REPORTABLE
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
ALTAMAS KABIR, CJI.
1 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 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 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, 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 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.
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 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 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. 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 :-
“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.”
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 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 :-
“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 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 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 Shibu Soren Vs. Dayanand Sahay & 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 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 Jaya Bachchan Vs. Union of India & 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 three-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. Rajashekaran & Ors. Vs. Vatal Nagaraj & 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 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.
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 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 Bench decision of this Court in the case of Charan Lal Sahu Vs.
Neelam Sanjeeva Reddy [(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 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 Mithilesh
Kumar Vs. R. Venkataraman & 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 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.
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.
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
Shibu Soren (supra) and Jaya Bachchan (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.
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 Mange Ram Vs. Brij Mohan & 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
three-Judge Bench decision of this Court in Ravanna Subanna Vs. G.S.
Kaggeerappa [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 :
“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 Shibu Soren (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 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 Madhukar G.E. Pankakar Vs. Jaswant Chobbildas 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 Ravanna Suvanna'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 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 Union of
India & Ors. Vs. Gopal Chandra Mishra & Ors.[(1978(2) SCC 301], wherein the
question as to when a resignation 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 Moti Ram Vs. Param Dev [(1993) 2 SCC 725], where
a 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
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.
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 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.
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 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 incorrect and the same were
liable to be discarded.
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 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.
In this regard, the learned Attorney General referred to the decision
of this Court in Consumer Education & Research Society vs. Union of India &
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) 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.
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 was held in Kanta
Kathuria Vs. Manak Chand Surana [(1969) 3 SCC 268] and later followed in
the decision rendered in Indira Nehru Gandhi Vs. Raj Narain [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.
Reference was also made to the decision of this Court in Karbhari
Bhimaji Rohamare Vs. Shanker Rao Genuji Kolhe & Ors. [(1975) 1 SCC 252],
wherein this Court held that a Member of the 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.
Further reference was made to another decision of this Court in
Pradyut Bordoloi Vs. Swapan Roy [(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
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.
The learned Attorney General lastly cited the decision of this Court
in Ashok Kumar Bhattacharyya Vs. Ajoy Biswas & Ors. [(1985) 1 SCC 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.
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 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. Rajashekaran'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.
45. Mr. Jethmalani lastly referred to the decision in the Consumer
Education & Research Society 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 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 duly-elected
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 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 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 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.
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,
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 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
out-of-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 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 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 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 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 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 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 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
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 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 |16 June 2012 |
|election | |
|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 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
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 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.
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 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 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 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 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
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 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 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 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
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.
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
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
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.
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
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.
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?
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 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 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
Hussain[1] 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 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
different provisions of Part III of the Supreme Court Rules, 1966.
..............................J.
[ Ranjan Gogoi ]
New Delhi,
December 5, 2012
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
-----------------------
[1] (1968) 2 SCR 133
