Kerala High Court
P.J.Joseph vs Election Commission Of India on 22 February, 2021
Author: Shaji P. Chaly
Bench: S.Manikumar, Shaji P.Chaly
W.A. Nos.1515 & 1516 of 2020 : 1:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
MONDAY, THE 22ND DAY OF FEBRUARY 2021 / 3RD PHALGUNA, 1942
WA.No.1515 OF 2020
AGAINST THE JUDGMENT DATED 20.11.2020 IN WP(C) 18556/2020(T) OF HIGH
COURT OF KERALA
APPELLANT/PETITIONER:
P.J.JOSEPH, MLA,
AGED 79 YEARS
S/O. LATE P.O.JOSEPH, PALATHINAL HOUSE, PURAPPUZHA P.O.,
THODUPUZHA, IDUKKI, KERALA-685 583.
BY ADV. SRI.K.C.VINCENT
SRI. GEORGE POONTHOTTAM (SR)
SRI.P.B.KRISHNAN
RESPONDENTS/RESPONDENTS:
1 ELECTION COMMISSION OF INDIA
REPRESENTED BY ITS SECRETARY, NIRVACHAN SADAN, ASHOKA
ROAD, NEW DELHI-110 001.
2 JOSE K. MANI, M.P.,
AGED 56 YEARS
S/O. LATE K.M.MANI, 601, KAVERI APARTMENTS, DR. B.D.MARG,
NEW DELHI-110 001, RESIDING AT KARINGOZHACKAL HOUSE,
PALA P.O., KOTTAYAM, KERALA-686 575.
3 THOMAS CHAZHIKADAN,
AGED 67 YEARS
S/O.CYRIAC, CHAZHIKATTU HOUSE, SH MOUNT P.O., KOTTAYAM,
KERALA-686 006.
W.A. Nos.1515 & 1516 of 2020 : 2:
4 ROSHY AUGUSTINE,
AGED 52 YEARS,
S/O.AUGUSTINE, CHERUNILATHUCHALIL HOUSE, VAZHATHOPPU,
IDUKKI COLONY P.O., IDUKKI, KERALA-685 602.
5 DR. N.JAYARAJ,
AGED 63 YEARS
S/O. LATE NARAYANAKURUPPU, INDEEVARAM HOUSE,
CHAMPAKKARA P.O., KARUKACHAL, KOTTAYAM, KERALA-686 540.
6 JOY ABRAHAM,
AGED 68 YEARS
S/O.ITTYAVIRA, MAZHUVANNOOR HOUSE, MELAMPARA P.O.,
THALAPPALAM, KOTTAYAM, KERALA-686 578.
7 MONS JOSEPH,
AGED 55 YEARS
S/O.JOSEPH, NARIMATTAM HOUSE, POOZHICKLE P.O., KOTTAYAM,
KERALA-686 604.
8 KURIAKOSE P.C.,
AGED 55 YEARS
S/O.CHERIAN, R/AT PADAVIL HOUSE, KIZHATHADIYOOR P.O.,
KOTTAYAM DISTRICT, KERALA-686 574.
R2, R4-5 BY ADV. SRI.GEORGIE JOHNY
R3 BY ADV. SRI.JUSTINE JACOB
R3 BY ADV. SMT.ANUROOPA JAYADEVAN
R3 BY ADV. SHRI.ASHRUTH NASER
R2, R4 & R5 BY SRI. G.SHRIKUMAR(SR)
R1 BY SRI. MURALI PURUSHOTHAMAN, SC
SRI.K.GOPALAKRISHNA KURUP(SR) FOR R3,
R6 & R7 BY SRI.G.SREEKUMAR(CHELUR)
R8 BY SRI. MANU VYASAN PETER
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 22-02-2021, ALONG
WITH WA. NO. 1516/2020, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.A. Nos.1515 & 1516 of 2020 : 3:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
MONDAY, THE 22ND DAY OF FEBRUARY 2021 / 3RD PHALGUNA, 1942
WA.No.1516 OF 2020
AGAINST THE JUDGMENT DATED 20.11.2020 IN WP(C) 18638/2020(D) OF HIGH
COURT OF KERALA
APPELLANT/PETITIONER IN THE WRIT PETITION:
KURIAKOSE P.C.
AGED 55 YEARS
S/O.CHERIAN, PADAVIL HOUSE, KIZHATHADIYOOR P.O.,
KOTTAYAM DISTRICT, KERALA-686 574.
BY ADV. SRI.MANU VYASAN PETER
RESPONDENTS/RESPONDENTS:
1 ELECTION COMMISSION OF INDIA
REPRESENTED BY ITS SECRETARY, NIRVACHAN SADAN, ASHOKA
ROAD, NEW DELHI-110 001.
2 JOSE K. MANI,
AGED 56 YEARS
M P, S/O. LATE K.M.MANI, KARINGOZHACKAL HOUSE, PALA P.O.,
KOTTAYAM, KERALA-686 575.
3 P.J.JOSEPH,
AGED 79 YEARS
MLA, S/O. LATE P.O.JOSEPH, PALATHINAL HOUSE, PURAPPUZHA
P.O., THODUPUZHA, IDUKKI, KERALA-685 583.
4 JOY ABRAHAM,
AGED 68 YEARS
W.A. Nos.1515 & 1516 of 2020 : 4:
S/O.ITTYAVIRA, MAZHUVANNOOR HOUSE, MELAMPARA P.O.,
THALAPPALAM, KOTTAYAM, KERALA-686 578.
5 MONS JOSEPH,
AGED 55 YEARS
S/O.JOSEPH, NARIMATTAM HOUSE, POOZHICKOLE P.O., KOTTAYAM,
KERALA-686 604.
6 KERALA CONGRESS (M) HAVING ITS STATE COMMITTEE OFFICE,
NEAR FIRE STATION KOTTAYAM, PIN-686 001, REPRESENTED BY
ITS WORKING CHAIRMAN, SHRI. P.J.JOSEPH.
R2 BY ADV. SRI.GEORGIE JOHNY
R1 BY SRI. MURALI PURUSHOTHAMAN, SC
R2 BY SRI. G. SREEKUMAR, SR.
R3 BY SRI. GEORGE POONTHOTTAM, SR
R3 BY SRI. P.B. KRISHNAN
R4 & R5 BY SRI. G. SHREEKUMAR (CHELUR)
SRI. S. SREEKUMAR
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 22-02-2021, ALONG
WITH WA.1515/2020, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.A. Nos.1515 & 1516 of 2020 : 5:
Dated this the 22nd day of February, 2021.
JUDGMENT
SHAJI P. CHALY, J.
The captioned appeals are preferred by the petitioners in the writ petition challenging the common judgment of the learned single Judge in W.P.(C) Nos. 18556 and 18638 of 2020, whereby the learned single Judge upheld the order of the Election Commission of India passed in favour of Kerala Congress (Mani), a political party, by a majority of 2:1, granting the symbol 'two leaves', in favour of the group led by Sri. Jose K Mani after finding that there was a split in the Kerala Congress (Mani) resulting in the formation of the two rival groups i.e., one led by Sri. Jose K. Mani and the others led by Sri. P. J. Joseph, each claiming to be that party, invoking the powers conferred under paragraph 15 of the Election Symbols (Reservation and Allotment) Order, 1968 ('Symbols Order, 1968' for brevity).
2. It was, thus, challenging the legality and correctness of the order passed by the Election Commission of India that the writ W.A. Nos.1515 & 1516 of 2020 : 6: petitions were filed by Sri. P.J. Joseph as well as one Sri. Kuriakose P.C alleged to be a State Committee member.
3. The learned single Judge, on assimilation of the factual and legal circumstances, found that the order passed by the Election Commission of India, had taken into account the legal, and factual circumstances available on record, and did follow the principles of law laid down by the Apex Court in its judgments in Sadiq Ali and another v. the Election Commission of India, New Delhi and others [AIR 1972 SC 187], All Party Hill Leaders' Conference, Shillong v. Captain W.A. Sangma and others [(1977) 4 SCC 161], A.C. Jose v. Sivan Pillai and others [(1984) 2 SCC 656], Kanhiya Lal Omar v. R.K. Trivedi and others [AIR 1986 SC 111], Subramanian Swamy v. Election Commission of India [(2008) 14 SCC 318] and others specifically referred to, and hence held as follows:
"34. The prime grounds on which the petitioners in the writ petitions seek relief are that (1) consequent to deletion of Paragraph 3 from the Xth Schedule to the Constitution of India and after the insertion of Part IV-A in the Representation of the People Act, 1951 especially Section 29-A therein, Paragraph 15 of the Symbols Order has become redundant; (2) that the Election Commission is exercising only a peripheral jurisdiction in the matter of recognition and allocation of symbols and when the prime pillars of the dispute are outside the jurisdictional authority of the Election Commission, the Commission ought W.A. Nos.1515 & 1516 of 2020 : 7: not have ventured to decide on allocation of symbol; and (3) that even assuming that the Election Commission has jurisdiction to entertain petition for allocation of symbol, the facts of the case available and relied on in the petition filed by the 2nd respondent, do not disclose any material for the Election Commission to entertain the petition.
35. Article 324 of the Constitution of India provides for establishment of an Election Commission for superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of all elections to the Parliament and Legislatures of the States. Article 327 empowers the Parliament to make laws for all matters relating to or in connection with elections. With the plenary powers available to it under Article 324, the Election Commission has framed the Symbols Order in 1968.
Originally, the Symbols Order provided for registration of political parties, recognition of political parties and allocation of symbols to the candidates contesting in elections. Paragraph 15 of the Symbols Order reads as follows:-
"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 or groups and other persons as desire to be heard decide that one such rival section or group or none of such rival sections or groups is that recognised political party and the decision of the Commission shall be binding on all such rival sections or groups."
It is to be noted that even prior to 1968, Rule 5 of the Conduct of Election Rules, 1961 empowered the Election Commission to specify symbols. Rule 10 vested the powers on Returning Officers to allot symbols to the candidates in elections.
36. By the 52nd Constitution Amendment Act, the Xth Schedule was added to the Constitution of India, with the avowed object of eliminating W.A. Nos.1515 & 1516 of 2020 : 8: defections of Legislators from one political party to another.
37. Section 29-A was inserted in the Representation of the People Act, 1951 on 15.03.1989. Section 29-A provided for registration of political parties with the Election Commission. Section 29-A of the Representation of the People Act, 1951 reads as follows:-
"29-A. Registration with the Election Commission of associations and bodies as political parties -- (1) Any association or body of individual citizens of India calling itself a political party and intending to avail itself of the provisions of this Part shall make an application to the Election Commission for its registration as a political party for the purposes of this Act.
(2) Every such application shall be made,--
(a) if the association or body is in existence at the commencement of the Representation of the People (Amendment) Act, 1988 (1 of 1989), within sixty days next following such commencement;
(b) if the association or body is formed after such commencement, within thirty days next following the date of its formation.
(3) Every application under sub-section (1) shall be signed by the chief executive officer of the association or body (whether such chief executive officer is known as Secretary or by any other designation) and presented to the Secretary to the Commission or sent to such Secretary by registered post.
(4) Every such application shall contain the following particulars, namely:--
(a) the name of the association or body;
(b) the State in which its head office is situate;
(c) the address to which letters and other communications meant for it should be sent;W.A. Nos.1515 & 1516 of 2020 : 9:
(d) the names of its president, secretary, treasurer and other office-bearers;
(e) the numerical strength of its members, and if there are categories of its members, the numerical strength in each category;
(f) whether it has any local units; if so, at what levels;
(g) whether it is represented by any member or members in either House of Parliament or of any State Legislature; if so, the number of such member or members.
(5) The application under sub-section (1) shall be accompanied by a copy of the memorandum or rules and regulations of the association or body, by whatever name called, and such memorandum or rules and regulations shall contain a specific provision that the association or body shall bear true faith and allegiance to the Constitution of India as by law established, and to the principles of socialism, secularism and democracy, and would uphold the sovereignty, unity and integrity of India.
(6) The Commission may call for such other particulars as it may deem fit from the association or body.
(7) After considering all the particulars as aforesaid in its possession and any other necessary and relevant factors and after giving the representatives of the association or body reasonable opportunity of being heard, the Commission shall decide either to register the association or body as a political party for the purposes of this Part, or not so to register it; and the Commission shall communicate its decision to the association or body:
Provided that no association or body shall be registered as a political party under this sub-section unless the memorandum or rules and regulations of such association or body conform to the provisions of subsection (5).
(8) The decision of the Commission shall be final. W.A. Nos.1515 & 1516 of 2020 : 10: (9) After an association or body has been registered as a political party as aforesaid, any change in its name, head office, office-bearers, address or in any other material matters shall be communicated to the Commission without delay."
By the insertion of Section 29-A in the year 1989, the power of the Election Commission to register political parties under the Symbols Order ceased to exist. The Election Commission also deleted Paragraph 3 dealing with registration of political parties, from the Election Symbols Order in the year 1992. It is to be noted that neither Section 29-A nor any of the provisions in Part IV-A provides for de-recognition of a registered political party.
38. The Hon'ble Apex Court considered the powers of the Election Commission under Article 324 of the Constitution of India and under different Paragraphs of the Symbols Order in Sadiq Ali (supra) and held that the Election Commission has been clothed with plenary powers in the matter of allotment of symbols. 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 symbols of a political party is made by two rival claimants. Paragraph 15 of the Symbols Order 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.
39. In All Party Hill Leaders' Conference, Shillong (supra), the Apex Court again considered the powers of the Election Commission. The Apex Court held that the power to decide dispute is a part of the State's judicial power and that power is conferred on the Election Commission by Article 324 of the Constitution. The Commission exclusively resolves disputes between rival parties with regard to claims for being a recognised political party for the purpose of electoral symbol. The Apex Court specifically held that the decision with regard to the reserved symbol or for that matter of that any symbol for the purpose of election is within the special jurisdiction of the Election Commission and it is not permissible for the ordinary hierarchy of courts to entertain such W.A. Nos.1515 & 1516 of 2020 : 11: a dispute.
40. In Mohinder Singh Gill and another v. Chief Election Commissioner [AIR 1978 SC 851], a Constitution Bench of the Hon'ble Apex Court held that Article 324 of the Constitution is a plenary provision for vesting the whole responsibility for National and State elections and therefore, the necessary powers to discharge that function. The Commission cannot defy any law made by the Parliament, armed by Article 324. The power under Article 324 has to be exercised keeping with the guidelines of the Rule of law. Article 324 operates in areas left unoccupied by the Legislation. The words "superintendence, direction and control" as well as "conduct of all elections" appearing in Article 324 are in broadest terms and operate in areas left unoccupied by Legislation.
41. In A.C. Jose (supra), the Apex Court held that the intention of the founding fathers of our Constitution was to make the Commission a separate and independent body so that the Election machinery may not be outside the control of the executive government. The superintendence, direction and control of the preparation of electoral rolls and all election to Parliament and State legislatures should be left to the Election Commission. This object has been fully carried out in the provisions in Articles 324 to 329. The said judgment was delivered placing reliance on the earlier decision of the Apex Court in Sadiq Ali (supra).
42. In Kanhiya Lal Omar (supra), the Apex Court upheld the power of the Commission to recognise political parties and to decide disputes arising amongst them or between splinter groups within a political party and the power of the Commission to issue the Symbols Order. The Apex Court noted that it could not be said that when the Commission issued the Symbols Order, it was not doing so on its own behalf but as the delegate of some other authority. The power to issue the Symbols Order was held to be comprehended in the power of superintendence, direction and control of elections vested in the Commission. The Apex Court held that Article 324 of the Constitution operates in areas left unoccupied by legislation and the words "superintedence, direction and control" would include the power to make all such provisions.
W.A. Nos.1515 & 1516 of 2020 : 12:
43. The contention of the counsel for the petitioners is that the afore judgments of the Apex Court were delivered prior to the amendment incorporating Section 29-A in the Representation of the People Act, 1951 with effect from 15.03.1989 and therefore those judgments cannot be applied as such, once the power of the Election Commission to register political parties under the Symbols Order, 1968 is taken away.
44. It is to be noted that even after insertion of Section 29-A in the year 1988, the Hon'ble Apex Court in the judgment in Subramanian Swamy (supra) quoted Sadiq Ali (supra) with approval in which judgment it was held that 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 symbol.
45. The validity of amendment to Election Symbols Order, 1968 came up for consideration before the Apex Court in the year 2012 also in Desiya Murpokku Dravida Kazhakom and others v. Election Commission of India [(2012) 7 SCC 340] and the Hon'ble Apex Court held as follows:-
"31. The submissions made on behalf of the writ petitioners regarding the constitutional validity of the Election Symbols Order, 1968 and the power of the Election Commission to settle issues relating to claims of splinter groups to be the original party, had fallen for the decision of this Court about 40 years ago in Sadiq Ali's Case, when this Court had occasion to observe that the Election Commission had been clothed with plenary power by Rules 5 and 10 of the conduct of Election Rules, 1961, in the matter of conducting of elections, which included the power to allot symbols to candidates during elections. The challenge to the vires of the symbols order, 1968, was, accordingly, repelled.
32. The view in Sadiq Ali's Case has since been followed in the All Party Hills Conference Case (supra), Rooplal Sati's Case (supra) and as recently as in Subramaniam Swamy's Case (supra), to which reference has been made in the earlier part of this judgment, where the provisions of Article 324 of the W.A. Nos.1515 & 1516 of 2020 : 13: Constitution vesting the superintendence, direction and control of elections, were considered in detail and it was, inter alia, held that in addition to Rules 5 and 10 of the Conduct of Election Rules, 1961, the power vested in the Election Commission could be raised to Article 324 of the Constitution."
46. The Hon'ble Apex Court had occasion to consider Paragraph 15 of the Symbols Order recently in the year 2019, in Edapaddi K. Palaniswami v. T.T.V. Dhinakaran [2019 (3) SCALE 309]. The issue involved in the said judgment was entitlement to use Election Symbols among two rival factions in a recognised State Political Party in Tamil Nadu. In the said judgment, the Hon'ble Apex Court held as follows:-
"The closest provision is Paragraph 15 of the Symbols Order, which deals with the powers of the Election Commission in relation to splinter groups or rival factions of the political party. But, once that dispute is answered by the Election Commission and that decision attains finality, the splinter group will have no other option but to register itself as a political party and only after fulfillment of the requirement specified in paragraphs 6A to 6C of the Symbols Order, 1968, as applicable, may be given recognition as a National or State political party."
The said judgment related to a dispute which had arisen in the year 2017. The aforesaid judgments would indicate that the law laid down by the Hon'ble Apex Court with regard to the power of the Election Commission in allocating Election Symbols to political parties in the judgment in Sadiq Ali (supra), has been consistently followed by the Hon'ble Apex Court even after the incorporation of Section 29-A in the Representation of the People Act, 1951.
47. The contention of the petitioners is that no arguments based on redundancy of Paragraph 15 of the Election Symbols Order were made in any of the said judgments pronounced after 1989. Therefore, this Court shall consider the issue without regard to the afore judgments.
48. It is not in dispute that the Election Commission has plenary powers under Article 324 of the Constitution. The power of the Commission to frame the Symbols Order in exercise of its plenary powers, is also not under dispute. The argument is that once Section 29- W.A. Nos.1515 & 1516 of 2020 : 14: A has been incorporated in the Representation of the People Act, 1951 for registration of political parties, orders passed by the Election Commission allocating Election Symbols to one of the rival factions of a political party, may go against Section 29-A itself. This Court is of the opinion that Section 29-A and Paragraph 15 of the Symbols Order operate in different areas. Registration of a political party under Section 29-A, need not necessarily have a direct relation to allocation of symbols. Allocation of election symbols is intended to maintain purity in elections. Section 29-A does not speak of election symbols. Therefore, any order passed by the Election Commission allocating election symbol to any one of the rival factions of a political party cannot have a direct impact on registration of a political party.
49. It is also to be noted that election symbols are considered essential in a country like India where literacy level of voters are not satisfactory. It is also a statutory requirement under the Conduct of Elections Rules, 1961. Therefore, even if it is assumed that Paragraph 15 of the Symbols Order is redundant, allocation of election symbols to political parties is indispensible. As there is no statutory provision regulating allocation of symbols to political parties and candidates in elections, the duty and power to regulate allocation of symbols would vest with the Election Commission even in the absence of Paragraph 15, in view of Article 324 of the Constitution of India. Under the circumstances, this Court is not inclined to accept the arguments raised by the petitioners in this regard.
50. The further contention of the petitioners is that under the Symbols Order, in view of the fact that registration of political parties now falls under Part IV-A of the Representation of the People Act, 1951, the Election Commission is exercising only a peripheral jurisdiction. In view of the judgments of the Apex Court in Jai Mahal Hotels Pvt. Ltd. v. Rajkumar Devraj and others [(2016) 1 SCC 423] and in Ammonia Supplies Corporation (P) Ltd. v. Modern Plastic Containers Pvt. Ltd. [(1998) 7 SCC 105], if for reasons of complexity or otherwise the matter could be more conveniently decided in a Suit, the Election Tribunal ought to relegate the parties to such remedy. The argument is not acceptable for two reasons. Firstly, even according to the petitioners, a decision taken by the Election Commission in exercise of its powers under Article 324 and Paragraph 15 of the Symbols Order is not W.A. Nos.1515 & 1516 of 2020 : 15: tentative, but final. When a Constitutional functionary exercises powers and passes orders which are final in nature, subject only to judicial review under Constitutional provisions, it cannot be said that such Constitutional functionary's jurisdiction is peripheral. Secondly, the Hon'ble Apex Court has in All Party Hill Leaders' Conference, Shillong (supra) has held that the decision with regard to the reserved symbol is within the special jurisdiction of the Election Commission and it is not permissible for the ordinary hierarchy of courts to entertain such a dispute. In such circumstances, it cannot be held that the adjudicatory powers exercised by the Election Commission are peripheral in nature.
51. Yet another ground urged by the petitioners is that the Election Commission can invoke Paragraph 15 only when the Commission has sufficient 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 argument is that the 2 nd respondent has raised a dispute only as to who is the Chairman of the KC(M) and that by itself is not sufficient to hold that there are rival groups/factions in KC(M).
52. The Election Commission, in fact, did not consider the dispute as to the Election of Chairman held on 16.06.2019. The Election Commission noted the following facts:-
(1) Both groups held separate Steering Committee Meetings in relation to by-election in Pala Assembly Constituency and took divergent decisions in fielding a candidate.
(2) Four out of the seven elected legislators had signed the petition dated 18.10.2019 stating that rival factions exist, which is an indicator of split in the legislative wing.
(3) Both parties claimed majority support in the State Committee and submitted affidavits in support of them. Both parties failed to submit original list of the State Committee Members.
53. It was on the basis of the aforesaid undisputed facts that the Election Commission came to the conclusion that there are two factions/groups in the KC(M). The conclusions arrived at by the Election Commission were based on materials available before the Commission. The conclusions of the Commission cannot be said to be perverse and it W.A. Nos.1515 & 1516 of 2020 : 16: cannot be said that no reasonable person can arrive at such conclusions. This Court cannot, in exercise of the jurisdiction under Article 226 of the Constitution of India, interfere with the said finding of fact.
54. The further argument on behalf of the petitioners is that when the strength of the State Committee of KC(M) is admittedly 450, the Election Commission ought not have ventured to hold a Test of Majority in numerical strength, with a collegium of 305 members. It is evident from Ext.P1 order that the Party Constitution does not provide for the authority responsible for finalising list of State Committee Members. There is discrepancy in relation to the authority who finalised the State Committee list. The Director (Law) who verified the authenticity of affidavits, reported that after taking into account the allegations made by both parties, the possibility of forgery and manipulation by both the parties could not be ruled out.
55. It may be noted that in Ext.P14 Order in IA No.295/2019 in OS No.53/2019, the Munsiff's Court, Idukki also doubted the authenticity of list and observed that the custodian of the list has not produced the list of State Committee Members before the Court. As both the lists produced by the rival factions were unreliable, the Election Commission proceeded to decide the numerical strength based on majority of members admitted by both sides. Such action of the Commission cannot be found fault with, in the circumstances of the case. It is further to be noted that the Commission based on its decision, not only considering the support of undisputed State Committee members, but also on the numerical strength of legislative party members of the party. Therefore, the Election Commission was justified in adopting a course available to it, in the facts and circumstances of the case.
56. This Court is also not inclined to accept the argument that the petition of the 2 nd respondent claiming Party Symbol is a class action and all members of the KC(M) ought to have been put to notice. On a similar situation, the Apex Court in Sadiq Ali (supra) held as follows:
"25. 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 W.A. Nos.1515 & 1516 of 2020 : 17: 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 members."
The KC(M) being a State Party, the Election Commission treated the State Committee of KC(M) as the representative organisational wing and proceeded to determine comparative strength of both factions in the said Committee. Respondents 6 and 7 therefore cannot be heard to contend that petitions before the Commission is a class action and all members of KC(M) ought to have been put to notice."
In view of the findings as stated above, this Court finds no reason to interfere with the impugned order of the 1st respondent- Election Commission of India. The writ petitions therefore stand dismissed."
4. We have heard the learned senior counsel appearing for the appellants Sri. S. Sreekumar and Sri. Goerge Poonthottam, and learned counsel Sri. P.B. Krishnan assisted, by Adv. K.C. Vincent and Adv. Manu Vyasan Peter and Senior Adv. Sri. G. Sreekumar and Sri.K Gopalakrishna Kurup for the contesting respondents, and Sri. Murali Purushothaman for the Election Commission of India, and perused the W.A. Nos.1515 & 1516 of 2020 : 18: pleadings and materials on record.
5. At the outset, it is clarified that when the matter came up for admission, interim relief was declined as per an order dated 23.11.2020, after considering the issues raised by the parties elaborately. Sri. George Poonthottam, learned Senior Counsel and Sri. P.B. Krishnan, learned counsel for the appellant in W.A. No. 1515 of 2020 made the following submissions:
The learned Single Judge failed to appreciate the relevance of the 10th Schedule to the Constitution of India, which was intended to curb the menace of defection. The Constitution (91st Amendment) Act, 2003 deleted paragraph 3 of the said schedule, which permitted any member of the House to make a claim that he and any other members of the Legislative party constitute the group representing a faction which has arisen as a result of the split in his original party and such group consists of not less than one-third of the Legislature party to claim the exemption from the consequences of paragraph 2 of the Schedule. As such, the petitioners before the Commission, all being Legislature party members, could not have made a claim of split which should not have raised in any House. It is settled law that what cannot be done directly cannot be permitted to be done indirectly. W.A. Nos.1515 & 1516 of 2020 : 19:
6. The learned Single Judge has also failed to appreciate the fact that even when the writ petitioners claim that rival groups exist in the party and their group is the party, no petition under the Tenth Schedule has been preferred alleging voluntarily giving up of membership by the other group. This also shows that the petitioners before the Commission were trying to achieve their vested interest through an indirect method invoking the so-called jurisdiction of the Commission under the Symbols Order, 1968.
7. The learned Single Judge also failed to see that the Commission, while entering a finding on the preliminary issue as to the redundancy of paragraph 15 without applying its mind, stated that the Commission was consistently issuing orders under paragraph 15. The learned single Judge ought to have found that the Commission should use its wisdom and to think on its powers under Article 324 of the Constitution of India and to work up reasonable and sustainable procedures to redress the disputes if required in the case of splits in political parties. The Commission should not have been permitted to venture procedures, which may defeat the intention of Tenth schedule by invoking the self proclaimed powers incorporated in the Symbols Order, 1968. The learned single Judge failed to appreciate that the Symbols Order, 1968 was issued at a time when the Tenth Schedule W.A. Nos.1515 & 1516 of 2020 : 20: was not in force.
8. The learned Single Judge also failed to enter a finding on the second relief sought for in the writ petition that paragraph 15 of the symbols order 1968 has become redundant after deletion of paragraph 3 of the Tenth schedule of the Constitution of India, though there are discussions in the judgment in relation to the arguments put forward by the learned counsel for the writ petitioners. Thus, the learned single Judge failed to answer the main issue touching the constitutional validity of paragraph 15. The learned Single Judge also failed to look into the claim of the Commission that the Tenth Schedule and the Symbols Order, 1968 are dealing matters which are distinct and separate. The learned single Judge also failed to see that the Legislature wing as well as the organizational wing of the political parties overlaps each other and are much interlinked.
9. The learned Single Judge also failed to appreciate the contention that Ext. P23 petition before the Commission does not contain averments to invoke paragraph 15. Except a bald allegation as to the existence of groups in the party, there was no material before the Commission to show that split had occurred in Kerala Congress (M). The learned Single Judge also failed to take note of the materials, W.A. Nos.1515 & 1516 of 2020 : 21: which show that the real issue relates to the election to the post of Chairman and the interpretations of the provisions of the party Constitution which had already been decided by the Civil Courts. The learned single Judge also failed to take note of the fact that the Commission even exceeded in entering a finding that there is split in the party, when the claim raised by the parties before the Commission was only that there are rival groups in the party.
10. The learned single Judge also failed in entering a finding that the reasonings given by the Commission for finding split in party are sustainable. The specific case of the appellant in the writ petition was that there were no parallel meetings in relation to selection of candidates for the Pala Assembly by-election. It was brought to the notice of the learned Single Judge that the claim of the Commission that the meeting held on 23.8.2019 did not decide not to contest the election is factually incorrect. No such decision was taken therein relating to any candidate for the Pala by-election. Furthermore, there was no material before the Commission to show that any parallel meeting was held on 30.08.2019. The Senior Counsel appearing for the 2nd respondent even conceded before the learned Single Judge that no meeting was actually held on 30.08.2019 and the finding by the Commission is a clerical error. The finding that there occurred a W.A. Nos.1515 & 1516 of 2020 : 22: split in party is based on the presumption that parallel meetings were convened in relation to Pala Assembly by-election, which is factually incorrect and hence, the finding of the learned single Judge could not be sustained.
11. The second reason emphasized by the Commission and reiterated by the learned single Judge is that the petition dated 18.10.2019 is signed by four out of seven legislators. The specific case of the appellant before the Commission was that none of the Legislators had sworn affidavits claiming split in party. In the Writ Petition also, it is relevant to see that respondents 4 and 5 had not dared to file affidavits supporting Ext.P1 as such and they hadn't sworn to any affidavit claiming a split in the party.
12. The learned Single Judge erred in finding that the third reason to identify split is submission of affidavits in support of parties. The affidavits produced from either side do not mention splits. The specific case of the appellant was that the affidavits produced by the 2nd respondent before the Commission were prepared months back and for a different purpose and only states the factual aspects relating to the meeting held on 16.06.2019. The affidavits produced by the appellant were not claiming split but were supporting the acts of the W.A. Nos.1515 & 1516 of 2020 : 23: Working Chairman for arriving at a consensus in the matter of election of Chairman. The learned Single Judge failed to deal with the issue relating to the contents of the affidavits, but mechanically upheld the decision of the Commission that there is split in party.
13. When the materials relied on by the Commission are erroneous, the Court should have interfered with the same. The finding of the Commission was perverse. There were sufficient materials before the Commission showing mutual acceptance by both parties. Communications between the parties and the seating arrangements in the Legislative Assembly even after the presentation of petition dated 18.10.2019 was on record. The learned Single Judge also committed grave error in arriving at a finding that though the vesting of powers to register a political party were incorporated in the Act, 1951 specifically in Section 29A, still the Commission can deal with the disputes invoking its plenary powers under Article 324 of the Constitution of India. The learned single Judge repelled the contention of the appellants that the Commission is exercising only peripheral jurisdiction and ought not to have entered any findings which are the main pillars of the dispute.
14. The learned Single Judge erred in finding that Section 29A W.A. Nos.1515 & 1516 of 2020 : 24: and paragraph 15 of the Symbols Order, 1968 operate in different areas. The learned Single Judge erred in deciding that registration of a political party under Section 29A need not necessarily have a direct relation to allocation of symbols. Paragraph 2(h) of Symbols Order, 1968 defines a political party as a party registered under Section 29A of the Act, 1951and the Symbols Order, 1968 specifically states that only a political party can be recognized as a State or National Party. As such, the finding of the learned Single Judge is erroneous. The registration of a political party under Section 29A is a prerequisite to claim recognition as a State or National Political Party and for reservation and allotment of symbols, if it satisfies the criteria prescribed in the Symbols Order, 1968. No political party can claim recognition and for reservation and allotment of symbols if not registered under Section 29A of the Representation of People Act, 1951 ('Act, 1951' for brevity). Hence, the finding of the learned Single Judge is absolutely incorrect. The learned Single Judge ought to have found that deletion of paragraph 3 of the Symbols Order, 1968 is consequent to incorporation of Section 29A and the Commission in 1992 issued separate orders to omit paragraph 3 and issued specific orders empowering them to call for materials in relation to registration of political party as permitted in Section 29A(6) of the Act, 1951. W.A. Nos.1515 & 1516 of 2020 : 25:
15. The learned Single Judge should have declared paragraph 15 redundant or at least have directed the Commission to apply its wisdom to omit paragraph 15 as they did in the case of paragraph 3. The learned Single Judge erred in entering a finding that even after incorporation of Section 29A, a large number of cases had been decided by the Commission and upheld by the Apex Court. It is true, the Commission is consistently following Sadiq Ali, a judgment rendered before the Constitution (52nd Amendment) Act, and incorporation of Section 29A in the Act, 1951; but none of the above Judgments relied on by the learned Single Judge or the Commission had discussed the issue of incorporation of Section 29A, nor the incorporation of the Tenth Schedule to the Constitution of India. This Court, exercising the jurisdiction under Article 226 of the Constitution of India, should have considered the issue in its true sense, instead of leaving it to the wisdom of the Commission.
16. That the learned Single Judge ought to have found that the Commission cannot decide on matters affecting the internal disputes of political parties, including name, constitution, office bearers etc., when it is not permitted to do so under Section 29A. The plenary powers under Article 324 of the Constitution can only be exercised in matters relating to recognition and symbols only or in grey areas and not on W.A. Nos.1515 & 1516 of 2020 : 26: matters having any impact on registration which are dealt with under separate statute. The learned Single Judge also erred in entering a finding that when the Commission decides on symbols, the same do not have any impact on registration. The learned Single Judge failed to see that through an order under paragraph 15, the Commission decides as to which among the group is that party and not affecting the registration of the party, but by such an order the registration is assigned to one of the groups, literally ousting the other group that authority is not vested under Section 29A. The learned Single Judge entered such a finding after pointing out that Section 29A does not permit de-registration.
17. It was also submitted that learned Single Judge ought to have found that the Commission, while considering disputes under Paragraph 15, should have looked into the pronouncements of the Civil Courts when Paragraph 15 specifically directs that the Commission shall take into account all facts and circumstances of the case. It is also relevant to see that the parties admitted that the pronouncements of the Civil Courts which had attained finality have not been challenged yet. The Commission should not have been permitted to pass any orders which are indirectly reversing or nullifying the orders passed by a Civil Court. Now, the person who had been prevented by the civil W.A. Nos.1515 & 1516 of 2020 : 27: court from acting as the Chairman is conferred with the purpose of granting Symbol.
18. The learned Single Judge ought to have found that the Commission had erred in proceeding directly to the test of majority, and that too relying on Sadiq Ali. The Apex Court in Sadiq Ali's case upheld the test of majority only for the reason that the facts and circumstances of the case necessitated it. In Sadiq Ali's case, the Commission did not have any other option than to go for a test of majority. In the above case, the Commission attempted the test of Constitution and tested on the aims and objectives of the party and found both unworkable in the facts and circumstances of that case. Hence, the test of majority was upheld but not as a primary test to decide the dispute. The learned Single Judge ought to have found that the Commission in the present case committed a mistake in straightaway to test the majority without considering the test of constitution. It is also worthy to note that the Commission was blindly accepting the prayer in the petition dated 18.10.2019 praying that the Commission need not go into the technicalities of convening of the meeting or adjudicate whether the rival groups are acting in accordance with the party constitution.
W.A. Nos.1515 & 1516 of 2020 : 28:
19. The learned Single Judge ought to have looked into the act of adherence of the parties to the constitution of the party. The Commission failed to take note of the civil court judgments for ascertaining the adherence of the parties to the provisions of the constitution of the Kerala Congress (M). It was in that scenario the pronouncements of the Civil Court were much relevant. Furthermore, both the learned Munsiff's Court as well as the Sub-Court directed the 2nd respondent to invoke the provisions of the party constitution and to move a no-confidence motion, if aggrieved by the actions on the appellant herein. It is worthy to note that to move a no-confidence motion, signatures of the one-third of the State Committee is required and that the 2nd respondent did not venture for the same as he could not canvass the support of at least one-third of the total number of 450 members of the State Committee. The learned Single Judge failed to appreciate the fact that how can the 2 nd respondent claim the support of 174 members, when he failed to collect signatures of one- third (150/450) to move a no-confidence motion.
20. The learned Single Judge also failed to appreciate the crux of Sadiq Ali's case, wherein what is prescribed is support of a substantial majority in the organizational as well as legislative wings. The learned single Judge failed to see that even admitting the 174, the W.A. Nos.1515 & 1516 of 2020 : 29: same is not a substantial majority in a 450 member committee. The finding of the Commission that the 2 nd respondent has majority in the Legislative wing is also erroneous. The appellant herein had support of 3 out of 5 in the State Legislative Assembly, though the 2 nd respondent had the support of the member of the House of People.
21. The learned Single Judge went wrong in entering a finding that there is no irregularity in considering the list of 305 for the test of majority. It is when the admitted number of State Committee members is 450, the learned single Judge went wrong in relying on Exhibit P1 to enter a finding that the constitution of the party does not provide for any authority to finalise the list of State Committee members. The civil court, though doubted the list produced by the 2 nd respondent, never had an opportunity to consider the list produced by the appellant. The finding of the civil court is only to the extent that the original list of 450 is yet to be identified. As such, ignoring the list of 450 members submitted by the appellant was not proper, and the learned single Judge ought not to have upheld the decision of the Commission.
22. That the learned Single Judge also failed to take note of the contents of the affidavits and the dates on which it was sworn. The W.A. Nos.1515 & 1516 of 2020 : 30: learned single Judge did not even discuss the issue relating to the contents of the affidavits whether it swear allegiance or it states about the fact of a split in the party. The crucial issue, i.e. the basis of the dissenting order by one of the Commissioners, is the genuineness of the affidavit; but the learned single Judge had not even made a comment on the same. The learned Single Judge failed to appreciate the fact that none of the affidavits other than 76 swear allegiance to the 2nd respondent over and above, many were sworn even before 18.10.2019 itself that they had earlier submitted 314 affidavits in support of the 2nd respondent's claim for Chairmanship of Kerala Congress (M). The Commission went wrong in accepting those affidavits which were sworn for another purpose. The learned single Judge committed error in approving such illegal action of the Election Commission.
23. The symbol is for the purpose of recognizing the political party and to recognize the aims, objectives and policy of that party. The voters recognize the party on the basis of the symbol and if it is granted to one group at the wake of this election, the same may defeat the prospects of the appellant and hundreds of candidates already filed nominations on 19.11.2020 to the local body elections. The symbol 'two leaves" was frozen from 13.01.2020 onwards as could W.A. Nos.1515 & 1516 of 2020 : 31: be seen from Ext. P35 and this Hon'ble Court has stayed Exhibit P1 on 11.09.2020 and continued till the dismissal of the issuance of the impugned judgment.
24. That the learned Single Judge ought to have allowed the writ petition finding that the Commission has lost its power to invoke its jurisdiction under paragraph 15 of the Symbols Order, 1968 after the incorporation of Section 29A of the Act, 1951 and following the deletion of paragraph 3 of the Tenth Schedule to the Constitution of India, which was incorporated to curb the menace of defection. The learned single Judge ought to have interfered with Ext. P1 as the same did not take note of the civil courts pronouncements, adherence to the Constitution, identification of 450 Members of the State Committee and the genuineness of the affidavits relied on issuance of Exhibit P1.
25. The basic contentions advanced by the learned counsel to understand the facts are that, the Kerala Congress (Mani) is a political party registered under Section 29(7) of the Representation of Peoples Act, 1951 ('Act, 1951' for brevity), that it was recognized as a State Political party in Kerala under paragraph 6A of the Symbols Order and that the symbol 'two leaves' has been reserved for the party. It was also submitted that the affairs of the party are governed by Ext.P2 W.A. Nos.1515 & 1516 of 2020 : 32: constitution and the State Committee is the sovereign committee of the party. That apart, it was submitted that the Constitution confers special powers on the Chairman and working Chairman and in the absence of Chairman, his power vests in the working Chairman.
26. It was also submitted that on 08.04.2018, the State Election Commission, consisting of 3 members, approved a list of 450 members as members of the State Committee and handed over the original of the list to the Returning Officer, Sri. Roy Mathew, on 20.04.2018. The office bearers were unanimously elected and Sri. K.M. Mani, father of Jose K. Mani, became the Chairman, Sri. P.J Joseph, the working Chairman, C.F. Thomas, Deputy Chairman and Sri. Jose K. Mani, the Vice Chairman and accordingly, the details of the elections were communicated on 30.04.2018 to the Election Commission of India.
27. While so, Sri. K.M. Mani, Chairman, passed away on 09.04.2019 and the functions and powers of the Chairman vested with the working Chairman. Anyhow, Sri. Jose K. Mani raised a claim that he was the elected Chairman at the meeting held on 16.06.2019 and approached the Commission with a petition, Ext.P19. But, however, the claim was declined by the Commission as per Ext. P20 referring to the prohibitory orders of the civil courts.
W.A. Nos.1515 & 1516 of 2020 : 33:
28. Matters being so, on 18.10.2019, 2 MLAs and 2 MPs approached the Commission claiming that there exists 2 rival factions/groups in Kerala Congress (M). It was claimed in that petition that Sri. Jose K. Mani was elected as the Chairman in the meeting held on 16.06.2019 and had the support of 314 State Committee members for establishing his claim as Chairman. It was also claimed that Sri. Jose K. Mani enjoys support of 58 out of 96 members of the State Steering Committee and, thus, sought for a decision under paragraph 15 of the Symbols Order, 1968 assessing the relative numerical strength of the supporters for the two groups in the legislative and organisational wings of the party.
29. According to the appellants, there was no claim raised in the petition filed before the Election Commission of India that there are two rival groups in the party and the only averment was that two rival groups exist in the party. Therefore, according to the appellants to attract the jurisdiction under paragraph 15 of the Symbols Order, 1968, one should satisfy the Election Commission with materials to show that there exists two or more rival sections or groups of recognized political parties, each of whom claiming to be that party.
30. The sum and substance of the contentions in that regard was W.A. Nos.1515 & 1516 of 2020 : 34: that in the case at hand, the so-called group accepts Sri. P. J. Joseph and Sri. Jose K. Mani as working Chairman and Vice Chairman respectively and the dispute is only in relation to the filling of the vacancy of Chairman and interpretation of the powers of the Working Chairman and the Steering Committee to submit forms A and B for the allotment of the reserved symbol 'two leaves'.
31. That apart, it was contended that there is no claim raised that Sri. Jose K. Mani enjoys the majority in the State Committee and no claim that the claimed support is to the splinter group. Therefore, according to the appellants, the claim was only about the so-called support to the post of Chairmanship. It was also submitted that it is the mandatory requirement under paragraph 15 of the Symbols Order, 1968 that there should be sufficient materials to satisfy the Commission that there are rival sections or groups of a recognised political party and each of them claiming to be the party.
32. The significant contention advanced by the learned counsel for the appellants was that there was no sufficient materials before the Election Commission of India to arrive at a conclusion that there was a split in the Kerala Congress (M) party in order to consider the petition filed before the Election Commission of India to allot the symbol W.A. Nos.1515 & 1516 of 2020 : 35: treating the group led by Sri. Jose K. Mani as the Kerala Congress (M) political party.
33. It was also predominantly contended that the Election Commission of India failed to take into account the orders passed by the civil courts in the litigations instituted by the group led by Sri. P.J. Joseph and such conduct of the Election Commission of India is a material irregularity, which ought to have been taken note of by the learned single Judge while considering the writ petitions.
34. It was also submitted that the learned single Judge failed to take note of the fact that the Commission was on a misconception that in the judgment in Sadiq Ali, the Hon'ble Supreme Court had declared majority test as the only test for taking a decision at paragraph 15 of the Symbols Order, 1968. So also, it was submitted that party constitution was taken as the most important test in Samajwadi Party Case (Dispute 1 of 2017) and V.K. Sasikala v. Election Commission of India [2019 SCC Online Del 7365] by the Apex Court and it is relevant to note that the dictum laid down in Sadiq Ali was followed in the above two cases also and therefore, the Commission erred in rushing to majority test without considering the test on the touchstone of the constitution of the party.
W.A. Nos.1515 & 1516 of 2020 : 36:
35. That apart, it was submitted that the majority test conducted by the Commission taking into account the admitted members in the list submitted by the parties belonging to the State Committee actually ignored the rest of the State Committee members included in the 450 State Committee members and therefore, the test conducted by the Commission is not that of the majority. Again, it was contended that Sri. Jose K. Mani produced 314 affidavits claiming to be that of State Committee members who attended the so-called meeting held on 16.06.2019, which elected him as the Chairman of the party. However, the said affidavits were sworn either in June or July, 2019 at a time when there was no claim of split in the party and therefore, the acceptance of other affidavits by the Commission for the purpose of majority test cannot be legally sustained.
36. It was also submitted that Sri. Jose K. Mani produced only 59 affidavits sworn after the filing of the petition before the Election Commission of India under paragraph 15 of the Symbols Order, 1968 and therefore, the Commission went wrong in assessing support enjoyed by Sri. Jose K. Mani as 174 out of 450 and therefore, the assessment of the Commission is irrational and illogical.
37. Adding strength to the above submissions, it was also W.A. Nos.1515 & 1516 of 2020 : 37: contended that the Commission lacks authority to invoke the jurisdiction under paragraph 15 of the Symbols Order, 1968, in view of the development of law post 1968. Such a contention was raised on the basis that Section 29A of the Act, 1951 had taken away the power of the Commission exercised on the strength of paragraph 3 of the Symbols Order, 1968 issued under Article 324 of the Constitution of India; but, the deletion of paragraph 3 of the Tenth schedule of the Constitution of India is not taken note of by the Commission and therefore, any decision on petitions filed by members of Parliament and State Legislatures can only be taken as an indirect method which cannot be achieved directly.
38. Sri. S. Sreekumar, learned Senior Counsel appearing in one of the appeals, apart from supporting the contentions put forth as above, submitted that none of the affidavits produced by Sri. Jose K. Mani mentions the split, and the affidavits produced by Sri. P.J. Joseph, only states that they are supporting Sri. P. J. Joseph and, Sri. C.F. Thomas in their efforts for achieving a consensus relating to the Chairmanship of the party. It was also submitted that the support extended by the legislative members of the party also never speaks about the split and none of them had made any such claim before the Speaker of the House and if done so, the same may definitely W.A. Nos.1515 & 1516 of 2020 : 38: disqualify them.
39. So also, it was contended that the Commission, after finding split, straight away rushed to the test of majority on the misconception that in the judgment in Sadiq Ali, the Supreme Court had declared majority test as the only test for taking a decision under paragraph 15 of the Symbols Order, 1968. That apart, it was submitted that the Commission committed a gross error in not taking into account the question as to whether the group led by Sri. Jose K. Mani was acting in accordance with the constitution of the party. Yet another predominant contention advanced was that the Commission failed to see that sufficient pleadings were not available in the application filed before it under paragraph 15, and the basic requirement of paragraph 15 of the Symbols Order, 1968 that there should be a rival sections or group, each of them claiming to be the party, was never pleaded and therefore, the application itself was not in accordance with law and consequent to which whatever evidence let in without a pleading ought to have been ignored by the Election Commission of India.
40. That apart, it was submitted that the Commission ignored the verdicts of the civil courts which were available before the Commission and therefore, the evidence let in by the appellants were W.A. Nos.1515 & 1516 of 2020 : 39: not taken into consideration by the Commission, which materially affects the decision rendered by the Commission.
41. On the other hand, Sri. G. Sreekumar and Sri. K. Gopalakrishna Kurup appearing for the contesting respondents submitted that the method adopted by the Election Commission is absolutely in accordance with law, since the entire material evidence let in by the parties were considered, and it was also applying the test of majority approved by the Apex Court in Sadiq Ali the decision was taken to grant symbol to Kerala Congress (M) led by Sri. Jose K. Mani. It was also pointed out that paragraph 15 of the Symbols Order, 1968 is a stand alone provision conferring power on the Election Commission of India to grant symbol, if there is a rival section or group in a party and which has no bearing to the registration of a political party prescribed under Section 29A of the Act, 1951 and the Tenth Schedule of the Constitution of India. It was, thus, submitted that Section 29A of Act, 1951, paragraph 15 of the Symbols Order, 1968 and Tenth Schedule of the Constitution of India are operating on entirely different fields and there are no reasons for interlinking the said provisions for exercising the power under paragraph 15 of the Symbols Order, 1968.
W.A. Nos.1515 & 1516 of 2020 : 40:
42. So also, it was submitted that mere clerical error in an order passed by the Commission with respect to the meeting of the State Committee cannot be taken as a ground to interfere with the order passed by the Commission, especially due to the fact that the election to the State Committee was never disputed by any of the parties. So also, it was submitted that the issue pending before the civil court is in respect of other aspects that has taken place in the party, which itself is a clear indicator that there are rival sections or groups in the party and therefore, the contention advanced by the appellants that there was no material before the Election Commission of India to decide the issue of symbol, cannot be sustained under law, especially due to the fact that the orders passed by the civil courts were produced by the appellants before the Election Commission of India.
43. That apart, it was also submitted that the Election Commission of India is an independent authority vested with powers under the Symbols Order, 1968 to take its own decision in the manner provided in the Symbols Order, 1968 and it can never be said to be dependent on any orders passed by the civil court and therefore, the contention advanced by the appellants that the orders passed by the civil court were ignored by the Commission, has no foundation or basis in order to interfere with the order of the Election Commission of W.A. Nos.1515 & 1516 of 2020 : 41: India.
44. It was further submitted that Sri. Jose K. Mani did not approach the Commission in his capacity as Chairman, but seeking to identify the issue with respect to the rival section or group remaining in the party and confer it with the symbol and therefore, it was incumbent upon the Election Commission of India to identify the situation and then grant symbol to any one of the group in the party. Therefore, unless and until it was established before the writ Court that the Commission did not satisfy the requirements of paragraph 15 of the Symbols Order, 1968, the appellants could have canvassed before the writ court to interfere with the findings rendered by the Election Commission of India on factual circumstances and the evidence let in by the parties before it. It was also submitted that the Election Commission of India has taken note of the orders of the civil courts produced before it and it was bearing in mind such aspects also, the Commission has passed the order impugned.
45. So also, it was contended that in the absence of the production of original list, which was claimed to be in the possession of the appellants before the trial court, the Election Commission of India has rightly directed the Director (Law) to verify the documents W.A. Nos.1515 & 1516 of 2020 : 42: and submit a report before the Commission and on verification, the Director found that only 305 members were common in both the list from the list of 450 State Committee members and it was under that circumstances, the Election Commission of India has proceeded to conduct the test of majority so as to confer symbol on the group or rival section of the party. Therefore, the sum and substance of the contention advanced by the contesting respondents is that the learned single Judge was right in declining interference with the order of the Election Commission of India.
46. Sri. Murali Purushothaman, learned counsel appearing for the Election Commission of India, placed before us the unamended Symbols Order, 1968, containing paragraph 3. So also, paragraph 3 of the Tenth Schedule was also placed before us as it originally stood and the reasons for the removal of the same in the 91st amendment Act, 2003. That apart, the order passed by the Election Commission of India dated 23rd March, 1992 was also produced at the time of hearing to establish the reasons for removing paragraph 3 of the Symbols Order, 1968 and submitted that the order passed by the Election Commission of India is in accordance with law and the appellants have not made out any case to interfere with the judgment of the learned single Judge.
W.A. Nos.1515 & 1516 of 2020 : 43:
47. We have considered the rival submissions made across the Bar by the learned respective counsel. Basically, the issue raised by the appellants revolves around paragraph 15 of the Symbols Order, 1968. The symbols Order, 1968 was introduced with effect from 31.08.1968 in order to provide for specification, reservation, choice and allotment of symbols at elections in parliamentary and assembly constituencies, for the recognition of political parties in relation thereto and for matters connected therewith. The Symbols Order, 1968 was made by the Election Commission of India by virtue of the powers conferred on it under Article 324 in part XV of the Constitution of India.
48. Part XV of the Constitution of India deals with elections. Article 324, which deals with the superintendence, direction and control of elections to be vested in an Election Commission, specifies that 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 the Constitution shall be vested in a Commission referred to in the Constitution as the Election Commission. It was by virtue of the said powers and having found it necessary and expedient to provide, in the interest of purity of W.A. Nos.1515 & 1516 of 2020 : 44: elections to the House of People and Legislative Assembly of every State and in the interest 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 that the Symbols Order, 1968 was made by the Election Commission of India. The said power of the Commission was tested in various litigations and approved by the Apex Court in its judgments which are specified above and applied by the learned Single Judge with absolute clarity to the facts and circumstances of the case at hand.
49. The Act, 1951 was amended on and with effect from 15.06.1989, thus introducing Section 29A and conferring powers on the Election Commission of India for registration of the political parties. This we say because the Symbols Order, as it originally stood at paragraph 3, empowered the Election Commission for registration of associations and bodies as political parties for the purposes of the order, but from the date of introduction of section 29A the Election Commission is to exercise the power of registration of political party under Section 29A of the Act, 1951.
50. However, Section 29A was introduced by incorporating part IVA in the Act, 1951 to deal with registration of the associations and W.A. Nos.1515 & 1516 of 2020 : 45: bodies as political parties. In spite of introduction of Section 29A, paragraph 3 continued in the Symbols Order, 1968 till it was removed by the Election Commission as per notification dated 23.03.1992. However, it is deducible that the definition of political party contained under the Symbols Order, 1968 was amended and defined to mean an association or body of individual citizens of India registered with the Commission as a political party under Section 29A of the Act, 1951 obviously to provide clarity in regard to the power exercised by it under the order 1968. Therefore, it is clear that the intention of the Parliament while amending the Act, 1951 incorporating Section 29A was to empower the Election Commission of India to regulate elections to the parliament and State Legislators, which was being regulated and controlled as per the provisions of the Representation of Peoples Act, 1950 ('Act, 1950' for short) and the Act, 1951. However, the power of the Election Commission of India to consider an issue with respect to the allocation of symbols under the Symbols Order was never intended to be taken away, by introducing Section 29A into the Act, 1951 and under no stretch of imagination it can be believed that by the said amendment it intended to make the powers of the Election Commission of India under the Symbols Order redundant in any manner.
W.A. Nos.1515 & 1516 of 2020 : 46:
51. It is important to note that even though paragraph 3 was removed from the Symbols Order, 1968, the definition of 'political party' was reinforced by making it clear that an association or body of individual citizens of India registered with the Commission as a political party under Section 29A of the Act, 1951. It is also relevant to note that para 2(k) of the symbols order clearly specifies that the words and expressions used, but not defined in the Symbols Order, 1968 and defined in the Act, 1950 or the Rules made thereunder or the Act, 1951 or the Rules made thereunder, shall have the meanings respectively assigned to them in those Acts and Rules.
52. It is also important to note that paragraph 4 of the Order, 1968 deals with 'allotment of symbols' and it specifies that in every contested election, a symbol shall be allotted to a contesting candidate in accordance with the provisions of Symbols Order, 1968 and different symbols shall be allotted to the different contesting candidates at an election in the same constituency. Various parameters are provided in respect to the allotment of symbols and a reserved symbol is a symbol which is reserved for a recognized political party for exclusive allotment to contesting candidates set up by that party. A free symbol is defined to mean a symbol other than a reserved symbol. W.A. Nos.1515 & 1516 of 2020 : 47:
53. Paragraph 6A deals with conditions for recognition as a State party and paragraph 6B deals with conditions for recognition as a National party. Paragraph 6D deals with conditions for continued recognition as a National or State party. Therefore definitely, paragraph 15 of the Symbols Order, 1968 has got an intrinsic and deep seated relationship with a recognised political party while deciding the issue in relation to splinter groups or rival sections of a recognized political party in the matter of issuing a Symbol.
54. Paragraph 8 of the Symbols Order, 1968 deals with choice of the symbols by candidates of National and State parties and allotment thereof and the sub-paragraph 2 thereto specifies that a candidate set up by a State party at an election in any constituency in a State in which such a party is a State party, shall choose, and shall be allotted the symbol reserved for that party in that State and no other symbol.
55. Therefore, in our considered view, in order to enable the Election Commission of India to arrive at a logical conclusion as to whom to be conferred with a symbol in relation to the splinter group or rival sections of a recognized political party the Commission has to, take into account the materials available before it , and after providing an opportunity of hearing to such representative of the sections or W.A. Nos.1515 & 1516 of 2020 : 48: groups and other persons as desire to be heard, decide that one such rival section or group or none of such rival sections or groups is that recognised political party, and the decision of the Commission shall be binding on all such rival sections or groups. To put it otherwise, the power exercised by the Election Commission as per paragraph 15 of the Symbols Order, is also inspiring power from the other provisions thereto and dependent upon the recognition of the State party contemplated under paragraphs 6A and 6C of the Symbols Order, 1968 and a reading of the provisions thereto make it clear that it is a code by itself to sort out the issues in relation to the Symbols irrespective of any provisions of other statutes, but for taking any such a decision it can rely upon the meanings and expressions employed in other related statutes as mentioned in para 2(k) and nothing more than that.
56. It is also significant to note that the Symbols Order, 1968 is basically concerned with a recognised political party in the matter of granting reserved symbols and for that purpose it is clothed with absolute powers which was recognised by the Honourable Apex Court in its various judgments referred to above. This is more so, since, if the parliament intended otherwise, it would have done so by making appropriate legislative measures by virtue of its plenary powers W.A. Nos.1515 & 1516 of 2020 : 49: conferred under the Constitution of India. On the other hand, it was conscious of the fact that the Election Commission of India was vested with sufficient powers to make laws to control and regulate the elections to the houses of parliament and state legislatures under Article 324 of the Constitution, which is also absolute in nature so as to provide independence and efficacy in the matter of conduct of the elections and thus sustain and retain the faith of the people in the electoral system.
57. Even though the learned counsel for the appellants submitted that the claim of a symbol is that of the political party and, unless and until the majority test is conducted from among the members of the Kerala Congress (M) party, a decision cannot be rendered by the Election Commission of India under paragraph 15 of the Symbols Order, 1968, we are of the opinion that such a course of action of conducting election for that purpose is never envisaged in paragraph 15 of the Symbols Order, 1968, since the provision is so patent and clear as to the manner in which the power is to be exercised by the Election Commission of India. Moreover, in Sadiq Ali, it was held that even though most of the congress members are its primary members, there were obvious difficulties in ascertaining who were the primary members, because there would in that event have W.A. Nos.1515 & 1516 of 2020 : 50: 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. It was further held that the Commission in deciding that matter under paragraph 15 of the Symbols Order, 1968 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 and further that there was practical difficulty in ascertaining the wishes of those members and 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 party. Bearing in mind the said proposition also, we have no hesitation to hold that the Election Commission of India while exercising the powers under paragraph 15 of the Symbols Order, 1968 is not expected to conduct a roving enquiry among the members of the political party to arrive at any conclusion on the basis of the said power and it has to decide the issue not only on the basis of the materials but the facts and circumstances available before it, which undoubtedly is an absolute and wide power to take a decision finally on that aspect.
58. Now, coming to Section 29A of Act, 1951, it is quite clear and evident that the said provision deals with registration of any W.A. Nos.1515 & 1516 of 2020 : 51: association and bodies as political parties by the Election Commission of India on an application made to it for its registration as a political party for the purpose of Act, 1951. The Act, 1951 was introduced to provide for the conduct of elections to the Houses of Parliament and to the House or Houses of the Legislature of each State, the qualifications and disqualifications for membership of those Houses, the corrupt practices and other offences at or in connection with such elections and the decision of doubts and disputes arising out of or in connection with such elections.
59. The Act, 1951 has got various manifestations and facets to tackle the elections conducted to the Houses of Parliament and the Houses of Legislature of the States, among others. It was taking into account the fact that the registration of a political party is a regulatory measure to control as well as to grant certain privileges and better suited under the Act, 1951 that the Parliament thought it fit to reintroduce paragraph 3 of the Symbols Order, 1968 as Section 29A with certain modifications. To say so, sub-Section 5 of Section 29A was incorporated afresh to the already existing provisions of paragraph 3 of the Symbols Order, 1968 in order to regulate the registration of the political parties, which specifies that the application submitted by an association or a body under sub-Section (1) of Section 29A shall be W.A. Nos.1515 & 1516 of 2020 : 52: accompanied by a copy of the memorandum or Rules and Regulations of the associations or body by whatever name called and such memorandum or Rules and Regulations shall contain a specific provision that the association or body shall bear true faith and allegiance to the Constitution of India as by law established, and to the principles of socialism, secularism and democracy and would uphold the sovereignty, unity and integrity of India. In all other respects, Section 29A resembles paragraph 3 of the Symbols Order, 1968.
60. Therefore, the argument advanced by the appellants that on removal of paragraph 3 from the Symbols Order, 1968, paragraph 15 of the Symbols Order, 1968 has become redundant, has no basis, foundation or other adverse consequences interfering with the power enjoyed by the Election Commission of India. It is also important to note that all associations or bodies are not mandatorily liable to be registered as a political party. However, the political party is defined under Section 2(f) of Act 1951 on and with effect from 15.06.1989 to mean an association or a body of individual citizens of India registered with the Election Commission as a political party under Section 29A of the Act, 1951. Which thus means, whatever privileges conferred under part 1VA of the Act, 1951 can only be enjoyed by a political party registered with the Election Commission of India in accordance with W.A. Nos.1515 & 1516 of 2020 : 53: the provisions of Act, 1951.
61. We have said so because it is not only with the intention of regulating and controlling but also conferring with certain privileges that registration is prescribed under Section 29A of Act, 1951. This is clear from Section 29B, whereby the political parties may accept any amount of contribution voluntarily offered to it by any person or company other than a Government company though imposed prohibition in the matter of receiving contributions from foreign sources. It is also clear from Section 29C of Act, 1951 that the treasurer of a political party or any other person authorised by the political party shall, in each financial year, prepare a report in respect of the contribution in excess of Rs.20,000/- received by such political party from any person in that financial year and contribution in excess of Rs.20,000/- received by such political party from companies other than Government Companies in the financial year, failing which it will have its own consequences as provided thereunder .
62. Therefore, the introduction of Part IVA incorporating Section 29A to Section 29C is very clear that the registration of a political party is intended to grant certain privileges as well as to control and regulate its activities in respect of receiving contributions, and W.A. Nos.1515 & 1516 of 2020 : 54: according to us, the requirement of registration of a political party is nothing more or nothing less than that. To put it in a different manner, the said provision has no manner of correlation or bearing with the powers enjoyed by the Election Commission of India in a different magnitude and sphere under the Symbols order 1968, since every power is vested with the commission thereunder in regard to its activities to be undertaken in the matter of granting Symbols, which is a power referable to Article 324 of the Constitution of India.
63. In this regard, it is relevant to note the judgment of the Apex Court in Indian National Congress (I) v. Institute of Social Welfare and others [(2002) 5 SCC 685], which considered the nature of power exercised by the Election Commission under Section 29A of the Act, 1951 and the powers of the Commission under the provisions of the Symbols Order, 1968 for deregistration of a political party. Paragraphs 16 and 17 are relevant to the context, which read thus:
16. A conjoint reading of Section 29-A and paragraph 3 of the Symbols Order as it existed prior to enforcement of Section 29-A of the Act shows that there were only two significant changes and other provisions remained the same. The first change is reflected in sub-
section (5) of Section 29-A of the Act which provides that the application for registration shall be accompanied by a copy of W.A. Nos.1515 & 1516 of 2020 : 55: memorandum or rules and regulations of the political party seeking registration under the Act and such memorandum or rules and regulations shall contain a specific provision that such a political party shall bear true faith and allegiance to the Constitution of India, as by law established and to the principles of socialism, secularism and democracy and would uphold the sovereignty, unity and integrity of India. The second change is reflected in sub-section (4) of Section 29-A of the Act which embodied in it, the provisions of different clauses of sub-paragraph (4) of paragraph 3 of the Symbols Order.
17. After Section 29-A of the Act came into force, paragraph 3 of the Symbols Order stood amended inasmuch as the definition of a political party in paragraphs 2(1) and (4) of the Symbols Order was also amended. Earlier, under paragraph 3 of the Symbols Order, a political party was defined as a registered party. After Section 29-A was inserted in the Act, the definition of a political party in the Symbols Order was amended to the effect that a political party means a party registered with the Election Commission under Section 29-A of the Act. Consequently, paragraph 3 of the Symbols Order was also amended to the extent it prescribed additional information which a political party was required to furnish to the Election Commission along with an application for registration. Now such additional information the Election Commission is authorised to call for under sub-section (6) of Section 29-A of the Act. A perusal of unamended paragraph 3 of the Symbols Order shows that it did not provide for deregistration of a political party registered under the Symbols Order. Nor any such provision was made after the Symbols Order was amended after Section 29-A was inserted in the Act. Further, neither the provisions of Section 29-A of the Act nor the rules framed thereunder, provide for deregistration or cancellation of registration of a political party. We are, therefore, of the view that neither under the Symbols Order nor under Section 29-A of the Act, the Election Commission has been conferred with any express power to deregister a political party registered under Section 29-A of the Act on the W.A. Nos.1515 & 1516 of 2020 : 56: ground that it has either violated the provisions of the Constitution or any provision of undertaking given before the Election Commission at the time of its registration."
64. On a reading of the proposition of law laid down by the Apex Court in the judgment in International Congress (I) (supra), it is quite clear and evident that the Election Commission of India, while considering the registration of a political party exercising the power under Section 29A, acts quasi judicially and held that it is not vested with powers to deregister a political party otherwise than as provided under Section 29A(5) of the Act, 1951.
65. Now, we come to the contention advanced by the learned Senior Counsel for the appellants in regard to the Tenth Schedule of the Constitution of India. Tenth Schedule of the Constitution of India is made by virtue of the powers conferred under Articles 102(2) and 191(2) of the Constitution of India. Article 102(1) deals with disqualification for membership in regard to a person for being chosen and for being a member of the either House of Parliament and clause (2) thereto specifies that a person shall be disqualified for being a member of either House of Parliament, if he is so disqualified under the Tenth Schedule. Likewise, Article 191(1) deals with disqualification for membership of a person for being chosen as, and for being, a W.A. Nos.1515 & 1516 of 2020 : 57: member of the Legislative Assembly or Legislative Council of a State. Clause (2) thereto is typical to clause (2) of Article 102 prescribing disqualification for being a member of the Legislative Assembly or Legislative Council of a State, if he is so disqualified under the Tenth Schedule. Therefore, according to us, the purport and intention of Tenth Schedule is very clear that it mainly deals with disqualification for continuance of the membership to the Houses of Parliament and Houses of State Legislatures under certain specified circumstances. Paragrph 2 of the Tenth Schedule deals with disqualification on ground of defection and sub-para (1) thereto stipulates that subject to the provisions of paragraphs 4 and 5, a member of a House belonging to any political party shall be disqualified for being a member of the House, if he has voluntarily given up his membership of such political party or if he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs or by any person or authority authorised by it in this behalf, without obtaining, in either case, the prior permission of such political party, person or authority and such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention. For the purpose of sub-paragraph 1, explanation is provided, which reads thus: W.A. Nos.1515 & 1516 of 2020 : 58:
"Explanation.--For the purposes of this sub-paragraph,--
(a) an elected member of a House shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such member;
(b) a nominated member of a House shall,--
(i) where he is a member of any political party on the date of his nomination as such member, be deemed to belong to such political party;
(ii) in any other case, be deemed to belong to the political party of which he becomes, or, as the case may be, first becomes, a member before the expiry of six months from the date on which he takes his seat after complying with the requirements of article 99 or, as the case may be, article 188."
66. Paragraph 3 of the Tenth Schedule was omitted by the 91 st Amendment Act, 2003 with effect from 01.01.2004, which reads thus:
"3. Disqualification on ground of defection not to apply in case of split.-- Where a member of a House makes a claim that he and any other members of this Legislature party constitute the group representing a faction which has arisen as a result of a split in his original political party and such group consists of not less than one-third of the members of such legislature party,--
(a) he shall not be disqualified under sub-paragraph (1) of paragraph 2 on the ground--
(i) that he has voluntarily given up his membership of his original political party; or
(ii) that he has voted or abstained from voting in such House contrary to W.A. Nos.1515 & 1516 of 2020 : 59: any direction issued by such party or by any person or authority authorised by it in that behalf without obtaining the prior permission of such party, person or authority and such voting or abstention has not been condoned by such party, person or authority within fifteen days from the date of such voting or abstention; and
(b) from the time of such split, such faction shall be deemed to be the political party to which he belongs for the purposes of sub-paragraph (1) of paragraph 2 and to be his original political party for the purposes of this paragraph."
67. On a reading of paragraph (3) above, it is clear that the said provision intended to protect the splinter group consisting of not less than 1/3rd members of the said Legislative party consequent to the split in the original party. Even though paragraph 3 as it stood dealt with the protection given to a splinter group, it does not speak about the grant of symbol or any of the provisions of Symbols Order, 1968 so as to have any kind of relationship in the matter of considering an issue of allotment of a symbol. Further, paragraph 7 clearly specifies that notwithstanding anything in the Constitution of India, no court shall have any jurisdiction in respect of any matter connected with the disqualification of a member of a House under the Tenth Schedule.
68. That apart, paragraph 8 thereto empowers the Chairman or the Speaker of a House to make rules for giving effect to the W.A. Nos.1515 & 1516 of 2020 : 60: provisions of Tenth Schedule, and in particular, and without prejudice to the generality of the foregoing provision, and the requirement of the validation of the rules are also dealt with under sub-paragraphs 2 and 3 of paragraph 8.
69. On a deeper analysis of the provisions of the Tenth Schedule, we have no doubt in our mind to state that it deals absolutely with the disqualification of the members of either Houses of Parliament or Legislative Assembly or as the case may be either Houses of the legislature of a State, and powers conferred thereunder are absolutely on the Chainman or speaker of the respective houses. We also fail to understand as to how when the power to decide a splinter group was taken away from the Tenth schedule, it has adverse implications with the power enjoyed by the Election Commission under the Symbols Order. However we have reasons to think that it was taken away since it was arbitrary and beyond the comprehension of the democratic principles envisioned by the framers of the Constitution to be followed by the elected members .
70. Therefore, we are unable to arrive at any conclusion that it has got any relevance in the matter of consideration of allotment of symbol and the power exercised by the Election Commission of India W.A. Nos.1515 & 1516 of 2020 : 61: under paragraph 15 of the Symbols Order, 1968. However, the learned Senior counsel for the appellants Sri. Sreekumar and Sri. George Poonthottam and Sri. P.B. Krishnan submitted that the judgment in Sadiq Ali and the other cases were rendered by the Apex Court while paragraph 3 was remaining in the Symbols Order, 1968 dealing with registration of a political party and consequent to the introduction of Section 29A in the Act, 1951 dealing with the registration of political parties, paragraph 15 of the Symbols Order, 1968 has become redundant.
71. The learned single Judge basically relied upon the judgment of the Apex Court in Sadiq Ali to arrive at the conclusion that the Commission is vested with ample powers under paragraph 15 of the Symbols Order, 1968 to allot symbols consequent to any split in a recognized political party. It is relevant and important to note in that context that the judgment in Sadiq Ali was rendered by the Apex Court in the year 1972 when paragraph 3 of the Symbols Order, 1968 was absolutely in force in all respects. However, it is significant to note that the Apex Court never ever referred to the power enjoyed by the Election Commission of India under paragraph 15 as dependent in any manner to paragraph 3 of the Symbols Order, 1968 to render a decision thereunder.
W.A. Nos.1515 & 1516 of 2020 : 62:
72. Therefore, in our considered opinion, the contention advanced that the removal of paragraph 3 by the Election Commission of India consequent to introduction of Section 29A in the Act, 1951 has any adverse consequence, dilution or divesting of power conferred on the Election Commission of India under paragraph 15 of the Symbols Order, 1968, in the matter of deciding the issue in regard to a party as contemplated thereunder. This is more so since the Honourable Apex Court had occasion to consider the power enjoyed by the Election Commission under paragraph 15 after removal of paragraph 3 in Subramanian Swamy, Edapaddi K. Palaniswami and Desiya Murpokku Dravida Kazhakom (supra) and since the learned single Judge has taken note of the judgments so rendered by the Apex Court, we are not venturing to reiterate the findings rendered by the learned single Judge in that regard. Moreover, these aspects were not canvassed before the primary authority in its real intrinsic worth, and even though an issue in that regard was raised by the party respondents, we proceeded to lay down the law, to have a quietus to the questions raised, and such a decision was sought for by the appellants.
73. However, on an appreciation of law laid down by the Apex Court in the afore-specified judgments, it is clear that the Election Commission of India has made the Symbols Order, 1968 by virtue of W.A. Nos.1515 & 1516 of 2020 : 63: the powers conferred under Article 324 of the Constitution of India independent of the powers conferred on other constitutional and statutory functionaries under the Constitution of India, because it unequivocally stipulates that 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 the Constitution shall be vested in a Commission referred to in the Constitution as the Election Commission. Whereas, Article 327 empowers the Parliament to make provisions with respect to elections to parliament and Article 328 empowers the Legislature of a State to make provisions with respect to elections to such Legislature.
74. On a reading of the said provisions, it is clear that the said powers are conferred on the Parliament and the State Legislature, subject to the other provisions of the Constitution. Which thus means, the power enjoyed by the Election Commission of India under Article 324 of the Constitution of India is an independent, unbridled and absolute power to undertake and carry on its activities. Therefore, by virtue of the power so enjoyed, it extended its wisdom in order to regulate and control the elections, providing symbols to political parties is a vital requirement enabling the voters to exercise their W.A. Nos.1515 & 1516 of 2020 : 64: franchise without any confusion or complexity.
75. Therefore, in our view, realizing the requirement of the electorate, the Election Commission had made the Symbols Order, 1968 by virtue of the independent power enjoyed by it under the Constitution of India. Therefore, we do not find any force in the contention advanced by the learned counsel for the appellants that consequent to the removal of paragraph 3 of the Symbols Order, 1968 and paragraph 3 of the Tenth Schedule of the Constitution of India, paragraph 15 of the Symbols Order, 1968 has become redundant and accordingly we declare so.
76. Taking into account the discussions made above, we have also no hesitation to hold that the power enjoyed by the Election Commission under Section 29A of the Act, 1951 and the power enjoyed by the Election Commission under paragraph 15 of the Symbols Order, 1968 are independent of each other and is never conflicting with the powers conferred by the Act, 1951. Moreover, the Tenth Schedule of the Constitution of India deals with defection in the Houses of Parliament and the Houses of State Legislatures of the elected members, which has no bearing to the issue of grant of symbol in contemplation of paragraph 15 of the Symbols Order, 1968. W.A. Nos.1515 & 1516 of 2020 : 65:
77. Therefore, we are of the considered opinion that it was bearing in mind and considering the aforesaid aspects in-depth and the principles of law laid down by the Apex Court in its various judgments referred to above, the learned single Judge arrived at the conclusions in regard to the contentions advanced by the appellants/writ petitioners in that regard. While holding so, we have no doubt in our mind to state that the power enjoyed by Election Commission of India under paragraph 15 of the Symbols Order, 1968 is absolute in all respects so as to finally adjudicate the decision sought for by any aggrieved person or group and it can never be termed peripheral as contended.
78. Now, the sole question to be considered is whether any manner of interference is required to the findings rendered by the learned single Judge in regard to the factual circumstances relied upon by the Election Commission of India to arrive at a conclusion that the group led by Sri. Jose K. Mani is Kerala Congress (M) political party. The Election Commission has found that both the groups held separate Steering Committee meetings in relation to the bye election in Pala Assembly Constituency and took divergent decision in fielding a candidate; that four out of the seven elected legislators had signed the petition dated 18.10.2019 specifying that rival factions exist, which is W.A. Nos.1515 & 1516 of 2020 : 66: an indicator of split in the legislative wing; that both parties claimed majority support in the State Committee and submitted affidavits in support of them; and that both parties failed to submit original list of the State Committee members.
79. The Election Commission of India has conducted the majority test on the basis that out of 450 State Committee members, 305 members are common in both the list submitted by the rival groups and out of which 175 members supported Jose K. Mani group and that is how the majority was attained by the Election Commission of India. However, the appellants have a case that except 59 affidavits relied upon for the said purpose was submitted by the deponents on an earlier occasion in regard to a petition filed by Sri. Jose K. Mani for accepting him as the Chairman of the Kerala Congress (M) party.
80. To speak about it, at the first blush, the arguments advanced seem to be attractive; but on a deeper analysis, it could be seen that the appellants could not establish any case on the basis that the affidavits submitted by the State Committee members earlier to the consideration of the issue under paragraph 15 of the Symbols Order, 1968 have retracted from the deposition made by them in the affidavits. Moreover, merely because an affidavit was submitted earlier, W.A. Nos.1515 & 1516 of 2020 : 67: that cannot be said to be bad, unless and until the deponents of the affidavit retracted from the same subsequent to the signing of the affidavit. Even though an attempt was made to show that one of the persons has filed an affidavit supporting the P.J. Joseph faction, that would not, in any manner, enure to the benefit of the appellants so as to have any adverse consequences to the majority test conducted by the Election Commission of India.
81. That apart, it is the case of the appellants that they have submitted the orders passed by the civil courts in the suit filed by the appellants and the appeal preferred by Jose K. Mani Group and therefore, even the conduct of the appellants makes a clear indication of the split or rival groups in the party. Therefore, in our view, there is also no substance in the contention that in the petition filed by Sri. Jose K. Mani before the Election Commission, he did not make out a case of split in the party. This we say because, what is contemplated under paragraph 15 of the Symbols Order, 1968 enabling the Election Commission of India to exercise its power is that the Commission should be satisfied on information in its possession that there are rival sections or groups of a recognized political party, each of whom claims to be that party and taking into account all the available facts and circumstances of the case and hearing such representatives of the W.A. Nos.1515 & 1516 of 2020 : 68: sections or groups and other persons having desire to be heard, decide that one such rival Section or group or none of such rival sections or groups is that recognized political party.
82. Therefore, the ultimate satisfaction is the satisfaction of the Commission on information in its possession, which according to us, includes whatever inputs available before the Commission produced by the petitioners as well as the objectors, thus enabling the Commission to take into account the entire aspects and arrive at a decision in respect of the claims raised to be the political party and confer the symbol accordingly.
83. In that view of the matter, it cannot be said that the Commission has erred, in any manner, in arriving at the conclusion in regard to the factual circumstances put forth by the respective parties. It is also equally important to note that the appellants never had a contention before the writ court or in the appeals that the requirements of paragraph 15 of being heard of the representatives of sections or groups and other persons were not undertaken by the Commission before adjudicating the issues by and between the party.
84. It is a well settled proposition in law that the look out of a writ court, while considering the power exercised by a statutory W.A. Nos.1515 & 1516 of 2020 : 69: authority is to identify as to whether it has complied with the requirements of law under the relevant statutes and followed the basic principles of natural justice. The learned single Judge, after having appreciated the entire pros and cons and facts and figures, have arrived at the conclusion that the Election Commission did not commit any error while exercising its powers conferred under the Symbols Order, 1968 so as to interfere with the order exercising the power of discretion under Article 226 of the Constitution of India.
85. After appreciating the findings rendered by the learned single Judge, we do not find that the learned single Judge has exercised discretionary jurisdiction illegally so as to interfere in an intra-court appeal filed under Section 5 of the Kerala High Court Act, 1958.
Upshot of the above discussion is that writ appeals fail and accordingly, they are dismissed.
sd/-
S. MANIKUMAR, CHIEF JUSTICE.
sd/-
SHAJI P. CHALY, JUDGE.
W.A. Nos.1515 & 1516 of 2020 : 70:Rv APPENDIX OF WA 1515/2020 PETITIONER'S/S EXHIBITS:
ANNEXURE A1 A COPY OF THE ORDER DATED 17.11.2020 ISSUED BY THE STATE ELECTION COMMISSION FREEZING 'TWO LEAVES'.
ANNEXURE A2 A COPY OF THE ORDER DATED 17.11.2020 ISSUED BY THE STATE ELECTION COMMISSION GRANTING 'CHENDA'.
ANNEXURE A3 A COPY OF THE ORDER DATED 21.11.2020 ISSUED BY THE STATE ELECTION COMMISSION ALLOTTING 'TWO LEAVES' TO THE GROUP LED BY THE 2ND RESPONDENT.
/True Copy/ PS to Judge.
rv W.A. Nos.1515 & 1516 of 2020 : 71: APPENDIX OF WA 1516/2020 PETITIONER'S/S EXHIBITS:
ANNEXURE A1 A COPY OF THE ORDER DATED 17.11.2020 ISSUED BY THE STATE ELECTION COMMISSION FREEZING 'TWO LEAVES'.
ANNEXURE A2 A COPY OF THE ORDER DATED 17.11.2020 ISSUED BY THE STATE ELECTION COMMISSION GRANTING 'CHENDA'.
ANNEXURE A3 A COPY OF THE ORDER DATED 21.11.2020 ISSUED BY THE STATE ELECTION COMMISSION ALLOTTING 'TWO LEAVES' TO THE GROUP LED BY THE 2ND RESPONDENT.
RESPONDENTS' EXHIBITS: NIL /True Copy/ PS To Judge.
rv