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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. The Petitioner herein was a candidate in the  

Presidential elections held on 19th July, 2012,  

the results whereof were declared on 22nd July,  

2012.  The Petitioner and the Respondent were the  

only two duly nominated candidates.  The  

Respondent received votes of the value of 7,13,763  

and was declared elected to the Office of the  

President of India.  On the other hand, the

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2 Petitioner received votes of the value of  

3,15,987.  

2. The Petitioner has challenged the election of  

the Respondent as President of India on the ground  

that he was  not eligible to contest the  

Presidential election in view of the provisions of  

Article 58 of the Constitution of India, which is  

extracted hereinbelow :-

“58. Qualifications for election  as President.- (1) No person  shall be eligible for election as  President unless he -

(a) is a citizen of India, (b) has  completed  the age  of thirty-five years, and (c) is  qualified  for  election as  a member of the  House of the People.

(2) A person shall not be eligible  for election as President if he  holds any office of profit under  the Government of India  or  the  Government of any State or under  any local or other authority  subject to the control of any of  the said Governments.

Explanation.-For the purposes of  this article, a person shall not  be deemed to hold any office of  profit by reason only that he is  the President or Vice President

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3 of the Union or the Governor of  any State or is a Minister either  for the Union or for any State.”  

 3. According to the Petitioner, at the time of  

filing the nomination papers as a candidate for  

the Presidential elections, the Respondent held  

the Office of Chairman of the Council of Indian  

Statistical Institute, Calcutta, hereinafter  

referred to as the “Institute”, which, according  

to him, was an office of profit.  It appears that  

at the time of scrutiny of the nomination papers  

on 2nd July, 2012, an objection to that effect had  

been raised before the Returning Officer by the  

Petitioner's authorized representative, who urged  

that the nomination papers of the Respondent were  

liable to be rejected.  In response to the said  

submission, the representative of the Respondent  

sought two days' time  to  file a reply  to  the  

objections  raised  by the Petitioner. Thereafter,  

on 3rd July, 2012, a written reply was submitted on  

behalf of the Respondent to the objections raised  

by the Petitioner before the Returning Officer,

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4 along with a copy of a resignation letter dated  

20th June, 2012, whereby the Respondent claimed to  

have resigned from the Chairmanship of the  

Institute.  A reply was also filed on behalf of  

the Respondent to the  objections raised by Shri  

Charan Lal Sahu.  The matter was, thereafter,  

considered by the Returning Officer at the time of  

scrutiny of the nomination papers on 3rd July,  

2012, when the Petitioner's representative even  

questioned the genuineness of the resignation  

letter submitted by the Respondent to the  

President of the Council of the Institute, Prof.  

M.G.K. Menon.    

4. Having considered the submissions made on  

behalf of the parties, the Returning Officer, by  

his order dated 3rd July, 2012, rejected the  

Petitioner's objections as well as the objections  

raised by Shri Charan Lal Sahu, and accepted the  

Respondent's  nomination  papers.  Accordingly, on  

3rd July, 2012, the Petitioner and the Respondent

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5 were declared to be the only two duly nominated  

candidates for the Presidential election.

5. Immediately after the rejection of the  

Petitioner's objection to the Respondent's  

candidature for the Presidential elections, on 9th  

July, 2012, a petition was submitted to the  

Election Commission of India, under Article 324 of  

the Constitution, praying for directions to the  

Returning Officer to re-scrutinize the nomination  

papers of the Respondent and to decide the matter  

afresh after hearing the Petitioner.  The Election  

Commission rejected the said petition as not being  

maintainable before the Election Commission, since  

all disputes relating to Presidential elections  

could be inquired into and decided only by this  

Court.  Thereafter, as indicated hereinabove, the  

Presidential elections were conducted on 19th July,  

2012, and the Respondent was declared elected to  

the Office of the President of India on 22nd July,  

2012.

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6 6. Aggrieved by the decision of the Returning  

Officer in accepting the nomination papers of the  

Respondent as being valid, the Petitioner has  

questioned the election of the Respondent as the  

President of India under Article 71 of the  

Constitution read with Order XXXIX of the Supreme  

Court Rules, 1966, and, in particular, Rule 13  

thereof.  The said Rule, which is relevant for a  

decision in this petition, reads as follows :-

“13. Upon presentation of a petition  the same shall be posted before a  bench of the Court consisting of five  Judges for preliminary hearing and  orders for service of the petition  and advertisement thereof as the  Court may think proper and also  appoint a time for hearing of the  petition.  Upon preliminary hearing,  the Court, if satisfied, that the  petition does not deserve regular  hearing as contemplated in Rule 20 of  this Order may dismiss the petition  or pass any appropriate order as the  Court may deem fit.”                   [Emphasis supplied]

7. In keeping with the provisions of Rule 13 of  

Order XXXIX of the Supreme Court Rules, 1966,  

which deals with Election Petitions under Part III

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7 of the Presidential and Vice-Presidential  

Elections Act, 1952, the Election Petition filed  

by the Petitioner was listed for hearing on the  

preliminary point as to whether the petition  

deserved a hearing, as contemplated by Rule 20 of  

Order XXXIX, which provides as follows :

“20. Every petition calling in  question an election shall be posted  before and be heard and disposed of by  a Bench of the Court consisting of not  less than five Judges.”

8. Mr. Ram Jethmalani, learned Senior Advocate,  

appearing for the Petitioner, submitted that the  

Respondent's election as President of India, was  

liable to be declared as void mainly on the ground  

that by holding the post of Chairman of the Indian  

Statistical Institute, Calcutta, on the date of  

scrutiny of the nomination papers, the Respondent  

held an office of profit, which disqualified him  

from contesting the Presidential election.

9. Mr. Jethmalani urged that apart from holding  

the office of the Chairman of the aforesaid

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8 Institute, the Respondent was also the Leader of  

the House in the Lok Sabha which had been declared  

as an office of profit. Urging that since the  

Respondent was holding both the aforesaid offices,  

which were offices of profit, on the date of  

filing of the nomination papers, the Respondent  

stood disqualified from contesting the  

Presidential election in view of Article 58(2) of  

the Constitution.

10. Mr. Jethmalani submitted that Article 71 of  

the Constitution provides that all doubts and  

disputes arising out of or in connection with the  

election of a President or Vice-President shall be  

inquired into and decided by the Supreme Court  

whose decision is to be final. Mr. Jethmalani  

submitted that there were sufficient doubts to the  

Respondent's assertion that on the date of filing  

of his nomination papers, he had resigned both  

from the office of Chairman of the Indian  

Statistical Institute, Calcutta, and as the Leader  

of the House in the Lok Sabha, on 20th June, 2012.

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9 Mr. Jethmalani urged that the doubt which had been  

raised could only be dispelled by a full-fledged  

inquiry which required evidence to be taken and  

cross-examination of the witnesses whom the  

Respondent might choose to examine.  Accordingly,  

Mr. Jethmalani submitted that the instant petition  

would have to be tried in the same manner as a  

suit, which attracted the provisions of Section  

141 of the Code of Civil Procedure, which reads as  

follows:

“141.  Miscellaneous Proceedings. - The  procedure provided in this Code in  regard to suit shall be followed, as  far as it can be made applicable, in  all proceedings in any Court of civil  jurisdiction.

Explanation –  In this Section the  expression “proceedings”  includes  proceedings under Order IX, but does  not include any proceeding under  Article 226 of the Constitution.”

  In addition, learned counsel also referred to  

Rule 34 of Order XXXIX of the Supreme Court Rules,  

1966, which provides as follows :-

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“Order XXXIX, Rule 34 Subject to the provisions of this  Order or any special order or  direction of the Court, the procedure  of an Election Petition shall follow  as nearly as may be the procedure in  proceedings before the Court in  exercise of its Original  Jurisdiction.”

11. Mr. Jethmalani pointed out that in the  

Original Jurisdiction of the Supreme Court,  

provided for in Order XXII of the Supreme Court  

Rules, 1966, the entire procedure for institution  

and trial of a suit has been set out, providing  

for all the different stages in respect of a suit  

governed by the Code of Civil Procedure.  Mr.  

Jethmalani submitted that the making of the  

procedure for trial of Election Petitions akin to  

that of the Original Jurisdiction of the Supreme  

Court, was a clear indication that the matter must  

be tried as a suit, if under Rule 13 of Order  

XXXIX, the Court consisting of 5 Judges was  

satisfied at a preliminary inquiry that the matter

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11 deserved a regular hearing, as contemplated in  

Rule 20 of the said Order.

12. For the sake of comparison, Mr. Jethmalani  

referred to Section 87 of the Representation of  

the People Act, 1951, laying down the procedure  

for the trial of Election Petitions and providing  

that every Election Petition shall be tried by the  

High Court, as nearly as may be, in accordance  

with the procedure applicable under the Code of  

Civil Procedure to the trial of suits.  Mr.  

Jethmalani urged that in matters relating to  

election disputes it was the intention of the  

Legislature to have the same tried as regular  

suits following the procedure enunciated in  

Section 141 C.P.C.  

13. Mr. Jethmalani then drew our attention to  

Article 102 of the Constitution and, in  

particular, Clause 1(1)(a) thereof, which, inter  

alia, provides as follows :-

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12 “102. (1)  A person shall be dis- qualified for being chosen as, and  for being, a member of either House  of Parliament –  (a) if he holds any office of profit  under the Government of India or the  Government of any State, other than  an office declared by Parliament by  law not to disqualify its holder; (b)………… (c)………… (d)………… (e)…………

Explanation: For the purposes of  this clause a person shall not be  deemed to hold an office of profit  under the Government of India or the  Government of any State by reason  only that he is a Minister either  for the Union or for such State.”

14. Mr. Jethmalani submitted that language similar  

to the above, had been incorporated in Article  

58(2) of the Constitution, which also provides  

that a person shall not be eligible for election  

as President, if he holds any office of profit  

under the Government of India or the Government of  

any State or under any local or other authority,  

subject to the control of any of the said  

Governments.  Mr. Jethmalani submitted that as in

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13 Explanation to Article 102, the Explanation to  

Clause (2) of Article 58 also indicates that a  

person shall not be deemed to hold any office of  

profit by reason only that he is the President or  

Vice-President of the Union or the Governor of any  

State or is a Minister either for the Union or for  

any State.  Mr. Jethmalani urged that Article 102  

cannot save a person elected to the Office of  

President from disqualification, if he holds an  

office of profit.   

15. Mr. Jethmalani submitted that from the  

annexures to the affidavit filed on behalf of the  

Respondent it was highly doubtful as to whether  

the Respondent had actually resigned from the post  

of Chairman of the Institute on 20th June, 2012, or  

even from the Membership of the Congress Party,  

including the Working Committee, and from the  

office of the Leader of the Congress Party in Lok  

Sabha on the same date, as contended by him.  Mr.  

Jethmalani submitted that from the copy of the

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14 letter addressed to Professor M.G.K. Menon,  

President of the Institute, it could not be  

ascertained as to whether the endorsement made by  

Professor Menon amounted to acceptance of the  

Respondent’s resignation or receipt of the letter  

itself.  Learned counsel urged that this was  

another case of “doubt”  within the meaning of  

Article 71 of the Constitution of India which  

required the Election Petition to be tried as a  

suit for which a detailed hearing was required to  

be undertaken by taking evidence and allowing for  

cross-examination of witnesses.   

16. It was also submitted that the expression  

“office of profit”  has not been conclusively  

explained till today under the Presidential and  

Vice-Presidential Elections Act, 1952, nor any  

other pre-independence statute, and the same  

required to be resolved by this Court.  In this  

regard, Mr. Jethmalani referred to the decision of  

a three-Judge Bench of this Court in the case of

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15 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

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16 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-

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17 Judge Bench, which heard the matter, held that an  

office of profit is an office which is capable of  

yielding profits of pecuniary gain and that  

holding an office under the Central or State  

Government, to which some pay, salary, emolument,  

remuneration or non-compensatory allowance is  

attached, is “holding an office of profit”.  

However, the question whether a person holds an  

office of profit has to be interpreted in a  

realistic manner and the nature of the payment  

must be considered as a matter of substance rather  

than of form.  Their Lordships further observed  

that for  deciding the question as to whether one  

is holding an office of profit or not, what is  

relevant is whether the office is capable of  

yielding a profit or pecuniary gain and not  

whether the person actually obtained any monetary  

gain therefrom.   

18. In the same connection, reference was also  

made to the decision of this Court in M.V.

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18 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

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19 Presidential election would have to be in  

compliance with the provisions of Order XXXIX of  

the Supreme Court Rules, 1966, which deals with  

Election Petitions under Part III of the 1952 Act.  

Rule 13 of Order XXXIX of the Supreme Court Rules,  

therefore, becomes applicable and it enjoins that  

upon presentation of an Election Petition, the  

same has to be posted before a Bench of the Court  

consisting of five Judges, for preliminary hearing  

to satisfy itself that the petition deserves a  

regular hearing, as contemplated in Rule 20.  For  

the sake of reference, Sections 14 and 14A of the  

1952 Act, are extracted hereinbelow :-

“14. (1) No election shall be called  in question except by presenting an  Election Petition to the authority  specified in sub-section (2).    

(2) The authority having jurisdiction to  try an Election Petition shall be the  Supreme Court.

(3) Every Election Petition shall be  presented to such authority in accordance  with the provisions of this Part and of  the rules made by the Supreme Court under  article 145.

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20 14A. (1) An Election Petition calling  

in question an election may be presented  on one or more of the grounds specified in  sub-section  (1) of section 18 and section  19, to the Supreme Court by any candidate  at such election, or—  

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

(b) in the case of Vice- Presidential election, by ten or more  electors joined together as  petitioners.  

(2) Any such petition may be presented  at any time after the date of publication  of the declaration containing the name of  the returned candidate at the election  under section 12, but not later than  thirty days from the date of such  publication.”

21. Mr. Salve submitted that the nomination papers  

of the respective candidates had been scrutinized  

by the Returning Officer in accordance with the  

provisions of Section 5A of the 1952 Act.  

Referring to Sub-Section (3) of Section 5E, Mr.  

Salve submitted that after completing all the  

formalities indicated in Sub-Section (3), the  

Returning Officer had accepted the nomination

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21 papers of the Respondent as valid, which,  

thereafter, gave the Respondent the right to  

contest the election.  Mr. Salve submitted that  

Section 14 of the 1952 Act was enacted under  

Clause (3) of Article 71 of the Constitution which  

provides that subject to the provisions of the  

Constitution, Parliament may by law regulate any  

matter relating to or connected with the election  

of a President or Vice-President.   

22. Mr. Salve submitted that the election of the  

President and Vice-President has been treated on a  

different level in comparison with the election of  

Members of Parliament and other State  

Legislatures. While Article 102 deals with  

election of Members to the House, Article 58 deals  

with the election of the President and the Vice-

President of India, which has to be dealt with  

strictly in accordance with the law laid down in  

this regard.  In support of his aforesaid  

contention, Mr. Salve referred to a Seven-Judge

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22 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

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23 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

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24 Act, the provisions of Section 141 of the Code of  

Civil Procedure could not be imported into  

deciding a dispute relating to a challenge to the  

election of the President.   

26. Mr. Salve submitted that Rule 13 of Order  

XXXIX of the Supreme Court Rules, 1966, stood  

substituted on 9th December, 1997, and the  

substituted provision came into effect on 20th  

December, 1997. In the Original Rule which came to  

be substituted, there was no provision for a  

preliminary hearing to be conducted to establish  

as to whether the Election Petition deserved a  

regular hearing. However, in view of repeated and  

frivolous challenges to the elections of almost  

all of the Presidents elected, the need for such  

an amendment came to be felt so as to initially  

evaluate as to whether such an Election Petition,  

challenging the Presidential election, deserved a  

regular hearing.

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25 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.

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26

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-

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27 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 :

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28 “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

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29 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

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30 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

Page 31

31 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

Page 32

32 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

Page 33

33 Election Petition challenging a Presidential  

election were required to be verified by an  

affidavit to be made personally by the Petitioner  

or by one of the Petitioners, in case there were  

more than one, subject to the condition that if  

the Petitioner was unable to make such an  

affidavit for the reasons indicated in the proviso  

to Rule 6, a person duly authorized by the  

Petitioner would be entitled, with the sanction of  

the Judge in Chambers, to make such an affidavit.  

Mr. Salve submitted that in the instant case there  

was no such occasion for the verification to be  

done by the Petitioner.   

33. In regard to the post of “Leader of the  

House”, Mr. Salve referred to the Practice and  

Procedure of Parliament, with particular reference  

to the Lok Sabha, wherein with regard to the  

resignation from the membership of other bodies,  

in the case of the Leader of the House, the  

procedure followed was that when a Member of the

Page 34

34 Lok Sabha representing Parliament or Government  

Committees, Boards, Bodies, sought to resign from  

the membership of that body by addressing the  

Speaker, he is required to address his resignation  

to the Chairman of that Committee, Board or Body  

and he ceases to be member of the Committee when  

he vacates that office.  Mr. Salve submitted that  

by tendering his resignation to the Congress  

President and Chairperson of the Congress Party in  

Parliament on 20th June, 2012, with immediate  

effect, such resignation came into force forthwith  

and no further formal acceptance thereof was  

necessary.

34. Mr. Salve submitted that notwithstanding the  

submissions made in regard to the expression  

“holder of an office of profit”, the said argument  

was also not available to the Petitioner, since by  

virtue of amendment to Section 3 of the Parliament  

(Prevention of Disqualification) Act, 1959, in  

2006, the office of Chairman of the Institute was

Page 35

35 excluded from the disqualification provisions of  

Article 58(2) of the Constitution of India.  Mr.  

Salve submitted that the aforesaid Act had been  

enacted to declare that certain offices of profit  

under the Government, including the post of  

Chairman in any statutory or non-statutory body,  

would not disqualify the holders thereof from  

being chosen as, or for being Members of  

Parliament as contemplated under Article 102(1)(a)  

of the Constitution. By virtue of the said  

amendment, a new Table was inserted after the  

Schedule to the Principal Act which would be  

deemed to have been inserted with effect from 4th  

April, 1959.  The Indian Statistical Institute,  

Calcutta, has been placed at Serial No.4 of the  

Table.  Accordingly, the submissions advanced by  

Mr. Jethmalani with regard to the Respondent  

holding an office of profit as Chairman of the  

Institute on the date of filing of nomination for  

election to the Office of President, were

Page 36

36 incorrect and the same were liable to be  

discarded.

35. Mr. Salve submitted that having regard to the  

submissions made on behalf of the parties, the  

Election Petition filed by Shri Purno Agitok  

Sangma did not deserve a regular hearing, as  

contemplated in Rule 20 of Order XXXIX of the  

Supreme Court Rules, 1966, and was liable to be  

dismissed.

36. The learned Attorney General, Mr. Goolam E.  

Vahanvati, firstly urged that the expression  

“office of profit” ought not to be interpreted in  

a pedantic manner and has to be considered in the  

light of the duties and functions and the benefits  

to be derived by the holder of the office.  Mr.  

Vahanvati pointed out that the post of Chairman of  

the Institute was a purely honorary post, meant to  

honour the holder thereof.  It did not require the  

active participation of the Chairman in the  

administration of the Institute, which was looked

Page 37

37 after by the President and his Council constituted  

under the Rules and Regulations of the Institute.  

Mr. Vahanvati also submitted that the post was  

purely honorary in nature and did not benefit the  

holder thereof in any way, either monetarily or  

otherwise, nor was there any likelihood of any  

profit being derived therefrom.  Accordingly, even  

if Mr. Jethmalani's submission that on the date of  

filing of nominations the Respondent continued to  

hold the said office, it would not disqualify him  

from contesting the Presidential election.

37. In this regard, the learned Attorney General  

referred to the decision of this Court in Consumer  

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)

Page 38

38 and 103 in the Writ Petitions filed before this  

Court under Article 32 of the Constitution, the  

constitutionality of the Parliament (Prevention of  

Disqualification) Amendment Act, 2006, came to be  

questioned on the ground that the said Act  

retrospectively added to the list of “offices of  

profit”  which do not disqualify the holders  

thereof for being elected as Members of  

Parliament.  The Writ Petitioners contended that  

the amendment had been brought in to ensure that  

persons who had ceased to be Members of Parliament  

on account of incurring disqualifications, would  

be re-inducted to Parliament without election,  

which, according to the Writ Petitioners, violated  

the provisions of Articles 101 to 104 of the  

Constitution.

38. The said question was answered by this Court  

by holding that the power of Parliament to enact a  

law under Article 102(1)(a) includes the power of  

Parliament to enact such law retrospectively, as

Page 39

39 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.

39. 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

Page 40

40 Wage Board for the sugar industry constituted by  

the Government of Maharashtra, which was an  

honorary post and the honorarium paid to the  

Members was in the nature of a compensatory  

allowance, exercised powers which were essentially  

a part of the judicial power of the State.  Such  

Members did not, therefore, hold an office under  

the Government.

40. Further reference was made to another decision  

of this Court in 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

Page 41

41 first question to be asked in this situation was  

as to whether the Government has power to appoint  

and remove a person on and from the office and if  

the answer was in the negative, no further inquiry  

was called for.  However, if the answer was in the  

positive, further inquiries would have to be  

conducted as to the control exercised by the  

Government over the holder of the post.  Since in  

the said case, the Government of India did not  

exercise any control on appointment, removal,  

service conditions and functioning of the  

Respondent, it was held that the said Respondent  

did not hold an office of profit under the  

Government of India, and his being a Clerk in the  

Coal India Ltd. did not bring any influence or  

pressure on him in his independent functioning as  

a Member of the Legislative Assembly.

41. The learned Attorney General lastly cited the  

decision of this Court in Ashok     Kumar    

Bhattacharyya Vs. Ajoy     Biswas     &     Ors.   [(1985) 1 SCC

Page 42

42 151], where also what amounts to an office of  

profit under the Government came up for  

consideration and it was held that the employees  

in the local authority did not hold offices of  

profit under the Government and were not,  

therefore, disqualified either under Articles  

102(1)(a) and 191(1)(a) of the Constitution of  

India or the provisions of the Bengal Municipal  

Act, 1932.  Their Lordships held that on an  

analysis of the provisions of the Act, it was  

quite clear that though the Government exercised a  

certain amount of control and supervision, the  

respondent who was an Accountant Incharge of the  

Agartala Municipality in the State of Assam, was  

not an employee of the Government and was at the  

relevant time holding an office of profit under a  

local municipality, which did not bring him within  

the ambit of Article 102(1)(a) of the  

Constitution.

Page 43

43 42. The learned Attorney General submitted that  

the Disqualification Act is not a defining Act and  

was never meant to be and one cannot import the  

definition in the Schedule where only the  

Institute is mentioned.   Sharing the sentiments  

expressed by Mr. Salve, the learned Attorney  

General submitted that the Election Petition was  

liable to be dismissed.   

43. Replying to the submissions made by Mr. Harish  

Salve and the learned Attorney General, Mr. Ram  

Jethmalani asserted that the 1959 Act was, in  

fact, a defining Act and falls under Entry 73 of  

the First List in the Seventh Schedule to the  

Constitution, which empowers the Parliament to  

legislate in regard to elections to Parliament, to  

the legislatures of the States and to the offices  

of President and Vice-President and the Election  

Commission.  Mr. Jethmalani also reiterated that  

the Institute was controlled by the Central  

Government.  The Act under which the Institute was

Page 44

44 formed was an Act by the Central Government and  

the post of Chairman must, therefore, be held to  

be an office of profit under the Central  

Government.   

44. Reiterating his earlier stand that the  

Election Petition deserved to be regularly heard,  

Mr. Jethmalani referred to the decision of this  

Court in M.V.     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.

Page 45

45

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

Page 46

46 Central Government, it will have to be considered  

as to whether his functioning as the President of  

India would, in any way, be compromised or  

influenced thereby.

46. While replying, Mr. Jethmalani introduced a  

new dimension to his submissions by urging that  

the Rules and Bye-laws of the Institute did not  

permit a Chairman, once appointed, to resign from  

his post.  Accordingly, even if the Respondent had  

tendered his resignation to the President, Dr.  

Menon, the same was of no effect and he continued  

to remain as the Chairman of the Institute.  He  

was, therefore, disqualified from contesting the  

Presidential election and his election was liable  

to be declared void and in his place the  

Petitioner was liable to be declared as the 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

Page 47

47 for matters relating to or connected with the  

election of a President or a Vice-President.  

Clause (1) of Article 71 provides that all doubts  

and disputes arising out of or in connection with  

the election of a President or Vice-President  

shall be inquired into and decided by the Supreme  

Court whose decision shall be final.  Sub-clause  

(3) provides that subject to the provisions of the  

Constitution, Parliament may, by law, regulate any  

matter, relating to or connected with the election  

of a President or a Vice-President.  In addition,  

the Presidential and Vice-Presidential Elections  

Act was enacted in 1952 with the object of  

regulating certain matters relating to or  

connected with elections to the Office of  

President and Vice-President of India.  As  

indicated by Mr. Salve, Sections 14 and 14A of the  

1952 Act, specially vest the jurisdiction to try  

Election Petitions thereunder with the Supreme  

Court in the manner indicated therein.   In fact,  

Part III of the said Act deals with disputes

Page 48

48 regarding elections to the posts of President and  

Vice-President of India, which contains Sections  

14 and 14A, as also Sections 17 and 18 which  

empower the Supreme Court to either dismiss the  

Election Petition or to declare the election of  

the returned candidate to be void or declare the  

election of the returned candidate to be void and  

the Petitioner or any other candidate to have been  

duly elected.   

48. In view of Sub-section (3) of Section 14 of  

the Act, the Supreme Court has framed Rules under  

Article 145 of the Constitution which are  

contained in Order XXXIX of the Supreme Court  

Rules, 1966.  As has been discussed earlier, Rule  

13 of Order XXXIX provides  that upon presentation  

of a Petition relating to a challenge to election  

to the post of President of India, the same is  

required to be posted before a Bench of the Court  

consisting of five Judges  for preliminary hearing  

and to consider  whether the Petition deserved a

Page 49

49 regular hearing, as contemplated in Rule 20 of  

Order XXXIX, and, in that context, such Bench may  

either dismiss the Petition or pass any  

appropriate order as it thought fit.

49. It is under the aforesaid Scheme that the  

present Election Petition filed by Shri Purno  

Agitok Sangma challenging the election of Shri  

Pranab Mukherjee as the President of India has  

been taken up for preliminary hearing on the  

question as to whether it deserved a regular  

hearing or not.

50. The challenge is based mainly on the  

allegation that on the date of filing of  

nominations, the Respondent, Shri Pranab  

Mukherjee, held “offices of profit”, namely,

(i) Chairman of the Indian Statistical Institute,  

Calcutta; and  

(ii)Leader of the House in the Lok Sabha.

Page 50

50     In regard to the aforesaid challenges, Mr. Ram  

Jethmalani, appearing for the Petitioner, had  

urged that in order to arrive at a conclusive  

decision on the said two points, it was necessary  

that a regular hearing be conducted in respect  of  

the Election Petition to ascertain the truth of  

the allegations made by the Petitioner.  It was  

also submitted that the same required a full scale  

hearing in the manner as contemplated under  

Section 141 of the Code of Civil Procedure, as  

would be evident from Order XXXIX read with the  

provisions relating to the Original Jurisdiction  

of the Supreme Court, contained in Part III of the  

Supreme Court Rules, 1966.          

51. On the other hand, it has been urged by Mr.  

Harish Salve, appearing for the Respondent, that  

on the date of filing of nominations, Shri Pranab  

Mukherjee was neither holding the Office of  

Chairman of the aforesaid Institute nor was he the  

Leader of the House in the Lok Sabha, inasmuch as,

Page 51

51 in respect of both the posts, he had tendered his  

resignation on 20th June, 2012.

52. There is some doubt as to whether the Office  

of the Chairman of the Indian Statistical  

Institute is an office of profit or not, even  

though the same has been excluded from the ambit  

of Article 102 of the Constitution by the  

provisions of the Parliament (Prevention of  

Disqualification) Act, 1959, as amended in 2006.  

Having been included in the Table of posts saved  

from disqualification from membership of  

Parliament, it must be accepted to be an office of  

profit.  However, as argued by Mr. Salve,  

categorising the office as an “office of profit”  

did not really make it one, since it did not  

provide any profit and was purely honorary in  

nature.  There was neither any salary nor  

honorarium or any other benefit attached to the  

holder of the said post.  It was not such a post  

which, in fact, was capable of yielding any

Page 52

52 profit, which could make it, in fact, an office of  

profit.

53. The said proposition was considered in Shibu  

Soren's case (supra) where it was held that mere  

use of the word “honorarium”  would not take the  

payment out of the concept of profit, if there was  

some pecuniary gain for the recipient in addition  

to daily allowances in the nature of compensatory  

allowances, rent-free accommodation and chauffeur  

driven car at State expense.   

54. Similar was the view expressed in Jaya  

Bachchan's case (supra) where also this Court  

observed that what was relevant was whether the  

office was capable of yielding a profit or  

pecuniary gain, other then reimbursement of 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

Page 53

53 was not material, what was material is whether the  

said office was capable of yielding a profit or  

pecuniary gain.  

55. In the instant case, the office of Chairman of  

the Institute did not provide for any of the  

amenities indicated hereinabove and, in fact, the  

said office was also not capable of yielding  

profit or pecuniary gain.

56. In regard to the office of the Leader of the  

House, it is quite clear that the Respondent had  

tendered his resignation from membership of the  

House before he filed his nomination papers for  

the Presidential election. The controversy that  

the Respondent had resigned from the membership of  

the Indian National Congress and its Central  

Working Committee allegedly on 25th June, 2012,  

was set at rest by the affidavit filed by Shri  

Pradeep Gupta, who is the Private Secretary to the  

President of India.  In the said affidavit, Shri  

Gupta indicated that through inadvertence he had

Page 54

54 supplied the date of the Congress Working  

Committee meeting held on 25th June, 2012, to bid  

farewell to Shri Mukherjee on his nomination for  

the Presidential Election being accepted. In any  

event, the disqualification contemplated on  

account of holding the post of Leader of the House  

was with regard to the provisions of Article  

102(1)(a) of the Constitution, besides being the  

position of the leader of the party in the House  

which did not entail the holding of an office of  

profit under the Government.  In any event, since  

the Respondent tendered his resignation from the  

said post prior to filing of his nomination  

papers, which was duly acted upon by the Speaker  

of the House, the challenge thrown by the  

Petitioner to the Respondent's election as  

President of India on the said ground loses its  

relevance. In any event, the provisions of the  

Parliament (Prevention of Disqualification) Act,  

1959, as amended in 2006, excluded the post of

Page 55

55 Chairman of the Institute as a disqualification  

from being a Member of Parliament.     

57. The Constitutional Scheme, as mentioned in  

the Explanation to Clause (2) of Article 58 of the  

Constitution, makes it quite clear that for the  

purposes of said Article, a person would not be  

deemed to hold any office of profit, inter alia,  

by reason only that he is a Minister either for  

the Union or for any State.  Article 102 of the  

Constitution contains similar provisions wherein  

in the Explanation to clause (1) it has been  

similarly indicated that for the purposes of the  

said clause, a person would not be deemed to hold  

an office of profit under the Government of India  

or the Government of any State by reason only that  

he is a Minister, either for the Union, or for  

such State.  The argument that the aforesaid  

provisions of Article 102, as well as Article 58  

of the Constitution, could not save a person  

elected to the office of President from

Page 56

56 disqualification, if he held an office of profit,  

loses much of its steam in view of the fact that  

as would appear from the materials on record, the  

Respondent was not holding any office of profit  

either under the Government or otherwise at the  

time of filing his nomination papers for the  

Presidential election.  

58. The various decisions cited on behalf of the  

parties in support of their respective  

submissions, clearly indicate that in order to be  

an office of profit, the office must carry various  

pecuniary benefits or must be capable of yielding  

pecuniary benefits such as providing for official  

accommodation or even a chauffeur driven car,  

which is not so in respect of the post of Chairman  

of the Indian Statistical Institute, Calcutta,  

which was, in fact, the focus and raison d'etere  

of Mr. Jethmalani's submissions.

59. We are also not inclined to accept Mr.  

Jethmalani's submissions that once a person is

Page 57

57 appointed as Chairman of the Indian Statistical  

Institute, Calcutta, the Rules and Bye-laws of the  

Society did not permit him to resign from the post  

and that he had to continue in the post against  

his wishes.  There is no contractual obligation  

that once appointed, the Chairman would have to  

continue in such post for the full term of office.  

There is no such compulsion under the Rules and  

Bye-laws of the Society either.  In any event,  

since the holder of the post of Chairman of the  

Institute has been excluded from disqualification  

for contesting the Presidential election, by the  

2006 amendment to Section 3 of the Parliament  

(Prevention of Disqualification) Act, 1959, the  

submissions of Mr. Jethmalani in this regard is of  

little or no substance.

60. We are not convinced that in the facts and  

circumstances of the case, the Election Petition  

deserves a full and regular hearing as  

contemplated under Rule 20 of Order XXXIX of the

Page 58

58 Supreme Court Rules, 1966. Consequently, Mr.  

Jethmalani's submissions regarding the  

applicability of Section 141 of the Code of Civil  

Procedure for trial of the Election Petition is of  

no avail.  We are also not convinced that Section  

141 of the Code is required to be incorporated  

into a proceeding taken under Order XXXIX of the  

Supreme Court Rules read with Part II of the  

Presidential and Vice-Presidential Elections Act,  

1952, which includes Sections 14 to 20 of the  

aforesaid Act and Article 71 of the Constitution  

of India.

 61. It may not be inappropriate at this stage to  

mention that this Court has repeatedly cautioned  

that the election of a candidate who has won in an  

election should not be lightly interfered with  

unless circumstances so warrant.

62. We are not inclined, therefore, to set down  

the Election Petition for regular hearing and

Page 59

59 dismiss the same under Rule 13 of Order XXXIX of  

the Supreme Court Rules, 1966.

63. In the facts and circumstances of the case,  

the parties shall bear their own costs in these  

proceedings.  

…………………………………………………CJI.     (ALTAMAS KABIR)

………………………………………………………J.                    (P. SATHASIVAM)

………………………………………………………J.                            (SURINDER SINGH NIJJAR) New Delhi Dated: 05.12.2012

Page 60

60 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

Page 61

61 hearing under Rule 20 of Order XXXIX of the  

Supreme Court Rules, 1966.

3. The Election Petition in question has been  

filed challenging the election of the respondent  

to the office of the President of India (hereinafter  

referred to as ‘the President’). The election in  

which the petitioner and the respondent were  

the contesting candidates was  held to the  

following Schedule:  

Issue of Notification  calling the election

16  June 2012

Last date for making  Nominations

30 June, 2012

Date for scrutiny 2 July, 2012 Last date for  withdrawal

4 July, 2012

Date of poll, if  necessary

19 July, 2012

Date of counting, if  necessary

22 July, 2012

4.   Both the Election Petitioner as well as the  

respondent filed their nomination papers before  

the Returning Officer on 28.6.2012. A total of  

106 nomination papers filed by 84 persons were  

taken up for scrutiny on the date fixed i.e.  

2.7.2012. The petitioner objected to the validity

Page 62

62 of the nomination of the respondent on the  

ground that the respondent  on the said date i.e.  

2.7.2012 was holding the office of the Chairman  

of the Council of Indian Statistical Institute,  

Kolkata (hereinafter referred to as the Chairman  

ISI) which is an office of profit. According to the  

petitioner, at the request of the representative of  

the respondent, the scrutiny of the nomination  

of the respondent was  deferred to 3.00 p.m. of  

the next day i.e. 3.7.2012 with liberty to file  

reply, if any, by 2.00 p.m. Coincidentally,  

certain objections having  been raised to the  

nomination of the Election Petitioner,  

consideration of the same was also deferred to  

11.00 a.m. of 3.7.2012. All the remaining  

nomination papers were rejected on the date  

fixed for scrutiny i.e. 2.7.2012.  

5. On the next date i.e. 3.7.2012 at the  

appointed time, i.e. 11.00 a.m. the scrutiny of  

the nomination papers of the Election Petitioner

Page 63

63 were taken up and Returning Officer accepted  

the same.  Thereafter, within the time granted  

on the previous date i.e. 2.00 p.m., the  

respondent submitted a written reply to the  

objections raised by the petitioner alongwith a  

copy of a resignation letter dated 20.6.2012 by  

which the respondent claimed to have resigned  

from the office of the Chairman ISI. The scrutiny  

of the nomination papers of the respondent was  

taken up at 3.00 p.m. on 3.7.2012 and  

thereafter the same was accepted by the  

Returning Officer.

6. As per the Schedule of the election  

published by the Election Commission the poll  

took place on 19.7.2012 and the result of the  

counting was  announced on 22.7.2012  

declaring the respondent to be duly elected to  

the office of the President of India.

7. Contending that on all the relevant dates,  

including the date of scrutiny i.e. 2.7.2012, the

Page 64

64 respondent was holding the office of the  

Chairman of the Council of Indian Statistical  

Institute, Kolkata as well as the office of Leader  

of the House (Lok Sabha) and Leader of the  

Congress Party in the Lok Sabha,  which are  

offices of profit, the present Election Petition has  

been filed on the ground that by virtue of  

holding the aforesaid offices of profit the  

respondent was not qualified to be a candidate  

for the election to the office of the President of  

India and that the nomination submitted by the  

respondent was wrongly accepted by the  

Returning Officer.   According to the Election  

Petitioner, the election of the respondent was  

liable to be declared void on the said ground. In  

the Election Petition filed as well as in the short  

rejoinder that has been brought on record by the  

Election Petitioner the claim of the respondent  

that he had resigned from the office of the  

Chairman, ISI on 20.6.2012 has been disputed.

Page 65

65 According to the petitioner the resignation letter  

dated 20.6.2012 is forged and fabricated and  

has been subsequently brought into existence to  

counter the case put up by the Election  

Petitioner. Insofar as the other offices are  

concerned, according to the Election petitioner,  

though the respondent  had resigned from the  

Union Cabinet on 26.6.2012, he continued to  

remain a Member of Parliament and the Leader  

of the Congress Legislature Party in the Lok  

Sabha up to 25.07.2012 i.e. date of assumption  

of office as President of India. In fact the  

Respondent was shown as a Member of  

Parliament and as the Leader of the House in  

the official Website of the Lok Sabha till  

2.7.2012.  

8. The respondent i.e. the returned candidate  

has filed a short counter for the purposes of the  

preliminary hearing. According to the  

respondent the office of the Chairman, ISI, is not

Page 66

66 an office of profit as it does not carry any  

emoluments remuneration or perquisites. In any  

case, according to the respondent, he had  

submitted his resignation from the said office on  

20.6.2012  which had been accepted by the  

President of the Institute on the same day.  

Insofar as the other two offices are concerned it  

is the case of the respondent that he had held  

the said offices by virtue of being a Cabinet  

Minister of the Union. According to the  

respondent, under the Leaders and Chief Whips  

of Recognized Parties and Groups in Parliament  

(Facilities) Act, 1998 and the Rules framed  

thereunder the aforesaid offices do not carry any  

emoluments or perquisites or benefits beyond  

those attached to the office of a Cabinet Minister  

of the Union. Furthermore, according to the  

respondent, he had resigned from the Congress  

Party and the office of the Leader of the  

Legislature Party in the Lok Sabha on 20.6.2012

Page 67

67 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

Page 68

68 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

Page 69

69 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

Page 70

70 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

Page 71

71 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

Page 72

72 Supreme Court is contained in Order XXIII of  

Part III of the Supreme Court Rules. Order XXIII,  

Rule 1 contemplates institution of a suit by  

means of a plaint. After dealing with the  

requirements of a valid plaint, Order Rule 6  

provides that a plaint shall be rejected

(a) where it does not disclose a cause of action;  

(b) where the suit appears from the statement in  

the plaint to be barred by any law.  

14.  To make the narration complete it will be  

necessary to note that the other provisions of  

Part III of the Rules deal with the procedure that  

would apply to the disposal of a suit filed under  

Order XXIII Rule 1 and, inter alia, provide for :

a)  Issue and Service of Summons (Order XXIV) b)  Written statement set off and  counterclaims(Order XXV)

c)  Discovery and Inspection (Order XXVII)     d)  Summoning and Attendance of witnesses  (Order XXIX)     e)  Hearing of the suit (Order XXXI)

15. Order XXIII, Rule 6, as noticed above, was  

a part of the Rules alongwith Rule 13 as it

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73 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

Page 74

74 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.

Page 75

75 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

Page 76

76 incumbent thereof is either to be elected or  

nominated by virtue of his membership of the  

House or his position as a Cabinet Minister, as  

may be. The Election Petition insofar as the  

aforesaid offices are concerned, therefore, do not  

disclose any triable issue for a full length  

hearing under Order XXXIX, Rule 20 of the  

Rules.  

17.   The next question is with regard to the  

office of the Chairman of the Council of Indian  

Statistical Institute, Kolkata.  Whether the said  

office carries any remuneration and/or  

perquisites or the same is under the control of  

the Union Government as also the question  

whether the respondent  had resigned from the  

said office on 20.6.2012 are all questions of fact  

which are in dispute and, therefore, capable of  

resolution only on the basis of such evidence as  

may be adduced by the parties. The Court,  

therefore, will have to steer away from any of the

Page 77

77 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.  

Page 78

78 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

Page 79

79 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.

Page 80

80 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?

Page 81

81 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

Page 82

82 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

Page 83

83 comprehend a composite constitutional scheme.  

Keeping in view that the words in the  

Constitution should be read in their ordinary  

and natural meaning so that a construction  

which brings out the true legislative intent is  

achieved, Article 58 has to be read  

independently of Articles 84 and 102 and the  

purport of the two sets of Constitutional  

provisions have to be understood to be  

independent of each other. In fact such a view  

finds expression in an earlier opinion of this  

Court rendered   in Baburao Patel v. Dr. Zakir  

Hussain1 which is only being reiterated herein.

21.  The net result of the above discussion is  

that the Parliament (Prevention of  

Disqualification) Act, 1959 as amended by the  

Amendment Act No.31 of 2006 has no  

application insofar as election to the office of the  

President is concerned. The disqualification  

incurred by a Presidential candidate on account  1  (1968) 2 SCR 133

Page 84

84 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

Page 85

85 different provisions of Part III of the Supreme  

Court Rules, 1966.  

..............................J. [ Ranjan Gogoi ]

New Delhi, December 5, 2012  

Page 86

86 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