Kanhiyalal Omar Vs. R.K. Trivedi &
Ors [1985] INSC 206 (24 September 1985)
VENKATARAMIAH, E.S. (J) VENKATARAMIAH, E.S.
(J) MISRA, R.B. (J)
CITATION: 1986 AIR 111 1985 SCR Supl. (3) 1
1985 SCC (4) 628 1985 SCALE (2)1370
ACT:
Constitution of India 1950 - Articles 324 and
327 Representation of People Act 1951, Section 169 Conduct of Election Rules
1961, Rules 5 and 10 & election Symbols (Reservation and Allotment) Order
1968.
Symbols Order - Whether legislative in
character - Election Commission whether competent to issue Order.
Words & Phrases :
'Superintendence, direction and control' -
Meaning of Article 324 (1) Constitution of India 1950.
HEADNOTE:
The petitioner in his Writ Petition to this
Court challenged the Election Symbols (Reservation and Allotment) Order, 1968
contending that as it is legislative in character lt could not have been issued
by the Election Commission because the Commission is not entrusted by law the
power to issue such an Order regarding the specification, reservation and allotment
of symbols that may be chosen by the candidates at elections in parliamentary
and assembly constituencies, and that there is no provision, constitutional or
legal which justifies the recognition of political parties for the purposes of
election. It was further contended that Article 324 of the Constitution which
vests the power of superintendence, direction and control of all elections to
Parliament and to the Legislature of a State in the Election Commission cannot
be construed as conferring power on the Commission to issue the Symbols Order,
and the Central Government which had been delegated the power to make rules
under & Section 169 of the Representation of People Act, 1951 could not
further delegate the power to make any subordinate legislation in the form of
the Symbols Order to the Commission, without itself being empowered by The Act
to make such further delegation.
Dismissing the Writ Petition, 2 ^
HELD: 1. In exercise of the powers conferred
Under Article 324 of the Constitution, read with rule 5 and rule 10 of the
Conduct of Election Rules, 1961 the Election Commission of India issued the
Election Symbols (Reservation and Allotment) Order in the year 1968 for the
specification, reservation, choice and allotment of symbols, for the recognition
of political parties in relation thereto and for matters connected therewith.
[15 C-D]
2. It cannot be said that any of the
provisions of the Election Symbols (Reservation and Allotment) Order, 1968
suffers from want of authority on the part of the Election Commission which has
issued it. [16 F]
3. The power of the Election Commission to
recognise political parties and to decide disputes arising amongst them or
between splinter groups within a political party has been upheld in Sadiq Ali
v. Election Commission of India, [1972] 2 S.C.R. 318. It also upholds the power
of the Commission to issue the Symbols Order and the power to issue the Symbols
Order was held to be comprehended in the power of 'superintendence, direction
and control' of elections vested in the Election Commission. [11G; 14A]
4. Even if the powers of the Election
Commission mentioned in the Symbols Order are not traceable to the
Representation of People Act, 1951 or the Conduct of Election Rules, 1961 the
power of the Commission under Article 324(1) of the Constitution which are
plenary in character would encompass all such provisions. Article 324.
Of the Constitution operates in areas left
unoccupied by legislation and the words 'superintendence' 'direction', and
'control' as well as 'conduct of all elections' are the broadest terms which
would include the power to make all such provisions. While construing the
expression 'superintendence, direction and control' in Article 324(1), one has
to remember that every norm which lays down a rule of conduct cannot possibly
be elevated to the position of legislation or delegated legislation. There are
some authorities or persons in certain grey areas who may be sources of rules
of conduct and who at the same time cannot be equated to authorities or persons
who can make law, in the strict sense in which it is understood in
jurisprudence.
A direction may mean an Order issued to a
particular individual or a precept which many may have to follow. It may be a
specific or a general order. The source of power in this case is the
Constitution, the highest law of the land, which is the repository and source
of all legal powers and any power granted by the Constitution for a specific
purpose should be construed liberally 80 that the object for which the power is
3 All Party Hill Leaders' Conference Shillong v. Captain M.A. Sangma & Ors.
[1978] 1 S.C.R. 393, Roop Lal Sathi v.
Nachhattar Singh [1983] 1 S.C.R. 702,
Mohinder Singh Gill & Anr. v. The Chief Election Commissioner, New Delhi
& Ors.
[1978] 2 S.C.R. 272 and A.C. Jose v. Sivan
Pillai & Ors.
[1984] 3 S.C.R. 74, referred to.
5. Till recently the Constitution of India
had not expressly referred to the existence of political parties, but by the
amendments made to it by the Constitution (Fifty- Second Amendment) Act, 1985
there is now a clear recognition of political parties by the constitution. The
Tenth Schedule to the Constitution which was added by the above Amending Act
acknowledges the existence of political parties and sets out the circumstances
when a member of Parliament or of the State Legislature would be deemed to have
defected from his political party and would thereby be disqualified for being a
member of the House concerned. It is therefore, difficult to say that the
reference to recognition, registration etc.
Of political parties by the Symbols Order is
unauthorised and against the political system adopted by our country. [11 E-F]
ORIGINAL JURISDICTION: Writ Petition No.
11738 of 1985.
(Under Article 32 of the Constitution of
India).
Gobind Mukhoty, R.P.. Gupta and Miss Kirti
Gupta for the Petitioner.
The Judgment of the Court was delivered by
VENKATARAMIAH, J. In this petition filed under Article 32 of the Constitution
the petitioner challenges the constitutional validity of the Election Symbols
(Reservation and Allotment) Order, 1968 (hereinafter referred to as 'the
Symbols Order' which is issued by the Election Commission (hereinafter referred
to as 'the Commission'). The principal contention urged by the petitioner in
support of his contention is that the Symbols Order which is legislative in
character could not have been issued by the Commission because the commission
is not entrusted by law the power to issue such an order regarding the
specification, reservation and allotment of symbols that may be chosen by the
candidates at elections in parliamentary and assembly constituencies. It is
further urged that Article 324 of the Constitution which vests the power of
superintendence, direction 4 and control of all elections to Parliament and to
the Legislature of a State in the Commission cannot be construed as conferring
the power on the Commission to issue the Symbols Order .
It is necessary to set out the relevant
provisions of law having a bearing on the above question at the outset for a
proper appreciation of the contentions urged on behalf of the petitioner.
Article 324 (1) of the Constitution reads thus:
"324.(1) The superintendence, direction
and control of the preparation of the electoral rolls for, and the conduct of,
all elections to Parliament and to the Legislature of every State and of
elections to the offices of President and Vice-President held under this
Constitution shall be vested in a Commission (referred to in this Constitution
as the Election Commission).
Articles 327 and 328 of the Constitution
which vest the power of making provisions with respect to elections on
Parliament and the Legislatures in the States read as follows :
"327. Subject to the provisions of this
Constitution, Parliament may from time to time by law make provision with
respect to all matters relating to, or in connection with, elections to either
House of Parliament or to the House or either House of the Legislature of, a
State including the preparation of electoral rolls, the delimitation of constituencies
and all other matters necessary for securing the due constitution of such House
or Houses.
328. Subject to the provisions of this
Constitution and in 80 far as provision in that behalf is not made by
Parliament, the Legislature of a State may from time to time by law make
provision with respect to all matters relating to, or in connection with, the
elections to the House or either House of the Legislature of the State
including the preparation of electoral rolls and all other matters necessary for
securing the due constitution of such House or Houses." Article 327 of the
Constitution confers the power on Parliament to make by law provision with
respect to all matters 5 relating to, or in connection with, elections to
either House of Parliament or to the House or either House of the Legislature
of a State including the preparation of electoral rolls, the delimitation of
constituencies and all other matters necessary for securing the due
constitution of such House or Houses subject to the provisions of the
Constitution. Article 328 of the Constitution confers similar power on the
Legislature of a State to make provision with respect to all matters relating
to, or in connection with, the elections to the House or either House of the
Legislature of the State including the preparation of electoral rolls and all
other matters necessary for securing the due constitution of such House or
Houses subject to the provisions of the Constitution and in so far as provision
in that behalf is not made by Parliament. In exercise of the power conferred by
Article 327 of the Constitution Parliament has enacted the Representation of
the People Act, 1951 (43 of 1951) (hereinafter referred to as 'the Act')
providing for the conduct of elections to the Houses of Parliament and to the
House or Houses of the Legislature of each State, the qualifications and
disqualifications for membership of those Houses, the corrupt practices and
other offences at or in connection with such elections and the decision of
doubts and disputes arising out of or in connection with such elections.
Section 169 of the Act empowers the Central Government to promulgate rules,
after consultation with the Commission, for carrying out the purposes of the
Act. In exercise of the said power the Central Government has promulgated the
Conduct of Elections Rules, 1961 (hereinafter referred to as the 'the Rules').
Rules 5 and 10 of the Rules which are
material for the purposes of this case read thus:
5. Symbols for elections in parliamentary and
assembly constituencies - (1) The Election Commission shall, by notification in
the Gazette of India, and in the Official Gazette of each State, specify the
symbols that may be chosen by candidates at elections in Parliamentary or
assembly constituencies and the restrictions to which their choice shall be
subject.
(2) Subject to any general or special
direction issued by the Election Commission either under sub-rule (4) or
sub-rule (5) of rule 10, where at any such election, more nomination papers
than one are delivered by or on behalf of a candidate, the declaration as to
symbols made in the nomination paper first delivered, and no other declaration
as to 6 symbols shall be taken into consideration under rule 10 even if that
nomination paper has been rejected.
10. Preparation of list of contesting
candidates (4) At an election in a parliamentary or assembly constituency,
where a poll becomes necessary, the returning officer shall consider the choice
of symbols expressed by the contesting candidates in their nomination papers
and shall, subject to any general or special direction issued in this behalf by
the Election Commission - (a) allot a different symbol to each contesting
candidate in conformity, as far as practicable, with his choice; and (b) if
more contesting candidates than one have indicated their preference for the
same symbol, decide by lot to which of such candidates the symbol will be
allotted.
(5) The allotment by the returning officer of
any symbol to a candidate shall be final except where it is inconsistent with
any directions issued by the Election Commission in this behalf in which case
the Election Commission may revise the allotment in such manner as it thinks
fit.
(6) Every candidate or his election agent
shall forth with be informed of the symbol allotted to the candidate and be
supplied with a specimen thereof by the returning officer." Sub-rule (1)
of rule 5 of the Rules empowers the commission to specify by a notification in
the Gazette of India and in the Official Gazette of each State, the symbols
that may be chosen by candidates at elections in Parliamentary or assembly
constituencies and the restrictions to which their choice shall be subject.
Sub- rule (4) of rule 10 of the Rules provides that at an election in a
parliamentary or assembly constituency, where a poll becomes necessary, the
returning officer shall consider the choice of symbols expressed by the
contesting candidates in their nomination papers and shall subject to any
general or special direction issued in this behalf by the Commission allot a 7
different symbol to each contesting candidate in conformity, as far as
practicable, with his choice and if more contesting candidates than one have
indicated their preference for the same symbol, decide by lot to which of such
candidates the symbol will be allotted. Sub-rule (5) of rule 10 of the Rules
provides that the allotment by returning officer of any symbol to a candidate
shall be final except where it is inconsistent with any directions issued by
the Commission in this behalf in which case the Commission may revise the
allotment in such manner as it thinks fit. Under sub-rule (6) of rule 10 of the
Rules every candidate or his election agent should be informed forthwith the
symbol allotted to the candidate and is entitled to be supplied with a specimen
thereof. Purporting to exercise its power under Article 324 of the Constitution
read with rule 5 and rule 10 of the Rules, the Commission issued the symbols
Order in the year 1968 which is impugned in this petition.
The Preamble to the Symbols Order reads thus
:
"S.O. 2959 dated 31st August, 1968 -
Whereas the superintendence, direction and control of all elections to
Parliament and to the Legislature of every State are vested by the Constitution
of India in the Election Commission of India;
And, whereas, it is necessary and expedient
to provide in the interests of purity of election to the House of the People
and the Legislative Assembly of every State and in the interests of the conduct
of-such elections in a fair and efficient manner, for the specification,
reservation, choice and allotment of symbols, for the recognition of political
parties in relation thereto and for matters connected therewith.
Now, therefore, in exercise of the powers
conferred by Article 324 of the Constitution, read with rule 5 and rule 10 of
the Conduct of Elections Rules, 1961, and all other powers enabling it in this
behalf, the Election Commission of India hereby makes the following
Order." The expression 'political party' is defined in Paragraph 2(1)(h)
of the Symbols Order thus :
2.(1)(h) - 'Political party' means an
association or body of individual citizens of India registered with the
Commission as a political party under paragraph 3 8 and includes a political
party deemed to be registered with the Commission under the proviso of
sub-paragraph (2) of that paragraph;" Paragraph 3 of the Symbols Order
provides that any association or body of individual citizens of India calling
itself a political party and intending to avail itself of the provisions of the
Symbols Order shall make an application to the Commission for its registration
as a party for the purposes of the Symbols Order. Sub-paragraphs (2), (3) and
(4) of paragraph 3 of the Symbols Order provide for the manner in which such
applications should be made by associations and bodies calling themselves as
political parties for registration with the Commission. m at paragraph empowers
the Commission to consider all relevant particulars and to decide whether the
association or body should be registered as a political party or not and its
decision in that regard is stated to be final. Paragraph 4 of the Symbols Order
provides that in every contested election a symbol shall be allotted to a
contesting candidate in accordance with the provisions of the Symbols Order and
different symbols shall be allotted to different contesting candidates at an
election in the same constituency. m e symbols specified by the Commission are
classified into two categories by paragraph 5 of the Symbols Order. They are
either reserved or free. A reserved symbol is a symbol which is reserved for a
recognised political party for exclusive allotment to contesting candidates set
up by that party. A free symbol is a symbol other than a reserved symbol
Paragraph 6 of the Symbols Order provides for the classification of the
political parties, into recognised political parties and unrecognised political
parties. Amongst the recognised political parties according to the Symbols
Order there are two categories, namely, national parties and the State parties.
The Symbols Order further provides for the determination of the question
whether a candidate has been set up by a political party or not. It deals with
the power of the Commission to issue instructions to unrecognised political
parties for their expeditious recognition on fulfillment of conditions
specified in paragraph 6. The power of the commission in relation to splinter
groups or rival sections of the recognised political party and its power in
case of amalgamation of two or more political parties are dealt with in
paragraphs 15 and 16 of the Symbols Order. Under paragraph 17 of the Symbols
Order the Commission is required to publish by one or more notifications in the
Gazette of India lists specifying the national parties and the symbols
respectively reserved for them, the State parties, the State or States in which
they are 9 State parties and the symbols respectively reserved for them in such
State or States, unrecognised political parties and the State or States in
which they function and the free symbols for each State. Every such list is
required to be kept up-to-date, as far as possible. Under paragraph 18 of the
Symbols Order the Commission has reserved to itself the power to issue
instructions and directions for the clarification of any of the provisions of
the Symbols Order, for the removal of any difficulty which may arise in
relation to the implementation of any such provisions and in relation to any
matter with respect to the reservation and allotment of symbols and recognition
of political parties, for which the Symbols Order makes no provision or makes
insufficient provision and provision is in the opinion of the Commission
necessary for the smooth and orderly conduct of elections.
The petitioner claims to be a convener of a social
organisation named "SAPRYA" situated at 67/68, Daulat Ganj, Kanpur
(U.P.) which is stated to have been established for the purposes of propagating
'National truth' and for acquainting the people of India about the ideals
cherished by it. The petitioner is aggrieved by the emergence of a large number
of political parties at the national level and at the State level which
according to him has prejudiced seriously the ideals of a democratic country.
He has referred in the course of the petition to the various acts committed by
the several political parties which according to him are highly detrimental to
the interests of the country. He contends that the emergence of these political
parties is due to the provisions contained in the Symbols Order which provides
for the registration of political parties, reservation and allotment of symbols
in favour of various political parties. It is contended by the petitioner that
the Symbols Order is liable to be struck down on the ground that the Commission
is not empowered to issue it either under the Constitution or the Act and the
Rules made thereunder. It is his contention that there is no provision,
constitutional or legal, which justifies the recognition of political parties
for purpose of elections.
The constitutional scheme with regard to the
holding of the elections to Parliament and the State Legislatures is quite
clear. First, the Constitution has provided for the establishment of a high
power body to be incharge of the elections to Parliament and the State Legislatures
and of elections to the offices of President and Vice President.
That body is the Commission. Article 324 of
the Constitution contains detailed 10 provisions regarding the constitution of
the Commission and its general powers. The Commission consists of the Chief
Election Commissioner who is appointed by the President and it may also consist
such number of other Election Commissioners, if any, as the President may from
time to time fix, who are also to be appointed by the President.
When Election Commissioners are appointed,
the Chief Election Commissioner becomes the Chairman of the Commission. There
is provision for the appointment of Regional Commissioners to assist the
Commission. In order to ensure the independence and impartiality of the
Commission, it is provided that the Chief Election Commissioner shall not be
removed from his office except in like manner and on the like grounds as a
Judge of the Supreme Court of India and that the conditions of service of the
Chief Election Commissioner shall not be varied to his disadvantage after his
appointment. An Election Commissioner or a Regional Commissioner cannot be
removed from office except on the recommendation of the Chief Election
Commissioner. The superintendence, direction and control of the conduct of
elections referred to in Article 324(1) of the Constitution are entrusted to
the Commission. The words 'superintendence', 'direction' and 'control' are wide
enough to include all powers necessary for the smooth conduct of elections. It is,
however, seen that Parliament has been vested with the power to make law under
Article 327 of the Constitution read with Entry 72 of List I of the Seventh
Schedule to the Constitution with respect to all matters relating to the
elections to either House of Parliament or to the House or either House of the
Legislature of a State subject to the provisions of the Constitution. Subject
to the provisions of the Constitution and any law made in that behalf by
Parliament, the Legislature of a State may under Article 328 read with Entry 37
of List II of the Seventh Schedule to the Constitution make law relating to the
elections to the House or Houses of Legislature of that State. The general
powers of superintendence, direction and control of the elections vested in the
Commission under Article 324(1) naturally are subject to any law made either
under Article 327 or under Article 328 of the Constitution.
The word 'election' in Article 324 is used in
a wide sense so as to include the entire process of election which consists of
several stages and it embraces many steps, some of which may have an important
bearing on the result of the process. India is a country which consists of
millions of voters. Although they are quite conscious of their duties
politically, unfortunately, a large percentage of them are still illiterate.
Hence there is need for using symbols to denote the candidates who contest
elections so that the illiterate voter 11 may cast his vote in secrecy in
favour of the candidate of his choice by identifying him with the help of the
symbol printed on the ballot paper against his name.
It is true that till recently the
Constitution did not expressly refer to the existence of political parties. But
their existence is implicit in the nature of democratic form of Government
which our country has adopted. The use of a symbol, be it a donkey or an
elephant, does give rise to an unifying effect amongst the people with a common
political and economic programme and ultimately helps in the establishment of a
Westminster type of democracy which we have adopted with a Cabinet responsible
to the elected representatives of the people who constitute the Lower House.
The political parties have to be there if the present system of Government
should succeed and the chasm dividing the political parties should be so
profound that a change of administration would in fact be a revolution
disguised under a constitutional procedure. It is no doubt a paradox that while
the country as a whole yields to no other in its corporate sense of unity and
continuity, the working parts of its political system are so organized on party
basis in other words on systematized differences and unresolved conflicts. That
is the essence of our system and it facilitates the setting up of a Government by
the majority.
Although till recently the Constitution had
not expressly referred to the existence of political parties, by the amendments
made to it by the Constitution (Fifty-Second Amendment) Act, 1985 there is now
a clear recognition of the political parties by the Constitution. The Tenth
Schedule to the Constitution which is added by the above amending Act
acknowledges the existence of political parties and sets out the circumstances
when a member of Parliament or of the State Legislature would be deemed to have
defected from his political party and would thereby be disqualified for being a
member of the House concerned. Hence it is difficult to say that the reference
to recognition, registration etc. of political parties by the Symbols Order is
unauthorised and against the political system adopted by our country.
Paragraph 15 of the Symbols Order which dealt
with the power of the Commission in relation to splinter groups or rival
sections of a recognised political party came up for consideration before this
Court in Sadiq Ali & Anr. etc. v. Election Commission of India & Ors.
etc. [1972] 2 S.C.R.
318.
The Court observed in that case at pages
341-343 thus:
12 "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. m e allotment of symbols by the Returning
Officers has to be in accordance with those directions. Sub-rule (5) of rule 10
gives power to the Commission to revise the allotment of a symbol by the
Returning Officers in 80 far as the said allotment is inconsistent with the
directions issued by the Commission. It would, there fore, 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
para graph 15. Paragraph 15 is intended to effectuate and subserve the main
purposes and objects of the Symbols Order. me 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. m e 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 13 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 offices 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. m e 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 exercise of 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 when the Commission issued 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.
The above decision upholds the power of the
commission to recognise political parties and to decide disputes arising
amongst them or between splinter groups within a political party. It also
upholds the power of the Commission to issue the Symbols Order. m e Court has
further observed that it could not be said that when the Commission issued the
Symbols Order it was not doing so on its own behalf but as the delegate of some
other 14 authority. m e power to issue the Symbols Order was held to be
comprehended in the power of superintendence, direction and control of
elections vested in the commission.
Over-ruling the objection raised as to the
validity of the Symbols Order on the ground that it was legislative in
character and the Commission had no power to issue it in the absence of
entrustment of the power to make a law in relation to elections, this Court
observed in All Party Hill Leaders' Conference, Shillong v. Captain M.A. Sangma
& Ors.
[1978] 1 S.C.R. 393, at page 408 thus:
"It is not necessary in this appeal to
deal with the question whether the Symbols Order made by the Commission is a
piece of legislative activity. It is enough to hold, which we do, that the
Commission is empowered in its own right under Article 324 of the Constitution
and also under rules 5 and 10 of the Rules to make directions in general in
widest terms necessary and also in specific cases in order to facilitate a free
and fair election with promptitude. It is, therefore, legitimate on the part of
the Commission to make general provisions even in anticipation or in the light
of experience in respect of matters relating to symbols. m at would also
inevitably require it to regulate its own procedure in dealing with disputes
regarding choice of symbols when raised before it. Further that would also
sometimes inevitably lead to adjudication of disputes with regard to
recognition of parties or rival claims to a particular symbol. The Symbols
Order is, therefore, a compendium of directions in the shape of general provisions
to meet various kinds of situations appertaining to elections with particular
reference to symbols. The power to make these directions, whether it is a
legislative activity or not, flows from Article 324 as well as from rules 5 and
10. It was held in Sadiq Ali (Supra) that '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'. It has been 15 held in Sadiq Ali (Supra)
that the Commission has been clothed with plenary powers by rule 5 and
sub-rules (4) and (5) of rule 10 of the Rules in the matter of allotment of
symbols.
In Roop Lal Sathi v. Nachhattar Singh, [1983]
1 S.C.R.
702, the same view is reiterated. The Court
observed in this case at page 719 as follows :
"The Symbols Order made by the Election
Commission in exercise of its power under Article 324 of the Constitution read
with rules 5 and 10 of the Conduct of Elections Rules and all other powers
enabling it in that behalf, are in the nature of general directions issued by
the Election Commission to regulate the mode of allotment of symbols to the
contesting candidates. It is a matter of common knowledge that elections in our
country are fought on the basis of symbols. It must but logically follow as a
necessary corollary that the Symbols Order is an order made under the Act. Any
other view would be destructive of the very fabric of our system of holding
parliamentary and assembly constituency elections in the country on the basis
of adult suffrage." Even if for any reason, it is held that any of the
provisions contained in the Symbols Order are not traceable to the Act or the
Rules, the power of the Commission under Article 324(1) of the Constitution
which is plenary in character can encompass all such provisions, Article 324 of
the Constitution operates in areas left unoccupied by legislation and the words
'superintendence', 'direction' and 'control' as well as 'conduct of all
elections' are the broadest terms which would include the power to make all
such provisions. (See Mohinder Singh Gill & Anr. v. The Chief Election
Commissioner, New Delhi & Ors. [1978] 2 S.C.R. 272, and A.C. Jose v. Sivan
Pillai & Ors. [1984] 3 S.C.R. 74.) We do not also find any substance in the
contention that the Central Government which had been delegated the power to
make rules under section 169 of the Act could not further delegate the power to
made any subordinate legislation in the form of the Symbols Order to the
Commission, without itself being empowered by the Act to such further
delegation. Any part of the Symbols Order which cannot be traced to rules 5 and
10 of the Rules can 16 easily be traced in this case to the reservoir of power
under Article 324(1) which empowers the Commission to issue all directions
necessary for the purpose of conducting smooth, free and fair elections. Our
attention is not drawn by the learned counsel for the petitioner to any
specific provision in the Symbols Order which cannot be brought within the
scope of either rule 5 or rule 10 of the Rules or Article 324(1) of the Constitution
and which is hit by the principle delegatus non pottes delegare, i.e. a
delegate cannot delegate, the Commission itself in this case being a donee of
plenary powers under Article 324 (1) of the Constitution in connection with the
conduct of elections referred to therein subject of course to any legislation
made under Article 327 and Article 328 of the Constitution read with Entry 72
in List I or Entry 37 in List II of the Seventh Schedule to the Constitution
and the rules made thereunder. While construing the expression
'superintendence', 'direction and control' in Article 324(1), one has to
remember that every norm which lays down a rule of conduct cannot possibly be
elevated to the position of legislation or delegated legislation. There are some
authorities or persons in certain grey areas who may be sources of rules of
conduct and who at the same time cannot be equated to authorities or persons
who can make law, in the strict sense in which it is understood in
jurisprudence.
A direction may mean an order issued to a
particular individual or a precept which many may have to follow. It may be a
specific or a general order. One has also to remember that the source of power
in this case is the Constitution, the highest law of the land, which is the
repository and source of all legal powers and any power granted by the
Constitution for a specific purpose should be construed liberally so that the
object for which the power is granted is effectively achieved. Viewed from this
angle it cannot be said that any of the provisions of the Symbols Order suffers
from want of authority on the part of the Commission, which has issued it.
We are not satisfied with the submission that
the several evils, malpractices etc. which are alleged to be existing amongst
the political parties today are due to the Symbols Order which recognises
political parties and provides for their registration etc. m e reasons for the
existence of such evils, malpractices etc. are to be found elsewhere. The surer
remedy for getting rid of those evils malpractices etc. is to appeal to the
conscience of the nation. We cannot, however, set aside the Symbols Order on
the grounds alleged in the petition.
We dismiss the petition accordingly.
N.V.K. Petition dismissed.
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