Sadiq Ali & ANR Vs. Election
Commission of India & Ors [1971] INSC 307 (11 November 1971)
KHANNA, HANS RAJ KHANNA, HANS RAJ HEGDE, K.S.
GROVER, A.N.
CITATION: 1972 AIR 187 1972 SCR (2) 318
CITATOR INFO :
D 1974 SC 445 (10,18) RF 1977 SC2155 (22) F
1982 SC1559 (18) D 1984 SC 921 (11) F 1986 SC 111 (11,14)
ACT:
Symbols (Reservation and Allotment) Order,
1968--Paragraph 15--Party splitting itself into two groups--Each group claiming
symbol--Powers of Election Commission in inquiry under para 15--Test of majority
and numerical strength--Relevancy--Binding nature of decision of Election
Commission--Para 15 not ultra vires the powers of the Commission.
HEADNOTE:
The Indian National Congress, a recognised
national party under the Election Symbols (Reservation and Allotment) Order,
1968 had as its symbol "Two Bullocks with Yoke on" for the purpose of
elections. The Congress is a voluntary association with its own Constitution.
In 1969, following differences over the choice of the congress nominee for the
office of the President of India, the Congress split itself into two groups
congress 'O' and congress 'J'. On January 15, 1970 a communication was
addressed by the Election Commission to the Secretary of congress 'J' as well
as that of congress 'O' stating that "a dispute appears to have arisen as
to which of the two groups is the recognised political party known as the
Indian National Congress" for the purpose of the Election Symbols Order
and that the commission was required to take a decision in the matter in terms
of para 15 read with para 18 of the Order. Both the groups presented their
claim before the Commission.. The Commission framed and settled the following
four points for consideration :
(1) Has the Election Commission jurisdiction
within the meaning of paragraph 15 of the Election Symbol (Reservation &
Allotment) Order 1968, to decide whether any one or none of the rival section
or groups of the Indian National Congress. National party", is the said
Indian National Congress ? (2) Has the Election Commission, for the purpose of
undertaking the inquiry to come to a decision as aforesaid, been satisfied on
information in its possession that there are two rival section or groups of the
said Indian National Congress each claiming to be that Congress ? (3) What is
the nature of an election symbol under the Election Symbols (Reservation and
Allotment) Order, 1968 and whether an election symbol, whether reserved or
free, is property ? (4) Whether on the facts and circumstances available to the
Election Commission, any of the alleged rival sections of the said Indian
National Congress is that Congress for the purpose of the Election Symbols
(Reservation and Allotment) Order 1968; if so: which is that rival section, or,
whether on the facts and circumstances referred to above, none of the rival
sections of the _said Indian National Congress is that Congress? The contention
that the Working Committee or the President of Congress 'O', who was the
President of the Indian National Congress at the time of the split, were the
only authorities to give a binding decision was repelled by the Commission. The
Commission held that the very existence of a conflict was enough to create
jurisdiction to find out and decide, on319 the facts and circumstances
established, whether the conflict was genuine and whether the claim and
allegations of the applicants were valid. on point 2 the Commission observed
that it was satisfied on the information available in its possession that there
were two rival sections of the Indian National Congress, each claiming to be
that congress.
Regarding point 3 the finding of the
Commission was that the Election Symbol was not property. As regards point No.
4, the Commission observed that the majority test was a valuable and relevant
test in a democratic Organisation.
The test based upon the provisions of the
Constitution of the Congress, canvassed on behalf of the Congress 'O', was held
to be hardly of any assistance in view of the removals from membership and
expulsions from the committees of the Congress of the members belonging to one
group by those belonging to the opposite group. The Commission then considered
another test, namely, that based upon the aims and objects as incorporated in
the, Constitution of the Congress. It was observed that none of the two groups
had challenged in any manner or openly repudiated those aims and objects. The
test based upon the aims and objects was consequently held to be ineffective
and neutral. Applying the test of majority, the Commission observed that
Congress 'J' had the majority out of the total number of members returned on
congress tickets to the Houses of Parliament as well as the majority out of the
sum total of the members of all the Legislatures returned on congress tickets
although in some States, like Gujarat and Mysore, Congress 'O' had majority in
the Legislature. As regards the organisational wing of the congress, the
Commission came to the conclusion that Congress 'J' enjoyed majority in the
All-India Congress Committee as well as amongst the delegates of the undivided
congress. As regards the delegates who were entitled to vote at the earlier
Faridabad Session of Congress, the Commission found that out of the total
number of 4690 delegates, 2870 pledged their support to Congress 'J'.
Regarding the members of the All India
Congress Committee (A.I.C.C.), the Commission held that the total number of A.
1. C. C. members who attended the Bombay
meeting of the Congress J. was 423 out of 707 elected members and 56 out of 95
nominated and co opted members. The Bombay session, it was further held,
assumed importance in view of the fact that all the resolutions passed at the
requisitioned meeting of Congress 'J' at Delhi were ratified unanimously at the
Bombay session. For determining as to who were members of A.I.C.C. and
delegates the Commission accepted those persons as members of A.I.C.C. and
delegates who held that position in the earlier session of the Congress at
Faridabad before the split.
Decision was accordingly given that for the
purpose of paragraph 15 of the Symbol order Congress 'J' was the congress for
which the symbol "Two Bullocks with Yoke on" had been reserved..
Appeal was filed against this order of the Election Commission. An appeal was
also filed against the judgment of the Madras High Court on a certificate
granted by that Court, repelling the contention that paragraph 15 was ultra
vires and invalid in so far as it conferred power on the Commission to decide
the dispute between two groups of a political party. On (i) the question
whether the test of majority or numerical strength which was taken into account
by the Commission was in the circumstances of-the case a relevant and germane
test; (ii) the binding nature of the decision given by the Commission under
paragraph 15; and (iii) the question whether paragraph 15 was ultra vires and
invalid
HELD : Dismissing the appeals (1) The
occasion for making an order under paragraph 15 arises when the Commission is
satisfied, on the information in its possession that there are rival sections
or groups of a recognised political party each of whom 320 claims to be that
party. In the circumstances of the present case the commission had to decide
the matter under paragraph 15 and there was nothing objectionable in the
communication dated January 15, 1970, sent to the two rival parties on its
behalf. [333 E] As Congress is a democratic Organisation the test of majority
and numerical strength was a very valuable and relevant test. The figures found
by the Commission of the members of the two houses of Parliament and of the
state legislatures as well as those of A.I.C.C. members and delegates who
supported Congress 'J', have not been shown to be incorrect. In view of these
figures it can hardly be disputed that substantial majority of the members of
the congress in both its legislative wing as well as the Organisation wing
supported Congress 'J'. [336 A] In view of the removals and expulsions which
followed in the wake of split in the congress, the Commission adopted proper
approach for determining as to who should be taken to be members of A. I. C. C.
or the delegates, more so, when in the opinion of the Commission, the validity
of those removals and expulsions was open to question. Further, if according to
paragraph 6 of the Symbols Order the number of seats secured by a political
party or the number of votes cast in favour of the candidates of a political
party can be a relevant consideration for the recognition. of a political
party, one is at a loss to understand how the numbers of seats in the
Parliament and state legislatures held by the supporters of a group of the
political party can be considered irrelevant. Consequently, there is no error
in the approach of the commission in applying the rule of majority and
numerical strength for determining as to which of the two groups was the
Congres party for the' purpose of para 15 of the Symbols Order.[336E, C; 338 B]
Even though the mass of congress members are primary members there are
practical difficulties in ascertaining the wishes of those members. It can be
legitimately considered that the members of the A.I.C.C. and the delegates
reflected, by, and large, the views of the primary members. The Commission, in
any inquiry under paragraph 15, has to act with a certain measure of
promptitude and it has to see that the inquiry does not get bogged down in a
quagmire. [336 F].
Paragraph 13 of the Symbols order has nothing
to do with the question of resolving a dispute wherein two rival sections or
groups of a recognised political party claim to be that party. For resolving of
such a dispute only paragraph 15 is to be looked into. ;[338 G-H] General
Assembly of Free Church of Scotland and Others v.
Lord Overtoun and Others, :[1904] A.C. 515,
distinguished.
Samyukta Socialist Party v. Election
Commission of India & Anr., [1967] 1 S.C.R. 643, held inapplicable.
The symbol is not property to be divided
between co-owners.
The allotment of a symbol to the candidates
set up by a political party is a legal right and in case of split the
Commission has been authorised to determine which of the rival groups or
section is the party which was entitled to the symbol. The Commission in
resolving this dispute does not decide as to which group represents the party,
but which group is that party. [339 H] (ii) The claim made is only for the purpose
of symbols in connection with elections to the Parliament and state
legislatures and the decision of 321 the Commission under paragraph 15
constitutes a direction to the Returning Officer for the purpose of rule 10 of
the Conduct of Election Rules, 1961 The said direction shall be binding upon
the Returning Officer in accordance with subrules (4) and (5) of rule 10. [339
D] [The Court did not express any opinion on the question whether the decision
of the Commission can be called into question in appropriate proceedings in a
court of law.] (iii) There is no substance in the contention that paragraph 15
of the Symbols order is ultra vires the powers of the Commission. The,
Commission has been clothed with plenary powers by the Conduct of Election Rules
in the matter of allotment of symbols. If the Commission is not to be disabled
from exercising effectively the plenary powers vested in it in the matter of
allotment of symbol and for issuing directions in connection therewith, it is
plainly essential that the Commission should have the power to settle a dispute
in case claim for the allotment of the symbol of a political party is made by
two rival claimants.
Para 15 is intended to effectuate and sub serve
the main purpose and objects of the symbols order. The Commission is an
authority created by tile Constitution and according to Article 324, the
superintendence, direction and control of the Electoral rolls for the conduct
of elections to Parliament and the legislature of every state and of elections
to the offices of President and Vice President is vested in the Commission. The
fact that the power of resolving a dispute between two rival groups for
allotment of symbol of a political party has been vested in such a high
authority would raise a presumption, though rebuttable, and provide a
guarantee, though not absolute but to a considerable extent, that the power
would not be misused but would be exercised in a fair and reasonable
manner.[342 A-G] There is also no substance in the contention that as power to
make provisions in respect to elections has been given to the Parliament by
Article 327, the power cannot be further delegated to the Commission. The law
made by Parliament under article 327 is subject to the other provisions of the
Constitution including article 324. It, therefore, cannot be said that when the
Commission issues direction, it does so not on its own behalf but as delegate
of some other authority. [342 H]
CIVIL APPEELLATE JURISDICTION: Civil Appeal
No. 70 of 1971.
Appeal by Special Leave from the decision
dated the 11 th January 1971 of the Election Commission of India in the matter
of an inquiry under paragraph 15 of the Election Symbols (Reservation and
Allotment) Order, 1968.
AND Civil Appeals Nos. 2122 to 2124 of 1970.
Appeals from the judgment and order dated the
15th June, 1970 of the Madras High Court in W.As. Nos. 327 and 345 of 1970 and
W.P. No. 513 of 1970.
Shanti Bhushan, K. C. Sharma, Y. K. Mathew
and V.P. Chaudhry, for the Appellants in C.A. No. 70 of 1971.
R. N. Sachthey, for respondent No. 1 (In C.A.
No. 70 of 1971).
322 K. L. Mishra, A. P. Misra, Naunit Lal, V.
P. Nanda, Janak: Rai, Swaranjit Sodhi and R. K. Shukla, for respondent No. 2
(In C.A. No. 70 of 1971).
A. K. Sen, Bawa Shiv Charan, K. S. Suri, O.
P. Sharma and Kailash Mehta, for respondent No. 3 (in C.A. No. 70 of 1971)., P.
N. Lekhi, M. K. Garg and V. C. Prashar, for respondent No. 5 (In C.A. No. 70 of
1971).
Mukat Behari Lal Bhargava, S. L. Bhargava and
V. C. Prashar, for respondent No. 5 (In C.A. No. 70 of 1971.
Respondent No. 6 appeared in person (In C.A.
No. 70 of 1971).
M. Natesan, T. L. Garg and R,.
Gopalakrishnan, for the Intervener (In C.A. No. 70 of 1971) and the appellants
(In C.As. Nos. 2122 to 2124 of 1970).
R. N. Sachthey and S. P. Nayar, for
respondents Nos. 1 and 2 (In C.A. Nos. 2122 and 2123 of 1970) and respondent
No. 1 (C.A. No. 2124 of 1970).
The Judgment of the Court was delivered by
Khanna, J. Civil Appeal No. 70 of 1971 has been filed by special leave by Shri
Sadiq Ali and another against the order of the Election Commission of India
(hereinafter referred to as the Commission) under paragraph 15 of the Election
Symbols (Reservation & Allotment) Order, 1968 (hereinafter referred to as
the 'Symbols Order'), whereby the Commission held that for the purpose of
allotment of symbol in elections the political party presided over by Shri
Jagjivan Ram was the Indian National Congress and was entitled to the symbol of
"Two Bullocks with Yoke on", reserved for the said Congress.
Indian National Congress (hereinafter
referred to as the 'Congress') is a recognised National Party under the Symbols
Order. The symbol of the "Two Bullocks with Yoke on" was exclusively
reserved for the Congress' for the purpose of elections to the Houses of
Parliament and the Legislative Assemblies of the States and Union Territories.
The Congress is a voluntary association; it is neither a statutory body nor a
registered society under the Societies Registration Act. It has framed its own
constitution and rules. Shri S. Nijalingappa was elected President of the
Congress with effect from 1st January, 1968 for a period of two years.
Dr. Zakir Hussain, President of India, died
in 1969. Split then took place in the Congress Party following differences over
323 the choice of Congress nominee for the office of the President of India.
Each group claimed to represent the Congress Party. : One; of the groups
elected Shri C.
Subramaniam as the President of the Congress.
Subsequently, Shri Jagjivan Ram was elected President by this group in place of
Shri Subramaniam. For sake of convenience this group would hereafter be
referred to as Congress 'J'. Shri Nijalingappa continued to be the President of
the party .
represented by the other group which would
hereafter be referred to as Congress 'O'.
On 21st December, 1969, Shri Subramaniam
claiming to be the President of the Congress, addressed a letter to the Chief
Election Commissioner stating that there had been a change in the
office-bearers of the Congress. Enclosed with the letter was the list of office-bearers
of Congress 'J' Party and it was stated that they were the office-bearers of
the Congress. There was then some exchange of correspondence between the
Commission and. Congress 'J' Party. On 3rd January, 1970, a communication was
addressed to the Election Commission on behalf of the Congress 'J' that Shri
Jagjivan, Ram had been duly elected as President of the Congress and had taken
charge on December 25, 1969, during the plenary session held at Bombay.
On 8th January, 1970, a letter was sent on behalf
of the Commission to the Secretary of Congress 'O'. Enclosed with that letter
was a copy of the letter of Shri Subramaniam dated 21-12-1969. The Congress 'O'
was asked to make its comments so as to enable the Commission to take decision
in the matter after' hearing both parties. On 14th January, 1970, a reply was
sent on behalf of Congress 'O' by its General Secretary, Shri Sadiq Ali. In
that reply it was stated that Shri Subramaniam who had styled himself as the
President of the Congress was, in fact, not its President and that the duly
elected President of the Congress was Shri Nijalingappa. It was also stated
that the office-bearers mentioned by Shri Subramaniam including Shri
Subramaniam himself, were persons expelled from the Congress and had otherwise
ceased to be the members of the Congress.
Further, according to the letter of Shri
Sadiq Ali, the Commission should not have entertained any communication from a
group of people who had formed a new party and were masquerading themselves in
the name and style of the Congress. This association of persons, added Shri
Sadiq Ali, was neither a splinter group nor a rival section of the Congress.
The competence of the Commission to enquire into the matter was also
questioned.
On 15th January, 1970, a communication was
addressed by the Commission to the Secretary of Congress 'J' as well as that of
Congress 'O' stating that, "a dispute appears to have arisen as to 324
which of the two groups is. the recognised political party known as the Indian
National Congress for the purposes of the Election Symbols (Reservation &
Allotment) Order, 1968, and the Commission is requried to take a decision in
the matter in terms of paragraph 15, read with paragraphs 18, of the said
Order. The Commission proposes to afford reasonable opportunities to each group
to present its case before it so that the Commission may take into account all
the available facts and circumstances for deciding the case".
On 22nd January 1970, a statement was filed
on behalf of Congress 'J' before the Election Commission. According to that
statement Shri Nijalingappa was elected President of the Congress with effect
from 1st January, 1968 for a period of two years under Article 5 of the old
Constitution which came into force on 25th June, 1967. The election of the
members of the All India Congress Committee was held by the delegates. In
accordance with the old Constitution,the members of the Pradesh Congress
Committees were, delegates to the Indian National Congress. The term of the
members of the All India Congress Committee, the Pradesh Congress Committees
and the Committees subordinate thereto and of the office-bearers thereof was to
expire on 31 st December, 1969, under Article 5 of the Old Constitution. On
28th April, 1969, the Working Committee of the Congress passed a resolution at
Faridabad for extending the term of all Committees of the Congress and of the
office-bearers including that of the President, Shri Nijalingappa, for a
further period of one year. The said resolution, according to Congress 'J' was
not legal as there was no emergency or special situation warranting the
extension of the normal term of two years. The resolution was also stated to be
invalid as it was not submitted under the old Constitution to the All India
Congress Committee for ratification as early as possible.
Under the new Constitution which came into
force on 11 th July, 1969, the above resolution was required, according to the
statement on behalf of Congress 'J', to be submitted to the All India Congress
Committee for ratification in any case within 6 months. The resolution was not
ratified at the meeting of the All India Congress Committee held in Bangalore
in July, 1969. The period of 6 months prescribed for the ratification of the
resolution expired on 28th October, 1969 and as the resolution was not
ratified, the same according to the statement became void. Further, as the term
of Shri Nijalingappa as President was going to expire on 31st December, 1969,
it became necessary for the All India Congress Committee to make arrangements
for the election of the President before the said date. A requisition, it is
stated, signed by more than 400 members of the All India Congress Committee,
out of 325 a total of 707, was sent for calling a meeting of the AR India
Congress Committee. Shri Nijalingappa then called a meeting of the Congress
Working Committee on 1st November, 1969. Before that, on the night of 31st
October, 1969, Shri Nijalingappa declared that Shri Subramaniam, a member of
the Congress Working Committee had ceased to be a member of that Committee.
Shri Nijalingappa also on that night removed Shri Fakhruddin Ali Ahmed from the
membership of the Working Committee,. The, ,above act of Shri Nijalingappa
according to the statement, was mala fide, illegal and against the principles
of natural justice.
According further to the statement submitted
on behalf of' Congress 'J', the requisition sent by more than 400 members of
All India Congress Committee was received by Shri Nijalingappa on the night of
31st October, 1969 and was turned down by the Working Committee. 17 members of
the All India Congress. Committee who were also signatories to the
above-mentioned requisition, issued a notice on 5th November, 1969 calling a
meeting of the All India Congress Committee to consider the subjects mentioned
in the requisition. Copies of the said notice were sent to Shri Nijalingappa
and a public statement was issued by Shri Subramaniam that Shri Nijalingappa
would be presiding over the meeting if he attended the same. The requisitioned
meeting of the All India Congress Committee was held at Delhi on 22nd and 23rd
November, 1969 and was, according to the statement, attended by 435 members of
the All India Congress Committee out of a total of 707. Shri Nijalingappa and
his followers did not attend the requisitioned meeting.
Six members having voting rights also,
communicated their support in writing for the requisitioned meeting. One of the
resolutions passed at the requisitioned meeting related to the removal of Shri
Nijalingappa from the office of President. By another resolution Shri
Subramaniam was appointed President and he was asked to function as such until
a new President was elected by the delegates. In accordance with the,
resolution passed in the above requisitioned meeting, a plena session of the
Congress was held in Bombay on 28th and 29th December, 1969. Shri Jagjivan Ram
was elected President before the said plenary session. An overwhelming majority
of delegates are stated to have attended the plenary session held at Bombay under
the Presidentship of Shri Jagjivan Ram. The resolutions passed in the
requisitioned meeting of 22nd and 23rd November, 1969 were ratified at the
plenary session in Bombay. 423 out of 707 members of the All India Congress
Committee attended' the Bombay Session.
According further to the statement submitted
on behalf of Congress 'J', 229 out of 284 Congress Members of Lok Sabha and 106
out of 147 Congress Members of Rajya Sabha declared their 326 allegiance, to
the Congress Government led by Shrimati Indira ,Gandhi as Prime Minister and to
the Congress led by Shri Jagjivan Ram as President. As against that, Congress
'O' claimed the allegiance of 65 Members of Lok Sabha and 40 Members of Rajya
Sabha. The Congress Legislature Parties of Maharashtra, Madhya Pradesh, Andhra
Pradesh, Rajasthan, Assam, Haryana, Jammu & Kashmir, Himachal Pradesh and
Tripura declared their support to the Congress Governments in those States and
to Congress 'J'. The Speaker of Lok Sabha and the Chairman of Rajya Sabha
recognised Congress 'J' in Parliament as the party .which was in power and
which ran the Central Government. The statement added that the Election
Commission was the only authority to decide dispute about the allotment of
symbol. Prayer was ,accordingly made that the symbol reserved for Congress for
the purposes of general elections and bye-elections should be allotted to
candidates who would be nominated and declared their allegance to Congress 'J'.
A counter-statement was submitted on behalf
of Congress 'O' by its General Secretary, Shri Sadiq Ali on 16th February,
1970. The various allegations made in the statement submitted on behalf ,of
Congress 'J' were controverted and it was stated that the Election Commission
had no jurisdiction to hold the enquiry. According to the counterstatement, the
Congress Parliamentary Board in its meeting held in July 1969 decided by
majority to put up Shri N. Sanjiva Reddy as candidate for the office of the
President of India. The decision of the majority upset Smt. Indira Gandhi. Smt.
Indira Gandhi, Shri Jagjivan Ram and Shri Fakhruddin Ali Ahmed, at the initial
stages of the Presidential election, supported the candidature of Shri Sanjiva
Reddy but subsequently they started a campaign for the defeat of the, Congress
candidate and for the success of Shri V. V. Giri. The explanations of Shrimati
Indira ,Gandhi, Shri Jagjivan Ram and Shri Fakhruddin Ali Ahmed were ,called by
the Congress President on 18th August, 1969.
On 31st October 1969, Shri Nijalingappa wrote
a letter to Shri Subramaniam that he had ceased to be a member of the Working
Committee. The reason for that was that Shri Subramaniam who was a member of
the All India Congress Committee by virtue of being the President of the Tamil
Nadu Congress Committee, had resigned the President ship thereof and had thus
ceased to be a member of the All India Congress Committee. Shri Fakhruddin Ali
Ahmed was removed from the membership of the Working Committee because
according to the counter-statement, he had lost the confidence of the President.
The requisition sent for calling a meeting of the All India Congress Committee
was rejected in a meeting of the Congress' Working Committee on 1st November,
1969.
When the members of the Congress Working
Committee learnt 327 from newspaper reports that some members of the Working
Committee had taken a decision to convene a meeting of the All India. Congress
Committee on 22nd and 23rd November, 1969, the Working Committee took the view
that it was bound to, result in indiscipline. Shri Nijalingappa then addressed
a letter to Shrimati Indira Gandhi charging her with indiscipline and asking
her to explain her position.
As regards the validity of the resolution
postponing the elections, the case set up in the counter-statement is that the
said resolution was valid in law and its validity had not been questioned by
one Regarding the notice sent by 17 members of the AR India Congress Committee
for convening the requisitioned meeting of the All India Congress Committee,
the case of the Congress 'O' is that the said notice was invalid and the
persons who attended the meeting on 22nd and 23rd November, 1969 did so in
their personal capacity. The decisions taken in that meeting are stated,. to
have no effect on the Working Committee. Smt. Indira Gandhi, who presided over
the meeting, according to the counter-statement, had been expelled from the
primary membership of Congress on 12th November, 1969. The resolution passed in
the meeting, held on 22nd and 23rd November, 1969 being void ab initio could
not be subsequently ratified by any authority. As regards, the Members of
Parliament and State Legislatures who declared their allegiance to Congress
'J', the stand taken in the counter statement is that their position was that
of defector.
A rejoinder and some other applications were
thereafter filed. The Commission on 7th March, 1970 framed and settled the
following four points for discussion
1. Has the Election Commission jurisdiction
within the meaning of paragraph 15 of the Election Symbol (Reservation &
Allotment) Order 1968, to decide whether any one or none of the rival sections
or groups of the Indian National Congress,. a national party, is the said Indian
National :Congress ?
2. Has the Election Commission, for the
purpose of undertaking the inquiry to come to a decision as aforesaid, been
satisfied on information in its possession that there are two rival sections or
groups of the said Indian National Congress each. claiming to be that Congress
?
3. What is the nature of an election symbol
under the Election Symbols (Reservation and Allotment) 328 Order, 1968, and
whether an election symbol, whether reserved or free, is property ?
4. Whether, on the facts and circumstances
available to the Election Commission, any of the alleged rival sections of the said
Indian National Congress is that Congress for the purposes of the Election
Symbols (Reservation and Allotment) Order 1968; if so, which is that rival
section, or, whether On the facts and circumstances referred to above, none of
the rival sections of the said Indian National Congress is that Congress
?" In an order covering 437 pages which, considering the nature of
controversy, appears to be abnormally prolix, the Commission held on the first
point that if had jurisdiction to decide the matter. The, contention that the
Working Committee or the President of ;Congress 'O' were the only authorities
to give a binding decision in the dispute was repelled in the following words
"If, therefore, there are facts in the present case which show a total and
entire cleavage in the Indian National Congress from top to bottom, and that
the rivalry between the two groups has almost assumed the form of enmity, then
relying upon a few provisions of the Constitution and the rules of the party it
cannot, in my view, be validly contended that the Election Commission has no
jurisdiction because the Working Committee or the President of one group whose
existence and authority are totally repudiated by the other group, are the only
authorities to give final and binding decisions in the present dispute. The
very existence of such a conflict is enough to create jurisdiction to find out
and decide whether the conflict. is genuine and whether the claims and
allegations of the applicants are valid or the contentions and objections of
the opposite parties. But that question wilt have to be determined on the facts
and circumstances established in the case".
On point 2, the Commission observed that it
was satisfied on the information available in its possession that there were
two rival sections of the Indian National Congress, each claiming to be that
Congress. Regarding point 3, the finding of the Commission was that the
Election Symbol was not property. As regards point No. 4, the Commission
observe that the majority test was a valuable and relevant test in a democratic
Organisation. The test based upon the provisions of the Constitution of the
Congress canvassed on behalf of the Congress 'O' was held to be hardly of any
assistance in view of the removals from membership and expulsions 329 from the
Committees of the Congress of the members belonging to one group by those belonging
to the opposite group. Reference was also made in this context to the rejection
of the requisition sent by some members of Congress 'J' for convening a meeting
of the All India Congress Committee.
The Commission then considered another test,
namely, that based upon the aims and objects as incorporated in the
Constitution of the Congress. It was observed that none of the two groups had
challenged in any manner or openly repudiated those aims and objects. The test
based upon the aims and object was consequently held to be ineffective and
neutral. Applying the test of majority, the Commission observed that Congress
'J' had the majority out of the total number of members returned on Congress
tickets to the Houses of Parliament as well as the majority out of the sum
total of the members of all the Legislatures, returned on Congress tickets
although in some States, like Gujarat and Mysore, Congress 'O' had majority in the
Legislature. As regards the organisational wing of the Congress, 'the
Commission came to the conclusion that Congress 'J' enjoyed majority in the All
India Congress Committee as well as amongst the delegates of the undivided
Congress. Decision was accordingly given that for the purpose of paragraph 15
of the Symbol Order, Congress 'J' was the Congress for which the symbol
"Two bullocks with Yoke On had been reserved.
Before dealing with the contentions advanced
in appeal, it may be apposite to refer to the relevant provisions. Art.
324 of the Constitution provides inter alia
that the superintendence, direction and control of the preparation of electoral
rolls for and. the conduct of all elections to Parliament and Legislative
Assemblies of the States and all elections to the offices of President and
Vice-President held under the Constitution shall be vested in the Commission
According to section 169 of the Representation of the People Act, 1951 (Act 43
of 1951)., the Central Government may,-after consulting the Election Commission
by notification in the official gazette, make rules for carrying out the
purposes of the Act. Without prejudice to the generality of the foregoing
power, sub-section (2) enumerates some of the matters for which provision may be
made in the rules. Sub-section (3) requires that the rules framed should be
laid before each House of Parliament.
Conduct of Elections Rules, 1961 were
thereafter framed by the Central Government. Rule 5 of those Rules requires the
Commission to specify the symbols that may be chosen by candidates at elections
in Parliamentary and Assembly elections and the restrictions to which that
choice shall be subject. Rule 10 makes provision for allotment of symbols to
the contesting candidates by the Returning Officer subject to general or
special directions issued by the Commission.
330 The Symbols Order has been issued by the
Commission in exercise of the powers conferred 'by Article 324 of the
Constitution read with Rules 5 and 10 of the Conduct of Election Rules.
Paragraph 2 of the Symbols Order contains the various definitions. According to
clause (h) of that paragraph, political party means an association or body of
individual citizens of India registered with the Commission as a political
party under paragraph 3 and includes a political party deemed to be registered
with the Commission under the proviso to sub-paragraph 2 of that paragraph.
Paragraph 3 deals with registration with the
Commission of associations and bodies as political parties for the purpose of
the Order. According to that paragraph, any association or body of individuals,
citizens of India calling itself a political party and intending to avail
itself of the provisions of the Order shall make an application to the
Commission for its registration as a political party for the purpose of that
Order. Sub-paragraph (2) provides the period within which an application has to
be made.
Exemption from making the application in
certain contingency with which we are not concerned is also granted. Subparagraphs
3 & 4 specify the formalities and the particulars required for the
application. The particulars include the names of the President, Secretary and
other office-bearers of the political party, the numerical strength of its
members as well as the political principles on which it was based and the
policies, aims and objects it pursued or sought to pursue. Power is given to
the, Commission under sub-paragraph 5 to call for further particulars. The
Commission thereafter decides whether to register the association or body as
political party or not. The decision of the Commission in this respect has been
made final by sub-paragraph 7. Provision is further made by subparagraph 8 that
after the association or body has been registered ,as' a political party, any
change in its name, head-office, office bearers, address and political
principles, policies., aims and objects and any change in any other material
matter, shall be communicated to the Commission without delay. Paragraph 4
provides for allotment of symbols.
Paragraph 5 deals with the classification of
symbols.
According to this paragraph, a reserved
symbol is a symbol reserved for a political party for exclusive use by that
party. A symbol other than the reserved symbol has been described by the said
paragraph to be a free symbol.
Political parties have been classified as
recognised political parties of un-recognised political parties by paragraph 6.
The recognised political parties have been divided into two categories. If a
political party is treated as a recognised political party in four or more
states in accordance with paragraph 6, it shall have the status of a national
party throughout the whole of India.
If on the contrary a political party is
treated as' a recognised political party in less than four states, it shall
enjoy the status of a state party in the state 331 or states in which it is a
recognised political party. We need not dilate upon this aspect because it is
common case of the parties that the Congress is a national party.
Paragraph & deals with choice of symbols
by candidates of national and state parties and allotment thereof.
Paragraphs 9, 10, 11 & 12 deal with
certain restrictions on the allotment of symbols, concessions to certain
candidates as well as the choice of symbols by some categories of candidates
with which we are not concerned. Paragraph 13 specifies as to when a candidate
shall be deemed to be set up as a candidate by a political party and reads as
under :"13.When a candidate shall be deemed to be set up by a political party-For
the purposes of this Order a candidate shall be deemed to be set up by a
political party if, and only if(a) the candidate has made a declaration to that
effect in his nomination paper;
(b) a notice in writing to that effect has
not later than 3 p.m. on the last day of withdrawal of candidatures, been
delivered to the returning officer of the constituency_;
and (c) the said notice is signed by the
President, the secretary or any other office bearer of the party and the
president, secretary or such other office bearer is authorised by the party to
send such notice and the name and specimen signature of the president, the
secretary or such other officebearer are communicated in advance to the
returning officer of the constituency and to the Chief Electoral Officer of the
State".
Paragraph 14 gives power to the Commission to
issue certain instructions to un-recognised political parties. Paragraph 15
with which we are directly concerned in this case reads as under :"15.
Power of Commission in relation to splinter groups or rival sections of a
recognised political party When the Commission is satisfied on information in
its possession that there are rival sections or groups of a recognised
political party each of whom claims to be that party, the Commission may, after
taking into account all the available facts and circumstances of the case and
hearing such representatives of the sections of groups and other persons as
desire to be heard, decide that one such rival section or group or none of such
rival sections or 8-L500Sup. Cl/72 332 groups is that recognised political
party and the decision of the Commission shall be binding on all such rival
sections or groups".
The powers of the Commission in case of
amalgamation of two' or more political parties is contained in paragraph 16 and
it reads "16. Power of Commission in case of amalgamation of two or more
political parties(1) when two or more political parties, one or some or all of
whom is a recognised political party or are recognised political parties, join
together to form a new political party, the Commission may, after taking into
account all the facts and circumstances of the case, hearing such
representatives of the newly formed party and other persons as desire to be
heard and having regard to the provisions of this Order, decide-(a) whether
such newly formed party should be a National party; and (b) the symbol to be
allotted to it.
(2) The decision of the Commission under subparagraph
(1) shall be binding on the newly formed political party and all the component
units thereof".
A notification containing the list of
political parties and symbols has to be issued by the Commission under
paragraph 17 while paragraph 18 gives certain additional powers to the
Commission for issuing instructions and directions. The requisite notification
was accordingly issued by the Commission under paragraph 17. According to that
notification, Indian National Congress was a National party and its reserved
symbol was "Two Bullocks with Yoke On".
Perusal of the different paragraphs of the
Symbols Order makes it manifest that they provide, as is made clear by its
preamble, for specification, reservation, choice and allotment of symbols at
elections in parliamentary and assembly constituencies as well as for the recognition
of 'political parties in relation thereto and for matters connected therewith.
One such matter is the decision of a dispute when two rival sections or groups
of a recognised political party claim to be that party for the purpose of the
Symbols Order. Paragraph 15 provides for the machinery as well as the manner of
resolving such a dispute.
Before discussing the scope and ambit of
paragraph 15, it may be pertinent to find out the reasons which led to the
introduction 333 of symbols. It is well known that overwhelming majority of the
electorate are illiterate. It was realised that in view of the handicap of
illiteracy, it might not be possible for the illiterate voters to cast their
votes in favour of the candidate of their choice unless there was some
pictorial representation on the ballot paper itself whereby such voters might
identify the candidate of their choice.
Symbols were accordingly brought into use.
Symbols or emblems are not a peculiar feature of the election law of India. In
some countries, details in the form of letters of alphabet or numbers are added
against the name of each candidate while in others, resort is made to symbols
or emblems. The object is to ensure that the process of election is as genuine
and fair as possible and that no elector should suffer from any handicap in
casting his vote in favour of a candidate of his choice. Although the purpose
which accounts for the origin of symbols was of a limited character, the symbol
of each political party with the passage of time acquired a great value because
the bulk of the electorate associated the political party at the time of
elections with its symbol. It is, therefore no wonder that in case of a split
in a political party, there is a keen contest by each rival group to get the symbol
of that party.
Let us now go back to paragraph 15. The
occasion for making an order under this paragraph arises when the Commission is
satisfied on information in its possession that there are rival sections or
groups of a recognised political party each of whom claims to be that party.
The Commission in such an event decides the matter after taking into account
all available facts and circumstances of the case and hearing such
representatives of the sections or groups and other persons as desire to be
heard. The Commission may decide that one such rival section or group is that
recognised political party or that none of such rival sections or groups is
that party. The aforesaid decision has been made binding on all the rival
sections or groups who claim to be the political party in question.
In the present case, we find that a claim was
made on behalf of Congress 'J' that its office-bearers were the office bearers
of the Congress. The said claim was repudiated by Congress 'O' and according to
it, it was the genuine Congress Party and its President was Shri Nijlingappa.
According further to the stand taken on
behalf of Congress 'O', the members of Congress 'J' were masquerading
themselves in the name and style of the Congress. The Commission in the circumstances,
had to decide the matter under paragraph 15 and we find nothing objectionable
in the communication dated January 15, 1970 sent to the two rival parties on
its behalf wherein it was stated that "a dispute appears to have, arisen
334 as to which of the two groups is the recognised political party known as
the Indian National Congress for the purposes of the Symbols Order."
Controversy between the parties has ranged on the question whether the
Commission has taken into account all 'the available facts and circumstances of
the case'. The Commission in this context considered the various criteria for
determining which of the two groups , Congress "J" or Congress 'O'
was the Congress and came to the conclusion that the criteria other than that
of the numerical strength or Majority could not provide a satisfactory
solution. So far as the test of majority is concerned, the Commission found
that the relative strength of the two groups in the two Houses of Parliament
and the State Legislature was as under :-----------------------------------------------------------Name
of the House. Position as on. Position in the 22-1-1970 later half of 1970
Remarks Congress Congress Congress Congress 'J' 'O' 'J' 'O'
----------------------------------------------------------1 2 3 4 5 6
I-Parliament
1. Lok Sabha 221 64 228 65
2. Rajya Sabha 103 42 85 40 II-Legislative
Assemblies A. States 1 . Andhra Pradesh........... --175 14
2. Assam..................... -75 -
3. Bihar..................... 81 31 86 28
4. Gujarat................... 5 96 8 108
5. Haryana............... . (no separate
group 53 6 in the strength of 48 Congress members)
6. Jammu & Kashmir............ --61 -
7. Kerala.................... 4 5 33 4
8. Madhya Pradesh.......... 177 -192 -
9. Maharashtra.............. 204 -191 13
10. Mysore..................... 23 126 37 127
11. Nagaland --No party as Indian National
Congress.
12. Orissa..................... --8 3
13. Punjab..................... 28 -28 -
14. Rajasthan.................. 111 1 131 1
15. Tamil Nadu --8 41
16. Uttar Pradesh 120 102 150 84 335 1 2 3 4
5 6
17. West Bengal............. 38 13 Assembly
dissolved on 30-7-70 B. Union Territories
1. Goa, Daman & Diu......... --1 -
2. Himachal Pradesh......... 42 -43 -3.
Manipur Dissolved with effect from 16-10-69.
4. Pondicherry 6 4 7 3
5. Tripura 27 -27 -III.-Legislative Councils
1. Andhra Pradesh --52 6
2. Bihar --33 22
3. Maharashtra 51 -46 3
4. Mysore 6 46 7 43
5. Tamil Nadu --2 17
6. Uttar Pradesh 37 33 33 29 As regards the
delegates who were entitled to vote at the earlier Faridabad Session of
Congress, the Commission found that out of the total number of 4,690 delegates,
2,870 pledged their support to Congress 'J'. Regarding the members of the All
India Congress Committee (hereinafter referred to as the AICC), the Commission
held that the total number of AICC members who attended the Bombay meeting of
the Congress 'J'. AICC was 423 out of 707 elected members and 56 out of 95
nominated and co-opted members. The Bombay Session, it was further held,
assumed importance in view of the fact that all the resolutions passed at the
requisitioned meeting of Congress 'J' at Delhi were satisfied unanimously at
the Bombay session. For determining as to who were members of AICC and
delegates, the Commission accepted those persons as members of AICC and
delegates who held that position in the earlier session of the Congress at
Faridabad before the split. In view of the removals and expulsions which
followed in the wake of split in the Congress, the Commission, in our opinion,
adopted proper -approach for determining as to who should be taken to be
members of AICC or the delegates, more so, when in the opinion of the
Commission, the validity of (hose removals and expulsions was open to question.
The figures found by the Commission of the
members of the two Houses of Parliament -and of the State Legislatures as well
as those of AICC members and delegates who supported Congress 'J' have not been
shown to us to be incorrect. In view of those figures, it can hardly be
disputed that substantial majority of the members of the Congress in both its
legislative wing as well as 336 the organisational wing supported the Congress
'J'. As Congress 'J' is a democratic Organisation, the test of majority and
numerical strength, in our opinion, was a very valuable and relevant test.
Whatever might be the position in another system of government or Organisation,
numbers have a relevance and importance in a democratic system of government or
political set up and it is neither possible nor permissible to lose sight of
them. Indeed it is the view of the majority which in the final analysis proves
decisive in a democratic set up.
It may be mentioned that according to paragraph
6 of the Symbols Order, one of the factors which may be taken into account in
treating a political party as a recognised political party is the number of
seats secured by that party in the House of People or the State Legislative
Assembly or the number of votes polled by the contesting candidates set up by
such party. If the number of seats secured by a political party or the number
of votes cast in favour of the candidates of a political party can be a
relevant consideration for the recognition of a political party, one is at a
loss to understand as to how the number of seats in the Parliament and State
Legislatures held by the supporters of a group of the political party can be
considered to be relevant. We can consequently discover no error in the
approach of the Commission in applying the rule of majority and numerical
strength for deter-' mining as to which of the two groups, Congress 'J' and
Congress 'O' was the Congress party for the purpose of paragraph 15 of Symbols
Order.
It is no doubt true that the mass of Congress
members are its primary members. There were obvious difficulties in
ascertaining who were the primary members because there would in that event
have been allegations of fictitious and bogus members and it would have been
difficult for the Commission to go into those allegations, and find the truth
within a short span of time. The Commission' in deciding that matter under
paragraph 15 has to act with a certain measure of promptitude and it has to see
that the inquiry does not get bogged down in a quagmire. This apart, there was
practical difficulty in ascertaining the wishes of those members. The
Commission for this purpose could obviously be not expected to take referendum
in all the towns and villages in the country in which there were the primary
members of the Congress. It can, in our opinion, be legitimately considered
that the members of, AICC and the delegates reflected by and large the views of
the primary members.
It is urged by Mr. Shanti Bhushan on behalf
of the appellants that 1 1 members of the Congress Working Committee were with
337 Congress 'O' while 1 0 members were with Congress 'J'. The matter,
according to the learned counsel, should have been decided in accordance with
the majority in the Working Committee. SO far as this aspect is concerned, we
find that as it is not always convenient to convene general session of the
Congress or a meeting of the AICC, the Congress has its Working Committee which
represents the Congress for administrative purposes and for taking decision on
political and other matters. Some of the members of the Working Committee are
elected by the AICC while others are nominated by the President. The Working
Committee has not been shown to possess any power of vetoing the decision of
the AICC.
On the contrary, major decisions taken by the
Working Committee at the time of AICC meetings are placed before the AICC for
ratification. In view of the fact that the wishes of the majority of the
members of AICC as well as the delegates have been ascertained, we find it
difficult to accede to the contention that the majority enjoyed by Congress 'O'
against Congress 'J' in the Working Committee should carry so much weight as to
outweigh the majority support obtained by Congress 'J' among delegates and the members
of AICC. In any case, we find that as against the slender majority enjoyed by
Congress 'J' in the Working Committee, Congress 'J' had substantial majority
among the members of AICC and the delegates as well as the Congress members of
two Houses of Parliament as also the sum total of members of the State
Legislatures.
The observations of late Pandit Jawaharlal
Nehru in the course of his speech on Kamraj Plan in the meeting of AICC held in
August 1963, to which a reference has been made on behalf of the appellants, is
hardly of any assistance to the appellants for the purpose of this case. Pandit
Nehru in that speech emphasized the importance of the organisational wing of
the Congress and said that if the AICC or the Working Committee did not desire
that he should remain in office, he was not going to have general elections to
secure the support of the people against the said Committees. It is obvious
that the stress in that speech was on the need of the Prime Minister securing
the Support of the organisational wing. The speech did not deal with a
contingency as arises in the present case of resolving a dispute wherein one
group has the support of the majority of the legislative wing as well as the
organisational wing other than the Working Committee. The present is not a case
wherein a conflict has arisen because of one group having majority in the
organisational wing and the other having a majority in the legislative wing of
the party.
Argument has been advanced on behalf of the
appellants that the matter should have been decided in accordance with the
provisions of the Congress constitution. The Commission in this con338 text has
found that there were removals and expulsions of the supporters of Congress 'J'
from the various Committees of the Congress by the members of Congress 'O' and
the President, Shri Nijalingappa. The Commission has come. to the conclusion
that the validity of the action of Shri Nijalingappa and other members of
Congress 'O' in removing and expelling members of the other group was doubtful
and open to question. The Commission has also questioned the propriety of the
action of the Working Committee in rejecting the requisition sent by the
members of AICC for convening meeting of the AICC. It is, in our opinion, not
necessary for this Court to express any opinion. for the purpose of this appeal
about the validity of the above mentioned removals and expulsions nor is it
necessary to express any view about the propriety of the rejection of the
requisition. Likewise it is not essential to say anything as to whether one or
both the groups were in the wrong and if so, to, what extent in the controversy
relating to the split in the Congress. All that this Court is concerned with is
whether the test of majority or numerical strength which has been taken into
account by the Commission is in the circumstances of the case a relevant and
germane test.
On that point, we have no hesitation in
holding that in the context of the facts and circumstances of the case, the
test of majority and numerical strength was not only germane and relevant but a
very valuable test.
Reference has been made on behalf of the
appellants to paragraph 13 of the Symbols Order which has been reproduced
earlier in this judgment. The said paragraph mentions as to when a candidate
shall be deemed to be set up by a political party. The three requisites for
that are : that the candidate has made a declaration to that effect in his
nomination paper; that a notice is delivered to the Returning Officer before
the specified time and the said noticed is signed by such office-bearer of the
party who has been authorised to send the notice. It also requires that the
name and specimen signature of such office-bearer should be communicated in
advance to the Returning Officer and the Chief Electoral Officer of the State.
Reading of paragraph 13 makes it plain that it deals with the case of
individual candidates and provides a safeguard against the contingency of a
claim being made by two rival candidates of being the nominee of the same party.
Paragraph 13 has nothing to do with the question of resolving a dispute wherein
two rival sections or groups of a recognised political party claim to be that
party. For the resolving of such a dispute, we have only to look to paragraph
15.
Question during the course of hearing of the
appeal has also arisen whether the persons who were heard during the course of
proceedings under paragraph 15 become parties to those proceedings SO as to be
entitled to be heard in appeal. In this connection, we are of the opinion that
although the Commission may hear during the course of proceedings under
paragraph 15 'such representatives of the sections or.
groups or other persons as desire to, be
heard', the parties to the dispute necessarily remain rival sections or groups
of the recognised political party. Other persons as desire to be heard and who
are heard by the Commission do not become parties to the dispute so as to have
a right of addressing this Court in appeal. We have consequently not allowed
arguments to be addressed in appeal on their behalf.
Question then arisen as to what is the
binding nature of the decision given by the Commission under paragraph 15. In
this respect, it has to be borne in mind that the Commission only decides the
question as to whether any of the rival sections or groups of a recognised
political party, each of whom claims to be that party, is that party. The claim
made in this respect is only for the purpose of symbols in connection with the
elections to the Parliament and State Legislatures and the decision of the
Commission pertains to this limited matter. The Commission while deciding the
matter under paragraph 15 does not decide dispute about property. 'The proper
forum for adjudication of disputes about property are the civil courts. The
decision of the Commission under paragraph 15 constitutes a direction to the
Returning Officer for the purpose of Rule 10 of the Conduct of Elections Rules,
1961. The said direction shall be binding upon the Returning Officers in
accordance with subrules (4) and (5) of the abovementioned Rule. Whether the
decision of the Commission can be called into question in appropriate
proceedings in a Court of law is a matter which does not arise in this case and
we need not express any opinion thereon.
Contention has also been advanced on behalf
of the appellants that Congress 'O' although adhering to Congress aims and
objects is deprived of the use of symbol of "Two Bullocks with Yoke
on" which had been allotted to the Congress for the purpose of elections.
The answer to 'this contention is that as a result of differences and
dissensions, a political party may be split into two or more groups but the
symbol cannot be split. It is only one of the rival sections or groups, as is
held to be that political party under paragraph 15, which would be entitled to
the use of the symbol in the elections while the other section or group would
have to do without that symbol. It is not permissible in a controversy like the
present to dissect the symbol and give one out of two bullocks represented in
the symbol of the Congress to one group and the other bullock to the other
group. The symbol is not property to be divided between co-owners. The
allotment of a symbol to the candidates set up by a political party is a legal right
and in case of split, the 340 Commission has been authorised to determine which
of the rival groups or sections is the party which was entitled to the symbol.
The Commission in resolving this dispute does not decide as to which group
represents the party but which group is that party. It were a question of
representation, even a small group according to the Constitution of the
Organisation may be entitled to represent the party. Where, however, the
question arises as to which of the rival groups is the party, the question
assumes a different complexion and the numerical strength of each group becomes
an important and relevant factor. It cannot be gainsaid that in deciding which
group is the party, the Commission has to decide as to which group substantially
constitutes the party.
Attempt has also been made during the course
of arguments to show that the supporters of Congress 'J' were defaulters in
payment of subscription. No such case was admittedly set tip before the
Commission. We have consequently not allowed the appellants to raise this
matter which hinges upon facts in appeal.
Reference has been made on behalf of the
appellants to a House of Lords decision in the case of General Assembly of Free
Church of Scotland and others v. Lord Overtone and others(1). The said case
related to the denomination of Christians which called itself the Free Church
of Scotland and had been founded in 1843. It consisted of ministers and laity
who seceded from the Established Church of Scotland, but who professed to carry
with them the doctrine and system of the Established Church, only freeing
themselves by secession from what they regarded as interference by the State in
matters spiritual. For many years, efforts had been made to bring about a union
between the Free Church and the United Presbyterian Church, also seceders from
the Established Church. In 1900 Acts of Assembly were passed by the majority of
the Free Church and unanimously by the United Presbyterian Church for union
under the name of the United Free. Church and the Free Church property was
conveyed to the new trustees for behoof of the new Church.
The United Presbyterian Church was opposed to
the Establishment principle, and did not maintain the Westminster Confession of
Faith in its entirety. 'the respondents contended that the Free Church had full
power to change its doctrines so long as the identity was preserved.
The appellants, a very small minority of the
Free Church, objected to the union maintaining that the Free Church had no
power to change its original doctrines or to unite with a body which did not
confess those doctrines. The appellants accordingly complained of breach of
trust. It was held that the Establishment principle and the Westminster
Confession were distinctive tenets of the Free Church and (1) [1904] A.C. 515.
341 the Free Church had no power, where
property was concerned, to .alter the doctrine of the Church; that there was no
true union, as, the United Free Church had not preserved its identity with the
Free Church not having the same distinctive tenets and that the appellants were
entitled to hold for behoof of the Free Church the property held by the Free
Church before the union in 1900. The above case can hardly be of any assistance
to the appellants. It is clearly distinguishable on two grounds. The first
ground relates.
to change of tenets on the part of a
religious group. As against that, the present case relates to a political party
wherein none of the rival groups professes to renounce the aims and objects of
the party. The other ground is that the dispute in the cited case related to
property while that in the present case relates to a legal right and not to
property.
The case of Samyukto Socialist Party v.
Election Commission of India & Anr.(1) has also no bearing on the present
case.
The cited case related to merger of two
political parties into one as a result of which the election symbol of one of
the merger parties was allotted to the new party. The parties separated again
and the question which arose for determination was whether the symbol can be
taken back from the new party and given to the party to which it originally
belonged. It is plain that the nature of controversy in the said case was
entirely different.
Civil Appeals Nos. 2122-2124 of 1970 have
been filed by Shri P. Kaklcan and another against the judgment of the Madras.
High Court on a certificate granted by that
Court. It is not necessary to give the facts giving rise to these appeals
because according to Shri Natesan, learned counsel for the appellants in these
appeals, the only additional point to be agitated is about the vires of
paragraph 15 of the Symbols Order. The Madras High Court repelled the
contention advanced on behalf of the appellants that paragraph 15 was ultra
vires and invalid in so far as it conferred power on the Commission to decide
the dispute between two groups of a. political party.
It would follow from what has been discussed
earlier in this judgment that the Symbols Order makes detailed provisions for
the reservation, choice and allotment of symbols and the recognition of
political parties in connection therewith.
That the Commission should specify symbols
for elections in parliamentary and assembly constituencies has also been made
obligatory by rule 5 of Conduct of Election Rules. Sub-rule (4) of rule 10
gives a power to the Commission to issue general or special directions to the
Returning Officers in respect of the allotment of symbols. The (1) [1967] 1
S.C.R. 643.
342 allotment of symbols by the Returning
Officers has to be in accordance with those directions. Sub-rule (5) of rule 10
gives a power to the Commission to revise the allotment of a symbol by the
Returning Officers in so far as the said allotment is inconsistent with the
directions issued by the Commission. It would, therefore, follow that
Commission has been clothed with plenary powers by the above mentioned Rules in
the matter of allotment of symbols. The validity of the said Rules has not been
challenged before us. If the Commission is not to be disabled from exercising
effectively the plenary powers vested in it in the matter of allotment of
symbols and for issuing directions in connection therewith, it is plainly
essential that the Commission should have the power to settle a dispute in case
claim for the allotment of the symbol of a political party is made by two rival
claimants. In case, it is a dispute between two individuals, the method for the
settlement of that dispute is provided by paragraph 13 of the Symbols Order. If
on the other hand, a dispute arises between two rival groups for allotment of a
symbol of a political party on the ground that each group professes to be that
party, the machinery and the manner of resolving such a dispute is given in
paragraph 15. Paragraph 15 is intended to effectuate and sub serve the main
purposes and objects of the Symbols Order.
The paragraph is designed to ensure that
because of a dispute having arisen in a political party between two or more
.groups, the entire scheme of the Symbols Order relating to the allotment of a
symbol reserved for the political party is not set at naught. The fact that the
power for the settlement of such a dispute has been vested in the Commission
would not constitute a valid ground for assailing the vires of and striking
down paragraph 15. The Commission is an authority created by the Constitution
and according to Article 324, the superintendence, direction and control of the
electoral rolls for and the conduct of elections to Parliament and to the
Legislature of every State and of elections to the office of President and Vice-president
shall be vested in the Commission. The fact that the power of resolving a
dispute between two rival groups for allotment of symbol of a political party
has been vested in such a high authority would raise a presumption, though
rebuttable, and provide a guarantee, though not absolute but to a considerable
extent, that the power would not be misused but would be exercised in a fair
and reasonable manner.
There is also no substance in the contention
that as power to make provisions in respect to elections has been given to the
Parliament by Article 327 of the Constitution, the power cannot be further
delegated to the Commission. The opening words of Article 327 are "subject
to the provisions of this Constitution". The above words indicate that any
law made by the Parliament in 343 exercise of the powers conferred by Article
327 would be subject to the other provisions of the Constitution including
Article 324. Article 324 as mentioned above provides that superintendence, direction
and control of elections shall be vested in Election Commission. It, therefore,
cannot be said that when the Commission issues direction, it does so not on its
own behalf but as the delegate of some other authority. It may also be
mentioned in this context that when the Central Government issued Conduct of
Elections Rules, 1961 in exercise of its powers under section 169 of the
Representation of People Act, 1951, it did so as required by that section after
consultation with the Commission.
We, therefore, find no substance in the
contention that paragraph 15 of the Symbols Order is ultra vires the powers of
the Commission.
The result is that all the four appeals fail
and are dismissed but in the circumstances without costs.
S.C. Appeals dismissed.
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