Order XXXIX of The Supreme Court Rules, 1966 (‘Rules’) deals with Election Petitions under Part III of the Presidential and Vice-Presidential Elections Act, 1952. In Purno Agitok Sangma v. Pranab Mukherjee, (2013) 2 SCC 239 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 Rules, and, in particular, Rule 13 thereof.
The said Rule 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.”
It is under the aforesaid scheme that the present Election Petition was taken up for a preliminary hearing on the question whether it deserved a regular hearing or not. The challenge was based mainly on the allegation that on the date of filing of nominations, the Respondent, Shri Pranab Mukherjee, held “offices of profit”, namely, (i) as Chairman of the Indian Statistical Institute, Calcutta; and (ii) as Leader of the House in the Lok Sabha. Mr. Ram Jethmalani, appearing for the Petitioner, 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.
Hon’ble Chief Justice of India Altmas Kabir, as he was then, speaking for the majority, found – that, with regard to the office of the Leader of the House, it was quite clear that the Respondent had tendered his resignation from membership of the House before he filed his nomination papers for the Presidential election; and that, as regards, the Office of the Chairman of the Indian Statistical Institute, though there was “some doubt” whether it was an “office of profit”, the Office was neither capable of yielding any profit or pecuniary gain.
It was thus held by the majority that in the facts and circumstances of the case, the Election Petition did not deserve a full and regular hearing as contemplated under the Rules. It was added in fact that, “the 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.”
Hon’ble Justice Ranjan Gogoi, a future Chief justice of India no less, nonetheless, was not persuaded enough by the views expressed by the majority. It was opined by him that in a preliminary hearing under Order XXXIX, Rule 13 of the Rules – 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 in as much as even if the totality of the facts on which the Petitioner relies are assumed to be proved there will no occasion to cause any interference with the result of the election”. That, “only in such a situation that the Election Petition must not be allowed to cross the hurdle of the preliminary hearing.”
While with regard to the Office of the Leader of the House, Hon’ble Justice Gogoi found too that the Election Petition did not disclose any triable issue; with regard to the Office of the Chairman of the Council of Indian Statistical Institute, Hon’ble Justice Gogoi opined, however, that the question is capable of resolution only on the basis of evidence adduced by the parties.
Since a trial/consideration of the issue (of whether the Office of the Chairman of the Council of Indian Statistical Institute was an “office of profit”) was necessary and justified in as much as if the totality of the fact was assumed to be proved there would be an occasion to interfere with the result of the election – Hon’ble Justice Gogoi felt that the present Election Petition deserved a regular hearing under Order XXXIX, Rule 20 of the Rules.
Hon’ble Justice. J. Chelameshwar, though found himself in agreement with the eventual conclusion of Hon’ble Justice Gogoi, recorded that he shall pronounce his reasons “shortly”.