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TMI Blog1971 (11) TMI 166X X X X Extracts X X X X X X X X Extracts X X X X ..... r, 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). 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 Congress is a voluntary association; it is neither a statutory body nor a registered society under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amaniam 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 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 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ress Committee, out of 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 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 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 Congr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 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 Cong ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch notice and the name and specimen signature of the 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 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 amalgama ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; ----------------------------------------------------------- 12 34 5 6 I-Parliament 1. Lok Sabha 221 642 28 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 as Indian National 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roves 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 obvio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngress '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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so 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 proceedings 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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.( [1967] 1 S.C.R. 643.) 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itical 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 Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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