Indian
National Congress (I) Vs. Institute of Social Welfare & Ors [2002] Insc 270 (10 May 2002)
V.N.
Khare & Ashok Bhan V. N. Khare, J.
(with C.A. Nos. 3322-3323/2001, Contempt Petition Nos.
334-335/2000in C.A. Nos.3320-3321/2001 and C.A. Nos. 3324 and 3325/2001)
The
foremost question that arises in this group of appeals is whether the Election
Commission of India under Section 29A of the Representation of the People Act,
1951 (hereinafter referred to as the 'Act') has power to de-register or cancel
the registration of a political party on the ground that it has called for hartal
by force, intimidation or coercion and thereby violated the provisions of the
Constitution of India.
The
aforesaid question has arisen out of the directions issued by the High Court of
Kerala on the writ petitions filed for enforcement of decision in the case of
Communist Party of India (Marxist) vs. Bharat Kumar & Ors. AIR (1998) SC
184 wherein it was held that "there is a distinction between 'bundh' and 'hartal'.
A call for a bundh involves coercion of others into towing the lines of those
who called for the bundh and that the act was unconstitutional, since it
violated the rights and liberty of other citizens guaranteed under the
Constitution".
In the
writ petitions filed before the High Court it was alleged that despite the law
having been declared by the Supreme Court that calling of a bundh is
unconstitutional, the political parties in the State of Kerala continued to call bundh under the
name and cover of hartal. It was prayed that direction be issued to the
government of Kerala for taking appropriate measures to give effect to the
declaration of law by the Supreme Court in the case of Communist Party of India
(supra). The High Court from time to time issued orders and in compliance
thereof, the Chief Secretary as well as Director General of Police issued
necessary orders, but such directions proved ineffective and the political
parties continued to give call for bundh in the name of hartal. It was also
alleged that some of the writ petitioners submitted representations to the
Election Commission of India for taking necessary proceedings against the
registered political parties for de- registration as they had contravened the
provisions of the Constitution, but no action has been taken by the Election
Commission in that regard. In one of the writ petitions one of the reliefs
sought for with which we are concerned in this group of appeals, was to issue a
direction to the Election Commission of India to take action against the registered
political parties for violation of their undertaking that they will abide by
the Constitution. In nutshell, the case of the writ petitioners before the High
Court was that by holding a hartal and enforcing it by force, threat and
coercion, there is the performance of an unconstitutional act and one of the
clear and definite ways of preventing such unconstitutional activity on the
part of political parties registered under the Representation of the People Act
is to take steps for their de-registration on the ground of violation of the
Constitution of India.
In the
said writ petitions, the Communist Party of India (Marxist) filed counter
affidavit and stated therein that they did not give call for a bundh and, in
fact, the call given by them was for a hartal. It is also stated therein that
at the call for hartal, it was optional for every citizen either to open or
close their shops and in fact there was only an appeal to public to join the hartal
and further there was no element of compulsion in the appeal and, therefore,
the Communist Party of India (Marxist) did not violate either the provisions of
the Constitution or decision rendered by the Supreme Court in the case of
Communist Party of India vs. Bharat Kumar (supra). Indian National Congress (I)
also filed a counter affidavit submitting that the call for hartal given by
them was not a bundh. It was also stated therein that giving a call for hartal
was a part freedom of speech and expression protected under Article 19(1)(a) of
the constitution and it was merely a device to elicit the support of the people
towards their specific issues highlighted by political parties, organisation
and also to inform and educate the public regarding specific problems affecting
their day to day life. It was also stated that the State can take preventive
measures in case there is any violence or interference of constitutional or
legal rights of the citizens.
The
Election Commission of India also filed its return and stated therein that it
does not have power to de-register or cancel the registration of a political
party under Section 29A of the Act. It was also stated by the Election
Commission that similar matter arose before it in a petition filed by Shri Arjun
Singh and others seeking de-registration of the Bharatya Janata Party as a
political party and also freezing of its reserved symbol 'LOTUS' and the
Election Commission of India by its order dated 19.2.92 rejected the petition
after having found that it does not have power under Section 29A of the Act to
de-register a registered political party. It was also brought to the notice of
the High Court that the decision of the Election Commission of India was also
tested by filing a special leave petition before the Supreme Court, but the
same was dismissed on 28.8.92. In that view of the matter, no direction can be
issued by the High Court to the Election Commission of India to take any
proceeding for de-registration of a registered political party for having
violated the constitutional provisions.
The
High Court was of the view that mere giving a call for a hartal or advocating
of it as understood in the strict sense cannot be held to be illegal in the
context of the decision in Communist Party of India vs. Bharat Kumar (supra).
However, the moment a hartal seeks to impinge the right of others it ceases to
be a hartal in a real sense of the freedom and really turns out a violent
demonstration affecting the rights of others and such an act has to be
curtailed at the instance of other citizens whose rights are affected by such
an illegal act. The High Court, as a matter of fact, found that what was called
a hartal was not what was strictly meant by that term, but a form of a bundh
involving intimidation and coercion of those who do not want to respond to the
call or participate in it. The High Court after having found that the political
parties have contravened the constitutional provisions of guaranteed freedom to
the citizens, they are liable to be appropriately dealt with. In that context,
the High Court was of the view that although Section 29A of the Act expressly
does not empower the Election Commission of India to de-register a registered
political party for having contravened the provisions of the Constitution, but
on application of Section 21 of the General Clauses Act, the Election
Commission of India has power on a complaint filed with it, to initiate
proceedings for de-registration against a political party for having violated
the constitutional provisions and after giving opportunity to such political
parties, if it is found that they have committed breach of the provisions of
the Constitution, the Election Commission of India has power to de-register or
cancel the registration of such political parties. The High Court distinguished
the summary dismissal of the special leave petition No. 8738/1992 filed by Shri
Arjun Singh against Bharatiya Janata Party and another by the appex Court on
28.8.92 on the ground that dismissal of a special leave petition without any
reason is not binding as it does not lay down law within the meaning of Art. 141
of the Constitution.
In the
aforesaid view of the matter, the High Court while allowing the writ petitions
passed the following orders:
"
i. We declare that the enforcement of a hartal call by force, intimidation,
physical or mental and coercion would amount to an unconstitutional act and
party or a hartal has no right to enforce it by resorting to force or
intimation.
ii. We
direct the State, Chief Secretary to the State, Director General of Police and
all the administrative authorities and police officers in the State to
implement strictly the directives issued by the directions given by the
Director General of Police dated 4.2.1999 and set out fully in the earlier part
of this judgment.
iii.
We issue a writ of mandamus to the Election Commission to entertain complaints,
if made, of violation of Section 29A(5) of the Representation of the People
Act, 1951 by any of the registered political parties or associations, and after
a fair hearing, to take a decision thereon for de-registration or cancellation
of registration of that party or organisation, if it is warranted by the
circumstances of the case.
iv. We
issue a writ of mandamus directing the Election Commission to consider and
dispose of in accordance with law, the Representation Ext. P9 in o.p. 20641 of
1998, after giving all the affected parties an opportunity of being heard.
v. We
direct the state of Kerala, the Chief Secretary to the Government, the Director
General of Police and all other officers of the State to take all necessary
steps at all necessary times, to give effect to this judgment.
vi. We
direct the State, District Collectors, all other officers of the State and
Corporations owned or controlled by the State to take immediate and prompt
action, for recovery of damages in cases where pursuant to a call for hartal,
public property or property belonging to the corporation is damaged or
destroyed, from the perpetrators of the acts leading to destruction/damage and
those who have issued the call for hartal." It is against the aforesaid
decision of the High Court these appeals have been filed by way of separate
special leave petitions.
We
have heard Shri Ashwani Kumar, learned senior counsel appearing for the Indian
National Congress (I), Shri Soli J. Sorabjee, learned Attorney General
appearing for the Union of India, Shri S. Muralidhar, learned counsel,
appearing for Election Commission of India, Shri Rajeev Dhavan, learned senior
counsel and Shri B.K. Pal, learned counsel appearing for Communist Party of
India (Marxist) and Communist Party of India, respectively, and Shri L Nageswara
Rao, learned senior counsel appearing for the writ petitioners respondents.
Shri Soli
J. Sorabjee, learned Attorney General and other learned counsel for the
appellants appearing in other connected civil appeals stated that these appeals
are pressed only against direction Nos. (iii) and (iv) given by the High Court
to the Election Commission of India.
Learned
counsel appearing for the appellants, inter alia, argued - - that there being
no express provision in the Act to cancel the registration of a political party
under Section 29A of the Act, and as such no proceedings can be taken by the
Election Commission of India against a political party for having violated the
provisions of the Constitution;
- that
the Election Commission of India while exercising the power to register a
political party under Section 29A of the Act acts quasi-judicially and once a
political party is registered, no power of review having been conferred on the
Election Commission of India, the Election Commission has no power to
de-register a political party for having violated the provisions of the
Constitution or committed breach of undertaking given to the Election
Commission at the time of its registration;
- and
that the view taken by the High Court that since the Election Commission has
power to register a political party under Section 29A of the Act, it is equally
empowered to revoke or rescind the order of registration on application of
Section 21 of the General Clauses Act is erroneous.
Learned
counsel appearing for the respondent supported the judgment of the High Court
and argued that the appeals deserve dismissal.
Before
we advert to the arguments raised by learned counsel for the parties it is
necessary to refer to relevant provisions of the Act and rules framed thereunder
and the provisions of the Election Symbols (Reservation and Allotment) Order,
1968 (hereinafter referred to as the 'Symbols Order') framed by the Election
Commission in exercise of its power under Article 324 of the Constitution to
find out whether the Election Commission has power to de-register a registered
political party.
By the
Representation of the People (Amendment ) Act, 1988 (1 of 1989), Section 29A
was inserted in the Act. The Statement of Objects and Reasons appended to the
Bill which was introduced in the Parliament and subsequently was converted into
an Act, runs as under :
"
At present, there is no statutory definition of political party in the Election
Law. The recognition of a political party and the allotment of symbols for each
party are presently regulated under the Election Symbols (Reservation and
Allotment) Order, 1968. It is felt that the Election Law should define
political party and lay down procedure for its registration. It is also felt
that the political parties should be required to include a specific provision
in the memorandum or rules and regulations governing their functioning that
they would fully be committed to and abide by the principles enshrined in the
preamble to the Constitution".
Before
Section 29A of the Act came into force, the political parties were registered
under the Election (Reservation and Allotment) Symbols Order 1968 (hereinafter
referred to as the 'Symbols Order) read with Rules 5 and 10 of the Conduct of
Election Rules. Paragraph 3 of the Symbols Order as it existed prior to coming
into force Section 29A of the Act, runs as under:
"
3. Registration with the Commission of associations and bodies as political
parties for the purposes of this Order –
(1)
Any association or body of individual citizens of India calling itself a political party
and intending to avail itself of the provisions of this Order shall make an
application to the Commission for its registration as a political party for the
purposes of this Order.
(2)
Such application shall be made –
(a) if
the association or body is in existence at the commencement of this Order,
within sixty days next following such commencement:
(b) if
the association or body is formed after the commencement of this Order, within
sixty days next following the date of its formation:
Provided
that no such application for registration shall be necessary on the part of any
political party which immediately before the commencement of this Order is
either a multi-state party or a recognised party other than a multi-state party
and every such party shall be deemed to be registered with the Commission as a
political party for the purposes of this Order.
(3)
Every application under sub-paragraph (1) shall be signed by the chief
executive officer of the association or body (whether such chief executive
officer is known as Secretary or by any other designation) and either presented
to a Secretary to the Commission or sent to such Secretary by registered post.
(4)
Every such application shall contain the following particulars, namely :-
(a) the
name of the association or body;
(b) the
State in which its head office is situated;
(c) the
address to which letters and other communications meant for it should be sent;
(d) the
names of its president, secretary and all other office-bearers;
(e) the
numerical strength of its members, and if there are categories of its members,
the numerical strength in each category;
(f)
whether it has any local units; if so, at what levels (such as district level, thana
or block level), village level, and the like);
(g) the
political principles on which it is based;
(h) the
policies, aims and objects it pursues or seeks to pursue;
(i) its
programs, functions and activities for the purpose of carrying out its
political principles, policies, aims and objects;
(j) its
relationship with the electors and popular support it enjoys, and tangible
proof, if any, of such relationship and support;
(k) whether
it is represented by any member or members in the House of the People or any
State Legislative Assembly, if so, the number of such member or members;
(l) any
other particulars which the association or body make like to mention.
(5)
The Commission may call for such other particulars as it may deem fit from the
association or body.
(6)
After considering all the particulars as aforesaid in its possession and any
other necessary and relevant factors and after giving the representatives of
the association or body reasonable opportunity of being heard, the Commission
shall decide either to register the association or body as a political party
for the purposes of this Order, or not so to register it; and the Commission
shall communicate its decision to the association or body.
(7)
The decision of the Commission shall be final;
(8)
After an association or body has been registered as a political party as
aforesaid, any change in its name, head office, office-bearers, address or
political principles, polices, aims and objects and any change in any other
material matters shall be communicated to the Commission without delay."
Section 29A of the Act runs as under:
"29A.
Registration with the Election Commission of association and bodies as
political parties (1) Any association or body of individual citizens of India
calling itself a political party and intending to avail itself of provisions of
this Part shall make an application to the Election Commission for its
registration as a political party for the purposes of this Act.
(2)
Every such application shall be made - (a) if the association or body is in
existence at the commencement of the Representation of the People (Amendment)
Act, 1988, (1 of 1989) , within sixty days next following such commencement:
(b) if
the association or body is formed after such commencement, within thirty days
next following the date of its formation:
(3)
Every application under sub-section (1) shall be signed by the chief executive
officer of the association or body (whether such chief executive officer is
known as Secretary or by any other designation) and presented to the Secretary
to the Commission or sent to such Secretary by registered post.
(4)
Every such application shall contain the following particulars, namely :- (a)
the name of the association or body;
(b) the
State in which its head office is situated;
(c) the
address to which letters and other communications meant for it should be sent;
(d) the
names of its president, secretary, treasurer and other office-bearers;
(e) the
numerical strength of its members, and if there are categories of its members,
the numerical strength in each category;
(f))
whether it has any local units; if so, at what levels;
(g) whether
it is represented by any member or members in either House of Parliament or of
any State Legislature; if so, the number of such member or members.
(5)
The application under sub-section (1) shall be accompanied by a copy of the
memorandum or rules and regulations of the association or body, by whatever
name called, and such memorandum or rules and regulations shall contain a
specific provision that the association or body shall bear true faith and
allegiance to the Constitution of India as by law established, and to the
principles of socialism, secularism and democracy, and would uphold the
sovereignty, unity and integrity of India.
(6) The
Commission may call for such other particulars as it may deem fit from the
association or body.
(7)
After considering all the particulars as aforesaid in its possession and any
other necessary and relevant factors and after giving the representatives of
the association or body reasonable opportunity of being heard, the Commission
shall decide either to register the association or body as a political party
for the purposes of this Part, or not so to register it; and the Commission
shall communicate its decision to the association or body:
Provided
that no association or body shall be registered as a political party under this
sub-section unless the memorandum or rules and regulations of such association
or body conform to the provisions of sub- section (5).
(8)
The decision of the Commission shall be final;
(9)
After an association or body has been registered as a political party as
aforesaid, any change in its name, head office, office-bearers, address or in
any other material matters shall be communicated to the Commission without
delay." A conjoint reading of Section 29A and paragraph 3 of the Symbols
Order as it existed prior to enforcement of Section 29A of the Act shows that
there were only two significant changes and other provisions remained the same.
The first change is reflected in sub-section (5) of Section 29A of the Act
which provides that the application for registration shall be accompanied by a
copy of memorandum or rules and regulations of the political party seeking
registration under the Act and such memorandum or rules and regulations shall
contain a specific provision that such a political party shall bear true faith
and allegiance to the Constitution of India, as by law established and to the
principles of socialism, secularism and democracy and would uphold the
sovereignty, unity and integrity of India. The second change is reflected in
sub-section (4) of Section 29A of the Act which embodied in it, the provisions
of different clauses of sub-paragraph (4) of paragraph 3 of the Symbols Order.
After
Section 29A of the Act came into force, paragraph 3 of the Symbols Order stood
amended inasmuch as the definition of a political party in paragraph 2(1) (4)
of the Symbols Order was also amended. Earlier, under paragraph 3 of the
Symbols Order, a political party was defined as a registered party. After
Section 29A was inserted in the Act, the definition of a political party in the
Symbols Order was amended to the effect that the political party means a party
registered with the Election Commission under Section 29A of the Act.
Consequently, paragraph 3 of the Symbols Order was also amended to the extent
it prescribed additional information which a political party was required to
furnish to the Election Commission along with an application for registration.
Now such additional information the Election Commission is authorised to call
for under sub-section (6) of Section 29A of the Act. A perusal of un-amended
paragraph 3 of the Symbols Order shows that it did not provide for
de-registration of a political party registered under the Symbols Order. Nor
any such provision was made after the Symbols Order was amended after Section
29A was inserted in the Act. Further, neither the provisions of Section 29A of
the Act nor the rules framed thereunder, provide for de-registration or
cancellation of registration of a political party. We are, therefore, of the
view that neither under the Symbols Order nor under Section 29A of the Act, the
Election Commission has been conferred with any express power to de-register a
political party registered under Section 29A of the Act on the ground that it
has either violated the provisions of the Constitution or any provision of
undertaking given before the Election Commission at the time of its
registration.
The
question then arises whether, in the absence of an express power in the Act,
the Election Commission is empowered to de-register a registered political
party. Learned Attorney General, appearing for the Union of India urged that
the Election Commission while exercising its power under Section 29A of the
Act, acts quasi-judicially and in absence of any express power of review having
been conferred on the Election Commission, the Election Commission has no power
to de-register a political party.
According
to learned Attorney General, excepting in three circumstances when the Election
Commission could not be deprived of the power to de- register a party are - (a)
when the Election Commission finds that the party has secured registration by
playing fraud on the Commission, (b) when a political party itself informs the
Commission in pursuance of Section 29A(9) that it has changed its constitution
so as to abrogate the provision therein conforming to the provisions of Section
29A(5) or does not believe in the provisions of the Constitution, rejecting the
very basis on which it secured registration as a registration political party
and (c) any like ground where no enquiry is called for on the part of Election
Commission, the Commission has no power to de-register a political party.
Learned Attorney General further argued that in a situation where a complaint
is made to the Election Commission and it is required to make an inquiry that a
particular registered political party has committed breach of the undertaking
given before the Election Commission or has violated the provisions of the
Constitution, the election Commission has neither any power to make any inquiry
into such a complaint nor de-register such a political party.
Whereas,
Shri L. Nageshwara Rao, learned counsel appearing for respondent No. 1 urged
that the discharge of function by the Election Commission under Section 29A of
the Act cannot be termed as quasi- judicial function, in the absence of a lis -
a proposition and apposition between the two contending parties which the
statutory authority is required to decide. According to him, unless there is a lis
or two contending parties before the Election Commission, the function assigned
to the Election Commission under Section 29A is an administrative in nature.
His further argument is that where exercise of an administrative function
manifests one of the attributes of quasi-judicial function, such a discharge of
function is not quasi-judicial. Learned counsel referred to a passage from Wade
& Forsyth's Administrative Law and relied upon decisions in Province of Bombay vs Kusaldas S. Advani & Ors. (1950) SCR 621, Shri Radeyshyam
Khare & Anr. vs. The State of Madhya Pradesh & Ors. (1959) SCR 1440, T.
N. Seshan, Chief Election Commissioner of India etc. vs. Union of India &
Ors. (1995) 4 SCC 611 and State of H.P.
vs. Raja Mahendra Pal & Ors. (1999) 4 SCC 43 in support of his argument.
On the
argument of parties, the question that arises for our consideration is, whether
the Election Commission, in exercise of its powers under 29A of the Act, acts
administratively or quasi-judicially. We shall first advert to the argument
raised by learned counsel for the respondent to the effect that in the absence
of any lis or contest between the two contending parties before the Election Commission
under Section 29A of the Act, the function discharged by it is administrative
in nature and not a quasi judicial one. The dictionary meaning of the word
quasi is 'not exactly' and it is just in between a judicial and administrative
function. It is true, in many cases, the statutory authorities were held to be
quasi-judicial authorities and decisions rendered by them were regarded as
quasi judicial, where there were contest between the two contending parties and
the statutory authority was required to adjudicate upon the rights of the
parties. In Cooper vs.
Wilson
(1937) 2 KB 309, it is stated that "the definition of a quasi-judicial
decision clearly suggests that there must be two or more contending parties and
an outside authority to decide those disputes". In view of the aforesaid
statement of law, where there are two or more parties contesting each other's
claim and the statutory authority is required to adjudicate the rival claims
between the parties, such a statutory authority was held to be quasi-judicial
and decision rendered by it as a quasi-judicial order. Thus, where there is a lis
or two contesting parties making rival claims and the statutory authority under
the statutory provision is required to decide such a dispute, in the absence of
any other attributes of a quasi-judicial authority, such a statutory authority
is quasi-judicial authority.
But
there are cases where there is no lis or two contending parties before a
statutory authority yet such a statutory authority has been held to be quasi-judicial
and decision rendered by it as quasi-judicial decision when such a statutory
authority is required to act judicially. In Queen vs. Dublin Corporation (1878)
2 Ir. R. 371, it was held thus :
"
In this connection the term judicial does not necessarily mean acts of a Judge
or legal tribunal sitting for the determination of matters of law, but for
purpose of this question, a judicial act seems to be an act done by competent
authority upon consideration of facts and circumstances and imposing liability
or affecting the rights. And if there be a body empowered by law to enquire
into facts, makes estimates to impose a rate on a district, it would seem to me
that the acts of such a body involving such consequence would be judicial
acts." Atkin L.J. as he then was, in Rex vs. Electricity Commissioners
(1924) 1 KB 171 stated that when any body of persons having legal authority to
determine questions affecting the rights of subjects and having the duty to act
judicially, such body of persons is a quasi-judicial body and decision given by
them is a quasi-judicial decision. In the said decision, there was no contest
or lis between the two contending parties before the Commissioner. The
Commissioner, after making an enquiry and hearing the objections was required
to pass order. In nutshell, what was held in the aforesaid decision was, where
a statutory authority is empowered to take a decision which affects the rights
of persons and such an authority under the relevant law required to make an
enquiry and hear the parties, such authority is quasi-judicial and decision
rendered by it is a quasi-judicial act.
In
Province of Bombay vs. Kusaldas S Advani& Ors. (supra), it was held thus:
"(i)
that if a statute empowers an authority, not being a Court in the ordinary sense,
to decide disputes arising out of a claim made by one party under the statute
which claim is opposed by another party and to determine the respective rights
of the contesting parties who are opposed to each other, there is a lis and
prima facie and in the absence of anything in the statute to the contrary it is
the duty of the authority to act judicially and the decision of the authority
is a quasi-judicial act ; and
(ii)
that if a statutory authority has power to do any act which will prejudicially affect
the subject, then, although there are not two parties apart from the authority
and the contest is between the authority proposing to do the act and the
subject opposing it, the final determination of the authority will yet be a
quasi-judicial act provided the authority is required by the statute to act
judicially.
In
other words, while the presence of two parties besides the deciding authority
will prima facie and in the absence of any other factor impose upon the
authority the duty to act judicially, the absence of two such parties is not
decisive in taking the act of the authority out of the category of
quasi-judicial act if the authority is nevertheless required by the statute to
act judicially." The legal principles laying down when an act of a statutory
authority would be a quasi-judicial act, which emerge from the aforestated
decisions are these :
Where
(a) a statutory authority empowered under a statute to do any act (b) which
would prejudicially affect the subject (c) although there is no lis or two
contending parties and the contest is between the authority and the subject and
(d) the statutory authority is required to act judicially under the statute,
the decision of the said authority is quasi-judicial.
Applying
the aforesaid principle, we are of the view that the presence of a lis or
contest between the contending parties before a statutory authority, in the
absence of any other attributes of a quasi-judicial authority is sufficient to
hold that such a statutory authority is quasi judicial authority.
However,
in the absence of a lis before a statutory authority, the authority would be
quasi-judicial authority if it is required to act judicially.
Coming
to the second argument of learned counsel for the respondent, it is true that
mere presence of one or two attributes of quasi judicial authority would not
make an administrative act as quasi-judicial act. In some case, an
administrative authority may determine question of fact before arriving at a
decision which may affect the right of an appellant but such a decision would
not be quasi-judicial act. It is different thing that in some cases fair-play
may demand affording of an opportunity to the claimant whose right is going to
be affected by the act of the administrative authority, still such an administrative
authority would not be quasi-judicial authority.
What
distinguishes an administrative act from quasi-judicial act is, in the case of
quasi-judicial functions under the relevant law the statutory authority is
required to act judicially. In other words, where law requires that an
authority before arriving at decision must make an enquiry, such a requirement
of law makes the authority a quasi-judicial authority.
Learned
counsel for the respondent then contended that a quasi- judicial function is an
administrative function which the law requires to be exercised in some respects
as if it were judicial and in that view of the matter, the function discharged
by the Election Commission under Section 29A of the Act is totally
administrative in nature. Learned counsel in support of his argument relied
upon the following passage from Wade & Forsyth's Administrative Law :
"A
quasi-judicial function is an administrative function which the law requires to
be exercised in some respects as if it were judicial. A typical example is a
minister deciding whether or not to confirm a compulsory purchase order or to
allow a planning appeal after a public inquiry. The decision itself is
administrative, dictated by policy and expediency. But the procedure is subject
to the principles of natural justice, which require the minister to act fairly
towards the objections and not (for example) to take fresh evidence without
disclosing it to them. A quasi-judicial decision is therefore an administrative
decision which is subject to some measure of judicial procedure." We do
not find any merit in the submission. At the outset, it must be borne in mind
that another test which distinguishes administrative function from
quasi-judicial function is, the authority who acts quasi-judicially is required
to act according to the rules, whereas the authority which acts
administratively is dictated by the policy and expediency. In the present case,
the Election Commission is not required to register a political party in
accordance with any policy or expediency but strictly in accordance with the
statutory provisions. The afore-quoted passage from Administrative Law by Wade
& Forsyth is wholly inapplicable to the present case. Rather, it goes
against the argument of learned counsel for the respondent. The afore- quoted
passage shows that where an authority whose decision is dictated by policy and
expediency exercises administratively although it may be exercising functions
in some respects as if it were judicial, which is not the case here.
We shall
now examine Section 29A of the Act in the light of the principles of law
referred to above. Section 29A deals with the registration of a political party
for the purposes of the Representation of the People Act.
Sub-Section
(1) of Section 29A of the Act provides who can make an application for
registration as a political party. Sub-sections (2) and (3) of the said Section
lay down making an application to the Commission. Sub- sections (4) and (5) of
the said Section provide for contents of the application. Sub-section (7) of
Section 29 provides that the Election Commission after considering all the
particulars in its possession and any other necessary and relevant factors and
after giving the representatives of the association reasonable opportunity of being
heard shall decide either to register the association or body as a political
party or not so to register it and thereupon the Commission is required to
communicate its decision to the political party. Further, sub-section (8) of
Section 29A attaches finality to the decision of the Commission.
From
the aforesaid provisions, it is manifest that the Commission is required to
consider the matter, to give opportunity to the representative of political
party and after making enquiry and further enquiry arrive at the decision
whether to register a political party or not. In view of the requirement of law
that the Commission is to give decision only after making an enquiry, wherein
an opportunity of hearing is to be given to the representatives of the political
party, we are of the view that the Election Commission under Section 29A is
required to act judicially and in that view of the matter the act of the
Commission is quasi-judicial.
This
matter may be examined from another angle. If the directions of the High Court
for considering the complaint of the respondent that some of the
appellants/political parties are not functioning in conformity with the
provisions of Section 29A is to be implemented, the result will be that a
detailed enquiry has to be conducted where evidence may have to be adduced to
substantiate or deny the allegations against the parties. Thus, a lis would
arise. Then there would be two contending parties opposed to each other and the
Commission has to decide the matter of de-registration of a political party. In
such a situation the proceedings before the Commission would partake the
character of quasi-judicial proceeding. De-registration of a political party is
a serious matter as it involves divesting of the party of a statutory status of
a registered political party. We are, therefore, of the view that unless there
is express power of review conferred upon the Election Commission, the
Commission has no power to entertain or enquire into the complaint for
de-registering a political party for having violated the Constitutional
provisions.
However,
there are three exceptions where the Commission can review its order
registering a political party. One is where a political party obtained its
registration by playing fraud on the Commission, secondly it arises out of
sub-section (9) of Section 29A of the Act and thirdly, any like ground where no
enquiry is called for on the part of the Election Commission, for example,
where the political party concerned is declared unlawful by the Central
Government under the provision of the Unlawful Activities (Prevention ) Act,
1967 or any other similar law.
Coming
to the first exception, it is almost settled law that fraud vitiates any act or
order passed by any quasi-judicial authority even if no power of review is
conferred upon it. In fact, fraud vitiates all actions. In Smith vs. East Ellos
Rural Distt. Council - (1956) 1 All E.R. 855, it was stated that the effect of
fraud would normally be to vitiate all acts and order.
In
Indian Bank vs. Satyam Fibres (India) Pvt. Ltd. - (1996) 5 SCC 550, it was held
that a power to cancel/recall an order which has been obtained by forgery or
fraud applies not only to courts of law, but also statutory tribunals which do
not have power of review. Thus, fraud or forgery practised by a political party
while obtaining a registration, if comes to the notice of the Election
Commission, it is open to the Commission to de-register such a political party.
The
second exception is where a political party changes its nomenclature of association,
rules and regulation abrogating the provisions therein conforming to the
provisions of Section 29A (5) or intimating the Commission that it has ceased
to have faith and allegiance to the Constitution of India or to the principles
of socialism, secularism and democracy, or it would not uphold the sovereignty,
unity and integrity of India so as to comply the provisions of Section 29A (5).
In such cases, the very substratum on which the party obtained registration is
knocked of and the Commission in its ancillary power can undo the registration
of a political party. Similar case is in respect of any like ground where no
enquiry is called for on the part of the Commission. In this category of cases,
the case would be where a registered political party is declared unlawful by
the Central Government under the provisions of Unlawful Activities (Prevention)
Act, 1967 or any other similar law. In such cases, power of the Commission to
cancel the registration of a political party is sustainable on the settled legal
principle that when a statutory authority is conferred with a power, all
incidental and ancillary powers to effectuate such power are within the
conferment of the power, although not expressly conferred. But such an
ancillary and incidental power of the Commission is not an implied power of
revocation. The ancillary and incidental power of the Commission cannot be
extended to a case where a registered political party admits that it has faith
in the Constitution and principles of socialism, secularism and democracy, but
some people repudiate such admission and call for an enquiry by the Election
Commission. Reason being, an incidental and ancillary power of a statutory
authority is not the substitute of an express power of review.
Now,
coming to the decisions relied upon by the learned counsel for the respondent,
we are of the view that none of the decisions relied upon are of any assistance
to argument of learned counsel for the respondent. The decision of this Court
in Province of Bombay vs. Kusaldas Advani (supra) has been dealt with by us in
the foregoing paragraph and is of no help to the case of the respondent. In the
case of Radhey Shyam Khare vs. State of M.P.(supra), the State government
issued an order on the ground of expediency and policy and, therefore, it was
held that the impugned order is an administrative in nature. In T.N. Seshan vs.
Union of India (supra), it was held that the Election Commission besides
administrative function is required to perform quasi-judicial duties and
undertakes subordinate legislation making functions as well. This decision also
is of no help to the case of the respondent. In the case of State of H.P. vs.
Raja Mahendra Pal (supra), this Court found that Price Committee appointed by
the government was not constituted under any statutory or plenary
administrative power and, therefore, did not discharge any quasi-judicial
function. This decision again is of no assistance to the case of the
respondent.
It was
next urged by the learned counsel for the appellants that the view taken by the
High Court that by virtue of application of provisions of Section 21 of the
General Clauses Act, 1897 the Commission has power to de-register a political
party if it is found having violated the undertaking given before the Election Commission,
is erroneous. According to him, once it is held that the Commission while
exercising its powers under Section 29A of the Act acts quasi-judicially and an
order registering a political party is a quasi-judicial order, the provision of
Section 21 of the General Clauses Act has no application. We find merit in the
submission.
We
have already extensively examined the matter and found that Parliament
consciously had not chosen to confer any power on the Election Commission to
de-register a political party on the premise it has contravened the provisions
of sub-section (5) of Section 29A. The question which arises for our
consideration is whether in the absence of any express or implied power, the
Election Commission is empowered to cancel the registration of a political
party on the strength of the provisions of Section 21 of the General Clauses
Act. Section 21 of the General Clauses Act runs as under:
"21.
Power to issue, to include power to add to amend, vary or rescind,
notification, orders, rules or bye-laws.
Where
by any central Act or regulation, a power to issue notifications, orders, rules
or bye-laws is conferred then that power includes a power exercisable in the
like manner and subject to the like sanction, and conditions (if any), to add
to, amend, vary or rescind any notifications, orders, rules or bye-laws so
issued." On perusal of Section 21 of the General Clauses Act, we find that
the expression 'order' employed in Section 21 shows that such an order must be
in the nature of notification, rules and bye-laws etc. The order which can be
modified or rescinded on the application of Section 21 has to be either
executive or legislative in nature. But the order which the Commission is
required to pass under Section 29A is neither a legislative nor an executive
order but is a quasi-judicial order. We have already examined this aspect of
the matter in the foregoing paragraph and held that the functions exercisable
by the Commission under Section 29A is essentially a quasi-judicial in nature
and order passed thereunder is a quasi-judicial order. In that view of the
matter, the provisions of Section 21 of the General Clauses Act cannot be
invoked to confer powers of de-registration/cancellation of registration after
enquiry by the Election Commission. We, therefore, hold that Section 21 of the
General Clauses Act has no application where a statutory authority is required
to act quasi-judicially.
It may
be noted that the Parliament deliberately omitted to vest the Election
Commission of India with the power to de-register a political party for
non-compliance with the conditions for the grant of such registration.
This
may be for the reason that under the Constitution the Election Commission of
India is required to function independently and ensure free and fair elections.
An enquiry into non-compliance with the conditions for the grant of
registration might involve the Commission in matters of a political nature and
could mean monitoring by the Commission of the political activities, programmes
and ideologies of political parties. This position gets strengthened by the
fact that on 30th June, 1994 the Representation of the People (Second
Amendment) Bill, 1994 was introduced in the Lok Sabha proposing to introduce
Section 29-B whereunder a complaint to be made to the High Court within whose
jurisdiction the main office of a political party is situated for cancelling
the registration of the party on the ground that it bears a religious name or
that its memorandum or rules and regulations no longer conforming the
provisions of Section 29-A (5) or that the activities are not in accordance
with the said memorandum or rules and regulations. However, this bill lapsed on
the dissolution of the Lok Sabha in 1996, (See p. 507 of "How India Votes
: Election Laws, Practice and Procedure" by V.S. Rama Devi and S.K. Mendiratta).
To sum
up, what we have held in the foregoing paragraph are as under:
1.
That there being no express provision in the Act or in the Symbol Order to
cancel the registration of a political party, and as such no proceeding for
de-registration can be taken by the Election Commission against a political
party for having violated the terms of Section 29A(5) of the Act on the
complaint of the respondent.
2. The
Election Commission while exercising its power to register a political party
under Section 29A of the Act, acts quasi-judicially and decision rendered by it
is a quasi-judicial order and once a political party is registered, no power of
review having conferred on the Election Commission, it has no power to review
the order registering a political party for having violated the provisions of
the Constitution or for having committed breach of undertaking given to the
Election Commission at the time of registration.
3.
However, there are exceptions to the principle stated in paragraph 2 above
where the Election Commission is not deprived of its power to cancel the
registration. The exceptions are these - (a) where a political party has
obtained registration by practising fraud or forgery;
(b)
where a registered political party amends its nomenclature of association,
rules and regulations abrogating therein conforming to the provisions of
Section 29A(5) of the Act or intimating the Election Commission that it has
ceased to have faith and allegiance to the Constitution of India or to the
principles of socialism, secularism and democracy or it would not uphold the
sovereignty, unity and integrity of India so as to comply the provisions of
Section 29A(5) of the Act; and (c) any like ground where no enquiry is called
for on the part of the Commission.
4. The
provisions of Section 21 of the General Clauses Act cannot be extended to the
quasi-judicial authority. Since the Election Commission while exercising its
power under Section 29A of the Act acts quasi-judicially, the provisions of
Section 21 of the General Clauses Act has no application.
For
the aforesaid reasons, the appeals deserve to be allowed in part.
Consequently,
direction Nos. (iii) and (iv) of the impugned judgment are set aside. The
appeals are allowed in part. The contempt petitions are rejected.
There
shall be no order as to costs.
.J.
(V. N.
KHARE) .J.
Back
