Delhi High Court: A petition was filed by the Petitioner, a practising Advocate seeking directions to Union of India (Respondent 1) and Election Commission of India (Respondent 2), to disqualify Manan Kumar Mishra (Respondent 5) from the Rajya Sabha. Sanjeev Narula, J., dismissed the petition and imposed costs of Rs. 25000 on the petitioner as the present petition not only lacks merit, but is also an abuse of the legal process, aimed at circumventing the proper remedy.
The petitioner’s contention centers around the fact that Mr. Mishra, while serving as the Chairman of the Bar Council of India (BCI), a statutory body under the Advocates Act of 1961, simultaneously holds office as a member of the Rajya Sabha. The petitioner argued that this violates Article 102(1)(a) of the Constitution, which disqualifies a person from being a Member of Parliament if they hold an office of profit under the Government of India or a state government.
The petitioner’s argument hinges on the idea that the role of Chairman of the BCI is an “office of profit” due to its statutory responsibilities and significant financial and administrative powers. The petitioner specifically pointed to Rule 11, Chapter V of the Bar Council of India Rules, which grants the Chairman the authority to incur expenses and manage funds on behalf of the Council, thereby conferring substantial powers that classify the position as an office of profit. The petitioner further claimed that no parliamentary law exempts the office of BCI Chairman from the definition of an office of profit, thus making Respondent 5 ineligible to serve as a Member of Parliament.
The Court began its analysis by examining Article 102(1) of the Constitution, which lists the grounds for disqualification of Members of Parliament, including holding an office of profit. However, Article 103 provides a procedural mechanism for addressing such disqualifications, stipulating that any question regarding disqualification must be referred to the President of India, who is required to act on the advice of the Election Commission. This process ensures that disqualification decisions are handled through a formal inquiry and a well-defined procedure.
The Court noted that the petitioner’s request for a writ of mandamus, directing the Ministry of Law and Justice to disqualify respondent 5, was fundamentally flawed. The Court emphasized that disqualification under Article 102(1) does not happen automatically based on mere allegations. Instead, it requires a thorough inquiry, led by the Election Commission, and the President’s decision based on that inquiry. The Court ruled that the petitioner’s vague assertions that Respondent 5 was holding an “office of profit” were insufficient grounds to bypass the constitutional process.
The Court observed that Respondent 5 was already serving as the Chairman of the BCI at the time of his election to the Rajya Sabha. There were no new developments that would necessitate his removal from the BCI, and thus, the petitioner’s claim was essentially an election challenge, not merely a disqualification issue.
The Court highlighted that challenges to election results must be brought under the Representation of the People Act, 1951, by filing an election petition as per Sections 80 and 81 of the Act. Article 329 further bars courts from interfering in electoral matters, except through the prescribed legal mechanism of election petitions.
Thus, the Court dismissed the petition, holding that the appropriate remedy for the petitioner, if he wished to challenge Respondent 5’s election to the Rajya Sabha, lay in filing an election petition under the Representation of the People Act. The petition under Article 226 of the Constitution was deemed inappropriate, and no directions were issued regarding the disqualification of Respondent 5.
[Amit Kumar Diwakar v. UOI, 2024 SCC OnLine Del 7084, decided on 07-10-2024]
Advocates who appeared in this case:
Petitioner in personMr. Maninder Singh, Senior Advocate with Mr. Rangasaran Mohan, Mr. Amarpal Singh Dua, Mr. Preet Pal Singh, Mrs. Tanupreet Kaur, Ms. Akanksha Singh, Mr. Unmukt Bhardwaj and Mr. Madhukar Pandey, Advocates for BCI/ R-3. Mr. Chetan Sharma, ASG with Mr. Ripu Daman Bhardwaj, CGSC with Mr. Vedansh Anand, Mr. Amit Gupta, Mr. Vinay Yadav, Mr. Saurabh Tripathi, Mr. Shubham Sharma, Mr. Kushagra Kumar and Mr. Abhinav Bhardwaj, Advocates for R-1/ UOI. Mr. Ved Prakash Sharma, Advocate for R-5. Mr. Sandeep Kumar Mahapatra and Mr. Tribhuvan, Advocates for R-4. Mr. Rajeev Sharma and Mr. Vinayak Sharma, Advocates for respondents
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