Pranab Mukherjee was elected as the President of India on 22nd July, 2012. The elections for the president post was held on 19th July, 2012. The official candidates were Pranab Mukherjee from UPA side, and P.A. Sangma from NDA side. Pranab Mukherjee received votes of the value of 7, 13,763 and was declared elected to the Office of the President of India. On the other hand, P.A. Sangma received votes of the value of 3, 15,987.

Challenge to the Election

P.A. Sangma challenged the election of Pranab Mukherjee as President of India on the ground that he was not eligible to contest the Presidential election in view of the provisions of Article 58 of the Constitution of India, which is extracted herein below:

58. Qualifications for election as President.-

(1) No person shall be eligible for election as President unless he

(a) is a citizen of India,

(b) has completed the age of thirty-five years, and

(c) is qualified for election as a member of the House of the People.

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

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

According to the Petitioner (Sangma), at the time of filing the nomination papers as a candidate for the Presidential elections, the Respondent (Mukherjee) held the Office of Chairman of the Council of Indian Statistical Institute, Calcutta, which, according to him, was an office of profit.

Objection to returning officer was also filed in this case

At the time of scrutiny of the nomination papers on 2nd July, 2012, an objection to that effect was raised before the Returning Officer by the Petitioner’s authorized representative, who urged that the nomination papers of the Respondent were liable to be rejected. In response to the said submission, the representative of the Respondent sought two days’ time to file a reply to the objections raised by the Petitioner.

Thereafter, on 3rd July, 2012, a written reply was submitted on behalf of the Respondent to the objections raised by the Petitioner before the Returning Officer, along with a copy of a resignation letter dated 20th June, 2012, whereby the Respondent claimed to have resigned from the Chairmanship of the Institute.

The matter was, thereafter, considered by the Returning Officer at the time of scrutiny of the nomination papers on 3rd July, 2012, when the Petitioner’s representative even questioned the genuineness of the resignation letter submitted by the Respondent to the President of the Council of the Institute, Prof. M.G.K. Menon.

Having considered the submissions made on behalf of the parties, the Returning Officer, by his order dated 3rd July, 2012, rejected the Petitioner’s objections and accepted the Respondent’s nomination papers. Accordingly, on 3rd July, 2012, the Petitioner and the Respondent were declared to be the only two duly nominated candidates for the Presidential election.

Immediately after the rejection of the Petitioner’s objection to the Respondent’s candidature for the Presidential elections, on 9th July, 2012, a petition was submitted to the Election Commission of India, under Article 324 of the Constitution, praying for directions to the Returning Officer to re-scrutinize the nomination papers of the Respondent and to decide the matter afresh after hearing the Petitioner.

The Election Commission rejected the said petition as not being maintainable before the Election Commission, since all disputes relating to Presidential elections could be inquired into and decided only by Supreme Court. Thereafter, as indicated hereinabove, the Presidential elections were conducted on 19th July, 2012, and the Respondent was declared elected to the Office of the President of India on 22nd July, 2012.

Petition in Supreme Court and Supreme Court Procedure related to the hearing of the Petition

Aggrieved by the decision of the Returning Officer in accepting the nomination papers of the Respondent as being valid, the Petitioner questioned the election of the Respondent as the President of India under Article 71 of the Constitution read with Order XXXIX of the Supreme Court Rules, 1966, and, in particular, Rule 13 thereof. The said Rule, which is relevant for a decision in this petition, reads as follows:

“13. Upon presentation of a petition the same shall be posted before a bench of the Court consisting of five Judges for preliminary hearing and orders for service of the petition and advertisement thereof as the Court may think proper and also appoint a time for hearing of the petition.

Upon preliminary hearing, the Court, if satisfied, that the petition does not deserve regular hearing as contemplated in Rule 20 of this Order may dismiss the petition or pass any appropriate order as the Court may deem fit.”

In keeping with the provisions of Rule 13 of Order XXXIX of the Supreme Court Rules, 1966, which deals with Election Petitions under Part III of the Presidential and Vice-Presidential Elections Act, 1952, the Election Petition filed by the Petitioner was listed for hearing on the preliminary point as to whether the petition deserved a hearing, as contemplated by Rule 20 of Order XXXIX, which provides as follows:

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

Provisions

The Constitution provides for the manner in which the election of a President or a Vice-President may be questioned. Article 71 provides for matters relating to or connected with the election of a President or a Vice- President.

Clause (1) of Article 71 provides that all doubts and disputes arising out of or in connection with the election of a President or Vice- President shall be inquired into and decided by the Supreme Court whose decision shall be final.

Sub-clause (3) provides that subject to the provisions of the Constitution, Parliament may, by law, regulate any matter, relating to or connected with the election of a President or a Vice- President.

In addition, the Presidential and Vice-Presidential Elections Act was enacted in 1952 with the object of regulating certain matters relating to or connected with elections to the Office of President and Vice- President of India.

Sections 14 and 14A of the 1952 Act, specially vest the jurisdiction to try Election Petitions thereunder with the Supreme Court in the manner indicated therein. In fact, Part III of the said Act deals with disputes regarding elections to the posts of President and Vice-President of India, which contains Sections 14 and 14A, as also Sections 17 and 18 which empower the Supreme Court to either dismiss the Election Petition or to declare the election of the returned candidate to be void or declare the election of the returned candidate to be void and the Petitioner or any other candidate to have been duly elected.

In view of Sub-section (3) of Section 14 of the Act, the Supreme Court has framed Rules under Article 145 of the Constitution which are contained in Order XXXIX of the Supreme Court Rules, 1966.

As has been discussed earlier, Rule 13 of Order XXXIX provides that upon presentation of a Petition relating to a challenge to election to the post of President of India, the same is required to be posted before a Bench of the Court consisting of five Judges for preliminary hearing and to consider whether the Petition deserved a regular hearing, as contemplated in Rule 20 of Order XXXIX, and, in that context, such Bench may either dismiss the Petition or pass any appropriate order as it thought fit.

It is under the aforesaid Scheme that the present Election Petition filed by Shri Purno Agitok Sangma challenging the election of Shri Pranab Mukherjee as the President of India taken up for preliminary hearing on the question as to whether it deserved a regular hearing or not.

Main Question to the Challenge

The challenge is based mainly on the allegation that on the date of filing of nominations, the Respondent, Shri Pranab Mukherjee, held “offices of profit”, namely,

(i) Chairman of the Indian Statistical Institute, Calcutta; and

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

In regard to the aforesaid challenges, Mr. Ram Jethmalani, appearing for the Petitioner, had urged that in order to arrive at a conclusive decision on the said two points, it was necessary that a regular hearing be conducted in respect of the Election Petition to ascertain the truth of the allegations made by the Petitioner.

It was also submitted that the same required a full scale hearing in the manner as contemplated under Section 141 of the Code of Civil Procedure, as would be evident from Order XXXIX read with the provisions relating to the Original Jurisdiction of the Supreme Court, contained in Part III of the Supreme Court Rules, 1966.

On the other hand, it has been urged by Mr. Harish Salve, appearing for the Respondent, that on the date of filing of nominations, Shri Pranab Mukherjee was neither holding the Office of Chairman of the aforesaid Institute nor was he the Leader of the House in the Lok Sabha, inasmuch as, in respect of both the posts, he had tendered his resignation on 20th June, 2012.

Analysis of the Court

The court said,

There is some doubt as to whether the Office of the Chairman of the Indian Statistical Institute is an office of profit or not, even though the same has been excluded from the ambit of Article 102 of the Constitution by the provisions of the Parliament (Prevention of Disqualification) Act, 1959, as amended in 2006. Having been included in the Table of posts saved from disqualification from membership of Parliament, it must be accepted to be an office of profit.

However, as argued by Mr. Salve, categorising the office as an “office of profit” did not really make it one, since it did not provide any profit and was purely honorary in nature. There was neither any salary nor honorarium or any other benefit attached to the holder of the said post. It was not such a post which, in fact, was capable of yielding any profit, which could make it, in fact, an office of profit.

The said proposition was considered in Shibu Soren’s case where it was held that mere use of the word “honorarium” would not take the payment out of the concept of profit, if there was some pecuniary gain for the recipient in addition to daily allowances in the nature of compensatory allowances, rent-free accommodation and chauffeur driven car at State expense.

Similar was the view expressed in Jaya Bachchan’s case (2006) where also this Court observed that what was relevant was whether the office was capable of yielding a profit or pecuniary gain, other then reimbursement of out-of-pocket/actual expenses and not whether the person actually received any monetary gain or did not withdraw the emoluments to which he was entitled. In other words, whether a person holding a post accepted the benefits thereunder was not material, what was material is whether the said office was capable of yielding a profit or pecuniary gain.

In the instant case, the office of Chairman of the Institute did not provide for any of the amenities indicated hereinabove and, in fact, the said office was also not capable of yielding profit or pecuniary gain.

In regard to the office of the Leader of the House, it is quite clear that the Respondent had tendered his resignation from membership of the House before he filed his nomination papers for the Presidential election.

The controversy that the Respondent had resigned from the membership of the Indian National Congress and its Central Working Committee allegedly on 25th June, 2012, was set at rest by the affidavit filed by Shri Pradeep Gupta, who is the Private Secretary to the President of India. In the said affidavit, Shri Gupta indicated that through inadvertence he had supplied the date of the Congress Working Committee meeting held on 25th June, 2012, to bid farewell to Shri Mukherjee on his nomination for the Presidential Election being accepted.

In any event, the disqualification contemplated on account of holding the post of Leader of the House was with regard to the provisions of Article 102(1)(a) of the Constitution, besides being the position of the leader of the party in the House which did not entail the holding of an office of profit under the Government. In any event, since the Respondent tendered his resignation from the said post prior to filing of his nomination papers, which was duly acted upon by the Speaker of the House, the challenge thrown by the Petitioner to the Respondent’s election as President of India on the said ground loses its relevance.

In any event, the provisions of the Parliament (Prevention of Disqualification) Act, 1959, as amended in 2006, excluded the post of Chairman of the Institute as a disqualification from being a Member of Parliament.

It may not be inappropriate at this stage to mention that this Court has repeatedly cautioned that the election of a candidate who has won in an election should not be lightly interfered with unless circumstances so warrant.

Reference

P.A. Sangma v. Pranab Mukherjee (2012)