DR. N.B. KHARE VS.

ELECTION COMMISSION OF INDIA

IN THE HON’BLE
SUPREME COURT OF INDIA

In the matter of

DR. N.B. KHARE

(Appellant)

vs.

ELECTION COMMISSION OF INDIA

(Respondent)

On Submission to the Hon’ble Supreme Court

MEMORANDUM FOR THE RESPONDENT

COUNSEL ON BEHALF OF RESPONDENT

ANIRUDDHA MISHRA

(ROLL NO.- 22 SEM : IV)

HIDAYATULLAH NATIONAL LAW UNIVERSITY, RAIPUR

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 DR. N.B. KHARE VS.ELECTION COMMISSION OF INDIA

TABLE OF CONTENTS

LIST OF ABBREVIATIONS ………………………………….……………………………3

INDEX OF AUTHORITIES ………………………………………………..………………4

STATEMENT OF FACT…….…………………….………………………………………..5

QUESTION PRESENTED ………………………..……………………….………………..6

SUMMARY OF PLEADINGS…………………..………………..…………………………7

CONTENTIONS………………...………………………………………….….……….……8

PRAYER FOR RELIEF....................................................................................................... 12

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 DR. N.B. KHARE VS.ELECTION COMMISSION OF INDIA

LIST OF ABBREVIATIONS

1. A.I.R……………………………………………………...……………All India Report

2. S.C…………………………………………………………………..…Supreme Court
3. V……………………………………………………………………….Versus
4. S………………………………………………………………….…….Section
5. &……………………………………………………………………….and
6. i.e./………………………………………………..……………………that is
7. www…………………………………………………………...………world wide web
8. S.C.R……………………………………………………..……..Supreme Court Report

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 DR. N.B. KHARE VS.ELECTION COMMISSION OF INDIA

INDEX OF AUTHORITIES
ACTS AND STATUTES :

• Presidential and Vice-Presidential Elections Act, 1952 - Section 14,

• Presidential and Vice-Presidential Elections Act, 1952 - Section 18;
• Supreme Court Rules, 1950 - Order 37-A Rule 3
• Supreme Court Rules, 1950 - Order 37-A Rule 12;
• Constitution of India - Article 71(1),
• Constitution of India- Article 71(3)

JUDICIAL DECISIONS:

• Udai Narain Sinha vs Union Of India (Uoi) And Ors.

• Sewa Sahakari Sanstha. Mahagarh v. Ramchandra Narayan Kokil
• Prakash Motiram Chavan vs. Harichand and others
• K.P. Srivastava v. B.K. Jain
• Gunwant Kaur v. Bhatinda Municipality
• Hira Lal v. District Magsitrate
• Niranjan Singh vs Collector, Sriganganagar
• Charan Lal Sahu & Others vs Giani Zail Singh & Another
• In Shiv Kirpal Singh v. Shri V.V. Giri,

BOOKS :

• Constitution of India ( 18th Edition) – V.N Shukla

• Constitution of India (19th Edition) – D.D. Basu

WEBSITES REFERRED:

• www.manupatra.com

• www.westlaw.com
• www.indiankanoon.com

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 DR. N.B. KHARE VS.ELECTION COMMISSION OF INDIA

STATEMENT OF FACT

The petitioner filed the petition under Art. 71(1) of the Constitution of Indian. On May 6,
1957, there was an election to the office of the President and Shri Rajendra Prasad was
declared elected. Thereafter Dr. N. B. Khare filed the present petition describing himself as
an intending candidate and alleging that there had been violations of the provisions of the
Constitution and that the election was in consequence not valid. The prayers in the petition
are "that grave doubts the exist in connection with the Presidential election be enquired into,
resolved and decided" and "the entire proceedings of the Presidential election be quashed as
void".

The Registrar of this Court returned the petition as not being in conformity with the
provisions of the Presidential and Vice-Presidential Electios Act, 1952 (XXXI of 1952), and
as not satisfying the requirements of the Rules of this Court contained in O. XXXVII-A.
Section 14 of Act XXXI of 1952 provides that no electio shall be called in question except by
an electio petition presented to the Supreme Court in accordance with the provisions of the
Act and of the Rules made by the Supreme Court under Art. 145 of the Constitution; and it
further provides that it should be presented by any candidate at such electio or by ten or more
electors. The Rules framed by this Court with reference to this matter are contained in O.
XXXVII-A. Rule 3 prescribes that a court-fee of the value of Rs. 250 should be paid on the
petition and r. 12 requires the petitioner to deposit a sum of Rs. 2,000 in cash as security for
the payment of costs that may become payable by him. The petitioner is not a person entitled
to apply under s. 14 of the Act and his petition was also defective as it did not comply with
the requirements of Rules 3 and 12. It was accordingly returned by the Registrar. Against that
order, the present appeal had been brought.

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 DR. N.B. KHARE VS.ELECTION COMMISSION OF INDIA

QUESTIONS PRESENTED

1. WHETHER THE PETITION FILED COMES UNDER THE PURVIEW OF ACT

XXXI OF 1952 AND OF O XXXVII-A OF THE SUPREME COURT RULES.

2. WHETHER THE ACT AND RULE IN THE QUESTION DEROGATE THE

JURISDICTION OF SUPREME COURT.

3. WHETHER THE PETITIONER HAS RIGHT TO APPROCH SUPREME COURT

UNDER ARTICLE 71(1).

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 DR. N.B. KHARE VS.ELECTION COMMISSION OF INDIA

SUMMARY OF PLEADINGS
1. WHETHER THE PETITION FILED COMES UNDER THE PURVIEW OF ACT

XXXI OF 1952 AND OF O XXXVII-A OF THE SUPREME COURT RULES.

The present petition is outside the purview of Act XXXI of 1952 and of O. XXXVII-A of
the Supreme Court Rules and Section 14 of Act XXXI of 1952. Section 14 of Presidential
and Vice Presidential Act,1952, an election could only be questioned by a candidate at such
election by 10 or 20 or more electors, so therefore Dr. Khare who was neither a candidate
nor a elector was not entitled to challange the validity of trhe election of the President.

2. WHETHER THE ACT AND RULE IN THE QUESTION DEROGATE THE

JURISDICTION OF SUPREME COURT.

The Act and the Rules in question are void on the ground that they derogate from the
jurisdiction of the Supreme Court to enquire into and decide all disputes and doubts arising
out of or in connection with the election of the President or the Vice-President. The
contention that the Act and the Rules derogate from the jurisdiction of the Supreme Court
under Art. 71(1) must accordingly be rejected. The petitioner has, therefore, no right to
move for setting aside the election except in accordance with the provisions of Act XXXI of
1952.

3. WHETHER THE PETITIONER HAS RIGHT TO APPROCH SUPREME

COURT UNDER ARTICLE 71(1).

The petitioner has a right as a citizen to approach this Court under Art. 71(1) whenever an
election has been held in breach of the constitutional provisions. The right of a person to file
an application for setting aside an election must be determined by the statute which gives it,
and that statute is Act XXXI of 1952 passed under Art. 71(3). The petitioner must strictly
bring himself within the four corners of that statute and has no rights apart from it.

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WRITTEN SUBMISSION
CONTENTION 1- THE PETITION FILED IS NOT UNDER THE PURVIEW OF ACT

XXXI OF 1952 AND OF O XXXVII-A OF THE SUPREME COURT RULES.

The present petition is outside the purview of Act XXXI of 1952 and of O. XXXVII-A of the
Supreme Court Rules. The Supreme Court is invested with jurisdiction to enquire into and
decide all doubts and disputes arising out of or in connection with the election of the
President, that Act XXXI of 1952 and O. XXXVII-A apply only when there is a dispute as to
the election, but where the petition is founded upon doubts as to the validity of the election, it
is not covered either by the Act or the Rules.

In Udai Narain Sinha vs Union Of India (Uoi) And Ors1., the petitioner urged that as the
elections of Members of Parliament in the State of U. P. as well as of those who were elected
for the U. P. State Assembly were illegal, they do not have a right to cast vote at the
Presidential Election. The petitioner was unable to satisfy us about the grounds on which he
alleged to be so. It was held that the court is unable to find any substance in this petition and
hence the petition is dismissed.

In Sewa Sahakari Sanstha. Mahagarh v. Ramchandra Narayan Kokil2, is a pointer that

election process in respect of a Co-operative Society once started should be allowed to
continue without any interruption, The same has been approvingly quoted in the case of Ram
Sarpur Dohare & Anr v. Ayukt Sahkarith Aram Panjtyak Sakhortsh Sawastha, M.P. & Ors. .
Even, in a case of Roopram v. State of Rajasthan, , it has been observed indirectly that
interference with the case of election should be discouraged.

In Prakash Motiram Chavan vs. Harichand and others3, the the Apex Court had laid down the
principle that after commencement of the election process, no interference is warranted at
that stage. Similarly in Dayaram Dhimar vs The State Of Madhya Pradesh, the writ petition is
dismissed.

1
AIR 1988 All 30
2
AIR 1974 MP 164
3
(2015) 16 SCC 448

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 DR. N.B. KHARE VS.ELECTION COMMISSION OF INDIA

In the present case, the petition is not in conformity with the provisions of the Presidential
and Vice-Presidential Elections Act, 1952 (XXXI of 1952), and as not satisfying the
requirements of the Rules of this Court contained in O. XXXVII-A and Section 14 of Act
XXXI of 1952. Section 14 of Presidential and Vice Presidential Act,1952, an election could
only be questioned by a candidate at such election by 10 or 20 or more electors, so therefore
Dr. Khare who was neither a candidate nor a elector was not entitled to challange the validity
of trhe election of the President.

CONTENTION 2- WHETHER THE ACT AND RULE IN THE QUESTION

DEROGATE THE JURISDICTION OF SUPREME COURT.-

The Act and the Rules in question are void on the ground that they derogate from the
jurisdiction of the Supreme Court to enquire into and decide all disputes and doubts arising
out of or in connection with the election of the President or the Vice-President. It is argued
that under s. 18, the election could be set aside only on certain grounds and that further under
clause (b) it could be done only if the result of the election is shown to have been materially
affected, and that are restrictions on the jurisdiction conferred by Art. 71(1) and are ultra
vires. Article 71(1) merely prescribes the forum in which disputes in connection with the
election of the President and Vice-President would be enquired into. It does not prescribe the
conditions under which the petition for setting aside an election could be presented. Under
Art. 71(3), it is Parliament that is authorised to make law for regulating any matter relating to
or connected with the election of the President or Vice-President, and Act XXXI of 1952 has
been passed by Parliament in accordance with this provision. The right to stand for election
and the right to move for setting aside an election are not common law rights. They must be
conferred by statute and can be enforced only in accordance with the conditions laid down
therein. The contention that the Act and the Rules derogate from the jurisdiction of the
Supreme Court under Art. 71(1) must accordingly be rejected. The petitioner has, therefore,
no right to move for setting aside the election except in accordance with the provisions of
Act XXXI of 1952.

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 DR. N.B. KHARE VS.ELECTION COMMISSION OF INDIA

In K.P. Srivastava v. B.K. Jain , it is well settled law that while Article 226 of the
Constitution confers a wide power on the High Court. There are equally well settled
limitations which this Court has repeatedly pointed out on the exercise of such power.

In Gunwant Kaur v. Bhatinda Municipality4, when the petitioner raises question of fact of a
complex nature, which may for their determination require oral evidence to be taken, and on
that account the High Court is of the veiw that the dispute may not appropriatly be tried in a
writ petition, the High Court may decline to try a petition.

In Hira Lal v. District Magsitrate5, allowed the writ petition on the ground that the provisions
of Rule 6 that the date for filing of nomination should be fixed at least four days after the date
of notification were mandatory in nature and since the election of the President was held in
breach of the said mandatory provisions, the election was liable to be set-aside The High
Court rejected the objection with regard to the maintainability of the writ petition under
Article 226 of the Constitution on the ground that the remedy of an election petition.

In Niranjan Singh vs Collector, Sriganganagar case6, fact of complex nature have been raised
and for the determination of the said questions, it would be necessary to record oral evidence.
The said disputes cannot appropriately be tried in a writ petition and can more appropriatly be
determined in an election petition or a suit.

CONTENTION 3 -THE PETITIONER HAS RIGHT TO APPROCH SUPREME

COURT UNDER ARTICLE 71(1).

The petitioner has a right as a citizen to approach this Court under Art. 71(1) whenever an
election has been held in breach of the constitutional provisions. The right of a person to file
an application for setting aside an election must be determined by the statute which gives it,
and that statute is Act XXXI of 1952 passed under Art. 71(3). The petitioner must strictly
bring himself within the four corners of that statute and has no rights apart from it.

4
AIR 1970 SC 802, 1970
5
(sic)Elah (5) 1975 Allch L. J. 419
6
1982 WLN UC 255

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 DR. N.B. KHARE VS.ELECTION COMMISSION OF INDIA

71. Matters relating to, or connected with, the election of a President or Vice-President

(3) Subject to the provisions of this Constitution, Parliament may by law regulate any matter
relating to or connected with the election of a President or Vice-President.

In Charan Lal Sahu & Others vs Giani Zail Singh & Another7 ,the form prescribed by the
Third Schedule shows that it is restricted to candidates who desire to contest the election to
the Parliament. In the very nature of things, a candidate who wants to contest the election for
the office of the President cannot take the oath in any of the forms prescribed by the Third
Schedule. That Schedule does not prescribe any form of oath for a person who desires to
contest a Presidential election. In the result, Election Petition is also dismissed.

In Shiv Kirpal Singh v. Shri V.V. Giri8, the Court observed that "if any acts are done which
merely influence the voter in making his choice between one candidate or another, they will
not amount to interference with the free exercise of the electoral right", that the expression
'free exercise' of the electoral right must be read in the context of an election in a democratic
society and, therefore, candidates and their supporters must be allowed to canvass support by
all legal and legitimate means.

7
1984 AIR 309, 1984 SCR (2) 6
8
In Shiv Kirpal Singh v. Shri V.V. Giri

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PRAYER FOR RELIEF

Wherefore in the light of facts stated, issues raised, arguments advanced and authorities cited.
This Honourable Supreme Court of India may be pleased to pass a decision and declare that:

1. The appeal not to be allowed.

2. To quash the impunged order given by the appellant and provide relief for the
respondent.

Or pass any other order which can be deemed fit in the spirit of justice, equity and good
conscience.

All of which is humbly submitted before the HonourableSupreme Court of India.

Place: Delhi

Date: 08-04-2019 Counsel for Respondent

Aniruddha Mishra

Section ‘B’

Semester IV

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