N.B. Khare vs.

Election Commission of India

AIR 1958 SC 139

BY: DR. AZIM B. PATHAN

 Background of the Case/Fact

 This is petition under Article 71 (1) of Constitution of India. On 6-5-1957 there

was an election to the office of 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 violation of
the provisions of the Constitution and the election was in consequence not
valid.
 Registrar of Supreme Court returned the petition as not being in conformity
with the provisions of Presidential and Vice-Presidential Elections Act, 1952,
and not satisfying the requirement of the Rules of the Supreme Court.
 Section 14 of the Act, 1952 provides that no election shall be called in question
except by an election petition presented to the Supreme Court in accordance
with the provisions of the 1952 Act and the Rules made by the Supreme Court
under Article 145. For the non-compliance of the Rules of the Supreme Court
and for not submitting court fee petition was accordingly returned.
 Against that order present appeal has been brought.
Contd…
 Contd…

Contention which was raised on behalf of petitioner was that present petition is outside the purview of 1952 Act and
Supreme Court Rules. It was argued that Supreme Court is invested with the jurisdiction to enquire into and decide all
doubts and dispute arising out of or in connection with the election of President, that Act and Rules apply only when there
is a dispute as to the election, but when petition is founded upon doubts as to the validity of the election, it is not covered
either by the Act or the Rules.

In Concurrent judgement Supreme Court held that:

When an election has been held, any doubt concerning its validity is material only as a ground for setting aside the election
and that in fact is the prayer in this petition. In substance petition is calling the election in question and it must satisfy the
requirement of 1952 Act and Supreme Court Rules.

Contention which was raised by petitioner was that according to section 18 of the 1952 Act 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 these are restrictions on the jurisdiction conferred by Article 71 (1) and are ultra vires.

Opinion of the Court:

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 condition under which the petition for setting aside an election
could be presented. Under Article 71 (3), it is Parliament that is authorized to make law for regulating any matter relating to
or connected with the election of the President or Vice-President, and 1952 Act has been passed by Parliament in
accordance with this provision.
The right to stand for election and right to move for setting aside of 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 Rules derogate from the Jurisdiction of the Supreme Court under Article 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 the
1952 Act.
 Epuru Sudhakar and Another vs. Govt. of A. P. and Others
2006 (8) SCC 161

 Article 72 and Article 161

 Writ Petition before Apex Court
 Challenge the order passed by Govt. of A. P. whereby Respondent 2 was granted remission
of unexpired period of about 7 years of imprisonment.
 Justice Arijit Pasayat:
The position is undeniable that judicial review of the order of the President or the Governor
under Article 72 or Article 161, as the case may be, is available and their orders can be
impugned on the following ground:
 A) that order has been passed without the application of mind;
 B) that the order is mala fide;

 C) that the order has been passed on extraneous or wholly irrelevant considerations;

 D) that relevant material has been kept out of the consideration;

 E) that the order suffers from the arbitrariness

Final Verdict: Divisional Bench: It may be stated that there is clear symmetry between
constitutional rationale for review of statutory and prerogative power. In each case courts have to
ensure that the authority is used in a manner which is consistent with the Rule of Law, which is
fundamental principle of good administration.