CASE STUDY

“PURNA AGITOK SANGMA

v.
PRANAB MUKHERJEE”
AIR 2013 SC 372

SUBMITTED BY:

NAME:

FOURTH SEMESTER UNITARY LLB

DEGREE COURSE

ROLL NUMBER:
PART –I

INTRODUCTION
 In this present petition, Mr. P A Sangma has sought that Pranab Mukherjee’s election

should be set aside and in his place he should be elected unopposed as the President.

 The allegations were that Pranab Mukherjee was disqualified from contesting as he held

the office of the chairman of Indian Statistical Institute and the office of the Leader of the

Congress in the Lok Sabha which the Hon’ble Supreme Court later held to be untenable

and misconceived.

 Presidential election - Disqualification under Art. 58(2) i.e. on ground of holding ``office

of profit'' as specified. The Petitioner has challenged the election of the Respondent as

President of India on the ground that he was not eligible to contest the Presidential

election in view of the provisions of Article 58 of the Constitution of India. Aggrieved by

the decision of the Returning Officer in accepting the nomination papers of the

Respondent as being valid, the Petitioner has questioned the election of the Respondent

as the President of India under Article 71 of the Constitution read with Order XXXIX of

the Supreme Court Rules, 1966, and, in particular, Rule 13 thereof because the petitioner

claimed that the respondent held an office of profit.

FACTS OF THE CASE

The Petitioner was a candidate in the Presidential elections held on 19th July, 2012, the results

whereof were declared on 22nd July, 2012. The Petitioner and the Respondent were the only two

duly nominated candidates. The Respondent received votes of the value of 7,13,763 and was

declared elected to the Office of the President of India. On the other hand, the Petitioner received

votes of the value of 3,15,987. The Petitioner has challenged the election of the Respondent as

President of India on the ground that he was not eligible to contest the Presidential election in

view of the provisions of Article 58 of the Constitution of India. According to the Petitioner, at

the time of filing the nomination papers as a candidate for the Presidential elections, the

Respondent held the Office of Chairman of the Council of Indian Statistical Institute, Calcutta,

hereinafter referred to as the Institute, which, according to him, was an office of profit. It appears

that at the time of scrutiny of the nomination papers on 2nd July, 2012, an objection to that effect

had been raised before the Returning Officer by the Petitioner's authorized representative, who

urged that the nomination papers of the Respondent were liable to be rejected. In response to the

said submission, the representative of the Respondent sought two days' time to file a reply to the

objections raised by the Petitioner. Thereafter, on 3rd July, 2012, a written reply was submitted

on behalf of the Respondent to the objections raised by the Petitioner before the Returning

Officer, along with a copy of a resignation letter dated 20th June, 2012, whereby the Respondent

claimed to have resigned from the Chairmanship of the Institute. A reply was also filed on behalf

of the Respondent to the objections raised by Shri Charan Lal Sahu. The matter was, thereafter,

considered by the Returning Officer at the time of scrutiny of the nomination papers on 3rd July,

2012, when the Petitioner's representative even questioned the genuineness of the resignation

letter submitted by the Respondent to the President of the Council of the Institute, Prof. M.G.K.

Menon. the Returning Officer, by his order dated 3rd July, 2012, rejected the Petitioner's

objections as well as the objections raised by Shri Charan Lal Sahu, and accepted the
Respondent's nomination papers. Accordingly, on 3rd July, 2012, the Petitioner and the

Respondent were declared to be the only two duly nominated candidates for the Presidential

election. Immediately after the rejection of the Petitioner's objection to the Respondent's

candidature for the Presidential elections, on 9th July, 2012, a petition was submitted to the

Election Commission of India, under Article 324 of the Constitution, praying for directions to the

Returning Officer to re-scrutinize the nomination papers of the Respondent and to decide the

matter afresh after hearing the Petitioner. The Election Commission rejected the said petition as

not being maintainable before the Election Commission, since all disputes relating to Presidential

elections could be inquired into and decided only by this Court. Thereafter, as indicated

hereinabove, the Presidential elections were conducted on 19th July, 2012, and the Respondent

was declared elected to the Office of the President of India on 22nd July, 2012. Aggrieved by the

decision of the Returning Officer in accepting the nomination papers of the Respondent as being

valid, the Petitioner has questioned the election of the Respondent as the President of India under

Article 71 of the Constitution read with Order XXXIX of the Supreme Court Rules, 1966, and, in

particular, Rule 13 thereof.

 ISSUES OF THE CASE

 Whether the Respondent's election as President of India, was liable to be declared as void
mainly on the ground that by holding the post of Chairman of the Indian Statistical

Institute, Calcutta, on the date of scrutiny of the nomination papers?

 Whether the Respondent held any office of profit, (leader of House of Lok Sabha) which

could disqualify him from contesting the Presidential election?

 Whether the annexures to the affidavit filed on behalf of the Respondent could be treated
as a valid proof of him exempting himself from the office of profit?

 Whether the Parliament (Prevention of Disqualification) Act, 1959 as amended by the

Amendment Act No.31 of 2006 has application insofar as election to the office of the

President is concerned?
 CASES REFERRED

 Baburao Patel v. Dr. Zakir Hussain (1968) 2 SCR 133

PROVISION OF LAW
 The Constitution of India 1949

o Article 58- Qualifications for election as President.- (1) No person shall be

eligible for election as President unless he -(a) is a citizen of India, (b) has

completed the age of thirty-five years, and (c) is qualified for election as a

member of the House of the People.(2) A person shall not be eligible for election

as President if he holds any office of profit under the Government of India or the

Government of any State or under any local or other authority subject to the

control of any of the said Governments.

Explanation.-For the purposes of this article, a person shall not be deemed to hold

any office of profit by reason only that he is the President or Vice President of the

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

any State.

o 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.

o Article 226: Power of High Courts to issue certain writs: (1) Notwithstanding

anything in Article 32 every High Court shall have powers, throughout the

territories in relation to which it exercise jurisdiction, to issue to any person or

authority, including in appropriate cases, any Government, within those

territories directions, orders or writs, including writs in the nature of habeas

corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for

the enforcement of any of the rights conferred by Part III and for any other

purpose; (2) The power conferred by clause ( 1 ) to issue directions, orders or

writs to any Government, authority or person may also be exercised by any High

Court exercising jurisdiction in relation to the territories within which the cause

of action, wholly or in part, arises for the exercise of such power, notwithstanding

that the seat of such Government or authority or the residence of such person is

not within those territories; (3) Where any party against whom an interim order,

whether by way of injunction or stay or in any other manner, is made on, or in

any proceedings relating to, a petition under clause ( 1 ), without (a) furnishing to

such party copies of such petition and all documents in support of the plea for

such interim order; and (b) giving such party an opportunity of being heard,

makes an application to the High Court for the vacation of such order and

furnishes a copy of such application to the party in whose favour such order has

been made or the counsel of such party, the High Court shall dispose of the

application within a period of two weeks from the date on which it is received or

from the date on which the copy of such application is so furnished, whichever is
 later, or where the High Court is closed on the last day of that period, before the

expiry of the next day afterwards on which the High Court is open; and if the

application is not so disposed of, the interim order shall, on the expiry of that

period, or, as the case may be, the expiry of the aid next day, stand vacated;

(4) The power conferred on a High Court by this article shall not be in derogation

of the power conferred on the Supreme court by clause ( 2 ) of Article 32.

o Article 324- Superintendence, direction and control of elections to be vested in an

Election Commission: (1) The superintendence, direction and control of the

preparation of the electoral rolls for, and the conduct of, all elections to

Parliament and to the Legislature of every State and of elections to the offices of

President and Vice President held under this Constitution shall be vested in a

Commission (referred to in this Constitution as the Election Commission);

(2) The Election Commission shall consist of the Chief Election Commissioner

and such number of other Election Commissioners, if any, as the President may

from time to time fix and the appointment of the Chief Election Commissioner

and other Election Commissioners shall, subject to the provisions of any law

made in that behalf by Parliament, be made by the President; (3) When any other

Election Commissioner is so appointed the Chief Election Commissioner shall

act as the Chairman of the Election Commission; (4) Before each general election

to the House of the People and to the Legislative Assembly of each State, and

before the first general election and thereafter before each biennial election to the

Legislative Council of each State having such Council, the President may also

appoint after consultation with the Election Commission such Regional

Commissioners as he may consider necessary to assist the Election Commission

 in the performance of the functions conferred on the Commission by clause ( 1 );

(5) Subject to the provisions of any law made by Parliament, the conditions of

service and tenure of office of the Election Commissioners and the Regional

Commissioners shall be such as the President may by rule determine; Provided

that the Chief Election Commissioner shall not be removed from his office except

in like manner and on the like grounds as a Judge of the Supreme Court and the

conditions of service of the Chief Election Commissioner shall not be varied to

his disadvantage after his appointment: Provided further that any other Election

Commissioner or a Regional Commissioner shall not be removed from office

except on the recommendation of the Chief Election Commissioner; (6) The

President, or the Governor of a State, shall, when so requested by the Election

Commission, make available to the Election Commission or to a Regional

Commissioner such staff as may be necessary for the discharge of the functions

conferred on the Election Commission by clause ( 1 ).

 Supreme Court Rules, 1966

o Rule 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.

 o Rule 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.

o Rule 34: Subject to the provisions of this Order or any special order or direction

of the Court, the procedure of an Election Petition shall follow as nearly as may

be the procedure in proceedings before the Court in exercise of its Original

Jurisdiction.” Mr. Jethmalani pointed out that in the Original Jurisdiction of the

Supreme Court, provided for in Order XXII of the Supreme Court Rules, 1966,

the entire procedure for institution and trial of a suit has been set out, providing

for all the different stages in respect of a suit governed by the Code of Civil

Procedure. Mr. Jethmalani submitted that the making of the procedure for trial of

Election Petitions akin to that of the Original Jurisdiction of the Supreme Court,

was a clear indication that the matter must be tried as a suit, if under Rule 13 of

Order XXXIX, the Court consisting of 5 Judges was satisfied at a preliminary

inquiry that the matter deserved a regular hearing, as contemplated in Rule 20 of

the said Order.

  The Representation of the People Act, 1951

o Section 87: Procedure before the High Court.—(1) Subject to the provisions of

this Act and of any rules made thereunder, every election petition shall be tried by

the High Court, as nearly as may be, in accordance with the procedure applicable

under the Code of Civil Procedure, 1908 (5 of 1908) to the trial of suits: Provided

that the High Court shall have the discretion to refuse, for reasons to be recorded

in writing, to examine any witness or witnesses if it is of the opinion that the

 evidence of such witness or witnesses is not material for the decision of the

petition or that the party tendering such witness or witnesses is doing so on

frivolous grounds or with a view to delay the proceedings. (2) The provisions of

the Indian Evidence Act, 1872 (1 of 1872), shall subject to the provisions of this

Act, be deemed to apply in all respects to the trial of an election petition.]

 Code of Civil Procedure, 1908

o Section 141: Miscellaneous Proceedings. - The procedure provided in this Code

in regard to suit shall be followed, as far as it can be made applicable, in all

proceedings in any Court of civil jurisdiction.

 The Presidential and Vice-Presidential Elections Act, 1952

o Section 5-  Public notice of election.—On the issue of a notification under sub-

section (1) of section 4, the returning officer for the election shall give public

notice of the intended election in such form and in such manner as may be

prescribed, inviting nominations of candidates for such election and specifying

the place at which the nomination papers are to be delivered.]

o Section 5A-  Nomination of candidates.—Any person may be nominated as a

candidate for election to the office of President or Vice-President if he is

qualified to be elected to that office under the Constitution.

o Section 5B- Presentation of nomination papers and requirements for a valid

nomination.— (1) On or before the date appointed under clause(a) of sub-section

(1) of section 4, each candidate shall, either in person or by any of his proposers
or seconders, between the hours of eleven o’clock in the forenoon and three

o’clock in the afternoon, deliver to the returning officer at the place specified in

this behalf in the public notice issued under section 5 a nomination paper

completed in the prescribed form and subscribed by the candidate as assenting to

the nomination, and (a) in the case of Presidential election, also by at least [fifty

electors] as proposers and at least [fifty electors] as seconders; (b) in the case of

Vice-Presidential election, also by at least   [twenty electors] as proposers and at

least  [twenty electors] as seconders: Provided that no nomination paper shall be

presented to the returning officer on a day which is a public holiday. (2) Each

nomination paper shall be accompanied by a certified copy of the entry relating

to the candidate in the electoral roll for the parliamentary constituency in which

the candidate is registered as an elector. (3) The returning officer shall not accept

any nomination paper which is presented on any day before eleven o’clock in the

forenoon and after three o’clock in the afternoon. (4) Any nomination paper

which is not received before three o’clock in the afternoon on the last date

appointed under clause (a) of sub-section (1) of section 4 or to which the

certified copy referred to in sub-section (2) of this section is not attached shall be

rejected and a brief note relating to such rejection shall be recorded on the

nomination paper itself. (5) No elector shall subscribe, whether as proposer or as

seconder, more than one nomination paper at the same election and, if he does,

his signature shall be inoperative on any paper other than the one first delivered.

(6) Nothing in this section shall prevent any candidate from being nominated by

more than one nomination paper for the same election: Provided that not more
 than four nomination papers shall be presented by or on behalf of any candidate

or accepted by the returning officer.]

o 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, (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 (45 of 1860).

ARGUMENTS OF APPELLANT
Mr. Ram Jethmalani, learned Senior Advocate, appearing for the Petitioner, submitted that the

Respondent's election as President of India, was liable to be declared as void mainly on the

ground that by holding the post of Chairman of the Indian Statistical Institute, Calcutta, on the

date of scrutiny of the nomination papers, the Respondent held an office of profit, which

disqualified him from contesting the Presidential election. Mr. Jethmalani urged that apart from

holding the office of the Chairman of the aforesaid Institute, the Respondent was also the Leader

of the House in the Lok Sabha which had been declared as an office of profit. Urging that since

the Respondent was holding both the aforesaid offices, which were offices of profit, on the date

of filing of the nomination papers, the Respondent stood disqualified from contesting the

Presidential election in view of Article 58(2) of the Constitution. Mr. Jethmalani submitted that

Article 71 of the Constitution provides that all doubts and disputes arising out of or in connection

with the election of a President or Vice-President shall be inquired into and decided by the

Supreme Court whose decision is to be final. Mr. Jethmalani submitted that there were sufficient

doubts to the Respondent's assertion that on the date of filing of his nomination papers, he had

resigned both from the office of Chairman of the Indian Statistical Institute, Calcutta, and as the

Leader of the House in the Lok Sabha, on 20th June, 2012. Mr. Jethmalani urged that the doubt

which had been raised could only be dispelled by a full-fledged inquiry which required evidence

to be taken and cross-examination of the witnesses whom the Respondent might choose to

examine. Accordingly, Mr. Jethmalani submitted that the instant petition would have to be tried

in the same manner as a suit. For the sake of comparison, Mr. Jethmalani referred to Section 87

of the Representation of the People Act, 1951, laying down the procedure for the trial of Election

Petitions and providing that every Election Petition shall be tried by the High Court, as nearly as

may be, in accordance with the procedure applicable under the Code of Civil Procedure to the

trial of suits. Mr. Jethmalani urged that in matters relating to election disputes it was the intention
of the Legislature to have the same tried as regular suits following the procedure enunciated in

Section 141 C.P.C. Mr. Jethmalani submitted that from the annexures to the affidavit filed on

behalf of the Respondent it was highly doubtful as to whether the Respondent had actually

resigned from the post of Chairman of the Institute on 20th June, 2012, or even from the

Membership of the Congress Party, including the Working Committee, and from the office of the

Leader of the Congress Party in Lok Sabha on the same date, as contended by him. Mr.

Jethmalani submitted that from the copy of the letter addressed to Professor M.G.K. Menon,

President of the Institute, it could not be ascertained as to whether the endorsement made by

Professor Menon amounted to acceptance of the Respondents resignation or receipt of the letter

itself. Learned counsel urged that this was another case of doubt within the meaning of Article

71 of the Constitution of India which required the Election Petition to be tried as a suit for which

a detailed hearing was required to be undertaken by taking evidence and allowing for cross-

examination of witnesses.

It was also submitted that the expression office of profit has not been conclusively explained till

today under the Presidential and Vice- Presidential Elections Act, 1952, nor any other pre-

independence statute, and the same required to be resolved by this Court. In this regard, Mr.

Jethmalani referred to the decision of a three-Judge Bench of this Court in the case of Shibu

Soren Vs. Dayanand Sahay & Ors. [(2001) 7 SCC 425], in which the aforesaid expression came

to be considered and in interpreting the provision of Articles 102(1)(a) and 191(1)(a), this Court

held that such interpretation should be realistic having regard to the object of the said Articles. It

was observed that the expression profit connotes an idea of some pecuniary gain other than

compensation. Mr. Jethmalani also referred to the decision of this Court in the case of Jaya

Bachchan Vs. Union of India & Ors. [(2006) 5 SCC 266], wherein also the phrase office of profit

fell for interpretation within the meaning of Article 102 and other provisions of the Constitution
with regard to use of the expression honorarium and its effect regarding the financial status of the

holder of office or interest of the holder in profiting from the office. It was observed that what

was relevant was whether the office was capable of yielding a profit or pecuniary gain, other

than reimbursement of out-of-pocket/actual expenses, and not whether the person actually

received monetary gain or did not withdraw the emoluments to which he was entitled. Mr.

Jethmalani urged that having regard to the above, the Election Petition deserved a regular

hearing, as contemplated in Rule 20 of Order XXXIX of the Supreme Court Rules, 1966.

ARGUMENTS OF RESPONDENTS
Appearing for the Respondent, Mr. Harish Salve, learned Senior Advocate, submitted that

election to the office of the President of India is regulated under the provisions of the Presidential

and Vice-Presidential Act, 1952, hereinafter referred to as the 1952 Act, and, in particular Part

III thereof, which deals with disputes regarding elections. Mr. Salve pointed out that Sections 14

and 14A of the Act specifically vest the jurisdiction to try Election Petitions under the 1952 Act

with the Supreme Court, in the manner prescribed in the said sections. Accordingly, the

challenge to a Presidential election would have to be in compliance with the provisions of Order

XXXIX of the Supreme Court Rules, 1966, which deals with Election Petitions under Part III of

the 1952 Act. Rule 13 of Order XXXIX of the Supreme Court Rules, therefore, becomes

applicable and it enjoins that upon presentation of an Election Petition, the same has to be posted

before a Bench of the Court consisting of five Judges, for preliminary hearing to satisfy itself

that the petition deserves a regular hearing, as contemplated in Rule 20.

Mr. Salve submitted that the nomination papers of the respective candidates had been scrutinized

by the Returning Officer in accordance with the provisions of Section 5A of the 1952 Act.

Referring to Sub-Section (3) of Section 5E, Mr. Salve submitted that after completing all the

formalities indicated in Sub-Section (3), the Returning Officer had accepted the nomination

papers of the Respondent as valid, which, thereafter, gave the Respondent the right to contest the

election. Mr. Salve submitted that Section 14 of the 1952 Act was enacted under Clause (3) of

Article 71 of the Constitution which provides that subject to the provisions of the Constitution,

Parliament may by law regulate any matter relating to or connected with the election of a

President or Vice- President. Mr. Salve submitted that the election of the President and Vice-

President has been treated on a different level in comparison with the election of Members of

Parliament and other State Legislatures. While Article 102 deals with election of Members to the

House, Article 58 deals with the election of the President and the Vice-President of India, which
has to be dealt with strictly in accordance with the law laid down in this regard. In support of his

aforesaid contention, Mr. Salve referred to a Seven-Judge Bench decision of this Court in the

case of Charan Lal Sahu Vs. Neelam Sanjeeva Reddy [(1978) 2 SCC 500], where the alleged

conflict between Article 71(1) of the Constitution with Article 58 thereof was considered by this

Court and it was held that Article 58 only provides for the qualification regarding the eligibility

of a candidate to contest the Presidential elections and had nothing to do with the nomination of

a candidate which required 10 proposers and 10 seconders. The provisions of Sections 5B and

5C of the 1952 Act were also considered and held not to be in conflict with Article 14 of the

Constitution. Article 71(3) of the Constitution was also seen to be a law by which Parliament

could regulate matters connected with the Presidential elections, including those relating to

election disputes arising out of such an election. Mr. Salve then urged that since the provisions of

Order XXXIX of the Supreme Court Rules framed under Article 145 of the Constitution had

been so framed in accordance with Section 14 of the 1952 Act, the provisions of Section 141 of

the Code of Civil Procedure could not be imported into deciding a dispute relating to a challenge

to the election of the President. Mr. Salve submitted that Rule 13 of Order XXXIX of the

Supreme Court Rules, 1966, stood substituted on 9th December, 1997, and the substituted

provision came into effect on 20th December, 1997. In the Original Rule which came to be

substituted, there was no provision for a preliminary hearing to be conducted to establish as to

whether the Election Petition deserved a regular hearing. However, in view of repeated and

frivolous challenges to the elections of almost all of the Presidents elected, the need for such an

amendment came to be felt so as to initially evaluate as to whether such an Election Petition,

challenging the Presidential election, deserved a regular hearing.

Mr. Salve then submitted that the post of Chairman of the Indian Statistical Institute, Calcutta,

was not an office of profit as the post was honorary and there was no salary or any other benefit
attached to the said post. Learned counsel submitted that even if one were to accept the

interpretation sought to be given by Mr. Ram Jethmalani that the office itself may not provide for

any direct benefit but that there could be indirect benefits which made it an office of profit, the

said post neither provides for any honorarium nor was capable of yielding any profit which could

make it an office of profit. Mr. Salve submitted that the law enunciated in the decisions cited by

As to the holding of the post of Leader of the House, Mr. Salve submitted that the holder of such

a post is normally a Cabinet Minister of the Government and is certainly not an appointee of the

Government of India so as to bring him within the bar of Clause (2) of Article 58 of the

Constitution of India. In support of his contention that the provisions of Section 141 CPC would

not apply in the facts of this case, Mr. Salve referred to the decision of this Court in Mange Ram

Vs. Brij Mohan & Ors. [(1983) 4 SCC 36], wherein the Code of Civil Procedure and the High

Court Rules regarding trial of an Election Petition, were considered, and it was held that where

necessary, the provisions of the Civil Procedure Code could be applied, but only when the High

Court Rules were not sufficiently effective for the purpose of the production of witnesses or

otherwise during the course of trial of the petition. Mr. Salve also referred to a three-Judge

Bench decision of this Court in Ravanna Subanna Vs. G.S. Kaggeerappa [AIR 1953 SC 653],

which was a case from Mysore relating to the election of a Councilor under the Mysore Town

Municipal Act, 1951. On the other question with regard to the acceptance of the Respondent's

resignation from the post of Chairman of the Institute held by the Respondent, Mr. Salve

submitted that the alleged discrepancy in the signatures of the Respondent in his letter of

resignation addressed to the President of the Institute with his other signatures, was no ground to

suspect that the said document was forged, particularly when it was accepted by the Respondent

that the same was his signature and that he used both signatures when signing letters and

documents. In this regard, Mr. Salve referred to the Constitution Bench decision of this Court in
Union of India & Ors. Vs. Gopal Chandra Mishra & Ors. [(1978(2) SCC 301], wherein the

question as to when a resignation takes place or is to take effect, has been considered in some

detail.

JUDGMENT OF THE CASE

The Court held that, “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. The learned Attorney General, Mr. Goolam E. Vahanvati, firstly urged that the

expression office of profit ought not to be interpreted in a pedantic manner and has to be

considered in the light of the duties and functions and the benefits to be derived by the holder of

the office. Mr. Vahanvati pointed out that the post of Chairman of the Institute was a purely

honorary post, meant to honour the holder thereof. It did not require the active participation of

the Chairman in the administration of the Institute, which was looked after by the President and

his Council constituted under the Rules and Regulations of the Institute. Mr. Vahanvati also

submitted that the post was purely honorary in nature and did not benefit the holder thereof in

any way, either monetarily or otherwise, nor was there any likelihood of any profit being derived

therefrom.

Under Article 58(1)(b) a Presidential candidate must have completed the age of 35 years. At the

same time, under Article 58(1)(c) such a person must be eligible to seek election as a Member of

the House of the People. Under Article 84(b) a candidate, seeking election to the House of the

People must not be less than 25 years of age. In other words, a person qualified to be a Member

of the House of the People but below 35 years of age will not be qualified to be a candidate for

election to the office of the President. Similarly, to be eligible for membership of Parliament

(including the House of the People) a candidate must make and subscribe an oath or affirmation

according to the prescribed form. No such condition or stipulation is mandated for a Presidential

candidate by Article 58. No conclusion that a regular hearing in the present case will be a
redundant exercise or an empty formality can be reached so as to dispense with the same and

terminate the Election Petition at the stage of its preliminary hearing under Order XXXIX Rule

13. Hence the Court held that the Election Petition, therefore, deserves a regular hearing under

Order XXXIX Rule 20 in accordance with what is contained in the different provisions of Part

III of the Supreme Court Rules, 1966.”

REASON FOR JUDGMENT

The three-Judge Bench, which heard the matter, held that an office of profit is an office which is

capable of yielding profits of pecuniary gain and that holding an office under the Central or State

Government, to which some pay, salary, emolument, remuneration or non-compensatory

allowance is attached, is holding an office of profit. However, the question whether a person

holds an office of profit has to be interpreted in a realistic manner and the nature of the payment

must be considered as a matter of substance rather than of form. Their Lordships further

observed that for deciding the question as to whether one is holding an office of profit or not,

what is relevant is whether the office is capable of yielding a profit or pecuniary gain and not

whether the person actually obtained any monetary gain.

Relying on its own earlier judgments, the Hon’ble Judges of the Bench held that there was no

force in the attack to either Article 71(3) of the Constitution or the provisions of Sections 5B or

5C of the 1952 Act. Mr. Salve lastly referred to the decision of this Court in Mithilesh Kumar

Vs. R. Venkataraman & Ors. [(1987) Supp. SCC 692], wherein, on a similar question being

raised, a five-Judge Bench of this Court reiterated its earlier views in the challenge made to the

election of Shri Neelam Sanjeeva Reddy and Shri Giani Zail Singh as former Presidents of India.

While considering the various aspects of resignation either with immediate effect or from a

future date, one of the propositions which emerged from the ultimate conclusions arrived at by

this Court was that in view of the provisions of Article 217(1)(a) and similar provisions in regard

to constitutional functionaries like the President, Vice-President, Speaker, etc. the resignation

once submitted and communicated to the appropriate authority becomes complete and

irrevocable and acts ex proprio vigore. The only difference is when resignation is submitted with
the intention of resigning from a future date, in such case it was held that before the appointed

date such resignation could be rescinded.

Further with regard to the disqualification, the Court reasoned that insofar as Article 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 Parliament. Under Article 58(2) though a similar disqualification (by virtue of holding an

office of profit) is incurred by a Presidential candidate no power has been conferred on

Parliament to remove such a disqualification. That apart, the Explanations to both Articles 58

and 102 contain provisions by virtue of which certain offices are deemed not to be offices of

profit. The similarities as well as the differences between the two provisions of the Constitution

are too conspicuous to be ignored or over looked. In a situation where Article 102(1)(a)

specifically empowers Parliament to enact a law to remove the disqualification incurred for

being a Member of Parliament by virtue of holding of an office of profit and in the absence of

any such provision in Article 58 it will be impossible to read Article 58 alongwith Article 102 to

comprehend a composite constitutional scheme. Keeping in view that the words in the

Constitution should be read in their ordinary and natural meaning so that a construction which

brings out the true legislative intent is achieved, Article 58 has to be read independently of

Articles 84 and 102 and the purport of the two sets of Constitutional provisions have to be

understood to be independent of each other. In fact such a view finds expression in an earlier

opinion of this Court rendered in Baburao Patel v. Dr. Zakir Hussain which is only being

reiterated herein. The net result of the above discussion is that the Parliament (Prevention of

Disqualification) Act, 1959 as amended by the Amendment Act No.31 of 2006 has no

application insofar as election to the office of the President is concerned. The disqualification

incurred by a Presidential candidate on account of holding of an office of profit is not removed

by the provisions of the said Act which deals with removal of disqualification for being chosen

as, or for being a Member of Parliament. If, therefore, it is assumed that the office of Chairman,

ISI is an office of profit and the Respondent had held the said office on the material date(s)

consequences adverse to the Respondent, in so far as the result of the election is concerned, are

likely to follow. The said facts, will therefore, be required to be proved by the election Petitioner.

No conclusion that a regular hearing in the present case will be a redundant exercise or an empty

formality can be reached so as to dispense with the same and terminate the Election Petition at

the stage of its preliminary hearing under Order XXXIX Rule 13. Hence the Court held that the

Election Petition, therefore, deserves a regular hearing under Order XXXIX Rule 20 in

accordance with what is contained in the different provisions of Part III of the Supreme Court

Rules, 1966.
PART –II
 CRITICAL ANALYSIS

In this case, the Hon’ble Supreme Court dismissed Purno Sangma's petition challenging Pranab

Mukherjee’s election as the President. The SC Bench held that Sangma’s petition did not

disclose material to pass the stage of early scrutiny. The five judge bench of the apex-Court

decided by 3:2 majority that the petition did not deserve to be entertained for detail trail, which if

ordered would have entailed possible cross examination of Pranab Mukherjee. Chief Justice

Altamas Kabir, who has led 3 to 2 majority ruling, held that Sangma’s petition is not

maintainable for regular hearing. The dissenting judges held that the petition deserves regular

hearing with one of them noting it was alleged that Mukherjee was holding an office of profit

when he file his nomination papers. “ The election petition is not maintainable for regular

hearing. It is dismissed,” The Chief Justice pronounced the verdict on behalf of him and justices

P Sathasivam and SS Nijjar. The two dissenting orders were pronounced separately by justices J

Chalameswar and Ranjan Gogoi. Sangma has contended that Mukherjee was holding offices of

profit as chairman ISI, Kolkata and as also the leader of the Congress Party in Lok Sabha when

he entered the presidential race. But it was contented that the post held at Indian Statistical

Institute was not of pecuniary nature, i.e., it did not yield him any pecuniary benefits. The

questions/issues for consideration were whether the Respondent's election as President of India,

was liable to be declared as void mainly on the ground that by holding the post of Chairman of

the Indian Statistical Institute, Calcutta, on the date of scrutiny of the nomination papers?

Whether the Respondent held any office of profit, (leader of House of Lok Sabha) which could

disqualify him from contesting the Presidential election? Whether the the annexures to the

affidavit filed on behalf of the Respondent could be treated as a valid proof of him exempting

himself from the office of profit?

Mr. Ram Jethmalani appeared for the petitioner and Mr. Harish Salve appeared for the

respondents wherein Mr. Jethmalani contended that appearing for the Petitioner, submitted that

the Respondent's election as President of India, was liable to be declared as void mainly on the

ground that by holding the post of Chairman of the Indian Statistical Institute, Calcutta, on the

date of scrutiny of the nomination papers, the Respondent held an office of profit, which

disqualified him from contesting the Presidential election. Mr. Jethmalani urged that apart from

holding the office of the Chairman of the aforesaid Institute, the Respondent was also the Leader

of the House in the Lok Sabha which had been declared as an office of profit wherein Mr. Salve

contented that the election of the President and Vice- President has been treated on a different

level in comparison with the election of Members of Parliament and other State Legislatures.

Also there were interpretations with regard to the interpreting of the words of the Constitution

for the purpose of election of the president. Keeping in view that the words in the Constitution

should be read in their ordinary and natural meaning so that a construction which brings out the

true legislative intent is achieved. It was also held that the Parliament (Prevention of

Disqualification) Act, 1959 as amended by the Amendment Act No.31 of 2006 has no

application insofar as election to the office of the President is concerned. Thus, The Supreme

Court dismissed Purno Sangma's petition challenging Pranab Mukherjee’s election as the

President. The SC Bench held that Sangma’s petition did not disclose material to pass the stage

of early scrutiny. The five judge bench of the apex-Court decided by 3:2 majority that the

petition did not deserve to be entertained for detail trail, which if ordered would have entailed

possible cross examination of Pranab Mukherjee.