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TMI Blog1985 (9) TMI 347X X X X Extracts X X X X X X X X Extracts X X X X ..... ticle 324 of the Constitution which vests the power of superintendence, direction and control of all elections to Parliament and to the Legislature of a State in the Commission cannot be construed as conferring the power on the Commission to issue the Symbols Order . It is necessary to set out the relevant provisions of law having a bearing on the above question at the outset for a proper appreciation of the contentions urged on behalf of the petitioner. Article 324 (1) of the Constitution reads thus: "324.(1) The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President held under this Constitution shall be vested in a Commission (referred to in this Constitution as the Election Commission). Articles 327 and 328 of the Constitution which vest the power of making provisions with respect to elections on Parliament and the Legislatures in the States read as follows : "327. Subject to the provisions of this Constitution, Parliament may from time to time by law make provision with respect to all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rules, after consultation with the Commission, for carrying out the purposes of the Act. In exercise of the said power the Central Government has promulgated the Conduct of Elections Rules, 1961 (hereinafter referred to as the 'the Rules'). Rules 5 and 10 of the Rules which are material for the purposes of this case read thus: 5. Symbols for elections in parliamentary and assembly constituencies - (1) The Election Commission shall, by notification in the Gazette of India, and in the Official Gazette of each State, specify the symbols that may be chosen by candidates at elections in Parliamentary or assembly constituencies and the restrictions to which their choice shall be subject. (2) Subject to any general or special direction issued by the Election Commission either under sub-rule (4) or sub-rule (5) of rule 10, where at any such election, more nomination papers than one are delivered by or on behalf of a candidate, the declaration as to symbols made in the nomination paper first delivered, and no other declaration as to symbols shall be taken into consideration under rule 10 even if that nomination paper has been rejected. 10. Preparation of list of contesting candida ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... candidate or his election agent should be informed forthwith the symbol allotted to the candidate and is entitled to be supplied with a specimen thereof. Purporting to exercise its power under Article 324 of the Constitution read with rule 5 and rule 10 of the Rules, the Commission issued the symbols Order in the year 1968 which is impugned in this petition. The Preamble to the Symbols Order reads thus : "S.O. 2959 dated 31st August, 1968 - Whereas the superintendence, direction and control of all elections to Parliament and to the Legislature of every State are vested by the Constitution of India in the Election Commission of India; And, whereas, it is necessary and expedient to provide in the interests of purity of election to the House of the People and the Legislative Assembly of every State and in the interests of the conduct of-such elections in a fair and efficient manner, for the specification, reservation, choice and allotment of symbols, for the recognition of political parties in relation thereto and for matters connected therewith. Now, therefore, in exercise of the powers conferred by Article 324 of the Constitution, read with rule 5 and rule 10 of the Conduct o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en set up by a political party or not. It deals with the power of the Commission to issue instructions to unrecognised political parties for their expeditious recognition on fulfillment of conditions specified in paragraph 6. The power of the commission in relation to splinter groups or rival sections of the recognised political party and its power in case of amalgamation of two or more political parties are dealt with in paragraphs 15 and 16 of the Symbols Order. Under paragraph 17 of the Symbols Order the Commission is required to publish by one or more notifications in the Gazette of India lists specifying the national parties and the symbols respectively reserved for them, the State parties, the State or States in which they are State parties and the symbols respectively reserved for them in such State or States, unrecognised political parties and the State or States in which they function and the free symbols for each State. Every such list is required to be kept up-to-date, as far as possible. Under paragraph 18 of the Symbols Order the Commission has reserved to itself the power to issue instructions and directions for the clarification of any of the provisions of the Symbol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Election Commissioners, if any, as the President may from time to time fix, who are also to be appointed by the President. When Election Commissioners are appointed, the Chief Election Commissioner becomes the Chairman of the Commission. There is provision for the appointment of Regional Commissioners to assist the Commission. In order to ensure the independence and impartiality of the Commission, it is provided that the Chief Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court of India and that the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment. An Election Commissioner or a Regional Commissioner cannot be removed from office except on the recommendation of the Chief Election Commissioner. The superintendence, direction and control of the conduct of elections referred to in Article 324(1) of the Constitution are entrusted to the Commission. The words 'superintendence', 'direction' and 'control' are wide enough to include all powers necessary for the smooth conduct of elections. It is, however, seen t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion disguised under a constitutional procedure. It is no doubt a paradox that while the country as a whole yields to no other in its corporate sense of unity and continuity, the working parts of its political system are so organized on party basis in other words on systematized differences and unresolved conflicts. That is the essence of our system and it facilitates the setting up of a Government by the majority. Although till recently the Constitution had not expressly referred to the existence of political parties, by the amendments made to it by the Constitution (Fifty-Second Amendment) Act, 1985 there is now a clear recognition of the political parties by the Constitution. The Tenth Schedule to the Constitution which is added by the above amending Act acknowledges the existence of political parties and sets out the circumstances when a member of Parliament or of the State Legislature would be deemed to have defected from his political party and would thereby be disqualified for being a member of the House concerned. Hence it is difficult to say that the reference to recognition, registration etc. of political parties by the Symbols Order is unauthorised and against the politic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. m e 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 offices 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 provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in order to facilitate a free and fair election with promptitude. It is, therefore, legitimate on the part of the Commission to make general provisions even in anticipation or in the light of experience in respect of matters relating to symbols. m at would also inevitably require it to regulate its own procedure in dealing with disputes regarding choice of symbols when raised before it. Further that would also sometimes inevitably lead to adjudication of disputes with regard to recognition of parties or rival claims to a particular symbol. The Symbols Order is, therefore, a compendium of directions in the shape of general provisions to meet various kinds of situations appertaining to elections with particular reference to symbols. The power to make these directions, whether it is a legislative activity or not, flows from Article 324 as well as from rules 5 and 10. It was held in Sadiq Ali (Supra) that '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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this case to the reservoir of power under Article 324(1) which empowers the Commission to issue all directions necessary for the purpose of conducting smooth, free and fair elections. Our attention is not drawn by the learned counsel for the petitioner to any specific provision in the Symbols Order which cannot be brought within the scope of either rule 5 or rule 10 of the Rules or Article 324(1) of the Constitution and which is hit by the principle delegatus non pottes delegare, i.e. a delegate cannot delegate, the Commission itself in this case being a donee of plenary powers under Article 324 (1) of the Constitution in connection with the conduct of elections referred to therein subject of course to any legislation made under Article 327 and Article 328 of the Constitution read with Entry 72 in List I or Entry 37 in List II of the Seventh Schedule to the Constitution and the rules made thereunder. While construing the expression 'superintendence', 'direction and control' in Article 324(1), one has to remember that every norm which lays down a rule of conduct cannot possibly be elevated to the position of legislation or delegated legislation. There are some author ..... X X X X Extracts X X X X X X X X Extracts X X X X
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