Page 1

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

Chelameswar, J.

1. I regret my inability to completely agree with the opinion of the  

majority delivered by Hon’ble the Chief Justice.  

2. The pleadings and submissions relevant for the present purpose are  

elaborately  mentioned in  the  judgment  of  Hon’ble  the  Chief  Justice  of  

India, therefore, I do not propose to reiterate the same.

3. The procedure that is required to be followed in an election petition  

calling in question the election of the respondent as the President of India  

is the subject matter of controversy.  It is a long settled principle of law in  

this  country  that  the  elections  to  various  bodies  created  under  the  

Constitution  cannot  be  questioned  except  in  accordance  with  the  law  

made by the appropriate legislation.  Article 329 (b) declares that “no  

election to either House of Parliament or to the House or either House of  

the  Legislature  of  a  State  (hereinafter  collectively  called  ‘legislative  

1

Page 2

bodies’)  shall  be  called  in  question  except  by  an  election  petition  

presented to such authority and in such manner as may be provided for  

by or  under any law made by the appropriate  Legislature”.   Similarly,  

Article 711 declares 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.  Article 71 (3) stipulates that Parliament  

may by law regulate any matter relating to or connected with the election  

of a President or Vice-President and such regulations by the Parliament is,  

however, subject to provisions of the Constitution.  In other words, while  

the  forum for  adjudication  of  disputes  pertaining  to  legislative  bodies  

under the Constitution is required to be determined by the appropriate  

legislature, the forum for the adjudication of disputes pertaining to the  

election of the President and Vice-President is fixed by the Constitution to  

be this Court.  Whereas various other matters like the grounds on which  

such elections could be challenged, the procedure that is required to be  

followed in an election dispute are required to be provided by law in the  

case  of  the  members  of  the  legislative  bodies  -  by  the  appropriate  

legislature and in the case of the President and Vice-President – only by  

the Parliament.  In the context of the election disputes pertaining to the  

members  of  the  legislative  bodies,  the  authority  to  provide  for  such  

matters is vested in the appropriate legislature in view of the language of  

1 Article 71. Matters relating to, or connected with, the election of a president or Vice President.—(1) 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.

(2) If the election of a person as President or Vice President is declared void by the Supreme court, acts done by him   in the exercise and performance of the powers and duties of the office of President or Vice President, as the case may be, on or  before the date of the decision of the Supreme Court shall not be invalidated by reason of that declaration

(3) Subject to the provisions of this constitution, Parliament may by law regulate any matter relating to or connected  with the election of a President or Vice President.

(4) The election of a person as President or Vice President shall  not be called in question on the ground of the   existence of any vacancy for whatever reason among the members of the electoral college electing him.

2

Page 3

Article 329, Entry 11A of the III List, VII Schedule.  Similarly, by virtue of  

Article 71 (3) read with Article 246 (1) and Entry 72 of List I to the VII  

Schedule, such power vests exclusively in the Parliament.

4. In exercise of such power, the Parliament made the Presidential and  

Vice-Presidential  Elections  Act,  1952,  (hereinafter  referred  to  as  ‘the  

Elections Act’, for easy reference).  Part III of the said Act deals with the  

disputes regarding the election.  Section 14 declares that the only mode of  

questioning of the election of either the President or Vice-President is by  

presenting an election petition to this Court.  Section 14A2 prescribes that  

the election of either the President or Vice-President could be challenged  

only on the grounds specified in Sections 18(1) and 19 of the Act.  It also  

specifies the persons who are authorized to raise such a question.  It  

limits the right to raise the question only to two categories of people – (1)  

the candidates at such an election; (2) twenty or more electors in the  

case of the President and ten or more electors in the case of the Vice-

President.   The  said  Section  stipulates  a  limitation  of  30  days  for  

presenting such an election petition reckoned from the date of publication  

of the declaration contemplated under Section 12 thereof.  While Section  

16  stipulates  the  reliefs  that  could  be  claimed in  an  election  petition,  

Section 15 provides as follows:-

“Form of petitions, etc., and procedure.- Subject to the provisions of this  Part,  rules  made  [whether  before  or  after  the  commencement  of  the  Presidential and Vice-Presidential Elections (Amendment) Act, 1977] by  the Supreme Court under article 145 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  

2 14A. Presentation of Petition.—(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—

(i) in the case of Presidential election, by twenty or more electors joined together as petitioners; (ii) 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.

3

Page 4

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.”

It can be seen from Section 15 that the Parliament purports to authorize  

this  Court  to  frame rules  dealing  with  various  aspects  of  the  election  

petitions  such  as  (1)  the  manner  in  which  the  petitions  are  to  be  

presented; (2) the persons who are required to be made parties thereto;  

(3) the procedure to be followed in conducting the election petitions; (4)  

the  circumstances  in  which  the  petitions  are  to  abate  or  may  be  

withdrawn, and (5) the circumstances in which the petitioners may be  

substituted and may require security to be given for costs. Similarly, in  

the context of the election petition calling in question the election of a  

member  of  any  one  of  the  legislative  bodies  such  procedure  is  

meticulously provided for by the Parliament under the Representation of  

the People Act, 1951.  

5. In  my opinion  both Sections  14(2)  and 15 of  the Elections  Act,  

insofar as they purport to vest the jurisdiction in and authorize this Court  

to frame rules respectively with respect to the adjudication of the disputes  

pertaining  to  the  election  of  the  President,  are  superfluous  because  

Articles 71 and 145 of the Constitution already expressly provide for the  

same.

6. Part  V  Chapter  IV  of  the  Constitution  provides  for  the  

establishment, jurisdiction etc of this Court.  Original jurisdiction of this  

Court obtains under Article 131 and 32 of the Constitution. Various other  

articles occurring in the said Part vest both civil  and criminal appellate  

4

Page 5

jurisdiction of this Court.  Article 1383 of the Constitution authorizes the  

Parliament to vest further jurisdiction in the Supreme Court by law.  Such  

jurisdiction could either be original or appellate.  It is axiomatic that the  

authority  of  the  legislature (Parliament in  the  context  of  this  case)  to  

create jurisdiction takes within its sweep the authority to prescribe various  

matters  which  are  necessary  incidents  of  the  jurisdiction  such as,  the  

limits of the jurisdiction – pecuniary, territorial etc., the procedure to be  

adopted in the exercise of such jurisdiction etc.

7. Since the Constitution itself  vests jurisdiction in this Court under  

various heads and it also authorizes the Parliament to create/vest further  

jurisdiction in this Court by law, the Constitution recognized the need for  

regulating the procedure to be followed by this Court in exercise of such  

jurisdiction whatever be the source of such jurisdiction.  Therefore, Article  

145 is incorporated.  Article 145 postulates that the Parliament may by  

law stipulate such procedure and in  the absence of  any such law this  

Court can prescribe the procedure with the approval of the President of  

India.

3 Article 138.  Enlargement of the  jurisdiction of  the Supreme Court -  (1)  The Supreme Court  shall  have such further  jurisdiction and powers with respect to any of the matters in the Union List as Parliament may by law confer.

(2) The Supreme Court shall have such further jurisdiction and powers with respect to any matter as the Government  of India and the Government of any State may by special agreement confer, if Parliament by law provides for the exercise of   such jurisdiction and powers by the Supreme Court.

5

Page 6

8. Article 1454 of the Constitution authorizes this Court to make rules  

for regulating the practice and procedure of this Court with regard to its  

jurisdiction, either original or appellate vested in this Court either by the  

Constitution or law.  Such authority of this Court is, however, expressly  

made subject to the provisions of any law made by the Parliament and  

also subject to the approval of the President of India.  

9. The  submission  that  the  Code  of  Civil  Procedure  applies  to  the  

conduct of the election petition on hand in view of section 141 of the CPC,  

in  my view, is  required to be refuted.  Because the procedure that is  

required  to  be  followed  by  this  Court  while  exercising  jurisdiction  

conferred by either the Constitution or the Parliament by law could be laid  

down only by the Parliament and until the Parliament makes such a law,  

4 145. Rules of Court, etc.—(1) Subject to the provisions of any law made by Parliament, the Supreme Court may from time to  time, with the approval of the President, make rules for regulating generally the practice and procedure of the Court including—

(a) rules as to the persons practising before the Court; (b) rules as to the procedure for hearing appeals,  and other matters pertaining to  appeals including the time within which appeals to the Court are to be entered; (c) rules as to the proceedings in the Court for the enforcement of any of the rights   conferred by Part III; (cc) rules as to the proceedings in the Court under Article 139A;

(d) rules as to the entertainment of appeals under sub clause (c) of clause ( 1 ) of  Article 134;

(e) rules as to the conditions subject to which any judgment pronounced or order  made by the Court may be reviewed and the procedure for such review including the time  within which applications to the Court for such review are to be entered;

(f) rules as to the costs of and incidental to any proceedings in the Court and as to  the fees to be charged in respect of proceedings therein;

(g) rules as to the granting of bail; (h) rules as to stay of proceedings; (i) rules providing for the summary determination of any appeal which appears to  

the Court to be frivolous or vexatious or brought for the purpose of delay; (j) rules as to the procedure for inquiries referred to in clause ( 1 ) of Article 317; (2) Subject to the provisions of clause (3), rules made under this article may fix the minimum number of Judges who  

are to sit for any purpose, and may provide for the powers of single Judges and Division Courts; (3) The minimum number of Judges who are to sit  for the purpose of deciding any case involving a substantial  

question of law as to the interpretation of this Constitution or for the purpose of hearing any reference under Article 143 shall be   five:  

Provided that, where the Court hearing an appeal under any of the provisions of this chapter other than  Article 132 consists of less than five Judges and in the course of the hearing of the appeal the Court is satisfied that the appeal  involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the   disposal of the appeal, such Court shall refer the question for opinion to a Court constituted as required by this clause for the   purpose of deciding any case involving such a question and shall on receipt of the opinion dispose of the appeal in conformity   with such opinion

(4) No judgment shall be delivered by the Supreme Court save in open Court, and no report shall be made under  Article 143 save in accordance with an opinion also delivered in open Court

(5) No judgment and no such opinion shall  be  delivered by the  Supreme Court  save  with  the  concurrence  of  a  majority of the Judges present at the hearing of the case, but nothing in this clause shall be deemed to prevent a Judge who does  not concur from delivering a dissenting judgment or opinion.

6

Page 7

by the rules made by this Court.  CPC is not a law made by the Parliament  

but an “existing law” within the meaning of the expression under Article  

366 (10) and deriving its force from Article 372 of the Constitution.   

10. The  Code  of  Civil  Procedure,  1908  (‘the  Code’  for  short)  is  an  

enactment “consolidating the laws relating to the procedure of the Courts  

of Civil Judicature”.  Though there is nothing express in the body of the  

Code  which  declares  that  the  Code  applies  to  the  Courts  of  Civil  

Judicature, such a declaration is contained in the Preamble of the Code.  

By a long established practice and interpretation of the successive Codes,  

it is always understood that the Code of Civil  Procedure applies to the  

proceedings only in a Court of Civil Judicature.  The first Code was made  

in 1859 which was replaced by its successor (Act 10 of 1877).  The brief  

history of the various enactments which regulated the procedure of the  

Courts  of  Civil  Judicature  is  succinctly  given  in  Mulla’s  Code  of  Civil  

Procedure,  7th Edition,  at  page  25.   What  exactly  is  a  Court  of  Civil  

Judicature  is  not  defined  either  under  the  Code  or  under  any  other  

enactment.  Such an expression is used in contradistinction to the courts  

exercising jurisdiction in criminal cases.  Nor the word ‘court’ is defined  

under  the  Code.   ‘Revenue  Courts’  and  Courts  constituted  under  the  

5 The first Code of Civil Procedure was Act 8 of 1859.  Prior to that, the procedure of the mofussil courts was regulated by   special Acts and Regulations repealed by Act 10 of 1861; and the procedure of the Supreme Courts was under their own rules  and orders and certain Acts, for example Act 17 of 1852 and Act 6 of 1854.  The Code of 1859 applied to mofussil courts only.   In 1862, the Supreme Court and the Courts of Sadder Diwani Adalat in the Presidency towns were abolished by the High Courts  Act 1861 (24 and 25 Vic C 104) and the powers of those courts were vested in the chartered high courts. The Letters Patent of   1862 establishing the high courts extended to them the procedure of the Code of Civil Procedure, 1859.  The Charters of 1865,   which empowered the high courts to make rules and orders regulating proceedings in civil  cases required them to be guided as   far as possible by the provisions of the Code of 1859 and subsequent Amending Acts.

Such Amending Acts were: Act 4 of 1860; 43 of 1860; 23 of 1861; 9 of 1863; 20 of 1867; 7 of 1870; 14 of 1870; 9 of  1871; 32 of 1871 and 7 of 1872.

The next Code was Act 10 of 1877, which repealed that of 1859.  This was amended by Act 18 of 1878 and 12 of   1879; then superseded by the Code of 1882 (Act 14 of 1882).  This was amended  by Acts 15 of 1882; 14 of 1885; 4 of 1886; 10   of 1886; 7 of 1887; 8 of 1887; 6 of 1888; 10 of 1888; 13 of 1889; 8 of 1890; 6 of 1892; 5 of 1894; 7 of 1895 and 13 of 1895, and   then superseded by the present Code of Civil Procedure.

7

Page 8

various laws dealing with Small Causes are not treated to be Courts to  

which the Code is automatically applicable. (See: Sections 5, 7 and 8)  

The expression ‘Revenue Court’ is defined in Section 5(2)6.  The nature of  

the  jurisdiction  exercised  either  by  the  Revenue  Courts  or  the  Small  

Causes Courts cannot be said to be anything other than civil jurisdiction.  

Even then the Legislature in its wisdom thought it fit not to extend the  

application of  Code to these Courts.   Therefore, the submission of  Mr.  

Ram Jethmalani, learned senior counsel for the petitioner, that in view of  

the declaration contained in Section 1417 of the Code, the Code applies to  

the conduct of the election petition under the Elections Act, in my opinion,  

is untenable.

11. Yet another reason for such a conclusion is that in the context of  

ouster of jurisdiction of civil courts under innumerable enactments, either  

of the Parliament or of the State Legislatures, this Court consistently took  

the view that this Court and the High Courts exercising jurisdiction under  

Article 32 or under Article 226 exercise jurisdiction vested in them by the  

Constitution  and,  therefore,  the  same  cannot  be  taken  away  by  any  

legislation short of a Constitutional amendment. The implication flowing  

thereby is that they are not ordinary civil courts within the meaning of  

such an expression employed in these various enactments attracting the  

bar of jurisdiction created by the statute.  Therefore, I find it difficult to  

accept the submission that by virtue of the operation of Section 141 of the  

Code this Court is bound by the procedure contained in the Code while  

6 Section 5(2). ‘Revenue Court’ in sub-section (1) means a Court having jurisdiction under any local law to entertain suits or   other proceedings relating to the rent, revenue or profits of land used for agricultural purposes, but does not include a Civil Court  having original jurisdiction under this Code to try such suits or proceedings as being suits or proceedings of a civil nature.  7 141.  Miscellaneous proceedings–The procedure provided in this Code in regard to suits shall be followed, as far as it can be   made applicable, in all proceedings in any Court of civil jurisdiction.  

8

Page 9

exercising its extraordinary jurisdiction under Article 71 of the Constitution  

of India.

12. Then  the  question  remains  as  to  what  is  the  procedure  that  is  

required to be followed by this Court while adjudicating an election dispute  

under the Elections Act.   This Court,  in exercise of its authority under  

Article 145, made rules regulating the procedure of this Court, both in its  

original and appellate jurisdiction called the Supreme Court Rules, 1966,  

hereinafter referred to as ‘the Rules’.  Insofar as the election petitions  

under the Act are concerned, the procedure is  prescribed under Order  

XXXIX which occurs in Part VII of the Rules. Rule 348 thereof stipulates  

that while adjudicating an election petition under the Act, this Court is  

required  to  follow  (as  nearly  as  may  be)  the  procedure  contained  in  

Orders XXII to XXXIV of Part III of the Rules regulating the proceedings  

before this Court in exercise of its original jurisdiction9. Such a stipulation  

is  expressly  made  subject  to  other  provisions  of  Order  XXXIX  or  any  

special order or direction by this Court.  The stipulation that this Court is  

obliged to follow the procedure applicable to the proceedings under the  

original jurisdiction of this Court (Part III of the Rules) is made subject to  

the other provisions of Order XXXIX.  In other words, if the procedure  

contained in Part III is inconsistent with any provisions contained in Part  

VII  (Order  XXXIX),  this  Court  is  not  obliged  to  follow  the  procedure  

contained in Part III.  Apart from that, in view of the clause…..”or any  

special  order or direction of the Court” …..  occurring under Rule 34 of  

Order XXXIX, it is always open to this Court in a given case not to follow  

8 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. 9 Various rules occurring in Part III of the Rules expressly provide for the application of certain specified provisions of the CPC  to such original proceedings before this Court.

9

Page 10

the  procedure  contained  thereunder  Order  XXXIX.   The  circumstances  

which justify the issuance of such “special orders or directions” by this  

Court require a separate examination as and when required.

10

Page 11

13. Therefore, the question is –what is the procedure that is required to  

be followed by this Court on the receipt of an election petition under the  

Act?   Rules  13  to  15  of  Order  XXXIX  prescribe  the  procedure  to  be  

followed by this Court.  While Order XXIV Rule 1 occurring under Part III  

of the Rules mandates that when a suit  is presented to this Court for  

adjudication in its original jurisdiction “summons shall  be issued to the  

defendant to appear and answer the claim”.  Rule 1310 of Order XXXIX  

prescribes a different procedure. It reads as follows:-

“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.”

14. A plain reading of Rule 13 indicates that on the due presentation of  

an election petition under the Act to this Court, [1]  the same shall be  

posted before a bench of five Judges for a preliminary hearing and orders;  

[2] such a hearing and orders are regarding the service of the petition and  

advertisement thereof. Because Rules 1411 and 1512 respectively stipulate  

that the notice of the presentation of the election petition under the Act is  

required to be served on the various persons specified under Rule 14.  The  

said rule also provides for the method and manner of service.  Whereas  

Rule 15 stipulates that the factum of the presentation of election petition  

under the Act shall be published in the Official Gazette and also advertised  

10 It may be mentioned that Rule 13, as it  exists today, was substituted by GSR 407 dated 9 th December, 1997, w.e.f. 20th  December, 1997.  Prior to such substitution, the Rule read differently.   11 Rule 14.  Unless otherwise ordered, the notice of the presentation of the petition, accompanied by a copy of the petition, shall   within five days of the presentation thereof or within such further time as the Court may allow, be served by the petitioner or his  advocate on record on the respondent or respondents, the Secretary to the Election Commission, the Returning Officer and the   Attorney General for India.  Such service shall be effected personally or by registered post, as the Court or Registrar may direct.   Immediately after such service the petitioner or his advocate on record shall file with the Registrar an affidavit of the time and  manner of such service. 12 Rule 15. Unless dispensed with by the Judge in Chambers or the Registrar, as the case may be, notice of the presentation of the   petition shall be published in the Official Gazette and also advertised in newspapers at the expense of the petitioner or petitioners,  fourteen clear days before the date appointed for the hearing thereof in such manner as the Court or the Registrar may direct.

11

Page 12

in newspapers at the expense of the petitioner, fourteen clear days before  

the date appointed for hearing.  However, the obligations stipulated in  

Rule 14 and 15 are made expressly subject to orders to the contrary  

by  the  Court.   It  is  for  determining  whether  the  normal  procedure  

prescribed under Rule 14 and 15 discussed above is to be followed in a  

given case or not, an election petition under the Act is required to be  

listed for  a preliminary hearing contemplated under Rule  13.  Rule 13  

further stipulates [3] upon such a preliminary hearing, if the Court comes  

to the conclusion that the petition does not deserve a regular hearing,  

contemplated under Rule 20, the Court may either dismiss the election  

petition or pass any appropriate orders as the Court deems fit.

15. Therefore, Order XXXIX Rule 13 prescribes a procedure contrary to  

the stipulation contained under Order XXIV Rule 1 which mandates that  

after due institution of an original suit before this Court, “summons shall  

be  issued”.   It  is  worthwhile  noticing  that  while  Order  XXIV  requires  

summons to be issued, Order XXXIX Rule 14 contemplates that only a  

notice of the presentation of an election petition is to be issued.  The  

distinction  between summons and notice  is  very subtle  but  real  which  

would be beyond the need and scope of this judgment to go into.  I only  

take note of the distinction in the language of the abovementioned rules  

and the existence of a legal distinction pointed out.

16. It follows from the above discussion, Order XXXIX Rule 13 vests a  

discretion in the bench of five Judges before whom the election petition  

under the Act is  posted for preliminary hearing to record a conclusion  

whether the petition deserves a notice under Rule 14 or publication under  

12

Page 13

Rule 15 and a regular hearing under Rule 20 or any other appropriate  

order such as (perhaps) directing some formal defects in the petition to be  

cured etc. I do not propose to examine the full scope and amplitude of  

such “appropriate order” for the purpose of this case as the same is not  

necessary.

17. However, it goes without saying that the discretion of the bench  

hearing the election petition to record a finding that the election petition  

does  not  deserve  a  regular  hearing  and,  therefore,  is  required  to  be  

dismissed must be exercised on rational grounds known to law for clear  

and  cogent  reasons  to  be  recorded.  For  such  obligation  is  the  only  

justification  of  the  extraordinary  degree  of  protection  and  immunities  

granted to the judiciary by our Constitution.  Absence of rational grounds  

based  on  clear  and  cogent  reasoning  would  lead  to  a  popular  

misconception  that  this  branch  of  the  Constitutional  governance  is  no  

different from the other two branches, a misconception which is certainly  

not conducive to the credibility (of the legal system) which is the ultimate  

strength of all judicial institutions.

18. Placing reliance on Order VII Rule 11 CPC, Shri  Ram Jethmalani  

argued that an election petition can be rejected even prior to the stage of  

issuance of summons only when the election petition does not disclose a  

cause of action.  He submitted that under any circumstances it cannot  

reasonably be argued that the election petition on hand does not disclose  

a valid cause of action.  He further argued that the question whether the  

petitioner would be able to establish the truth of various allegations made  

by him in the election petition cannot be the subject matter of enquiry  

13

Page 14

under Rule  13 but the enquiry can only be confined to - whether the  

allegations if proved do constitute sufficient cause of action to enable the  

petitioner  to  claim the  relief  such  as  that  are  claimed  in  the  election  

petition?

19. On the other hand it  is the case of  the respondent that various  

factual allegations made in the election petition even if proved to be true  

do  not  disclose  a  cause  of  action  entitling  the  petitioner  to  relief  as  

claimed in the election petition.

20. To examine the correctness of the above rival submissions, I deem  

it appropriate to examine the circumstances under which this Court can  

dismiss  an  election  petition  under  the  Act  at  the  stage  of  preliminary  

hearing even before issuing notice to the respondent under rule 13.

21. I am of the opinion that it is not possible to give an exhaustive list  

of the circumstances in which this Court can render the finding that an  

election petition does not require a regular hearing but it can be said that  

having regard to the fact that an election petition is not a common law  

proceeding  but  the  creature  of  the  statute,  non-compliance  with  the  

mandatory requirements of the statute under which the right to question  

an  election  under  the  Elections  Act  is  created  is  certainly  one  of  the  

grounds  on  which  election  petition  can  be  dismissed  at  the  stage  of  

preliminary hearing.

22. For example, the right to question an election under the Elections  

Act  is available only to two categories of  people as enumerated under  

section 14A which is already taken note.  In a case where the election  

14

Page 15

petition is presented by somebody other than who is entitled to question  

the election irrespective of the allegations made in the election petition  

the same is required to be dismissed at the stage of preliminary hearing.

23. Similarly, section 14A declares that an election under the Act can  

be called in question only on the ground specified under sections 1813 and  

1914.  Therefore, if the allegations made in the election petition even if  

assumed to be true do not constitute one or some of  the grounds on  

which an election under the Act can be challenged, it would be certainly  

one of  the grounds enabling this  Court  to reach a conclusion that the  

election petition does not deserve a regular hearing.

24. It is in this background the question whether the instant election  

petition is required to be dismissed even without issuing notice to the  

respondent is required to be determined?

13 Section 18. Grounds  for  declaring the election of a returned candidate to be void.—  (1)  If the Supreme Court is of opinion, —

(a)  that the offence of bribery or undue influence at the election has been committed by the returned candidate or by  any person with the consent of the returned candidate ; or

(b)  that the result of the election has been materially affected—

(i)   by the improper reception or refusal of a vote, or (ii) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or  orders made under this Act; or (iii) by reason of the fact that the nomination of any candidate (other than the successful candidate),  who has not withdrawn his candidature, has been wrongly accepted ; or

(c)  that the nomination of any candidate has been wrongly rejected or the nomination of the successful candidate has  been wrongly accepted;

the Supreme Court shall declare the election of the returned candidate to be void.

(2) For the purposes of this section, the offences of bribery and undue influence at an election have the  same meaning as in Chapter IXA of the Indian Penal Code.

14  Section 19. Grounds for which a candidate other than  the returned candidate may be declared to have been elected.—If any   person who has lodged an election petition has, in addition to calling in question the election of the returned candidate, claimed a  declaration that he himself or any other candidate has been duly elected and the Supreme Court is of opinion that in fact the  petitioner or such other candidate received a majority of the valid votes, the Supreme Court shall, after declaring the election of   the returned candidate to be void, declare the petitioner or such other candidate, as the case may be, to have been duly elected:

Provided that the petitioner or such other candidate shall not be declared to be duly elected if it is proved  that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented  calling in question his election.

15

Page 16

25. The  entire  thrust  of  the  arguments  of  the  respondent  —  who  

appeared before this  court  even before this  court  directed issuance of  

notice upon him — is that the election petition does not disclose a valid  

cause of action calling for issuance of notice or publication contemplated  

under Rules 14 & 15 and a regular hearing contemplated under Order  

XXXIX Rule 20.

26. To accept or reject the submission of the respondent it is necessary  

to examine the grounds on which election of the respondent is challenged.

27. The  only  ground  on  which  the  election  of  the  respondent  is  

challenged is that he was not eligible to contest the election to the office  

of President of India.   Such a ground is certainly one of the grounds on  

which  election  of  the  respondent  as  the  President  of  India  could  be  

challenged,  as  Section  18(1)(iii)  stipulates  that  if  this  court  is  of  the  

opinion that the nomination of the successful candidate has been wrongly  

accepted, this court shall declare the election to be void.

28. The  next  question  is  whether  the  election  petition  contains  

necessary  allegations  to  substantiate  the  above  mentioned  ground  on  

which the election is  challenged?  The allegations,  as disclosed by the  

election petition in this regard, are twofold and are sufficiently elaborated  

in the judgements of My Lord the Chief Justice and my learned brother  

Justice Ranjan Gogoi.  Therefore, I do not propose to reiterate the same.

29. The respondent does not dispute the fact that he was the Chairman  

of  the  Indian  Statistical  Institute,  Kolkata  and  also  the  leader  of  the  

political  party  called  Indian  National  Congress  in  the  Lok  Sabha.  

16

Page 17

However,  the respondent took a categoric  stand that he had resigned  

from both the abovementioned offices before the crucial date i.e. on the  

date of scrutiny of the nomination papers (2nd July 2012) - a stand which  

is seriously disputed by the election petitioner by an elaborate pleading in  

the  petition  that  the  respondent  did  not  in  fact  cease  to  hold  the  

abovementioned offices by the crucial date.

30. The respondent also took a categoric stand that: apart from his  

having had relinquished the abovementioned two offices by the crucial  

date, neither of  the abovementioned offices is an office the holding of  

which would make him ineligible to contest the election in question.

31. The issue that is required to be examined for the purpose of the  

order on the preliminary hearing under Rule 13 is whether the holding of  

either of the abovementioned two offices - if really held on the crucial  

date - would render the respondent ineligible to contest the election in  

question? If the answer is in the negative, this Court could dismiss the  

election petition on hand under Rule 13.

32. The answer to the issue in my opinion depends upon the answer to  

the question – Whether the said two offices are offices of profit which  

would in law render the respondent ineligible to contest the election in  

question?  The question – Whether the respondent did infact hold those  

offices on the crucial  date? is a question of fact which, in my opinion,  

cannot be the subject matter of enquiry at this stage.

33. To answer the first question, we must first examine what is the  

prohibition under the law which renders any person ineligible to contest  

the election in question.

17

Page 18

34. Article 58 provides that:

“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.”

35. It can be seen from the above that holding of an office of profit  

either under the Government of India or the Government of any State or  

any local  or  other  authority  subject  to  the  control  of  any of  the  said  

Governments  inter alia  would render the holder of such office of profit  

ineligible for election as President.

36. The respondent’s defence is that neither of the offices held by him  

are offices of profit falling under Article 58 (2) which would render him  

ineligible to contest the election in question.  According to him the office  

of the Chairman of Indian Statistical Institute, Kolkata – whether an office  

of  profit  or  not  stood declared  [by  a  law made  by the  Parliament  as  

contemplated under Article 102(1)(a)15 i.e. the Parliament (Prevention of  15 In the purported exercise of the power conferred under Article 102(1)(a), the Parliament from time to time made various  enactments, last in the series is the Disqualification Act, 1959, which is also amended from time to time, once in 1993 and later   in 1996 and 2006.  Section 3 of the said Act declares that none of the offices specified therein shall disqualify the holder thereof   for being chosen as or for being a member of Parliament.  Section 3 insofar as relevant reads as follows:  

“3. Certain offices of profit not to disqualify.—It is hereby declared that none of the following offices, in so  far as it is an office of profit under the Government of India or the Government of any State, shall disqualify the  holder thereof for being chosen as, or for being, a member of Parliament, namely,—…”

Various offices are specified in various sub-clauses from (a) to (m) of the said section to be offices which do not   disqualify the holders thereof from becoming or being members of the Parliament.  An analysis of these various clauses inserted   from time to time (which to my mind indicates a haphazard tinkering with the act) shows that some offices are statutory, some of  

18

Page 19

Disqualification) Act, 1959] - not to disqualify a person from either being  

chosen as or  for  being a member of  the Parliament.   Therefore,  it  is  

argued that even assuming that it is an office of profit falling under Article  

58(2),  the  holding  of  such  an  office  did  not  render  him  ineligible  to  

contest the election in question because of the declaration made in the  

Parliament (Prevention of Disqualification) Act, 1959 (hereinafter referred  

to  as  “the  Disqualification  Act,  1959”)  as  the  Constitution  itself  under  

Article 102(1)(a) authorises the Parliament to make such a law and Article  

58(1)(c) declares that a person “qualified to be a member of the House of  

the People” is eligible to contest the Presidential election.

37. On the other hand it is argued by Shri Jethmalani that there is a  

difference in the language of Article 58(2) and Article 102(1)(a) both of  

which  deal  with  certain  offices  of  profit  and  the  consequential  

disqualification  attached  to  the  holders  of  such  offices  to  contest  the  

election  either  to  the office  of  President  of  India or  to  the Parliament  

respectively.  The declaration made under the Disqualification Act, 1959  

may in a given case confer sufficient legal immunity from the operation of  

the disqualification specified in Article 102(1)(a) to enable the holder of  

such  a  declared  office  to  contest  the  election  to  either  House  of  the  

the  offices  are brought  into  existence  by virtue  of  executive  orders  of  the  Government  of  India  or  the  State  Government.   Relevant in the context is clause (k) of the said section which reads as follows:

“(k). the office of Chairman, Deputy Chairman, Secretary or Member (by whatever name  called) in any statutory or non-statutory body specified in the Table;”

Though holding of an office of profit under any body - other than the Central Government or a State Government – is  not a disqualification for a person seeking election to the Parliament, the Parliament chose to include within its sweep of the  provisions  of  Disqualification Act,  1959 the  various  offices  mentioned in  Section  3(k)  read with the  table  annexed to the  Schedule of the Act.  Whether it is really necessary to bring such offices under the protective umbrella of the Act to avoid any  challenge on the ground of the holders of such office being disqualified from seeking election to the Parliament, is a moot   question.

There is a table attached to the Schedule of the Act which came to be inserted by Act 31 of 2006 consisting of 55  entries.  Entry 4 therein is the ‘Indian Statistical Institute, Calcutta’ of which the respondent was admittedly the Chairman.

19

Page 20

Parliament but such declaration does not confer any immunity from the  

operation of the disqualification contained in Article 58(2).

38. Any person seeking to contest an election either to the office of the  

President  of  India  or  for  the  membership  of  anyone  of  the  legislative  

bodies  under  the  Constitution  must  satisfy  certain  eligibility  criteria  

stipulated by the Constitution.  Article 58 of the Constitution stipulates  

that  no  person  shall  be  eligible  for  election  as  the  President  of  India  

unless he is a citizen of India and is qualified for election as a member of  

the House of the People but has completed the age of 35 years.  It must  

be noticed that the qualifications and disqualifications with regard to the  

membership of the Parliament are contained in Articles 8416 and 10217  

respectively.  Article 84 stipulates that to be qualified to be chosen as a  

member of Parliament, a person must be a citizen of India, he must also  

subscribe to an oath specified under the said Article read with the third  

Schedule to the Constitution and be aged not less than 25 years in the  

case of the House of the People and 35 years in the case of the Council of  

States.   The  Article  also  authorises  that  the  Parliament  may  by  law  

16  Article 84 –  Qualifications for membership of Parliament – A person shall not be qualified to be chosen to fill a seat in  Parliament unless he –

(a) is a citizen of India, and makes and subscribes before some person authorized 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 five 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.

17 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.

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)  A person shall be disqualified for being a member of either House of Parliament if he is so disqualified  under the Tenth Schedule.

20

Page 21

prescribe  such  other  qualifications.   Whereas  Article  102  declares  

certain categories of person to be disqualified either for being chosen or  

for  continuing  after  being  chosen  as  a  member  of  either  House  of  

Parliament.  They are (1) persons holding any office of profit either under  

the Government of India or the Government of any State; (2) persons of  

unsound  mind  and  stand  so  declared  by  a  competent  court;  (3)  any  

undischarged insolvents;  (4)  persons  who  are  not  citizens  of  India  or  

those who acquired citizenship of any foreign State etc.  Article 102 (e)  

authorises  the  Parliament  to  make  laws  prescribing  further  

disqualifications for  the  membership  of  the  Parliament.   However,  

insofar as the first class of persons mentioned above (holders of offices of  

profit) Article 102(1)(a) authorises the Parliament to make a declaration  

by  law  the  holding  of  such  declared  offices  of  profit  would  not  be  a  

disqualification for the membership of the Parliament.  The explanation to  

Article 102 makes a categoric declaration that a person who is a Minister  

either of the Union or of a State shall not be deemed to be holding an  

office of profit contemplated under Clause (1)(a).

39. The Representation of the People Act, 1951, (hereinafter referred to  

as ‘the R.P.  Act,  1951’)  is  a law made by the Parliament referable  to  

Articles 84(c) and 102(e).  In the context of the Parliament, Sections 3  

and 4 prescribe that a person seeking an election to the Parliament shall  

necessarily be an elector for a parliamentary constituency in India.  In  

other words, various qualifications prescribed for registration as an elector  

in the electoral roll contemplated under Section 15 of the Representation  

of the People Act, 1950 must also be satisfied for a person to become  

eligible to contest for the Parliament. Sections 16 to 19 prescribe various  

21

Page 22

qualifications  and  disqualifications  in  the  context  of  registration  of  a  

person  in  an  electoral  roll.   They  pertain  to  the  minimum  age,  

qualifications, residence etc.  Chapter III and IV of the R.P. Act, 1951  

prescribe various disqualifications under Sections 8, 9, 9A, 11A thereof for  

becoming  a  member  of  any  of  the  legislative  bodies  under  the  

Constitution.

40.     On an examination of the above provisions, it appears to me that  

eligibility and disqualification to become a member of parliament are two  

distinct things.  In my view, any person who is eligible to become and not  

disqualified for becoming a member of Parliament would not automatically  

be eligible to contest the election to the office of the President of India.  

There is a difference in the eligibility criteria applicable to the election of  

the  membership  of  Parliament  and  the  election  to  the  office  of  the  

President of India.   

41. While  Article  58  declares  that  a  person  who  is  qualified  to  be  

elected as a member of a House of the People shall be eligible for the  

election  of  the President,  it  stipulates a  higher age qualification of  35  

years for a person seeking election to the President of India while it is  

sufficient under Article 84 (b) for a person seeking election to the House  

of the People to be not less than 25 years only.  Another distinction is  

that: Article 102 (1)(a) declares that persons holding an office of profit  

either under the Government of India or of the Government of any State  

(unless  they  are  protected  by  the  law  made  by  the  Parliament)  are  

disqualified  for  being  chosen  as  members  of  the  Parliament  whereas  

Article 58 sub-clause (2) disqualifies persons holding office of profit not  

22

Page 23

only specified under Article 102(a) but also under any local or any other  

authority which is subject to the control of either of the above mentioned  

two governments.  In other words, the holding of an office of profit under  

any local or other authority is not a disqualification for membership of  

Parliament while it is a disqualification for the election to the office of the  

President of India.

42. One more distinction is that while an office of profit, the holding of  

which renders a person disqualified for  being chosen as  a member of  

Parliament, can be declared by the Parliament not to be an office of profit  

holding of which would disqualify the holder from becoming a member of  

Parliament.   Such  an  authority  is  not  expressly  conferred  on  the  

Parliament in the context of the candidates at an election to the office of  

the President of India.

43. Therefore, when Article 58(1)(c) stipulates that no person shall be  

eligible for election as the President of India unless he is qualified to be a  

member of the House of the People, the protective declaration made by  

the Parliament referable to Article 102(1)(a) regarding certain offices of  

profit does not render holders of such offices eligible for  contesting the  

Presidential  election.  Particularly,  holders of  office of  profit  under any  

“local or other authority” are positively disqualified for being elected as  

President of India.  The said disqualification cannot be removed by the  

Parliament as Article 102(1)(a) does not authorise the Parliament to make  

any such declaration in the context of the holders of an office of profit  

under any local  or  other  authority subject  to  the control  of  either the  

Government of  India  or  the State  Government,  obviously  because the  

23

Page 24

holding of such an office is not declared to be a disqualification under the  

Constitution  for  the  membership  of  the  Parliament.  I  accept  the  

submission of Mr. Jethmalani. In my opinion, the Constitution prescribes  

more stringent qualifications for election to the office of President of India  

and the disqualification stipulated under Article 58(2) is incapable of being  

exempted by a law made by the Parliament.

44. My opinion derives support from a Constitution Bench decision of  

this  Court  in Baburao Patel  and others  v. Dr.  Zakir  Hussain  and  

others  AIR 1968 SC 904 wherein the interface between Articles 58 and  

84 of  the Constitution was examined.   Challenging the election of  Dr.  

Zakir Hussain as President of India, an election petition came to be filed in  

this Court wherein the Court noted thus:

“9. The  contention  of the  petitioners is that because of  …. cl. (a) of  Art. 84 ….. it became  necessary  to take oath for a person  standing  for  election  to  either  House  of  Parliament  in  the form prescribed  in  the  Third Schedule, a  person standing for election as President had also to  take  a  similar  oath because Art. 58(1)(c) requires that a person to be  eligible  for  election as  President  must  be qualified  for  election   as  a  member of the House of the People.  ………. urged  that   no one is   qualified …… for  election as a member of the House of the People  unless  he makes  and subscribes  an oath in  the  form set  out  for   the  purpose in the Third Schedule, and therefore this  provision applied to a  person standing for election as President,   for without   such  oath he  would not be qualified to  stand  for election to the House of the People.”

This Court in para 10 compared the language of Articles 58 and 84 of the  

Constitution and held as follows:-  

“ …. and reading them together it   would  follow  that  a person  standing   for   election   as  President   would   require   such  qualifications  as  may  be prescribed  in  that  behalf by or under  any  law  made  by Parliament.  Further as cl. (c) of Art. 58(1) lays  down that a  person  standing  for presidential  election  has  to  be   qualified  for membership of the House of the  People,  Article 102  (which  lays  down  disqualifications  for  members  of Parliament)  would  also be attracted except  in   so  far   as  there  is  a  special  provision contained in Article 58(2).  Thus cl. (c) of Article 58(1)  would bring in such qualifications for members of the House of the  People as may be prescribed by law by Parliament, as required by  

24

Page 25

Article 84(c).  It will by its own force bring in Article 102 of the  Constitution,  for that  Article  lays down certain disqualifications  which  a presidential  candidate  must  not have for  he  has  to  be  eligible  for  election  as a member of  the  House  of  the People.   But it is clear to us that, what is provided in clauses (a) and (b) of  Article 58(1) must be taken from there and we need not travel to cls.  (a) and (b) of Article 84 in the matter  of  citizenship  and  of  age  of   the  presidential candidate.  Clauses (a) and (b) of Article 58(1)  having  made  a  specific  provision  in  that  behalf  in  our  opinion exclude cls.  (a)  and (b) of Art. 84. This exclusion was  there before the Amendment Act.”

This Court  refused to read the requirement of  subscribing to the oath  

according to the form set out in Third Schedule of the Constitution for  

contesting the presidential election.   

45. For reaching such a conclusion this Court took note of the fact that  

prior  to  the  16th Constitutional  amendment,  the  requirement  of  

subscription to such an oath did not exist  in the context of  either the  

election to the Parliament or the office of the President.  It was introduced  

by the 16th amendment as a necessary requirement for a person to be  

qualified to contest the election to the Parliament.  The omission to make  

such an amendment that refers to the persons contesting election to the  

office  of  the  President  is  a  clear  indication  that  the  Constitution  ever  

intended such a requirement to be applied for the presidential election  

also.  In paragraph 12 this Court held thus:  

“Now if the intention of Parliament was that an oath similar in form  to the oath to be taken by persons standing for election to Parliament  had to be taken by persons standing for election to the office of the  President there is no reason why a similar amendment was not made  in Article 58(1)(a). Further if the intention of Parliament was that a  presidential candidate should also take an oath before standing for  election, the form of oath should also have been prescribed either in  the Third Schedule or by amendment of Article 60, which provides  for oath by a person elected as President before he takes his office.   But we find that no change was made either in Article 58(1)(a) or in  Article 60 or in the Third Schedule prescribing the form of oath to be  taken by the presidential candidate before he could stand for election.  This to our mind is the clearest indication that Parliament did not  

25

Page 27

49. This Court in  B.S. Minhas  v.  Indian Statistical  Institute and  

others  (1983) 4 SCC 582 held that the Indian Statistical Institute is an  

authority falling under Article 12 of the Constitution of India, therefore,  

‘State’ for the purpose of Part-III of the Constitution.  Under the scheme  

of Indian Statistical Institute Act, the Government of India has deep and  

pervasive control on the administration of the Institute.  It also provides  

financial support to the Institute.

50. The  said  Institute  is  a  body  registered  under  the  Societies  

Registration Act, 1860 whose activities to some extent are regulated by  

the enactment of the Parliament titled “The Indian Statistical Institute Act,  

1959 (No.57 of 1959), hereinafter referred to as the Institute Act.  The  

Preamble to the Act declares as follows:

“An Act  to declare the institution known as  the Indian Statistical  Institute having at present its registered office in Calcutta to  be an  institution  of  national  importance and  to  provide  for  certain  matters connected therewith.”

51. It must be remembered that Entry 64 of List-I of the 7th Schedule  

read with Article 246 (1) authorises the Parliament to make laws with  

respect to:

“Institutions  for  scientific  or  technical  education  financed  by  the  Government of India wholly or in part and declared by Parliament by  law to be institutions of national importance.”

52. Section  4  of  the  Institute  Act  authorises  the  Institute  to  grant  

degrees and diplomas for various disciplines specified therein.  Section 5  

authorises  the  Government  to  pay  such  sums  as  appropriated  by  the  

Parliament in each financial year to the Institute.  The Act (Section 6) also  

obligates the Institute to get its accounts audited by such auditors as may  

27

Page 28

be appointed by the Government of India in consultation with the Auditor-

General of India and the Institute.  Section 718 prohibits Institute from  

taking certain actions without the previous approval of the Government of  

India.  The full details of the Act are not necessary for the present case.   

53. But from the above it can be safely concluded that the Institute is  

an authority subject to the control of the Government of India within the  

meaning of Article 58(2).

54. As it can be seen from the Scheme of the Institute  Act and the  

preamble  that  the  administration  of  the  society  is  still  to  be  run  in  

accordance with its bye-laws and regulations of the Society except insofar  

as those activities which are specifically regulated by the Act (57 of 1959).  

The office of the Chairman of the Institute is not an office created by any  

statute  but  is  an  office  created  by  the  bye-laws  of  the  Society.   The  

Chairman  is  required  to  be  elected  by  a  Council  created  under  the  

regulations of the Society.  Therefore, it is certainly not an office (profit or  

no profit) either under the Central or State Government.

55. The learned counsel for the petitioner very vehemently argued that  

the very fact that the Parliament thought it fit to specifically include the  

office  of  the  Chairman  of  the  Indian  Statistical  Institute  in  the  table  

annexed to the Disqualification Act, 1959 would ipso facto imply that the  

18 Section 7. Prior Approval of Central Government necessary for certain action by the Institute.—Notwithstanding anything   contained in the Societies Registration Act, 1860, or in the memorandum or rules and regulations, the Institute shall not except   with the previous approval of the Central Government,

(a) alter, extend or abridge any of the purposes for which it has been established or for which it is   being used immediately before the commencement of this  Act,  or  amalgamate  itself  either wholly or  partially with any other Institution or society; or

(b) alter or amend in any manner the memorandum or rules and regulations; or (c) sell  or otherwise dispose of any property acquired by the Institute  with money specifically  

provided for such acquisition by the Central Government: Provided that no such approval shall be necessary in the case of any such movable property or   

class of movable property as may be specified by the Central Government in this behalf by general or special order; or (d) be dissolved.

28

Page 29

office  in  question  is  an  office  of  profit.   He  relied  upon  M.V.  

Rajashekaran and others v. Vatal Nagaraj and others (2002) 2 SCC  

704 at page 711 wherein this Court observed thus:

“5. …. The fact that the office of the chairman or a member of a  committee is brought within the purview of this Act implies that  the office  concerned must necessarily be regarded as an office  of profit, but for the exclusion under the clause by the legislature,  the holder of such office could not have been eligible for being  chosen  as  a  Member  of  the  Legislature.  The  object  of  this  provision  is  to  grant  exemption  to  holders  of  office  of  certain  description and the provision in substance is that they will enjoy  the exemption, even though otherwise they might be regarded as  holders of offices of profit…”  

56. It is argued by Shri Harish Salve appearing for the respondent that  

while interpreting the provisions of the Constitution, the understanding of  

the legislature regarding the fact whether a particular office is an office of  

profit need not necessarily be the correct understanding and this court is  

required to independently examine this question.

57. It is argued by Shri Salve that the office of the Chairman of the  

Indian Statistical Institute cannot be said to be either an office of profit  

either under the Government of India or the Government of a State, which  

would render the holder of such an office disqualified for becoming either  

a member of Parliament or the President of India.

58. The learned Attorney General argued that the Disqualification Act,  

1959 is not a defining enactment.  It nowhere defines what is an office of  

profit but an enactment made ex abundanti cautela to avoid any possible  

challenge to election of some of the members of the Parliament on the  

ground that they are holders of offices of profit and, therefore, this Court  

is still obliged to examine whether a particular office is an office of profit  

29

Page 30

rendering the holder thereof ineligible to become a member of Parliament  

or the President of India.

59. This Court In M.V. Rajashekaran (supra) dealt with the question  

of  office  of  profit  under  the  State  of  Karnataka  in  the  context  of  the  

election of one Nagaraj to the legislative council of Karnataka.  Nagaraj  

was appointed a One-Man Commission by the State of Karnataka to study  

certain problems.  In that capacity he was entitled to certain pay and  

reimbursement of day to day expenditure.  Subsequently, while continuing  

in  the office  of  One-Man Commission,  Nagaraj  filed his  nomination for  

election  to  the  Legislative  Council  of  the  State  of  Karnataka.   On  an  

objection raised, Nagaraj was disqualified to contest the election on the  

ground  of  his  having  had  held  an  office  of  profit,  the  nomination  of  

Nagaraj  was rejected.   Nagaraj  successfully  questioned the election of  

Rajashekaran and others on the ground that his nomination was illegally  

rejected.   Rajashekaran  appealed  to  this  Court.   The  issue  revolved  

around interpretation of Article 191, a provision corresponding to Article  

102  in  the  context  of  the  elections  to  the  legislative  assembly  or  

legislative council of a State.  The enactment called Karnataka Legislature  

(Prevention  of  Disqualification)  Act,  1956  was  made  by  the  State  of  

Karnataka to protect  the holders of some of  the offices from incurring  

disqualification  on  the  ground  that  those  offices  were  offices  of  profit  

contemplated under Article 191.

60. This  Court  opined  that  Nagaraj  was  holding  an  office  of  profit  

contemplated under Article 191 and therefore disqualified from contesting  

the election because Nagaraj was appointed a One-Man Commission by  

30

Page 31

the Government of Karnataka and he was obliged to study the problem  

entrusted  to  him  and  submit  a  report  to  the  Government;  that  the  

Government of Karnataka conferred the status of a Minister of the Cabinet  

rank on the office and made budgetary provision to defray the expenses  

of pay and day-to-day expenditure of Nagaraj.  This Court also recorded  

the conclusion that:

“remuneration  that  Nagaraj  was  getting  cannot  be  held  to  be  “compensatory allowance” within the ambit of section 2(b) of the Act  and, therefore, he was holder of an office of profit.”   

61. During  the  process  of  examination  of  various  provisions  of  the  

Karnataka Legislature (Prevention of Disqualification) Act, 1956, this Court  

made the observation relied upon by Shri Jethmalani. (para 55 supra)  In  

my  opinion,  this  Court  in  Rajashekaran’s  case never  specifically  

examined  the  issue  whether  mere  inclusion  of  office  in  an  enactment  

preventing the disqualification falling under Article 191 or Article 102 (as  

the case may be) would imply in law that the office specified in such an  

Act  is  necessarily  an  office  of  profit.   Therefore,  the  above  extracted  

statement in my view does not constitute the ratio decidendi of the said  

judgment.   

62. Even otherwise the inclusion of various offices in the Schedule of  

the Disqualification Act only reflects the understanding of the Parliament  

that those offices are offices of profit contemplated under Article 102(1)

(a). But such an understanding is neither conclusive or binding on this  

Court  while  interpreting  the  Constitution.   As  argued  by  the  learned  

Attorney General, such inclusion appears to be an exercise – ‘ex majure  

31

Page 32

cautela’.19  It  is  the  settled  position  of  law  that  interpretation  of  the  

Constitution and the laws is “emphatically the province and duty” of the  

judiciary. Therefore, I reject the submission of Mr. Jethmalani.

63. Therefore,  the meaning of  the expressions “office  of  profit”  and  

“office  of  profit  under  the  State  Government/Central  Government”  are  

required to be examined.  

64. In  Shivamurthy  Swami  Inamdar  v.  Agadi  Sanganna  

Andanappa (1971) 3 SCC 870 this Court dealt with the question – what  

is an office of profit? and held as follows:

“14. … office in question must have been held under a Government and  to that some pay, salary, emoluments or allowance is attached.  The word  ‘profit’  connotes the idea of pecuniary gain.   If there is really 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….”  

reiterating  the  principle  laid  down  in  Ravanna  Subanna v.  G.S.  

Kaggerappa, AIR 1954 SC 653.  

65. In  Shibu Soren  v.  Dayanand Sahay and others  (2001) 7 SCC  

425 both the questions were considered.20

19  Also see the short counter affidavit filed on behalf of the respondent, at page 11 para 33, wherein it is stated: “… Further the amendment to the said Act in the year 2006 was carried out in view of the judgment   

of this Hon’ble Court in the matter of Jaya Bachan reported in (2006) 5 SCC 266.  The amendment to the Act   was made ex majore cautela – as is obvious from the Statement of Objects and Reasons to the amendment itself.   The assumption that an express exclusion under that Act is conclusive of whether the office constitutes an  Office of Profit, is patently untenable – a number of amendments were made ex majore cautela so as to avoid   any controversy in relation to the holders of such office.  The mere fact that an office is excluded under that Act   does not establish that for all other statutes and Art.58, the Office is necessarily an office of profit.”

20 Para  26. The expression “office of profit” has not been defined either in the Constitution or in the Representation of the   People Act. In common parlance the expression “profit” connotes an idea of some pecuniary gain. If there is really some gain, its   label — “honorarium” — “remuneration” — “salary” is not material — it is the substance and not the form which matters and  even the quantum or amount of “pecuniary gain” is not relevant — what needs to be found out is whether the amount of money   receivable by the person concerned in connection with the office he holds, gives to him some “pecuniary gain”, other than as   “compensation” to defray his out-of-pocket expenses, which may have the possibility to bring that person under the influence of  the executive, which is conferring that benefit on him.

Para 27. With a view to determine whether the office concerned is an “office of profit”, the court must, however, take   a realistic view. Taking a broad or general view, ignoring essential details is not desirable nor is it permissible to take a narrow   view by which technicality may overtake reality. It is a rule of interpretation of statutes that the statutory provisions are so   construed as to avoid absurdity and to further rather than defeat or frustrate the object of the enactment. Courts, therefore, while   construing a statute avoid strict construction by construing the entire Act. (See with advantage Ashok Kumar Bhattacharyya v.  Ajoy Biswas (1985) 1 SCC 151, Tinsukhia Electric Supply Co. Ltd. v. State of Assam (1989) 3 SCC 709 and CIT v. J.H. Gotla   (1985) 4 SCC 343.

32

Page 33

66. The question in the said case was whether the Chairman of  the  

Interim Jharkhand Area Autonomous Council set up under section 20 of  

the Jharkhand Area Autonomous Council Act, 1994 was holding an office  

of profit under the State Government.  This Court had to examine both  

the questions – whether the office in question was an office of profit at  

all  and secondly whether it  was an  office of profit under the State  

Government?  This Court confirmed the opinion of the High Court that  

the Chairman of the Interim Jharkhand Area Autonomous Council was not  

only an office of profit but an office of profit under the State Government.  

The  Court  noticed  that  the  expression  “office  of  profit”  is  not  defined  

under  law  and,  therefore,  indicated  the  considerations  relevant  for  

determining the question whether a particular office is an office of profit.  

The Court reached to such a conclusion on consideration of various facts  

that the various amounts paid to Shibu Soren could not be said to be in  

the  nature  of  “compensatory  allowance”  and  was  in  the  nature  of  

remuneration  or salary inherently implying an element of “profit” and of  

giving “pecuniary gain” to Shibu Soren and the office of the Chairman of  

Interim Council  was temporary  in  nature  with limited  lifespan and the  

members of the Interim Council were appointed by the State to hold their  

offices at the pleasure of the State.  

67. The test as pointed out by the Court was whether the office gives  

the incumbent some pecuniary gain other than as compensation to defray  

his out-of-pocket expenses which may have the possibility to bring that  

person under the influence of the executive.  In coming to such conclusion  

this Court examined a number of earlier judgments on the issue.   

33

Page 34

68. Both  the  abovementioned cases and the  earlier  authorities  cited  

therein examined the question as to what is an office of profit and what  

are the tests relevant to determine whether such an office is held under  

the Government but the question what is an office of profit under a local  

or other authority subject to the control  of either the Central  or State  

Government  contemplated  under  Article  58(2)  never  fell  for  the  

consideration of this Court in those cases.  

69. That  leads  me  to  the  next  question  whether  the  office  of  the  

Chairman  of  the  Indian  Statistical  Institute,  Calcutta,  which  I  already  

concluded to be an authority for the purpose of Article 58(2), is an office  

of profit as explained by this Court in various abovementioned judgments.  

I  proceed on the basis that tests relevant for determining whether an  

office of profit contemplated under Article 58(2) are the same as the test  

laid down by this Court in the context of Article 102(1)(a).  The answer to  

the said question depends upon the terms and conditions subject to which  

the respondent held that office.  Whether the amounts if any paid to him  

in  that  capacity  are  compensatory  in  nature  or  amounts  capable  of  

conferring pecuniary gain are questions of fact which ought in my view to  

be  decided  only  after  ascertaining  all  the  relevant  facts  which  are  

obviously  in  the  exclusive  knowledge  either  of  the  respondent  or  the  

abovementioned institute.  I must also state that the respondent in his  

short counter made a statement21 that he did not derive pecuniary gain by  

21 Without prejudice to the aforesaid, it is submitted that in any event the position of Chairman of ISI is not an Office of Profit in   so far as the office does not enjoy any benefits and remuneration let alone any salary, emolument, perks etc. of any kind.  It is   submitted that ISI is a society registered under the Societies Registration Act. It is also governed by the ISI Act, 1954.  The  executive powers of the institute lie with the Director of ISI.  Both the President and the Chairman of the Institute is, in protocol,   ranked higher than the Director, ISI but both the President and the Chairman below him are neither entitled to nor receive any  emoluments, perquisites or benefits from the Institute.  As such, it is submitted that the office of Chairman of ISI is not an Office  of Profit.  The Chairman has no executive role. As such, the disqualification under Article 58 of the Constitution does not apply  to the said office.

34

Page 35

holding the abovementioned office.  After such an appropriate  enquiry  

into such conflicting statements of facts if it is to be concluded that the  

said  office  is  an  office  of  profit  inevitably  the  question  whether  the  

respondent had tendered his resignation by the crucial date is required to  

be ascertained once again an enquiry into a question of fact.

70. Whether a decision on such questions of facts can be rendered on  

the basis of the affidavit of the respondent, the veracity of which is not  

subjected to any further scrutiny?  The petitioner if permitted to inspect  

or seek discovery of records of the Indian Statistical Institute might or  

might not secure information to demonstrate truth or otherwise of the  

respondent’s affidavit.   

71. The issue is not whether the petitioner would eventually be able to  

establish his case or not.  The issue is whether the petitioner is entitled to  

a rational procedure of law to establish his case?  The stake in the case  

for the parties is enormous, nothing but the Presidency of this country.  

The  Constitution  creates  only  one  forum for  the  adjudication  of  such  

disputes.  All other avenues are closed.  By holding that the petition does  

not deserve a regular hearing contemplated under Rule 20, in my opinion,  

would not be consistent with the requirement that justice must not only  

be done but it must also appear to have been done.

72. Adjudication  of  rights  of  the  parties  under  the  Anglo-Saxon  

jurisprudence,  which  we  follow,  requires  the  establishment  of  relevant  

facts which constitute the cause of action necessary for the party claiming  

a relief from the Court.  Such facts are to be established by adducing  

evidence either oral or documentary.  Recognizing the possibility (that in a  

35

Page 36

given case) the party making an assertion of fact may not have within its  

control all the evidence necessary for proving such a fact, courts of civil  

judicature are empowered to order the discovery, inspection, production  

etc. of documents and also summon the persons in whose custody such  

relevant documents are available. (See: Section 30 read with Order XI  

etc. of the Code of Civil Procedure).  Such empowerment is a part of a  

rational procedure designed to serve the ends of justice.   

73. If  the  adjudication  of  the  election  petition  requires  securing  of  

information  which is  exclusively  available  with the respondent and the  

Indian Statistical Institute and which may be relevant can the petitioner  

be  told  that  he  would  not  be  able  to  secure  such  information  on the  

ground that letter of the law does not provide for such opportunity?  We  

have already come to the conclusion that the CPC does not apply to the  

election petition.  The rules framed by this Court under Article 145 are  

silent in this regard.  But the very fact that this Court is authorised to  

frame rules  regulating the procedure applicable  to  trial  of  the election  

petitions implies that this court has powers to pass appropriate orders to  

secure such information.  To hold to the contrary would be to tell a litigant  

who might as well have been the first citizen of this country (given a more  

favourable  political  regime)  that  the  law  of  the  Sovereign  Democratic  

Republic of India does not afford even that much of a rational procedure  

which was made available by the foreign rulers to the ordinary citizens of  

this country - which is still available to an ordinary litigant of this country.

74. Similarly, accepting the statement of the respondent that he did not  

derive any pecuniary benefit by virtue of his having had been Chairman of  

36

Page 37

the Indian Statistical Institute without permitting the petitioner to test the  

correctness  of  that  statement  by  cross-examining  the  respondent  or  

confronting  the  respondent  with  such  documents  which  the  petitioner  

might  discover  if  such  a  discovery  is  permitted  would  be  a  denial  of  

equality  of  law  to  the  petitioner  guaranteed  under  Article  14  of  the  

Constitution of India.  Such facility is afforded to every litigant pursuing  

litigation in a court of civil judicature in this country. Therefore, I do not  

subscribe to the view that the election petition does not deserve a regular  

hearing.

75. At  stake  is  not  the  Presidency  of  India  but  the  constitutional  

declaration of equality and the credibility of the judicial process.

76. In view of the majority opinion that the election petition does not  

deserve  a  regular  hearing  I  do  not  propose  to  examine  the  question  

whether the second office held by the respondent as Leader of the Lok  

Sabha is  an  office  of  profit  attracting  the disqualification  under Article  

58(2).

…………………………………………J.                                               (J. CHELAMESWAR)

New Delhi; December 11, 2012.

37