Supreme Court of India
MITHILESH KUMAR SINHA ETC.versusRETURNING OFFICER FOR PRESIDENTIAL ELECTION AND ORS. ETC.
- Citation
- 1992 INSC 253
- Decided
- 17 September 1992
- Disposal
- Dismissed
- Bench
- S VERMA
Holding
The petitioners were not duly nominated candidates and therefore lacked locus standi; the word "deliver" in Section 5B(5) means the first nomination paper delivered determines operative signatures, rendering the later nomination invalid, and the petitions disclosed no cause of action, leading to their dismissal at the threshold.
Summary
Two election petitions were filed challenging the election of Dr. Shanker Dayal Sharma as President of India. Petition 1, filed by Mithilesh Kumar Sinha, claimed his nomination was wrongly rejected for not having the required ten proposers and ten seconders and argued that the signatures of common electors should remain operative. Petition 2, filed by Kaka Joginder Singh alias Dharati Pakad, alleged wrongful acceptance of the other candidates' nomination papers and undue influence. The Court examined whether the petitioners were "candidates" within the meaning of Section 13(a) and thus had locus standi under Section 14A, and interpreted the word "deliver" in Section 5B(5) to mean the first nomination paper delivered to the Returning Officer determines the operative signature. It held that both petitioners failed to satisfy the mandatory nomination requirements, lacked standing, and their petitions did not disclose any cause of action or triable issue under Section 18. Consequently, both petitions were dismissed at the threshold without costs.
Issues considered
- The petitioners' locus standi as "candidates" under Section 13(a) and Section 14A of the Presidential and Vice‑Presidential Elections Act, 1952.
- The correct construction of the word "deliver" in Section 5B(5) and its effect on the operability of signatures on nomination papers.
- Whether the election petitions disclosed a cause of action or raised any triable issue under Section 18(1)(c) (wrongful rejection/acceptance) or Section 18(1)(a) (undue influence).
- Whether the petitions could be dismissed at the threshold under Order XXXIX Rules 2, 5, 7, 34 and Order XXIII Rule 6 of the Supreme Court Rules.
- The applicability of Section 17 of the Act requiring a trial of election petitions.
Legislation cited
- Indian Penal Code, 1860s. 171-C
- Presidential and Vice‑Presidential Elections Act, 1952s. 13(a), s. 14A, s. 17, s. 18(1)(a), s. 18(1)(c), s. 5B(1), s. 5B(1)(a), s. 5B(5), s. 5C, s. 5E(3)(c)
- Presidential and Vice‑Presidential Elections Rules, 1974s. Form 2, s. Rule 4
- Supreme Court Rules, 1966s. Order XXIII Rule 6, s. Order XXXIX Rules 2,5,7,34
Subjects
election petitionpresidential electionnomination paperdeliver vs subscribelocus standiundue influencefrivolous petitionSupreme Court RulesSection 5B(5)Section 13(a)Section 14ASection 18Section 17
Judgment
MITHILESH KUMAR SINHA ETC. A
v.
RETURNING OFFICER FOR PRESIDENTIAL ELECTION AND
ORS. ETC.
SEPTEMBER 17, 1992
B
(J.S. VERMA, K. JAYACHANDRA REDDY, S.C. AGRAWAL,
YOGESHWAR DAYAL AND DR. A.S. ANAND, JJ.)
Presidential and Vice-Presidential Elections Act, 1952: Sections 5B(J)
and (5)-fi.equirements unde,-J'Deliver" and "subscribe"--Construction of C
Presidential and Vice-Presidential Elections Act, 1952 : Sections 14A,
13(a)-Locus Standi to file election petiton-Requirements-'Candidate'-
Constructiolt-"Non-compliance of mandatory requirements for a valid
nominatiort-Election pen·tion by such person-Maintainability of
D
Presidential and Vice-Presidential Elections Act, 1952 : Section 17 read
with Order XXXIX Rules 2, 5, 7 and 34 read with Order XXIII, Rule 6 of the
Supreme Court Rules, 1966--'Trial'-Constructiort-Election petition not dis-
closing triable issues or cause of action-Maintainability of
Presidential and Vice-Presidential Elections Act, 1952: Sections 5E(5), E
14, lB(l)(c), 18(2) read with Form 2 under Rule 4 of the Presidential and
Vice-Presidential Elections Rules, 1974 and read with Section 171C,
!PC-Election petition on grounds of wrongful acceptance of the nomination
papers of other three candidates and of undue influence-No material facts
to constitute undue influence ground available in petitiort-Effect of F
Presidential and Vice-Presidential Elections Act, 1952 : Section
14---Frivolous petitions filed in cavalier fashio...-Need to prevent entertaining
such petitions-Supreme Court's observations for screening such petitions.
Words and Phrases-"Deliver 01, "Subscribe" "Candidate", "Triati_ G
Meaning of
Election-Pree 'dent of India-Returned candidate's election challenged
on the ground of wrongful acceptance of nomination papers of the can-
didates-E1fect of Locus standi to file election petition-Petition not disclos-
ing cause of action--AfaintainabiUty of-Supreme Court's observations for H
651
652 SUPREME COURT REPORTS [1992] SUPP. 1 S.C.R.
A screening frivolous petitions.
Supreme Court Rules, 1966 : Order XXXIX, Rules 2, 5, 7 and 34 read
with Order XXIII, Rule 6-Election petition not disclosing cause of ac-
tion-Maintainability of
B Election Petiton No. I of 1992.
Petitioner's nomination paper for contesting the election to the office
of President of India was rejected by the Returning Officer on the ground
that it was not subscribed by at least ten electors as proposers and at least
C ten electors as seconders as required by section SB(l)(a) of the Presiden·
tial and Vice- Presidential Elections Act, 1952 and that according to section
S(b)(S), singnatnres of some of the electors were inoperative, being com-
mon in one of the nomination paper of another candidate, which nomina-
tion paper was first delivered to. the Returning Officers.
D Petitioner in the election petition under section 14 of the Act chal·
lenging the election of the returned candidate before this Court contended
that the rejection of his nomination paper was wrongful, which is a ground
under section 18(l)(c) for a declaration that the election of the returned
candidate was void; that he was a 'candidate within the meaning of section
E · 13(a), as his nomination paper was subscribed by the required number of
proposers and seconders; that bis proposers and seconders, \lho were
common in one of the nomination paper of another candidate, had sub-
scribed the petitioner's nomination paper earlier in point of time and
therefore, delivery of the another candidate's nomination paper to the
Returning Officer earlier than delivery of the petitioner's nomination
F paper did not have the effect of making the common signatures on the
petitioner's nomination paper inoperative.
The returned candidate and the Attorney General or India, raising
·the preliminary objection, contended that the petition be rejected as the
petitioner was not a 'candidate' as defined in section 13(a) of the Act and
G that be was not competent to present the election petition as required
under section 14A; that there were no averments in th~ petition to raise
any triable issue relating to the grounds under section 18(l)(c) of\lTongful
rejection of his nomination paper or under section 18(1)(a) of undue
influence, and that the petition be rejected under Order XXXIX, Rules 2,
H 5, 7 and 34 read with Order XXlll, Rules 6 or the Supreme Court Rules,
MITillLESHSINHA v. RETURNING OFFICER 653
1966, as it did not disclsoe a cause of action and was barred by the A
provfaions of the Act.
Election Petition No.2 of 1992
Petitioner, a duly nominated candidate, in his petition under section
14 of the Presidential and Vice-Presidential Election Act, 1952 before this B
Conrt submitted that the election of the returned candidate be declared
void, on the ground contained in section 18(1)1c) of wrongful acceptance
qf nomination papers of the returned candidate and two other candidates,
even though they contained incomplete description of the candidates, their
proposers and seconders; and on the ground contained in section 18(2) of C
undne inflnence.
In their preliminary objection raised by the returned candidate and
the Attorney General of India submitted that as the petition did not
disclose any canse of action or raise any triable issne, the petition was
liable to rejection under Order XXXIX, Rules 2, 5 and 34 read with Order D
XXIII, Rules 6 of the Supreme Court Rules, 1966.
Dismissing the election petitions, this Court,
HELD: (Per J.S. Venna, J. on his behalf and on behalf of K Jaya-
chandra Reddy, S.C. Agrawal, Yogeshwar Dayal and Dr. A.S. Anand, JJ.) E
1.01 Sub-section (1) of Section SB requires that 'each candidate
shall, either in person or by any of his proposers or seconders' between
the specified hours 'deliver to the Returning Officer' at the specified place
'a nomination paper completed in the prescribed form and subscribed' by
the candidate as assenting to his nomination and in the case of Presiden- F
tial Election also by at least ten electors as proposers and at least ten
electors as seconders. [683-D]
1.02. The delivery of the nomination paper is to the Returning Officer
and the nomination paper has to be snbscribed by the candidate, his G
proposers and seconders. There is no scope for any ambiguity in the
meaning of the word 'deliver' in this context in sub-section (1). [683-E]
1.03. Sub-section (5) forbids an elector to subscribe, whether as
proposer or as seconder, more than one nomination paper at the same
election and also prescribes the consequence of its non-compliance by H
654 SUPREME COURT REPORTS [1992] SUPP. 1 S.C.R.
A providing that in the case of non-compliance of this mandate in the first
part of sub-section (S), 'his signature shall be inoperative on any paper
other than one first delivered.' it is the meaning of the word 'deliever' in
the this context in sub-section (S) which is to be construed. (683 G-H]
1.04. The plain meaning of sub-section (S) is that no elector can
B subscribe, whether as proposer or as seconder, more than one nomination
paper at the same election; and if he does so or, in other words, if any
elector subscribes more than one nomination paper at the same election,
whether as proposer or seconder, then his signature shall be inoperative
on ally nomination paper other than the one which has been first delivered
C to the Retnrni.,g Officer as required by sub-section (1). This means that
an elector can subscribe as proposer or seconder only one nomination
paper at the same election and where he subscribes more than one nomina-
tion paper at the same election then except for the nomination paper which
is first delivered to the Returni.,g Officer, his signature on any nomina-
tion paper delivered subsequently to the Returning Officer shall be in-
D operative or ineffective. (684 B-C]
l.OS. The elector having the right to sponsor only one candidate and,
therefore, to subscribe as proposer or seconder only one nomination paper,
that right is exhausted the moment a nominatiou paper subscribed by him
E has been delivered to the Returni.,g Officer and the question of his signa·
tore on any nomination paper delivered subsequently to the Returning
Officer beillg operative does not arise. No inquiry into that question is
contemplated by the Returning Officer where more than one nomination
paper subscribed by the same elector is delivered to the Returning Officer,
since the statute provides that the right of an elector to propose or second a
F candidate being exercisable only once, it is exhausted the moment the first
nomination paper subscribed by him is delivered to the Returning Officer.
(684 D-E)
1.06. The two words, 'deliver' and 'subscribe' have dllTerent connota·
G lion and are also used for dllTerent purposes not only sub-section (S) but also
in sub-section (1) of Section SB in the same context. The meaning of these
words in the two sub-sections of Section SB must be be the same. [684-F]
2.01 The requirement of Section 14A that an election petition calling
in question a Presidential election has to be presented by any candidate at
H such election or by twenty or more electors joined together as petitioners
MITHILESH SINHA v. RETURNING OFFICER 655
is for the obvious reason that the requirement for a valid nomination at a A
Presidential election according to Section SB(l)(a) is the nomination of a
candidate by at least ten electors as proposers and an equal number as
seconders i.e. in all by at least twenty electors. [685 D-E)
2.02. A person entitled to claim himself as a duly nominated candidate
at the election must have at least twenty electors subscribing his valid B
nomination paper as proposers and seconders. The law could never have
intended that a person without satisfying the requirement of Section
SB(l)(a) can claim to have been duly nominated as a candidateatan election
even if he did not have twenty electors behind him as proposers and
seeonders to validly sponser him as a candidate. If an election petition ac- C
cording to Section 14A cannot be presented by less than twenty electors
joined together as petitioners, it cannot obviously be presented by the alter-
native mode of a candidae as the petitioner who was not validly nominated by
atleast twenty electors. This requirement of Section 14A(l) is a clear indica-
tion that a person cannot claim to have been duly nominated as a candidate
at the Presidential election unless he had satisfied the mandatory require- D
ments of Section SB(l)(a) and Section SC. [68S F-G)
2.03. To be entitled to present an election petition calUng in question
an election, the petitioner should have been a 'candidate' at such election
within the meaning of Section 13(a) for which he should have been 'duly E
nominated as a candidate' and this he cannot claim unless the mandatory
requirements of Section SB(l) (a) and Section SC were complied by him.
Where on undisputed facts there was non-compliance of any of these
mandatory requirements for a valid nomination, the petitioner was not a
'candidate' within the meaning of Section 13(a) and, therefore, not com-
petent according to Section 14A to present the petition. [68S-H, 686 A-Bl F
2.04. In order to have the requisite locus standi as a 'candidate' within
the meaning of Section 13(a) for being entitled to present such an election
petition in accordance with Section 14A of the Act, the petitioner must be
duly nominated as a candidate in accordance with Section SB(l) (a) and G
Section SC. Unless it is so, the petitioner cannot even claim to have been duly
nominated as a candidate at the election as required by Section 13(a). [686-C)
2.0S. The petitioner in Election Petition No. 1 of 1992 has no locus
standi to challenge the election of the returned candidate as be is not
competent to present the election petition in accordence with Section 14A H
656 SUPREME COURT REPORTS (1992] SUPP. 1 S.C.R.
A of the Act read with Order 39 Rule 7 of Supreme Court Rules. [686-E]
Charan Lal Sahu v. Nee/am Sanjeeva Reddy, (1978) 3 S.C.R. l; Charan
Lal Sahu & Ors. v. Giani Zail Singh & Anr., [1984] 2 S.C.R. 6; Mithilesh
Kumar v. Sri R. Venkataraman & Ors., [1988] 1 S.C.R. 525 and Charan Lal
Sahu v. Shri Fakruddin Ali Ahmed & Ors., A.I.R. 1975 S.C. 1288, relied on.
B
3.01. The trial commences with the presentation of the election petition
and an order of dismissal of the petition made at this stage on the ground
that it is not maintainable being barred by any law or does not disclose any
cause of action is a dismissal at the conclusion of the trial since no further
step in the trial of such a petition is contemplated. This is how the word 'trial'
c
in Section 17 of the Act must be understood, if Section 17 is to govern the
dismissal of all petitions including dismissal at the threshold. This view also
harmonises Order XXIII Rule 6 of Supreme Court Rules which applies by
virtue of Order XXXIXRule34. [689 C-D]
D 3.02. The Court is not bound to continue this trial even thongh no
triable issue arises and the petitioner does not have the requisite locus
srandi merely because of Section 17 of the Act.
3.03. Even though the petitioner, is Election Petition No.2 of 1992 has
the locus standi to present the·petitioo as required by Section 14A of the
E
Act read with Order XXXIX Rule 7 of Supreme Court Rules, yet material
facts and the grounds on which the relic('Ot' declaration of the election of
the returned candidate void is sought have not been pleaded to disclose
any cause of action or raise any triable issue. This petition also is liable
to be dismissed sustaining tbe preliminary objection. [693-F]
F
3.04. The election petitoo does not disclose any cause of action and
is, therefore, liable to be dismissed by virtue of Rules 2 and 5 of Order
XXXIX of the Supreme Court Rules and the mandatory provisions of the
Presidential and Vice-Presidential Elections Act, 1952. [693-G]
G 4.01 In the election petition No.2 of 1992 several other things have
been said but they do not amount to avermeot of material facts to con-
stitute or raise any other ground contained in Section 18 of the Act. A
passing re:'erence to what may be termed as 'undue influence' does appear
in the petition but the averments do not satisfy the requiement of pleadings
H even according to the ordinary standard much less the more stringent
MITHILESH SINHA v. RETIJRNING OFFICER 657
requirements of sub-section (2) of Section 18 of.the Act. [690-E] A
4.02 A perusal of the nomination papers of all the candidates with
reference to Form 2 read with Rule 4 of the Presidential and Vice-Presiden-
tial Elections Rules, 1974 shows that there is no defect, deficiency or am-
biguity in the nomination papers of any of the four: candidates including this
petitioner whose nomination papers were acc_epted by the Returning Officer. B
/ (690-H]
4.03. Thus no defect in any of these nomination papers to make ont
even a prima facie ground under Section 18(l)(c) of wrongful acceptance
of any of these nomination papers is either pleaded or shown to raise a
triable Issue on this point. [691-C] C
4.04. Sub-section (5) of Section SE provides that the "Returning
Officer shall not reject any nomination paper on the ground of any defect
which Is not of a substantial character". No defect of any kind much less
a defect of snbstantial character in any nomination paper which was D
accepted has been pleaded or shown by the petitioner to require any
further examination of this question or framing an issue for the purpose.
The el.ection petition does not, therefore, disclose any cause of action for
trial of the ground contained In Section 18(l)(c) of the Act. [691 i>-EJ
4.05. In view of Section 18(2), the offence of undae inOuence in E
Section 18(l)(a), has the same meaning as In Chapter IX-A of the Indian
Penal Code. Section 171-C of the Indian Penal Code defines undne in-
Ouence at elections. [692·E]
4.()6. A bare perusal of Section 171-C l.P.C. shows that the ingredients
of undue ioOuence at elections are many and they have to be read into the F
meaning of the offence of undue ioOoence in Section 18(l)(a) of the Act.
Before a ground under Se..1ion 18(l)(a) of the Act can be said to be pleaded
raising a triable issue lo the election petition it must be shown that material
facts to constitute the ingredient, of the offence of undue inOuence have at
least been pleaded lo the election petition. The petitioner has not made any G
attempt to pay lip-service to these requirements and has chosen to merely
repeat the words "undue ioOuence in the election" in the petition without any
attempt to plead material facts raising that ground. (693 C-D]
Shri Baburao Patel & Ors. v. Dr. Zakir Hussain & Ors., (1968] 2 S.C.R.
133; Shiv Kirpal Singh v. Shri V.V. Girl, (1971] 2 S.C.R. 197; Charan Lal H
658 SUPREME COURT REPORTS [1992] SUPP.1 S.C.R.
A Sahu v. Shri Fakniddin Ali Ahmed & Ors., A.l.R. 1975 S.C. 1288 and Charan
Lal Sahu & Ors. v. Giani Zail Singh & Anr., [1984) 2 S.C.R. 6, referred to.
5.01. It is now time to make s11itable provisions to prevent entertaining
such frivolous petition filed in a cavalier fashion requiring the hearing by a
Bench ornve Judges of this Court. The only purpose served by such frivolous
B petitions is the giving of some undue publicity to the petitioner which ap-
pears to be the sole purpose of filing such a petition. Obviously, use of the
Court as a forum for this purpose must not be permitted. [697-G)
5.02. The election petitions under the Representation of the People
C Act challenging elections to the Parliament and State Legislatures are
required to be heard by a Single Judge of the High Court. In viL'W or the
greater importance of the Presidential and Vice-Presidential elections the
forum for trial of such election petitions is the Supreme Court and in
accordance with the rules framed by the Court these petitions are heard
by a Bench of live Judges. Experience has shown that the solemnity and
D significance attaching to such petitons has been redueced to a forct by the
cavalier fashion in which resort is had to this remedy. The mere fact that
the entire gamut of both these petitions is fully covered by several earlier
decisions of this Court, to some of which these very petitioners were
parties, shows that the existing provisions are inadequate to prevent such
E abuse of the process of law. [697-H, 698 A-BJ
5.03. It· is now necessary to make suitable amendments in the
provisions for screening of such frivolous petitions and provision is re-
quired _to be made for trial only of serious petitions raising triable issues
by a Bench of live Judges of this Court. (698-CJ
F
5.04. It is the Court's duty to make .these observations to invite
attention of all concerned to this felt need requiring suitable action in this
d.irection.
G 5.05. Some stringent measure like man.datory requirement of
security deposit of a reasonable amount for costs for entertaining the
election petition petition is needed to. provide some check. [698-E]
Mithilesh &mar v. Sri R.Venkatannan & Ors., [1988) 1 S.C.R. 525
and Charan Lal Sahu & Ors. v. Giani Zail Singh & Anr., (1984) 2 S.C.R. 6,
H referred to.
MITHILESH SINHA v. RETURNING OFFICER [VERMA, J.] 659
_ORIGINAL JURISDICTION : Election Petition Nos. 1 and 2 of A
1992.
(Under Article 71 of the Constitution of India).
Petitioners appeared in person.
B
G. Ramaswamy, Attorney General, Kapil Sibal, Dr. A.M. Singhvi,
Sushi! Kumar Jain, A.P. Dhamija, Sudhanshu Atreya, Ranjit Kumar, Anil
Shrivastava and Ms. A. Subhashini for the Respondents.
The Judgment of the Court was delivered by
c
VERMA, J.: Both these election petitions filed under Section 14 of
the Presidential and Vice-Presidential Elections Act, 1952 (hereinafter
referred to as 'the Act') challenge the election of Dr. Shanker Dayal
Sharma, as the ninth President of India, On scrutiny of nomination papers
made on June 25, 1992 by the Returning Officer, the nomination papers of D
only four persons, namely, Dr. Shanker Dayal Sharma, Prof. G.G. Swell,
Sbri Ram J ethmalani and Kaka Joginder Singh alias Dharati Paked. were
found valid and accordingly accepted. Polling was held on July 13, 1992
and result of the election was declared on July 16, 1992 at which Dr.
Shanker Dayal Sharma was declared elected; and he was sworn in as the
ninth President of India on July 25, 1992. Mithilesh Kumar Sinha, petitioner E
in Election Petition No. 1 of 1992, had filed his nomination paper at the
election, but the same was rejected by the Returning Officer on the date
of scrutiny due to non-compliance of the mandatory requirements for a
valid nOmination.
In both these election petitions, certain preliminary objections raised
on behalf of the returned candidate, Dr. Shanker Dayal Sharma as well as
the Attorney General of India require to be decided at the threshold. The
substance of the preliminary objection in Election Petition No. 1 .;( 1992 ·
is that it is liable to be rejected as not maintainable primarily on the ground
of not being presented by a competent person, namely, 'any candidate at G
such election' as required by Section 14A read with Section 13(a) of the
Act and Order XXXIX Rule 7 of Supreme Court Rules, 1966; and alter-
nately that it does not disclose any cause of action for a declaration that
the election of the returned candidate is void. The preliminary objection
to the maintainability of Election Petition No. 2 of 1992 is that even though H ·
660 SUPREME COURT REPORTS [1992] SUPP.1 S.C.R.
A it has been presented by a candidate at such election, yet it does not raise
any triable issue inasmuch as it does not disclose any cause of action for a
declaratiqn that the election of the returned candidate is void on any of
the permissible grounds contained in Sectton 18 of the Act.
We shall now refer to the material facts relating to each of these
B election petitions.
Election Petition No. 1 of 1992:
Petitioner Mithilesh Kumar Sinha alleges that he had obtained the
signatures of twenty M.L.-As. for contesting the election to the office of
C President of India between March 30, 1992 and May 28, 1992 and had filed
his nomination paper on June 24, 1992. However, on scrutiny of the
nomination papers made by the Returning Officer on June 25, 1992, tle
nomination paper of Mithilesh Ku.;,at<SiJ!ba was rejected on the gronnd
that it was not subscribed by at least ten· electors as proposers and at least
D ten electors as seconders as required by Section 5B(l)(a); and also that
signatures of some of them were inoperative according to Section 5B(5)
being common in one of the nomination paper of another candidate Shri
Ram Jethmalani which nomination paper was first delivered to the Return-
ing Officer. The rejection of the nomination paper of Mithilesh Kumar
E Sinha was made accordingly by the Returning Officer nnder Section
5E(3)(c) of the Act. The petitioner contends that the rejection of his
nomination paper was wrongful which is a ground nnder Section 18(1)(c)
for a declaration that the election of the returned candidate is void.
The averments in the. petition are prolix and vague and some of the
F contents of the petition are irrelevant and frivolous. However, at the
hearing of the petition, we ascertained from the petitioner his exact stand.
He indicated that he was a 'candidate' within the meaning of Section 13(a)
of the Act since his nomination paper was subscribed by the required
number of proposers and seconders and, therefore, his nomination paper
G was wrongly rejected. He claims that Section 5B(5) treats as valid the
nomination paper on which the proposer/seconder subscribes his signature
earlier and not the one which is delivered earlier to the Returning Officer.
According to the petitioner, his proposers and seconders who were com-
mon in one of the nomination paper of Shri Ram Jethmalani had sub-
H scribed the petitioner's nomination paper earlier in point of time and,
MIIBILESH SINHA ·v. RETURNING OFFICER [VERMA, J.] 661
therefore, delivezy of Shri Ram Jethmalani's nomination paper to the A
Returning Officer earlier than delivery of petitioner's nomination paper on
June 24, 1992, did not have tho effect of making the common signatures on
the petitioner's nomination paper inoperative. This in substance is the
petitioner's case in this election petition.
We may also quote some portions from the petition on which the B
petitioner relied to contend that the requisite pleadings for raising a triable
issue in addition to indicating the petitioner's competence to maintain the
election petition have been pleaded by him. A verbatim reproduction from
the petition is as under:
c
"2. Right of the Petitioner:
I am a "Candidate" as defined in Section 13(a) of P. & V.
Election Act 1952 because:
(a) I have declared my candidature and released Manifes- D
to for Presidential Election in 1992 in three Press Con-
ferences on 29.5.92, 9.6.92 and 17.6.92.
(b) I have filed my nomination paper on 24.6.1992 before
the Returning Officer (Respondent No.1) with allied and
required papers and security of Rs. Two thousand and E
five fundred only (2500).
3. Brief facts leading to the Petition:
(a) For election in 1992 I obtained required number of
signature over my nomination paper and declared my F
candidature in Press Conferences at Patna and Delhi.
xxx xxx xxx
(d) I also handed over a forwarding letter to him enclosing
G
Nomination Paper, Affidavit in its support, objection to
be used during scrutiny and other allied papers.
(e) Credits earned by me between 24-6-87 and 19-6-92
and above facts became eyesore of my opponents who
influenced the Returning Officer (Rept. No.1) who H
662 SUPREME COURT REPORTS (1992] SUPP. 1 S.C.R.
A rejected my "Nomination" on the basis of section 5E(3)(c)
dependent over Section 5B(5) of the Act which are not
application to me.
xxx xxx xxx
B 4. Cause of Action:
(a) Against Respondent No. 1
(i) Being influenced by Respondeht No. 3, 4, and 5. He
rejected my nominations on the basis of section
C 5E(3)(c) dependent over Section SB(S) of P & V
Election Act which are not applicable to me.
xxx xxx xxx
(c) Against Respondent No. 3
D
(i) He mis-used his position as Chairman of Rajya Sabha
to influence the Secretary General of Rajya Sabha who
is Returning Officer for Presidential Election of 1992
to reject my nomination by "book or crook".
E (ii) He also influenced the R.eturning Officer to throw my
letter dt. 19.6.92 into a "Waste paper basket".
(iii) He did not submit "Affidavit" in support of genuinness
of signatures of proposers and seconders.
F xxx xxx xxx
"7. Arguments for comet meaning of Section 5B(5) of the
Act.
(a) The spirit of this section is quite clear.
G
(b) It is a mandatory check over elections.
( c) As punishment for violation of this mandate Second
Signature of the elector will be inoperative.
H (d) The word "delivered" should be read as "Subscribed".
MITHILESH SINHA v. RETURNING OFFICER [VERMA,J.] 663
( e) The corresponding word for "delivered" in Hindi A
translation is ~" which means "subscribed". There
11
is no word like "~".
(f) The word "delivered" is related to "signature" and is
not related to "paper".
B
xxx xxx xxx
8. Issues to be decided:
(a)Whether the Returning Officer has mis-understood
Section 5B(5) of P & V Election Act. C
(b) Whether nomination of Mithilesh Kumar is valid
under Section 5E(3)(c) of the Act.
(c) Whether Section 5B(5) of the Act is applicable to
Mithilesh Kumar." D
"12. Grounds from Section 18 of the Act:
(a) The Returned· candidate (Respondent No. 3) have
unduly influenced the Returning Officer for wrong
decisions/orders. E
(b) The result of the election has been materially affected
by non-compliance of Section 5E(3)(D) of P & V.
Election Act.
(c) The nomination of Shri G.G. Swell, Shri Ram Jeth- F
malani, and Sri Kaka Jogender 'Dhartipakar' were
wrongly accepted.
·(d) Nomination of Mithilesh Kumar (The Petitioner) was
srongly rejected.
G
(e) Nomination of the Returned candidate Dr. Sankar
Dayal Sharma lrns been wrongly accepted."
"14. Prayer for relief:
Therefore, your lordship are prayed for the following H
664 SUPREME COURT REPORTS (1992] SUPP. 1 S.C.R.
A reliefs:
(a) Please declare the election of the Returned candidate
as void.
(d) Please declare Mithilesh Kumar as duly elected."
B
The petitioner has also relied on an entry .in the list of dates filed by him
in which he has stated as under: '
"30.3.1992 to 28.5.1992 I obtained signature of twenty M.L.As. for
Presiddential Election in 1992."
c
The preliminary objection raised is that the petitioner not being a
'candidate' as defined in Section 13(a) of the Act is, therefore, not com-
petent to present the election petition as required by Section 14A of the
Act. The alternative objection is tha~ even assuming the petitioner satisfies
D the definition of 'candidate' and is, therefore, competent to present the
election petition, there are no averments in the petition to raise any triable
issue relating to the grounds under Section 18(1)(c) of wrongful rejection
of his nomination paper or under Section 18(1)(a) of undue influence. The
remaining parts of the petition are irrelevant since the other of the other
E grounds are merely mentioned without pleading any material facts to
provide the requisite basis for those grounds. At the hearing also the
petitioner urged the ground only under Section 18(1)(c) of wrongful rejec-
tion of his nomination paper.
Shri Kapil Sibal, learned senior counsel for the returned candidate
F Dr. Shanker Dayal Sharma as well as the Attorney General of India
contended that the petition must be rejected under Order XXXIX Rules
2, 5, 7 and 34 read with Order XXIII Rule 6 of the Supreme Court Rules,
1966 since it does not disclose a cause of action and is barred by the
provisions of the Act.
G
Election Petition No.2 of 1992
Petitioner Kaka Joginder Singh alias Dharati Pakad was one of the
duly nominated candidated at the election. This petition too is similarly
clumsily drafted. At the hearing, the material portions relevant were ascer-
H tained from the petitioner and they are quoted verbatim as under:
MITHILESH SINHA v. RETURNING OFFICER [VERMA, J.] 665
"2. Scrutiny of the nomination papers took place on 25th A
June 1992. The Returning Officer Presidential Election
1992 rejected nomination papers of other candidates and
accepted the 4 nomination papers of Dr. Shanker Dayal
Sharma, Prof. G.G. Swell and Shri Ramjethmalani respon-
dents Annexure III, illegally and unconstitutionally in spite
·B
of various objections raised by the petitioners and other
candidates in sp!te of Annexure II without giving reasons."
"5. That the petitioner claims the relief under clauses (a)
and (b) of Section 16 on the grounds mentioned in section
18(1)(2) and 19 of the Presidential and Vice Presidential c
Elections Act 31 of 1952 (hereinafter called the 'Act')."
"6. The facts on which the petitioner rely in support of the
grounds are stated in the next para:
(a) Scrutiny of nomination papers took place on July 25th D
June, 1992. The Returning Officer did not write any
detailed order during scrutiny and he simply declared
that the nominations of some candidates were rejected
or accepted. The petitioner raised written objections
against the nominations of all the three respondents E
Annexure-III on the following grounds:
(1) That all the nomination papers are presented by one
single proposer and not by 10 proposers of respondent
1 & 2. Further it has been proposed and seconded by
the Prime Minister and Central Ministers, Chief Min- F
isters, Members of Parliament.
(2) That all the respondents are above 65 years of age as
such under U/A 70 (Discharge of Function of Presi-
dent Act 1969, they are not eligible for the office of
the President as the age of the Chief Justice of India
G
has been fixed as 65 years and if he is acting as
President of India and he crosses the age of 65 years
the .1 he is bound to vacate the office of President.
(3) That under the provisions of Salary and Allowances H
666 SUPREME COURT REPORTS [1992] SUPP. 1 S.C.R.
A Act of Members of Parliament 1954, the Respondent
No.l is in the office of profit under Article 58 (3) of
the Constitution oflndia and the proposers are public
servants according to various laws therefore they can-
not propose or second the nomination papers of the
returned candidate.
B
(4) That all the Respondents have not filed the complete
copy of Electoral Roll as required under the Provisions
of Laws AIR 1966 S.C. page 1626 Ranjit Singh v. Pritam
Singh.
c
(5) That Dr. Shanker Dayal Sharma being public servant
as Vice President, therefore he is in the office of profit
VIA 58 (2) of the Constitution of India.
D (6) That all respondents have not taken any oath under
Article 58(c) & 84 (a) read with Article 79 of the
Constitution. Hence the Returning Officer Shri
Sundershan Agrawal whose term of service has been
extended by Dr. Shanker Dayal Sharma for one year
from 1.7.92 is illegal and it amounts to undue influence
E in the Election, therefore the Election of the Returned
Candidate is liable to be declared void. Article 71(3)
of the Constitution Authorises the Parliament to regu-
late by law the matters concerning the elections to the
office of the President of India. It was thus only the
F Parliament which could make any law for regulating
the elections but not qualifications can be imposed
contrary to Article 58. Under Section 21(3) of the Act
the power to make rules is with the Parliament and
not vested with the Election Commission and Central
Government. Thus the Presidential and Vice-
G Presidential Election Rules 1974 has not been passed
by both the houses of Parliament and no assent has
been given by the President. It has been published by
Ministry of Law, Justice and Company Affairs (Legis-
lative Department) Notification No. S.0.305(E) dated
H the 21st May 1974 (See Gazette of India, Extra ordi-
MITHILESHSINHA v. RETURNING OFFICER [VERMA,J.] 667
nary Part II section 3(ii). Thus it is contrary to section A
21(3) of the Act along with Article 58, 71(3) of the
Constitution, hence it is void and· unconstitutional.
Under Article 84 and 102 the qualifications and dis-
qualification have been mentioned lint under Article
58 only qualifications of Presidential Candidates have
been mentioned, thus it is clear that there is no dis-
B
qualification under Article 58 of the Constitution. As
it has been mentioned in Article 102 of the Constitu-
tion for members of Parliament."
"PRAYER c
The petitioner demands justice, therefore, in the cir-
cumstances of the case, the petitioner Most Respectfully
prays.
D
1. That the Constitutional Eleventh Amendment Act,
1%1, Anti Defection Act, and Party whip be declared
ultra vires U/A 14, 38 of the Constitution of India.
2. That the Sections 5(B)(6) and 5(C) 21(3) of the
Presidential and Vice Presidential Election Act 1952 E
(Amended) with Election Rules 1974 be declared illegal,
void and unconstitutional under Articles 14 and 58 of the
Constitution of India.
3. That the post of the Prime Minister and other Council F
of Ministers, Chief Ministers and other Ministers are
Public servants as decided by 7 Judges of this Hon'ble.
Court in R.S. Naik v. A.R. Antuley, be declared that they
are in the office of profit, hence they have played µndue
influence in the Election of the returned candidate, hence
the Election of the Returned Candidate be declared as G
void.
4. That the Election of the Returned Candidate, respon-
dent be declared void and stated in the Petition U/s 18.of
the Act. H
668 SUPREME COURT REPORTS [1992] SUPP. 1 S.C.R.
A 5. That President's discharge of function Act, 1%9, be
declared ultra vires to Articles 145, 71, 60, 52 and 53 of
the Constitution of India.
6. That the above system of Election of the President is
bad and unconstitutional, therefore, it ;hould be held
B directly in future by all the Electorals and the Union of
India be directed to amend Articlr.s 54, 55 and 66 of the
Constitution of India as the value of the votes are decided
on the basis of the population and the value of votes of
M.Ps differs with value of the M.L.As of all States, hence
c it is discriminatory and violative to Articles 14 and 38 of
the Constitution of India.
7. That Sections 4(1)(2), 5, 6, 7 and 11 of the Salaries and
Allowances of Ministers Act 1952 (Act No. 58 of 1952)
along with Sections 3, 4, 5, 6, 7, 8 and 9 of the Salaries
D and Allowances of Members of Parliament Act 1954 be
declared void and unconstitutional.
8. That the Election of the Returned Candidate, Dr.
Shanker Dayal Sharma as President Elect be declared
void in view of the above prayers and the petitioner may
E
be declared as elected President of India.
9. That the nomination papers of Dr. Shanker. Dayal
Sharma, Prof. G.G. Swell and Ram Jethmalani have been
wrongly accepted by the Returning Officer, hence all the
F nomination papers of above candidates be declared il-
legal and void and the petitioner Kaka Joginder Singh
alias Dharti Pakad S/o Sardar Hazoor Singh of Bareilly
be declared as the Elected Candidate of the post of
President.11
G The averments in para 2 of the petition relate to wrongful acceptance
of the nomination papers of the other three candidates and have to be read
with Annexure II which is a letter dated 25.6.1992 of the petitioner to the
Returning Officer containing his objections to the nomination of the other
candidates and another letter dated 2.7.1992 from the petitioner to the
H Chief Election Commissioner complaining that the Returning Officer did
MITHILESH SINHA v. RETURNING OFFICER [VERMA, J.) 669
not pass any order on the petitioner's objections dated 25.6.1992 while A
accepting the nomination papers of the other candidates under political
pressure. The objections raised by the petitioner in his letter dated
25.6.1992 to the nomination papers of the other three candidates were that
: (1) they did not mention correct names of the parliamentary constituen-
cies; (2) the proposers and seconders had also not given the correct names B
and numbers of the their respective constituencies from which they had
been elected; (3) there was defect in the entries made in Col. No.4 in the
Form of their nomination papers; and (4) 'there is no column prescribed
in the Form mentioning the number of an electorate; however, the numbers
of the electorate have been mentioned in Form No.2' which is against the
law. These were the defects in the nomination papers of Dr. Shanker Dayal C
Sharma, Prof. G.G. Swell and Shri Ram Jethmalani, which were mentioned
in the objections raised by the petitioner.
We need not refer to the remaining portions of the petition which
do not plead any facts to raise any ground Section 18 or 19 of the Act.
D
The preliminary objection raised by Shri Kapil Sibal for the returned
candidate Dr. Shanker Dayal Sharma and also by the learned Attorney
General of India is that this petition also is liable to rejection under Order
XXXIX Rules 2, 5 and 34 read with Order XXIII Rule 6 of the Supreme
Court Rules, 1966 since it does not disclose any case of action or raise any E
triable issue. The competence of petitioner in this petition as a 'candidat~'
to file the election petition is not disputed.
We would now refer to some material provisions before considering
the preliminary objections raised to the maintainability of these petitions.
F
Article 54 of the Constitution of India provides that the elected
members of both Houses of Parliament and the elected members of the
Legislative Assemblies of the States shall constitute the electoral college
for election of the President of India. Article 56 prescribes the term of
office of the President as five years from the date qn which he enters upon G
his office. Qualifications for election as President are prescribed in Article
58 as under:
"58. Qualifications for election as President. - (1) No
person shall be eligible for election as President unless
· he- fl
~70 SUPREME COURT REPORTS (1997] SUPP.1 S.C.R.
A (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.
B
(2) A person shall not be eligible for election as
President if he holds any office of profit under the Goven-
ment of India or the Government of any State or under
any local or other authority subject to the control of any
c 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
D for the Union or for any State.'
Article 71 provides for matters relating to or connected with the election
of the President or Vice-President and is as under :
'71. Matters relating to, or connected with, the election
E
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.
F
(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-Presi-
dent, as the case may be, on or before the date of the
G decision of the Supreme Court shall not be invalidated by
reason of that declaration.
(3) Subject to the provisions of this Constitution, Par-
liament may by law regulate any matter relating to or
H cortnected with election of a .President or ViCe-President.
MJTHILESH SINHA v. RETURNING OFFICER [VERMA,J.] 671
(4) The election of a person as President or Vice- A
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."
The Presidential and Vice-P•esidential Elections Act, 1952 (Act No.
31 of 1952) has been enacted by the Parliament under Article 71(3). The B
provisions of the Act material for our present purpose are the following:-
"SA. 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 Constitu-
tion.
c
5B. (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 D
o'clock in the afternoon, deliver to the Returning Officer
at the place specified in this bel.alf 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
E
(a) in the case of Presidential election, also by at least ten
electors as proposers and at least ten electors as
seconders;
(b) in the case of Vice-Presidential election, also by at
least five electors as proposers and at least five electors
F
as seconders:
Provided that no nomination paper shall be presented
to the Returning Officer on a day which is a public holiday.
G
(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) Tl1e Returning Oficer shall not accept any nomina- H
672 SUPREME COURT REPORTS [1992] SUPP.1 S.C.R.
A tion paper which is presented on uny 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
B 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 nomina-
tion paper itself.
c (5) No elector shall subscribe, whether as proposer or
as seconder, more than one nonomation paper at the same
election and, if he does, his signature shall be inoperative
on any paper other than the one first delivored.
D (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
E accepted by the Returning Officer.
5C. (1) A candidate shall not be deemed to be duly
nominated for election unless he deposits or causes to be
deposited a sum of two thousand five hundred rupees :
F Provided that where a candidate has been nominated
by more than one nomination paper for the same election,
more than one deposit shall be required of him under this
sub-section.
G
""" """ """
50. On the presentation of a nomination paper, the
Returning Officer shall ·
(a) sign thereon a certificate stating the date and time of
H presentation of the nomination paper and enter there-
MITHILESHSINHA v. RETURNINGOFFICER[VERMA,J.] 673
on its serial number; A
(b) inform the person or persons presenting the nomina-
tion paper of the date, time and place fixed for the
scrutiny of nominations; and
(c) cause to be affixed in some conspicious place in his B
office a copy of the nomination paper as certified aod
numbered under clause (a).
5F. (1) On the date fixed for the scrutiny of nominations
under sub-section (1) of sei:tion 4, the candidates, one
proposer or one seconder of each caodidate aod one other
c
person duly authorised in writing by each candidate, but
no other person, shall be entitled to be present at the time
of scrutiny of nominations aod the Returning Officer shall
give them all reasonable facilities for exainining ·the
nomination papers of all caodidates which have not been D
rejected under sub-section (4) of section 5B. -
(2) For the removal of d~bt;, it is hereby declared
that it shall not be necessacyto scrutinise on the date fixed
for the scrutiny of nolliiiiatiuns the nomination papers
E
already rejected.u!ider sub-section (4) of section 5B .
.-4'3Yfhe Returning Officer shall then examine the
-n'omination papers and shall decide all objections which
may be made to any nomination paper and may, either on
such objection or on his own motion, after such summary F
inquiry, if any, as he thinks necessat)\-reject any nomina-
tion on any of the following ;;rounds :
(a) that, on the date fixed for the scrutiny of nominations,
the candidate is not eligible for election as President
or Vice-President, as the case may be, under the Con- G
stitution; or
(b) that any of the proposers or seconders is not qualified
to subscribe a nomination paper under sub-section ( 1)
of section 5B; or H
674 SUPREME COURT REPORTS (1992] SUPP. I S.C.R.
A (c) that the nomination paper is not sub$cribed by the
required number of proposers or seconders; or
(d) that the signatiire of the candidate or any of the
proposers or seconders is not genuine or has been
obtained by fraud; or
B
that there has been a failure to comply with any of the
provisions of section SB or section SC.
(4) Nothing contained in clauses (b) to (e) of sub-
section (3) shall be deemed to authorise the rejection of
c the nomination of any candidate on the ground of any
irregularity in respect of a nomination paper, if the can-
didate has been duly nominated by means of another
nomination paper in respect of which no irregularity has
been committed.
D
(S) The Returning Offficer shall not reject any nomina-
tion paper on the ground of any defect which is not of a
substantial character.
(6) The Returning Officer shall hold the scrutiny on
E the date appointed in this behalf under clause (b) of
sub-section (1) of Section 4 and shall not allow any
adjournment of the proceedings except when such
proceedings are interrupted or obstructed by riot or open
violence or by causes beyond his control:
F Provided that in case an objection is raised by the
Returning Officer or is made by any other person the
candidate concerned may be allowed time to rebut it not
later than the next day but one following the date fixed
for scrutiny, and the Returning Officer shall record his
decision on the date to which the proceedings have been
G
adjqurned
(7) The Returning Officer shall endorse on each
nomination paper his decision accepting or rejecting the
same and if the nomination paper is rejected, shall record
H in writing a brief statement of his reasons for such rejec-
MITHILESH SINHA v. RETURNING OFFICER [VERMA, J.] 675
tion. A
(8) For the purposes of this section, a certified copy
of an entry in the electoral roll for the time being in force
shall be conclusive evidence of the fact that the person
referred to in that entry is an elector for that constituency,
unless it is proved that he is subject to any of the dis- B
qualifications mentioned in section 16 of the Repre-
sentation of the People Act,1950."
"13. In this .Part unless the context otherwise requires -
(a) 'candidate" means a person who has been or claims
c
to have been duly nominated as a candidate at an
election;
(b) "costs" means all costs, charges and expenses of or
incidental to, a trial of an election petition; D
( c) 'returned candidate" means a candidate whose
name has been published under section 12 as duly
elected.
E
14. (1) No election shall be called in question except by
presenting an election petition to the authority specified
in sub-section (2).
(2) The authority having jurisdiction to try an election
petition shall be the Supreme Court. F
{3) Every election petition shall be presented to such
authority in accordance with the provisions of this Part
and of the rales made by the Supreme Court under article
145.
G
14A. ( 1) An election petition calling in question an elec-
tion may be presented on one or more of the grounds
specified in sub-section {1) of section 18 and section 19
to the Supreme Court by any candidate at such election,
or - H
676 SUPREME COURT REPORTS 11992] SUPP. l S.C.R.
A (i) in the case of Presidential election, by twenty or more
electors joined together as petitioners;
(ii) in the case of Vice-Presidential election, by ten or
more electors joined together as petitioners.
B (2) Any sucy petition may be presented at any time
after the date of publication of the declaration containing
the name of the returned candidate at the election under
section 12 hut not later than thirty days from the date of
such publication.
c 15. Subject to the provisions of this Part, rules made
[whether before or after the commencement of the
Presidential and Vice-Presidential Elections (Amend-
ment) Act, 1977] by the Supreme Court under article 145
may· regulate the form of election petitions, the manner in
D which they are to be presented, the persons who are to
be made parties thereto, the procedure to be adopted in
connection therewith and the circumstances in which peti-
tions are to abate, or may be withdrawn, and in which new
petitioners may be substituted, and may require security
to be given for costs.
E
16. A petitioner may claim either of the following decla-
rations:-
(a) that the election of the returned canaidate is void;
F (b) that the election of the returned candidate is void
and that he himself or any other candidate has been
duly elected."
"18. (1) If the Supreme court is of opinion, -
G
(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
H (b) that the result of the election has been materially
MITHILESH SINHA v. RETURNING OFFICER [VERMA, J.] 677
affected - A
(i) by the improper reception or refusal of a vote; or
(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 B
(iii) by reason of the fact that the nomination of any
candiate (other than the successful candidate), who
has not withdrawn his candidature, has been
wrongly accepted; or c
(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 D
returned candidaie 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 IX-A of the Indian Penal Code.
E
19. If any person who has lodged an election petition has,
in addition to calling in question the election of the
returned candidate, claimed a declaration that he himself
or any other candidate has been duly elected and the
Supreme Court is of opinion that in fact the petitioner or F
such other candidate received a majority of the valid votes,
the Supreme Court shall, after d~claring the election of
the returned candidate to be void, declare the petitioner
or such other candidate, as the case may be, to have been
duly elected :
G
Provided that the petitioner or such other candidate
shall not be declared to be duly elected if it is proved that
the election of such candidate would have been void if he
had been the returned candidate and a petition had been
presented calling in question his election." H
678 SUPREME COURT REPORTS [1992] SUPP. 1 S.C.R.
A The Supreme Court Rules, 1966 in Part VII contains Order XXXIX
which are the rules framed relating to election petitions under 'Part III of
the Presidential and Vice-Presidential Elections Act, 1952'. The relevant
rules for our purpose in Order XXXIX are Rules 2, 5, 7, 8, 11, 20 and 34
which are as under:-
B "2. An application calling in question an election shall
only be by a petition made and presented in accordance
with the provisions of this Order."
"5. The petition shall state the right of the petitioner
c under the Act to petition the Court and briefly set forth
the facts and grounds relied on by him to sustain the reliefs
claimed by him.'
'7. A petition calling in question an election .may be
presented on one or more of the grounds specified in
D sub-section (1) of section 18 and section 19 of the Act, by
any candidate at such election, or
(i) !n the case of Presidential election, by twenty or
more electors joined together as petitioners;
E
(ii) ...
8. Where the petitioner claims a declaration under
clause (a) of section 16 of the Act, he shall implead the
F returned candidate as the respondent, and where he
claims a declaration under clause (b) of the said section,
he shall implead as respondents all candidates, other than
himself, duly mominated at the election.'
"11. The petitioner shall also lodge, along with the
G petition, at least twelve copies of the petition and of all
document which accompany it."
"20. Every petition calling in question an election shall
be posted before and be heard and disposed of by a Bench
H of the Court consisting of not less than five Judges."
MITHILESH SINHA v. RETURNING OFFICER [VERMA, J.] 679
"34. Subject to the provisions of this Order or any A
special order or directions of the Court, the procedure on
an election petition shall follow, as nearly as may be, the
procedure in proceedings before the Court in the exercise
of its original jurisdiction."
Part Hi of the Supreme Court Rules, 1966 relates to the procedure in B
proceedings before the Court in the exercise of its original jurisdiction
where in Order XXJIJ relates to plaints which would be applicable to such
election petitions by virtue of Order XXXIX Rule 34. The relevant rules
in Order XXJIJ are Rules 6 and 7 which read as under:
"6. The plaint shall be rejected:-
c
(a) where it does not disclose a cause of action.
(b) where the suit appears from the statement in the plaint
to be barred by any law.
D
7. Where a plaint is rejected the Court shall record an
order to that effect with the reasons for the order."
Order XXXIX Rule 5 requires that the election petition shall state
'the right of the petitioner under the Act' to petition the Court and briefly E
set forth 'the facts and grounds relied on by him to sustain the reliefs
claimed by him'. The requirement of Order XXXIX Rule 7 further is that
the petition must be presented on one or more of the grounds specified in
sub-section (1) of Section 18 and Section 19 of the Act by any candidate
at such election or by twenty or more electors joined together as petitioners
in the case of Presidential Election. This is in accordance with the require- F
ments of Sections 14A of the Act. Order XXXIX Rule 34 then says that
'subject to the provisions of this Order or any special order or direction of
the Court', the procedure followed in the trial of the election petition by
the Court shall as nearly as may be the procedure in proceedings before
the Court in the exercise of its original jurisdiction. This attracts the G
provisions contained in Rules 6 and 7 of Order XXIII relating to rejection
of a plaint where it does not disclose a cause of action or from the
statement in the pleading it appears to be barred by any law.
The preliminary objection raised in these petitions is that neither of
them disclose any cause of action to raise a triable issue and they are H
680 SUPREME COURT REPORTS [1992] SUPP. 1 S.C.R.
A barred by the provisions contained in the Act. In Election Petition No. 1
of 1992, the further objection is that it is not filed by a competent person.
We shall now consider the preliminary objections raised in these
petitions.
B Election Petition No. I of 1992
The preliminary objection in Election Petition No. 1 of 1992 is that
Mithilesh K•1mar Sinha is not a 'candidate' within the meaning of Section
13 (a) of the Act and he being the sole petitioner in his election petition,
that election petition is not presented in accordance with Section 14A of
c the Act and Rule 7, Order XXXIX of Supreme Court Rules. Alternative-
ly, it was submitted by Shri Kapil Sibal as well as the learned Attorney
General that even assuming petitioner Mithilesh Kumar Sinha was a
'candidate' at the election and there be no non-compliance of Section 14A
of the Act and Rule 7, Order XXXIX of Supreme Court Rules, the election
D petition does not contain the material facts necessary to constitute the
ground of wrongful rejection of his nomination paper, the ground in
Section 18 (l)(c) on which the election petition is based· or any other
ground in Section 18 of the Act. On this basis, it is contended that the
petition is liable to rejection at the threshold since it does not raise any
triable issue even assuming the petition is validly presented.
E
Mithilesh Kumar Sinha, the petitioner-in-person, however, con-
tended that he was a 'candidate'. with in the meaning of Section 13(a) of
the Act since his nomination paper contained the signature of ten electors
as proposers and ten electors as seconders as required by Section 5B (1)
F (a) of the Act and, therefore, his nomination being valid, the material facts
for pleading the ground of wrongful rejection of his nomination paper
under Section 18 ( 1) (c) are stated in the petition read along with list of
dates filed by him with the petition. The petitioner clearly conceded
during his arguments that on 24.6.1992. Shri Ram Jethmalani had filed his
nomination paper prior to the filing of nomination paper by petitioner
G Mithilesh Kumar Sinha later that day bearing signatures of some common
electors. However, the petitioner contended that the requirement of Sec-
tion 5B (5) is that the signature of the elector who subscribes his signature,
whether as proposer or as seconder, in more than one nomination paper
is operative in the nomination paper which he subscribes earlier in point
H of time even it that nomination paper is delivered later to the Returning
MITHILESH SINHA v. RETURNING OFFICER [VERMA, J.j 681
Officer. The argument of the petitioner is that the word 'delivered' in A
Section 5B(5) must be construed to mean 'subscribed'. In substance, his
argument is that those electors whose signatures were common in his
nomination paper as well as in the nomination paper of Shri Ram J etmalani
delivered earlier to the Returning Officer, had in fact subscribed their
signatures on the petitioner's nomination paper earlier and, therefore, their B
signatures made subsequently on the nomination paper of Shri Ram Jeth-
malani were inoperative. On this basis, according to the petitioner, Sec-
tion 5B(5) was not applicable to permit rejection of the petitioner's
nomination paper and, therefore, the ground of wrongful rejection of his
nomination paper under Section 18 (l)(c) arises to invalidate the election.
The petitioner also alleged that one of the signatures on his nomination paper C
had been erased to make it appear that there was deficiency in the required
number of electors as proposers in terms of Section 5B (1) (a) of the Act.
We may mention that many of the facts stated by us treating them as
averments in support of the petition are not contained in the petition. D
However, for the benefit of the petitioner, we have read even .the list of
dates· filed by him as a part of the petition. We also permitted the
petitioner to file certain documents during the course of his arguments on
which he relied and have taken them into account. The petitioner fmally
submitted that Section 17 of the Act requires a full trial of the election
petition irrespective of the deficiency in the pleadings and the Court has E
no· power to dismiss the election petition at this stage without going through
the entire trial.
Having given our anxious consideration to the matter, we are left in
no doubt that this e!ection petition must be dismissed at the threshold since F
any .further pendency of the same would be a sheer waste of time of this
Court, needless public expense and prolongation of abuse of the process
of this Court.
As earlier indicated, the election petition being deficient in material
particulars without going into the effect of the deficiency for the purpose of G
deciding the question of maintainability of the petition, we permitted the
petitioner to t:ile several documents at the stage of hearing which include
copies of the nomination papers of the candidates an:d record of the scrutiny
proceedings made by the Returning Officer. The nomination paper of
petitioner Mithilesh Kumar Sinha bears serial number 60 which was delivered H
682 SUPREME COURT REPORTS (1992] SUPP. 1 S.C.R.
A to the Returning Officer at 12.50 p.m. on 24.6.1992 by Mithilesh Kumar him-
self. The decision of the Returning Officer recorded on petitioner's nomina-
tion paper on scrutiny made on 25.6.1992 is as under:-
This nomination paper of Shri Mithilesh Kumar at Sr.
No.60 has ten proposers out of which one proposer at Sr.
B No.6 namely, Shri J awahar Prasad Singb has not appended
his signature. It, therefore, falls short of required number
of proposers. Besides, Shri Surendra Sharma who is a
proposer of Shri Mithilesh Kumar has already subscribed
to the nomination paper at Sr. No.45 of Shri Ram Jeth-
c malani as seconder. His signature is, therefore, inoperative
on the present nomination paper. Similarly, Shri Prem
Nath Jaiswal, Shri Saryug Manda!, Shri Raj Kumar
Mahasetha, Shri Binod Kumar Roy and Shri Madhu Singh
who are seconders of Shri Mithilesh Kumar has already
subscribed to the nomination paper at Sr. No.45 of Shri
D
Ram Jethmalani as seconders and as such their signatures
also become inoperative on the nomination paper of Shri
Mithilesh Kumar. I, therefore, reject the nomination paper
under section 5E(3) (c) of the said Act."
E The reasons for rejection of petitioner's nomination paper given by
the Returning Officer show that there was deficiency in the required
number of proposers as one of. the named proposers Jawahar Prasad Singh
had not appended his signature. In addition, Surendrd Sharma, a proposer
of Mithilesh Kumar had.already subscribed to the nomination paper of
F Ram Jetmalani as seconder which had been filed earlier and, therefore, his
signature was inoperative in accordance with Section 5B(5). Similarly,
Prem Nath Jaiswal, Saryug Manda!, Raj Kumar Mahasetha, Binod Kumar
Roy and Madhu Singh who were seconders of Mithilesh Kumar Sinha had
already subscribed to the nomination paper of Ram Jethmalani as
seconders which has been filed earlier and as such their signatures also
G became inoperative on the nomination paper of Mithilesh Kumar. The
reason for rejection of petitioner's nomination paper, therefore, was that
the same did not comply with the mandatory requirements of Section
5B(l)(a) which made it obligatory for the Returning Officer to reject the
nomination paper of Mithilesh Kumar at the time of scrutiny under Section
H 5E(3)(c).
MITHILESH SINHA v. RETURNING OFFICER [VERMA, J.] 683
It is to get over this difficulty that the petitioner Mithilesh Kumar A
Sinha contends that the word 'delivered' in Section 58(5) should be con-
strued as 'subscribed'. The argument of the petitioner relating to the
construction of Section 58(5) may now be considered. For the sake of
convenience Section 58(5) may again be quoted here:
B
"No elector shall subscribe, whether as proposer or as
seconUer, 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."
c
Sub-section (1) of Section SB requires that 'each candidate shall,
either in person or by any of his proposers or seconders' between the
specified hours 'deliver to the Retuning Officer' at the specified place 'a
nomination paper completed in the prescribed form and subscribed' by the
candidate as assenting to his nomination and in the case of Presidential D
Election also by at least ten .electors as proposers and at least ten electors
as seconders. The distinction between the words 'deliver' and 'subscribe'
in this context is clearly indicated in sub-section (1). The delivery of the
nomination paper is to the Retruning Officer and the nomination paper
has to be subscribed by the candidate, his proposers and seconders. There
is no scope for any ambiguity in the meaning of the word 'deliver' in this E
context in sub-section (1). Sub-section (2) prescribes the requirement of a
certified copy of the entry relating to the candidate in the electoral roll to
accompany each nomination paper. Sub-section (3) then says that the
Returning Officer shall not accept any nomination paper which is not
presented to him within the hours specified in sub-section (1). Sub-section F
(4) requires rejection of any nomination paper not received before the
specified hour on the last date appointed for the purpose or to which the
certified copy referred to in sub-section (2) is not attached. Then comes
sub-section (5) with which we are concerned in the present case. It is in
this context that sub-section (5) forbids an elector to subscribe, whether as
proposer or as seconder, more than one nomination paper at he same G
election and also prescribes the consequence of its non- compliance by
providing that in the case of non-compliance of this mandate in the first
part of sub-section (5), 'his signature shall be inoperative on any paper
other than the one fir::..t delivered.' It is the meaning of the word 'deliver'
in this context in sub-section (5) which is to be construed. II
684 SUPREME COURT REPORTS (1992] SUPP. 1 S.C.R.
A As indicated the difference in the meaning of the words 'deliver' and
'subscribe' is clearly brought out in sub-section (!) and the same words
used in sub-section (5) in the same context must have the same meaning.
The plain meaning of sub-section (5) is that no elector can subscribe,
whether as proposer or as seconder, more than one nomination paper at
the same election; and if he does so or, in other words, if any eleeor
B subscribes more than one nomination paper at the same election, whether
as proposer or seconder, then his signature shall be inoperative on any
nomination paper other than the one which has been first delivered to the
Returning Officer as required by sub-section (1). This means that an
elector can subscribe as proposer or seconder only one nomination paper
c at the same election and where he subscribes more than one nomination
paper at the same election then except for the nomination paper which is
first delivered to the Returning Officer, his signature on any nomination
paper delivered subsequnelty to the Returning Officer shall be inoperative
or inefffective. It is clear that the elector having the right to sponsor only
D one candidate and, therefore, to subscribe as proposer or seconder only
one nomination paper, that right is exhausted the moment a nomination
paper subscribed by him has been delievered to the Returning Officer and
the question of his signature on any nomination paper delivered sub-
sequently to the Returning Officer being operative does not arise. No
inquiry into that question is contemplated by the Returning Officer where
E more than one nomination paper subscribed by the same elector is
delivered to the Returning Officer, since the statute provides that the right
of an elector to propose or second a candidate being exercisable only once,
it is exhausted the moment the first nomination paper subscribed by him
is delivered to the Returning Officer. There is thus no scope for construing
F the word 'deliver' as 'subscribe' in sub-section (5) as suggested by the
petitioner since the two words have different connotation and are also used
for different purposes not only in sub-section (5) but also in sub-section
(1) of Section 5B in the same context. The meaning of these words in the
two sub-sections of Section SB must be the same. The construction made by
the petitioner of sub-section (5) of Section SB must, therefore, be rejected.
G
In view of the clear statement made by the petitioner at the hearing,
which is also borne out from the documents filed by him, the nomination
paper of Shri Ram Jethmalani subscribed by some common electors was first
delivered to the Returning Officer as required bySection5B(l)(a) and, there-
H fore, the signatures of the common electors on the subsequently delivered
MITHILESH SINHA v. RETURNING OFFICER [VERMA, J.] 685
nomination paper of petitioner were inoperative by virtue of Section 5B(5). A
The obvious result, therefore, is that the subsequently delivered nomination
paper of the petitioner, Mithilesh Kumar Sinha, was not subscribed by at least
ten electors as proposers and at least ten electors as seconders as required by
Section 5B(l)(a) whcihmade it incumbent on the Returning Officer to reject
the petitioner's nomination paper on the ground contained in Section
5E(3)(c). This is the reason given by the Returning Officer for rejecting the
B
petitioner's nomination paper as required by Section 5E(7). This conclusion
is inevitable even assuming, as claimed by the petitioner that his nomination
paper was subscribed by ten electors as proposers and ten electors as
seconders, including the inoperative common signatures, and ignoring the
fact appearing from the nomination paper that there was numerical deficien- c
cy of one signature since J awahar Prasad Singh named as a proposer had not
appended his signature on the nomination paper.
The requirement of Section 14A that an election petition calling in
question a Presidential election has to be presented by any candidate at such D
election or by twenty or more electors joined together as petitioners is for the
obvious reason that the rquirement for a valid nomination at a Presidential
election according to Section 5B(l)(a) is the nomination of a candidate by at
least ten electors as proposers and an equal number as seconders i.e. in all by
at least twenty electors. A person entitled to claim hiself as a duly nominated
candidate at the election must have at least twenty electors subscribing his E
valid nomination paper as proposers and seconders. The law could never have
intended that a person without satisfying the requirement of Section SB( 1)(a)
can claim to have been duly nominated as a candidate at an election even ifhe
did not have twenty electors behind him as proposers and seconders to validly
sponsor him as a candidate. If an elction petition according to Section 14A
F
cannot be presented by less than twenty electors joined together as
petitioners, it cannot obviously be presentesi by the alternative mode of a
candidate as the petitioner who was not validly nominated by at least twenty
electors. This requirement of Section 14A (1) is a clear indication that a per-
son cannot claim to have been duly nominated as a candidate at the Presiden-
tial election unless he had satisfied the mandatory requirements of Section G
5B(l)(a) and Section SC.
To be entitled to present an election petition calling in question an
election, the petitioner should have been a 'candidate' at such election
within the meaning of Section 13(a) for which he should have been 'duly H
686 SUPREME COURT REPORTS [1992J SUPP. I S.C.R.
A nominated as a candidate' and this he cannot ciiam unless the mandatory
requirements of Section 5B(!)(a) and Section SC were complied by him.
Where on undisputed facts there was non-compliance of any of these
mandatory requirements for a valid nomination, the petitioner was not a
'candidate' within the meaning of Section 13(a) and, therefore, not com-
B petent according to Section 14A to pres"nt the petition.
It is also settled by the decisions of this Court that in order to have
the requisite locus standi as a 'candidate' within the meaning of Section
13(a) for being entitled to present such an election petition in accordance
with Section 14A of the Act the petitioner must be duly nominated as a
c candidate in accordance with Section SB(l)(a) and Section SC. Unless it
is so the petitioner cannot even claim to have been duly nominated as a
candidate at the election as required by Section 13(a). The above con-
clusion in respect to the nomination paper of the petitioner, Mithilest
Kumar Sinha, from the facts set out by him in the petition, stated by him
D at the hearing and evident from the documents filed by him makes it clear
that the petitioner, Mithilesh Kumar Sinha, has no locus standi to chal-
lenge the election of the returned candidate, Dr. Shanker Dayal Sharma as
he is not competent to present the election petition in accordance with
Section 14A of the Act read with Order XXXIX Rule 7 of Supreme Court
E Rules. Even otherwise the ground under Section 18(1)(c) of the Act of
wrongful rejection of his nomination paper urged in the election petition
does not give rise to a triable issue on the above facts and the irresistible
conclusion therefrom. The material' facts to make out a prima facie case of
existence of that ground are lacking in the pleadings and squarely negatived
by petitioner's own statement.
F
Jn Charan Lal Sahu v. Neelam Sanjeeva Reddy, [1978] 3 SCR I, the
election petition suffering from a similar defect was dismissod at the
threshold on a preliminary objection raised on behalf of the returned
candidate to the maintainability of the election petition. Therein a seven-
G Judge Bench held as under :
"The result of a careful consideration by us of the
provisions mentioned above is that we think that, the
procedure or marmer for questioning the Presidential
H election having been laid down, the petitione must come
MITHILESH SINHA v. RETURNING OFFICER [VERMA, J.] 687
within the four corners of that procedure in order to have A
a locus standi to challenge the Presidential election and
to be able to maintain this petition. If he neither is nor
can claim to be a candidate on assertions made by him in
his petition itself, he would be lacking the right to question
the election of Shri Neel am Sanjeeva Reddy as President
oflndia. The effect of the provision of Section 14(1), 14(2)
B
and 14(3) and 14A(l) of the Act read with Order XXXIX,
rules 2 and 5 of the Rules of this Court is that the petition
before us is barred because the petitioner has not got the
required locus standi to maintain it."
(at pp. 7-8)
c
A similar question arose in Charan Lal Sahu & Others v. Giani Zail
Singh & Another, (1984] 2 SCR 6. There also preliminary objection was
taken to the maintainability of the election petition on the ground that the
petitioner was not a candidate within the meaning of Section 13(a) of the D
Act and, therefore, not entitled to file an election petition under Section
14A of the Act. The petitioner there, it was held, could not claim to be
duly nominated as a candidate since he did not comply with the mandatory
requirements of Section 5B(l)(a). The preliminary objection was sustained
and the election petition dismissed by the Court on the ground that the E
petit!oner did not have the locus standi to maintain it.
The next case in line is Mithilesh Kumar v. Sri R. Venkataraman &
Ors., [1988] 1 SCR 525, which relates to the same petitioner, Mithilesh
Kumar. There also the question arose on a preliminary objection raised by
the returned candidate whether the election petition was liable to be F
rejected under Rule 6 of Order XXlll of the Supreme Court Rules on the
ground that it did not disclose any cause of action. The Court rejected the
election petition as required under Rule 6 of Order XXIII of the Supreme
Court Rules as it did not disclose any cause of action for trial of the ground
of undue influence sought to be raised in the election petition. In so G
dimissing the election petition the Court observed as under:-
"....... The petition is as bald as it could be. At the
hearing after getting the entire petition read out the Court
asked the petitioner to point out whether there was any
allegation that the 1st respondent had himself committed H
688 SUPREME COURT REPORTS [1992] SUPP. l S.C.R.
A any undue influence or any other person with the consent
of the lsl respondent had committed soch an act or any
allegation which required to be tried and the petitioner
was not able to point out any part of the petition in which
such an allegation had been made ........ .
B In the circumstances, the Court has no choice except
to reject the petition as required under-rule 6 of the Order
XXIII of the Rules as it does not disclose any cause of
action: 11
(at pp. 536-537)
c
A similar preliminary objection to the /ocum standi of petitioner due
to non-compliance of the requirement of Section 5C of the Act was upheld
and the election petiton dismissed at the threshold in Charan Lal Sahu v.
•
Shri Fakrnddin Ali Ahmed and others, A1R 1975 SC 1288, stating thus :-
D
"..... It was contended that under Article 58 of the Con-
stitution there is no impediment in the way of a person
being nominated as a candidate for election to the office,
of President if he can satisfy that he is qualified to be
elected as a Member of Parliament. But we fail to see how
E this Article is of any help to the petitioner. There is, in
our view, nothing in the impugned Sections which is in-
consistent with Article 58. Article 71(3) which vests power
in Parliament to regulate by law any matter relating to or
connected with the election of a President or Vice-Presi-
F dent is subject to the other provisions of the Constitution
which include Article 58 but merely because a candidate
is qualified under Art. 58 it does not mean that he is
exempt from compliance with the requirements of la\v
which may be made by Parliament under Article 71(3) for
regulating the mode and manner in which nominations
G should be filed. If the petitioner does not comply with the
requirements of such a law passed in exercise of the power
under Article 71(3) he cannot properly claim to be duly
1
nominated and he would not be a 'candidate" for election.
H In this view we do not think that the petitioner has locus
MITHILESH SINHA v. RETURNING OFFICER fVERMA,J.] 689
standi to maintain the petition and the same is accordingly A
dismissed. 1
'
(at pp. 1289-90)
The earlier decisions of this Court have clearly negatived the
petitoner's further contention that the Court is bound to continue this trial B
even though no triable issue arises and he does not have the requisite locus
standi merely because of Section 17 of the Act. The cited cases including
one filed by the very same petitioner show rejection of similarly defective
petitions at the threshold. The trial commences with the presentation of
the election petition and an order of dismissal of the petition made at this
stage on the ground that it is not maintainable beig barred by any law or c
not disclosing any cause of action is a dismissal at the conclusion of the
trial since no further step in the trial of such a petition is contemplated.
This is how the word 'trial' in Section 17 of the Act must be understood,
if Section 17 is to govern the dimissal of all petitions including dismissal at
the threshold. This view also harmonises Order XXIII Rule 6 of the D
Supreme Court Rules which applies by virtue of Order XXXIX Rule 34
as repeatedly held by this Court.
The Election Petitioii No. 1 of 1992 is, therefore, liable to be dis-
missed as not maintainable, for the reasons given. The other vague and
general grounds urged by this petitioner are considerod later along with E
similar points taken by the petitioner in Election Petition No.2 of 1992.
Election Petition No. 2 of 1992 :
The petitioner, Kaka Joginder Singh, who has filed this election
petition was a duly nominated candidate and, therefore, the petition has F
been presented as required by Section 14A of 'the Act' read with Order
" XXXIX Rule 7 of Supreme Court Rules. We would first advert to the
reliefs claimed in the election petition. There are in all ni.1e reliefs claimed
of which the tenth is the general relief which does not require any specific
consideration. Reliefs at serial numbers 1, 2, 3, 5, 6 and 7 in the prayer G
. clause are obviously misconceived and beyond the scope of the election
petition. The only reliefs requiring consideration are at serial numbers 4,
8 and 9 wherein it is prayed that the election of the returned candidate Dr.
Shanker Dayal Sharma be declared void, the acceptance of nomination
papers of Dr. Shanker Dayal Sharma, Prof. G.G. Swell and Shri Ram
Jethmalani be declared to be wrongful; and the petitioner Kaka Joginder H
690 SUPREME COURT REPORTS [1992) SUPP. I S.C.R.
A Singh alias Dharati Pakad be delcared the duly elected President of India.
These reliefs are claimed essentially on the ground in Section 18(1)(c) of
wrongful acceptaoce of the nomination papers of the other three can-
didates, namely, Dr. Shruer Dayal Sharma, Prof. G.G. Swell and Shri
Ram Jethmalani. The further relief of declaring petitioner, Kaka Joginder
Singh duly elected attracts Section 19 of the Act which prescribes that for
B such a further declaration the Court must form the opinion that "in fact
the petitioner. .... received a majority of the valid votes". There is no such
averment made in the election petition nor was any such assertion made
even at the hearing by the petitioner. There is thus no foundation for this
-
further declaration sought by the petitioner in the relief claimed by him at
C serial number 9 in the prayer clause. The election petition is, therefore, to
be confined essentially to the ground contained in Section 18(1)(c) of
wrongful acceptaoce of the nomination papers of the other three can-
didates.
No doubt in the election petition sevearal other things have been said
D but they do not amount to averment of material facts to constitute or raise
any other ground contained in Section 18 of the Act. A passing reference
to what may be termed as 'undue influence' does appear in the petition but
the averments do not satisfy the requirement of pleadings even according
to the ordinary staodard much less the more stringent requirements of
sub-section (2) of Section 18 of the Act. At the hearing also the petitioner
E addressed us mainly on the ground of wrongful acceptaoce of nomination
papers of the other three candidates relying particularly on the objections
raised by him before the Returning Officer as mentioned earlier. We
would, therefore, now consider maintainability of the petition on the
ground contained in Section 18( 1) (c) of the Act. A reference to some other
F grounds mentioned vaguely aod generally is made later.
The petitioner's case appearing from his pleadings as well as argu-
ments is that the nomination papers of the other three candidates were
wrongly accepted even though they contained incomplete description of
G the candidates, their proposers and seconders. This contention is based on
the contents of the nomination papers. A persual of the nomination papers
of all the candidates with reference to Form 2 read with Rule 4 of the
Presidential and Vice-Presidential Elections Rules, 1974 shows that there •
is no. defect, deficiency or ambiguity in the nomination papers of any of the
four candidates including this petitioner whose nomination papers were
H accepted by the Returning Officer. This petitioner's nomination paper is
MITHILESHSINHA v. RETURNINGOFFICER[VERMA,J.] 691
similar in contents. The petitioner's grievance was confined mainly to A
columns 2 and 4 of Form 2. Column 2 requires the full name of the
proposers/seconders and column 4 requires mention of the State/Union
Territory in/from which they were elected. A bare perusal of the nomina-
tion papers of the four candidates which had been accepted by the Return-
ing Officer shows that these requirements were duly complied with and
there was no ambiguity in respect of the name or any othe prescribed B
particular of the propsers and seconders in these nomination papers. The
petitiner contended that the description of the candidates, the proposers
and seconders requires some more particulars to be given. However, no
further particular mentioned by the petitioner is the requirement of the
rules or the prescribed form of the nomination paper. Thus no defect in
any of these nomination papers to make out even a prima facie ground
c
under Section 18(1)(c) of wrongful acceptance of any of these nomination
papers is either pleaded or shown to raise a triable issue on this point. We
may here also refer to Sub-section (5) of Section 5E which provides that
the "Returning Officer shall not reject any nomination paper on the ground
of any defect which is not of a substantial character". No defect of any kind D
much less a defect of substantial character in any nomination paper which
was accepted has been pleaded or shown by the petitioner to require any
further examination of this question or framing an issue for the purpose.
The election petition does not, therefore, disclose any cause of action for
trial of the ground contained in Section 18(1)(c) of the Act.
E
The only other ground to which a casaal reference appears to have
been made in the petition and was referred in passing at the hearing is that
contained in Section 18(1)(a) which has to be read along with Section
18(2). The casual reference is to the ground of undue influence. It would
be appropriate at this stage to refer to the contents of paras 2, 5 and 6 of
the petition on which reliance was placed by the petitioner and which are F
treated by him as material averments for raising the grounds under Section
18 of the Act. We have already considered the ground relating to Section
18(1)(c) to which para 2 of the petition relates. Para 6(a) contains several
sub-paras. Sub-para (1) says that the nomination papers were presented by
one single proposer and not by ten proposers and further that the G
proposers and seconders included the Prime Minister, Central Ministers,
Chief Ministers and Members of Parliament. No attempt was made by the
petitioner to show that this constitutes a ground under Section 18(1) of the
Act or that it amounts to the violation or non-compliance of any law.
Moreover, Section 5B providing for presentation of nomination paper and H
692 SUPREME COURT REPORTS (1992] SUPP. 1 S.C.R.
A require1nents of a valid nomination does not prescribe any such rquire-
ment. Sub-para (2) says that the other three candidates are above 65 years
of age. This too is irrelevant and no attempt was made to rely on it.
Sub-paras (3) and (4) are similarly irrelevant and the petitoner made no
attempt at the hearing to rely on them as a ground under Section 18 of the
Act. There is no requirement of law to file the complete electoral roll
B except a certified copy of the entry relating to the candidate in the electoral
roll according to Section 5B(2) of the Act. Sub-para (5) is minconceived
in view of the Explanation to Article 58 of the Constitution. Sub-para (6)
is the only remaining sub-para wherein an attempt to plead the ground
contained in Section 18(1)(a) is made. There is no additional requirement
of oath by the candidates as settled by the earlier decisions of this Court
c and, therefore, this part of sub-para (6) needs no further consideration.
The remaining para contains the averment that.the Returning Officer, Shri
Sudershan Agrawal was given an extension of one year by the returned
candidate Dr. Shanker Dayal Sharma as Vice-President of India which "is
illegal and amounts to undue influence". The averment in sub-para (6)
D relating to the constitional validity of some provisions is concluded by
earlier decisions of this Court apart from being beyond the scope of the
election petition. There is no averment as to how the extention of one year
given to Shri Sudershan Agrawal is illegal and no particulars of the bald
assertion of undue influence have even been mentioned. In view of Section
i8(2), the offence of undue influence in Section 18(1)(a) has the same
E menaing as in Chapter IX-A of the Indian Penal Code. Section 171-C of
the Indian Penal Code defines undue influence at elections as under:
"171-C. Undue influence at elections. - (1) Whoever volun-
tarily interferes or attempts to interfere with the free
exercise of any electoral right commits the offence of
F undue influence at an election .
. (2) Without prejudice to the generality of the provisions
of sub-section (1), whoever -
(a) threatens any candidate or voter, or any person in
G
whom a candidate or voter is interested, with injury
of any kind, or
(b) induces or attempts to induce a candidate or voter
to believe that he or any person in whom he is
H interested will become or will be rendered. an ob-
MITHILESH SINHA v. RETURNING OFFICER [VERMA, J. J 693
ject of Divine displeasure or of spiritual censure, A
shall be deemed to interfere with the free exercise of the
electoral right of such candidate or voter, within the
meaning of sub-section {1).
(3) A declaration of public policy or a promise of public B
action, or the mere exercise of a legal right without intent
to interfere with an electoral right, shall not be deemed
to be interference within the meaning of this section."
A bare perusal of Section 171-C l.P.C. shows that the ingredients of C
undue influence at elections are many and they have to be read into the
meaning of the offence of undue influence in Section 18(1)(a) of the Act.
Before a ground under Section 18{1){a) of the Act can be said to be
pleaded raising a triable issue in the election petition it must be shown that
material facts to constitute the ingredients of the offence of undue in-
fluence have at least been pleaded in the election petition. The petitioner D
has not made any attempt to pay even lip-service to these requirements
and has chosen to merely repeat the words "undue influence in the election"
in the petition without any attempt to plead material facts raising that
gronnd. Obviously for this reason the petitioner did not even attempt, at
the hearing, to advert to this ground with any degree of seriousness.
E
It is, therefore, obvious that even though the petitioner, Kaka
Joginder Singh in Election Petition No.2 of 1992 has the locus standi to
present the petition as required by Section 14A of the Act read with Order
XXXIX Rule 7 of Supreme Court Rules, yet material facts and the grounds
on which the relief of declaration of the election of the returned candidate
void is sought have not been pleaded to disclose any cause of action or F
raise any triable issue. The net result, therefore, is the same as in Election
Petition No. 1 of 1992 and this petition also is liable to be dismissed
sustaining the preliminary objection. It must be held that the election
petition does not disclose any cause of action and is, therefore, liable to be
dismissed by virtue of the Rules 2 and 5 of Order XXXIX and Rule 6 of G
Order XXIII read with Rule 34 of Order XXXIX of the Supreme Court
Rules and the mandatory provisions of the Presidential and Vice-Presiden-
tial Elections Act, 1952.
What we have already said is sufficient to dispose of both the election
petitions taking into consideration an that can qualify in the two petitions H
694 SUPREME COURT REPORTS [1992] SUPP. I S.C.R.
A as relevant or requiring consideration. The exercise of filtering out the
relevant from the irrelevant in the both these petitions has been tedious.
In Election Petition No.1 of 1992 this task has been more difficult on
account of the recalcitrance and ambience c!' petitioner Mithilesh Kumar
Sinha who persisted in continuing his arguments by submitting some more
written submissions even after the case was closed for judgment on con-
B clusion of the hearing. There was nothing of substane or use therein, in
additon to what he had said earlier. The language used by Mithilesh Kumar
Sinha at some places in his written submissions is also intemperate. It is
doubtful that he did so unwittingly and the impression we get is that all his
actions have been deliberate. We strongly deprecate this attitude and
c conduct of petitioner Mithilesh Kumar Sinha who has clearly misused the
indulgence granted by the Court to him as a petitioner-in-person. Ordinari-
ly we would have refraised from saying so in the judgment, but we do so
since we find that such an indication by us to him during the hearing has
not had the desired effect.
D
In this context, we may recall the observations of Venkataramiah, J.
speaking for the Constitution Bench in Mithilesh Kumar (supra) at p.537
of SCR about the same petitioner which bear repetition at this stage:
"Before concluding we should observe that the
E petitioner did not appear to be quite serious about his
case. At one stage he contended having himself filed the
petition before the Court that this Court had no com-
petence to hear the case and at another stage he wanted
51 Judges to hear his petition when the maximum permis-
F sible strength of this Court is about one-half of that
number and the existing strength of this Court is less than
one-third of that number. Rule 20 of Order XXXIX of
the Rules requires that every petition calling in question
an election to the offices of the President and the Vice-
President shall be posted before and be heard and dis-
G posed of by a Bench of this Court consisting of not less
than five Judges. While we expect every conscientious
citizen eligible to file an election petition to question an
election on the grounds prescribed by the Act, we do not
wish that any petitioner should make use of this Court as
H a forum to file a petition without giving adequae thought
MITHILESH SINH.A v. RETIJRN!NG OFFICER [VERMA, J.J 695
to its contents and also to the provisions of law governing A
the case merely to seek some cheap publicity. We regret
to say that seeing one's name in newspapers everyday has
lately become the worst intoxicant and the number of
people who have become victims of it is increasing day by
day. We, however, refraise from referring to some other
B
irrelevant and unwarranted statements made by him
before this Court orally and in writing. Perhaps the
petitioner who desired to become the President of India
did not understand the effect of what he was saying. We
shall leave it at that."
c
It is obvious that the above observations of Venkataramiah, J. have
not had the desired effect on petitioner Mithilesh Kumar Sinha. One of the
tenuous submissions of Mithilesh Kumar Sinha before us was that no sitting
Judge of the Supreme Court is competent to hear his petition since they
are· all likely to be influenced by the President of India and, therefore, his
petition should be heard by a Bench comprising of all the sitting Judges as D
well as all the retired Judges of the Supreme Court. This would indicate
the extent to which this Court's time has been wasted by such frivolous
pleas. Suitable steps to prevent such attempts in future must be taken in
larger public interest.
E
We may make a passing reference to some of the earlier decisions
of this Court in which some similar points mentioned casually and vaguely
by these petitioners without laying any foundation have been rejected. Both
these petitioners are far too deficient by even tl:e most liberal standard of
pleadings when the standard in election petitions is more strict.
F
A Bench of seven Judges in Charan Lal Sahu v. Nee/am Sanjeeva
Reddy, [1978] 3 SCR 1, apart from dealing with the locus standi to file
election petition under the Presidential and Vice-Presidential Elections
Act, 1952, also considered and negatived the challenge to constitutional
validity of certain provisions while stating the scope of Articles 58 and 71 G
of the Constitution of India.
In Shr(Baburao Patel & Ors. v. Dr. Zakir Husain & Ors., [1968] 2 SCR
133, it was held that a candidate standing for el.ection to the office of the
President was not required to take any oath for becoming eligible for
election as President; and the nature of pleadings required for constituting H
696 SUPREME COURT REPORTS [1992] SUPP. I S.C.R.
A the ground of undue influence under Section 18 of the Act based on
canvassing by the Prime Minister and Ministers was also indicated. In Shiv
Kirpal Singh v. Shn' V. V. Gin; [1971] 2 SCR 197, apart from indicating once
again the ~equirements for constituting the ground of undue influence
under Section 18 of the Act, it was also held that so challenge to the
election can be made on gorunds other than those mentioned in Section
B 18 of the Act. In Charan Lal Sahu v. Shri Fakruddin Ali Ahmed and Others,
AIR 1975 SC 1288, the constitutional validity of Sections 5B and 5C of the
Act was upheid. In Charan Lal Sahu & Others v. Giani Zail Singh &
Another, [1984] 2 SCR 6, the necessity of precise, specific and unambiguous
pleadings in such an election petition was emphasised; the requirements
C for raising the ground of undue influence under Section 18 of the Act were
reiterated; the irrelevance of the plea of suitability of a candidate in the
petition was indicated; the absence of any requirement by the candidate of
the oath prescribed by Article 84(a) was stated while indicating the re-
quirements in an election petititon for raising a triable issue. It was also
D emphasised that the right arising out of elections including that the right
to contest or challenge an election are not common law rights but are
creatures of the statutes which create, confer or limit those rights and,
therefore, for deciding the question whether an election can be set aside
on any alleged ground, the courts have to function within the framework
of that law and not travel beyond it. Chandrachud, CJ. speaking for the
E Constitution Bench in a similar situation also observed as under:
"It is regrettable that election petitions challenging the
election to the high Office of the President of India should
be filed in a fashion as cavalier as the one which charac-
F terises these two petitions. The petitions have an extem-
pore appearance and not even a second look, leave alone
a second thought appears to have been given to the
manner of drafting these petitions or to the contentions
raised therein. In order to discourage the filing of such
petitions, we would have been justified in passing a heavy
G order of costs aginst the two petitioners. But that is likely
to create a needless misconception that this Court, which
has been constituted by the Act as the exclusive forum for
deciding election petitions whereby a Presidential or Vice-
Presidential election is challenged, is loathe to entertain
H such petitions. It is of the essence of the functioning of a
MITHILESH SINHA v. RETURNING OFFICER [VERMA,!.] 697
democracy that election to public offices must be open to A
the scrutiny of an independent tribunal. A heavy order of
costs in these two petitions, howsoevt:;r justified on their
own facts, should not result in nipping in the bud a
well-founded claim on a future occasion. Therefore, we
refrain from passing any order of costs and, instead,
express our disapproval of the light-hearted and indif-
B
ferent manner in which these two petitions are drafted
and filed."
(at p.17)
What appears to have dissuaded the Court then in making a heavy
c
order of costs in a similar situation appears to have lost its force since then
in view of the even more cavalier fashion in wh.ich these petitions continue
to be filed a decade later.
In Mithilesh Kumar v. Sri R. Venkataraman & Ors., [1988] 1 SCR 525, D
it was reiterated that Section 18 of the Act is exhaustive of the grounds on
which such an election can be declared void. We have already quoted the
observations ofVenkataramiah, J. at p. 537 deprecating the cavalier fashion
in which the very same petitioner had then also filed the election petition.
We have referred to these decisions for the only reason that in both E
these petititons, a roving challenge to the election has been made by
casually mentioning several provisions and even more casually stating that
some of them are unconstitutional without indicating any basis for the
challenge. It is unnecessary to dilate further.
Before parting with the matters we are constrained to observe that F
it is now time to make suitable provisions to prevent entertaining such
frivolous· petitions filed in a cavalier fashion requiring the hearing by a
Bench of five Judges of this Court. The only purpose served by such
frivolous petitions is the giving of some undue publicity to the petitioner
which appears to be the sole purpose of filing such a petition. Obviously, G
use of the Court as a forum for this purpose must not be permitted. The
election petitions under the Representation of the People Act challenging
elections to the Prcliament and State Legislatures are required to be heard
by a Single Judge of the High Court. In view of the greater importance nf
the Presidential and Vice- Presidential elections the forum for trial of such
election petitions is the Supreme Court and in accordance with the rules H
698 SUPREME COURT REPORTS [1992] SUPP. I S.C.R.
framed by the Court these petitions are heard by a Bench of five Judges.
Experience has shown tlf~tthe solemnity anusignificancfllfflictlingt<Mi!ch
petitions has been reduced to a farce by the cavalier fashion in which resort
is had io this remedy. The mere fact that the entire gamut of both these
petitions is fully covered by several earlier decisions of this \,ourt to some
of which these very petitioners were parties shows that the existing
B provisions are inadequate to prevent such abuse of the process of law. It
is now necessary to make suitable amendments in the provisions for
screening of such frivolous petitions and provisions is required to be made
for trial only of serious petitions raising triable issues by a Bench of five
Judges of this Court. We consider it our duty to make these observations
to invite attention of all concerned to this felt need requiring suitable action
c in this direction.
On giving our anxious consider::i.tion to the reason given by
Chandrachud, CJ. in Charan Lal Sahu & Others. v. Giani Zai/ Singh &
Another, [1984] 2 SCR 6 for not making an order of costs while dismissing
D those petitions in a similar situation ftled a decade earlier, we think the
further decline during the last decade indicates that mere observations of
this kind do not have the desired effect. We ae constrained to take the view
that some stringent measure like mandatory requirement of security
deposit of a reasonable amount for costs for entertaining the election
petition is needed to provide some check.
E
While we record our strong disapproval of the casual manner in
which the petitioners have filed these frivolous petitions resulting in
wastage of considerable time of the Court which could be more gainfully
utilised of the hearing of pending serious matters over which these election
petitions requiring early hearing got precedence, in the present case we
F make no order as to costs.
Accordingly, we dismiss both these petitions without any order as to
costs, for the reasons given.
V.P.R. Petitions dismissed.
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