Judgement

WANCHOO, CJI.: The presidential election in India was held in May 1967. In that election, 17 candidates were nominated. The result of the election was declared on May 9. 1967, and Dr. Zakir Husain was declared elected. The present petition is against the election of Dr. Zakir Husain as President and has been filed under Article 71 of the Constitution read with the Presidential and Vice-Presidential Elections Act No. 31, 1952 (hereinafter referred to as the Act) by 13 members of Parliament. The attack on the validity of the election of Dr. Zakir Husain has been made on two grounds. The first around is that no oath was taken by Dr. Zakir Husain before his nomination as required by Article 84 read with Article 58 of the Constitution. In consequence he was not eligible for election as President and his election is liable to be set aside. Curiously enough, however, the petitioners pray for a declaration that Sri Subba Rao, who received the second highest number of votes should be declared elected, though he (like Dr. Zakir Husain) also did not take the oath before his nomination.

2. The second ground on which the election of Dr. Zakir Husain is challenged is that the result of the election has been materially affected by reason of undue influence thereat and in this connection reliance is placed on four matters to which reference will be made later.

3. The petition has been opposed on behalf of Dr. Zakir Husain. It has been urged in reply that no oath was necessary under Art. 84 read with Art. 58 of the Constitution and as such he was eligible to stand. It has also been said on behalf of Dr. Zakir Husain at in case his nomination is invalid on that ground, Sri Subba Rao s nomination is equally invalid as he also did not take the oath. As to endue influence it is urged that no undue influence was exercised, nor was the result of the election materially affected by any exercise of undue influence. Of the four matters urged in support of the attack on the ground of undue influence, the truth of one of them was not accepted. But it is urged in the alternative that even accepting all that has been said by the petitioners in support of their case of undue influence, the allegations made by the petitioners do not in law amount to undue influence and therefore there could be no question of the result of the election being materially affected by the exercise of any undue influence.

4. On the pleadings of the parties, the following issues were framed:-

1. Whether the acceptance of the nomination papers of respondents Nos. 1 to 17 by the Returning Officer was illegal and contrary to law for the reason that Respondents Nos. 1 to 17 did not subscribe to the oath required under Article 84 (a) of the Constitution read with Article 58 (1) (c) thereof;

2. Whether the result of the election has been materially affected;

3. Whether the acts and conduct alleged in para 12 of the petition and set out under heads A, B. C and D thereof amount to undue influence within the meaning of S. 18 (1) (b) of the Act

4. Whether the allegations made under heads A, B. C and D in para 12 of the petition in so far as they are not admitted are true;

5. Whether the petitioners is entitled to any relief, and if so, to what relief.

5. It will be seen that issues Nos. 1 and 3 raise pure questions of law. We made it clear to reamed counsel that we would try this petition in two parts. We shall fiat deal with the two issues of law, and then, if necessary, set the petition down for further hearing on evidence. We also indicated that issue No. 1 is decided in favour of the petitioners, the election would have to be set aside and then there would be no question of any further hearing on evidence. We further indicated that if issue No. 3 is decided in favour of the petitioners, the petition would have to be set down for further hearing on evidence on matters of fact which were in dispute. Lastly, we indicated that if both these issues were decided against the petitioners, the p