Order XXXIX of The Supreme Court Rules, 1966 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 Petitioner questioned the Election of Respondent as 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: – “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, 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, on the date of filing of nominations, Respondent, Shri Pranab Mukherjee, held an “office 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, in order to arrive at a conclusive decision on the said two points, it was necessary a regular hearing be conducted in respect of the Election Petition to ascertain the truth of the allegations made by Petitioner.

Hon’ble Chief Justice of India Altamas Kabir, as he was then, speaking for the Majority, found, with regard to the Office of the Leader of the House, it was quite clear, Respondent had tendered his resignation from membership of the House before he filed his nomination papers for the Presidential Election; and, 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, 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, “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, Future Chief Justice of India, was not persuaded enough by the views expressed by the Majority. It was opined by him, in a preliminary hearing under Order XXXIX, Rule 13 of the Rules, the Court must be satisfied, “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 be no occasion to cause any interference with the result of the Election. Only in such a situation 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 Ranjan Gogoi found, 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 Ranjan Gogoi opined, however, the question is capable of resolution only on the basis of evidence adduced by the parties. Since a trial/consideration of the issue 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 Ranjan Gogoi felt, the present Election Petition deserved a regular hearing under Order XXXIX, Rule 20 of the Rules.

Hon’ble Justice J. Chelameswar, though found himself in agreement with the eventual conclusion of Hon’ble Justice Ranjan Gogoi, recorded he shall pronounce his reasons “shortly”.