election of Members to the House, Article 58 deals
with the election of the President and the Vice-
President of India, which has to be dealt with
strictly in accordance with the law laid down in
this regard. In support of his aforesaid
contention, Mr. Salve referred to a Seven-Judge
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Bench decision of this Court in the case of Charan
La l Sah u Vs. Neela m Sanjeev a Redd y [(1978) 2 SCC
500], where the alleged conflict between Article
71(1) of the Constitution with Article 58 thereof
was considered by this Court and it was held that
Article 58 only provides for the qualification
regarding the eligibility of a candidate to
contest the Presidential elections and had nothing
to do with the nomination of a candidate which
required 10 proposers and 10 seconders. The
provisions of Sections 5B and 5C of the 1952 Act
were also considered and held not to be in
conflict with Article 14 of the Constitution.
Article 71(3) of the Constitution was also seen to
be a law by which Parliament could regulate
matters connected with the Presidential elections,
including those relating to election disputes
arising out of such an election. Relying on its
own earlier judgments, the Hon’ble Judges of the
Bench held that there was no force in the attack
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to either Article 71(3) of the Constitution or the
provisions of Sections 5B or 5C of the 1952 Act.
23. The Petitioner, C.L. Sahu, had also challenged
the election of Shri Giani Zail Singh as President
of India and such challenge was repelled by this
Court upon holding that the Petitioner had no
locus standi to file the same.
24. Mr. Salve lastly referred to the decision of
this Court in Mithiles h Kuma r Vs. R . Venkatarama n
& Ors . [(1987) Supp. SCC 692], wherein, on a
similar question being raised, a five-Judge Bench
of this Court reiterated its earlier views in the
challenge made to the election of Shri Neelam
Sanjeeva Reddy and Shri Giani Zail Singh as former
Presidents of India.
25. Mr. Salve then urged that since the provisions
of Order XXXIX of the Supreme Court Rules framed
under Article 145 of the Constitution had been so
framed in accordance with Section 14 of the 1952
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Act, the provisions of Section 141 of the Code of
Civil Procedure could not be imported into
deciding a dispute relating to a challenge to the
election of the President.
26. Mr. Salve submitted that Rule 13 of Order
XXXIX of the Supreme Court Rules, 1966, stood
substituted on 9th December, 1997, and the
substituted provision came into effect on 20th
December, 1997. In the Original Rule which came to
be substituted, there was no provision for a
preliminary hearing to be conducted to establish
as to whether the Election Petition deserved a
regular hearing. However, in view of repeated and
frivolous challenges to the elections of almost
all of the Presidents elected, the need for such
an amendment came to be felt so as to initially
evaluate as to whether such an Election Petition,
challenging the Presidential election, deserved a
regular hearing.
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27. Mr. Salve then submitted that the post of
Chairman of the Indian Statistical Institute,
Calcutta, was not an office of profit as the post
was honorary and there was no salary or any other
benefit attached to the said post. Learned counsel
submitted that even if one were to accept the
interpretation sought to be given by Mr. Ram
Jethmalani that the office itself may not provide
for any direct benefit but that there could be
indirect benefits which made it an office of
profit, the said post neither provides for any
honorarium nor was capable of yielding any profit
which could make it an office of profit. Mr.
Salve submitted that the law enunciated in the
decisions cited by Mr. Ram Jethmalani in the case
of Shib u Sore n (supra) and Jay a Bachcha n (supra)
was good law and, in fact, the post which the
Respondent was holding as Chairman of the
Institute was not an office of profit, which would
disqualify him from being eligible to contest as a
candidate for the office of President of India.
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28. As to the holding of the post of Leader of the
House, Mr. Salve submitted that the holder of such
a post is normally a Cabinet Minister of the
Government and is certainly not an appointee of
the Government of India so as to bring him within
the bar of Clause (2) of Article 58 of the
Constitution of India. In support of his
contention that the provisions of Section 141 CPC
would not apply in the facts of this case, Mr.
Salve referred to the decision of this Court in
Mang e Ra m Vs. Bri j Moha n & Ors . [(1983) 4 SCC 36],
wherein the Code of Civil Procedure and the High
Court Rules regarding trial of an Election
Petition, were considered, and it was held that
where necessary, the provisions of the Civil
Procedure Code could be applied, but only when the
High Court Rules were not sufficiently effective
for the purpose of the production of witnesses or
otherwise during the course of trial of the
petition. Mr. Salve also referred to a threePage
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Judge Bench decision of this Court in Ravanna
Subanna Vs. G.S . Kaggeerapp a [AIR 1953 SC 653],
which was a case from Mysore relating to the
election of a Councilor under the Mysore Town
Municipal Act, 1951. Of the two questions raised,
one of the points was with regard to the question
as to whether the Appellant therein could be said
to be holding an office of profit under the
Government thereby attracting the provisions
relating to disqualification. On a plain meaning
of the expression “office of profit”, Their
Lordships, inter alia, observed that the word
“profit” connotes the idea of pecuniary gain and
if there really was a gain, its quantum or amount
would not be material, but the amount of money
receivable by a person in connection with the
office he holds may be material in deciding
whether the office really carries any profit.
Their Lordships went on further to observe as
follows :
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“From the facts stated above, it can
reasonably be inferred that the fee of
Rs.6 which the non-official Chairman is
entitled to draw for each sitting of the
Committee, he attends, is not meant to
be a payment by way of remuneration or
profit, but it is gain to him as a
consolidated fee for the out-of-pocket
expenses which he has to incur for
attending the meetings of the Committee.
We do not think that it was the
intention of the Government which
created these Taluk Development
Committees which were to be manned
exclusively by non-officials, that the
office of the Chairman or of the Members
should carry any profit or
remuneration.”
Mr. Salve urged that in the instant case as
well, the post of Chairman of the Indian
Statistical Institute, Calcutta, did not yield any
profit to the holder of the post, which was
entirely meant to be an honour bestowed on the
holder thereof. Mr. Salve also referred to the
decision of this Court in the case of Shib u Sore n
(supra) which had already been referred to by Mr.
Ram Jethmalani, and pointed out that Article
102(1)(a) of the Constitution of India deals with
disqualification from being chosen as a Member of
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the two Houses or from being a Member of either
House of Parliament and did not affect the post of
President of India.
29. The last decision referred to by Mr. Salve in
the above context was that of this Court in
Madhuka r G.E . Pankaka r Vs. Jaswan t Chobbilda s
Rajani [(1977) 1 SCC 70], where also the
expression “office of profit” came to be
considered. In paragraph 31 of the said decision,
reference was made to the earlier decision of this
Court in Ravann a Suvann a's case (supra) and the
ratio of the said decision was tested in relation
to Insurance Medical Practitioners. It was held
that the petitioner did derive profit, but the
question was whether he held an office under the
Government. Since mere incumbency in office is no
disqualification, even if some sitting fee or
insignificant honorarium is paid, it was
ultimately held that the ban on candidature or
electoral disqualification, must have a
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substantial link with the end, may be the possible
misuse of position as Insurance Medical
Practitioner in doing his duties as Municipal
President.
30. On the other question with regard to the
acceptance of the Respondent's resignation from
the post of Chairman of the Institute held by the
Respondent, Mr. Salve submitted that the alleged
discrepancy in the signatures of the Respondent in
his letter of resignation addressed to the
President of the Institute with his other
signatures, was no ground to suspect that the said
document was forged, particularly when it was
accepted by the Respondent that the same was his
signature and that he used both signatures when
signing letters and documents. In this regard,
Mr. Salve referred to the Constitution Bench
decision of this Court in Unio n o f Indi a & Ors.
Vs. Gopa l Chandr a Mishr a & Ors .[(1978(2) SCC 301],
wherein the question as to when a resignation
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takes place or is to take effect, has been
considered in some detail. While considering the
various aspects of resignation, either with
immediate effect or from a future date, one of the
propositions which emerged from the ultimate
conclusions arrived at by this Court was that in
view of the provisions of Article 217(1)(a) and
similar provisions in regard to constitutional
functionaries like the President, Vice-President,
Speaker, etc. the resignation once submitted and
communicated to the appropriate authority becomes
complete and irrevocable and acts ex proprio
vigore. The only difference is when resignation
is submitted with the intention of resigning from
a future date, in such case it was held that
before the appointed date such resignation could
be rescinded.
31. The next case referred to by Mr. Salve in this
regard is the decision rendered by this Court in
Mot i Ra m Vs. Para m De v [(1993) 2 SCC 725], where a
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similar question arose with regard to resignation
from the office of the Chairman of the Himachal
Pradesh Khadi and Village Industries Board, with a
request to accept the resignation with effect from
the date of the letter itself. Considering the
said question, this Court held that a person
holding the office of Chairman of the said Board
should resign from the said office and the same
would take effect from the date of communication
of the resignation to the Head of the Department
in the Government of Himachal Pradesh.
32. On a different note, Mr. Salve pointed out
from the Election Petition itself that the
allegations made in paragraph 2(XVI) were verified
by the Petitioner, both in the verification and
the affidavit affirmed on 20.8.2012, as being true
and correct on the basis of information received
and believed to be correct. Mr. Salve submitted
that under Rule 6 of Order XXXIX of the Supreme
Court Rules, allegations of fact contained in an
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33
Election Petition challenging a Presidential
election were required to be verified by an
affidavit to be made personally by the Petitioner
or by one of the Petitioners, in case there were
more than one, subject to the condition that if
the Petitioner was unable to make such an
affidavit for the reasons indicated in the proviso
to Rule 6, a person duly authorized by the
Petitioner would be entitled, with the sanction of
the Judge in Chambers, to make such an affidavit.
Mr. Salve submitted that in the instant case there
was no such occasion for the verification to be
done by the Petitioner.
33. In regard to the post of “Leader of the
House”, Mr. Salve referred to the Practice and
Procedure of Parliament, with particular reference
to the Lok Sabha, wherein with regard to the
resignation from the membership of other bodies,
in the case of the Leader of the House, the
procedure followed was that when a Member of the
Page 34
34
Lok Sabha representing Parliament or Government
Committees, Boards, Bodies, sought to resign from
the membership of that body by addressing the
Speaker, he is required to address his resignation
to the Chairman of that Committee, Board or Body
and he ceases to be member of the Committee when
he vacates that office. Mr. Salve submitted that
by tendering his resignation to the Congress
President and Chairperson of the Congress Party in
Parliament on 20th June, 2012, with immediate
effect, such resignation came into force forthwith
and no further formal acceptance thereof was
necessary.
34. Mr. Salve submitted that notwithstanding the
submissions made in regard to the expression
“holder of an office of profit”, the said argument
was also not available to the Petitioner, since by
virtue of amendment to Section 3 of the Parliament
(Prevention of Disqualification) Act, 1959, in
2006, the office of Chairman of the Institute was
Page 35
35
excluded from the disqualification provisions of
Article 58(2) of the Constitution of India. Mr.
Salve submitted that the aforesaid Act had been
enacted to declare that certain offices of profit
under the Government, including the post of
Chairman in any statutory or non-statutory body,
would not disqualify the holders thereof from
being chosen as, or for being Members of
Parliament as contemplated under Article 102(1)(a)
of the Constitution. By virtue of the said
amendment, a new Table was inserted after the
Schedule to the Principal Act which would be
deemed to have been inserted with effect from 4th
April, 1959. The Indian Statistical Institute,
Calcutta, has been placed at Serial No.4 of the
Table. Accordingly, the submissions advanced by
Mr. Jethmalani with regard to the Respondent
holding an office of profit as Chairman of the
Institute on the date of filing of nomination for
election to the Office of President, were
Page 36
36
incorrect and the same were liable to be
discarded.
35. Mr. Salve submitted that having regard to the
submissions made on behalf of the parties, the
Election Petition filed by Shri Purno Agitok
Sangma did not deserve a regular hearing, as
contemplated in Rule 20 of Order XXXIX of the
Supreme Court Rules, 1966, and was liable to be
dismissed.
36. The learned Attorney General, Mr. Goolam E.
Vahanvati, firstly urged that the expression
“office of profit” ought not to be interpreted in
a pedantic manner and has to be considered in the
light of the duties and functions and the benefits
to be derived by the holder of the office. Mr.
Vahanvati pointed out that the post of Chairman of
the Institute was a purely honorary post, meant to
honour the holder thereof. It did not require the
active participation of the Chairman in the
administration of the Institute, which was looked
Page 37
37
after by the President and his Council constituted
under the Rules and Regulations of the Institute.
Mr. Vahanvati also submitted that the post was
purely honorary in nature and did not benefit the
holder thereof in any way, either monetarily or
otherwise, nor was there any likelihood of any
profit being derived therefrom. Accordingly, even
if Mr. Jethmalani's submission that on the date of
filing of nominations the Respondent continued to
hold the said office, it would not disqualify him
from contesting the Presidential election.
37. In this regard, the learned Attorney General
referred to the decision of this Court in Consumer
Educatio n & Researc h Societ y vs. Unio n o f Indi a &
Ors. [(2009) 9 SCC 648], wherein the provisions of
the 1959 Act, as amended by the Amending Act of
2006, regarding the disqualification of persons
holding offices of profit from continuing as
Members of Parliament, were under consideration.
Considering the provisions of Articles 101(3)(a)
Page 38
38
and 103 in the Writ Petitions filed before this
Court under Article 32 of the Constitution, the
constitutionality of the Parliament (Prevention of
Disqualification) Amendment Act, 2006, came to be
questioned on the ground that the said Act
retrospectively added to the list of “offices of
profit” which do not disqualify the holders
thereof for being elected as Members of
Parliament. The Writ Petitioners contended that
the amendment had been brought in to ensure that
persons who had ceased to be Members of Parliament
on account of incurring disqualifications, would
be re-inducted to Parliament without election,
which, according to the Writ Petitioners, violated
the provisions of Articles 101 to 104 of the
Constitution.
38. The said question was answered by this Court
by holding that the power of Parliament to enact a
law under Article 102(1)(a) includes the power of
Parliament to enact such law retrospectively, as
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39
was held in Kant a Kathuri a Vs. Mana k Chan d Suran a
[(1969) 3 SCC 268] and later followed in the
decision rendered in Indir a Nehr u Gandh i Vs. Raj
Narai n [1975 (Supp) SCC 1]. Accordingly, if a
person was under a disqualification at the time of
his election, the provisions of Articles 101(3)(a)
and 103 of the Constitution would not apply and he
would continue as a Member of Parliament, unless
the High Court in an Election Petition filed on
that ground declared that on the date of the
election, he was disqualified and consequently
declares his election to be void. In other words,
the vacancy under Article 101(3)(a) would occur
only after a decision had been rendered on such
disqualification by the Chairman or the Speaker in
the House.
39. Reference was also made to the decision of
this Court in Karbhar i Bhimaj i Rohamar e Vs.
Shanke r Ra o Genuj i Kolh e & Ors . [(1975) 1 SCC
252], wherein this Court held that a Member of the
Page 40
40
Wage Board for the sugar industry constituted by
the Government of Maharashtra, which was an
honorary post and the honorarium paid to the
Members was in the nature of a compensatory
allowance, exercised powers which were essentially
a part of the judicial power of the State. Such
Members did not, therefore, hold an office under
the Government.
40. Further reference was made to another decision
of this Court in Pradyu t Bordolo i Vs. Swapa n Ro y
[(2001) 2 SCC 19], in which the post of a Clerk
Grade I in Coal India Ltd., a Company having 100%
shareholding of Government, was held not to be an
office of profit, which disqualified its holder
under Section 10 of the Representation of the
People Act, 1951, or under Article 191(1)(a) of
the Constitution of India. While deciding the
case, this Court had occasion to observe that the
expression “office of profit” had not been defined
in the Constitution. It was observed that the
Page 41
41
first question to be asked in this situation was
as to whether the Government has power to appoint
and remove a person on and from the office and if
the answer was in the negative, no further inquiry
was called for. However, if the answer was in the
positive, further inquiries would have to be
conducted as to the control exercised by the
Government over the holder of the post. Since in
the said case, the Government of India did not
exercise any control on appointment, removal,
service conditions and functioning of the
Respondent, it was held that the said Respondent
did not hold an office of profit under the
Government of India, and his being a Clerk in the
Coal India Ltd. did not bring any influence or
pressure on him in his independent functioning as
a Member of the Legislative Assembly.
41. The learned Attorney General lastly cited the
decision of this Court in Asho k Kuma r
Bhattacharyya Vs. Ajo y Biswa s & Ors . [(1985) 1 SCC
Page 42
42
151], where also what amounts to an office of
profit under the Government came up for
consideration and it was held that the employees
in the local authority did not hold offices of
profit under the Government and were not,
therefore, disqualified either under Articles
102(1)(a) and 191(1)(a) of the Constitution of
India or the provisions of the Bengal Municipal
Act, 1932. Their Lordships held that on an
analysis of the provisions of the Act, it was
quite clear that though the Government exercised a
certain amount of control and supervision, the
respondent who was an Accountant Incharge of the
Agartala Municipality in the State of Assam, was
not an employee of the Government and was at the
relevant time holding an office of profit under a
local municipality, which did not bring him within
the ambit of Article 102(1)(a) of the
Constitution.
Page 43
43
42. The learned Attorney General submitted that
the Disqualification Act is not a defining Act and
was never meant to be and one cannot import the
definition in the Schedule where only the
Institute is mentioned. Sharing the sentiments
expressed by Mr. Salve, the learned Attorney
General submitted that the Election Petition was
liable to be dismissed.
43. Replying to the submissions made by Mr. Harish
Salve and the learned Attorney General, Mr. Ram
Jethmalani asserted that the 1959 Act was, in
fact, a defining Act and falls under Entry 73 of
the First List in the Seventh Schedule to the
Constitution, which empowers the Parliament to
legislate in regard to elections to Parliament, to
the legislatures of the States and to the offices
of President and Vice-President and the Election
Commission. Mr. Jethmalani also reiterated that
the Institute was controlled by the Central
Government. The Act under which the Institute was
Page 44
44
formed was an Act by the Central Government and
the post of Chairman must, therefore, be held to
be an office of profit under the Central
Government.
44. Reiterating his earlier stand that the
Election Petition deserved to be regularly heard,
Mr. Jethmalani referred to the decision of this
Court in M.V . Rajashekara n's case (supra), in
which the Chairman of a One-man Commission,
appointed by the Government of Karnataka to study
the problems of Kannadigas and was accorded the
status of a Minister of Cabinet rank and was
provided by a budget of Rs.5 lakhs for defraying
the expenses of pay and day-to-day expenditure of
the Chairman, was held to be holding an office of
profit under the Government. This Court observed
that the question as to whether a person held an
office of profit under the Government or not,
would have to be determined in the peculiar facts
and circumstances of the case.
Page 45
45
45. Mr. Jethmalani lastly referred to the decision
in the Consume r Educatio n & Researc h Societ y case
(supra), which had been referred to by the learned
Attorney General, and drew the attention of the
Court to the observations made in the judgment in
paragraph 77, where it had been observed that what
kind of office would amount to an office of profit
under the Government and whether such an office of
profit is to be exempted, is a matter to be
considered by the Parliament. While making
legislation exempting any office, the question
whether such office is incompatible with his
position as an M.P. and whether his independence
would be compromised and whether his loyalty to
the Constitution will be affected, has to be kept
in mind to safeguard the independence of the
Members of the legislature and to ensure that they
were free from any kind of undue influence from
the executive. Mr. Jethmalani contended that
since the Respondent had held office under the
Page 46
46
Central Government, it will have to be considered
as to whether his functioning as the President of
India would, in any way, be compromised or
influenced thereby.
46. While replying, Mr. Jethmalani introduced a
new dimension to his submissions by urging that
the Rules and Bye-laws of the Institute did not
permit a Chairman, once appointed, to resign from
his post. Accordingly, even if the Respondent had
tendered his resignation to the President, Dr.
Menon, the same was of no effect and he continued
to remain as the Chairman of the Institute. He
was, therefore, disqualified from contesting the
Presidential election and his election was liable
to be declared void and in his place the
Petitioner was liable to be declared as the dulyelected
President of the country.
47. The Constitution provides for the manner in
which the election of a President or a Vice-
President may be questioned. Article 71 provides
Page 47
47
for matters relating to or connected with the
election of a President or a Vice-President.
Clause (1) of Article 71 provides that all doubts
and disputes arising out of or in connection with
the election of a President or Vice-President
shall be inquired into and decided by the Supreme
Court whose decision shall be final. Sub-clause
(3) provides that subject to the provisions of the
Constitution, Parliament may, by law, regulate any
matter, relating to or connected with the election
of a President or a Vice-President. In addition,
the Presidential and Vice-Presidential Elections
Act was enacted in 1952 with the object of
regulating certain matters relating to or
connected with elections to the Office of
President and Vice-President of India. As
indicated by Mr. Salve, Sections 14 and 14A of the
1952 Act, specially vest the jurisdiction to try
Election Petitions thereunder with the Supreme
Court in the manner indicated therein. In fact,
Part III of the said Act deals with disputes
Page 48
48
regarding elections to the posts of President and
Vice-President of India, which contains Sections
14 and 14A, as also Sections 17 and 18 which
empower the Supreme Court to either dismiss the
Election Petition or to declare the election of
the returned candidate to be void or declare the
election of the returned candidate to be void and
the Petitioner or any other candidate to have been
duly elected.
48. In view of Sub-section (3) of Section 14 of
the Act, the Supreme Court has framed Rules under
Article 145 of the Constitution which are
contained in Order XXXIX of the Supreme Court
Rules, 1966. As has been discussed earlier, Rule
13 of Order XXXIX provides that upon presentation
of a Petition relating to a challenge to election
to the post of President of India, the same is
required to be posted before a Bench of the Court
consisting of five Judges for preliminary hearing
and to consider whether the Petition deserved a
Page 49
49
regular hearing, as contemplated in Rule 20 of
Order XXXIX, and, in that context, such Bench may
either dismiss the Petition or pass any
appropriate order as it thought fit.
49. It is under the aforesaid Scheme that the
present Election Petition filed by Shri Purno
Agitok Sangma challenging the election of Shri
Pranab Mukherjee as the President of India has
been taken up for preliminary hearing on the
question as to whether it deserved a regular
hearing or not.
50. The challenge is based mainly on the
allegation that on the date of filing of
nominations, the Respondent, Shri Pranab
Mukherjee, held “offices of profit”, namely,
(i) Chairman of the Indian Statistical Institute,
Calcutta; and
(ii)Leader of the House in the Lok Sabha.
Page 50
50
In regard to the aforesaid challenges, Mr. Ram
Jethmalani, appearing for the Petitioner, had
urged that in order to arrive at a conclusive
decision on the said two points, it was necessary
that a regular hearing be conducted in respect of
the Election Petition to ascertain the truth of
the allegations made by the Petitioner. It was
also submitted that the same required a full scale
hearing in the manner as contemplated under
Section 141 of the Code of Civil Procedure, as
would be evident from Order XXXIX read with the
provisions relating to the Original Jurisdiction
of the Supreme Court, contained in Part III of the
Supreme Court Rules, 1966.
51. On the other hand, it has been urged by Mr.
Harish Salve, appearing for the Respondent, that
on the date of filing of nominations, Shri Pranab
Mukherjee was neither holding the Office of
Chairman of the aforesaid Institute nor was he the
Leader of the House in the Lok Sabha, inasmuch as,
Page 51
51
in respect of both the posts, he had tendered his
resignation on 20th June, 2012.
52. There is some doubt as to whether the Office
of the Chairman of the Indian Statistical
Institute is an office of profit or not, even
though the same has been excluded from the ambit
of Article 102 of the Constitution by the
provisions of the Parliament (Prevention of
Disqualification) Act, 1959, as amended in 2006.
Having been included in the Table of posts saved
from disqualification from membership of
Parliament, it must be accepted to be an office of
profit. However, as argued by Mr. Salve,
categorising the office as an “office of profit”
did not really make it one, since it did not
provide any profit and was purely honorary in
nature. There was neither any salary nor
honorarium or any other benefit attached to the
holder of the said post. It was not such a post
which, in fact, was capable of yielding any
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52
profit, which could make it, in fact, an office of
profit.
53. The said proposition was considered in Shibu
Soren's case (supra) where it was held that mere
use of the word “honorarium” would not take the
payment out of the concept of profit, if there was
some pecuniary gain for the recipient in addition
to daily allowances in the nature of compensatory
allowances, rent-free accommodation and chauffeur
driven car at State expense.
54. Similar was the view expressed in Jaya
Bachchan's case (supra) where also this Court
observed that what was relevant was whether the
office was capable of yielding a profit or
pecuniary gain, other then reimbursement of outof-
pocket/actual expenses and not whether the
person actually received any monetary gain or did
not withdraw the emoluments to which he was
entitled. In other words, whether a person
holding a post accepted the benefits thereunder
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53
was not material, what was material is whether the
said office was capable of yielding a profit or
pecuniary gain.
55. In the instant case, the office of Chairman of
the Institute did not provide for any of the
amenities indicated hereinabove and, in fact, the
said office was also not capable of yielding
profit or pecuniary gain.
56. In regard to the office of the Leader of the
House, it is quite clear that the Respondent had
tendered his resignation from membership of the
House before he filed his nomination papers for
the Presidential election. The controversy that
the Respondent had resigned from the membership of
the Indian National Congress and its Central
Working Committee allegedly on 25th June, 2012,
was set at rest by the affidavit filed by Shri
Pradeep Gupta, who is the Private Secretary to the
President of India. In the said affidavit, Shri
Gupta indicated that through inadvertence he had
Page 54
54
supplied the date of the Congress Working
Committee meeting held on 25th June, 2012, to bid
farewell to Shri Mukherjee on his nomination for
the Presidential Election being accepted. In any
event, the disqualification contemplated on
account of holding the post of Leader of the House
was with regard to the provisions of Article
102(1)(a) of the Constitution, besides being the
position of the leader of the party in the House
which did not entail the holding of an office of
profit under the Government. In any event, since
the Respondent tendered his resignation from the
said post prior to filing of his nomination
papers, which was duly acted upon by the Speaker
of the House, the challenge thrown by the
Petitioner to the Respondent's election as
President of India on the said ground loses its
relevance. In any event, the provisions of the
Parliament (Prevention of Disqualification) Act,
1959, as amended in 2006, excluded the post of
Page 55
55
Chairman of the Institute as a disqualification
from being a Member of Parliament.
57. The Constitutional Scheme, as mentioned in
the Explanation to Clause (2) of Article 58 of the
Constitution, makes it quite clear that for the
purposes of said Article, a person would not be
deemed to hold any office of profit, inter alia,
by reason only that he is a Minister either for
the Union or for any State. Article 102 of the
Constitution contains similar provisions wherein
in the Explanation to clause (1) it has been
similarly indicated that for the purposes of the
said clause, a person would not be deemed to hold
an office of profit under the Government of India
or the Government of any State by reason only that
he is a Minister, either for the Union, or for
such State. The argument that the aforesaid
provisions of Article 102, as well as Article 58
of the Constitution, could not save a person
elected to the office of President from
Page 56
56
disqualification, if he held an office of profit,
loses much of its steam in view of the fact that
as would appear from the materials on record, the
Respondent was not holding any office of profit
either under the Government or otherwise at the
time of filing his nomination papers for the
Presidential election.
58. The various decisions cited on behalf of the
parties in support of their respective
submissions, clearly indicate that in order to be
an office of profit, the office must carry various
pecuniary benefits or must be capable of yielding
pecuniary benefits such as providing for official
accommodation or even a chauffeur driven car,
which is not so in respect of the post of Chairman
of the Indian Statistical Institute, Calcutta,
which was, in fact, the focus and raison d'etere
of Mr. Jethmalani's submissions.
59. We are also not inclined to accept Mr.
Jethmalani's submissions that once a person is
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57
appointed as Chairman of the Indian Statistical
Institute, Calcutta, the Rules and Bye-laws of the
Society did not permit him to resign from the post
and that he had to continue in the post against
his wishes. There is no contractual obligation
that once appointed, the Chairman would have to
continue in such post for the full term of office.
There is no such compulsion under the Rules and
Bye-laws of the Society either. In any event,
since the holder of the post of Chairman of the
Institute has been excluded from disqualification
for contesting the Presidential election, by the
2006 amendment to Section 3 of the Parliament
(Prevention of Disqualification) Act, 1959, the
submissions of Mr. Jethmalani in this regard is of
little or no substance.
60. We are not convinced that in the facts and
circumstances of the case, the Election Petition
deserves a full and regular hearing as
contemplated under Rule 20 of Order XXXIX of the
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58
Supreme Court Rules, 1966. Consequently, Mr.
Jethmalani's submissions regarding the
applicability of Section 141 of the Code of Civil
Procedure for trial of the Election Petition is of
no avail. We are also not convinced that Section
141 of the Code is required to be incorporated
into a proceeding taken under Order XXXIX of the
Supreme Court Rules read with Part II of the
Presidential and Vice-Presidential Elections Act,
1952, which includes Sections 14 to 20 of the
aforesaid Act and Article 71 of the Constitution
of India.
61. It may not be inappropriate at this stage to
mention that this Court has repeatedly cautioned
that the election of a candidate who has won in an
election should not be lightly interfered with
unless circumstances so warrant.
62. We are not inclined, therefore, to set down
the Election Petition for regular hearing and
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59
dismiss the same under Rule 13 of Order XXXIX of
the Supreme Court Rules, 1966.
63. In the facts and circumstances of the case,
the parties shall bear their own costs in these
proceedings.
…………………………………………………CJI.
(ALTAMAS KABIR)
………………………………………………………J.
(P. SATHASIVAM)
………………………………………………………J.
(SURINDER SINGH NIJJAR)
New Delhi
Dated: 05.12.2012
Page 60
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IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
ELECTION PETITION NO.1 OF 2012
PURNO AGITOK SANGMA ....PETITIONER
VERSUS
PRANAB MUKHERJEE ....RESPONDENT
J U D G M E N T
RANJAN GOGOI , J .
1. I have had the privilege of going through
the opinion rendered by the learned Chief
Justice of India. With utmost respect I have not
been able to persuade myself to share the views
expressed in the said opinion. The reasons for
my conclusions are as indicated below -
2. The short question that has arisen for
determination in the Election Petition, at this
stage, is whether the same deserves a regular
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61
hearing under Rule 20 of Order XXXIX of the
Supreme Court Rules, 1966.
3. The Election Petition in question has been
filed challenging the election of the respondent
to the office of the President of India (hereinafter
referred to as ‘the President’). The election in
which the petitioner and the respondent were
the contesting candidates was held to the
following Schedule:
Issue of Notification
calling the election
16 June 2012
Last date for making
Nominations
30 June, 2012
Date for scrutiny 2 July, 2012
Last date for
withdrawal
4 July, 2012
Date of poll, if
necessary
19 July, 2012
Date of counting, if
necessary
22 July, 2012
4. Both the Election Petitioner as well as the
respondent filed their nomination papers before
the Returning Officer on 28.6.2012. A total of
106 nomination papers filed by 84 persons were
taken up for scrutiny on the date fixed i.e.
2.7.2012. The petitioner objected to the validity
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62
of the nomination of the respondent on the
ground that the respondent on the said date i.e.
2.7.2012 was holding the office of the Chairman
of the Council of Indian Statistical Institute,
Kolkata (hereinafter referred to as the Chairman
ISI) which is an office of profit. According to the
petitioner, at the request of the representative of
the respondent, the scrutiny of the nomination
of the respondent was deferred to 3.00 p.m. of
the next day i.e. 3.7.2012 with liberty to file
reply, if any, by 2.00 p.m. Coincidentally,
certain objections having been raised to the
nomination of the Election Petitioner,
consideration of the same was also deferred to
11.00 a.m. of 3.7.2012. All the remaining
nomination papers were rejected on the date
fixed for scrutiny i.e. 2.7.2012.
5. On the next date i.e. 3.7.2012 at the
appointed time, i.e. 11.00 a.m. the scrutiny of
the nomination papers of the Election Petitioner
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63
were taken up and Returning Officer accepted
the same. Thereafter, within the time granted
on the previous date i.e. 2.00 p.m., the
respondent submitted a written reply to the
objections raised by the petitioner alongwith a
copy of a resignation letter dated 20.6.2012 by
which the respondent claimed to have resigned
from the office of the Chairman ISI. The scrutiny
of the nomination papers of the respondent was
taken up at 3.00 p.m. on 3.7.2012 and
thereafter the same was accepted by the
Returning Officer.
6. As per the Schedule of the election
published by the Election Commission the poll
took place on 19.7.2012 and the result of the
counting was announced on 22.7.2012
declaring the respondent to be duly elected to
the office of the President of India.
7. Contending that on all the relevant dates,
including the date of scrutiny i.e. 2.7.2012, the
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64
respondent was holding the office of the
Chairman of the Council of Indian Statistical
Institute, Kolkata as well as the office of Leader
of the House (Lok Sabha) and Leader of the
Congress Party in the Lok Sabha, which are
offices of profit, the present Election Petition has
been filed on the ground that by virtue of
holding the aforesaid offices of profit the
respondent was not qualified to be a candidate
for the election to the office of the President of
India and that the nomination submitted by the
respondent was wrongly accepted by the
Returning Officer. According to the Election
Petitioner, the election of the respondent was
liable to be declared void on the said ground. In
the Election Petition filed as well as in the short
rejoinder that has been brought on record by the
Election Petitioner the claim of the respondent
that he had resigned from the office of the
Chairman, ISI on 20.6.2012 has been disputed.
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65
According to the petitioner the resignation letter
dated 20.6.2012 is forged and fabricated and
has been subsequently brought into existence to
counter the case put up by the Election
Petitioner. Insofar as the other offices are
concerned, according to the Election petitioner,
though the respondent had resigned from the
Union Cabinet on 26.6.2012, he continued to
remain a Member of Parliament and the Leader
of the Congress Legislature Party in the Lok
Sabha up to 25.07.2012 i.e. date of assumption
of office as President of India. In fact the
Respondent was shown as a Member of
Parliament and as the Leader of the House in
the official Website of the Lok Sabha till
2.7.2012.
8. The respondent i.e. the returned candidate
has filed a short counter for the purposes of the
preliminary hearing. According to the
respondent the office of the Chairman, ISI, is not
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66
an office of profit as it does not carry any
emoluments remuneration or perquisites. In any
case, according to the respondent, he had
submitted his resignation from the said office on
20.6.2012 which had been accepted by the
President of the Institute on the same day.
Insofar as the other two offices are concerned it
is the case of the respondent that he had held
the said offices by virtue of being a Cabinet
Minister of the Union. According to the
respondent, under the Leaders and Chief Whips
of Recognized Parties and Groups in Parliament
(Facilities) Act, 1998 and the Rules framed
thereunder the aforesaid offices do not carry any
emoluments or perquisites or benefits beyond
those attached to the office of a Cabinet Minister
of the Union. Furthermore, according to the
respondent, he had resigned from the Congress
Party and the office of the Leader of the
Legislature Party in the Lok Sabha on 20.6.2012
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and from the Union Cabinet on 26.6.2012.
Therefore he had ceased to hold any office of
profit on the relevant date i.e. date of scrutiny or
acceptance of his nomination.
9. Article 71 of the Constitution provides for
matters relating to, or connected with, the
election of the President or Vice President.
Clause (1) of Article 71 provides that all doubts
and disputes arising out of or in connection with
the election of a President or Vice President shall
be inquired into and decided by the Supreme
Court. Under Clause (3), Parliament has been
empowered, subject to the provisions of the
Constitution, to make laws to regulate any
matter relating to or connected with the election
of the President or Vice President.
10. In exercise of the power conferred by
Article 71(3) read with Entry 72 of List I of the
Seventh Schedule to the Constitution,
Parliament has framed the Presidential and
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Vice-Presidential Election Act, 1952 ( Act 31 of
1952). Part III of the aforesaid Act makes
provisions with regard to disputes regarding
elections. Section 14 (1) provides that no
election shall be called in question except by
presenting an election petition to the authority
specified in sub-section (2) i.e. the Supreme
Court. Section 14(3) provides that every election
petition shall be presented in accordance with
the provisions contained in Part III of the Act
and such Rules as may be made by the Supreme
Court under Article 145 of the Constitution. The
next provision of the Act that would require
specific notice is Section 15 which provides that
the Rules made by the Supreme Court under
Article 145 of the Constitution may regulate the
form of Election Petitions, the manner in which
they are to be presented, the persons who are to
be made parties thereto, the procedure to be
adopted in connection therewith and the
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circumstances in which petitions are to abate,
or may be withdrawn, and in which new
petitioners may be substituted, and may require
security to be given for costs. The rest of the
provisions of the aforesaid Act would not require
any recital insofar as the present case is
concerned.
11. By virtue of powers conferred by Article 145
of the Constitution, the Supreme Court Rules,
1966 (hereinafter referred to as the Rules) have
been framed by the Supreme Court with the
approval of the President of India in order to
regulate the practice and procedure of the
Court. Order XXXIX contained in Part VII of the
Supreme Court Rules, 1966 deals with election
petitions filed under Part III of the Presidential
and Vice Presidential Elections Act, 1952. The
provisions of Rule 13 (inserted w.e.f.
20.12.1997), Rule 20 and Rule 34 of Order
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XXXIX being relevant may be extracted
hereinbelow:
“13. Upon presentation of a petition the
same shall be posted before a bench of
the Court consisting of five Judges for
preliminary hearing and orders for service
of the petition and advertisement thereof
as the Court may think proper and also
appoint a time for hearing of the petition.
Upon preliminary hearing, the Court, if
satisfied, that the petition does not
deserve regular hearing as contemplated
in Rule 20 of this Order may dismiss the
petition or pass any appropriate order as
the Court may deem fit.]
x x x x x
20. Every petition calling in question an
election shall be posted before and be
heard and disposed of by a Bench of the
Court consisting of not less than five
Judges.
x x x x x
34. Subject to the provisions of this Order
or any special order or directions of the
Court, the procedure on an election
petition shall follow, as nearly as may be,
the procedure in proceedings before the
Court in the exercise of its original
jurisdiction.”
12. Rule 13 of the Supreme Court Rules,
1966, as it existed prior to insertion of the
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present Rule 13 w.e.f. 20.12.1997 may also be
extracted herein below for an effective
determination of precise circumference of the
‘preliminary hearing’ contemplated by Rule 13:
“Upon the presentation of the petition, the
Judge in Chambers, or the Registrar,
before whom, it is presented, may give
such directions for service of the petition
and advertisement thereof as he thinks
proper and also appoint a time for the
hearing of the petition.”
13. A preliminary hearing for determination of
the question as to whether an election petition
deserves a regular hearing under Rule 20 did
not find any place in the Supreme Court Rules
till insertion of Rule 13 in the present form w.e.f.
20.12.1997. Rule 34 of Order XXXIX provides
that the procedure on an Election Petition shall
follow, as nearly as may be, the procedure in
proceedings before the Supreme Court in the
exercise of its original jurisdiction. The
procedure applicable to proceedings in the
exercise of the original jurisdiction of the
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Supreme Court is contained in Order XXIII of
Part III of the Supreme Court Rules. Order XXIII,
Rule 1 contemplates institution of a suit by
means of a plaint. After dealing with the
requirements of a valid plaint, Order Rule 6
provides that a plaint shall be rejected
(a) where it does not disclose a cause of action;
(b) where the suit appears from the statement in
the plaint to be barred by any law.
14. To make the narration complete it will be
necessary to note that the other provisions of
Part III of the Rules deal with the procedure that
would apply to the disposal of a suit filed under
Order XXIII Rule 1 and, inter alia, provide for :
a) Issue and Service of Summons (Order XXIV)
b) Written statement set off and
counterclaims(Order XXV)
c) Discovery and Inspection (Order XXVII)
d) Summoning and Attendance of witnesses
(Order XXIX)
e) Hearing of the suit (Order XXXI)
15. Order XXIII, Rule 6, as noticed above, was
a part of the Rules alongwith Rule 13 as it
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originally existed. In other words, insertion of
the new Rule 13 providing for a preliminary
hearing was made despite the existence of the
provisions of Order XXIII Rule 6 and the
availability of the power to reject a plaint and
dismiss the suit (including an Election Petition)
on the twin grounds mentioned in Rule 6 of
Order XXIII. Therefore a preliminary hearing
under Order XXXIX Rule 13 would require the
Court to consider something more than the mere
disclosure or otherwise of a cause of action on
the pleadings made or the question of
maintainability of the Election Petition in the
light of any particular statutory enactment. A
further enquiry, which obviously must exclude
matters that would fall within the domain of a
regular hearing under Rule 20 would be called
for in the preliminary hearing under Rule 13 of
Order XXXIX. In the course of such enquiry the
Court must be satisfied that though the Election
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Petition discloses a clear cause of action and
raise triable issue(s), yet, a trial of the issues
raised will not be necessary or justified in as
much as even if the totality of the facts on which
the petitioner relies are to be assumed to be
proved there will be no occasion to cause any
interference with the result of the election. It is
only in such a situation that the Election
Petition must not be allowed to cross the hurdle
of the preliminary hearing. If such satisfaction
cannot be reached the Election Petition must be
allowed to embark upon the journey of a regular
hearing under Order 20 Rule XXXIX in
accordance with the provisions of Part III of the
Rules. In my opinion, the above is the scope
and ambit of the preliminary hearing under
Order XXXIX, Rule 13 of the Rules and it is
within the aforesaid confines that the question
raised by the parties, at this stage, have to be
answered.
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16. At the very outset the issue with regard to
the office of the Leader of the House and Leader
of the Congress Party may be dealt with. Under
the provisions of The Leaders and Chief Whips
of Recognized Parties and Groups in Parliament
(Facilities) Act, 1998 Act and Rules framed there
under no remuneration to the Leader of the
House or the Leader of the Legislature Party in
the House is contemplated beyond the salary
and perquisites payable to the holder of such an
office if he is a Minister of the Union (in the
present case the Respondent was a Cabinet
Minister of the Union). That apart, either of the
offices is not under the Government of India or
the Government of any State or under any local
or other authority as required under Article 58
(2) so as to make the holder of any such office
incur the disqualification contemplated
thereunder. Both the offices in question are
offices connected with the Lok Sabha. Any
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76
incumbent thereof is either to be elected or
nominated by virtue of his membership of the
House or his position as a Cabinet Minister, as
may be. The Election Petition insofar as the
aforesaid offices are concerned, therefore, do not
disclose any triable issue for a full length
hearing under Order XXXIX, Rule 20 of the
Rules.
17. The next question is with regard to the
office of the Chairman of the Council of Indian
Statistical Institute, Kolkata. Whether the said
office carries any remuneration and/or
perquisites or the same is under the control of
the Union Government as also the question
whether the respondent had resigned from the
said office on 20.6.2012 are all questions of fact
which are in dispute and, therefore, capable of
resolution only on the basis of such evidence as
may be adduced by the parties. The Court,
therefore, will have to steer away from any of the
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said issues at the present stage of consideration
which is one under Order XXXIX, Rule 13.
Instead, for the present, we may proceed on the
basis that the office in question is an office of
profit which the Respondent held on the
relevant date (which facts, however, will have to
be proved at the regular hearing if the occasion
so arises) and on that assumption determine
whether the election of the Respondent is still
not void on the ground that, in view of the
provisions of Article 58 (2) of the Constitution,
the nomination of the Respondent had been
wrongly accepted, as claimed by the respondent.
In this regard the specific issue that has to be
gone into as whether the office of the Chairman,
ISI, Kolkata has been exempted from bringing
any disqualification by virtue of the provisions
of the Parliament (Prevention of Disqualification)
Act 1959, as amended.
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18. For an effective examination of the issue
indicated above, the provisions of Articles 58, 84
and 102 of the Constitution would require a
detailed notice and consideration. The said
provisions are, therefore, extracted below:-
“Article 58 - Qualifications for election
as President
(1) No person shall be eligible for election
as President unless he--
(a) is a citizen of India,
(b) has completed the age of thirty-five
years, and
(c) is qualified for election as a member of
the House of the People.
(2) A person shall not be eligible for
election as President if he holds any office
of profit under the Government of India or
the Government of any State or under any
local or other authority subject to the
control of any of the said Governments.
Explanation.--For the purposes of this
Article, a person shall not be deemed to
hold any office of profit by reason only that
he is the President or Vice President of the
Union or the Governor1[***] of any State or
is a Minister either for the Union or for any
State.
1. The words "or Rajpramukh or Uparajpramukh"
omitted by the Constitution (Seventh Amendment)
Act, 1956, section 29 and Schedule.
Article 84 - Qualification for
membership of Parliament
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A person shall not be qualified to be
chosen to fill a seat in Parliament unless
he--
1[(a) is a citizen of India, and makes and
subscribes before some person
authorised in that behalf by the Election
Commission an oath or affirmation
according to the form set out for the
purpose in the Third Schedule;]
(b) is, in the case of a seat in the
Council of States, not less than thirty
years of age and, in the case of a seat in
the House of the People, not less than
twenty-five years of age; and
(c) possesses such other qualifications
as may be prescribed in that behalf by
or under any law made by Parliament.
1. Substituted by the Constitution (Sixteenth
Amendment) Act, 1963, section 3, for clause (a)
(w.e.f. 5-9-1963)
Article 102 - Disqualifications for
membership
(1) A person shall be disqualified for
being chosen as, and for being, a
member of either House of Parliament--
(a) if he holds any office of profit under
the Government of India or the
Government of any State, other than an
office declared by Parliament by law not
to disqualify its holder;
(b) if he is of unsound mind and stands
so declared by a competent court;
(c) if he is an undischarged insolvent;
(d) if he is not a citizen of India, or has
voluntarily acquired the citizenship of a
foreign State, or is under any
acknowledgement of allegiance or
adherence to a foreign State;
(e) if he is so disqualified by or under
any law made by Parliament.
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1[Explanation.-- For the purposes of this
clause] a person shall not be deemed to
hold an office of profit under the
Government of India or the Government
of any State by reason only that he is a
Minister either for the Union or for such
State.
2(2) A person shall be disqualified for
being a member of either House of
Parliament if he is so disqualified under
the Tenth Schedule.]
1. Substituted by the Constitution (Fifty-second
Amendment) Act, 1985, section 3, for "(2) For
the purposes of this Article" (w.e.f. 1-3-1985).
2. Inserted by the Constitution (Fifty-second
Amendment) Act, 1985, section 3 (w.e.f. 1-3-
1985).
19. Article 58(1)(c) requires a presidential
candidate to be qualified for election as a
Member of the House of the People. Does it
mean that whosoever is qualified for election as
a Member of the House of the People under
Article 84 and does not suffer from any
disqualification under Article 102 becomes
automatically eligible for election to the office of
the President? In other words, do the provisions
of Articles 58, 84 and 102 of the Constitution
envisage a composite and homogenous scheme?
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20. Under Article 58(1)(b) a Presidential
candidate must have completed the age of 35
years. At the same time, under Article 58(1)(c)
such a person must be eligible to seek election
as a Member of the House of the People. Under
Article 84(b) a candidate, seeking election to the
House of the People must not be less than 25
years of age. In other words, a person qualified
to be a Member of the House of the People but
below 35 years of age will not be qualified to be
a candidate for election to the office of the
President. Similarly, to be eligible for
membership of Parliament (including the House
of the People) a candidate must make and
subscribe an oath or affirmation according to
the prescribed form. No such condition or
stipulation is mandated for a Presidential
candidate by Article 58. Insofar as Article 102
(1)(a) is concerned though holding an office of
profit is a disqualification for election as or being
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a Member of either House of Parliament such a
disqualification can be obliterated by a law made
by Parliament. Under Article 58(2) though a
similar disqualification (by virtue of holding an
office of profit) is incurred by a Presidential
candidate no power has been conferred on
Parliament to remove such a disqualification.
That apart, the Explanations to both Articles 58
and 102 contain provisions by virtue of which
certain offices are deemed not to be offices of
profit. The similarities as well as the differences
between the two provisions of the Constitution
are too conspicuous to be ignored or over
looked. In a situation where Article 102(1)(a)
specifically empowers Parliament to enact a law
to remove the disqualification incurred for being
a Member of Parliament by virtue of holding of
an office of profit and in the absence of any such
provision in Article 58 it will be impossible to
read Article 58 alongwith Article 102 to
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comprehend a composite constitutional scheme.
Keeping in view that the words in the
Constitution should be read in their ordinary
and natural meaning so that a construction
which brings out the true legislative intent is
achieved, Article 58 has to be read
independently of Articles 84 and 102 and the
purport of the two sets of Constitutional
provisions have to be understood to be
independent of each other. In fact such a view
finds expression in an earlier opinion of this
Court rendered in Baburao Patel v. Dr. Zakir
Hussain1 which is only being reiterated herein.
21. The net result of the above discussion is
that the Parliament (Prevention of
Disqualification) Act, 1959 as amended by the
Amendment Act No.31 of 2006 has no
application insofar as election to the office of the
President is concerned. The disqualification
incurred by a Presidential candidate on account
1 (1968) 2 SCR 133
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of holding of an office of profit is not removed by
the provisions of the said Act which deals with
removal of disqualification for being chosen as,
or for being a Member of Parliament. If,
therefore, it is assumed that the office of
Chairman, ISI is an office of profit and the
Respondent had held the said office on the
material date(s) consequences adverse to the
Respondent, in so far as the result of the
election is concerned, are likely to follow. The
said facts, will therefore, be required to be
proved by the election Petitioner. No conclusion
that a regular hearing in the present case will be
a redundant exercise or an empty formality can
be reached so as to dispense with the same and
terminate the Election Petition at the stage of its
preliminary hearing under Order XXXIX Rule
13. The Election Petition, therefore, deserves a
regular hearing under Order XXXIX Rule 20 in
accordance with what is contained in the
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different provisions of Part III of the Supreme
Court Rules, 1966.
..............................J.
[ Ranjan Gogoi ]
New Delhi,
December 5, 2012
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IN THE SUPREME COUR OF INDIA
CIVIL ORIGINAL JURISDICTION
ELECTION PETITION NO.1 OF 2012
Purno Agitok Sangma ….Petitioner
Versus
Pranab Mukherjee ….Respondent
O R D E R
I have had the advantage of reading the judgments of
both My Lord the Chief Justice and my learned brother
Justice Ranjan Gogoi. I regret my inability to agree with the
conclusion recorded by the learned Chief Justice that the
instant Election Petition does not deserve a regular hearing.
I shall pronounce my reasons for such disagreement shortly.
………………………………….J.
(J. CHELAMESWAR )
New Delhi;
December 5, 2012