Full Judgment Text
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PETITIONER:
SADIQ ALI AND ANR. ETC.
Vs.
RESPONDENT:
ELECTION COMMISSION OF INDIA AND OTHERS ETC.
DATE OF JUDGMENT11/11/1971
BENCH:
KHANNA, HANS RAJ
BENCH:
KHANNA, HANS RAJ
HEGDE, K.S.
GROVER, A.N.
CITATION:
1972 AIR 187 1972 SCR (2) 318
CITATOR INFO :
D 1974 SC 445 (10,18)
RF 1977 SC2155 (22)
F 1982 SC1559 (18)
D 1984 SC 921 (11)
F 1986 SC 111 (11,14)
ACT:
Symbols (Reservation and Allotment) Order, 1968--Paragraph
15--Party splitting itself into two groups--Each group
claiming symbol--Powers of Election Commission in inquiry
under para 15--Test of majority and numerical
strength--Relevancy--Binding nature of decision of Election
Commission--Para 15 not ultra vires the powers of the Com-
mission.
HEADNOTE:
The Indian National Congress, a recognised national party
under the Election Symbols (Reservation and Allotment)
Order, 1968 had as its symbol "Two Bullocks with Yoke on"
for the purpose of elections. The Congress is a voluntary
association with its own Constitution. In 1969, following
differences over the choice of the congress nominee for the
office of the President of India, the Congress split itself
into two groups congress ’O’ and congress ’J’. On January
15, 1970 a communication was addressed by the Election
Commission to the Secretary of congress ’J’ as well as that
of congress ’O’ stating that "a dispute appears to have
arisen as to which of the two groups is the recognised
political party known as the Indian National Congress" for
the purpose of the Election Symbols Order and that the
commission was required to take a decision in the matter in
terms of para 15 read with para 18 of the Order. Both the
groups presented their claim before the Commission.. The
Commission framed and settled the following four points for
consideration :
(1) Has the Election Commission jurisdiction
within the meaning of paragraph 15 of the
Election Symbol (Reservation & Allotment)
Order 1968, to decide whether any one or none
of the rival section or groups of the
Indian National Congress,."national party",
is the said Indian National Congress ?
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(2) Has the Election Commission, for the
purpose of undertaking the inquiry to come to
a decision as aforesaid, been satisfied on
information in its possession that there are
two rival section or groups of the said Indian
National Congress each claiming to be that
Congress ?
(3) What is the nature of an election symbol
under the Election Symbols (Reservation and
Allotment) Order, 1968 and whether an election
symbol, whether reserved or free, is property
?
(4) Whether on the facts and circumstances
available to the Election Commission, any of
the alleged rival sections of the said Indian
National Congress is that Congress for the
purpose of the Election Symbols (Reservation
and Allotment) Order 1968; if so: which is
that rival section, or, whether on the facts
and circumstances referred to above, none of
the rival sections of the _said Indian
National Congress is that Congress?
The contention that the Working Committee or the President
of Congress ’O’, who was the President of the Indian
National Congress at the time of the split, were the only
authorities to give a binding decision was repelled by the
Commission. The Commission held that the very existence of
a conflict was enough to create jurisdiction to find out and
decide, on-
319
the facts and circumstances established, whether the
conflict was genuine and whether the claim and allegations
of the applicants were valid. on point 2 the Commission
observed that it was satisfied on the information available
in its possession that there were two rival sections of the
Indian National Congress, each claiming to be that congress.
Regarding point 3 the finding of the Commission was that the
Election Symbol was not property. As regards point No. 4,
the Commission observed that the majority test was a
valuable and relevant test in a democratic Organisation.
The test based upon the provisions of the Constitution of
the Congress, canvassed on behalf of the Congress ’O’, was
held to be hardly of any assistance in view of the removals
from membership and expulsions from the committees of the
Congress of the members belonging to one group by those
belonging to the opposite group. The Commission then consi-
dered another test, namely, that based upon the aims and
objects as incorporated in the, Constitution of the
Congress. It was observed that none of the two groups had
challenged in any manner or openly repudiated those aims and
objects. The test based upon the aims and objects was
consequently held to be ineffective and neutral. Applying
the test of majority, the Commission observed that Congress
’J’ had the majority out of the total number of members
returned on congress tickets to the Houses of Parliament as
well as the majority out of the sum total of the members of
all the Legislatures returned on congress tickets although
in some States, like Gujarat and Mysore, Congress ’O’ had
majority in the Legislature. As regards the organisational
wing of the congress, the Commission came to the conclusion
that Congress ’J’ enjoyed majority in the All-India Congress
Committee as well as amongst the delegates of the undivided
congress. As regards the delegates who were entitled to
vote at the earlier Faridabad Session of Congress, the
Commission found that out of the total number of 4690
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delegates, 2870 pledged their support to Congress ’J’.
Regarding the members of the All India Congress Committee
(A.I.C.C.), the Commission held that the total number of A.
1. C. C. members who attended the Bombay meeting of the
Congress J. was 423 out of 707 elected members and 56 out of
95 nominated and coopted members. The Bombay session, it
was further held, assumed importance in view of the fact
that all the resolutions passed at the requisitioned meeting
of Congress ’J’ at Delhi were ratified unanimously at the
Bombay session. For determining as to who were members of
A.I.C.C. and delegates the Commission accepted those persons
as members of A.I.C.C. and delegates who held that position
in the earlier session of the Congress at Faridabad before
the split.
Decision was accordingly given that for the purpose of
paragraph 15 of the Symbol order Congress ’J’ was the
congress for which the symbol "Two Bullocks with Yoke on"
had been reserved.. Appeal was filed against this order of
the Election Commission. An appeal was also filed against
the judgment ofthe Madras High Court on a certificate
granted by that Court, repellingthe contention that
paragraph 15 was ultra vires and invalid in so far as it
conferred power on the Commission to decide the dispute
between twogroups of a political party. On (i) the
question whether the test of majority or numerical strength
which was taken into account by the Commission was in the
circumstances of-the case a relevant and germane test; (ii)
the binding nature of the decision given by the Commission
under paragraph 15; and (iii) the question whether paragraph
15 was ultra vires and invalid
HELD : Dismissing the appeals
(1) The occasion for making an order under paragraph 15
arises when the Commission is satisfied, on the information
in its possession that there are rival sections or groups of
a recognised political party each of whom
320
claims to be that party. In the circumstances of the
present case the commission had to decide the matter under
paragraph 15 and there was nothing objectionable in the
communication dated January 15, 1970, sent to the two rival
parties on its behalf. [333 E]
As Congress is a democratic Organisation the test of
majority and numerical strength was a very valuable and
relevant test. The figures found by the Commission of the
members of the two houses of Parliament and of the state
legislatures as well as those of A.I.C.C. members and
delegates who supported Congress ’J’, have not been shown to
be incorrect. In view of these figures it can hardly be
disputed that susbtantial majority of the members of the
congress in both its legislative wing as well as the
Organisation wing supported Congress ’J’. [336 A]
In view of the removals and expulsions which followed in the
wake of split in the congress, the Commission adopted proper
approach for determining as to who should be taken to be
members of A. I. C. C. or the delegates, more so, when in
the opinion of the Commission, the validity of those
removals and expulsions was open to question. Further, if
according to paragraph 6 of the Symbols Order the number of
seats secured by a political party or the number of votes
cast in favour of the candidates of a political party can be
a relevant consideration for the recognition. of a political
party, one is at a loss to understand how the numbers of
seats in the Parliament and state legislatures held by the
supporters of a group of the political party can be
considered irrelevant. Consequently, there is no error in
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the approach of the commission in applying the rule of
majority and numerical strength for determining as to which
of the two groups was the Congres party for the’ purpose of
para 15 of the Symbols Order.[336E, C; 338 B]
Even though the mass of congress members are primary members
there are practical difficulties in ascertaining the wishes
of those members. It can be legitimately considered that
the members of the A.I.C.C. and the delegates reflected, by,
and large, the views of the primary members. The
Commission, in any inquiry under paragraph 15, has to act
with a certain measure of promptitude and it has to see that
the inquiry does not get bogged down in a quagmire. [336 F].
Paragraph 13 of the Symbols order has nothing to do with the
question of resolving a dispute wherein two rival sections
or groups of a recognised political party claim to be that
party. For resolving of such a dispute only paragraph 15 is
to be looked into. ;[338 G-H]
General Assembly of Free Church of Scotland and Others v.
Lord Overtoun and Others, :[1904] A.C. 515, distinguished.
Samyukta Socialist Party v. Election Commission of India &
Anr., [1967] 1 S.C.R. 643, held inapplicable.
The symbol is not property to be divided between co-owners.
The allotment of a symbol to the candidates set up by a
political party is a legal right and in case of split the
Commission has been authorised to determine which of the
rival groups or section is the party which was entitled to
the symbol. The Commission in resolving this dispute does
not decide as to which group represents the party, but which
group is that party. [339 H]
(ii) The claim made is only for the purpose of symbols in
connection with elections to the Parliament and state
legislatures and the decision of
321
the Commission under paragraph 15 constitutes a direction to
the Returning Officer for the purpose of rule 10 of the
Conduct of Election Rules, 1961 The said direction shall be
binding upon the Returning Officer in accordance with sub-
rules (4) and (5) of rule 10. [339 D]
[The Court did not express any opinion on the question
whether the decision of the Commission can be called into
question in appropriate proceedings in a court of law.]
(iii) There is no substance in the contention that paragraph
15 of the Symbols order is ultra vires the powers of the
Commission. The, Commission has been clothed with plenary
powers by the Conduct of Election Rules in the matter of
allotment of symbols. If the Commission is not to be
disabled from exercising effectively the plenary powers
vested in it in the matter of allotment of symbol and for
issuing directions in connection therewith, it is plainly
essential that the Commission should have the power to
settle a dispute in case claim for the allotment of the
symbol of a political party is made by two rival claimants.
Para 15 is intended to effectuate and subserve the main
purpose and objects of the symbols order. The Commission is
an authority created by tile Constitution and according to
Article 324, the superintendence, direction and control of
the Electoral rolls for the conduct of elections to
Parliament and the legislature of every state and of
elections to the offices of President and Vice President is
vested in the Commission. The fact that the power of
resolving a dispute between two rival groups for allotment
of symbol of a political party has been vested in such a
high authority would raise a presumption, though rebuttable,
and provide a guarantee, though not absolute but to a
considerable extent, that the power would not be misused but
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would be exercised in a fair and reasonable manner.[342 A-G]
There is also no substance in the contention that as power
to make provisions in respect to elections has been given to
the Parliament by Article 327, the power cannot be further
delegated to the Commission. The law made by Parliament
under article 327 is subject to the other provisions of the
Constitution including article 324. It, therefore, cannot
be said that when the Commission issues direction, it does
so not on its own behalf but as delegate of some other
authority. [342 H]
JUDGMENT:
CIVIL APPEELLATE JURISDICTION : Civil Appeal No. 70 of 1971.
Appeal by Special Leave from the decision dated the 11 th
January 1971 of the Election Commission of India in the
matter of an inquiry under paragraph 15 of the Election
Symbols (Reservation and Allotment) Order, 1968.
AND
Civil Appeals Nos. 2122 to 2124 of 1970.
Appeals from the judgment and order dated the 15th June,
1970 of the Madras High Court in W.As. Nos. 327 and 345 of
1970 and W.P. No. 513 of 1970.
Shanti Bhushan, K. C. Sharma, Y. K. Mathew and V.P.
Chaudhry, for the Appellants in C.A. No. 70 of 1971.
R. N. Sachthey, for respondent No. 1 (In C.A. No. 70 of
1971).
322
K. L. Mishra, A. P. Misra, Naunit Lal, V. P. Nanda, Janak:
Rai, Swaranjit Sodhi and R. K. Shukla, for respondent No. 2
(In C.A. No. 70 of 1971).
A. K. Sen, Bawa Shiv Charan, K. S. Suri, O. P. Sharma and
Kailash Mehta, for respondent No. 3 (in C.A. No. 70 of
1971).,
P. N. Lekhi, M. K. Garg and V. C. Prashar, for respondent
No. 5 (In C.A. No. 70 of 1971).
Mukat Behari Lal Bhargava, S. L. Bhargava and V. C. Prashar,
for respondent No. 5 (In C.A. No. 70 of 1971.
Respondent No. 6 appeared in person (In C.A. No. 70 of
1971).
M. Natesan, T. L. Garg and R,. Gopalakrishnan, for the
Intervener (In C.A. No. 70 of 1971) and the appellants (In
C.As. Nos. 2122 to 2124 of 1970).
R. N. Sachthey and S. P. Nayar, for respondents Nos. 1 and
2 (In C.A. Nos. 2122 and 2123 of 1970) and respondent No. 1
(C.A. No. 2124 of 1970).
The Judgment of the Court was delivered by
Khanna, J. Civil Appeal No. 70 of 1971 has been filed by
special leave by Shri Sadiq Ali and another against the
order of the Election Commission of India (hereinafter
referred to as the Commission) under paragraph 15 of the
Election Symbols (Reservation & Allotment) Order, 1968
(hereinafter referred to as the ’Symbols Order’), whereby
the Commission held that for the purpose of allotment of
symbol in elections the political party presided over by
Shri Jagjivan Ram was the Indian National Congress and was
entitled to the symbol of "Two Bullocks with Yoke on",
reserved for the said Congress.
Indian National Congress (hereinafter referred to as the
’Congress’) is a recognised National Party under the Symbols
Order. The symbol of the "Two Bullocks with Yoke on" was
exclusively reserved for the Congress’ for the purpose of
elections to the Houses of Parliament and the Legislative
Assemblies of the States and Union Territories. The
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Congress is a voluntary association; it is neither a
statutory body nor a registered society under the Societies
Registration Act. It has framed its own constitution and
rules. Shri S. Nijalingappa was elected President of the
Congress with effect from 1st January, 1968 for a period of
two years.
Dr. Zakir Hussain, President of India, died in 1969. Split
then took place in the Congress Party following differences
over
323
the choice of Congress nominee for the office of the
President of India. Each group claimed to represent the
Congress Party. : One; of the groups elected Shri C.
Subramaniam as the President of the Congress. Subsequently,
Shri Jagjivan Ram was elected President by this group in
place of Shri Subramaniam. For sake of convenience this
group would hereafter be referred to as Congress ’J’. Shri
Nijalingappa continued to be the President of the party .
represented by the other group which would hereafter be
referred to as Congress ’O’.
On 21st December, 1969, Shri Subramaniam claiming to be the
President of the Congress, addressed a letter to the Chief
Election Commissioner stating that there had been a change
in the office-bearers of the Congress. Enclosed with the
letter was the list of office-bearers of Congress ’J’ Party
and it was stated that they were the office-bearers of the
Congress. There was then some exchange of correspondence
between the Commission and. Congress ’J’ Party. On 3rd
January, 1970, a communication was addressed to the Election
Commission on behalf of the Congress ’J’ that Shri Jagjivan,
Ram had been duly eletced as President of the Congress and
had taken charge on December 25, 1969, during the plenary
session held at Bombay.
On 8th January, 1970, a letter was sent on behalf of the
Commission to the Secretary of Congress ’O’. Enclosed with
that letter was a copy of the letter of Shri Subramaniam
dated 21-12-1969. The Congress ’O’ was asked to make its
comments so as to enable the Commission to take decision in
the matter after’ hearing both parties. On 14th January,
1970, a reply was sent on behalf of Congress ’O’ by its
General Secretary, Shri Sadiq Ali. In that reply it was
stated that Shri Subramaniam who had styled himself as the
President of the Congress was, in fact, not its President
and that the duly elected President of the Congress was Shri
Nijalingappa. It was also stated that the office-bearers
mentioned by Shri Subramaniam including Shri Subramaniam
himself, were persons expelled from the Congress and had
otherwise ceased to be the members of the Congress.
Further, according to the letter of Shri Sadiq Ali, the
Commission should not have entertained any communication
from a group of people who had formed a new party and were
masquerading themselves in the name and style of the
Congress. This association of persons, added Shri Sadiq
Ali, was neither a splinter group nor a rival section of the
Congress. The competence of the Commission to enquire into
the matter was also questioned.
On 15th January, 1970, a communication was addressed by the
Commission to the Secretary of Congress ’J’ as well as that
of Congress ’O’ stating that, "a dispute appears to have
arisen as to
324
which of the two groups is. the recognised political party
known as the Indian National Congress for the purposes of
the Election Symbols (Reservation & Allotment) Order, 1968,
and the Commission is requried to take a decision in the
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matter in terms of paragraph 15, read with paragraphs 18, of
the said Order. The Commission proposes to afford
reasonable opportunities to each group to present its case
before it so that the Commission may take into account all
the available facts and circumstances for deciding the
case".
On 22nd January 1970, a statement was filed on behalf of
Congress ’J’ before the Election Commission. According to
that statement Shri Nijalingappa was elected President of
the Congress with effect from 1st January, 1968 for a period
of two years under Article 5 of the old Constitution which
came into force on 25th June, 1967. The election of the
members of the All India Congress Committee was held by the
delegates. In accordance with the old Constitution,- the
members of the Pradesh Congress Committees were, delegates
to the Indian National Congress. The term of the members of
the All India Congress Committee, the Pradesh Congress
Committees and the Committees subordinate thereto and of the
office-bearers thereof was to expire on 31 st December,
1969, under Article 5 of the Old Constitution. On 28th
April, 1969, the Working Committee of the Congress passed a
resolution at Faridabad for extending the term of all
Committees of the Congress and of the office-bearers
including that of the President, Shri Nijalingappa, for a
further period of one year. The said resolution, according
to Congress ’J’ was not legal as there was no emergency or
special situation warranting the extension of the normal
term of two years. The resolution was also stated to be
invalid as it was not submitted under the old Constitution
to the All India Congress Committee for ratification as
early as possible.
Under the new Constitution which came into force on 11 th
July, 1969, the above resolution was required, according to
the statement on behalf of Congress ’J’, to be submitted to
the All India Congress Committee for ratification in any
case within 6 months. The resolution was not ratified at
the meeting of the All India Congress Committee held in
Bangalore in July, 1969. The period of 6 months prescribed
for the ratification of the resolution expired on 28th
October, 1969 and as the resolution was not ratified, the
same according to the statement became void. Further, as
the term of Shri Nijalingappa as President was going to
expire on 31st December, 1969, it became necessary for the
All India Congress Committee to make arrangements for the
election of the President before the said date. A
requisition, it is stated, signed by more than 400 members
of the All India Congress Committee, out of
325
a total of 707, was sent for calling a meeting of the AR
India Congress Committee. Shri Nijalingappa then called a
meeting of the Congress Working Committee on 1 st November,
1969. Before that, on the night of 31st October, 1969, Shri
Nijalingappa declared that Shri Subramaniam, a member of the
Congress Working Committee had ceased to be a member of that
Committee. Shri Nijalingappa also on that night removed
Shri Fakhruddin Ali Ahmed from the membership of the Working
Committee,. The, ,above act of Shri Nijalingappa according
to the statement, was mala fide, illegal and against the
principles of natural justice.
According further to the statement submitted on behalf of’
Congress ’J’, the requisition sent by more than 400 members
of All India Congress Committee was received by Shri
Nijalingappa on the night of 31st October, 1969 and was
turned down by the Working Committee. 17 members of the All
India Congress. Committee who were also signatories to the
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above-mentioned requisition, issued a notice on 5th
November, 1969 calling a meeting of the All India Congress
Committee to consider the subjects mentioned in the
requisition. Copies of the said notice were sent to Shri
Nijalingappa and a public statement was issued by Shri
Subramaniam that Shri Nijalingappa would be presiding over
the meeting if he attended the same. The requisitioned
meeting of the All India Congress Committee was held at
Delhi on 22nd and 23rd November, 1969 and was, according to
the statement, attended by 435 members of the All India
Congress Committee out of a total of 707. Shri Nijalingappa
and his followers did not attend the requisitioned meeting.
Six members having voting rights also, communicated their
support in writing for the requisitioned meeting. One of
the resolutions passed at the requisitioned meeting related
to the removal of Shri Nijalingappa from the office of
President. By another resolution Shri Subramaniam was
appointed President and he was asked to function as such
until a new President was elected by the delegates. In
accordance with the, resolution passed in the above
requisitioned meeting, a plena session of the Congress was
held in Bombay on 28th and 29th December, 1969. Shri
Jagjivan Ram was elected President before the said plenary
session. An overwhelming majority of delegates are stated
to have attended the plenary session held at Bombay under
the Presidentship of Shri Jagjivan Ram. The resolutions
passed in the requisitioned meeting of 22nd and 23rd
November, 1969 were ratified at the plenary session in
Bombay. 423 out of 707 members of the All India Congress
Committee attended’ the Bombay Session.
According further to the statement submitted on behalf of
Congress ’J’, 229 out of 284 Congress Members of Lok Sabha
and 106 out of 147 Congress Members of Rajya Sabha declared
their
326
allegiance, to the Congress Government led by Shrimati
Indira ,Gandhi as Prime Minister and to the Congress led by
Shri Jagjivan Ram as President. As against that, Congress
’O’ claimed the allegiance of 65 Members of Lok Sabha and 40
Members of Rajya Sabha. The Congress Legislature Parties of
Maharashtra, Madhya Pradesh, Andhra Pradesh, Rajasthan,
Assam, Haryana, Jammu & Kashmir, Himachal Pradesh and
Tripura declared their support to the Congress Governments
in those States and to Congress ’J’. The Speaker of Lok
Sabha and the Chairman of Rajya Sabha recognised Congress
’J’ in Parliament as the party .which was in power and which
ran the Central Government. The statement added that the
Election Commission was the only authority to decide dispute
about the allotment of symbol. Prayer was ,accordingly made
that the symbol reserved for Congress for the purposes of
general elections and bye-elections should be allotted to
candidates who would be nominated and declared their alleg-
ance to Congress ’J’.
A counter-statement was submitted on behalf of Congress ’O’
by its General Secretary, Shri Sadiq Ali on 16th February,
1970. The various allegations made in the statement
submitted on behalf ,of Congress ’J’ were controverted and
it was stated that the Election Commission had no
jurisdiction to hold the enquiry. According to the counter-
statement, the Congress Parliamentary Board in its meeting
held in July 1969 decided by majority to put up Shri N.
Sanjiva Reddy as candidate for the office of the President
of India. The decision of the majority upset Smt. Indira
Gandhi. Smt. Indira Gandhi, Shri Jagjivan Ram and Shri
Fakhruddin Ali Ahmed, at the initial stages of the
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Presidential election, supported ,the candidature of Shri
Sanjiva Reddy but subsequently they started a campaign for
the defeat of the, Congress candidate and for the success of
Shri V. V. Giri. The explanations of Shrimati Indira
,Gandhi, Shri Jagjivan Ram and Shri Fakhruddin Ali Ahmed
were ,called by the Congress President on 18th August, 1969.
On 31st October 1969, Shri Nijalingappa wrote a letter to
Shri Subramaniam that he had ceased to be a member of the
Working Committee. The reason for that was that Shri
Subramaniam who was a member of the All India Congress
Committee by virtue of being the President of the Tamil Nadu
Congress Committee, had resigned the Presidentship thereof
and had thus ceased to be a member of the All India Congress
Committee. Shri Fakhruddin Ali Ahmed was removed from the
membership of the Working Committee because according to the
counter-statement, he had lost the confidence of the
President. The requisition sent for calling a meeting of
the All India Congress Committee was rejected in a meeting
of the Congress’ Working Committee on 1st November, 1969.
When the members of the Congress Working Committee learnt
327
from newspaper reports that some members of the Working
Committee had taken a decision to convene a meeting of the
All India. Congress Committee on 22nd and 23rd November,
1969, the Working Committee took the view that it was bound
to, result in indiscipline. Shri Nijalingappa then
addressed a letter to Shrimati Indira Gandhi charging her
with indiscipline and asking her to explain her position.
As regards the validity of the resolution postponing the
elections, the case set up in the counter-statement is that
the said resolution was valid in law and its validity had
not been questioned by one one. Regarding the notice sent
by 17 members of the AR India Congress Committee for
convening the requisitioned meeting of the All India
Congress Committee, the case of the Congress ’O’ is that the
said notice was invalid and the persons who attended the
meeting on 22nd and 23rd November, 1969 did so in their
personal capacity. The decisions taken in that meeting are
stated,. to have no effect on the Working Committee. Smt.
Indira Gandhi, who presided over the meeting, according to
the counter-statement, had been expelled from the primary
membership of Congress on 12th November, 1969. The
resolution passed in the meeting, held on 22nd and 23rd
November, 1969 being void ab initio could not be
subsequently ratified by any authority. As regards, the
Members of Parliament and State Legislatures who declared
their allegiance to Congress ’J’, the stand taken in the
counter statement is that their position was that of
defector.
A rejoinder and some other applications were thereafter
filed. The Commission on 7th March, 1970 framed and settled
the following four points for discussion
1. Has the Election Commission jurisdiction
within the meaning of paragraph 15 of the
Election Symbol (Reservation & Allotment)
Order 1968, to decide whether any one or none
of the rival sections or groups of the Indian
National Congress,. a national party, is the
said lndian National :Congress ?
2. Has the Election Commission, for the
purpose of undertaking the inquiry to come to
a decision as aforesaid, been satisfied on
information in its possession that there are
two rival sections or groups of the said
Indian National Congress each. claiming to be
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that Congress ?
3. What is the nature of an election symbol
under the Election Symbols (Reservation and
Allotment)
328
Order, 1968, and whether an election symbol,
whether reserved or free, is property ?
4. Whether, on the facts and circumstances
available to the Election Commission, any of
the alleged rival sections of the said Indian
National Congress is that Congress for the
purposes of the Election Symbols (Reservation
and Allotment) Order 1968; if so, which is
that rival section, or, whether On the facts
and circumstances referred to above, none of
the rival sections of the said Indian National
Congress is that Congress ?"
In an order covering 437 pages which, considering the nature
of controversy, appears to be abnormally prolix, the
Commission held on the first point that if had jurisdiction
to decide the matter. The, contention that the Working
Committee or the President of ;Congress ’O’ were the only
authorities to give a binding decision in the dispute was
repelled in the following words
"If, therefore, there are facts in the present
case which show a total and entire cleavage in
the Indian National Congress from top to
bottom, and that the rivalry between the two
groups has almost assumed the form of enmity,
then relying upon a few provisions of the
Constitution and the rules of the party it
cannot, in my view, be validly contended that
the Election Commission has no jurisdiction
because the Working Committee or the President
of one group whose existence and authority are
totally repudiated by the other group, are the
only authorities to give final and binding
decisions in the present dispute. The very
existence of such a conflict is enough to
create jurisdiction to find out and decide
whether the conflict. is genuine and whether
the claims and allegations of the applicants
are valid or the contentions and objections of
the opposite parties. But that question wilt
have to be determined on the facts and
circumstances established in the case".
On point 2, the Commission observed that it was satisfied on
the information available in its possession that there were
two rival sections of the Indian National Congress, each
claiming to be that Congress. Regarding point 3, the
finding of the Commission was that the Election Symbol was
not property. As regards point No. 4, the Commission
observe that the majority test was a valuable and relevant
test in a democratic Organisation. The test based upon the
provisions of the Constitution of the Congress canvassed on
behalf of the Congress ’O’ was held to be hardly of any
assistance in view of the removals from membership and
expulsions
329
from the Committees of the Congress of the members belonging
to one group by those belonging to the opposite group. Ref
erence was also made in this context to the rejection of the
requisition sent by some members of Congress ’J’ for
convening a meeting of the All India Congress Committee.
The Commission then considered another test, namely, that
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based upon the aims and objects as incorporated in the
Constitution of the Congress. It was observed that none of
the two groups had challenged in any manner or openly
repudiated those aims and objects. The test based upon the
aims and object was consequently held to be ineffective and
neutral. Applying the test of majority, the Commission
observed that Congress ’J’ had the majority out of the total
number of members returned on Congress tickets to the Houses
of Parliament as well as the majority out of the sum total
of the members of all the Legislatures, returned on Congress
tickets although in some States, like Gujarat and Mysore,
Congress ’O’ had majority in the Legislature. As regards
the organisational wing of the Congress, ’the Commission
came to the conclusion that Congress ’J’ enjoyed majority in
the All India Congress Committee as well as amongst the
delegates of the undivided Congress. Decision was
accordingly given that for the purpose of paragraph 15 of
the Symbol Order, Congress ’J’ was the Congress for which
the symbol "Two bullocks with Yoke On had been reserved.
Before dealing with the contentions advanced in appeal, it
may be apposite to refer to the relevant provisions. Art.
324 of the Constitution provides inter alia that the
superintendence, direction and control of the preparation of
electoral rolls for and. the conduct of all elections to
Parliament and Legislative Assemblies of the States and all
elections to the offices of President and Vice-President
held under the Constitution shall be vested in the Com-
mmission According to section 169 of the Representation of
the People Act, 1951 (Act 43 of 1951)., the Central
Government may,-after consulting the Election Commission by
notification in the official gazette, make rules for
carrying out the purposes of the Act. Without prejudice to
the generality of the foregoing power, sub-section (2)
enumerates some of the matters for which provision may be
made in the rules. Sub-section (3) requires that the rules
framed should be laid before each House of Parliament.
Conduct of Elections Rules, 1961 were thereafter framed by
the Central Government. Rule 5 of those Rules requires the
Commission to specify the symbols that may be chosen by
candidates at elections in Parliamentary and Assembly
elections and the restrictions to which that choice shall be
subject. Rule 10 makes provision for allotment of symbols
to the contesting candidates by the Returning Officer
subject to general or special directions issued by the
Commission.
330
The Symbols Order has been issued by the Commission in exer-
cise of the powers conferred ’by Article 324 of the
Constitution read with Rules 5 and 10 of the Conduct of
Election Rules. Paragraph 2 of the Symbols Order contains
the various definitions. According to clause (h) of that
paragraph, political party means an association or body of
individual citizens of India registered with the Commission
as a political party under paragraph 3 and includes a
political party deemed to be registered with the Commission
under the proviso to sub-paragraph 2 of that paragraph.
Paragraph 3 deals with registration with the Commission of
associations and bodies as political parties for the purpose
of the Order. According to that paragraph, any association
or body of individuals, citizens of India calling itself a
political party and intending to avail itself of the
provisions of the Order shall make an application to the
Commission for its registration as a political party for the
purpose of that Order. Sub-paragraph (2) provides the
period within which an application has to be made.
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Exemption from making the application in certain contigency
with which we are not concerned is also granted. Sub-
paragraphs 3 & 4 specify the formalities and the particulars
required for the application. The particulars include the
names of the President, Secretary and other office-bearers
of the political party, the numerical strength of its
members as well as the political principles on which it was
based and the policies, aims and objects it pursued or
sought to pursue. Power is given to the, Commission under
sub-paragraph 5 to call for further particulars. The
Commission thereafter decides whether to register the
association or body as political party or not. The decision
of the Commission in this respect has been made final by
sub-paragraph 7. Provision is further made by subparagraph 8
that after the association or body has been registered ,as’
a political party, any change in its name, head-office,
office bearers, address and political principles, policies.,
aims and objects and any change in any other material
matter, shall be communicated to the Commission without
delay. Paragraph 4 provides for allotment of symbols.
Paragraph 5 deals with the classification of symbols.
According to this paragraph, a reserved symbol is a symbol
reserved for a political party for exclusive use by that
party. A symbol other than the reserved symbol has been
described by the said paragraph to be a free symbol.
Political parties have been classified as recognised
political parties of un-recognised political parties by
paragraph 6. The recognised political parties have been
divided into two categories. If a political party is
treated as a recognised political party in four or more
states in accordance with paragraph 6, it shall have the
status of a national party throughout the whole of India.
If on the contrary a political party is treated as’ a
recognised political party in less than four states, it
shall enjoy the status of a state party in the state
331
or states in which it is a recognised political party. We
need not dilate upon this aspect because it is common case
of the parties that the Congress is a national party.
Paragraph & deals with choice of symbols by candidates of
national and state parties and allotment thereof.
Paragraphs 9, 10, 11 & 12 deal with certain restrictions on
the allotment of symbols, concessions to certain candidates
as well as the choice of symbols by some categories of
candidates with which we are not concerned. Paragraph 13
specifies as to when a candidate shall be deemed to be set
up as a candidate by a political party and reads as under :-
"13.When a candidate shall be deemed to be set
up by a political party--
For the purposes of this Order a candidate
shall be deemed to be set up by a political
party if, and only if-
(a) the candidate has made a declaration to
that effect in his nomination paper;
(b) a notice in writing to that effect has not
later than 3 p.m. on the last day of
withdrawal of candidatures, been delivered to
the returning officer of the constituency_;
and
(c) the said notice is signed by the
President, the secretary or any other office-
bearer of the party and the president,
secretary or such other officebearer is
authorised by the party to send such notice
and the name and specimen signature of the
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president, the secretary or such other office-
bearer are communicated in advance to the
returning officer of the constituency and to
the Chief Electoral Officer of the State".
Paragraph 14 gives power to the Commission to issue certain
instructions to un-recognised political parties. Paragraph
15 with which we are directly concerned in this case reads
as under :-
"15. Power of Commission in relation to
splinter groups or rival sections of a
recognised political party-
When the Commission is satisfied on
information in its possession that there are
rival sections or groups of a recognised
political party each of whom claims to be that
party, the Commission may, after taking into
account all the available facts and
circumstances of the case and hearing such
representatives of the sections of groups and
other persons as desire to be heard, decide
that one such rival section or group or none
of such rival sections or 8-L500Sup. Cl/72
332
groups is that recognised political party and
the decision of the Commission shall be
binding on all such rival sections or groups".
The powers of the Commission in case of amalgamation of two’
or more political parties is contained in paragraph 16 and
it reads
"16. Power of Commission in case of amalgama-
tion of two or more political parties-
(1) when two or more political parties, one or
some or all of whom is a recognised political
party or are recognised political parties,
join together to form a new political party,
the Commission may, after taking into account
all the facts and circumstances of the case,
hearing such representatives of the newly
formed party and other persons as desire to be
heard and having regard to the provisions of
this Order, decide--
(a) whether such newly formed party should be
a National party; and
(b) the symbol to be allotted to it.
(2) The decision of the Commission under sub-
paragraph (1) shall be binding on the newly
formed political party and all the component
units thereof".
A notification containing the list of political parties and
symbols has to be issued by the Commission under paragraph
17 while paragraph 18 gives certain additional powers to the
Commission for issuing instructions and directions. The
requisite notification was accordingly issued by the
Commission under paragraph 17. According to that
notification, Indian National Congress was a National party
and its reserved symbol was "Two Bullocks with Yoke On".
Perusal of the different paragraphs of the Symbols Order
makes it manifest that they provide, as is made clear by its
preamble, for specification, reservation, choice and
allotment of symbols at elections in parliamentary and
assembly constituencies as well as for the recognition of
’political parties in relation thereto and for matters
connected therewith. One such matter is the decision of a
dispute when two rival sections or groups of a recognised
political party claim to be that party for the purpose of
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the Symbols Order. Paragraph 15 provides for the machinery
as well as the manner of resolving such a dispute.
Before discussing the scope and ambit of paragraph 15, it
may be pertinent to find out the reasons which led to the
introduction
333
of symbols. It is well known that overwhelming majority of
the electorate are illiterate. It was realised that in view
of the handicap of illiteracy, it might not be possible for
the illiterate voters to cast their votes in favour of the
candidate of their choice unless there was some pictorial
representation on the ballot paper itself whereby such
voters might identify the candidate of their choice.
Symbols were accordingly brought into use. Symbols or
emblems are not a peculiar feature of the election law of
India. In some countries, details in the form of letters of
alphabet or numbers are added against the name of each
candidate while in others, resort is made to symbols or
emblems. The object is to ensure that the process of
election is as genuine and fair as possible and that no
elector should suffer from any handicap in casting his vote
in favour of a candidate of his choice. Although the
purpose which accounts for the origin of symbols was of a
limited character, the symbol of each political party with
the passage of time acquired a great value because the bulk
of the electorate associated the political party at the time
of elections with its symbol. It is, therefore no wonder
that in case of a split in a political party, there is a
keen contest by each rival group to get the symbol of that
party.
Let us now go back to paragraph 15. The occasion for making
an order under this paragraph arises when the Commission is
satisfied on information in its possession that there are
rival sections or groups of a recognised political party
each of whom claims to be that party. The Commission in
such an event decides the matter after taking into account
all available facts and circumstances of the case and
hearing such representatives of the sections or groups and
other persons as desire to be heard. The Commission may
decide that one such rival section or group is that
recognised political party or that none of such rival
sections or groups is that party. The aforesaid decision
has been made binding on all the rival sections or groups
who claim to be the political party in question.
In the present case, we find that a claim was made on behalf
of Congress ’J’ that its office-bearers were the office-
bearers of the Congress. The said claim was repudiated by
Congress ’O’ and according to it, it was the genuine
Congress Party and its President was Shri Nijlingappa.
According further to the stand taken on behalf of Congress
’O’, the members of Congress ’J’ were masquerading
themselves in the name and style of the Congress. The
Commission in the circumstances, had to decide the matter
under paragraph 15 and we find nothing objectionable in the
communication dated January 15, 1970 sent to the two rival
parties on its behalf wherein it was stated that "a dispute
appears to have, arisen
334
as to which of the two groups is the recognised political
party known as the Indian National Congress for the purposes
of the Symbols Order."
Controversy between the parties has ranged on the question
whether the Commission has taken into account all ’the
available facts and circumstances of the case’. The
Commission in this context considered the various criteria
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for determining which of the two groups , Congress "J" or
Congress ’O’ was the Congress and came to the conclusion
that the criteria other than that of the numerical strength
or Majority could not provide a satisfactory solution. So
far as the test of majority is concerned, the Commission
found that the relative strength of the two groups in the
two Houses of Parliament and the State Legislature was as
under :-
------------------------------------------------------------
Name of the House. Position as on. Position in the
22-1-1970 later half of 1970 Remarks
Congress Congress Congress Congress
’J’ ’O’ ’J’ ’O’
-----------------------------------------------------------
1 2 3 4 5 6
I-Parliament
1. Lok Sabha 221 64 228 65
2. Rajya Sabha 103 42 85 40
II-Legislative Assemblies
A. States
1 . Andhra Pradesh........... -- -- 175 14
2. Assam..................... -- 75 --
3. Bihar..................... 81 31 86 28
4. Gujarat................... 5 96 8 108
5. Haryana............... . (no separate group 53 6
in the strength
of 48 Congress
members)
6. Jammu & Kashmir............ -- -- 61 --
7. Kerala.................... 4 5 33 4
8. Madhya Pradesh.......... 177 -- 192 --
9. Maharashtra.............. 204 -- 191 13
10. Mysore..................... 23 126 37 127
11. Nagaland -- -- No party asIn-
dianNational
Congress.
12. Orissa..................... -- -- 8 3
13. Punjab..................... 28 -- 28 --
14. Rajasthan.................. 111 1 131 1
15. Tamil Nadu -- -- 8 41
16. Uttar Pradesh 120 102 150 84
335
1 2 3 4 5 6
17. WestBengal............. 38 13 - Assembly
dissolved
on
30-7-70
B. Union Territories
1. Goa, Daman & Diu......... -- -- 1 --
2. Himachal Pradesh......... 42 -- 43 --
3. Manipur Dissolved with effect from 16-10-69.
4. Pondicherry 6 4 7 3
5. Tripura 27 -- 27 --
III.-Legislative Councils
1. Andhra Pradesh -- -- 52 6
2. Bihar -- -- 33 22
3. Maharashtra 51 -- 46 3
4. Mysore 6 46 7 43
5. Tamil Nadu -- -- 2 17
6. Uttar Pradesh 37 33 33 29
As regards the delegates who were entitled to vote at
the earlier Faridabad Session of Congress, the Commission
found that out of the total number of 4,690 delegates, 2,870
pledged their support to Congress ’J’. Regarding the
members of the All India Congress Commitee (hereinafter
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referred to as the AICC), the Commission held that the total
number of AICC members who attended the Bombay meeting of
the Congress ’J’. AICC was 423 out of 707 elected members
and 56 out of 95 nominated and coopted members. The Bombay
Session, it was further held, assumed importance in view of
the fact that all the resolutions passed at the
requisitioned meeting of Congress ’J’ at Delhi were
satisfied unanimously at the Bombay session. For
determining as to who were members of AICC and delegates,
the Commission accepted those persons as members of AICC and
delegates who held that position in the earlier session of
the Congress at Faridabad before the split. In view of the
removals and expulsions which followed in the wake of split
in the Congress, the Commission, in our opinion, adopted
proper -approach for determining as to who should be taken
to be members of AICC or the delegates, more so, when in the
opinion of the Commission, the validity of (hose removals
and expulsions was open to question.
The figures found by the Commission of the members of the
two Houses of Parliament -and of the State Legislatures as
well as those of AICC members and delegates who supported
Congress ’J’ have not been shown to us to be incorrect. In
view of those figures, it can hardly be disputed that
substantial majority of the members of the Congress in both
its legislative wing as well as
336
the organisational wing supported the Congress ’J’. As
Congress ’J’ is a democratic Organisation, the test of
majority and numerical strength, in our opinion, was a very
valuable and relevant test. Whatever might be the position
in another system of government or Organisation, numbers
have a relevance and importance in a democratic system of
government or political set up and it is neither possible
nor permissible to lose sight of them. Indeed it is the
view of the majority which in the final analysis proves
decisive in a democratic set up.
It may be mentioned that according to paragraph 6 of the
Symbols Order, one of the factors which may be taken into
account in treating a political party as a recognised
political party is the number of seats secured by that party
in the House of People or the State Legislative Assembly or
the number of votes polled by the contesting candidates set
up by such party. If the number of seats secured by a
political party or the number of votes cast in favour of the
candidates of a political party can be a relevant
consideration for the recognition of a political party, one
is at a loss to understand as to how the number of seats in
the Parliament and State Legislatures held by the supporters
of a group of the political party can be considered to be
relevant. We can consequently discover no error in the
approach of the Commission in applying the rule of majority
and numerical strength for deter-’ mining as to which of the
two groups, Congress ’J’ and Congress ’O’ was the Congress
party for the purpose of paragraph 15 of Symbols Order.
It is no doubt true that the mass of Congress members are
its primary members. There were obvious difficulties in
ascertaining who were the primary members because there
would in that event have been allegations of fictitious and
bogus members and it would have been difficult for the
Commission to go into those allegations, and find the truth
within a short span of time. The Commission’ in deciding
that matter under paragraph 15 has to act with a certain
measure of promptitude and it has to see that the inquiry
does not get bogged down in a quagmire. This apart, there
was practical difficulty in ascertaining the wishes of those
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members. The Commission for this purpose could obviously be
not expected to take referendum in all the towns and
villages in the country in which there were the primary
members of the Congress. It can, in our opinion, be
legitimately considered that the members of, AICC and the
delegates reflected by and large the views of the primary
members.
It is urged by Mr. Shanti Bhushan on behalf of the
appellants that 1 1 members of the Congress Working
Committee were with
337
Congress ’O’ while 1 0 members were with Congress ’J’. The
matter, according to the learned counsel, should have been
decided in accordance with the majority in the Working
Committee. SO far as this aspect is concerned, we find that
as it is not always convenient to convene general session of
the Congress or a meeting of the AICC, the Congress has its
Working Committee which represents the Congress for
administrative purposes and for taking decision on political
and other matters. Some of the members of the Working
Committee are elected by the AICC while others are nominated
by the President. The Working Committee has not been shown
to possess any power of vetoing the decision of the AICC.
On the contrary, major decisions taken by the Working
Committee at the time of AICC meetings are placed before the
AICC for ratification. In view of the fact that the wishes
of the majority of the members of AICC as well as the
delegates have been ascertained, we find it difficult to
accede to the contention that the majority enjoyed by
Congress ’O’ against Congress ’J’ in the Working Committee
should carry so much weight as to outweigh the majority
support obtained by Congress ’J’ among delegates and the
members of AICC. In any case, we find that as against the
slender majority enjoyed by Congress ’J’ in the Working
Committee, Congress ’J’ had substantial majority among the
members of AICC and the delegates as well as the Congress
members of two Houses of Parliament as also the sum total of
members of the State Legislatures.
The observations of late Pandit Jawaharlal Nehru in the
course of his speech on Kamraj Plan in the meeting of AICC
held in August 1963, to which a reference has been made on
behalf of the appellants, is hardly of any assistance to the
appellants for the purpose of this case. Pandit Nehru in
that speech emphasized the importance of the organisational
wing of the Congress and said that if the AICC or the
Working Committee did not desire that he should remain in
office, he was not going to have general elections to secure
the support of the people against the said Committees. It
is obvious that the stress in that speech was on the need of
the Prime Minister securing the Support of the organisa-
tional wing. The speech did not deal with a contingency as
arises in the present case of resolving a dispute wherein
one group has the support of the majority of the legislative
wing as well as the organisational wing other than the
Working Committee. The present is not a case wherein a
conflict has arisen because of one group having majority in
the organisational wing and the other having a majority in
the legislative wing of the party.
Argument has been advanced on behalf of the appellants that
the matter should have been decided in accordance with the
provisions of the Congress constitution. The Commission in
this con-
338
text has found that there were removals and expulsions of
the supporters of Congress ’J’ from the various Committees
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of the Congress by the members of Congress ’O’ and the
President, Shri Nijalingappa. The Commission has come. to
the conclusion that the validity of the action of Shri
Nijalingappa and other members of Congress ’O’ in removing
and expelling members of the other group was doubtful and
open to question. The Commission has also questioned the
propriety of the action of the Working Committee in
rejecting the requisition sent by the members of AICC for
convening meeting of the AICC. It is, in our opinion, not
necessary for this Court to express any opinion. for the
purpose of this appeal about the validity.of the above
mentioned removals and expulsions nor is it necessary to
express any view about the propriety of the rejection of the
requisition. Likewise it is not essential to say anything
as to whether one or both the groups were in the wrong and
if so, to, what extent in the controversy relating to the
split in the Congress. All that this Court is concerned
with is whether the test of majority or numerical strength
which has been taken into account by the Commission is in
the circumstances of the case a relevant and germane test.
On that point, we have no hesitation in holding that in the
context of the facts and circumstances of the case, the test
of majority and numerical strength was not only germane and
relevant but a very valuable test.
Reference has been made on behalf of the appellants to para-
graph 13 of the Symbols Order which has been reproduced
earlier in this judgment. The said paragraph mentions as to
when a candidate shall be deemed to be set up by a political
party. The three requisites for that are : that the
candidate has made a declaration to that effect in his
nomination paper; that a notice is delivered to the
Returning Officer before the specified time and the said
noticed is signed by such office-bearer of the party who has
been authorised to send the notice. It also requires that
the name and specimen signature of such office-bearer should
be communicated in advance to the Returning Officer and the
Chief Electoral Officer of the State. Reading of paragraph
13 makes it plain that it deals with the case of individual
candidates and provides a safeguard against the contingency
of a claim being made by two rival candidates of being the
nominee of the same party. Paragraph 13 has nothing to do
with the question of resolving a dispute wherein two rival
sections or groups of a recognised political party claim to
be that party. For the resolving of such a dispute, we have
only to look to paragraph 15.
Question during the course of hearing of the appeal has also
arisen whether the persons who were heard during the course
of proceedings under paragraph 15 become parties to those
proceed,-
339
ings SO as to be entitled to be heard in appeal. In this
connection, we are of the opinion that although the
Commission may hear during the course of proceedings under
paragraph 15 ’such representatives of the sections or.
groups or other persons as desire to, be heard’, the parties
to the dispute necessarily remain rival sections or groups
of the recognised political party. Other persons as desire
to be heard and who are heard by the Commission do not
become parties to the dispute so as to have a right of
addressing this Court in appeal. We have consequently not
allowed arguments to be addressed in appeal on their behalf.
Question then arisen as to what is the binding nature of the
decision given by the Commission under paragraph 15. In
this respect, it has to be borne in mind that the Commission
only decides the question as to whether any of the rival
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sections or groups of a recognised political party, each of
whom claims to be that party, is that party. The claim made
in this respect is only for the purpose of symbols in
connection with the elections to the Parliament and State
Legislatures and the decision of the Commission pertains to
this limited matter. The Commission while deciding the
matter under paragraph 15 does not decide dispute about
property. ’The proper forum for adjudication of disputes
about property are the civil courts. The decision of the
Commission under paragraph 15 constitutes a direction to the
Returning Officer for the purpose of Rule 10 of the Conduct
of Elections Rules, 1961. The said direction shall be
binding upon the Returning Officers in accordance with sub-
rules (4) and (5) of the abovementioned Rule. Whether the
decision of the Commission can be called into question in
appropriate proceedings in a Court of law is a matter which
does not arise in this case and we need not express any
opinion thereon.
Contention has also been advanced on behalf of the
appellants that Congress ’O’ although adhering to Congress
aims and objects is deprived of the use of symbol of "Two
Bullocks with Yoke on" which had been allotted to the
Congress for the purpose of elections. The answer to ’this
contention is that as a result of differences and
dissensions, a political party may be split into two or more
groups but the symbol cannot be split. It is only one of
the rival sections or groups, as is held to be that
political party under paragraph 15, which would be entitled
to the use of the symbol in the elections while the other
section or group would have to do without that symbol. It
is not permissible in a controversy like the present to
dissect the symbol and give one out of two bullocks
represented in the symbol of the Congress to one group and
the other bullock to the other group. The symbol is not
property to be divided between co-owners. The allotment of
a symbol to the candidates set up by a political party is a
legal right and in case of split, the
340
Commission has been authorised to determine which of the
rival groups or sections is the party which was entitled to
the symbol. The Commission in resolving this dispute does
not decide as to which group represents the party but which
group is that party. It it were a question of
representation, even a small group according to the
Constitution of the Organisation may be entitled to
represent the party. Where, however, the question arises as
to which of the rival groups is the party, the question
assumes a different complexion and the numerical strength of
each group becomes an important and relevant factor. It
cannot be gainsaid that in deciding which group is the
party, the Commission has to decide as to which group
substantially constitutes the party.
Attempt has also been made during the course of arguments to
show that the supporters of Congress ’J’ were defaulters in
payment of subscription. No such case was admittedly set
tip before the Commission. We have consequently not allowed
the appellants to raise this matter which hinges upon facts
in appeal.
Reference has been made on behalf of the appellants to a
House of Lords decision in the case of General Assembly of
Free Church of Scotland and others v. Lord Overtoun and
others(1). The said case related to the denomination of
Christians which called itself the Free Church of Scotland
and had been founded in 1843. It consisted of ministers and
laity who seceded from the Established Church of Scotland,
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but who professed to carry with them the doctrine and system
of the Established Church, only freeing themselves by
secession from what they regarded as interference by the
State in matters spiritual. For manly years, efforts had
been made to bring about a union between the Free Church and
the United Presbyterian Church, also seceders from the
Established Church. In 1900 Acts of Assembly were passed by
the majority of the Free Church and unanimously by the
United Presbyterian Church for union under the name of the
United Free. Church and the Free Church property was
conveyed to the new trustees for behoof of the new Church.
The United Presbyterian Church was opposed to the
Establishment principle, and did not maintain the West-
minster Confession of Faith in its entirety. ’the
respondents contended that the Free Church had full power to
change its doctrines so long as the identity was preserved.
The appellants, a very small minority of the Free Church,
objected to the union maintaining that the Free Church had
no power to change its original doctrines or to unite with a
body which did not confess those doctrines. The appellants
accordingly complained of breach of trust. It was held that
the Establishment principle and the Westminster Confession
were distinctive tenets of the Free Church and
(1) [1904] A.C. 515.
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the Free Church had no power, where property was concerned,
to .alter the doctrine of the Church; that there was no true
union, as, the United Free Church had not preserved its
identity with the Free Church not having the same
distinctive tenets and that the appellants were entitled to
hold for behoof of the Free Church the property held by the
Free Church before the union in 1900. The above case can
hardly be of any assistance to the appellants. It is clearly
distinguishable on two grounds. The first ground relates.
to change of tenets on the part of a religious group. As
against that, the present case relates to a political party
wherein none of the rival groups professes to renounce the
aims and objects of the party. The other ground is that the
dispute in the cited case related to property while that in
the present case relates to a legal right and not to
property.
The case of Samyukto Socialist Party v. Election Commission
of India & Anr.(1) has also no bearing on the present case.
The cited case related to merger of two political parties
into one as a result of which the election symbol of one of
the merger parties was allotted to the new party. The
parties separated again and the question which arose for
determination was whether the symbol can be taken back from
the new party and given to the party to which it originally
belonged. It is plain that the nature of controversy in the
said case was entirely different.
Civil Appeals Nos. 2122-2124 of 1970 have been filed by Shri
P. Kaklcan and another against the judgment of the Madras.
High Court on a certificate granted by that Court. It is
not necessary to give the facts giving rise to these appeals
because according to Shri Natesan, learned counsel for the
appellants in these appeals, the only additional point to be
agitated is about the vires of paragraph 15 of the Symbols
Order. The Madras High Court repelled the contention
advanced on behalf of the appellants that paragraph 15 was
ultra vires and invalid in so far as it conferred power on
the Commission to decide the dispute between two groups of
a. political party.
It would follow from what has been discussed earlier in this
judgment that the Symbols Order makes detailed provisions
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for the reservation, choice and allotment of symbols and the
recognition of political parties in connection therewith.
That the Commission should specify symbols for elections in
parliamentary and assembly constituencies has also been made
obligatory by rule 5 of Conduct of Election Rules. Sub-rule
(4) of rule 10 gives a power to the Commission to issue
general or special directions to the Returning Officers in
respect of the allotment of symbols. The
(1) [1967] 1 S.C.R. 643.
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allotment of symbols by the Returning Officers has to be in
accordance with those directions. Sub-rule (5) of rule 10
gives a power to the Commission to revise the allotment of a
symbol by the Returning Officers in so far as the said
allotment is inconsistent with the directions issued by the
Commission. It would, therefore, follow that Commission has
been clothed with plenary powers by the above mentioned
Rules in the matter of allotment of symbols. The validity
of the- said Rules has not been challenged before us. If
the Commission is not to be disabled from exercising
effectively the plenary powers vested in it in the matter of
allotment of symbols and for issuing directions in cnnection
therewith, it is plainly essential that the Commission
should have the power to settle a dispute in case claim for
the allotment of the symbol of a political party is made by
two rival claimants. In case, it is a dispute between two
individuals, the method for the settlement of that dispute
is provided by paragraph 13 of the Symbols Order. If on the
other hand, a dispute arises between two rival groups for
allotment of a symbol of a political party on the ground
that each group professes to be that party, the machinery
and the manner of resolving such a dispute is given in
paragraph 15. Paragraph 15 is intended to effectuate and
subserve the main purposes and objects of the Symbols Order.
The paragraph is designed to ensure that because of a
dispute having arisen in a political party between two or
more .groups, the entire scheme of the Symbols Order
relating to the allotment of a symbol reserved for the
political party is not set at naught. The fact that the
power for the settlement of such a dispute has been vested
in the Commission would not constitute a valid ground for
assailing the vires of and striking down paragraph 15. The
Commission is an authority created by the Constitution and
according to Article 324, the superintendence, direction and
control of the electoral rolls for and the conduct of
elections to Parliament and to the Legislature of every
State and of elections to the office of President and Vice-
President shall be vested in the Commission. The fact that
the power of resolving a dispute between two rival groups
for allotment of symbol of a political party has been vested
in such a high authority would raise a presumption, though
rebuttable, and provide a guarantee, though not absolute but
to a considerable extent, that the power would not be
misused but would be exercised in a fair and reasonable
manner.
There is also no substance in the contention that as power
to make provisions in respect to elections has been given to
the Parliament by Article 327 of the Constitution, the power
cannot be further delegated to the Commission. The opening
words of Article 327 are "subject to the provisions of this
Constitution". The above words indicate that any law made by
the Parliament in
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exercise of the powers conferred by Article 327 would be
subject to the other provisions of the Constitution
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including Article 324. Article 324 as mentioned above
provides that superintendence, direction and control of
elections shall be vested in Election Commission. It,
therefore, cannot be said that when the Commission issues
direction, it does so not on its own behalf but as the
delegate of some other authority. It may also be mentioned
in this context that when the Central Government issued
Conduct of Elections Rules, 1961 in exercise of its powers
under section 169 of the Representation of People Act, 1951,
it did so as required by that section after consultation
with the Commission.
We, therefore, find no substance in the contention that
paragraph 15 of the Symbols Order is ultra vires the powers
of the Commission.
The result is that all the four appeals fail and are
dismissed but in the circumstances without costs.
S.C. Appeals dismissed.
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