BHAGWATI PRASAD DIXIT GHOREWALA Vs. RAJEEV GANDHI

JUDGEMENT

(1.) 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:Reported in 1985 All WC 682 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 that 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:

(2.) 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) wore 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 Cl. (2) of Art. 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 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 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-cl. (a) of Cl. (1) of Art 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 Cl. (5) of Art. 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.

(3.) 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.