Judgement
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL
JURISDICTION ELECTION PETITION NO.1 OF 2012
Purno Agitok Sangma ..............................Petitioner
Versus
Pranab Mukherjee ....................................Respondent
Chelameswar, J.
1. I regret my inability to completely agree with the opinion of the majority
delivered by Hon.the Chief Justice.
2. The pleadings and submissions relevant for the present purpose are
elaborately mentioned in the judgment of Hon’ble the Chief Justice of India,
therefore, I do not propose to reiterate the same.
3. The procedure that is required to be followed in an election petition
calling in question the election of the respondent as the President of India is
the subject matter of controversy. It is a long settled principle of law in this
country that the elections to various bodies created under the Constitution
cannot be questioned except in accordance with the law made by the appropriate
legislation. Article 329 (b) declares that “no election to either House of
Parliament or to the House or either House of the Legislature of a State
(hereinafter collectively called ‘legislative bodies’) shall be called in
question except by an election petition presented to such authority and in such
manner as may be provided for by or under any law made by the appropriate
Legislatureâ€. Similarly, Article 71[1] declares all doubts and disputes
arising out of or in connection with the election of a President or
Vice-President shall be inquired into and decided by the Supreme Court. Article
71 (3) stipulates that Parliament may by law regulate any matter relating to or
connected with the election of a President or Vice-President and such
regulations by the Parliament is, however, subject to provisions of the
Constitution. In other words, while the forum for adjudication of disputes
pertaining to legislative bodies under the Constitution is required to be
determined by the appropriate legislature, the forum for the adjudication of
disputes pertaining to the election of the President and Vice-President is fixed
by the Constitution to be this Court. Whereas various other matters like the
grounds on which such elections could be challenged, the procedure that is
required to be followed in an election dispute are required to be provided by
law in the case of the members of the legislative bodies - by the appropriate
legislature and in the case of the President and Vice-President – only by the
Parliament. In the context of the election disputes pertaining to the members of
the legislative bodies, the authority to provide for such matters is vested in
the appropriate legislature in view of the language of Article 329, Entry 11A of
the III List, VII Schedule. Similarly, by virtue of Article 71 (3) read with
Article 246 (1) and Entry 72 of List I to the VII Schedule, such power vests
exclusively in the Parliament.
4. In exercise of such power, the Parliament made the Presidential and
Vice-Presidential Elections Act, 1952, (hereinafter referred to as ‘the
Elections Act’, for easy reference). Part III of the said Act deals with the
disputes regarding the election. Section 14 declares that the only mode of
questioning of the election of either the President or Vice- President is by
presenting an election petition to this Court. Section 14A[2] prescribes that
the election of either the President or Vice- President could be challenged only
on the grounds specified in Sections 18(1) and 19 of the Act. It also specifies
the persons who are authorized to raise such a question. It limits the right to
raise the question only to two categories of people – (1) the candidates at
such an election; (2) twenty or more electors in the case of the President and
ten or more electors in the case of the Vice-President. The said Section
stipulates a limitation of 30 days for presenting such an election petition
reckoned from the date of publication of the declaration contemplated under
Section 12 thereof. While Section 16 stipulates the reliefs that could be
claimed in an election petition, Section 15 provides as follows:- “Form of
petitions, etc., and procedure.- Subject to the provisions of this Part, rules
made [whether before or after the commencement of the Presidential and
Vice-Presidential Elections (Amendment) Act, 1977] by the Supreme Court under
article 145 may regulate the form of election petitions, the manner in which
they are to be presented, the persons who are to be made parties thereto, the
procedure to be adopted in connection therewith and the circumstances in which
petitions are to abate, or may be withdrawn, and in which new petitioners may be
substituted, and may require security to be given for costs.†It can be seen
from Section 15 that the Parliament purports to authorize this Court to frame
rules dealing with various aspects of the election petitions such as (1) the
manner in which the petitions are to be presented; (2) the persons who are
required to be made parties thereto; (3) the procedure to be followed in
conducting the election petitions; (4) the circumstances in which the petitions
are to abate or may be withdrawn, and (5) the circumstances in which the
petitioners may be substituted and may require security to be given for costs.
Similarly, in the context of the election petition calling in question the
election of a member of any one of the legislative bodies such procedure is
meticulously provided for by the Parliament under the Representation of the
People Act, 1951.
5. In my opinion both Sections 14(2) and 15 of the Elections Act, insofar as
they purport to vest the jurisdiction in and authorize this Court to frame rules
respectively with respect to the adjudication of the disputes pertaining to the
election of the President, are superfluous because Articles 71 and 145 of the
Constitution already expressly provide for the same.
6. Part V Chapter IV of the Constitution provides for the establishment,
jurisdiction etc of this Court. Original jurisdiction of this Court obtains
under Article 131 and 32 of the Constitution. Various other articles occurring
in the said Part vest both civil and criminal appellate jurisdiction of this
Court. Article 138[3] of the Constitution authorizes the Parliament to vest
further jurisdiction in the Supreme Court by law.
Such jurisdiction could either be original or appellate. It is axiomatic that
the authority of the legislature (Parliament in the context of this case) to
create jurisdiction takes within its sweep the authority to prescribe various
matters which are necessary incidents of the jurisdiction such as, the limits of
the jurisdiction – pecuniary, territorial etc., the procedure to be adopted in
the exercise of such jurisdiction etc.
7. Since the Constitution itself vests jurisdiction in this Court under
various heads and it also authorizes the Parliament to create/vest further
jurisdiction in this Court by law, the Constitution recognized the need for
regulating the procedure to be followed by this Court in exercise of such
jurisdiction whatever be the source of such jurisdiction. Therefore, Article 145
is incorporated. Article 145 postulates that the Parliament may by law stipulate
such procedure and in the absence of any such law this Court can prescribe the
procedure with the approval of the President of India.
8. Article 145[4] of the Constitution authorizes this Court to make rules for
regulating the practice and procedure of this Court with regard to its
jurisdiction, either original or appellate vested in this Court either by the
Constitution or law. Such authority of this Court is, however, expressly made
subject to the provisions of any law made by the Parliament and also subject to
the approval of the President of India.
9. The submission that the Code of Civil Procedure applies to the conduct of
the election petition on hand in view of section 141 of the CPC, in my view, is
required to be refuted. Because the procedure that is required to be followed by
this Court while exercising jurisdiction conferred by either the Constitution or
the Parliament by law could be laid down only by the Parliament and until the
Parliament makes such a law, by the rules made by this Court. CPC is not a law
made by the Parliament but an “existing law†within the meaning of the
expression under Article 366 (10) and deriving its force from Article 372 of the
Constitution.
10. The Code of Civil Procedure, 1908 (‘the Code’ for short) is an
enactment “consolidating the laws relating to the procedure of the Courts of
Civil Judicatureâ€. Though there is nothing express in the body of the Code
which declares that the Code applies to the Courts of Civil Judicature, such a
declaration is contained in the Preamble of the Code.
By a long established practice and interpretation of the successive Codes, it
is always understood that the Code of Civil Procedure applies to the proceedings
only in a Court of Civil Judicature. The first Code was made in 1859 which was
replaced by its successor (Act 10 of 1877). The brief history of the various
enactments which regulated the procedure of the Courts of Civil Judicature is
succinctly given in Mulla’s Code of Civil Procedure, 7th Edition, at page
2[5]. What exactly is a Court of Civil Judicature is not defined either under
the Code or under any other enactment. Such an expression is used in
contradistinction to the courts exercising jurisdiction in criminal cases. Nor
the word ‘court’ is defined under the Code. ‘Revenue Courts’ and Courts
constituted under the various laws dealing with Small Causes are not treated to
be Courts to which the Code is automatically applicable. (See: Sections 5, 7 and
8) The expression ‘Revenue Court’ is defined in Section 5(2)[6]. The nature
of the jurisdiction exercised either by the Revenue Courts or the Small Causes
Courts cannot be said to be anything other than civil jurisdiction. Even then
the Legislature in its wisdom thought it fit not to extend the application of
Code to these Courts. Therefore, the submission of Mr. Ram Jethmalani, learned
senior counsel for the petitioner, that in view of the declaration contained in
Section 141[7] of the Code, the Code applies to the conduct of the election
petition under the Elections Act, in my opinion, is untenable.
11. Yet another reason for such a conclusion is that in the context of ouster
of jurisdiction of civil courts under innumerable enactments, either of the
Parliament or of the State Legislatures, this Court consistently took the view
that this Court and the High Courts exercising jurisdiction under Article 32 or
under Article 226 exercise jurisdiction vested in them by the Constitution and,
therefore, the same cannot be taken away by any legislation short of a
Constitutional amendment. The implication flowing thereby is that they are not
ordinary civil courts within the meaning of such an expression employed in these
various enactments attracting the bar of jurisdiction created by the statute.
Therefore, I find it difficult to accept the submission that by virtue of the
operation of Section 141 of the Code this Court is bound by the procedure
contained in the Code while exercising its extraordinary jurisdiction under
Article 71 of the Constitution of India.
12. Then the question remains as to what is the procedure that is required to
be followed by this Court while adjudicating an election dispute under the
Elections Act. This Court, in exercise of its authority under Article 145, made
rules regulating the procedure of this Court, both in its original and appellate
jurisdiction called the Supreme Court Rules, 1966, hereinafter referred to as
‘the Rules’. Insofar as the election petitions under the Act are concerned,
the procedure is prescribed under Order XXXIX which occurs in Part VII of the
Rules. Rule 34[8] thereof stipulates that while adjudicating an election
petition under the Act, this Court is required to follow (as nearly as may be)
the procedure contained in Orders XXII to XXXIV of Part III of the Rules
regulating the proceedings before this Court in exercise of its original
jurisdiction[9]. Such a stipulation is expressly made subject to other
provisions of Order XXXIX or any special order or direction by this Court. The
stipulation that this Court is obliged to follow the procedure applicable to the
proceedings under the original jurisdiction of this Court (Part III of the
Rules) is made subject to the other provisions of Order XXXIX. In other words,
if the procedure contained in Part III is inconsistent with any provisions
contained in Part VII (Order XXXIX), this Court is not obliged to follow the
procedure contained in Part III. Apart from that, in view of the
clause…..â€or any special order or direction of the Court†….. occurring
under Rule 34 of Order XXXIX, it is always open to this Court in a given case
not to follow the procedure contained thereunder Order XXXIX. The circumstances
which justify the issuance of such “special orders or directions†by this
Court require a separate examination as and when required.
13. Therefore, the question is –what is the procedure that is required to
be followed by this Court on the receipt of an election petition under the Act?
Rules 13 to 15 of Order XXXIX prescribe the procedure to be followed by this
Court. While Order XXIV Rule 1 occurring under Part III of the Rules mandates
that when a suit is presented to this Court for adjudication in its original
jurisdiction “summons shall be issued to the defendant to appear and answer
the claimâ€. Rule 13[10] of Order XXXIX prescribes a different procedure. It
reads as follows:- “Upon presentation of a petition the same shall be posted
before a bench of the Court consisting of five Judges for preliminary hearing
and orders for service of the petition and advertisement thereof as the Court
may think proper and also appoint a time for hearing of the petition. Upon
preliminary hearing, the Court, if satisfied, that the petition does not deserve
regular hearing as contemplated in Rule 20 of this Order may dismiss the
petition or pass any appropriate order as the Court may deem fit.â€
14. A plain reading of Rule 13 indicates that on the due presentation of an
election petition under the Act to this Court, [1] the same shall be posted
before a bench of five Judges for a preliminary hearing and orders;
[2] such a hearing and orders are regarding the service of the petition and
advertisement thereof. Because Rules 14[11] and 15[12] respectively stipulate
that the notice of the presentation of the election petition under the Act is
required to be served on the various persons specified under Rule 14. The said
rule also provides for the method and manner of service. Whereas Rule 15
stipulates that the factum of the presentation of election petition under the
Act shall be published in the Official Gazette and also advertised in newspapers
at the expense of the petitioner, fourteen clear days before the date appointed
for hearing. However, the obligations stipulated in Rule 14 and 15 are made
expressly subject to orders to the contrary by the Court. It is for determining
whether the normal procedure prescribed under Rule 14 and 15 discussed above is
to be followed in a given case or not, an election petition under the Act is
required to be listed for a preliminary hearing contemplated under Rule 13.
Rule 13 further stipulates [3] upon such a preliminary hearing, if the Court
comes to the conclusion that the petition does not deserve a regular hearing,
contemplated under Rule 20, the Court may either dismiss the election petition
or pass any appropriate orders as the Court deems fit.
15. Therefore, Order XXXIX Rule 13 prescribes a procedure contrary to the
stipulation contained under Order XXIV Rule 1 which mandates that after due
institution of an original suit before this Court, “summons shall be
issuedâ€. It is worthwhile noticing that while Order XXIV requires summons to
be issued, Order XXXIX Rule 14 contemplates that only a notice of the
presentation of an election petition is to be issued. The distinction between
summons and notice is very subtle but real which would be beyond the need and
scope of this judgment to go into. I only take note of the distinction in the
language of the abovementioned rules and the existence of a legal distinction
pointed out.
16. It follows from the above discussion, Order XXXIX Rule 13 vests a
discretion in the bench of five Judges before whom the election petition under
the Act is posted for preliminary hearing to record a conclusion whether the
petition deserves a notice under Rule 14 or publication under Rule 15 and a
regular hearing under Rule 20 or any other appropriate order such as (perhaps)
directing some formal defects in the petition to be cured etc. I do not propose
to examine the full scope and amplitude of such “appropriate order†for the
purpose of this case as the same is not necessary.
17. However, it goes without saying that the discretion of the bench hearing
the election petition to record a finding that the election petition does not
deserve a regular hearing and, therefore, is required to be dismissed must be
exercised on rational grounds known to law for clear and cogent reasons to be
recorded. For such obligation is the only justification of the extraordinary
degree of protection and immunities granted to the judiciary by our
Constitution. Absence of rational grounds based on clear and cogent reasoning
would lead to a popular misconception that this branch of the Constitutional
governance is no different from the other two branches, a misconception which is
certainly not conducive to the credibility (of the legal system) which is the
ultimate strength of all judicial institutions.
18. Placing reliance on Order VII Rule 11 CPC, Shri Ram Jethmalani argued
that an election petition can be rejected even prior to the stage of issuance of
summons only when the election petition does not disclose a cause of action. He
submitted that under any circumstances it cannot reasonably be argued that the
election petition on hand does not disclose a valid cause of action. He further
argued that the question whether the petitioner would be able to establish the
truth of various allegations made by him in the election petition cannot be the
subject matter of enquiry under Rule 13 but the enquiry can only be confined to
- whether the allegations if proved do constitute sufficient cause of action to
enable the petitioner to claim the relief such as that are claimed in the
election petition?
19. On the other hand it is the case of the respondent that various factual
allegations made in the election petition even if proved to be true do not
disclose a cause of action entitling the petitioner to relief as claimed in the
election petition.
20. To examine the correctness of the above rival submissions, I deem it
appropriate to examine the circumstances under which this Court can dismiss an
election petition under the Act at the stage of preliminary hearing even before
issuing notice to the respondent under rule 13.
21. I am of the opinion that it is not possible to give an exhaustive list of
the circumstances in which this Court can render the finding that an election
petition does not require a regular hearing but it can be said that having
regard to the fact that an election petition is not a common law proceeding but
the creature of the statute, non-compliance with the mandatory requirements of
the statute under which the right to question an election under the Elections
Act is created is certainly one of the grounds on which election petition can be
dismissed at the stage of preliminary hearing.
22. For example, the right to question an election under the Elections Act is
available only to two categories of people as enumerated under section 14A which
is already taken note. In a case where the election petition is presented by
somebody other than who is entitled to question the election irrespective of the
allegations made in the election petition the same is required to be dismissed
at the stage of preliminary hearing.
23. Similarly, section 14A declares that an election under the Act can be
called in question only on the ground specified under sections 18[13] and
19[14]. Therefore, if the allegations made in the election petition even if
assumed to be true do not constitute one or some of the grounds on which an
election under the Act can be challenged, it would be certainly one of the
grounds enabling this Court to reach a conclusion that the election petition
does not deserve a regular hearing.
24. It is in this background the question whether the instant election
petition is required to be dismissed even without issuing notice to the
respondent is required to be determined?
25. The entire thrust of the arguments of the respondent — who appeared
before this court even before this court directed issuance of notice upon him
— is that the election petition does not disclose a valid cause of action
calling for issuance of notice or publication contemplated under Rules 14 &
15 and a regular hearing contemplated under Order XXXIX Rule 20.
26. To accept or reject the submission of the respondent it is necessary to
examine the grounds on which election of the respondent is challenged.
27. The only ground on which the election of the respondent is challenged is
that he was not eligible to contest the election to the office of President of
India. Such a ground is certainly one of the grounds on which election of the
respondent as the President of India could be challenged, as Section 18(1)(iii)
stipulates that if this court is of the opinion that the nomination of the
successful candidate has been wrongly accepted, this court shall declare the
election to be void.
28. The next question is whether the election petition contains necessary
allegations to substantiate the above mentioned ground on which the election is
challenged? The allegations, as disclosed by the election petition in this
regard, are twofold and are sufficiently elaborated in the judgements of My Lord
the Chief Justice and my learned brother Justice Ranjan Gogoi. Therefore, I do
not propose to reiterate the same.
29. The respondent does not dispute the fact that he was the Chairman of the
Indian Statistical Institute, Kolkata and also the leader of the political party
called Indian National Congress in the Lok Sabha. However, the respondent took a
categoric stand that he had resigned from both the abovementioned offices before
the crucial date i.e. on the date of scrutiny of the nomination papers (2nd July
2012) - a stand which is seriously disputed by the election petitioner by an
elaborate pleading in the petition that the respondent did not in fact cease to
hold the abovementioned offices by the crucial date.
30. The respondent also took a categoric stand that: apart from his having
had relinquished the abovementioned two offices by the crucial date, neither of
the abovementioned offices is an office the holding of which would make him
ineligible to contest the election in question.
31. The issue that is required to be examined for the purpose of the order on
the preliminary hearing under Rule 13 is whether the holding of either of the
abovementioned two offices - if really held on the crucial date - would render
the respondent ineligible to contest the election in question? If the answer is
in the negative, this Court could dismiss the election petition on hand under
Rule 13.
32. The answer to the issue in my opinion depends upon the answer to the
question – Whether the said two offices are offices of profit which would in
law render the respondent ineligible to contest the election in question? The
question – Whether the respondent did infact hold those offices on the crucial
date? is a question of fact which, in my opinion, cannot be the subject matter
of enquiry at this stage.
33. To answer the first question, we must first examine what is the
prohibition under the law which renders any person ineligible to contest the
election in question.
34. Article 58 provides that:
“Qualifications for election as President.— (1) No person shall be
eligible for election as President unless he (a) is a citizen of India, (b) has
completed the age of thirty five years, and (c) is qualified for election as a
member of the House of the People (2) A person shall not be eligible for
election as President if he holds any office of profit under the Government of
India or the Government of any State or under any local or other authority
subject to the control of any of the said Governments.
Explanation: For the purposes of this article, a person shall not be deemed
to hold any office of profit by reason only that he is the President or Vice
President of the Union or the Governor of any State or is a Minister either for
the Union or for any State.â€
35. It can be seen from the above that holding of an office of profit either
under the Government of India or the Government of any State or any local or
other authority subject to the control of any of the said Governments inter alia
would render the holder of such office of profit ineligible for election as
President.
36. The respondent’s defence is that neither of the offices held by him are
offices of profit falling under Article 58 (2) which would render him ineligible
to contest the election in question. According to him the office of the Chairman
of Indian Statistical Institute, Kolkata – whether an office of profit or not
stood declared [by a law made by the Parliament as contemplated under Article
102(1)(a)[15] i.e. the Parliament (Prevention of Disqualification) Act, 1959] -
not to disqualify a person from either being chosen as or for being a member of
the Parliament. Therefore, it is argued that even assuming that it is an office
of profit falling under Article 58(2), the holding of such an office did not
render him ineligible to contest the election in question because of the
declaration made in the Parliament (Prevention of Disqualification) Act, 1959
(hereinafter referred to as “the Disqualification Act, 1959â€) as the
Constitution itself under Article 102(1)(a) authorises the Parliament to make
such a law and Article 58(1)(c) declares that a person “qualified to be a
member of the House of the People†is eligible to contest the Presidential
election.
37. On the other hand it is argued by Shri Jethmalani that there is a
difference in the language of Article 58(2) and Article 102(1)(a) both of which
deal with certain offices of profit and the consequential disqualification
attached to the holders of such offices to contest the election either to the
office of President of India or to the Parliament respectively. The declaration
made under the Disqualification Act, 1959 may in a given case confer sufficient
legal immunity from the operation of the disqualification specified in Article
102(1)(a) to enable the holder of such a declared office to contest the election
to either House of the Parliament but such declaration does not confer any
immunity from the operation of the disqualification contained in Article 58(2).
38. Any person seeking to contest an election either to the office of the
President of India or for the membership of anyone of the legislative bodies
under the Constitution must satisfy certain eligibility criteria stipulated by
the Constitution. Article 58 of the Constitution stipulates that no person shall
be eligible for election as the President of India unless he is a citizen of
India and is qualified for election as a member of the House of the People but
has completed the age of 35 years. It must be noticed that the qualifications
and disqualifications with regard to the membership of the Parliament are
contained in Articles 84[16] and 102[17] respectively. Article 84 stipulates
that to be qualified to be chosen as a member of Parliament, a person must be a
citizen of India, he must also subscribe to an oath specified under the said
Article read with the third Schedule to the Constitution and be aged not less
than 25 years in the case of the House of the People and 35 years in the case of
the Council of States. The Article also authorises that the Parliament may by
law prescribe such other qualifications. Whereas Article 102 declares certain
categories of person to be disqualified either for being chosen or for
continuing after being chosen as a member of either House of Parliament.
They are (1) persons holding any office of profit either under the Government
of India or the Government of any State; (2) persons of unsound mind and stand
so declared by a competent court; (3) any undischarged insolvents; (4) persons
who are not citizens of India or those who acquired citizenship of any foreign
State etc. Article 102 (e) authorises the Parliament to make laws prescribing
further disqualifications for the membership of the Parliament. However, insofar
as the first class of persons mentioned above (holders of offices of profit)
Article 102(1)(a) authorises the Parliament to make a declaration by law the
holding of such declared offices of profit would not be a disqualification for
the membership of the Parliament. The explanation to Article 102 makes a
categoric declaration that a person who is a Minister either of the Union or of
a State shall not be deemed to be holding an office of profit contemplated under
Clause (1)(a).
39. The Representation of the People Act, 1951, (hereinafter referred to as
‘the R.P. Act, 1951’) is a law made by the Parliament referable to Articles
84(c) and 102(e). In the context of the Parliament, Sections 3 and 4 prescribe
that a person seeking an election to the Parliament shall necessarily be an
elector for a parliamentary constituency in India. In other words, various
qualifications prescribed for registration as an elector in the electoral roll
contemplated under Section 15 of the Representation of the People Act, 1950 must
also be satisfied for a person to become eligible to contest for the Parliament.
Sections 16 to 19 prescribe various qualifications and disqualifications in the
context of registration of a person in an electoral roll. They pertain to the
minimum age, qualifications, residence etc. Chapter III and IV of the R.P. Act,
1951 prescribe various disqualifications under Sections 8, 9, 9A, 11A thereof
for becoming a member of any of the legislative bodies under the Constitution.
|40. On an examination of the above provisions, it appears to | |me that
eligibility and disqualification to become a member of | |parliament are two
distinct things. In my view, any person who is| |eligible to become and not
disqualified for becoming a member of | |Parliament would not automatically be
eligible to contest the | |election to the office of the President of India.
There is a | |difference in the eligibility criteria applicable to the election
| |of the membership of Parliament and the election to the office of | |the
President of India. |
41. While Article 58 declares that a person who is qualified to be elected as
a member of a House of the People shall be eligible for the election of the
President, it stipulates a higher age qualification of 35 years for a person
seeking election to the President of India while it is sufficient under Article
84 (b) for a person seeking election to the House of the People to be not less
than 25 years only. Another distinction is that: Article 102 (1)(a) declares
that persons holding an office of profit either under the Government of India or
of the Government of any State (unless they are protected by the law made by the
Parliament) are disqualified for being chosen as members of the Parliament
whereas Article 58 sub-clause (2) disqualifies persons holding office of profit
not only specified under Article 102(a) but also under any local or any other
authority which is subject to the control of either of the above mentioned two
governments. In other words, the holding of an office of profit under any local
or other authority is not a disqualification for membership of Parliament while
it is a disqualification for the election to the office of the President of
India.
42. One more distinction is that while an office of profit, the holding of
which renders a person disqualified for being chosen as a member of Parliament,
can be declared by the Parliament not to be an office of profit holding of which
would disqualify the holder from becoming a member of Parliament. Such an
authority is not expressly conferred on the Parliament in the context of the
candidates at an election to the office of the President of India.
43. Therefore, when Article 58(1)(c) stipulates that no person shall be
eligible for election as the President of India unless he is qualified to be a
member of the House of the People, the protective declaration made by the
Parliament referable to Article 102(1)(a) regarding certain offices of profit
does not render holders of such offices eligible for contesting the Presidential
election. Particularly, holders of office of profit under any “local or other
authority†are positively disqualified for being elected as President of
India. The said disqualification cannot be removed by the Parliament as Article
102(1)(a) does not authorise the Parliament to make any such declaration in the
context of the holders of an office of profit under any local or other authority
subject to the control of either the Government of India or the State
Government, obviously because the holding of such an office is not declared to
be a disqualification under the Constitution for the membership of the
Parliament. I accept the submission of Mr. Jethmalani. In my opinion, the
Constitution prescribes more stringent qualifications for election to the office
of President of India and the disqualification stipulated under Article 58(2) is
incapable of being exempted by a law made by the Parliament.
44. My opinion derives support from a Constitution Bench decision of this
Court in Baburao Patel and others v. Dr. Zakir Hussain and others AIR 1968 SC
904 wherein the interface between Articles 58 and 84 of the Constitution was
examined. Challenging the election of Dr. Zakir Hussain as President of India,
an election petition came to be filed in this Court wherein the Court noted
thus:
“9. The contention of the petitioners is that because of …. cl. (a) of
Art. 84 ….. it became necessary to take oath for a person standing for
election to either House of Parliament in the form prescribed in the Third
Schedule, a person standing for election as President had also to take a similar
oath because Art. 58(1)(c) requires that a person to be eligible for election as
President must be qualified for election as a member of the House of the People.
………. urged that no one is qualified …… for election as a member of the
House of the People unless he makes and subscribes an oath in the form set out
for the purpose in the Third Schedule, and therefore this provision applied to a
person standing for election as President, for without such oath he would not be
qualified to stand for election to the House of the People.†This Court in
para 10 compared the language of Articles 58 and 84 of the Constitution and held
as follows:- “ …. and reading them together it would follow that a person
standing for election as President would require such qualifications as may be
prescribed in that behalf by or under any law made by Parliament. Further as cl.
(c) of Art.
58(1) lays down that a person standing for presidential election has to be
qualified for membership of the House of the People, Article 102 (which lays
down disqualifications for members of Parliament) would also be attracted except
in so far as there is a special provision contained in Article 58(2). Thus cl.
(c) of Article 58(1) would bring in such qualifications for members of the House
of the People as may be prescribed by law by Parliament, as required by Article
84(c). It will by its own force bring in Article 102 of the Constitution, for
that Article lays down certain disqualifications which a presidential candidate
must not have for he has to be eligible for election as a member of the House of
the People. But it is clear to us that, what is provided in clauses (a) and (b)
of Article 58(1) must be taken from there and we need not travel to cls. (a) and
(b) of Article 84 in the matter of citizenship and of age of the presidential
candidate.
Clauses (a) and (b) of Article 58(1) having made a specific provision in that
behalf in our opinion exclude cls. (a) and (b) of Art. 84. This exclusion was
there before the Amendment Act.†This Court refused to read the requirement of
subscribing to the oath according to the form set out in Third Schedule of the
Constitution for contesting the presidential election.
45. For reaching such a conclusion this Court took note of the fact that
prior to the 16th Constitutional amendment, the requirement of subscription to
such an oath did not exist in the context of either the election to the
Parliament or the office of the President. It was introduced by the 16th
amendment as a necessary requirement for a person to be qualified to contest the
election to the Parliament. The omission to make such an amendment that refers
to the persons contesting election to the office of the President is a clear
indication that the Constitution ever intended such a requirement to be applied
for the presidential election also. In paragraph 12 this Court held thus:
“Now if the intention of Parliament was that an oath similar in form to the
oath to be taken by persons standing for election to Parliament had to be taken
by persons standing for election to the office of the President there is no
reason why a similar amendment was not made in Article 58(1)(a). Further if the
intention of Parliament was that a presidential candidate should also take an
oath before standing for election, the form of oath should also have been
prescribed either in the Third Schedule or by amendment of Article 60, which
provides for oath by a person elected as President before he takes his office.
But we find that no change was made either in Article 58(1)(a) or in Article 60
or in the Third Schedule prescribing the form of oath to be taken by the
presidential candidate before he could stand for election. This to our mind is
the clearest indication that Parliament did not intend, when making the
Amendment Act, that an oath similar to the oath taken by a candidate standing
for election to Parliament had to be taken by a candidate standing for election
to the office of the President. So there is no reason to import the provision of
Article 84(a) as it stood after the Amendment Act into Article 58(1)(a), which
stood unamended. That is one reason why we are of opinion that so far as the
election to the office of the President is concerned, the candidate standing for
the same has not to take any oath before becoming eligible for election as
President.â€
46. Therefore, I have no hesitation to reach to the conclusion that the
declaration made by the 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 Article 58(2).
47. Assuming for the sake of argument that the declaration of law made by
Parliament [contemplated and made under Article 102(a)] can obliterate the
disqualification even with respect to a candidate at the presidential election,
Article 102(a) authorises the parliament to make such a declaration with respect
to only the offices of profit either under the Government of India or Government
of any State but not with respect to the offices of profit under “local or
other authoritiesâ€. Therefore, the legal nature of Indian Statistical
Institute and of the office of its Chairman is required to be examined.
48. Whether the office of the Chairman of the abovementioned Institute can be
called an office of profit either under the Government of India or the State
Government or local or other authority attracting the prohibition under Article
58(2) and rendering the respondent ineligible to contest the election in
question?
49. This Court in B.S. Minhas v. Indian Statistical Institute and others [1983] INSC
154; (1983) 4 SCC 582 held
that the Indian Statistical Institute is an authority falling under Article 12
of the Constitution of India, therefore, ‘State’ for the purpose of Part-III
of the Constitution. Under the scheme of Indian Statistical Institute Act, the
Government of India has deep and pervasive control on the administration of the
Institute. It also provides financial support to the Institute.
50. The said Institute is a body registered under the Societies Registration
Act, 1860 whose activities to some extent are regulated by the enactment of the
Parliament titled “The Indian Statistical Institute Act, 1959 (No.57 of 1959),
hereinafter referred to as the Institute Act. The Preamble to the Act declares
as follows:
“An Act to declare the institution known as the Indian Statistical
Institute having at present its registered office in Calcutta to be an
institution of national importance and to provide for certain matters connected
therewith.â€
51. It must be remembered that Entry 64 of List-I of the 7th Schedule read
with Article 246 (1) authorises the Parliament to make laws with respect to:
“Institutions for scientific or technical education financed by the
Government of India wholly or in part and declared by Parliament by law to be
institutions of national importance.â€
52. Section 4 of the Institute Act authorises the Institute to grant degrees
and diplomas for various disciplines specified therein. Section 5 authorises the
Government to pay such sums as appropriated by the Parliament in each financial
year to the Institute. The Act (Section 6) also obligates the Institute to get
its accounts audited by such auditors as may be appointed by the Government of
India in consultation with the Auditor-General of India and the Institute.
Section 7[18] prohibits Institute from taking certain actions without the
previous approval of the Government of India. The full details of the Act are
not necessary for the present case.
53. But from the above it can be safely concluded that the Institute is an
authority subject to the control of the Government of India within the meaning
of Article 58(2).
54. As it can be seen from the Scheme of the Institute Act and the preamble
that the administration of the society is still to be run in accordance with its
bye-laws and regulations of the Society except insofar as those activities which
are specifically regulated by the Act (57 of 1959). The office of the Chairman
of the Institute is not an office created by any statute but is an office
created by the bye-laws of the Society. The Chairman is required to be elected
by a Council created under the regulations of the Society. Therefore, it is
certainly not an office (profit or no profit) either under the Central or State
Government.
55. The learned counsel for the petitioner very vehemently argued that the
very fact that the Parliament thought it fit to specifically include the office
of the Chairman of the Indian Statistical Institute in the table annexed to the
Disqualification Act, 1959 would ipso facto imply that the office in question is
an office of profit. He relied upon M.V.
Rajashekaran and others v. Vatal Nagaraj and others (2002) 2 SCC 704 at
page 711 wherein this Court observed thus:
“5. …. The fact that the office of the chairman or a member of a
committee is brought within the purview of this Act implies that the office
concerned must necessarily be regarded as an office of profit, but for the
exclusion under the clause by the legislature, the holder of such office could
not have been eligible for being chosen as a Member of the Legislature. The
object of this provision is to grant exemption to holders of office of certain
description and the provision in substance is that they will enjoy the
exemption, even though otherwise they might be regarded as holders of offices of
profit…â€
56. It is argued by Shri Harish Salve appearing for the respondent that while
interpreting the provisions of the Constitution, the understanding of the
legislature regarding the fact whether a particular office is an office of
profit need not necessarily be the correct understanding and this court is
required to independently examine this question.
57. It is argued by Shri Salve that the office of the Chairman of the Indian
Statistical Institute cannot be said to be either an office of profit either
under the Government of India or the Government of a State, which would render
the holder of such an office disqualified for becoming either a member of
Parliament or the President of India.
58. The learned Attorney General argued that the Disqualification Act, 1959
is not a defining enactment. It nowhere defines what is an office of profit but
an enactment made ex abundanti cautela to avoid any possible challenge to
election of some of the members of the Parliament on the ground that they are
holders of offices of profit and, therefore, this Court is still obliged to
examine whether a particular office is an office of profit rendering the holder
thereof ineligible to become a member of Parliament or the President of India.
59. This Court In M.V. Rajashekaran (supra) dealt with the question of office
of profit under the State of Karnataka in the context of the election of one
Nagaraj to the legislative council of Karnataka. Nagaraj was appointed a One-Man
Commission by the State of Karnataka to study certain problems. In that capacity
he was entitled to certain pay and reimbursement of day to day expenditure.
Subsequently, while continuing in the office of One-Man Commission, Nagaraj
filed his nomination for election to the Legislative Council of the State of
Karnataka. On an objection raised, Nagaraj was disqualified to contest the
election on the ground of his having had held an office of profit, the
nomination of Nagaraj was rejected. Nagaraj successfully questioned the election
of Rajashekaran and others on the ground that his nomination was illegally
rejected.
Rajashekaran appealed to this Court. The issue revolved around interpretation
of Article 191, a provision corresponding to Article 102 in the context of the
elections to the legislative assembly or legislative council of a State. The
enactment called Karnataka Legislature (Prevention of Disqualification) Act,
1956 was made by the State of Karnataka to protect the holders of some of the
offices from incurring disqualification on the ground that those offices were
offices of profit contemplated under Article 191.
60. This Court opined that Nagaraj was holding an office of profit
contemplated under Article 191 and therefore disqualified from contesting the
election because Nagaraj was appointed a One-Man Commission by the Government of
Karnataka and he was obliged to study the problem entrusted to him and submit a
report to the Government; that the Government of Karnataka conferred the status
of a Minister of the Cabinet rank on the office and made budgetary provision to
defray the expenses of pay and day- to-day expenditure of Nagaraj. This Court
also recorded the conclusion that:
“remuneration that Nagaraj was getting cannot be held to be “compensatory
allowance†within the ambit of section 2(b) of the Act and, therefore, he was
holder of an office of profit.â€
61. During the process of examination of various provisions of the Karnataka
Legislature (Prevention of Disqualification) Act, 1956, this Court made the
observation relied upon by Shri Jethmalani. (para 55 supra) In my opinion, this
Court in Rajashekaran’s case never specifically examined the issue whether
mere inclusion of office in an enactment preventing the disqualification falling
under Article 191 or Article 102 (as the case may be) would imply in law that
the office specified in such an Act is necessarily an office of profit.
Therefore, the above extracted statement in my view does not constitute the
ratio decidendi of the said judgment.
62. Even otherwise the inclusion of various offices in the Schedule of the
Disqualification Act only reflects the understanding of the Parliament that
those offices are offices of profit contemplated under Article 102(1)(a). But
such an understanding is neither conclusive or binding on this Court while
interpreting the Constitution. As argued by the learned Attorney General, such
inclusion appears to be an exercise – ‘ex majure cautela’.[19] It is the
settled position of law that interpretation of the Constitution and the laws is
“emphatically the province and duty†of the judiciary. Therefore, I reject
the submission of Mr. Jethmalani.
63. Therefore, the meaning of the expressions “office of profit†and
“office of profit under the State Government/Central Government†are
required to be examined.
64. In Shivamurthy Swami Inamdar v. Agadi Sanganna Andanappa (1971) 3 SCC 870
this Court dealt with the question – what is an office of profit? and held as
follows:
“14. … office in question must have been held under a Government and to
that some pay, salary, emoluments or allowance is attached. The word
‘profit’ connotes the idea of pecuniary gain. If there is really a gain, its
quantum or amount would not be material; but the amount of money receivable by a
person in connection with the office he holds may be material in deciding
whether the office really carries any profit….†reiterating the principle
laid down in Ravanna Subanna v. G.S. Kaggerappa, AIR 1954 SC 653.
65. In Shibu Soren v. Dayanand Sahay and others (2001) 7 SCC 425 both
the questions were considered.[20]
66. The question in the said case was whether the Chairman of the Interim
Jharkhand Area Autonomous Council set up under section 20 of the Jharkhand Area
Autonomous Council Act, 1994 was holding an office of profit under the State
Government. This Court had to examine both the questions – whether the office
in question was an office of profit at all and secondly whether it was an office
of profit under the State Government? This Court confirmed the opinion of the
High Court that the Chairman of the Interim Jharkhand Area Autonomous Council
was not only an office of profit but an office of profit under the State
Government. The Court noticed that the expression “office of profit†is not
defined under law and, therefore, indicated the considerations relevant for
determining the question whether a particular office is an office of profit. The
Court reached to such a conclusion on consideration of various facts that the
various amounts paid to Shibu Soren could not be said to be in the nature of
“compensatory allowance†and was in the nature of remuneration or salary
inherently implying an element of “profit†and of giving “pecuniary
gain†to Shibu Soren and the office of the Chairman of Interim Council was
temporary in nature with limited lifespan and the members of the Interim Council
were appointed by the State to hold their offices at the pleasure of the State.
67. The test as pointed out by the Court was whether the office gives the
incumbent some pecuniary gain other than as compensation to defray his out-
of-pocket expenses which may have the possibility to bring that person under the
influence of the executive. In coming to such conclusion this Court examined a
number of earlier judgments on the issue.
68. Both the abovementioned cases and the earlier authorities cited therein
examined the question as to what is an office of profit and what are the tests
relevant to determine whether such an office is held under the Government but
the question what is an office of profit under a local or other authority
subject to the control of either the Central or State Government contemplated
under Article 58(2) never fell for the consideration of this Court in those
cases.
69. That leads me to the next question whether the office of the Chairman of
the Indian Statistical Institute, Calcutta, which I already concluded to be an
authority for the purpose of Article 58(2), is an office of profit as explained
by this Court in various abovementioned judgments. I proceed on the basis that
tests relevant for determining whether an office of profit contemplated under
Article 58(2) are the same as the test laid down by this Court in the context of
Article 102(1)(a). The answer to the said question depends upon the terms and
conditions subject to which the respondent held that office. Whether the amounts
if any paid to him in that capacity are compensatory in nature or amounts
capable of conferring pecuniary gain are questions of fact which ought in my
view to be decided only after ascertaining all the relevant facts which are
obviously in the exclusive knowledge either of the respondent or the
abovementioned institute. I must also state that the respondent in his short
counter made a statement[21] that he did not derive pecuniary gain by holding
the abovementioned office.
After such an appropriate enquiry into such conflicting statements of facts
if it is to be concluded that the said office is an office of profit inevitably
the question whether the respondent had tendered his resignation by the crucial
date is required to be ascertained once again an enquiry into a question of
fact.
70. Whether a decision on such questions of facts can be rendered on the
basis of the affidavit of the respondent, the veracity of which is not subjected
to any further scrutiny? The petitioner if permitted to inspect or seek
discovery of records of the Indian Statistical Institute might or might not
secure information to demonstrate truth or otherwise of the respondent’s
affidavit.
71. The issue is not whether the petitioner would eventually be able to
establish his case or not. The issue is whether the petitioner is entitled to a
rational procedure of law to establish his case? The stake in the case for the
parties is enormous, nothing but the Presidency of this country. The
Constitution creates only one forum for the adjudication of such disputes. All
other avenues are closed. By holding that the petition does not deserve a
regular hearing contemplated under Rule 20, in my opinion, would not be
consistent with the requirement that justice must not only be done but it must
also appear to have been done.
72. Adjudication of rights of the parties under the Anglo-Saxon
jurisprudence, which we follow, requires the establishment of relevant facts
which constitute the cause of action necessary for the party claiming a relief
from the Court. Such facts are to be established by adducing evidence either
oral or documentary. Recognizing the possibility (that in a given case) the
party making an assertion of fact may not have within its control all the
evidence necessary for proving such a fact, courts of civil judicature are
empowered to order the discovery, inspection, production etc. of documents and
also summon the persons in whose custody such relevant documents are available.
(See: Section 30 read with Order XI etc.
of the Code of Civil Procedure). Such empowerment is a part of a rational
procedure designed to serve the ends of justice.
73. If the adjudication of the election petition requires securing of
information which is exclusively available with the respondent and the Indian
Statistical Institute and which may be relevant can the petitioner be told that
he would not be able to secure such information on the ground that letter of the
law does not provide for such opportunity? We have already come to the
conclusion that the CPC does not apply to the election petition. The rules
framed by this Court under Article 145 are silent in this regard. But the very
fact that this Court is authorised to frame rules regulating the procedure
applicable to trial of the election petitions implies that this court has powers
to pass appropriate orders to secure such information. To hold to the contrary
would be to tell a litigant who might as well have been the first citizen of
this country (given a more favourable political regime) that the law of the
Sovereign Democratic Republic of India does not afford even that much of a
rational procedure which was made available by the foreign rulers to the
ordinary citizens of this country - which is still available to an ordinary
litigant of this country.
74. Similarly, accepting the statement of the respondent that he did not
derive any pecuniary benefit by virtue of his having had been Chairman of the
Indian Statistical Institute without permitting the petitioner to test the
correctness of that statement by cross-examining the respondent or confronting
the respondent with such documents which the petitioner might discover if such a
discovery is permitted would be a denial of equality of law to the petitioner
guaranteed under Article 14 of the Constitution of India. Such facility is
afforded to every litigant pursuing litigation in a court of civil judicature in
this country. Therefore, I do not subscribe to the view that the election
petition does not deserve a regular hearing.
75. At stake is not the Presidency of India but the constitutional
declaration of equality and the credibility of the judicial process.
76. In view of the majority opinion that the election petition does not
deserve a regular hearing I do not propose to examine the question whether the
second office held by the respondent as Leader of the Lok Sabha is an office of
profit attracting the disqualification under Article 58(2).
…………………………………………J.
(J. CHELAMESWAR) New Delhi;
December 11, 2012.
----------------------- [1] Article 71. Matters relating to, or connected
with, the election of a president or Vice President.—(1) All doubts and
disputes arising out of or in connection with the election of a president or
vice President shall be inquired into and decided by the Supreme court whose
decision shall be final.
(2) If the election of a person as President or Vice President is declared
void by the Supreme court, acts done by him in the exercise and performance of
the powers and duties of the office of President or Vice President, as the case
may be, on or before the date of the decision of the Supreme Court shall not be
invalidated by reason of that declaration (3) Subject to the provisions of this
constitution, Parliament may by law regulate any matter relating to or connected
with the election of a President or Vice President.
(4) The election of a person as President or Vice President shall not be
called in question on the ground of the existence of any vacancy for whatever
reason among the members of the electoral college electing him.
[2] 14A. Presentation of Petition.—(1) An election petition calling in
question an election may be presented on one or more of the grounds specified in
sub-section (1) of section 18 and section 19, to the Supreme Court by any
candidate at such election, or— i) in the case of Presidential election, by
twenty or more electors joined together as petitioners;
ii) in the case of Vice-Presidential election, by ten or more electors joined
together as petitioners.
(2) Any such petition may be presented at any time after the date of
publication of the declaration containing the name of the returned candidate at
the election under section 12, but not later than thirty days from the date of
such publication.
[3] Article 138. Enlargement of the jurisdiction of the Supreme Court - (1)
The Supreme Court shall have such further jurisdiction and powers with respect
to any of the matters in the Union List as Parliament may by law confer.
(2) The Supreme Court shall have such further jurisdiction and powers with
respect to any matter as the Government of India and the Government of any State
may by special agreement confer, if Parliament by law provides for the exercise
of such jurisdiction and powers by the Supreme Court.
[4] 145. Rules of Court, etc.—(1) Subject to the provisions of any law made
by Parliament, the Supreme Court may from time to time, with the approval of the
President, make rules for regulating generally the practice and procedure of the
Court including— (a) rules as to the persons practising before the Court;
(b) rules as to the procedure for hearing appeals, and other matters
pertaining to appeals including the time within which appeals to the Court are
to be entered;
(c) rules as to the proceedings in the Court for the enforcement of any of
the rights conferred by Part III;
(cc) rules as to the proceedings in the Court under Article 139A;
d) rules as to the entertainment of appeals under sub clause (c) of clause (
1 ) of Article 134;
e) rules as to the conditions subject to which any judgment pronounced or
order made by the Court may be reviewed and the procedure for such review
including the time within which applications to the Court for such review are to
be entered;
f) rules as to the costs of and incidental to any proceedings in the Court
and as to the fees to be charged in respect of proceedings therein;
g) rules as to the granting of bail;
h) rules as to stay of proceedings;
i) rules providing for the summary determination of any appeal which appears
to the Court to be frivolous or vexatious or brought for the purpose of delay;
j) rules as to the procedure for inquiries referred to in clause ( 1 ) of
Article 317;
(2) Subject to the provisions of clause (3), rules made under this article
may fix the minimum number of Judges who are to sit for any purpose, and may
provide for the powers of single Judges and Division Courts;
(3) The minimum number of Judges who are to sit for the purpose of deciding
any case involving a substantial question of law as to the interpretation of
this Constitution or for the purpose of hearing any reference under Article 143
shall be five:
Provided that, where the Court hearing an appeal under any of the provisions
of this chapter other than Article 132 consists of less than five Judges and in
the course of the hearing of the appeal the Court is satisfied that the appeal
involves a substantial question of law as to the interpretation of this
Constitution the determination of which is necessary for the disposal of the
appeal, such Court shall refer the question for opinion to a Court constituted
as required by this clause for the purpose of deciding any case involving such a
question and shall on receipt of the opinion dispose of the appeal in conformity
with such opinion (4) No judgment shall be delivered by the Supreme Court save
in open Court, and no report shall be made under Article 143 save in accordance
with an opinion also delivered in open Court (5) No judgment and no such opinion
shall be delivered by the Supreme Court save with the concurrence of a majority
of the Judges present at the hearing of the case, but nothing in this clause
shall be deemed to prevent a Judge who does not concur from delivering a
dissenting judgment or opinion.
[5] The first Code of Civil Procedure was Act 8 of 1859. Prior to that, the
procedure of the mofussil courts was regulated by special Acts and Regulations
repealed by Act 10 of 1861; and the procedure of the Supreme Courts was under
their own rules and orders and certain Acts, for example Act 17 of 1852 and Act
6 of 1854. The Code of 1859 applied to mofussil courts only. In 1862, the
Supreme Court and the Courts of Sadder Diwani Adalat in the Presidency towns
were abolished by the High Courts Act 1861 (24 and 25 Vic C 104) and the powers
of those courts were vested in the chartered high courts. The Letters Patent of
1862 establishing the high courts extended to them the procedure of the Code of
Civil Procedure, 1859.
The Charters of 1865, which empowered the high courts to make rules and
orders regulating proceedings in civil cases required them to be guided as far
as possible by the provisions of the Code of 1859 and subsequent Amending Acts.
Such Amending Acts were: Act 4 of 1860; 43 of 1860; 23 of 1861; 9 of 1863; 20
of 1867; 7 of 1870; 14 of 1870; 9 of 1871; 32 of 1871 and 7 of 1872.
The next Code was Act 10 of 1877, which repealed that of 1859. This was
amended by Act 18 of 1878 and 12 of 1879; then superseded by the Code of 1882
(Act 14 of 1882). This was amended by Acts 15 of 1882; 14 of 1885; 4 of 1886; 10
of 1886; 7 of 1887; 8 of 1887; 6 of 1888; 10 of 1888;
13 of 1889; 8 of 1890; 6 of 1892; 5 of 1894; 7 of 1895 and 13 of 1895, and
then superseded by the present Code of Civil Procedure.
[6] Section 5(2). ‘Revenue Court’ in sub-section (1) means a Court having
jurisdiction under any local law to entertain suits or other proceedings
relating to the rent, revenue or profits of land used for agricultural purposes,
but does not include a Civil Court having original jurisdiction under this Code
to try such suits or proceedings as being suits or proceedings of a civil
nature.
[7] 141. Miscellaneous proceedings–The procedure provided in this Code in
regard to suits shall be followed, as far as it can be made applicable, in all
proceedings in any Court of civil jurisdiction.
[8] 34. Subject to the provisions of this Order or any special order or
directions of the Court, the procedure on an election petition shall follow, as
nearly as may be, the procedure in proceedings before the Court in the exercise
of its original jurisdiction.
[9] Various rules occurring in Part III of the Rules expressly provide for
the application of certain specified provisions of the CPC to such original
proceedings before this Court.
[10] It may be mentioned that Rule 13, as it exists today, was substituted by
GSR 407 dated 9th December, 1997, w.e.f. 20th December, 1997. Prior to such
substitution, the Rule read differently.
[11] Rule 14. Unless otherwise ordered, the notice of the presentation of the
petition, accompanied by a copy of the petition, shall within five days of the
presentation thereof or within such further time as the Court may allow, be
served by the petitioner or his advocate on record on the respondent or
respondents, the Secretary to the Election Commission, the Returning Officer and
the Attorney General for India. Such service shall be effected personally or by
registered post, as the Court or Registrar may direct. Immediately after such
service the petitioner or his advocate on record shall file with the Registrar
an affidavit of the time and manner of such service.
[12] Rule 15. Unless dispensed with by the Judge in Chambers or the
Registrar, as the case may be, notice of the presentation of the petition shall
be published in the Official Gazette and also advertised in newspapers at the
expense of the petitioner or petitioners, fourteen clear days before the date
appointed for the hearing thereof in such manner as the Court or the Registrar
may direct.
[13] Section 18. Grounds for declaring the election of a returned candidate
to be void.— (1) If the Supreme Court is of opinion,— (a) that the offence
of bribery or undue influence at the election has been committed by the returned
candidate or by any person with the consent of the returned candidate ; or (b)
that the result of the election has been materially affected— (i) by the
improper reception or refusal of a vote, or (ii) by any non-compliance with the
provisions of the Constitution or of this Act or of any rules or orders made
under this Act; or (iii) by reason of the fact that the nomination of any
candidate (other than the successful candidate), who has not withdrawn his
candidature, has been wrongly accepted ; or (c) that the nomination of any
candidate has been wrongly rejected or the nomination of the successful
candidate has been wrongly accepted;
the Supreme Court shall declare the election of the returned candidate to be
void.
(2) For the purposes of this section, the offences of bribery and undue
influence at an election have the same meaning as in Chapter IXA of the Indian
Penal Code.
[14] Section 19. Grounds for which a candidate other than the returned
candidate may be declared to have been elected.—If any person who has lodged
an election petition has, in addition to calling in question the election of the
returned candidate, claimed a declaration that he himself or any other candidate
has been duly elected and the Supreme Court is of opinion that in fact the
petitioner or such other candidate received a majority of the valid votes, the
Supreme Court shall, after declaring the election of the returned candidate to
be void, declare the petitioner or such other candidate, as the case may be, to
have been duly elected:
Provided that the petitioner or such other candidate shall not be declared to
be duly elected if it is proved that the election of such candidate would have
been void if he had been the returned candidate and a petition had been
presented calling in question his election.
[15] In the purported exercise of the power conferred under Article
102(1)(a), the Parliament from time to time made various enactments, last in the
series is the Disqualification Act, 1959, which is also amended from time to
time, once in 1993 and later in 1996 and 2006. Section 3 of the said Act
declares that none of the offices specified therein shall disqualify the holder
thereof for being chosen as or for being a member of Parliament. Section 3
insofar as relevant reads as follows:
“3. Certain offices of profit not to disqualify.—It is hereby declared
that none of the following offices, in so far as it is an office of profit under
the Government of India or the Government of any State, shall disqualify the
holder thereof for being chosen as, or for being, a member of Parliament,
namely,—…†Various offices are specified in various sub-clauses from (a)
to (m) of the said section to be offices which do not disqualify the holders
thereof from becoming or being members of the Parliament. An analysis of these
various clauses inserted from time to time (which to my mind indicates a
haphazard tinkering with the act) shows that some offices are statutory, some of
the offices are brought into existence by virtue of executive orders of the
Government of India or the State Government.
Relevant in the context is clause (k) of the said section which reads as
follows:
“(k). the office of Chairman, Deputy Chairman, Secretary or Member (by
whatever name called) in any statutory or non-statutory body specified in the
Table;†Though holding of an office of profit under any body - other than the
Central Government or a State Government – is not a disqualification for a
person seeking election to the Parliament, the Parliament chose to include
within its sweep of the provisions of Disqualification Act, 1959 the various
offices mentioned in Section 3(k) read with the table annexed to the Schedule of
the Act. Whether it is really necessary to bring such offices under the
protective umbrella of the Act to avoid any challenge on the ground of the
holders of such office being disqualified from seeking election to the
Parliament, is a moot question.
There is a table attached to the Schedule of the Act which came to be
inserted by Act 31 of 2006 consisting of 55 entries. Entry 4 therein is the
‘Indian Statistical Institute, Calcutta’ of which the respondent was
admittedly the Chairman.
[16] Article 84 – Qualifications for membership of Parliament – A person
shall not be qualified to be chosen to fill a seat in Parliament unless he –
a) is a citizen of India, and makes and subscribes before some person authorized
in that behalf by the Election Commission an oath or affirmation according to
the form set out for the purpose in the Third Schedule;
b) is, in the case of a seat in the Council of States, not less than thirty
five years of age and, in the case of a seat in the House of the People, not
less than twenty-five years of age, and c) possesses such other qualifications
as may be prescribed in that behalf by or under any law made by Parliament.
[17] Article 102 – Disqualifications for membership – (1) A person shall
be disqualified for being chosen as, and for being a member of either House of
Parliament- a) if he holds any office of profit under the Government of India or
the Government of any State, other than an office declared by Parliament by law
not to disqualify its holder;
b) if he is of unsound mind and stands so declared by a competent court;
c) if he is an undischarged insolvent;
d) if he is not a citizen of India, or has voluntarily acquired the
citizenship of a foreign State, or is under any acknowledgement of allegiance or
adherence to a foreign State;
e) if he is so disqualified by or under any law made by Parliament.
Explanation.—For the purposes of this clause a person shall not be deemed
to hold an office of profit under the Government of India or the Government of
any State by reason only that he is a Minister either for the Union or for such
State.
(2) A person shall be disqualified for being a member of either House of
Parliament if he is so disqualified under the Tenth Schedule.
[18] Section 7. Prior Approval of Central Government necessary for certain
action by the Institute.—Notwithstanding anything contained in the Societies
Registration Act, 1860, or in the memorandum or rules and regulations, the
Institute shall not except with the previous approval of the Central Government,
a) alter, extend or abridge any of the purposes for which it has been
established or for which it is being used immediately before the commencement of
this Act, or amalgamate itself either wholly or partially with any other
Institution or society; or b) alter or amend in any manner the memorandum or
rules and regulations; or c) sell or otherwise dispose of any property acquired
by the Institute with money specifically provided for such acquisition by the
Central Government:
Provided that no such approval shall be necessary in the case of any such
movable property or class of movable property as may be specified by the Central
Government in this behalf by general or special order; or (d) be dissolved.
[19] Also see the short counter affidavit filed on behalf of the respondent,
at page 11 para 33, wherein it is stated:
“… Further the amendment to the said Act in the year 2006 was carried out
in view of the judgment of this Hon’ble Court in the matter of Jaya Bachan
reported in (2006) 5 SCC 266. The
amendment to the Act was made ex majore cautela – as is obvious from the
Statement of Objects and Reasons to the amendment itself. The assumption that an
express exclusion under that Act is conclusive of whether the office constitutes
an Office of Profit, is patently untenable – a number of amendments were made
ex majore cautela so as to avoid any controversy in relation to the holders of
such office. The mere fact that an office is excluded under that Act does not
establish that for all other statutes and Art.58, the Office is necessarily an
office of profit.†[20] Para 26. The expression “office of profit†has not
been defined either in the Constitution or in the Representation of the People
Act. In common parlance the expression “profit†connotes an idea of some
pecuniary gain. If there is really some gain, its label — “honorarium†—
“remuneration†— “salary†is not material — it is the substance and
not the form which matters and even the quantum or amount of “pecuniary
gain†is not relevant — what needs to be found out is whether the amount of
money receivable by the person concerned in connection with the office he holds,
gives to him some “pecuniary gainâ€, other than as “compensation†to
defray his out-of-pocket expenses, which may have the possibility to bring that
person under the influence of the executive, which is conferring that benefit on
him.
Para 27. With a view to determine whether the office concerned is an
“office of profitâ€, the court must, however, take a realistic view. Taking a
broad or general view, ignoring essential details is not desirable nor is it
permissible to take a narrow view by which technicality may overtake reality. It
is a rule of interpretation of statutes that the statutory provisions are so
construed as to avoid absurdity and to further rather than defeat or frustrate
the object of the enactment. Courts, therefore, while construing a statute avoid
strict construction by construing the entire Act. (See with advantage Ashok
Kumar Bhattacharyya v. Ajoy Biswas (1985) 1 SCC 151, Tinsukhia Electric Supply
Co. Ltd. v. State of Assam [1989] INSC
125; (1989) 3 SCC 709 and
CIT v. J.H. Gotla [1985] INSC
190; (1985) 4 SCC 343.
[21] Without prejudice to the aforesaid, it is submitted that in any event
the position of Chairman of ISI is not an Office of Profit in so far as the
office does not enjoy any benefits and remuneration let alone any salary,
emolument, perks etc. of any kind. It is submitted that ISI is a society
registered under the Societies
Registration Act. It is also governed by the ISI Act, 1954. The executive
powers of the institute lie with the Director of ISI. Both the President and the
Chairman of the Institute is, in protocol, ranked higher than the Director, ISI
but both the President and the Chairman below him are neither entitled to nor
receive any emoluments, perquisites or benefits from the Institute. As such, it
is submitted that the office of Chairman of ISI is not an Office of Profit. The
Chairman has no executive role. As such, the disqualification under Article 58
of the Constitution does not apply to the said office.
