PURNO AGITOK SANGMA v. PRANAB MUKHERJEE

Citation: [2012] 11 S.C.R. 585

Court: Supreme Court of India

Bench: ALTAMAS KABIR, P. SATHASIVAM, S.S. NIJJAR, JASTI CHELAMESWAR, RANJAN GOGOI

Case summary

PURNO AGITOK SANGMA v. PRANAB MUKHERJEE.pdf

Judgment text

[2012) 11 S. C. R. 585 PURNO AGITOK SANGMA v. PRANAB MUKHERJEE (Election Petition No. 1 of 2012) DECEMBER 5, 2012 AND DECEMBER 11, 2012 [ALTAMAS KABIR, CJI, P. SATHASIVAM, SURINDER SINGH NIJJAR, J. CHELAMESWAR AND RANJAN GOGOi, JJ. ] Constitution of India, 1950: Art. 58(2) - Qualifications for election as President of India - Expression 'office of profit' - Connotation of - Respondent holding office of Chairman of Council of Indian Statistical Institute, Kolkata - Held (Per majority): In order to be an office of profit, the office must carry pecuniary benefits or must be capable of yielding pecuniary benefits, which is not so in respect of Chairman, /SI - It was not such a post, which was capable of yielding any profit so as to make it, in fact, an office ofprofit- In any event, by the 2006 amendment to s.

3 of the Parliament (Prevention of Disqualification) Act, 1959, the holder of the post of Chairman, /SI has been excluded from disqualification for contesting the Presidential election- Parliament (Prevention of Disqualification) Act, 1959 -s. 3. Art. 58(2) - Qualification for election as President of lndif'l - 'Office of profit' - Respondent holding the post of Leader of House in Lok Sabha - Held (Per majority): The disqualification contemplated on account of holding the post of Leader of the House was with regard to the provisions of Art. 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 - /!

J , any event, since the respondent had 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, challenge thrown by petitioner to respondent's election as President of India on the said ground loses its relevance - Leaders and Chief Whips of Recognized Parties and Groups in Parliament (Facilities) Act, 1998. Art. 58 - Presidential election - Held: Supreme Court has repeatedly cautioned that election of the returned candidate should not be lightly interfered with unless circumstancP. s so warrant. Supreme Court Rules, 1966: 0. 39, rr. 13 and 20 - Election petition challenging the election of respondent to the post of President of India - Held o (Per majority): In the facts and circumstances of the case, the election petition does not deserve a full and regular hearing . as contemplated under r. 20 of 0. 39 - Thus, the election petition cannot be set down for regular hearing and is dismissed under r.

13 of 0. 39 (J. Chelameswar and Ranjan Gogoi, JJ. dissenting) - Presidential and Vice Presidentil Elections Act, 1952 - ss. 14 to 20 - Supreme Court Rules, 1966 - 0. 39, rr. 13 and 20 - Code of Civil Procedure, 1908 - s. 141 - Constitution of India, 1950 - Art. 71 r/w Seventh Schedule, List I, Entry 72. The petitioner, who lost the Presidential election to the respondent, filed the instant election petition under Art. 71 of the Constitution of India, 1950 read with 0. 39 of the Supreme Court Rules 1966, challenging the election of the respondent to the post of the President of India on the ground that the respondent, at the time of filing of the nomination papers as a candidate for the Presidential election, held the office of Chairman of the Council of Indian Statistical Institute, Kolkata and was also the Leader of the House in the Lok Sabha; and since both the offices were offices of profit, the respondent stood disqualified from contesting the Presidential election in view of Art.

58(2) of the Constitution. The. challenge was based mainly on the allegation that on the date of filing of nominations, the respondent held "offices of profit", namely (i) Chairman of the Indian Statistical Institute, Kolkata; and (ii) Leader of the House in the Lok Sabha. The stand of the respondent was that he was holding neither of the posts on the date of filing of nominations i. e. 28. 6. 2012, as he had resigned from both the posts on 20. 6. 2012. The election petition was listed for hearing on preliminary point in terms of 0. 39, r. 13 of the Supreme Court Rules, 1966, as to whether the petition deserved a hearing as contemplated by r. 20 of 0. 39 of the 1966 Rules. Dismissing the petition, the Court HELD: PER ALTAMAS KABIR, CJI (for himself and for P. SATHASIVAM AND S. S. NIJJAR, JJ. ) 1. 1. Clause (1) of Art.

71 of the Constitution of India, 1950 provides that all doubts and disputes arising out of or in connection with the election of a President or Vice- Pres ident shall be inquired into and decided by the Supreme Court whose decision shall be final. Clause (3) of Art. 71 provides that subject to the provisidns of the Constitution, Parliament may, by law, regulate any matter, relating to or connected with the election of a President or Vice-President. In addition, the Presidential and Vice- Presidential Elections Act, 1952 (the Act) was enacted with the object of regulating certain matters relating to or connected with elections to the Office of President and Vice-President of India. Part Ill of the said Act, which contains ss. 14 and 14A, as also ss. 17 and 18, deals with disputes regarding elections to the posts of President and Vice-President of India.

Sections 14 and 14A of the Act specially vest the jurisdiction to try election petitions thereunder with the Supreme Court in the manner indicated therein. Sections 17 and 18 empower the Supreme Court to either dismiss the election petition or to declare the election of the returned candidate to be s void or to declare the election of the returned candidate to be void and the petitioner or any other candidate to have been duly elected. [para 47) [628-E-H; 629-A·B] 1. 2. In view of sub-s. (3) of s. 14 of the Act, the Supreme Court has framed Rules under Art. 145 of the Constitution. Rule 13 of 0. 39 of the Supreme Court Rules, 1966 provides that upon presentation of a petition relating to a challenge to election to the post of the President of India, the same is required to be posted before a Bench of the Court consisting of five Judges fQ_r preliminary hearing and to consider whether the petition deserved a regular hearing, as contemplated in r. 20 ! if 0.

39 and, in that context, such Bench may either dismiss the petition or pass appropriate order as it thought (it. [para 48) [629· C-E] 2. 1. 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, which was, in fact, the focus and raison d'etre of petitioner's stand. In fact, the said office was also not capable of yielding profit or pecuniary gain. It can also not be said that once a person is appointed as Chairman of the Indian Statistical Institute, 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 the Bye-laws of the Society either. In any event, by the 2006 amendment to . s. 3 of the Parliament (Prevention of Disqualification) Act, 1959, the holder of the post of Chairman of the Institute has been excluded from disqualification for contesting the Presidential election. [para 55, 58 and 59] [631-D; 632- G-H; 633-A-C] Shibu Soren Vs. Dayanand Sahay & Ors. 2001 (3) SCR 1020 =(2001) 7 SCC 425; and Jaya Bachchan Vs. Union of India & Ors. 2006 (2) Suppl. SCR 110 =(2006) 5 SCC 266; M. V. Rajashekaran &Ors. Vs. Vala/ Nagaraj & Ors. 2002 (1) SCR 412 =(2002) 2 SCC 704; Ravanna Subanna Vs. G. S. Kaggeerappa AIR 1953 SC 653; Madhukar G. E. Pankakar Vs. Jaswant Chobbildas Rajani 1976 (3) SCR 832 = (1977) 1 SCC 70; Karbhari Bhimaji Rohamare Vs. Shanker Rao Genuji Ko/he & Ors. 1975 (2) SCR 753 =(1975) 1 SCC 252; Pradyut Bordoloi Vs. Swapan Roy 2000 (5) SuppL SCR 525 =(2001) 2 SCC 19; Ashok Kumar Bhattacharyya Vs. Ajoy Biswas &Ors.

1985 (2) SCR 50 =(1985) 1 SCC 151 Consumer Education & Research Society vs. Union of India & Ors. 2009 (13) SCR 664 =(2009) 9 SCC 648; Kanta Kathuria Vs. Manak Chand Surana 1970 (2) SCR 835 = (1969) 3 SCC 268; Indira Nehru Gandhi Vs. Raj Narain 1976 SCR 347 =1975 (Supp) SCC 1; Union of India & Ors. Vs. Gopal Chandra Mishra & Ors. 1978 (3) SCR 12 =(1978(2) SCC 301; Moti Ram Vs. Param Dev 1993 (2) SCR 250 = (1993) 2 SCC 725 - referred to. 2. 2. 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. However, the disqualification contempl! lted on account of holding the post of Leader of the House was with regard to the provisions . of Art. 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 had tendered his resignation from the said post prior to filing of his nomination papers, which had been 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. [para 56) [631-E, G-H; 632-A- B] 2. 3. The Constitutional Scheme, as mentioned in the Explanation to Clause (2) of Art. 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. Art.

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. [para 57) [632-C-E] 2. 4. The argument that the provisions of Art. 102, as well as Art. 58 of the Constitution could not save a person elected to the office of President from disqualification if he held an office of profit, loses its significance 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. [para 57) [632-E-F] 2. 5.

In the facts and circumstances of the case, the election petition does not deserve a full and regular hearing as contemplated under r. 20 of 0. 39 of the Supreme Court Rules, 1966. It can also not be said that s. 141 of the Code of Civil Procedure, 1908 is required to be incorporated into a proceeding taken under 0. 39 of A the Supreme Court Rules read with Part Ill of the Presidential and Vice-Presidential Elections Act, 1952, which includes ss. 14 to 20 of the said Act and Art. 71 of the Constitution of India. This Court is not inclined, therefore, to set down the election petition for regular B hearing and the same is dismissed under r. 13 of 0. 39 of the Supreme Court Rules, 1966. [para 60 and 62] [633- E-F, H; 634-A] Mange Ram Vs.. Brij Mohan & Ors. 1983 (3) SCR 525 = (1983) 4 sec 36 - referred to. c 2. 6. 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.

[para 61] [633-G] D Charan Lal Sahu Vs. Nee/am Sanjeeva Reddy 1978 (3) SCR 1 = (1978) 2 SCC 500; Mithilesh Kumar Vs. R. Venkataraman & Ors. 1988 SCR 525 =(1987) Supp. SCC 692 - cited. E Per Chelameswar. J. : It cannot be said that the instant election petition does not deserve a regular hearing. Reasons for such view shall be pronounced shortly. [646-G] F Per Ranjan Gogoi. J. (Dissenting, but partly concurring): 1. 1. The short question that has arisen for determination in the election petition, at this stage, is whether the same deserves a regular hearing under r. 20 G of 0. 39 of the Supreme Court Rules, 1966. [para 2] [634- C] 1. 2. Art. 71 of the Constitution provides for matters relating to, or connected with, the election of the H President or the Vice President. In exercise of the power conferred by Art. 71 (3) read with Entry 72 of List I of the Seventh Schedule to the Constitution, Parliament has framed the Presidential and Vice-Presidential Election Act, 1952, s.

14 (1) whereof provides that no election shall be called in question except by presenting an election petition to the authority specified in sub-s. (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 Ill of the Act and such Rules as may be made by the Supreme Court under Art. 145 of the Constitution. [para 9-1 O] [637-C, D-F] 1. 3. By virtue of powers conferred by Art. 145 of the Constitution, the Supreme Court has framed the Supreme Court Rules, 1966 (the Rules), r. 34 of 0. 39 whereof 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 said procedure is contained in 0. 23 of Part Ill of the Rules. Order 23, r. 1 contemplates institution of a suit by means of a plaint. After dealing with the requirements of a valid plaint, 0. 23, r.

6 provides that ,a plaint shall be rejected (a) where it does not disclose a : cause of action; and (b) where the suit appears from the statement in the plaint to be barred by any law. [para 11 and 13] [638-B; 639-D,F] 1. 4. A preliminary hearing for determination of the question as to whether an election petition deserves a regular hearing under r. 20 did not find any place in the Ru~s till insertion of r. 13 in the present form w. e. f. 20. 12. 1997. Order 23, r. 6 was a part of the Rules alongwith r. 13 as it originally existed. Thus, insertion of r_13 providing for a preliminary hearing was made despite the existence of the provisions of 0. 23, r. 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 r. 6 of 0. 23. [para 13 and 15] [639-C-D; 640- C-D] 1. 5. Therefore, a preliminary hearing under 0. 39, r.

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 regular hearing under r. 20, would be called for in the preliminary hearing under r. 13 of 0. 39. In the course of such enquiry the Court must be satisfied that though the election petition discloses a clear cause of action and raises triable issue(s), yet, a trial of the issues raised will not be necessary or justified inasmuch 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 r. 20 of 0. 39 in accordance with the provisions of Part Ill of the Rules. This is the scope and ambit of the preliminary hearing under 0. 39, r. 13 of the Rules and it is within these confines that the question raised by the parties, at this stage, have to be answered. [para 15] [640-D-H; 641-A] 2. 1. Under the provisions of the Leaders and Chief Whips of Recognized Parties and Groups in Parliament (Facilities) Act, 1998 and the Rules framed thereunder, 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 instant 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 Art. 58 (2) so as to make the holder of any such office incur the disqualification contemplated thereunder. Both the offices in question are offices connected with the Lok Sabha. Any incumbent thereof is either to be elected or nominated by virtue of his membership of the House or his position as a Cabinet Minister, as may be. The election petition insofar as the said offices are concerned, therefore, does not disclose any triable issue for a full length hearing under 0. 39, r. 20 of the Rules. [para 16] [641 ·B·E] 2. 2.

With regard to the office of the Chairman of the Council of Indian Statistical Institute, Kolkata, the question whether the said office carries any remuneration and/or perquisites or the same is under the control of the Union Government as also the question whether the respondent had resigned from the said office on 20. 6. 2012, are all questions of fact which are in dispute and, therefore, capable of resolution only on the basis of such evidence as may be adduced by the parties. The Court, therefore, will have to steer away from any of the said issues at the present stage of consideration which is one under 0. 39, r. 13. Instead, for the present, the Court may proceed on the basis that the office in question is an office of profit which the respondent held on the relevant date.

In this regard the specific issue that has to be gone into is 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. For an effective examination of the issue, the provisions of Arts. 58, 84 and 102 of the Constitution would require a detailed notice and consideration. [para 17-18] [641-F-H; 642·8-D] 2. 3. Article 58(1 )(c) requires a Presidential candidate to be qualified for election as a Member of the House of the People. It cannot be said that whosoever is qualified for election as a Member of the House of the People under Art. 84 and does not suffer from any disqualification under Art. 102 becomes automatically eligible for election to the office of the President. Nor can it be said that the provisions of Arts. 58, 84 and 102 of the Constitution envisage a composite and homogenous scheme.

The similarities as well as the differences between Art. 58, on the one hand, and Arts. 84 and 102, on the other, are too conspicuous to be ignored or. over looked. Insofar as Art. 102 (1)(a) is concerned, though holding an office of profit is a disqualification for election as or being a Member of either House of Parliament, such a disqualification can be obliterated by a law made by 0 Parliament. Under Art. 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. Keeping in view that the words in the I Constitution should be read in their ordinary and natural meaning so that a co11struction which brings out the true legislative intent is achieved, Art. 58 has to be read independently of Arts. 84 and 102 and the purport of the two sets of Constitutional provisions has to be understood to be independent of each other.

[para 19-20] [644-F-G; 645-C-H] Baburao Patel v. Dr. Zakir Hussain (1968) 2 SCR 133 relied on 2. 4. Therefore, the Parliament (Prevention of Disqualification) Act, 1959 as amended by the Amendment Act No. 31 of 2006 has no application insofar as election to the office of the President is concerned. The disqualification incurred by a Presidential candidate on account of holding of an office of profit is not removed by the provisions of the said Act which deals with removal of disqualification for being chosen as, or for being a Member of Parliament. If, therefore, it is assumed that the office of Chairman, ISi is an office of profit and the respondent had held the said office on the material date(s), consequences adverse to the respondent, in so far as the result of the election is concerned, are likely to follow. The said facts will, therefore, be required to be proved by the election petitioner. [para 21] [646-8-D] 2. 5.

Thus, no conclusion that a regular hearing in the instant 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 0. 39, r. 13. The election petition, therefore, deserves a regular hearing under 0. 39, r. 20 in accordance with what is contained in the different provisions of Part Ill of the Supreme Court Rules, 1966. [para 21] [646-D-E] DECEMBER 11. 2012: Per Chelameswar. J. (Dissenting, but partly concurring): 1. 1. It is a long settled principle of law that the elections to various bodies created under the Constitution cannot be questioned except in accordance with the law made by the appropriate legislation. Art. 71 of tbe Constitution of India declares 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.

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 the Vice-President is fixed by the Constitution to be this Court. In exercise of power under Art. 71 (3) read with Art. 246(1) and Entry 72 of List I of the Seventh Schedule, Parliament made the Presidential and Vice-Presidential Elections Act, 1952, ('the Elections Act'), s. 14 whereof declares that the only mode of questioning the election of either the President or the Vice-President is by presenting an election petition to this Court. Section 14A prescribes that the election of either the President or the Vice-President could be challenged only on the grounds specified in ss. 18(1) and 19 of the Act. Further, Art.

145 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. [para 3,4 and 8] [647-C, E; 648-A-B-E-F; 649-A-B; 651-C; 652-A] 1. 2. It cannot be said that the Code of Civil Procedure, 1908 applies to the conduct of the election petition on hand in view of s. 141 thereof. The procedure that is required to be followed by this Court while exercising jurisdiction conferred by either the Constitution or Parliament by law could be laid down only by Parliament and until Parliament makes such a law, by the rules made by this Court. CPC is not a law made by Parliament but an "existing law" within the meaning of the expression under Art. 366 (10) and deriving its force from Art. 372 of the Constitution.

Further, this Court and the High Courts are not ordinary civil courts within the meaning of such an expression employed in various enactments attracting the bar of jurisdiction created by the statute. Therefore, it cannot be said that by virtue of the operation of s. 141 of the Code, this Court is bound by the procedure contained in the Code while exercising its extraordinary jurisdiction under Art. 71 of the Constitution. [para 9 and 11] [652-B-D; 654- D-F] 1. 3. This Court, in exercise of its authority under Art. 145, has made rules regulating the procedure of this Court, both in its original and appellate jurisdiction called the Supreme Court Rules, 1966 ['the Rules']. Insofar as the election petitions under the Elections Act are concerned, the procedure is prescribed under 0. 39 which occurs in Part VII of the Rules.

Rule 34 thereof stipulates that while adjudicating an election petition under the Elections Act, this Court is required to follow (as nearly as may be) the procedure contained in Orders 22 to 34 of Part Ill of the Rules regulating the proceedings before this Court in exercise of its original jurisdiction. Such a stipulation is expressly made subject to other provisions of 0. 39 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 Ill of the Rules) is made subject to the other provisions of 0. 39. Thus, if the procedure contained in Part Ill is inconsistent with any provisions contained in Part VII (0. 39), this Court is not obliged to follow the procedure contained in Part Ill. Apart from that, in view of r. 34 of 0. 39, it is always open to. this Court in a given case not to follow the procedure contained under 0. 39. [para 12] [655-A-F] 1.

5. Rules 13 to 15 of 0. 39 prescribe the procedure to be followed by this Court on the receipt of an election petition under the Act. A plain reading of r. 13 of 0. 39 indicates that on the due presentation of an election petition under the Ac;t 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. Rules 14 and 15 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 r. 14. An election petition under the Act is required to be listed for a preliminary hearing contemplated under r. 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 r.

20, the Court may either dismiss the election petition or pass any appropriate orders as it deems fit. [para 13-14] [655-G; 656-A-B-C-D] 1. 6. Therefore, 0. 39, r. 13 prescribes a procedure contrary to the stipulation contained under 0. 24, r. 1 which mandates that after due institution of an original suit before this Court, "summons shall be issued". It is worthwhile noticing that while 0. 24 requires summons to be issued, 0. 39, r. 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. [para 15] [657-E-F] 2. 1. Order 39. r. 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 conclusion whether the petition deserves a notice under r. 14 or publication under r. 15 and a regular hearing under r.

20 or any other appropriate order such as (perhaps) directing some formal defects in the petition to be cured etc. However, the discretion of the bench 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. [para 16-17] [657-G-H; 658-A-B-C] 2. 2. 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 for the purpose of the case is hand it can be said that 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.

In the instant case, 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 s. 18(1)(c) of the Elections Act 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. [para 21,23 and 27] [659-C, G; 660-A-B; 661-C] 3. 1. 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. However, the respondent took a categoric stand that he had resigned from both the offices before the crucial date i. e. on the date of scrutiny of the nomination papers (2. 7.

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 offices by the crucial date. The respondent also took a categoric stand that apart from his having had relinquished the 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. [para 29-30] [661-F-H; 662-A] 3. 2. The issue that is required to be examined for the purpose of the order on the preliminary hearing under r. 13 of 0. 39 of the Rules is whether the holding of either of the two offices - if really held on the crucial date - would render the respondent ineligible to contest the election in question? Further, the question would be, whether the two offices are offices of profit.

The question - whether the respondent did in fact hold those offices on the crucial date is a question of fact which cannot be the subject matter of enquiry at this stage. [para 31-32] [662- 8-D] . 3. 3. Article 58 provides 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 GovP-rnments inter alia would render the holder of such office of profit ineligible for election as President. The respondent's defence is that neither of the offices held by him are offices of profit falling under Art. 58 (2) which would render him ineligible to contest the election in question. [para 34-36] [662-E; 663-8-D] 3. 4. 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.

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. Claues (2) of Art. 58 disqualifies persons holding office of profit not only specified under Art. 102 (1) (a) but also under any local or any other authority which is subject to the control of either of the two governments. Further, 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. Thus, the Constitution prescribes more stringent qualifications for election to the office of President of India and the disqualification stipulated under Art. 58(2) is incapable of being exempted by a law made by Parliament. [para 38, 40-43] (665-A-B; 667-C-D; F-G; 668-A-B-F] Baburao Patel and others v. Dr. Zakir Hussain and others 1968 SCR 133 =AIR 1968 SC 904 - relied on 3. 5. The declaration made by Parliament in the Disqualification Act, 1959 would not provide immunity for a candidate seeking election to the office of the President of India if such a candidate happens to hold an office of profit contemplated under Art. 58(2). Even otherwise, the legal nature of Indian Statistical Institute and of the office of its Chairman is required to be examined.

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. [para 46- 47 and 54] [671-D-E, G; 673-C-D] B. S. Minhas v. Indian Statistical Institute and others 1984 (1) SCR 395 = (1983) 4 SCC 582; and M. V. Rajashekaran and others v. Vatal Nagaraj and others 2002 (1) SCR 412 = (2002) 2 sec 704 - referred to. 3. 6. Besides, 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 Art. 102(1)(a). But such an understanding is neither conclusive nor binding on this Court while interpreting the Constitution. Such inclusion appears to be an exercise - 'ex majure cautela'.

Interpretation of the Constitution and the laws is "emphatically the province and duty" of the judiciary. Therefore, the meaning of the expressions "office of profit" and "office of profit under the State Government/ Central Government" are required to be examined. [para 62-63] [676-D-F; 677-A-B] Shivamurthy Swami /namdar v. Agadi Sanganna Andanappa (1971) 3 SCC 870; Ravanna Subanna v. G. S. Kaggerappa, AIR 1954 SC 653; Shibu Soren v. Dayanand Sahay and others 2001 (3) SCR 1020 =(2001) 7 sec 425 referred to. 3. 7. The office of the Chairman of the Indian Statistical Institute, Kolkata, which is an authority for the purpose 0 of Art. 58(2), is an office of profit as explained by this Court in various judgments. Assuming that the tests relevant for determining whether an office of profit contemplated under Art. 58(2) are the same as the test laid down by this Court in the context of Art.

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 to be decided only after ascertaining all the relevant facts which are obviously in the exclusive knowledge either of the respondent or the Institute. The respondent in his short counter made a statement that he did not derive pecuniary gain by holding the said office. The veracity of such statement has not been subjected to any further scrutiny. After 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. [para 69-70] [679-C-F; 680-A-C] 3. 8.

The petitioner if permitted to inspect or seek discovery of records of the Indian Statistical Institute 111ight or might not secure information to demonstrate 8 truth or otherwise of the respondent's affidavit. 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 Constitution creates only one forum for the adjudication of such disputes. All other avenues are closed. By holding that the election petition does not deserve a regular hearing contemplated under r. 20 would not be consistent with the requirement that justice must not only be done but it must also appear to have been done. [para 70-71] [680-D-F] 3. 9.

If 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, the petitioner cannot 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. The CPC does not apply to the election petition. The rules framed by this Court under Art. 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. [para 73] [681-C·E] 3. 10.

Similarly, accepting the statement of the respondent that he did not derive any pecuniary benefit by virtue of his having had been Chairman of 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 A discovery is permitted would be a denial of equality of the law to the petitioner guaranteed under Art. 14 of the Constitution. Such facility is afforded to every litigant pursuing litigation in a court of civil judicature in this country. Therefore, it cannot be said that the election B petition does not deserve a regular hearing. [para 74] [681-G-H; 682-A] Case Law Reference: Per Altamas Kabir, CJI. c 2001 (3) SCR 1020 referred to para 16 2006 (2) Suppl.

SCR 110 referred to para 17 2002 (1) SCR 412 referred to para 18 D 1978 (3) SCR 1 cited para 22 1988 SCR 525 cited para 24 1983 (3) SCR 525 referred to para 28 E AIR 1953 SC 653 referred to para 28 1976 (3) SCR 832 referred to para 29 1978 (3) SCR 12 referred to para 30 1993 (2) SCR 250 referred to para 31 F 2009 (13) SCR 664 referred to para 37 1970 (2) SCR 835 referred to para 38 1976 SCR 347 referred to para 38 G 1975 (2) SCR 753 referred to para 39 Per Ranjan Gogoi, J. (1968) 2 SCR 133 relied on para 20 H Per J. Chelameswar, J, 1968 SCR 133 relied on para 44 1984 (1) SCR 395 relied on para 49 2002 (1) SCR 412 relied on para 55 (1971) 3 sec 870 referred to para 64 AIR 1954 SC 653 referred to para 64 2001 (3) SCR 1020 referred to para 65 CIVIL ORIGINAL JURISDICTION : Under Article 71 of the Constitution of India. Election Petition No. 1 of 2012. Goolam E. Vahanvati, A. G. , Ram Jethmalani, Satya Pal Jain, Harish N. Salve, Pravin H. Parekh, S. S. Shamshery, Dheeraj Jain, P. V.

Yogeswaran, Lata Krishnamurthi, P. R. Mala, Subhashish R. Soren, Pranav Diesh, Karan Kalia, Ashish Dixit, V. M. Vishnu, Bharat Sood, Bhakti Vardhan Singh, Devadatt Kamat, Rohit Sharma, Anoopam N. Prasad, Nizam Pasha, Anandh Kannan, Sameer Parekh, E. R. Kumar, Sonali Basu Parekh, Rajat Nair, Vishal Prasad, Utsav Trivedi, Abhishek Vinod Deshmukh (for Parekh & Co. ) Meenakshi Arora for the appearing parties. The Judgments & Order of the Court was delivered by ALTAMAS KABIR, CJI. ·1,. The Petitioner herein was a candidate in the Presidential elections. ~eld on 19th July, 2012, the results whereof were de<! lared on 22nd July, 2012. The Petitioner and the Respondent were the only two duly nominated candidates. The Respondent received votes of the value of 7,13,763 and was declared elected to the Office of the President of India. On the other hand, the Petitioner received votes of the value of 3,15,987. [ALTAMAS KABIR, CJI. ] 2.

The Petitioner has challenged the election of the Respondent as President of India on the ground that he was not eligible to contest the Presidential election in view of the provisions of Article 58 of the Constitution of India, which is extracted hereinbelow :- "58. Qualifications for election as President. - (1) No person shall be eligible for election as President unless he - (a) is a citizen of India, (b) has completed the age of thirty-five years, and (c) is qualified for election as a member of the House of the People. (2) A person shall not be eligible for election as President if he holds any office of profit under the Government of India or the Government of any State or under any local or other authority subject to the control of any of the said Governments. Explanation.

-For the purposes of this article, a person shall not be deemed to hold any office of profit by reason only that he is the President or Vice President of the Union or the Governor of any State or is a Minister either for the Union or for any State. " 3. According to the Petitioner, at the time of filing the nomination papers as a candidate for the Presidential elections, the Respondent held the Office of Chairman of the Council of Indian Statistical Institute, Calcutta, hereinafter referred to as the "Institute", which, according to him, was an office of profit. It appears that at the time of scrutiny of the nomination papers on 2nd July, 2012, an objection to that effect had been raised before the Returning Officer by the Petitioner's authorized representative, who urged that the nomination papers of the Respondent were liable to be rejected.

In response to the said submission, the representative of the Respondent sought two days' time to file a reply to the objections raised by the Petitioner. Thereafter, on 3rd July, 2012, a written reply was submitted on behalf of the Respondent to the objections raised by the Petitioner before the Returning Officer, along with a copy of a resignation letter dated 20th June, 2012, whereby the Respondent claimed to have resigned from the Chairmanship of the Institute. A reply was also filed on behalf of the Respondent to the objections raised by Shri Charan Lal Sahu. The matter was, thereafter, considered by the Returning Officer at the time of scrutiny of the nomination papers on 3rd July, 2012, when the Petitioner's representative even questioned the genuineness· of the resignation letter submitted by the Respondent to the President of the Council of the Institute, Prof. M. G. K. Menon. 0 4.

Having considered the submissions made on behalf of the parties, the Returning Officer, by his order dated 3rd July, 2012, rejected the Petitioner's objections as well as the objections raised by Shri Charan Lal Sahu, and accepted the Respondent's nomination papers. Accordingly, on 3rd July, 2012, the Petitioner and the Respondent were declared to be the only two duly nominated candidates for the Presidential election. 5. Immediately after the rejection of the Petitioner's objection to the Respondent's candidature for the Presidential elections, on 9th July, 2012, a petition was submitted to the Election Commission of India, under Article 324 of the Constitution, praying for directions to the Returning Officer to re-scrutinize the nomination papers of the Respondent and to decide the matter afresh after hearing the Petitioner.

The Election Commission rejected the said petition as not being maintainable before the Election Commission, since all disputes relating to Presidential elections could be inquired into and decided only by this Court. Thereafter, as indicated [ALTAMAS KABIR, CJI. ] hereinabove, the Presidential elections were conducted on 19th July, 2012, and the Respondent was declared elected to the Office of the President of India on 22nd July, 2012. 6. Aggrieved by the decision of the Returning Officer in accepting the nomination papers of the Respondent as being 8 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 'IS contemplated in Rule 20 of this Order may dismiss the petition or pass any appropriate order as the Court may cleem 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 Ill of the Presidential and Vice-Presidential Elections Act, 1952, the Election Petition filed by the Petitioner was listed for hearing on the preliminary point as to whether the petition deserved a hearing, as contemplated by Rule 20 of Order XXXIX, which provides as follows : "20.

Every petition calling in question an election shall be posted before and be heard and disposed of by a Bench of the Court consisting of not less than five Judges. " 8. Mr. Ram Jethmalani, learned Senior Advocate, appearing for the Petitioner, submitted that the Respondent's election as President of India, was liable to be declared as void mainly on the ground that by holding the post of Chairman of the Indian Statistical Institute, Calcutta, on the date of scrutiny of the nomination papers, the Respondent held an office of profit, which disqualified him from contesting the Presidential election. 9. Mr. Jethmalani urged that apart from holding the office of the Chairman of the aforesaid Institute, the Respondent was also the Leader of the House in the Lok Sabha which had been declared as an office of profit.

Urging that since the Respondent was holding both the aforesaid offices, which were offices of profit, on the date of filing of the nomination papers, the Respondent stood disqualified from contesting the Presidential election in view of Article 58(2) of the Constitution. 10. Mr. Jethmalani submitted that Article 71 of the Constitution provides that all doubts and disputes arising out of or in connection with the election of a President or Vice- President shall be inquired into and decided by the Supreme Court whose decision is to be final. Mr. Jethmalani submitted that there were sufficient doubts to the Respondent's assertion that on the date of filing of his nomination papers, he had resigned both from the office of Chairman of the Indian Statistical Institute, Calcutta, and as the Leader of the House in the Lok Sabha, on 20th June, 2012. Mr.

Jethmalani urged that the doubt which had been raised could only be dispelled by a full-fledged inquiry which required evidence to be taken and cross-examination of the witnesses whom the Respondent might choose to examine. Accordingly, Mr. Jethmalani submitted that the instant petition would have to be tried in the same manner as a suit, which attracted the provisions of Section 141 of the Code of Civil Procedure, which reads as follows: "141. Miscellaneous Proceedings. - The procedure provided in this Code in regard to suit shall be followed, [ALTAMAS KABIR, CJI. ) 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 8 Constitution.

" In addition, learned counsel also referred to Rule 34 of Order XXXIX of the Supreme Court Rules, 1966, which provides as follows :- "Order XXXIX, Rule 34 Subject to the provisions of this Order or any special order or direction of the Court, the procedure of an Election Petition shall follow as nearly as may be the procedure in proceedings before the Court in exercise of its Original Jurisdiction. " 11. Mr. Jethmalani pointed out that in the Original Jurisdiction cf the Supreme Court, provided for in Order XXll of the Supreme Court Rules, 1966, the entire procedure for institution and trial of a suit has been set out, providing for all the different stages in respect of a suit governed by the Code of Civil Procedure. Mr.

Jethmalani submitted that the making of the procedure for trial of Election Petitions akin to that of the Original Jurisdiction of the Supreme Court, was a clear indication that the matter must be tried as a suit, if under Rule 13 of Order XXXIX, the Court consisting of 5 Judges was satisfied at a preliminary inquiry that the matter deserved a regular hearing, as contemplated in Rule 20 of the said Order. 12. For the sake of comparison, Mr. Jethmalani referred to Section 87 of the Representation of the People Act, 1951, laying down the procedure for the trial of Election Petitions and providing that every Election Petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure to the trial of suits. Mr. Jethmalani urged that in matters relating to election disputes it was the intention of the Legislature to have the same tried as regular suits following the procedure enunciated in Section 141 C. P. C. 13.

Mr. Jethmalani then drew our attention to Article 102 8 of the Constitution and, in particular, Clause 1(1)(a) thereof, which, inter alia, provides as follows :- "102. (1) A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament . {fil if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder; (b)........... . (c)............ (d)........... . (e)............ Explanation: For the purposes of this clause a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State by reason only that he is a Minister either for the Union or for such State. " 14. Mr.

Jethmalani submitted that language similar to the above, had been incorporated in Article 58(2) of the Constitution, which also provides that a person shall not be eligible for election as President, if he holds any office of profit under the Government of India or the Government of any State or under any local or other authority, subject to the control of any of the said Governments. Mr. Jethmalani submitted that as in Explanation to Article 102, the Explanation to Clause (2) of Article 58 also indicates that a person shall not be deemed to [ALTAMAS KABIR, CJI. ] 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 tl'le Respondent had actually resigned from the post of Chairman of the Institute on 20th June, 2012, or even from the Membership of the Congress Party, including the Working Committee, and from the office of the Leader of the Congress Party in Lok Sabha on the same date, as contended by him. Mr. Jethmalani submitted that from the copy of the letter addressed to Professor M. G. K. Menon, President of the Institute, it could not be ascertained as to whether the endorsement made by Professor Menon amounted to acceptance of the Respondent's resignation or receipt of the letter itself.

Learned counsel urged that this was another case of "doubf' within the meaning of Article 71 of the Constitution of India which required the Election Petition to be tried as suit for which a detailed hearing was required to be undertaken by taking evidence and allowing for cross-examination of witnesses. 16. It was also submitted that the expression "office of profit" has not been conclusively explained till today under the Presidential and Vice-Presidential Elections Act, 1952, nor any other pre-independence statute, and the same required to be resolved by this Court. In this regard, Mr. Jethmalani referred to the decision of a three-Judge Bench of this Court in the case of Shibu Soren Vs. Dayanand Sahay & Ors. [(2001) 7 SCC 425], in which the aforesaid expression came to be considered and in interpreting the provision of Articles 102(1)(a) and 191(1)(a), this Court held that such interpretation should be realistic having regard to the object of the said Articles.

It was observed that the expression "profit" connotes an idea of some pecuniary gain other than "compensation". Neither the quantum of amount paid, nor the label under which the payment is made, may always be material to determine whether the office is one of profit. This Court went on further to observe that mere use of the word "honorarium" cannot take the payment out of the concepf of profit, if there is some pecuniary gain for the recipient. It was held in the said case that payment of an honorarium, in addition to daily allowances in the nature of compensatory allowances, rent-free accommodation and chauffeur driven car at State expense, were in the nature of remuneration and is a source of pecuniary gain and, hence, constituted profit. Mr. Jethmalani urged that it was on the basis of such observation that the Election Petition in the said case was allowed. 17. Mr. Jethmalani also referred to the decision of this Court in the case of Jaya Bachchan Vs. Union of India & Ors.

[(2006) 5 SCC 266], wherein also the phrase "office of profit" fell for interpretation within the meaning of Article 102 and other provisions of the Constitution with regard to use of the expression "honorarium" and its effect regarding the financial status of the holder of office or interest of the holder in profiting from the office. It was observed that what was relevant was whether the office was capable of yielding a profit or pecuniary gain, other than reimbursement of out-of-pocket/actual expenses, and not whether the person actually received monetary gain or did not withdraw the emoluments to which he was entitled. The three-Judge Bench, which heard the matter, held that an office of profit is an office which is capable of yielding profits of pecuniary gain and that holding an office under the Central or State Government, to which some pay, salary, emolument, remuneration or non-compensatory allowance is attached, is "holding an office of profit".

However, the question whether a person holds an office of profit has to be interpreted in 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 [ALTAMAS KABIR, CJI. ] is whether the office is capable of yielding a profit or pecuniary gain and not whether the person actually obtained any monetary gain therefrom. 18. In the same connection, reference was also made to the decision of this Court in M. V. Rajashekaran & Ors. Vs. Vatal Nagaraj & Ors. [(2002) 2 SCC 704], where also the expression "office of profit" fell for consideration. 19. Mr. Jethmalani urged that having regard to the above, the Election Petition deserved a regular hearing, as contemplated in Rule 20 of Order XXXIX of the Supreme Court Rules, 1966. 20. Appearing for the Respondent, Mr.

Harish Salve, learned Senior Advocate, submitted that election to the office of the President of India is regulated under the provisions of 0 the Presidential and Vice-Presidential Act, 1952, hereinafter referred to as the "1952 Act", and, in particular Part Ill 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 Ele. ction Petitions under the 1952 Act with the Supreme Court, in the manner prescribed in the said sections. Accordingly, the challenge to a Presidential election would have to be in compliance with the provisions of Order XXXIX of the Supreme Court Rules, 1966, which deals with Election Petitions under Part Ill 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). (2012] 11 S. C. R. (2) The authority having jurisdiction to try an Election Petition shall be the Supreme Court. (3) Every Election Petition shall be presented to such authority in accordance with the provisions of this Part and of the rules made by the Supreme Court under article 145. 14A.

(1) An Election Petition calling in question an election may be presented on one or more of the grounds specified in sub-section (1) of section 18 and section 19, to the Supreme Court by any candidate at such election, or- (a) in the case of Presidential election, by twenty or more electors joined together as petitioners ; (b) in the case of Vice-Presidential election, by ten or more electors joined together as petitioners. (2) Any such petition may be presented at any time after the date of publication of the declaration containing the name of the returned candidate at the election under section 12, but not later than thirty days from the date of such publication. " 21. Mr. Salve submitted that the nomination papers of the respective candidates had been scrutinized by the Returning Officer in accordance with the provisions of Section 5A of the 1952 Act. Referring to Sub-Section (3) of Section 5E, Mr.

Salve submitted that after completing all the formalities indicated in Sub-Section (3), the Returning Officer had accepted the nomination papers of the Respondent as valid, which, thereafter, gave the Respondent the right to contest the election. Mr. Salve submitted that Section 14 of the 1952 Act was enacted under Clause (3) of Article 71 of the Constitution which provides that subject to the provisions of the Constitution, [ALTAMAS KABIR, CJI. ] Parliament may by law regulate any matter relating to or connected with the election of a President or Vice-President. 22. Mr. Salve submitted that the election of the President and Vice-President has been treated on a different level in comparison with the election of Members of Parliament and other State Legislatures.

While Article 102 deals with election of Members to the House, Article 58 deals with the election of the President and the Vice-President of India, which has to be dealt with strictly in accordance with the law laid down in this regard. In support of his aforesaid contention, Mr. Salve referred to a Seven-Judge Bench decision of this Court in the case of Charan Lal Sahu Vs. Nee/am Sanjeeva Reddy [(1978) 2 SCC 500], where the alleged conflict between Article 71 (1) of the Constitution with Article 58 thereof was considered by this Court and it was held that Article 58 only provides for the qualification regarding the eligibility of a candidate to contest the Presidential elections and had nothing to do with the nomination of a candidate which required 10 proposers and 10 seconders. The provisions of Sections 5B and 5C of the 1952 Act were also considered and held not to be in conflict with Article 14 of the Constitution.

Article 71 (3) of the Constitution was also seen to be a law by which Parliament could regulate matters connected with the Presidential elections, including those relating to election disputes arising out of such an election. Relying on its own earlier judgments, the Hon'ble Judges of the Bench held that there was no force in the attack to either Article 71 (3) of the Constitution or the provisions of Sections 5B or 5C of the 1952 Aet. 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 8 of the Constitution had been so framed in accordance with Section 14 of the 1952 Act, the provisions of Section 141 of the Code of Civil Procedure could not be imported into deciding a dispute relating to a challenge to the election of the President. 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. 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. R.

am Jethmalani that the office itself may not provide for any direct benefit but that there could be indirect benefits which made ii 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 [ALTAMAS KABIR, CJI. ] not an office of profit, which would disqualify tlim from being eligible to contest as a candidate for the office of President of India. 28. As to the holding of the post of Leader of the House, Mr.

Salve submitted that the holder of such a post is normally 8 a Cabinet Minister of the Government and is certainly not an appointee of the Government of India so as to bring him within the bar of Clause (2) of Article 58 of the Constitution of India. In support of his contention that the provisions of Section 141 CPC would not apply in the facts of this case, Mr. Salve referred to the decision of this Court in Mange Ram Vs. Brij Mohan & Ors. [(1983) 4 SCC 36], wherein the Code of Civil Procedure and the High Court Rules regarding trial of an Election Petition, were considered, and it was held that where necessary, the provisions of the Civil Procedure Code could be applied, but only when the High Court Rules were not sufficiently effective for the purpose of the production of witnesses or otherwise during the course of trial of the petition. Mr. Salve also referred to a three-Judge Bench decision of this Court in Ravanna Subanna Vs. G. S.

Kaggeerappa [AIR 1953 SC 653], which was a case from Mysore relating to the election of a Councilor under the Mysore Town Municipal Act, 1951. Of the two questions raised, one of the points was with regard to the question as to whether the Appellant therein could be said to be holding an office of profit under the Government thereby attracting the provisions relating to disqualification. On a plain meaning of the expression "office of profit", Their Lordships, inter alia, observed that the word "profit" connotes the idea of pecuniary gain and if there really was a gain, its quantum or amount would not be material, but the amount of money receivable by a person in connection with the office he holds may be material in deciding whether the office really carries any profit. Their Lordships went on further to observe as follows : "From the facts stated above, it can reasonably be inferred that the fee of Rs.

6 which the non-official Chairman is entitled to draw for each sitting of the Committee, he attends, is not meant to be a payment by way of remuneration or profit, but it is gain to him as a consolidated fee for the out-of-pocket expenses which he has to incur for attending the meetings of the Committee. We do not think that it was the intention of the Government which created these Taluk Development Committees which were to be manned exclusively by non-officials, that the office of the Chairman or of the Members should carry any profit or remuneration. " Mr. Salve urged that in the instant case as well, the post of Chairman of the Indian Statistical Institute, Calcutta, did not yield any profit to the holder of the post, which was entirely meant to be an honour bestowed on the holder thereof. Mr. Salve also referred to the decision of this Court in the case of Shibu Soren (supra) which had already been referred to by Mr.

Ram Jethmalani, and pointed out that Article 102(1)(a) of the Constitution of India deals with disqualification from being chosen as a Member of the two Houses or from being a Member of either House of Parliament and did not affect the post of President of India. 29. The last decision referred to by Mr. Salve in the above context was that of this Court in Madhukar G. E. Pankakar Vs. Jaswant Chobbi/das Rajani [(1977) 1 SCC 70], where also the expression "office of profit" came to be considered. In paragraph 31 of the said decision, reference was made to the earlier decision of this Court in Ravanna Suvanna's case (supra) and the ratio of the said decision was tested in relation to Insurance Medical Practitioners. It was held that the petitioner did derive profit, but the question was whether he held an office under the Government.

Since mere incumbency in office is no disqualification, even if some sitting fee or insignificant honorarium is paid, it was ultimately held that the ban on candidature or electoral disqualification, must have a substantial link with the end, may be the possible misuse of [ALTAMAS KABIR, CJI. ) position as Insurance Medical Practitioner in doing his duties as Municipal President. 30. On the other question with regard to the acceptance of the Respondent's resignation from the post of Chairman of the Institute held by the Respondent, Mr. Salve submitted that the alleged discrepancy in the signatures of the Respondent in his letter of resignation addressed to the President of the Institute with his other signatures, was no ground to suspect that the said document was forged, particularly when it was accepted by the Respondent that the same was his signature and that he used both signatures when signing letters and documents. In this regard, Mr.

Salve referred to the Constitution Bench decision of this Court in Union of India & Ors. Vs. Gopal Chandra Mishra & Ors. [(1978(2) SCC 301], wherein the question as to when a resignation takes place or is to take effect, has been considered in some detail. While considering the various aspects of resignation, either with immediate effect or from a future date, one of the propositions which emerged from the ultimate conclusions arrived at by this Court was that in view of the provisions of Article 217(1)(a) and similar provisions in regard to constitutional functionaries like the President, Vice-President, Speaker, etc. the resignation once submitted and communicated to the appropriate authority becomes complete and irrevocable and acts ex proprio vigore. The only difference is when resignation is submitted with the intention of resigning from a future date, in such case it was held that l>efore 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 sec 725), where a similar question arose with regard to resignation from the office of the Chairman of the Himachal Pradesh Khadi and Village Industries Board, with 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 ti»-· Head of the Department in the Government of Himachal Pradesh. 32. On a different note, Mr. Salve pointed out from the Election Petition itself that the allegations made in paragraph 2(XVI) were verified by the Petitioner, both in the verification and the affidavit affirmed on 20. 8. 2012, as being true and correct on the basis of information received and believed to be correct. Mr.

Salve submitted that under Rule 6 of Order XXXIX of the Supreme Court Rules, allegations of fact contained in an Election Petition challenging a Presidential election were required to be verified by an affidavit to be made personally by the Petitioner or by one of the Petitioners, in case there were more than one, subject to the condition that if the Petitioner was unable to make such an affidavit for the reasons indicated in the proviso to Rule 6, a person duly authorized by the Petitioner would be entitled, with the sanction of the Judge in Chambers, to make such an affidavit. Mr. Salve submitted that in the instant case there was no such occasion for the verification to be done by the Petitioner. 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 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 [ALTAMAS KABIR, CJI. ] 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 excluded from the disqualification provisions of Article 58(2) of the Constitution of India. Mr. Salve submitted that the aforesaid Act had been enacted to declare that certain offices of profit under the Government, including the post of Chairman in any statutory or non-statutory body, would not disqualify the holders thereof from being chosen as, or for being Members of Parliament as contemplated under Article 102(1)(a) of the Constitution. By virtue of the said amendment, a new Table was inserted after the Schedule to the Principal Act which would be deemed to have been inserted with effect from 4th April, 1959.

The Indian Statistical Institute, Calcutta, has been placed at Serial No. 4 of the Table. Accordingly, the submissions advanced by Mr. Jethmalani with regard to the Respondent holding an office of profit as Chairman of the Institute on the date of filing of nomination for election to the Office of President, were incorrect and the same were liable to be discarded. 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 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) 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 [ALTAMAS KABIR, CJI. ] Article 102(1)(a) includes the power of Parliament to enact such law retrospectively, as was held in Kanta Kathuria Vs. Manak Chand Surana ((1969) 3 SCC 268] and later followed in the decision rendered in Indira Nehru Gandhi Vs. Raj Narain (1975 (Supp) SCC 1].

Accordingly, if a person was under a disqualification at the time of his election, the provisions of Articles 101 (3)(a) and 103 of the Constitution \YOUId 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 Ko/he & Ors.

[(1975) 1 SCC 252], wherein this Court held that a Member of the Wage Board for the sugar industry constituted by the Government of Maharashtra, which was an honorary post and the honorarium paid to the Members was in the nature of a compensatory allowance, exercised powers which were essentially a part of the judicial power of the State. Such Members did not, therefore, hold an office under the Government. 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 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 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 sec 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 lncharge of the Agartala Municipality in the State of Assam, was not an employee of the Government and was at the relevant time holding an office of profit under a local municipality, which did not bring him within the ambit of Article 102(1 )(a) of the Constitution. 42.

The learned Attorney General submitted that the Disqualification Act is not a defining Act and was never meant to be and one cannot import the definition in the Schedule where only the Institute is mentioned. Sharing the sentiments expressed by Mr. Salve, the learned Attorney General submitted that the Election Petition was liable to be dismissed. . , [ALTAMAS KABIR, CJI. ] 43. Replying to the submissions made by Mr. Harish Salve and the learned Attorney General, Mr. Ram Jethmalani asserted that the 1959 Act was, in fact, a defining Act and falls under Entry 73 of the First List in the Seventh Schedule to the Constitution, which empowers the Parliament to legislate in regard to elections to Parliament, to the legislatures of the States and to the offices of President and Vice-President and the Election Commission. Mr. Jethmalani also reiterated that the Institute was controlled by the Central Government.

The Act under which the Institute was formed was an Act by the Central Government and the post of Chairman must, therefore, be held to be an office of profit under the Central Government. 44. Reiterating his earl