IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.J.B.KOSHY & THE HONOURABLE MR. JUSTICE V.GIRI TUESDAY, THE 17TH FEBRUARY 2009 / 28TH MAGHA 1930 WP(C).No. 3002 of 2009(S) ------------------------- PETITIONER(S): --------------- V.SETHUNATH,ADVOCATE,PUTHENMADOM, RANNI-PERUNAD.P.O,PATHANAMTHITTA DISTRICT, KERALA STATE. BY MR.V.JAYAPRASAD, ADVOCATE RESPONDENT(S): --------------- 1. CHIEF ELECTION COMMISSIONER,ELECTION COMMISSION OF INDIA,NIRVACHAN SADAN,ASHOKA ROAD, NEW DELHI-110001. 2. MINISTRY OF PARLIAMENTARY AFFAIRS,UNION OF INDIA, REPRESENTED BY ITS SECRETARY,SOUTH BLOCK, NEW DELHI-110001. 3. SECRETARY GENERAL,LOK SABHA, PARLIAMENT HOUSE, ROOM NO.107, NEW DELHI. 4. SECRETARY GENERAL, RAJYA SABHA, PARLIAMENT HOUSE,ROOM NO.27, NEW DELHI-110001. 5. SECRETARY,KERALA LEGISLATIVE ASSEMBLY, TRIVANDRUM. 6. DEPARTMENT OF LOCAL ADMINISTRATION, REPRESENTED BY ITS SECRETARY,GOVT.OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM. 7. STATE OF KERALA,REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT OF KERALA,SECRETARIAT, THIRUVANANTHAPURAM. WPC.3002/09 8. COMMUNIST PARTY OF INDIA(MARXIST), REPRESENTED BY ITS SECRETARY,PRAKASH KARATT, A.K.GOPALAN BHAVAN,27-29,BHAI VIHAR MARG, NEW DELHI. 9. P.S.MOHANAN, TALUK SECRETARY,C.P.I(M), PARACKAL HOUSE, MADATHUMOOZHY. 10. C.N.SAMEER,ADVOCATE, CHEMATHU VELY HOUSE NADAKAVU.P.O, UDAYAMPEROOR, ERNAKULAM. BY GOVERNMENT PLEADER SMT.K.MEERA MR.MURALI PURUSHOTHAMAN, SC,ELE.COMMN. FOR R1 MR.P.PARAMESWARAN NAIR,ASST.SOLICITOR GENERAL FOR R2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B. KOSHY,Ag.C.J. & V.GIRI, J. ---------------------------------------- W.P.(C).NO.3002 OF 2009 (S) ---------------------------------------- Dated this the 17th day of February, 2009 J U D G M E N T Koshy, Ag.C.J. Petitioner filed Ext.P1 representation to the Chief Election Commissioner for cancelling the registration of the Communist Party of India (Marxist) as it is subverting the rule of law by resorting to party rule stifling administrative and constitutional machinery. During the argument, it is also stated that the Constitution of the Communist Party of India itself is against the Indian Constitution as it aims at proletarian interpretation and dictatorship of the proletariat. We are of the view that in the absence of fraud or forgery, the Election Commissioner has no power to de-register a political party. In paragraph 41 of the judgment in Indian National Congress (I) v. Institute of Social Welfare and Others ((2002) 5 SCC 685) , exemptions are made out which is as follows: WPC.3002/09 2 41. To sum up, what we have held in the foregoing paragraph is as under: 1. That there being no express provision in the Act or in the Symbols 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 29-A(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 29-A 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 been 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 29-A(5) of the Act or intimating the Election Commission that it has ceased WPC.3002/09 3 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 with the provisions of Section 29-A(5) of the Act, and (c) any like ground where no enquiry is called for on the party 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 29-A of the Act acts quasi-judicially, the provisions of Section 21 of the General Clauses Act have no application. We are of the view that the conditions mentioned in paragraph 41(3) for cancelling the registration are not made out by the petitioner. Hence this writ petition is dismissed. J.B.KOSHY ACTING CHIEF JUSTICE V.GIRI JUDGE prp