There can be no disqualification for Mr. Mukherjee under Office of Profit law: AG

New Delhi: A five-judge Constitution Bench of the Supreme Court on Wednesday will pronounce its verdict on December 5 on the writ petition filed by the NDA-supported candidate P.A. Sangma, challenging the election of Pranab Mukherjee as the President of India.

The Bench comprising Chief Justice Altamas Kabir and Justices P. Sathasivam, S.S. Nijjar, J. Chelameswar and Ranjan Gogoi, reserved verdict at the conclusion of arguments from senior counsel Ram Jethmalani for Mr. Sangma, senior counsel Harish Salve and P.H. Parekh for Mr. Mukherjee and Attorney General G.E. Vahanvati.

Mr. Vahanvati told the Bench that there could not be a disqualification for Mr. Mukherjee under the Office of Profit law as he was heading the Indian Statistical Institute as Chairman, a post which had no pecuniary benefit, much less any influence from the government in discharging his duties.

He said: “We cannot take a pedantic or unduly narrow view. We have to keep in mind the concept of office of profit while determining the issue. It must be noted that the Act is a defining provision and not an exemption clause. The law is clear that the post must not be incompatible with the responsibility discharged by a member of the legislature.”

Mr. Vahanvati argued that as long as the person holding the post exercised his independence in discharging his duties as legislator or parliamentarian the person could not be disqualified.

In the case of Mr. Mukherjee, he said: “There is no pecuinary gain. It [legislation] is a defining Act. Just because the post is not exempted, it can't be a disqualification. There has to be pecuniary gain. The person must have held an office of profit under the government. He must have been drawing profits, emoluments. The question is whether government pays him anything. Does the government have any control over the incumbent? The answer is no.”

Mr. Jethmalani contended that “the matter deserves a regular hearing as it affects the whole nation because the person who became President would be the custodian of the Constitution for the next five years.”

He said the court was required to see whether the petition raised any cause of action or not. The fact whether Mr. Mukherjee held office of profit or not could only be ascertained by examining witnesses and documents.

Earlier, Mr. Salve rejected the argument that Mr. Mukherjee was holding office of profit on the date of filing his nomination.

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