No direction can be issued to the Election Commission of India in reference to the internal election of the parties – Madras High Court

W.P.No.261721 IN THE HIGH COURT OF JUDICATURE AT MADRASRESERVED ON:07.12.2021DELIVERED ON:14.12.2021CORAM :THE HON BLE MR.MUNISHWAR NATH BHANDARI ACTING CHIEF JUSTICEANDTHE HON BLE MR.JUSTICE P.D.AUDIKESAVALUW.P.No.261721J.Jayachandran .. Petitioner Vs1 The Election Commissioner of India Election Commission of India Nirvachan Sadan Ashoka Road New Delhi 110 001.2 The All India Anna Dravida Munnetra Kazhagamrep. by its Coordinator O.Pannerselvam and Joint coordinator Edapadi K.Palanisamy Head Office No. 226 Avvai Shanmugam Salai Royapettah Chennai 600 014. 3 O.Paneerselvam Coordinator The All India Anna Dravida Munnetra KazhagamNo.226 Avvai Shanmugam Salai Royapettah Chennai 600 014.____________https: www.mhc.tn.gov.in judis W.P.No.2617214 Edapadi K.Palanisamy Joint Coordinator The All India Anna Dravida Munnetra KazhagamNo.226 Avvai Shanmugam Salai Royapettah Chennai 600 014.5 C.Ponnaiyan Election Commissioner cum Organizational Secretary All India Anna Dravida Munnetra Kazhagam Head Office No.226 Avvai Shanmugam Salai Royapettah Chennai 600 014.6 Munnaivar Pollachi V.Jayaram MLA Election Commissioner cum Secretary of the Constituency Electoral Division All India Anna Dravida Munnetra Kazhagam Head Office No.226 Avvai Shanmugam Salai Royapettah Chennai 600 014... Respondents Prayer: Petition filed under Article 226 of the Constitution of India praying for a writ of mandamus forbearing the first respondent from according its approval for the newly elected post of Coordinator and Joint Coordinator of AIADMK party pursuant to the Election Notice dated 02.12.2021.For the Petitioner:Mr.N.G.R.Prasadfor M s.R.ThirumoorthyORDER____________https: www.mhc.tn.gov.in judis W.P.No.261721MUNISHWAR NATH BHANDARI ACJThe writ petition has been filed seeking a writ of mandamus to forbear the first respondent from according its approval for the newly elected posts of Coordinator and Joint Coordinator of All India Anna Dravida Munnetra Kazhagampursuant to the election notice dated 2.12.2021. An interim injunction is also sought to restrain the fifth and sixth respondents from announcing the election result for the posts of Coordinator and Joint Coordinator pursuant to the election notice pending disposal of the writ petition.2. Learned counsel submits that the petitioner is a loyal and sincere member of the second respondent political party for more than thirty years who rendered dedicated service for upliftment of the people of the Tamil Nadu at large. The second respondent political party came into existence at the instance of M.G.Ramchandran and was approved by the first respondent in the name of All India Anna Dravida Munnetra Kazhagamand allotted a symbol.____________https: www.mhc.tn.gov.in judis W.P.No.2617213. Learned counsel further submits that recently a resolution dated 1 2.12.2021 was flashed in the press media relating to election to the posts of Coordinator and Joint Coordinator of AIADMK from which it came to light that the rule relating to election of Coordinator and Joint Coordinator was amended by providing for direct election by primary members through a single ballot. The third and fourth respondents jointly announced the election notice on 2.12.2021 where the date of election to the posts of Coordinator and Joint Coordinator was mentioned to be on 7.12.2021 and accordingly the fifth and sixth respondents were appointed as Election Commissioners. As per the schedule given therein the counting of votes and results are scheduled on 8.12.2021. The third and fourth respondents ignored the mandatory requirement of issuance of notice 21 days prior to the announcement of the elections and the attempt of the respondents was only to allow two nominations excluding others. 4. Learned counsel also submits that when the petitioner made an effort to enter into the party office he was physically prevented ____________https: www.mhc.tn.gov.in judis W.P.No.261721and brutally manhandled. The third and fourth respondents along with the fifth and sixth respondents did not allow any member to submit their nomination papers and as a consequence the third and fourth respondents would definitely get elected pursuant to the elections. The petitioner knowing about the schedule of election and denial of nomination by none other than the third and fourth respondents is left with no option but to prefer this writ petition to safeguard the democratic values of the party and the country. The petitioner seeks conduct of free and fair election even if it is for the post in the political party for the reason that the members of the political party are elected as Members of Legislative Assembly and Members of Parliament after the election conducted by the Election Commission of India. In view of the above the petitioner challenged the election notice dated 2.12.2021 and presently even the result of the election conducted after sacrificing the democratic value for which the country is known.5. Learned counsel submits that the writ petition would be maintainable as directions have been sought against the Election Commission of India. It is in view of the fact that every election is to ____________https: www.mhc.tn.gov.in judis W.P.No.261721be monitored by the Election Commission under the Representation of the People Act 1951CTC 705 learned counsel for the petitioner submits that a public interest litigation would be maintainable whenever injustice is meted out to large number of people. The court need not insist on alternative remedy rather in exceptional and extraordinary situations it can exercise the jurisdiction under Article 226 of the Constitution of India. The democracy can function only if there are free and fair elections. The right to vote is a constitutional right and ____________https: www.mhc.tn.gov.in judis W.P.No.261721exercise of such right is accomplishment of freedom of expression of voters. The failure on the part of the State Election Commission to ensure free and fair elections may require exercise of the extraordinary jurisdiction under Article 226 of the Constitution of India by this Court. It is for the reason that democracy can function only if there are free and fair elections and duty of the Election Commission is to ensure the same. Taking aforesaid into consideration the writ petition has been filed when the Election Commission failed to exercise its powers to maintain the democratic values and save the valuable right of the voter when it is otherwise a constitutional right. A reference to paragraphs 147 and 148 of the said judgment was given apart from the direction in paragraph 253 of the judgment to impress upon the Court not only to entertain the writ petition but to issue appropriate direction on the Election Commission not to accord approval for the newly elected posts of Coordinator and Joint Coordinator rather to pass appropriate orders to nullify the internal elections of the second respondent political party.7. Learned counsel for the petitioner has given further reference ____________https: www.mhc.tn.gov.in judis W.P.No.261721of the judgment of the Apex Court in the case of Board of Control for Cricket in India v. Cricket Association of Bihar and others 3 SCC 251 wherein also the objection to the maintainability of the writ petition against the BCCI was raised. The Apex Court did not accept the objection rather the writ petition was maintained keeping in mind the affairs of the BCCI not only to select the cricket team to represent the country but even other functions of the BCCI. Those functions were taken to be public functions and thereby the writ petition was held maintainable. The expression "State" appearing in Article 12 of the Constitution of India was given meaning. It is the case of the petitioner that the said judgment is squarely applicable to the present case. The second respondent political party AIADMK represents the public in the elections and thereby the writ petition would be maintainable against it. A further reference to an earlier judgment in the case of Zee Telefilms Ltd v. Union of India 4 SCC 649 has been given in paragraph 30 of the judgment in Board of Control for Cricket in Indiawhere the scope of Article 12 of the Constitution of India was elaborately discussed and held that if the function of a body is of public nature or State function the writ petition would be ____________https: www.mhc.tn.gov.in judis W.P.No.261721maintainable and accordingly the prayer is made not only to maintain the writ petition but to issue appropriate direction nullifying the election to the posts of Coordinator and Joint Coordinator of the second respondent political party.8. We have considered the submission made by learned counsel for the petitioner and perused the records.9. The writ petition has been filed by impleading the Election Commission of India as a party respondent apart from the political partyand other private parties as respondents to the litigation. The petitioner sought directions against the Election Commission of India not to accord its approval to the newly elected posts of Coordinator and Joint Coordinator of the second respondent political party. The prayer aforesaid is made without showing or referring to a provision under the Act of 1951 which obligates the Election Commission to approve the internal elections of the political party. Learned counsel for the petitioner could not specify the role of the Election Commission in the internal elections of the political party. It is apart from the fact that no provision could be referred to ____________https: www.mhc.tn.gov.in judis W.P.No.261721approve or given cognizance to the result of internal party elections. Thus learned counsel for the petitioner could not clarify as to why Election Commission of India has been impleaded as a party respondent. The issue aforesaid is quite relevant for the reason that all other respondents are private parties in reference to which question of maintainability of the writ petition needs to be examined. 10. Learned counsel would harp on the issue of democratic values to be maintained by the political party but could not refer to any provisions whereby the Election Commission can have a role so as to pass appropriate direction on the relief prayed for by the petitioner. 11. As per Article 324 of the Constitution of India the superintendence direction and control of elections is vested in the Election Commission. It is not for internal election of a political party. Section 29A of the Act of 1951 pertains to registration with the Election Commission of associations and bodies as political parties. However there is nothing in Section 29A that requires an enquiry to be conducted into the fairness and validity of the internal ____________https: www.mhc.tn.gov.in judis W.P.No.261721elections held for the posts in a political party. The objection raised by the petitioner that the elections to the posts of Coordinator and Joint Coordinator of the second respondent political party were held without adopting democratic procedure cannot be countenanced as the Election Commission is not empowered to go into the internal elections of a political party. All that Section 29A(9) of the Act of 1951 contemplates is that after an association or body has been registered as a political party any change in its name head office office bearers address etc. shall be communicated to the Election Commission of India without any delay. Such power does not confer any corresponding duty on the Election Commission of India to enter into the internal elections of a political party. In view of the above we find the impleadment of the Election Commission of India is for the sake of it.12. Now next issue that arises for consideration is as to whether the writ petition would be maintainable against the respondent Nos.2 to 6 private parties. Learned counsel for the petitioner submitted that the second respondent is discharging public function and thus a writ petition against it would be maintainable in ____________https: www.mhc.tn.gov.in judis W.P.No.261721the light of the judgment of the Apex Court in the case of Board of Control for Cricket in Indiathe present writ petition should be entertained and in the absence of it the democratic values required to be maintained by each party would stand sacrificed. It is more so when the internal elections conducted for the second respondent political party cannot be said to be free and fair.13. In the case of All India Anna Dravida Munnetra Kazhagam v. State Election Commissionerthe writ petition was not filed to challenge the internal elections of a political party but the elections to the local bodies. The allegation therein was of mass booth capturing and rigging. Therefore this court took cognizance of the aforesaid to maintain the writ petition seeking free and fair elections to the local bodies in reference to Article 243 of the Constitution. In the instant case the election is not to local bodies Assembly or Parliament but internal elections of the political party. ____________https: www.mhc.tn.gov.in judis W.P.No.261721It is not governed by any of the provisions of the Constitution or even the provisions of the Act of 1951 so as to direct the Election Commission not to approve or recognise the internal elections of the party. Moreover we have already held that the Election Commission of India has no authority to look into the internal elections of a political party. In view of the above the judgment in the case of All India Anna Dravida Munnetra Kazhagam v. State Election Commissionerwould have no application as a direction therein in the concluding paragraph was in reference to the elections to local bodies and not a private body.14. The other judgment referred by learned counsel for the petitioner is in the case of Board of Control for Cricket in Indiawherein also an objection was raised about the maintainability of writ petition. The Apex Court threadbare considered the facts of the case and especially the functions of the BCCI to record its finding with reference to Article 12 of the Constitution of India holding that the BCCI is selecting the cricket team to represent India and is discharging many other functions of public nature and thereby discharging public duties thus it would fall ____________https: www.mhc.tn.gov.in judis W.P.No.261721within the ambit of Article 12 of the Constitution of India. 15. In the case on hand the second respondent is not discharging duties of the nature discussed by the Apex Court in the case of Board of Control for Cricket in Indiaor even in the case of Zee Telefilms Ltd v. Union of Indiawould not have any application to the facts of this case.16. In the light of the discussion made above we do not find the writ petition to be maintainable against respondent Nos.2 to 6 and no direction can be issued to the Election Commission of India in reference to the internal election of the parties. Hence the writ petition would not be maintainable in the present case. It is more so when despite an opportunity to learned counsel for the petitioner he could not refer to any provision of the Act of 1951 empowering the Election Commission of India to look into the internal elections of the political party.____________https: www.mhc.tn.gov.in judis W.P.No.261721For the foregoing reasons the writ petition fails and is dismissed finding it to be not maintainable. No costs. Consequently W.M.P.No. 276221 is closed.(M.N.B. ACJ.) 14.12.2021 Index : YessasiTo:The Election Commissioner of India Election Commission of India Nirvachan Sadan Ashoka Road New Delhi 110 001.____________https: www.mhc.tn.gov.in judis W.P.No.261721M.N.BHANDARI ACJAND P.D.AUDIKESAVALU J.(sasi) W.P.No.261721 14.12.2021____________

Summary: “This court took cognizance of the aforesaid to maintain the writ petition seeking free and fair elections to the local bodies in reference to Article 243 of the Constitution. In the instant case, the election is not to local bodies, Assembly or Parliament, but internal elections of the political party.” These were said by the double bench of Hon’ble Mr. Munishwar Nath Bhandari, and Hon’ble Mr. Justice P. D. Audikesavalu in the case of J. Jayachandran v. The Election Commissioner of India (W.P.No.26171 of 2021) Here in the case writ petition has been filed seeking a writ of mandamus to forbear the first respondent from according its approval for the newly elected posts of Coordinator and Joint Coordinator of All India Anna Dravida Munnetra Kazhagam (AIADMK) pursuant to the election notice dated 2.12.2021. An interim injunction is also sought to restrain the fifth and sixth respondents from announcing the election result for the posts of Coordinator and Joint Coordinator pursuant to the election notice, pending disposal of the writ petition. Learned counsel for the petitioner submited that the petitioner is a loyal and sincere member of the second respondent political party for more than thirty years, who rendered dedicated service for upliftment of the people of the Tamil Nadu at large. The third and fourth respondents jointly announced the election notice on 2.12.2021, where the date of election to the posts of Coordinator and Joint Coordinator was mentioned to be on 7.12.2021 and, accordingly, the fifth and sixth respondents were appointed as Election Commissioners. The third and fourth respondents ignored the mandatory requirement of issuance of notice 21 days prior to the announcement of the elections and the attempt of the respondents was only to allow two nominations excluding others. The third and fourth respondents along with the fifth and sixth respondents did not allow any member to submit their nomination papers and, as a consequence, the third and fourth respondents would definitely get elected pursuant to the elections. The petitioner knowing about the schedule of election and denial of nomination by none other than the third and fourth respondents is left with no option but to prefer this writ petition to safeguard the democratic values of the party and the country. Learned counsel for the petitioner also referred to the judgment in the case of All India Anna Dravida Munnetra Kazhagam v. State Election Commissioner, 2007 (1) CTC 705, learned counsel for the petitioner submits that a public interest litigation would be maintainable whenever injustice is meted out to large number of people. Learned counsel for the petitioner has given further reference of the judgment of the Apex Court in the case of Board of Control for Cricket in India v. Cricket Association of Bihar and others, (2015) 3 SCC 251, wherein also the objection to the maintainability of the writ petition against the BCCI was raised. The Apex Court did not accept the objection, rather the writ petition was maintained keeping in mind the affairs of the BCCI not only to select the cricket team to represent the country, but even other functions of the BCCI. The double bench of Hon’ble Mr. Munishwar Nath Bhandari, and Hon’ble Mr. Justice P. D. Audikesavalu ruled out “In the light of the discussion made above, we do not find the writ petition to be maintainable against respondent Nos.2 to 6 and no direction can be issued to the Election Commission of India in reference to the internal election of the parties. Hence, the writ petition would not be maintainable in the present case. It is more so when despite an opportunity to learned counsel for the petitioner, he could not refer to any provision of the Act of 1951 empowering the Election Commission of India to look into the internal elections of the political party.” For the foregoing reasons, the writ petition fails and is dismissed finding it to be not maintainable.