Delhi High Court
Hans Raj Jain vs Election Commission Of India on 19 March, 2015
Author: Rajiv Sahai Endlaw
Bench: Chief Justice, Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 19th March, 2015
+ W.P.(C) No.1458/2014
HANS RAJ JAIN ..... Petitioner
Through: Petitioner in person.
Versus
ELECTION COMMISSION OF INDIA ..... Respondent
Through: Mr. P.R. Chopra & Mr. Y.R. Sharma,
Advs.
CORAM:-
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J
1. This petition under Article 226 of the Constitution of India, filed as a
Public Interest Litigation (PIL), impleading the Election Commission of
India (ECI) only as the respondent, seeks the reliefs of, i) a direction for
cancellation of registration of Aam Aadmi Party (AAP) on the ground of the
same having been effected on forged, wrong and incomplete documents; ii)
setting up of a Special Investigation Team (SIT) to inquire into the forged
and fabricated documents filed by AAP for registration with the respondent
ECI, and, iii) a direction for initiation of a disciplinary proceedings against
the officials of respondent ECI.
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2. Though notice of the petition was not issued but on 21 st March, 2014,
the counsel for respondent ECI stated that he shall file a short affidavit
indicating the factual position behind the registration of AAP. Such an
affidavit has been filed. The petitioner appearing in person and the counsel
for the respondent ECI were heard and judgment reserved.
3. It is the case of the petitioner that:
(a) AAP, on 3rd December, 2012 applied along with supporting
documents under Section 29A of the Representation of the
People Act, 1951 (RP Act) for registration as a political party;
(b) On 2nd January, 2013 some further documents were filed in
support of the application;
(c) The respondent ECI on 22nd March, 2013 registered AAP as a
political party and on the same day delivered the Registration
Certificate to a person whose name was not available in the list
of 300 persons filed by APP as its members;
(d) The petitioner on 5th December, 2013 approached the
respondent ECI under Section 146 of the RP Act for holding an
inquiry on registration of APP as a political party on false
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documents and without proper scrutiny and for cancellation of
registration of AAP on the grounds that:
(i) The application submitted by AAP on 3rd December,
2012 for registration was on letterhead showing logo of
"Dharma Chakra" of the National Flag and which usage
is contrary to the Emblems and Names (Prevention of
Improper Use) Act, 1950 (Emblems Act) and Section
123(3) of the RP Act.
(ii) According to the documents submitted, the party i.e. AAP
was formed on 24th November, 2012 and the elections of
the Executive Committee were held arbitrarily, without
adopting democratic procedure.
(iii) No inquiry was held on the affidavits of 300 members -
the respondent ECI was bound to scrutinize at least 100
members.
(iv) A scrutiny of affidavit filed of Arvind Kejriwal, National
President of AAP showed that two identity cards have
been issued to him at two different addresses of
Kaushambi and his Income Tax Returns were at the
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address of Sunder Nagri, Seemapuri, Delhi - the
respondent ECI should have held an inquiry and
confirmed the name of Arvind Kejriwal only from his
High School Certificate - according to Section 18 of the
Representation of the People Act, 1950, no one can use
more than one identity card.
(v) Similarly, there was a difference in address of Pankaj
Gupta, National Secretary also, with his residential
address disclosed as AG-132, Nirwana Country, Gurgaon
and his Income Tax Returns showing the address of
Faridabad, Haryana.
(vi) There was similar inconsistency in the addresses of
Krishan Kant, National Treasurer, on different
documents.
(vii) Such inconsistency in the documents of the office bearers
of the party casts doubt on the address and signatures on
affidavits of remaining 297 members also.
(viii) No verification of the No Objection Certificates (NOC)
submitted for the office of the party was also carried out;
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the signatures of the landlord on the said certificate were
also not verified.
(ix) Though in the application for registration submitted on 3 rd
December, 2012, office of the party was shown at the
address of Kaushambi, Ghaziabad but subsequently the
address was changed to Delhi, in violation of Section 8 of
the Public Records Act, 1993.
(x) The list of 300 members was without parentage,
occupation, address and signatures.
(e) Under Section 3 of the Emblems Act, there is a prohibition
against using the emblem or any colourable imitation thereof
including pictorial representation of Dharma Chakra without the
previous permission of the Central Government and no
competent authority is entitled to register such a party;
(f) AAP had also not furnished any affidavit that its members were
not a member of any political party as required by the
Guidelines and Application format for registration of Political
Parties under Section 29A of the RP Act, issued by the
respondent ECI;
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(g) Though the respondent ECI has power to cancel the registration,
where obtained by practicing fraud or forgery, as held in Indian
National Congress (I) Vs. Institute of Social Welfare (2002) 5
SCC 685 but such power had not been exercised;
(h) The respondent ECI has adopted biased and partial procedure
for registration of AAP.
4. Before we proceed to take note of the affidavit aforesaid filed by the
respondent, we deem it appropriate to reproduce herein below in entirety
Section 29A in Part IVA titled "Registration of Political Parties" of the RP
Act and which Part besides the said Section 29A comprises only of Section
29B titled "Political Parties Entitled to Accept Contribution" and Section
29C titled "Declaration of Donation Received by the Political Parties":
"29A. 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
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(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;
(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.
W.P.(C) No.1458/2014 Page 7 of 24
(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 sub--section (5).
(8) The decision of the Commission shall be final.
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(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.
5. As would be obvious from the above, there is no provision in Section
29A, empowering ECI to cancel the registration of a political party once the
same has been effected. We do not find any such power in any other
provision of the RP Act also. The Supreme Court also in Indian National
Congress (I) supra held that neither under the Election Symbols (Reservation
and Allotment) Order, 1968 nor under Section 29A of the RP Act, the ECI
has been conferred with any express power to deregister a political party
registered under Section 29A of the Act on the ground that it has either
violated the provisions of the Constitution or any undertaking given at the
time of its registration and no proceeding for deregistration can be taken by
the ECI for the reason of having violated Section 29A(5) of the RP Act. It
was however held that since the ECI is to give its decision under Section
29A(7) only after making an inquiry, wherein an opportunity of hearing is to
be given to the representatives of the political party, ECI while exercising
power to register a political party under Section 29A acts quasi judicially and
W.P.(C) No.1458/2014 Page 9 of 24
the decision rendered by it is a quasi judicial order. It was further held that
since fraud or forgery vitiate any act or order passed by any quasi judicial
authority, ECI even in the absence of any specific power would be entitled to
deregister a political party which was registered by practicing fraud or
forgery.
6. The petitioner in the present case was seeking deregistration of AAP
not on the ground of AAP having secured registration by practicing fraud or
forgery but on the ground of the decision of the ECI being erroneous and
ECI having not followed the procedure and caution which it was required to
follow before deciding to register AAP as a political party. From the facts as
narrated above, it is clear that the case of the petitioner is that though on the
basis of the deficiencies / flaws in the documents submitted by AAP, it was
not entitled to registration but was registered. It is not the case of the
petitioner that AAP, with an intent to deceive, stated anything which was not
true or concealed anything or though represented that it will not use the
purported Ashok Chakra as its emblem, has continued to do so, to be said to
be guilty of fraud. Similarly, though the petitioner alleges that certain
documents submitted by AAP along with its application for registration have
been forged but none whose signatures may have been forged has come
W.P.(C) No.1458/2014 Page 10 of 24
forward and thus the plea of fraud and forgery is bereft of any particulars and
is bald and is no plea in law. There is a distinction between obtaining
registration by playing fraud and practicing forgery and registration having
been effected without complying with requisite formalities and/or on the
basis of deficient documents/material. We may also notice that for the
petitioner to in this petition make allegations of forgery against AAP, it was
incumbent to implead AAP and its office bearers who are alleged to have
indulged in forgery as parties to this petition and which has not been done.
The same is also indicative of the case of the petitioner being not of AAP
having obtained registration by practicing fraud or forgery but merely of ECI
having wrongly registered AAP and inspite of subsequent application of the
petitioner having not deregistered AAP.
7. Thus, the grounds urged by the petitioner for deregistration of AAP
also do not fall within the grounds on which the Supreme Court in Indian
National Congress (I) supra held that ECI is entitled to exercise the power
of deregistration. Once it is held so, the question of finding any error with
the refusal of ECI to act on the application of the petitioner to deregister
AAP does not arise and it cannot be said that ECI has failed to exercise any
jurisdiction vested in it.
W.P.(C) No.1458/2014 Page 11 of 24
8. The petitioner is thus not entitled to the reliefs claimed and the petition
is liable to be dismissed. However, since it is also the allegation of the
petitioner that ECI erred in registering AAP, we for the sake of
completeness, deem it appropriate to deal with the grounds urged in this
perspective also.
9. The respondent ECI in the counter affidavit filed by it has stated that:
(i) AAP submitted its application for registration on 3 rd December,
2012 stating that it was formed on 24th November, 2012;
(ii) After the public notice was issued by the party in newspapers on
21st December, 2012 and 22nd December, 2012, objections were
submitted by some individuals on various grounds and the AAP
was asked to reply thereto;
(iii) One of the objections related to AAP on its letterhead
displaying the "Ashoka Chakra" and the imitation of National
Flag as the logo of the party. To this, AAP submitted its reply
dated 15th March, 2013 stating that the logo referred to was not
the official logo of the party and if the respondent ECI were of
the view that this would be objectionable, the party would
remove the same;
W.P.(C) No.1458/2014 Page 12 of 24
(iv) The provisions of the Emblems Act have no application;
(v) In any case, in view of the reply dated 15 th March, 2013 (supra),
the respondent ECI decided to grant registration as all the
requisite documents had been submitted and other requirements
for registration stood satisfied;
(vi) No violation of any provision of law was found;
(vii) AAP was registered after completing all requisite formalities
and requirements and there was no lapse or undue haste on the
part of ECI in this regard.
10. We will first take up the ground with respect to the Emblems Act. The
legal position thereunder is as under:
(a) Section 2(a) of the said Act defines "emblem" as meaning an
emblem, seal, flag, insignia, coat-of-arms or pictorial
representation specified in the Schedule to the Act.
(b) Section 2(b) defines "competent authority" as meaning any
authority competent under any law for the time being in force to
register any company, firm or other body of persons or any
trade mark or design or to grant a patent.
W.P.(C) No.1458/2014 Page 13 of 24
(c) Section 2(c) defines "name" as including any abbreviation of a
name.
(d) Section 3 prohibits use for the purpose of any trade, business,
calling or profession or in the title of any patent, or in any trade
mark or design, any name or emblem specified in the Schedule
or any colourable imitation thereof without the previous
permission of the Central Government.
(e) Section 4 on which the petitioner places reliance prohibits all
competent authorities from registering any company, firm or
any other body of persons which bears any name, if the use of
such name or emblem is in contravention of Section 3 of the
Act.
(f) Finally, Section 5 makes contravention of Section 3 punishable
with fine which may extend to five hundred rupees.
(g) The Schedule to the Act lists inter alia the Indian National Flag,
the name, emblem or official seal of the Government of India or
of any State, or any other insignia or coat-of-arms used by any
such Government or by a department of any such Government,
the names of "Ashoka Chakra" or "Dharma Chakra" or the
W.P.(C) No.1458/2014 Page 14 of 24
pictorial representation of Ashoka Chakra as used in the Indian
National Flag or in the official seal or emblem of the
Government of India or of any State Government.
11. We are unable to accept the stand in the affidavit of the respondent
ECI that it is not governed by the provisions of the Emblems Act. The
respondent ECI in exercise of powers under Section 29A performs the task
of registration of an association or body of individual citizens of India calling
itself a political party and would be a competent authority within the
meaning of Section 2(b) of the Emblems Act. As such competent authority,
ECI is by Section 4 of the Emblems Act prohibited from registering any
association or body of persons as a political party which bears any name, if
the use of such name or emblem is in contravention of Section 3 of the said
Act. The question which arises is whether a case of violation by respondent
ECI of Section 4 of the Emblems Act is made out.
12. For better appreciation, we deem it appropriate to set out herein below
Section 4 of the Emblem Act. The same is as under:-
"4. Prohibition of registration of certain companies, etc. - (1)
Notwithstanding anything contained in any law for the time
being in force, no competent authority shall, -
W.P.(C) No.1458/2014 Page 15 of 24
(a) register any company, firm or other body of persons
which bears any name, or
(b) register a trade mark or design which bears any
emblem or name, or
(c) grant a patent in respect of an invention which bears
a title containing any emblem or name,
if the use of such name or emblem is in contravention
of Section 3.
(2) If any question arises before a competent authority
whether any emblem is an emblem specified in the
Schedule or a colourable imitation thereof, the
competent authority may refer the question to the
Central Government, and the decision of the Central
Government thereon shall be final."
Thus, the prohibition against registration of a body of persons is only
if such body of persons bears any name which is in contravention of Section
3. The prohibition on a competent authority against use of emblem and / or
name in contravention of Section 3 is only against registration as a trademark
or in granting a patent bearing a title containing the emblem and / or name.
There is no prohibition in Section 4 against use of an emblem while
registering a body of persons.
W.P.(C) No.1458/2014 Page 16 of 24
13. The letterhead of AAP on which the application for registration was
made, carried the following insignia:-
14. As would be obvious from the above, the purported "Ashoka Chakra"
is interspersed with the human head with raised arms on the two sides and it
thus cannot be said that the aforesaid is an imitation of the "Ashoka Chakra".
Similarly, the swirling bands by no stretch of imagination can be said to be a
colourable imitation of the National flag. However we do not deem it
expedient to delve in detail on the said question being of the view that even
W.P.(C) No.1458/2014 Page 17 of 24
otherwise, no case of violation of Section 4 of the Emblems Act is made out.
The said provision, insofar as registration of any body of persons is
concerned, places an embargo on the name of such body of persons being in
contravention of Section 3 of the Emblems Act. The name AAP can by no
stretch of imagination be said to be violating any emblem.
15. Section 3 of the Emblems Act however places prohibition on use of
any name or emblem specified in the Schedule or colourable imitation
thereof for the purpose of any trade, business, calling or profession or in the
title of any patent or in any trademark or design. We have wondered
whether use of an emblem for the purpose of registration of a political party
can be said to be use for the purpose of any trade, business, calling or
profession. The citizenry of course holds a belief of our leaders having made
politics a trade and business. However, we are unable to find any legal
authority therefor. Even though politics as commonly understood may be the
most lucrative trade or business with maximum returns but is a science
according to Harold Laski, sacred as religion according to Gandhiji and is
statesmanship according to Lincoln. However, we find the Supreme Court in
Commissioner of Expenditure Tax, Andhra Pradesh Vs. P.V. G. Raju
(1976) 1 SCC 241 to have upheld the judgment of the High Court of Andhra
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Pradesh reported in (1971) 79 ITR 430 (AP) holding the expenditure
incurred by a politician and the Chairman of a political party on the election
of candidates set up by that party to be expenditure incurred wholly and
exclusively for the purpose of profession, vocation or occupation carried on
by the assessee within the meaning of Section 5(a) of the Expenditure Tax
Act, 1958. It was held that politics is a profession. The High Court whose
judgment had been affirmed had held politics to be an occupation of the
assessee. Section 3 the Emblems Act is wider and includes the word
"calling" which according to Shorter Oxford English Dictionary, Sixth
Edition includes an occupation. Thus, it has to be held that use if any by
AAP of the emblem specified in the Schedule or any colourable imitation
thereof would be prohibited by Section 3.
16. Having held so, we are of the opinion that Section 4(1)(a) though
placing prohibition only vis-à-vis name but has to be read in conjunction
with Section 3 and ECI as a competent authority within the meaning of
Section 2(b) of the Emblems Act is prohibited from registering any
association or body of persons as a political party even if it uses any
Scheduled emblem.
W.P.(C) No.1458/2014 Page 19 of 24
17. We have already held hereinabove that the insignia on the letterhead
of AAP can neither be said to be Ashoka Chakra nor a colourable imitation
thereof. Moreover, AAP in its letter dated 15th March, 2013 to the
respondent ECI and copy of which has been filed before us clearly stated that
the insignia on its letterhead was not the official logo of the party and that if
found not entitled to use of the said insignia, would not use the same. The
respondent ECI vide its letter dated 22nd March, 2013 to AAP, while
communicating the registration of AAP as a political party under Section
29A (supra) directed AAP not to use the national emblem "Ashoka Chakra"
or any part / imitation thereof in its letterhead or on any other party material.
It is not the case of the appellant that AAP has not complied with the said
condition. The purpose of Section 4 of the Emblems Act is only to control
the contravention of Section 3 thereof and once the said purpose has been
achieved, we fail to see as to how still violation of Sections 3 and 4 can be
alleged. We thus do not find any merit in the said ground and dismiss the
same.
18. As far as the other grounds urged by the petitioner in support of the
reliefs claimed are concerned, we do not find the same to be amounting to
violation of any of the conditions for registration stipulated in Section 29A.
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The need for incorporation of Part IVA (supra) in the RP Act arose in the
year 1989 (the same was incorporated with effect from 15 th June, 1989)
merely to enable regulation of political parties by the respondent ECI. Prior
thereto ECI had no control over political parties and was only concerned
with the candidates contesting the election. Registration under Section 29A
is only optional and is only for registration of name of the political party and
there is no specific provision for registration of flag, symbol or slogan or
design of the flag in the RP Act. The particulars regarding flag, symbol or
slogan are not relevant factors to be furnished by the political party for
registration. We have to view the contents of Section 29A in this perspective
only and in no other. Else, the settled law is that right to form association
has been conferred the status of Fundamental Right under Article 19(1)(c) of
the Constitution of India. The particulars required by Section 29A to be
furnished by a political party seeking registration are only for the purpose of
identification thereof and not for any other reason. The provisions of Section
29A are not intended to be a deterrent to registration of political parties
thereunder.
19. ECI, in exercise of powers conferred by Article 324 of the
Constitution of India and Section 29A of the RP Act has issued "Guidelines
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and Application Format for Registration of Political Parties under Section
29A of the Representation of the Act, 1951." Though the said Guidelines
inter alia require that there should be a specific provision in the Rules /
Constitution of the association or body of persons seeking registration as
political party regarding internal democracy in the party, organizational
elections at different levels, mode of such elections etc. but there is nothing,
either in Section 29A or in the said Guidelines requiring an inquiry to be
conducted into the fairness and validity of the elections held for the post of
office bearers of such political party. The objection of the petitioner that the
elections of the Executive Committee of AAP were held arbitrarily without
adopting democratic procedure is of no avail. Similarly, though the said
Guidelines require the application for registration to be accompanied with
individual affidavits from at least 100 members of the Party but there is
again no requirement for the ECI to, prior to registration investigate into the
validity of the said affidavits if otherwise on face they are affidavits of
members of such party. Similarly, we do not find any provision requiring
ECI to inquire / investigate if in the documents furnished the address of any
office bearer of a political party seeking registration is shown at different two
addresses. Section 18 of the Representation of the People Act, 1950 to which
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reference is made only contains prohibition against registration on the
electoral rolls for more than one constituency. Violation thereof has, in
Pothula Rama Rao Vs. Pendyala Venakata Krishna Rao (2007) 11 SCC 1
and in Ramnarain Ramgopal Chamediya Vs. Ramchandra Jagoba Kadu
AIR 1958 Bombay 325, been held to be not fatal. There is no provision in
Section 29A or in the Guidelines for scrutiny/investigation to be done and for
the reason of not doing of which the petitioner finds fault with the
registration. It is significant that no person who may have been shown as a
member of the party has come forward to say that he / she was shown a
member of the party without his / her consent. Similarly no person at whose
address AAP may have shown its office has come forward to say that he had
not allowed AAP to use its premises as an officer or had not given NOC
therefor. A political party is like a club and in respect whereto the law is
clear that the Courts will not interfere in its indoor management.
20. Mention may also be made of S.S. Karana Vs. Election Commission
MANU/DE/0495/1993 where a Division Bench of this Court held that
Section 29A(9) requiring a registered political party to communicate to ECI
any change in its name, head office, office bearers, address or any other
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material matter does not enjoin any corresponding duty on the ECI to
exercise any such power over the political parties.
21. We therefore do not find any merit in the petition and rather find it to
be thoroughly misconceived and dismiss the same with costs of Rs. 5,000/-
payable to Delhi State Legal Services Authority within three months of
today.
RAJIV SAHAI ENDLAW, J.
CHIEF JUSTICE MARCH 19, 2015 „gsr‟ W.P.(C) No.1458/2014 Page 24 of 24