Legal challenges to Presidential election

Who should be the President?

The Presidential election can also be challenged before the courts. As per the law, the challenge should be decided only by the Supreme Court, by constituting a five member bench. Almost all elections were before the Supreme Court. The President is required to make and subscribe in the presence of the Chief Justice of India (or in his absence, the senior-most Judge of the Supreme Court), an oath or affirmation that he/she shall protect, preserve and defend the Constitution as follows:

I, (name), do swear in the name of God (or solemnly affirm) that I will faithfully execute the office of President (or discharge the functions of the President) of the Republic of India, and will to the best of my ability preserve, protect and defend the Constitution and the law, and that I will devote myself to the service and well-being of the people of the Republic of India. (Article 60)

Indira Gandhi’s call for conscience vote: After nominating Neelam Sanjeev Reddy as Congress nominee for Presidential position, the then prime minister Indira Gandhi asked MPs to vote by conscience. That indicated that she changed her mind and supported the other candidate V V Giri, who was ultimately elected.

The Congress MPs voted non-Congress candidate as conscience (!) drove them so. Indira Gandhi has, in fact, called her MPs to defy the party discipline. There were no anti-defection disqualifications at that time as tenth Schedule was not added to the Constitution. But Mrs Gandhi’s call to defy party candidate acted like a ‘whip’ and MPs overwhelmingly voted non-Congress candidate Giri, defeating the official candidate.

However, the voting has to be strictly a secret process. None knows who voted whom and there is no disqualification threat.

No challenge to Rajendra Prasad

Though party discipline demands that all MPs should go by the line of the party, cross voting is not ruled out. Depending on situations, it was engineered, example is again Giri’s election.

Almost all elections, except two, were challenged by the defeated candidates. First election of Rajendra Prasad was not challenged by Mr K T Shah, a renowned personality who contributed in making of Indian Constitution.

However, Prasad’s election second time was challenged. However it was rejected [Dr N B Khare vs Election Commission – AIR 1958 SC 139]. Dr. Sarvepalli Radhakrishna and Pratibha Patil’s elections also remained unquestioned. The election petition against the President can be heard only by five-member bench of the Supreme Court.

Zakir Hussain: Canvassing is not undue influence
Babu Rao Patel alleged undue influence exerted by the PM and Cabinet ministers by openly canvassing for Zakir Hussain and thus there was no free conscience vote as mandated by Presidential and Vice-Presidential Elections Act, 1952 was violated. Supreme Court did not agree and rejected the petition saying canvassing could not be considered as ‘undue influence’.

[AIR 1968 SC 904]. As Zakir Hussain suddenly died in 1969, election to President became essential.

Scurrilous pamphlet against Sanjeev Reddy
Indira Gandhi was in logger heads with the traditional leadership of the Congress and fielded vice president V V Giri against the N Sanjiv Reddy, the candidate of the high command. In this election only she gave a call for ‘conscience driven vote’ by MPs.

Shiv Kirpal Singh alleged that Indira Gandhi and her ministerial colleagues misused their authority in Central Government to get V V Giri elected. One of the contentions against election was that a pamphlet containing scurrilous and vulgar allegations was circulated openly in the Central Hall of Parliament.

The pamphlet also said that Reddy would destroy democracy with his dictatorial methods. As the 'connivance' or 'consent' of Giri in the printing and circulation of the pamphlet was not established, the petition was defeated.

Supreme Court for the first time asked President to answer the allegations. SC could not find enough evidence to say that there was misuse of official machinery, and petition was thrown out [AIR 1970 SC 2097].

Sahu challenges many a President
After this one Charan Lal Sahu was contesting every election and unsuccessfully challenging the elections to the office of President. The petitions against election of Fakhruddin Ali Ahmed, N Sanjiva Reddy and Giani Zail Singh rejected. This petitioner himself challenged elections of KR Narayanan and APJ Abdul Kalam. The SC has angrily warned him against non-serious contest and subsequent challenge to the office of President. The election of Shankar Dayal Sharma and R Venkataraman were also challenged by Mithilesh Kumar Sinha, without success.

Suitability issue in Zail Singh election
The BJP, Lok Dal, Democratic Socialist Party of India and Janata Party having strength of 27 MPs together fielded Justice Hans Raj Khanna against the Congress candidate Zail Singh. Main allegation by MPs against Zail Singh was that official machinery was misused at massive scale. They also alleged that Zail Singh was not suitable to the highest office as he proclaimed loyalty to Mrs Gandhi by saying he was ready to sweep the floor with broom if she commanded so.

Former Chief Justice of India M H Beg, has posed a counter challenge to suitability of his former colleague Justice Khanna to contest the election. During emergency Beg was with majority decision in ADM Jabalpur case, that fundamental rights can be suspended while Khanna gave historic dissent saying right to life and personal liberty cannot be suspended during emergency.

Beg tried to make out points of defects in Khanna’s dissent order and alleged that made him unsuitable. Beg became chairman of Minorities Commission in 1982. Deciding on the point of suitability, the Supreme Court said: “Suitability of a candidate is for the electorate to judge and not for the court to decide. Suitability is a fluid concept of uncertain import. The ballot box is, or has to be assumed to be, its sole judge.” How can anybody define or decide on suitability which is a fluid concept. The apex court dismissed the petition [1984 (1) SCC 390]

Pranab Mukherjee: Office of profit issue
Recently the election of Pranab Mukherjee was also challenged by former speaker P A Sangma who contested the election. He alleged that Mukherjee held an office of profit being chairman of the council of Indian Statistical Institute in Kolkata. Parliament had found it to be an office of profit and included it among exempted ones to prevent disqualification of MPs. That post was indeed an office profit.

Three judges held that he was not having any profit from office hence not disqualified. But two judges held otherwise. They said on December 11, 2012: “Categorising it as an office of profit did not really make it one, since it did not provide any profit and was purely honorary in nature.” Pranab Mukherjee scraped through to Rashtrapathi Bhavan.

Who is eligible to contest?
A citizen, completing 35 years of age, eligible to become a member of Lok Sabha, without holding office of profit either at Center or states is eligible to contest to this top position. Now for President 108 have filed nominations but only nominations of Ram Nath Kovind and Meira Kumar were found valid. The list of valid voters is available at http://eci.nic.in/eci_main1/Presidential_Election/data/ElectoralCollege_en.pdf.

Why only politicians?
India has elected several non-politicians as President of India. A philosopher, a judge, and a defence scientist adored this top position. Though political parties have to select the candidate, they need not always select only politician to lead the country. Biocon CEO Kiran Mazumdar-Shaw said: “We are making a mockery of the presidential post.

This is considered the highest office in our country and should be apolitical. The president should be an apolitical appointee who has the stature and integrity that can hold the political system accountable. How can persons who are in office, holding key ministerial posts, be even eligible for such a post? This is becoming a political chess game which is devaluing this very lofty post.” Let us hope that the new President will lead India in a better way.