# 11 S.C.R. 585 PURNO AGITOK SANGMA v. PRANAB MUKHERJEE

- **Citation:** [2012] 11 S.C.R. 585
- **Court:** Supreme Court of India
- **Decided:** 2012-12-05
- **Case number:** Election Petition No. 1 of 2012
- **Bench:** Altamas Kabir, P. Sathasivam, Surinder Singh Nijjar, J. Chelameswar, RANJAN GOGOi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/11-s-c-r-585-purno-agitok-sangma-v-pranab-mukherjee-28197
- **Pages:** 98

## Headnote

Constitution of India, 1950:
A
B
c
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
D
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 of profit- In any event, by the 2006 amendment
E
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
F
of Leader of the House was with regard to the provisions of G
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
585
H
586
SUPREME COURT REPORTS
[2012] 11 S.C.R.
A 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
B 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
C 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
E 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.
F
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
G 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
H both the offices were offices of profit, the respondent
PURNO AGITOK SANGMA v. PRANAB MUKHERJEE 587
stood disqualified from contesting the Presidential A
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 B
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 Rul

## Text

_Characters 0–39,995 of 201,080. This is a partial read: ask again with offset=39995 for what follows._

[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:
A
B
c
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
D
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 of profit- In any event, by the 2006 amendment
E
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
F
of Leader of the House was with regard to the provisions of G
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
585
H
586
SUPREME COURT REPORTS
[2012] 11 S.C.R.
A 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
B 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
C 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
E 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.
F
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
G 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
H both the offices were offices of profit, the respondent
PURNO AGITOK SANGMA v. PRANAB MUKHERJEE 587
stood disqualified from contesting the Presidential A
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 B
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.)
c
D
1.1. Clause (1) of Art. 71 of the Constitution of India, E
1950 provides that all doubts and disputes arising out of
or in connection with the election of a President or VicePres 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
F
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 VicePresidential Elections Act, 1952 (the Act) was enacted
with the object of regulating certain matters relating to or G
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 H
588
SUPREME COURT REPORTS
(2012] 11 S.C.R.
A 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
C 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
D 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]
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
F 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
G 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
H compulsion under the Rules and the Bye-laws of the
PURNO AGITOK SANGMA v. PRANAB MUKHERJEE 589
Society either. In any event, by the 2006 amendment to
A .
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; 632G-H; 633-A-C]
B
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.
C
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
D
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 = E
(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.
F
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.
G
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
H
590
SUPREME COURT REPORTS
[2012) 11 S.C.R.
A 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
B respondent's election as President of India on the said
ground loses its relevance. [para 56) [631-E, G-H; 632-AB]
2.3. The Constitutional Scheme, as mentioned in the
Explanation to Clause (2) of Art. 58 of the Constitution,
C 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
D 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
E 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
F 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
G 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
H s.141 of the Code of Civil Procedure, 1908 is required to
PURNO AGITOK SANGMA v. PRANAB MUKHERJEE 591
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] [633E-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]
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.
Per Chelameswar. J.:
It cannot be said that the instant election petition
does not deserve a regular hearing. Reasons for such
D
E
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] [634C]
1.2. Art. 71 of the Constitution provides for matters
relating to, or connected with, the election of the
H
592
SUPREME COURT REPORTS
[2012] 11 S.C.R.
A 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
B 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
C 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
D 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
E 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
F 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
G 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
H suit-(including an election petition) on the twin grounds
PURNO AGITOK SANGMA v. PRANAB MUKHERJEE 593
mentioned in r. 6 of 0. 23. [para 13 and 15] [639-C-D; 640A
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
B
the pleadings made or the question of maintainability of
the election petition in the light of any particular statutory
enactment. A further enquiry, which obviously must
exclude matters that would fall within the domain of a
regular hearing under r. 20, would be called for in the
preliminary hearing under r. 13 of 0. 39. In the course of C
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
D
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
E
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
F
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
G
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 H
594
SUPREME COURT REPORTS
[2012] 11 S.C.R.
A 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
B 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
C 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
D 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
E 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
F 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
G 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
H notice and consideration. [para 17-18] [641-F-H; 642·8-D]
PURNO AGITOK SANGMA v. PRANAB MUKHERJEE 595
2.3. Article 58(1 )(c) requires a Presidential candidate
A
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
B
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, c
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
E 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]
F
[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
G
as election to the office of the President is concerned.
The disqualification incurred by a Presidential candidate
H
on account of holding of an office of profit is not
596
SUPREME COURT REPORTS
[2012] 11 S.C.R.
A 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
B 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]
c
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,
D 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]
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
F 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
G 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
H the Vice-President is fixed by the Constitution to be this
PURNO AGITOK SANGMA v. PRANAB MUKHERJEE 597
Court. In exercise of power under Art. 71 (3) read with Art.
A
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
B
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 C
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]
D
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
E
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
G
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; 654D-F]
F
H
598
SUPREME COURT REPORTS
[2012] 11 S.C.R.
A
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
B 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
C 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
D 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
E 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
F 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
G 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
H specified under r.14. An election petition under the Act is
PURNO AGITOK SANGMA v. PRANAB MUKHERJEE 599
required to be listed for a preliminary hearing A
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
B
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 C
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 D
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 a E
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
F
to law for clear and cogent reasons to be recorded. [para
16-17] [657-G-H; 658-A-B-C]
G
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
H
600
SUPREME COURT REPORTS
[2012) 11 S.C.R.
A 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
B 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
C 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]
D
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
E 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
F 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]
G [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
H render the respondent ineligible to contest the election in
PURNO AGITOK SANGMA v. PRANAB MUKHERJEE 601
question? Further, the question would be, whether the
A
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] [6628-D]
.
B
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
C
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]
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
E
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
F
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 G
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
H
602
SUPREME COURT REPORTS
[2012] 11 S.C.R.
A 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
B 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]
C
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
D 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
E 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 46F 47 and 54] [671-D-E, G; 673-C-D]
G
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
H such an understanding is neither conclusive nor binding
PURNO AGITOK SANGMA v. PRANAB MUKHERJEE 603
on this Court while interpreting the Constitution. Such
A
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/
B
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 C
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
E
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
F
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
G
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
H
604
SUPREME COURT REPORTS
[2012] 11 S.C.R.
A 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
8 111ight or might not secure information to demonstrate
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
C 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
D 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
E 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
F 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]
G
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
H respondent or confronting the respondent with such
PURNO AGITOK SANGMA v. PRANAB MUKHERJEE 605
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
AIR 1953 SC 653
referred to
para 28
E
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
606
SUPREME COURT REPORTS
[2012) 11 S.C.R.
A
Per J. Chelameswar, J,
1968 SCR 133
relied on
para 44
1984 (1) SCR 395
relied on
para 49
B
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
c
CIVIL ORIGINAL JURISDICTION : Under Article 71 of the
Constitution of India.
Election Petition No. 1 of 2012.
D
Goolam E. Vahanvati, A.G., Ram Jethmalani, Satya Pal
Jain, Harish N. Salve, Pravin H.