http://JUDIS.NIC.

IN SUPREME COURT OF INDIA Page 1 of 11

Vs.

RESPONDENT:
RAJEEV GANDHI

DATE OF JUDGMENT25/04/1986

BENCH:
VENKATARAMIAH, E.S. (J)
BENCH:
VENKATARAMIAH, E.S. (J)
THAKKAR, M.P. (J)

CITATION:
1986 AIR 1534 1986 SCR (2) 823
1986 SCC (4) 78 1986 SCALE (1)606
CITATOR INFO :
R 1987 SC1577 (4,11)
F 1987 SC1926 (4,5)

ACT:
Representation of the People Act, 1951: ss. 80 & 100
Election Petition - Dismissal of - For failure to disclose
cause of action - When arises.
Citizenship Act, 1955/Citizenship Rules, 1956; s.9 (2)
r. 30 - Citizenship - Determination of - Whether High Court
in an election petition has jurisdiction.
Constitution of India, Art. 102(1)(a): Membership of
Parliament - Whether an office of profit under the
Government.

HEADNOTE:
The appellant and the respondent were candidates for
the Amethi Parliamentary Constituency at the last general
election. The respondent was declared elected. The appellant
by a petition filed before the High Court assailed the
election of the respondent contending:
(1) that he was disqualified under Art. 102(1)(d) of the
Constitution to be a candidate, because he had ceased to be
an Indian citizen under s. 9 of the Citizenship Act for by
virtue of his marriage to an Italian lady and acquisition of
property in Italy he must be deemed to have voluntarily
acquired the citizenship of that country,
(2) that by reason of his being a Member of Parliament and
drawing salary, he was disqualified for being chosen as a
Member of Parliament since he was holding an office of
profit within the meaning of Art. 102(1)(a) of the
Constitution at the time of the election, and (3) that since
the Chief Election Commissioner could not be removed from
his office except in like manner and on the like grounds as
a Judge of the Supreme Court, as provided in Art. 324(5) of
the Constitution, no person who was not eligible to be
appointed as a Judge of the Supreme Court could be appointed
as the
824
Chief Election Commissioner, and consequently the Chief
Election Commissioner, who was functioning, being not
qualified to hold the post, the elections held throughout
the country, including that of the respondent, were void.
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The High Court took the view that notwithstanding the
statutory bar contained in s. 9(2) of the Citizenship Act,
1955 it had jurisdiction to decide the question whether a
candidate had ceased to be an Indian citizen, since by
virtue of Art. 329 of the Constitution all questions arising
in an election petition filed under the Representation of
the People Act were exclusively triable in an election
petition. It, however, dismissed the election petition
holding that it did not disclose any cause of action for
setting aside the election of the returned candidate.
Dismissing the appeal, the Court
^
HELD: 1.(i) Whatever may be the proceeding in which the
question of loss of citizenship of a person arises for
consideration, the decision in that proceeding on the said
question should depend upon the decision of the authority
constituted for determining that question under s. 9(2) of
the Citizenship Act, 1955. [836 C-D]
(ii) By virtue of r. 30 of the Citizenship Rules, 1956
which have been framed under the Act, the Central Government
has been appointed as the authority to decide the question
of voluntary acquisition of citizenship of a foreign country
arising under s.9(2). No other court or authority has,
therefore, the power to decide the question as to whether,
when or how an Indian citizen has acquired the citizenship
of another country. [832 C-E]
(iii) Even where the question whether a person is
qualified to be chosen as a Member of the Lok Sabha arises
in an election petition the High Court cannot proceed to
decide the question of loss of citizenship of the candidate
concerned notwithstanding the mandate of Art. 329 of the
Constitution that no election to either House of Parliament
or to the House of the Legislature of a State shall be
called in question except by an election petition. [832 E ]
825
(iv) When once a person is admitted or held to be a
citizen of India, unless there is a decision of the Central
Government under s. 9(2) of the Citizenship Act that he has
acquired the citizenship of a foreign country, he should be
presumed to be an Indian citizen. Sub-section (2) of s. 9
purports to lay down that the right of citizenship of the
person who is admittedly an Indian citizen should not be
exposed to attack in all forums in the country, but should
be decided by one authority, and that every other court or
authority would have to act only on the basis of the
decision of the prescribed authority in that behalf and on
no other basis. That being the mandate of law, even the High
Court trying an election petition can declare an Indian
citizen as having acquired the citizenship of a foreign
State only on the basis of a declaration made by the Central
Government. If such a declaration is produced before a High
Court it has to give effect to it but in case it is not
forthcoming, the High Court should proceed on the ground
that the candidate concerned has not ceased to be an Indian
citizen. It cannot independently hold an enquiry into that
question on its own. [834 G-H; 835 C-F]
In the instant case, the respondent was a citizen of
India by virtue of Art. 5 of the Constitution. No decision
had been given by the competent authority under the
citizenship Act on the question whether he had ceased to be
a citizen of India, nor was there any adjudication declaring
that he had acquired the citizenship of a foreign country.
There is no provision in our law which provides that a
person would automatically lose his Indian citizenship on
his marriage with a person who is a citizen of a foreign
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country. [828 E-F]
State of Madhya Pradesh v. Peer Mohd. & Anr., [1963]
Supp. 1 S.C.R. 429, State of Uttar Pradesh & Ors. v. Shah
Mohammad & Anr., [1969] 3 S.C.R. 1006, The Government of
Andhra Pradesh v. Syed Mohd. Khan [1962] Supp. 3 S.C.R. 288,
and Birendranath Chatterjee v. State of West Bengal & Ors.,
A.I.R. [1969] Cal. 386, referred to.
Arun Kumar Bose v. Mohd. Furuhan Ansari & Ors., [1984]
1 S.C.R. 118 and Surinder Singh v. Hardial Singh & Ors.,
[1985] 1 S.C.R. 1059, distinguished.
826
2. (i) The membership of Parliament is not an office
under the Government. The fact that the Lok Sabha had not
been dissolved on the date on which the election was held,
would not, therefore, amount to a disqualification in the
case of a Member of the Lok Sabha for being a candidate at
the next general election. [837 F-G]
(ii) The dissolution of the existing Lok Sabha is not a
condition precedent for holding a general election to it.
The proviso to s. 14(2) of the Representation of the People
Act, 1951 authorises the issue of a notification for the
general election before the expiry of the duration of the
existing Lok Sabha. Section 73 of the Representation of the
People Act authorises the publication of results of a
general election to the Lok Sabha before the expiry of the
duration of the existing Lok Sabha, but by the proviso to
that section it is provided that the issue of such a
notification shall not be deemed to affect the duration of
the Lok Sabha if any, functioning immediately before the
issue of the said notification. [836 G-H; 837 A-B]
(iii) When clause (a) of Art. 102(1) and Art. 106 of
the Constitution are construed in a harmonious way, it
cannot be said that by receiving the salary and allowances
payable to a Member of Parliament, such a member would be
disqualified for being chosen as a member of either House of
Parliament or for continuing as a member of either house of
Parliament.[837 E-F]
3. It does not follow from the first proviso to Art.
324 (5) of the Constitution that because the Chief Election
Commissioner could be removed only in accordance with the
procedure prescribed for the removal of a Judge of the
Supreme Court, a person to be appointed to that post should
satisfy the qualifications prescribed for a Judge of the
Supreme Court. [837 H; 838 A-B]
4. In election petitions pleadings have to be precise,
specific and unambiguous and if the election petition does
not disclose a cause of action it is liable to be rejected
in limine. [829 G-H]
In the instant case, the allegations in the election
petition, even if they are taken as true, do not disclose
any
827
cause of action for setting aside the election of the
returned candidate. They are frivolous and vexatious. [838
C-D]
Charanlal Sahu & Ors. v. Giani Zail Singh & Anr.,
[1984] 2 S.C.R. 6, referred to.

JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3003
(NCE) of 1985.
From the Judgment and Order dated 6th May 1985 of the
Allahabad High Court in Election Petition No. 7 of 1985.
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Bhagwati Prasad Dixit, in person.
Dr. Y.S. Chitale, M.R. Sharma, S.C. Maheshwari, Dalveer
Bhandari and Ms. Rachna Joshi for the Respondent.
The Judgment of the Court was delivered by
VENKATARAMIAH, J. This appeal is filed under section
116-A of the Representation of the people Act, 1951 against
the judgment of the High Court of Allahabad in Election
Petition No. 7 of 1985 dismissing the election petition for
failure to disclose a cause of action. The appellant and the
respondent were candidates along with some others at the
last general election held to fill the seat in the Lok Sabha
from 25 Amethi Parliamentary Constituency, District
Sultanpur in the State of Uttar Pradesh. The results of the
election were declared on December 28, 1984 and the
respondent was declared elected to the Lok Sabha from the
constituency. The appellant questioned the validity of the
election of the respondent by an election petition filed
before the High Court of Allahabad in Election Petition No.
7 of 1985. The grounds on which the appellant challenged the
election of the respondent were :
(i) that the respondent had ceased to be an Indian
citizen and, therefore, was disqualified to be a
candidate;
(ii) that since at the time when the election was
held the respondent was a Member of Parliament and
was drawing salary, he was holding an office of
828
profit within the meaning of Article 102(1)(a) of
the Constitution at the time of the election and,
therefore, was disqualified for being chosen as a
Member of parliament; and
(iii) that Shri R.K. Trivedi who was functioning
as the Chief Election Commissioner was not
qualified to be appointed as the Chief Election
Commissioner. The entire clections held through
out the country including the election of the
respondent were therefore void.
The allegations relating to ground No. (i) were set out
in paragraphs 8 to 13, the allegations relating to ground
No. (ii) were set out in paragraphs 14 to 16 and the
allegations relating to ground No. (iii) were set out in
paragraphs 17 to 20 of the Election Petition. In support of
ground No. (i) the appellant alleged that because the
respondent had been married to an Italian lady and had
acquired properties in his own name as well as in the name
of his wife in Italy the respondent must be deemed to have
acquired Italian citizenship as per the Italian law and
ceased to be an Indian citizen under section 9 of the
Citizenship Act, 1955 and that, therefore, under sub-clause
(d) of clause (1) of Article 102 of the Constitution the
respondent was disqualified for being chosen as a member of
the Lok Sabha. While it was not disputed that the respondent
was a citizen of India by virtue of Article 5 of the
Constitution, there was no allegation that there had been a
decision given on the question whether he had ceased to be a
citizen of India by the competent authority under the
Citizenship Act, 1955 nor was it the case of the appellant
before us that there was any such adjudication till today
declaring that the respondent had ceased to be a citizen of
India. The contention of the appellant as regards ground No.
(ii) was that while it had been stated in clause (2) of
Article 102 of the Constitution that for the purposes of
that article a person shall not be deemed to hold an office
of profit under the Government of India or the Government of
any State by reason only that he was a Minister either for
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the Union or for such state, there was no express provision
to the effect that a Member of Parliament who drew salary
and allowances was not holding an office of profit and
therefore the respondent who was a Member of Parliament on
the date of the election
829
eligible to receive the salary and allowances payable to a
member must be deemed to be holding an office of profit
under the Government of India and was disqualified under
sub-clause (a) of clause (1) of Article 102 of the
Constitution. The contention as regards ground No. (iii) was
that since the Chief Election Commissioner could not be
removed from his office except in like manner and on the
like grounds as a Judge of the Supreme Court of India as
provided by clause (5) of Article 324 of the Constitution,
no person who was not eligible to be appointed as a Judge of
the Supreme Court of India could be appointed as the Chief
Election Commissioner and that as Shri R.K. Trivedi was not
qualified to be appointed as a Judge of the Supreme Court of
India he could not be appointed as the Chief Election
Commissioner. The election having been held during the time
he was in office as per the election programme fixed by him
the entire election was invalid.
The respondent on receipt of the copy of the Election
Petition filed an application before the High Court of
Allahabad to strike off the petition since the grounds made
in the election petition were on the face of the petition
untenable. The High Court took up for consideration the
application made by the respondent for striking off the
petition and after hearing the parties proceeded to dismiss
the petition, on the ground that it did not disclose any
cause of action. The High Court while holding that it could
decide the question whether the respondent had ceased to be
a citizen of India came to the conclusion that the
respondent had not lost the Indian citizenship by virtue of
his marriage with an Italian lady. The High Court further
held that membership of Parliament on the date of the
election did not amount to a disqualification even though
members of Parliament were in receipt of salary and
allowances by virtue of such membership and that the
appointment of Shri R.K. Trivedi as the Chief Election
Commissioner could not be questioned on the ground that he
did not possess the qualifications prescribed for the post
of a Judge of the Supreme Court of India.
It is now well-settled that in election petitions pleadings
have to be precise, specific and unambiguous and if the
election petition does not disclose a cause of action it is
liable to be rejected in limine. In Charanlal Sahu & Ors. v.
Giani Zail Singh & Anr., [1984] 2 S.C.R. 6 which was a
830
petition under section 14 of the Presidential and Vice-
Presidential Elections Act, 1952 challenging the election of
Shri Zail Singh as the President of India, the petition had
alleged among other grounds (1) that Shri Zail Singh was not
a suitable candidate for the post of the President; (2) that
Shri M.H. Beg former Chief Justice of the Supreme Court of
India and then Chairman of the Minority Commission had been
engaged by Shri Zail Singh and by the then Prime Minister
for influencing the votes of the minority communities : (3)
that a Cabinet Minister of the Union Government who was a
supporter and a close associate of Shri Zail Singh exercised
undue influence over the voters by misusing the Government
machinery and that a statement issued by him asking the
voters to vote for Shri Zail Singh was published by the
Press Information Bureau, Government of India; (4) that the
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then Prime Minister participated in the election compaign of
Shri Zail Singh and misused the Government machinery for
that purpose; (5) that the then Prime Minister made a
communal appeal to the Akali Dal that its members should
vote for Shri Zail Singh; and (6) that Government
helicopters and cars were misused for the purpose of the
election of Shri Zail Singh. It was contended on behalf of
Shri Zail Singh that even assuming that those allegations
were true they did not disclose any cause of action for
setting aside the election. This Court came to the
conclusion that the allegations made as regard the
participation of Shri Beg in canvassing votes for Shri Zail
Singh did not make out the offence of undue influence as
defined in section 171C of the Indian Penal Code and that
the election petition did not disclose any cause of action
for setting aside the election of Shri Zail Singh on the
ground of undue influence as specified in 18(1)(a) of the
Presidential and Vice-Presidential Elections Act, 1952. The
Court also came to the conclusion that the remaining grounds
alleged by the election petitioner for invalidating the
election of Shri Zail Singh were misconceived. It held that
the use of Government machinery, abuse of official position
and appeal to communal sentiments so long as such appeal did
not amount to undue influence were not considered by the
Legislature to be circumstances which would invalidate a
Presidential or a Vice-Presidential election. The Court
ultimately held that the averments in the election petition,
taken at their face value, did not disclose any cause of
action for setting aside the election of the returned
candidate on the
831
grounds stated in section 18(1)(a) of the Presidential and
Vice-Presidential Elections Act, 1952. It accordingly
dismissed the petition at a preliminary stage. The principle
followed by this Court in the above decision is applicable
to the present case also.
As regards ground No. (1) it has to be observed that
the High Court was in error in construing that it could
decide the question whether a person had ceased to be an
Indian citizen. The High Court was of the view that since in
an election petition the High Court is called upon to decide
whether the returned candidate was disqualified to be chosen
as a member of the Lok Sabha it was open to the High Court
by virtue of that power to decide the question whether a
candidate had ceased to be an Indian citizen notwithstanding
the statutory bar contained in section 9(2) of the
Citizenship Act, 1955. The Citizenship Act, 1955 is enacted
by Parliament in exercise of its powers under Entry 17 of
List I of the Seventh Schedule to the Constitution read with
Article 11 thereof. Article 11 of the Constitution reads
thus :
"11. Parliament to regulate the right of
citizenship by law - Nothing in the foregoing
provisions of this Part shall derogate from the
power of Parliament to make any provision with
respect to the acquisition and termination of
citizenship and all other matters relating to
citizenship."
Section 9 of the Citizenship Act, 1955 reads thus :
"9. Termination of citizenship. - (1) Any citizen
of India who by naturalisation, registration or
otherwise voluntarily acquires, or has at any time
between the 26th January, 1950 and the
commencement of this Act voluntarily acquired, the
citizenship of another country shall, upon such
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acquisition or, as the case may be, such
commencement, cease to be a citizen of India;
Provided that nothing in this sub-section shall
apply to a citizen of India who, during any war in
which India may be engaged, voluntarily acquires
832
the citizenship of another country, until the
Central Government otherwise directs.
(2) If any question arises as to whether, when or
how any person has acquired the citizenship of
another country, it shall be determined by such
authority, in such manner, and having regard to
such rules of evidence, as may be prescribed in
this behalf."
In exercise of the powers conferred by clause (h) of
sub section (2) of section 18 of the Citizenship Act, 1955
and sub-section (2) of section 9 of that Act the Central
Government has framed rules to decide the question of
voluntary acquisition of citizenship of a foreign country
and the consequent determination of the citizenship of
India. By rule 30 of the Citizenship Rules, 1956, the
Central Government is appointed as the authority to decide
such question. Schedule III of the Citizenship Rules, 1956
contains the rules of evidence applicable to a case arising
under section 9(2) of the Citizenship Act, 1955. No other
Court or authority has the power to decide the question as
to whether, when or how an Indian citizen has acquired the
citizenship of another country. Even where the question
whether a person is qualified to be chosen as a member of
the Lok Sabha arises in an election petition filed under the
Representation of the People Act, 1951, the High Court
cannot proceed to decide the question of loss of citizenship
of the candidate concerned. It cannot be held that the
Citizenship Act, 1955 should yield in favour of the
Representation of the People Act, 1951 only because the
Latter Act is enacted pursuant to Article 327 of the
Constitution. As mentioned earlier the Citizenship Act, 1955
is also a law made by Parliament by virtue of Article 11 of
the Constitution read with Entry 17 of List I of the Seventh
Schedule to the Constitution.
In State cf Madhya Pradesh v. Peer Mohd. & Anr., [1963]
Supp. 1 S.C.R. 429, page 438, Gajendragadkar, J. (as he then
was) speaking for the Constitution Bench observed :
"If a dispute arises as to whether an Indian
citizen has acquired the citizenship of another
country, it has to be determined by such authority
833
and in such manner and having regard to such rules
of evidence as may be prescribed in that behalf.
That is the effect of section 9(2). It may be
added that the rules prescribed in that behalf
have made the Central Government or its delegate
the appropriate authority to deal with this
question and that means this particular question
cannot be tried in Courts."
(Emphasis added)
In the State of Uttar Prsdeeh & Ors. v. Shah Mohammad &
Anr.. .[1969] 3 S.C.R. 1006, at page 1012 this Court said :
"In our judgment from the amplitude of the
language employed in section 9 which takes in
persons in category (2) mentioned above, the
intention has been made clear that all cases which
came up for determination where an Indian citizen
has voluntarily acquired the citizenship of a
foreign country after the commencement of the
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Constitution have to be dealt with and decided in
accordance with its provisions."
In an earlier decision in the Government of Andhra
Pradeah v. Syed Mohd. Khan, [1962] Supp. 3 S.C.R. 288, at
page 293 this Court held :
"Therefore, there is no doubt that in all cases
where action is proposed to be taken against
persons residing in this country on the ground
that they have acquired the citizenship of a
foreign State and have lost in consequence the
citizenship of this country, it is essential that
the question should be first considered by the
Central Government. In dealing with the question
the Central Government would undoubtedly be
entitled to give effect to the impugned r. 3 in
Sch. III and deal with the matter in accordance
with the other relevant Rules framed under the
Act. The decision of the Central Government about
the status of the person is the basis on which any
further action can be taken against him."
834
These cases clearly lay down that when the matter falls
within section 9(2) of the Citizenship Act, 1955 all other
provisions of law are excluded. The authority prescribed
under the Citizenship Act, 1955 alone can decide the
questions arising under section 9(2) and the rules of
evidence which should govern that decision shall be those
prescribed for the purpose under that Act. The High Court
however relied on two decisions of this Court in Aurn Kumar
Bose v. Mohd. Furuhon Ansari & Ors., [1984] 1 S.C.R. 118,
and the decision in Surinder Singh v. Hardial Singh & Ors.,
[1985] 1 S.C.R. 1059, to reach the conclusion that by virtue
of Article 329 of the Constitution all questions arising in
an election petition were exclusively triable in an election
petition and by no other authority. In those decisions the
Supreme Court was generally concerned with the power of the
High Court to try all issues arising in an election petition
in accordance with the provisions of the Representation of
the People Act, 1951. It is no doubt true that Article
329(b) of the Constitution provides that notwithstanding
anything in the Constitution no election to either House of
Parliament or to the House or either House of the
Legislature of a State shall be called in question except by
an election petition presented to such authority and in such
manner as may be provided for by or under any law made by
the Legislature. It is also true that one of the grounds on
which an election of a candidate can be set aside in the
course of an election petition under the Representation of
the People Act, 1951 is that the candidate was not a citizen
of India at the relevant time. A man may not be a citizen of
India because he has not acquired the citizen ship of India
at all or having acquired he may have lost it by voluntarily
acquiring the citizenship of another country as provided in
section 9(1) of the Citizenship Act, 1955. For purposes of
deciding the question arising under section 9(1) of that
Act, the Central Government by virtue of the power conferred
on it by section 9(2) has been given an exclusive power to
determine in accordance with the rules of evidence provided
for the purpose whether a person has acquired the
citizenship of another country. It follows that when once a
person is admitted or held to be a citizen of India, unless
there is a decision of the Central Government under section
9(2) of the Citizenship Act, 1955 that he has acquired the
citizenship of a foreign country, he should be presumed to
be an Indian citizen. Section 9 of the Citizenship Act, 1955
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is a
835
complete code as regards the termination of Indian
citizenship A on the acquisition of the citizenship of a
foreign country. Sub-clause (d) of clause (1) of Article 102
of the Constitution provides that a person shall be
disqualified for being chosen as and for being a member of
either House of Parliament (i) if he is not a citizen of
India, (ii) or has voluntarily acquired the citizenship of a
foreign State or (iii) is under any acknowledgement of
allegiance or adherance to a foreign State. We are concerned
here with a case falling under clause (ii) and that question
has to be decided by virtue of Article 11 of the
Constitution and section 9(2) of the Citizenship Act, 1955
by the Central Government only. The policy behind section
9(2) appears to be that the right of citizenship of the
person who is admittedly an Indian citizen should not be
exposed to attack in all forums in the country, but should
be decided by one authority in accordance with the
prescribed rules and that every other Court or authority
would have to act only on the basis of the decision of the
prescribed authority in that behalf and on no other basis.
That being the mandate of the law, even the High Court
trying an election petition can declare an Indian citizen as
having acquired the citizenship of a foreign State only on
the basis of a declaration made by the Central Government.
If such a declaration made by the Central Government is
produced before a High Court trying an election petition the
High Court has to give effect to it. If such a declaration
is not forthcoming, the High Court should proceed on the
ground that the candidate concerned has not ceased to be an
Indian citizen. It cannot independently hold an enquiry into
that question on its own. This is also the view of the
Calcutta High Court in Birendranath Chatterjee v. State of
West Bengal & Ors., A.I.R. 1969 Cal. 386 though the question
there did not involve Article 329 of the Constitution. What
we have said now may not apply to the other two types of
disqualifications referred to in sub-clause (d) of clause
(1) of Article 102 of the Constitution and we express no
opinion on those issues. The view we have taken on the
primacy of section 9(2) of the Citizenship Act, 1955 does
not derogate from the plenary powers of the High Court in
trying an election petition under the Representation of the
People Act, 1951 but only leads to a harmonious way in which
the two types of issues, namely, the issues relating to the
validity of an election to either House of Parliament or of
a State Legislature and the issues relating
836
to loss of Indian citizenship on the acquisition of the
citizenship of a foreign country which are both vital can be
resolved.
In the circumstances it is difficult to agree with the
view of the High Court that when a question whether a person
has acquired the citizenship of another country arises
before the High Court in an election petition filed under
the Representation of the People Act, 1951 it would have
jurisdiction to decide the said question notwithstanding the
exclusive jurisdiction conferred on the authority prescribed
under section 9(2) of the Citizenship Act, 1955 to decide
the question. Whatever may be the proceeding in which the
question of loss of citizenship of a person arises for
consideration, the decision in that proceeding on the said
question should depend upon the decision of the authority
constituted for determining the said question under section
9(2) of the Citizenship Act, 1955.
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Even granting that the High Court had jurisdiction to
decide the said question it is seen that the allegtions made
in the election petition regarding acquisition of
citizenship of a foreign country by the respondent were
wholly inadequate to record any finding in favour of the
appellant since it is not shown that there is any provision
in our law which provides that a person would automatically
lose his Indian citizenship on his marriage with a person
who is a citizen of a foreign country or by acquiring, even
if true, property in a foreign country. On the face of it
the plea was untenable. The entire ground being vexatious
and frivolous is liable to be struck off.
The plea that a person becomes disqualified for
membership of either House of Parliament in case he is in
receipt of salary and allowances payable to such member is
again on the face of it untenable. The proviso to section
14(2) of the Representation of the People Act, 1951
authorises the issue of notification for the general
election to the Lok Sabha and the holding of the general
election before the expiry of the duration of the existing
Lok Sabha but not earlier than six months prior to the date
on which the duration of the existing Lok Sabha would expire
under the provisions of Article 83(2) of the Constitution.
Section 73 of
837
the Representation of the People Act, 1971 again authorises
A the publication of results of a general election to the
Lok Sabha before the expiry of the duration of the existing
Lok Sabha but by the proviso to that section it is provided
that the issue of such notification shall not be deemed to
affect the duration of the Lok Sabha, if any, functioning
immediately before the issue of the said notification. Hence
the dissolution of the existing Lok Sabha is not a condition
precedent for holding a general election to it. It is no
doubt true that Article 102(1)(a) says that if a person
holds any office of profit under the Government of India or
the Government of any State other than an office declared by
Parliament by law not to disqualify its holder he is
disqualified for being chosen as and for being a member of
either House of Parliament. The question for consideration
is whether the membership of either House of Parliament is
such an office of profit. If what is contended by the
appellant is correct there can be no Member of Parliament at
all because all members of Parliament are entitled to
receive salaries and allowances as members. Article 106 of
the Constitution expressly provides that members of either
House of Parliament shall be entitled to receive such
salaries and allowances as may from time to time be
determined by Parliament by law and, until provision in that
respect is so made, allowances at such rates and upon such
conditions as were immediately before the commencement of
the Constitution applicable in the case of members of the
Constituent Assembly of the Dominion of India. Clause (a) of
Article 102(1) and Article 106 of the Constitution must be
construed in a harmonious way. When those Articles are so
construed, it cannot be held that by receiving the salary
and allowances payable to a Member of Parliament a Member of
Parliament would be disqualified for being either chosen as
a member of either House of Parliament or for continuing as
a member of either House of Parliament. In any event the
membership of Parliament is not an office under the
Government. So the fact that the Lok Sabha had not been
dissolved on the date on which the election was held would
not amount to a disqualification in the case of the
respondent who was a member of the Lok Sabha for being a
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candidate at the next general election.
The third ground is only to be stated to be rejected.
It is true that the first proviso to Article 324(5) of the
838
Constitution of India provides that the Chief Election
Commissioner can be removed only in accordance with the
procedure prescribed for the removal of a Supreme Court
Judge. But it does not follow from that provision, however
liberal our construction of that provision may be, that the
Constitution of India provides that a person to be appointed
as a Chief Election Commissioner should satisfy the
qualifications prescribed for a Judge of the Supreme Court
of India. We reject this contention.
On going through all the grounds mentioned in the
petition we feel that they are so frivolous and vexatious
that the only order to be passed on the petition is the one
which has been made by the High Court.
The allegations in the election petition, even if they
are taken as true, do not disclose any cause of action. The
High Court was, therefore, right in dismissing the petition
on the ground that it does not disclose a cause of action.
As regards costs it is to be stated that the learned
counsel for the respondent submitted that the respondent
would not claim costs either in the High Court or in this
Court.
We accordingly dismiss the appeal but subject to the
modification that the parties shall bear their own costs in
the High Court. There will be no order as to costs in this
Court.
P.S.S. Appeal dismissed.
839