Full Judgment Text
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CASE NO.:
Appeal (civil) 3320-21 of 2001
PETITIONER:
INDIAN NATIONAL CONGRESS (I)
Vs.
RESPONDENT:
INSTITUTE OF SOCIAL WELFARE & ORS.
DATE OF JUDGMENT: 10/05/2002
BENCH:
V.N. Khare & Ashok Bhan
JUDGMENT:
(with C.A. Nos. 3322-3323/2001, Contempt Petition Nos. 334-335/2000in C.A. Nos.3320-3321/20
01 and C.A. Nos. 3324 and 3325/2001)
J U D G M E N T
V. N. KHARE, J.
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
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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
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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
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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
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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
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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;
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(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
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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
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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.
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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
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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
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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
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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
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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.
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.J.
(V. N. KHARE)
.J.
(ASHOK BHAN)
10th May, 2002