Case: Sadiq Ali &amp; Another Vs. Election Commission of India &amp; Others

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. 35. The case of Samyukta Socialist Party v. Election Commission of India, (1967) 1 SCR 643 = (AIR 1967 SC 898 ) 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. 36. Civil Appeals Nos. 2122-2124 of 1970 have been filed by Shri P. Kakkah 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. 37. It would follow from what has been discussed earlier in this judgment that the Symbols Order makes detailed provisions for the reservation choice and allotment of symbols and the recognition of political parties in connection therewith. That the Commission should specify symbols for elections in parliamentary and assembly constituencies has also been made obligatory by Rule 5 of Conduct of Election Rules. Sub-rule (4) of Rule 10 gives a power to the Commission to issue general or special directions to the Returning Officers in respect of the allotment of symbols. The 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 connection therewith, it is plainly essential that the Commission should have the power to settle a dispute in case claim for the allotment of the symbol of a political party is made by two rival claimants. In case, it is a dispute between two individuals, the method for the settlement of that dispute is provided by paragraph 13 of the Symbols Orders. 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. 38. 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 provision of this Constitution". The above words indicate that any law made by the Parliament in exercise of the powers conferred by Article 327 would be subject to the other provisions of the Constitution including Article 324. Article 324 as mentioned above provides that superintendence, direction and control of elections shall be vested in Election Commission. It, therefore, cannot be said 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 Election Rules, 1961 in exercise of its powers under Section 169 of the Representation of the People Act, 1951, it did so as required by that section after consultation with the Commission.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]20. 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 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 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"21. Controversy between the parties has ranged on the question whether the Commission has taken into account all the available facts and circumstances of the. The Commission in this context considered the various criteria 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 solution25. 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 events 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 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 All India Congress Committee and the delegates reflected by and large the views of the primary membersSo 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 All India Congress Committee, 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 All India Congress Committee while others are nominated by the President. The Working Committee has not been shown to possess any power of vetoing the decision of the All India Congress Committee. On the contrary, majority decisions taken by the Working Committee at the time of All India Congress Committee meetings are placed before the All India Congress Committee for ratification. In view of the fact that the wishes of the majority of the members of All India Congress Committee 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 All India Congress Committee. In any case, we find that as against the slender majority enjoyed by Congress O in the Working Committee, Congress J had substantial majority among the members of All India Congress Committee and the delegates as well as the Congress members of two Houses of Parliament as also the sum total of members of the State LegislaturesThe Commission in this context has found that there were removals and expulsions of the supporters of Congress J from the various Committees 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 All India Congress Committee for convening meeting of the All India Congress Committee. 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 testIn 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 of 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 behalfIn this respect, it has to be borne in mind that the Commission only decides the question as to whether any of the rival 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 Officer in accordance with sub-rules (4) and (5) of the above-mentioned RuleThe 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 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 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 is that party. If 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 party33. 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 up before the Commission. We have consequently not allowed the appellants to raise this matter which hinges upon facts in appeal37. It would follow from what has been discussed earlier in this judgment that the Symbols Order makes detailed provisions for the reservation choice and allotment of symbols and the recognition of political parties in connection therewith. That the Commission should specify symbols for elections in parliamentary and assembly constituencies has also been made obligatory by Rule 5 of Conduct of Election Rules. Sub-rule (4) of Rule 10 gives a power to the Commission to issue general or special directions to the Returning Officers in respect of the allotment of symbols. The 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 connection therewith, it is plainly essential that the Commission should have the power to settle a dispute in case claim for the allotment of the symbol of a political party is made by two rival claimants. In case, it is a dispute between two individuals, the method for the settlement of that dispute is provided by paragraph 13 of the Symbols Orders. 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 manner38. 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 provision of this Constitution". The above words indicate that any law made by the Parliament in exercise of the powers conferred by Article 327 would be subject to the other provisions of the Constitution including Article 324. Article 324 as mentioned above provides that superintendence, direction and control of elections shall be vested in Election Commission. It, therefore, cannot be said 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 Election Rules, 1961 in exercise of its powers under Section 169 of the Representation of the People Act, 1951, it did so as required by that section after consultation with the Commission17. 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 aseembly 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 the Symbols Order. Paragraph 15 provides for the machinery as well as the manner of resolving such a dispute19. 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 question20. In the present case, we find that a claim was made on behalf of Congress J that itss were thes of the Congress. The said claim was repudiated by Congress O and according to it, it was 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 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"24. 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 irrelevant. We can consequently discover no error in the approach of the Commission in applying the rule of majority and numerical strength for determining as to which of the two groups. Congress J and Congress O was the Congress party for the purpose of paragraph 15 of Symbols order25. 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 events 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 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 All India Congress Committee and the delegates reflected by and large the views of the primary membersIn view of the fact that the wishes of the majority of the members of All India Congress Committee 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 All India Congress Committee. In any case, we find that as against the slender majority enjoyed by Congress O in the Working Committee, Congress J had substantial majority among the members of All India Congress Committee and the delegates as well as the Congress members of two Houses of Parliament as also the sum total of members of the State