Kerala High Court
Anil Thomas vs Indian National Congress on 10 May, 2011
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
WEDNESDAY, THE 6TH DAY OF DECEMBER 2017/15TH AGRAHAYANA, 1939
W.P(C).No.31413 of 2017 (B)
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PETITIONER(S):-
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ANIL THOMAS, S/O. (LATE) V.V. THOMAS,
VADAKKEVEETTIL HOUSE,
OPPOSITE GOVERNMENT GUEST HOUSE,
PATHANAMTHITTA (P.O.), PATHANAMTHITTA DISTRICT.
BY ADVS.SRI.JACOB P.ALEX
SRI.JOSEPH P.ALEX
RESPONDENT(S):-
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1. INDIAN NATIONAL CONGRESS,
REPRESENTED BY ITS GENERAL SECRETARY,
(IN CHARGE OF KERALA PRADESH)
MUKUL WASNIK, 24, AKBAR ROAD, NEW DELHI - 110011.
2. CENTRAL ELECTION AUTHORITY OF INDIAN NATIONAL CONGRESS,
REPRESENTED BY ITS CHAIRMAN, MULLAPPALLY
RAMACHANDRAN, MP, 24, AKBAR ROAD, NEW DELHI-110001.
3. KERALA PRADESH CONGRESS COMMITTEE,
REPRESENTED BY ITS PRESIDENT, M. M.HASSAN,
INDIRA BHAVAN, VELLAYAMBALAM,
SASTHAMANGALAM (PO), THIRUVANANTHAPURAM - 685010.
4. PRADESH ELECTION AUTHORITY (KERALA)
OF INDIAN NATIONAL CONGRESS,
REPRESENTED BY ITS CHAIRMAN AND PRADESH RETURNING OFFICER,
DR. E.M. SUDARSANA NATCHIAPPAN, INDIRA BHAVAN,
VELLAYAMBALAM, SASTHAMANGALAM (P.O.),
THIRUVANANTHAPURAM - 685010.
5. DISTRICT CONGRESS COMMITTEE,
PATHANAMTHITTA, REPRESENTED BY ITS PRESIDENT,
BABU GEORGE, RAJEEV BHAVAN, TB ROAD,
PATHANAMTHITTA DISTRICT - 689645.
W.P(C).No.31413 of 2017 (B) - 2 -
6. DISTRICT RETURNING OFFICER (PATHANAMTHITTA DCC),
DISTRICT CONGRESS COMMITTEE,
RAJEEV BHAVAN, TB ROAD, PATHANAMTHITTA (P.O.),
CHITTOOR MURI, PATHANAMTHITTA VILLAGE,
KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT - 689645.
7. ELECTION COMMISSION OF INDIA,
REPRESENTED BY ITS SECRETARY,
NIRVACHAN SADAN, ASHOKA ROAD,
NEW DELHI, PIN - 110001.
R1 & R3 BY ADVS. SRI.N.N.SUGUNAPALAN (SR.)
SRI.S.SUJIN
SRI.NAVANEETH D.PAI
R5 & R6 BY ADVS. SRI.ARUN.B.VARGHESE
SRI.V.R.SOJI
R7 BY STNDING COUNSEL SRI.MURALI PURUSHOTHAMAN.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
09-11-2017, THE COURT ON 06-12-2017 DELIVERED THE FOLLOWING:-
W.P(C).No.31413 of 2017 (B)
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APPENDIX
PETITIONER(S)' EXHIBITS:-
-------------------------
EXHIBIT P1 TRUE COPY OF THE CONSTITUTION OF THE 1ST RESPONDENT
ALONG WITH RULES.
EXHIBIT P2 TRUE COPY OF THE LETTER NO.PG-9A/1163 DATED 10.5.2011 SENT
BY SHRI.JANARDHAN DWIVEDI, GENERAL SECRETARY AICC TO THE
7TH RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE RELEVANT REPORT PUBLISHED IN THE ECONOMIC
TIMES DAILY ON 27.3.2017.
EXHIBIT P4 TRUE COPY OF THE GUIDELINES PRESCRIBED BY THE ELECTION
COMMISSION OF INDIA REGARDING REGISTRATION OF POLITICAL
PARTIES.
EXHIBIT P5 TRUE COPY OF THE RELEVANT WEB PAGE OF THE 1ST RESPONDENT
EVIDENCING CONSTITUTION OF THE 2ND RESPONDENT.
EXHIBIT P6 TRUE COPY OF THE INDIAN NATIONAL CONGRESS ORGANISATIONAL
ELECTION (A COMPILATION OF THE CONSTITUTIONAL PROVISIONS
AND RULES FRAMED THEREUNDER TO FACILITATE THE WORK OF THE
RETURNING AND OTHER ELECTION OFFICERS) & GUIDELINES FOR
ORGANIZATIONAL ELECTION, 2017.
EXHIBIT P7 TRUE COPY OF ORGANIZATIONAL ELECTION PROGRAMME-2017
PUBLISHED IN THE WEBSITE OF 1ST RESPONDENT
<WWW.INC.IN/RESOURCES/PRESS-RELEASES/1593>
EXHIBIT P8 TRUE COPY OF THE REPRESENTATION DATED 11.9.2017 SUBMITTED
BY PETITIONER BEFORE THE RESPONDENTS 2 TO 6 AND OTHER
LEADERS OF THE 1ST RESPONDENT.
EXHIBIT P9 TRUE COPY OF A REPORT PUBLISHED IN ONLINE EDITION OF
MALAYALA MANORAMA ON 14.9.2017.
EXHIBIT P10 TRUE COPY OF A REPORT PUBLISHED IN DECCAN CHRONICLE DAILY
ON 25.9.2017.
EXHIBIT P11 TRUE COPY OF THE EMAIL DATED 24.9.2017 SUBMITTED BY THE
PETITIONER BEFORE THE CHAIRMAN OF 2ND RESPONDENT.
EXHIBIT P12 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE
PETITIONER BEFORE THE 7TH RESPONDENT.
EXHIBIT P13 TRUE COPY OF THE LETTER DATED 22.03.2017 ISSUED BY THE
ELECTION COMMISSION OF INDIA TO 1ST RESPONDENT.
EXHIBIT P14 TRUE COPY OF THE REPORT DATED 23.10.2017 PUBLISHED IN THE
HINDU DAILY.
EXHIBIT P15 TRUE COPY OF THE ORDER DATED 20.09.2017 IN O.S.
NO.325 OF 2017 OF THE MUNSIFF'S COURT, PATHANAMTHITTA.
W.P(C).No.31413 of 2017 (B) - 2 -
RESPONDENT(S)' EXHIBITS:-
-------------------------
EXHIBIT R3(a) TRUE COPY OF THE ELECTION NOTIFICATION ACCOMPANYING
THE EXT.P7 PROGRAMME DATED 15.04.2017.
vku/- [ true copy ]
K. Vinod Chandran, J
----------------------------------------
W.P.(C).No.31413 of 2017
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Dated this the 06th day of December, 2017
JUDGMENT
The petitioner, under Article 226 of the Constitution of India, seeks intervention of this Court in the conduct of proper elections to the 1st respondent political party, more specifically to the various committees in the hierarchy of the party as available under Exhibit P1.
2. Notice was issued on admission, since this Court wanted to hear the petitioner and the respondents first on the maintainability of the writ petition.
3. The petitioner is a member of the 1st respondent, a National political party registered by the Election Commission of India under Section 29A of the Representation of the People Act, 1951 [for brevity "RP Act"]. The petitioner, to invoke the jurisdiction under Article 226, contends that the 1st respondent is discharging public functions/duties that are fundamental to democracy and, hence, is amenable to writ jurisdiction under Article 226. The petitioner submits that the organizational hierarchy as per Exhibit P1 speaks of a 5-tier WP(C).No.31413 of 2017 - 2 - Committee; to all of which the office bearers are to be elected. The last elections were conducted in the year 2010 and the period of the elected committees have expired in the year 2015. The party had approached Election Commission with a request for postponing the elections and as of now the Election Commission has directed the elections to be conducted before 31.12.2017. A notification is said to have been issued, as seen from Exhibit P6 by the highest Committee in the hierarchy, the All India Congress Committee.
4. The 4th respondent is appointed for conducting elections within the State of Kerala and 6th respondent for the Pathanamthitta District Congress Committee [DCC]. The petitioner is said to be the Vice-President of the 5th respondent, District Congress Committee [DCC] of Pathanamthitta. Despite the guidelines for organizational election as seen from Exhibit P6, the respondents 4 and 6 did nothing to go ahead with the election process. The leaders of the political party are opposing the organizational election and are attempting to share organizational posts among the different factions. Not even the preliminary voters list was published and there is an attempt by both the 4th and 6th respondents to select candidates by a consensus. It is WP(C).No.31413 of 2017 - 3 - also alleged that the 3rd respondent has given direction to the DCC's within Kerala to forward list of 2 persons from each booth and a list of DCC members from each Block Congress Committee. The petitioner, hence, seeks a mandamus to the respondents 1 to 6 to conduct organizational elections within the State of Kerala in accordance with Exhibits P1 and P6 and restrain the said respondents from filling up the post of elected members and elected office bearers except in accordance with the elections as stipulated in Exhibits P1 and P6. A writ of mandamus is also sought to the 7th respondent, the Election Commission, to take appropriate decision on Exhibit P12, a complaint; the subject of which is the un-democratic manner in which the organizational elections of Indian National Congress is conducted; while its constitution profess otherwise.
5. The learned Counsel for the petitioner submits that the political parties, as registered under the RP Act, discharge a public function and their members occupy seats in the various Legislatures and also the Parliament and at different times function as the Government wherever and whenever they have a majority. The political parties, for registration under Section 29A, of the R.P.Act WP(C).No.31413 of 2017 - 4 - have to comply with the guidelines prescribed by the Election Commission in exercise of the powers conferred by Article 324 of the Constitution of India. Exhibit P4 is the guidelines which require an application to be made, accompanied by the documents as specified in para 3 of the guidelines. The guidelines insist that the party constitution should inter alia reveal the organizational structure with delineated powers and functions of each of these organs which exercise their respective powers in a true democratic spirit. The method of appointment of the members to each of these organs is by an election and the nominations can only be to the extent of 1/3rd of the members. The tenure of an elected body should not exceed 5 years and the period within which the elections are to be conducted is also specified as a maximum of 5 years.
6. Exhibit P1 constitution of the Indian National Congress has been framed in accordance with the guidelines and the provisions mandating such democratic elections are incorporated, in accordance with the guidelines. This is to be scrupulously followed and not merely confined to the printed pages for the purpose of registration under Section 29A of the RP Act alone. S.R.Bommai v. Union of India WP(C).No.31413 of 2017 - 5 - [(1994) 3 SCC 1], a Constitution Bench decision, was cited to contend that political parties, an integral part of the parliamentary democracy, has to follow democratic principles, which constitute the core of our constitutional system. The Hon'ble Supreme Court had emphasised the significance of the political parties insofar as their members manning the Parliament, forming the Government and governing the country; which makes it necessary to make democracy, financial transparency and accountability integral to the working of the political parties. There should be democracy in a political party within and without, was the clear finding of the Hon'ble Supreme Court argues learned Counsel.
7. On the question of maintainability, it is argued that the concept of any person or authority, as spoken of by Article 226 of the Constitution of India, has been widened over the years by the Courts of this land. Reliance is placed on Andi Mukta S.M.V.S.S.J.M.S.Trust v. V.R.Rudani [(1989) 2 SCC 691]. Under Article 226, any person or authority performing public duty and owing a positive obligation to the affected party has been held to be amenable to the writ jurisdiction irrespective of whether it falls under WP(C).No.31413 of 2017 - 6 - the definition of 'State' under Article 12. A political party definitely discharges public functions when contesting the elections and participating in the governance of the country as also making laws and framing policies. Even a private Trust, in the aforesaid decision was found to be amenable to writ jurisdiction and there is nothing stopping this Court from invoking the extraordinary jurisdiction under Article 226; to infuse constitutional virtues of democracy and accountability into the functioning of the political party, is the forceful submission. Reliance is also placed on Sukhdev Singh v. Bhagatram [(1975) 1 SCC 421], Board of Control for Cricket in India v. Cricket Assn. of Bihar [(2015) 3 SCC 251] and Janet Jeyapaul v. SRM University [(2015) 16 SCC 530] to advance the very same proposition.
8. It is high time the Courts of this land intervened in the functioning of the political parties also, pleads the learned Counsel for the petitioner. The learned Counsel asserts that the writ petition under Article 226 is maintainable and this Court can issue directions to respondents 1 to 6 to comply with Exhibit P1 and P6 in the letter and spirit, to uphold the Constitutional principles, which is the mandate WP(C).No.31413 of 2017 - 7 - under Section 29A, for obtaining registration under the RP Act.
9. The learned Senior Counsel appearing for respondents 1 and 3 as also the learned Counsel appearing for respondent 5 and 6 raise serious objections with respect to the maintainability. It is pointed out that the petitioner had approached the Civil Court with a suit for declaration and mandatory injunction, which was rejected as per Exhibit P15. The rejection of a plaint, as found from Exhibit P15, is deemed to be a decree under Section 2(2) of the Code of Civil Procedure, 1908 [for brevity "CPC" or "Code"] and, hence, going by the authoritative pronouncement of the Hon'ble Supreme Court in Rishabh Chand Jain and Another v. Ginesh Chandra Jain [(2016) 6 SCC 675], the petitioner ought to file an appeal. The petitioner having chosen to approach the Civil Court, cannot now turn around and seek consideration of the very same relief under Article 226 as has been held in State of Rajasthan v. Union of India and Others [2016 (10) SCALE 312]. It is submitted that the elections to the various committees, upto the Pradesh Committee, are now over. There is also a suit filed by one another member under Order I Rule 9 CPC before the Thiruvananthapuram Munsiff Court as O.S.No.1405 of WP(C).No.31413 of 2017 - 8 - 2017. The petitioner could very well implead himself, since a publication has been made as provided in Order I Rule 9 and agitate his cause before the Civil Court.
10. It is argued by the respondents that un-disputedly its constitution incorporate democratic values and accountability insofar as the elections to the various hierarchical committees; a pre-requisite for registration under Article 29A of the RP Act. The respondent party has also been following the constitution in its letter and spirit. But by virtue of the registration under the RP Act the party does not become a public authority; enabling invocation of the powers under Article 226 to interfere with its internal affairs, like elections, in which intervention is sought in the present writ petition. It is pointed out that the Hon'ble Supreme Court in Indian National Congress (I) v. Institute of Social Welfare and Others [(2002) 5 SCC 685] noticed that the Parliament deliberately omitted to vest the Election Commission of India with the power to de-register a political party for non-compliance of the conditions for grant of a registration under Section 29A. The relief sought in the nature of direction to the 7th respondent, Election Commission, hence is futile and this Court would not issue futile writs; WP(C).No.31413 of 2017 - 9 - is the specific argument. The additional respondent who got himself impleaded though supports the respondents, has filed an affidavit in consonance with the contentions raised by the petitioner, which would be referred to later, if this Court favours the maintainability.
11. This Court is not persuaded to reject the writ petition on the ground of the suit filed by the petitioner having been rejected or adverting to the doctrine of election. Rishabh Chand Jain was a case in which an application filed by the defendants for dismissal of a suit, on grounds of res judicata and absence of cause of action, was allowed. In a revision filed before the High Court, it was found that since no issue was framed on maintainability, the order was revisable under Section 115 of the Code. The Hon'ble Supreme Court found that the order of the trial Court having conclusively determined the rights of the parties with regard to one of the matters in controversy, viz., res judicata, it was an appealable order. Though there was no issue framed, the dismissal on the ground of res judicata makes the order a decree. Merely on a procedural irregularity, of not having framed an issue, an order does not cease to be a decree and, hence, no revision lies under Section 115 of the Code was the finding. WP(C).No.31413 of 2017 - 10 -
12. The order rejecting the suit is produced as Exhibit P15 by the petitioners. The rejection was specifically for the reason of the petitioner having not alleged any denial of individual civil right and for having sought declaration of a general nature regarding the filling up of the posts of the 1st defendant political party. The Court found that the reliefs sought for cannot be granted under Section 34 of the Specific Relief Act.
13. The rejection of the plaint is not challenged and even according to the petitioner he seeks invocation of Article 226 on the other grounds raised in the writ petition.The decision in Rishabh Chand Jain does not have any application, since the present petition is one under Article 226 of the Constitution. As to the doctrine of election, the petitioner's relief was found to be not available before the Civil Court, as instituted. Hence, he has approached this Court under Article 226, according to him an alternative remedy. Whether the suit should have been drafted in a better manner is not the question which is urged before this Court. The suit having been rejected for reason of the reliefs not possible of being considered, it cannot be said that the plaintiff is interdicted from approaching any other forum which has WP(C).No.31413 of 2017 - 11 - jurisdiction.
14. Then the issue is of the maintainability of the writ petition under Article 226; whether there could be a mandamus issued to the political party to conduct its organizational elections as mandated in its constitution. The scope of Article 226 has been widened in course of time by virtue of the words employed in Article 226 itself. The earlier position that only a "State" as defined under Article 12 would be amenable to the jurisdiction under Article 226 is no more good law. This Court is called upon to examine whether the constitution of the political party and its role in the public domain would permit this Court to issue a mandamus as sought for or whether it would be transgressing the well established, self imposed restrain of not assuming jurisdiction where it does not really exist. A consequential issue would arise; if the Court assumes jurisdiction, as to how the Court would go ahead in implementing the orders issued. This question is intrinsically linked with the power of the Election Commission over the political parties.
15. The learned Counsel for the petitioner had laid considerable stress on the observation made by K.K.Mathew,J. in WP(C).No.31413 of 2017 - 12 - Sukhdev Singh at paragraph 101. Sukhdev Singh considered the issue as to whether statutory Corporations carrying on business of public importance are authorities within the meaning of Article 12. The question arose in the context of the employees of statutory Corporations claiming protection of Articles 14 and 16 against the Corporations. K.K.Mathew J, noticing that the "Constitution does not through its own force, set any limitation on private action" (sic-para
95); went on to discuss the specific issue of how far the concept of holding down, even private entities discharging public function, to act within the constitutional limitations, could be expanded. Dilating upon the various decisions of the Supreme Court of America, it was found that "In America, corporations or associations, private in character, but dealing with public rights, have already been held subject to Constitutional standards. Political parties, for example, even though they are not statutory organisations, and are in form private clubs, are within this category" (sic-para 101). This is not a declaration as to the situation in India; nor did the issue of political parties come up in Sukhdev Singh. After discussing the various decisions of the English and American Courts, the issue dealt with was stated in WP(C).No.31413 of 2017 - 13 - paragraph 108:
"108. In the light of this discussion, let us see whether the Life Insurance Corporation and the Industrial Finance Corporation would come within the ambit of "State"."
We are not concerned with the said issue, since there is no contention raised, nor can it be raised; that a political party comes within the definition of "State" under Article 12 of the Constitution.
16. S.R.Bommai cited is also not relevant, for the issue considered having been quite different from that which is raised before this Court, of a political party being amenable to a writ jurisdiction. The reference is from one of the six separate judgments of the learned Judges of the Hon'ble Supreme Court, specifically of Jeevan Reddy J. The issue dealt with was the nature, scope, applicability and effect of Article 356 of the Constitution; which enables the President to make a proclamation in the case of Constitutional machineries in the States. The discussion referred to was, pointedly under the head "the Constitution of India and the concept of secularism". The issue arose in the wake of a contention raised that secularism being the basic feature of the Constitution, a State Government can be dismissed if it is guilty of unsecular acts. In WP(C).No.31413 of 2017 - 14 - countering such arguments, the Counsel for the petitioners termed "secularism" to be a vague concept, not defined in the Constitution, and, hence, incapable of being a ground for action under Article 356. Understanding "Secularism as something, more than a passive attitude of religious tolerance and a positive concept of equal treatment of all religions" (sic - para 304), the effect of any party or organization fighting the elections on the basis of a plank which has the proximate effect of erosion of secularism of the Constitution was held to be liable to be termed as an unconstitutional course of action. The very purpose of the political parties, its formation and existence, was to capture or share State power. Though an association of individuals, the functional relevance of a political party in a democracy cannot be ignored, was the finding. Drawing a distinction between a religious body or a cultural organization, the functional relevance of the political party was emphasized for reason of the formation itself being an action intented at acquisition of State power.
17. Political parties are integral to the governance of the democratic society, but that does not make them amenable to the jurisdiction of this Court under Article 226, especially in the regulation WP(C).No.31413 of 2017 - 15 - of their internal affairs, as in the present case, their organizational elections; which has no public element. Reiterating, at the risk of repetition, this Court is not looking at whether a political party falls under Article 12 of the Constitution; it does not. Whether the nature and character of a political party, its constant endeavour to come to power and wield the State machinery, makes it amenable to the writ jurisdiction as an entity discharging public functions is the question urged. This is the thrust of the argument, based on the various decisions relied on by the learned Counsel for the petitioner.
18. Andi Mukta S.M.V.S.S.J.M.S.Trust was a case in which the meaning of "authority", as spoken of in Article 226 in a context different from Article 12, was examined. Retrenched teachers of a private aided college, a Public Trust, sought a writ of mandamus to compel the college management to pay the terminal benefits and arrears of salary. The brief facts were that the Trust was running a college affiliated to the Gujarat University and pursuant to a dispute raised by the teachers' Association, the Chancellor passed an award directing certain pay scales to be implemented by the affiliated colleges; which was accepted by the State Government also. The WP(C).No.31413 of 2017 - 16 - Trust, without implementing the award, served notice of termination on the teachers, on the ground of they being surplus, which was refused approval by the Vice-Chancellor. The management then closed down the College by surrendering the affiliation. The teachers who were thrown out from their job, approached the High Court for payment of pay and allowances and also terminal benefits. The Trust contested the same on the ground of maintainability. The Hon'ble Supreme Court found the maintainability in favour of the teachers on the following reasoning:
"15. If the rights are purely of a private character no mandamus can issue. If the management of the college is purely a private body with no public duty mandamus will not lie. These are two exceptions to mandamus. But once these are absent and when the party has no other equally convenient remedy, mandamus cannot be denied. It has to be appreciated that the appellants trust was managing the affiliated college to which public money is paid as government aid. Public money paid as government aid plays a major role in the control, maintenance and working of educational institutions. The aided institutions like government institutions discharge public function by way of imparting education to students. They are subject to the WP(C).No.31413 of 2017 - 17 - rules and regulations of the affiliating University. Their activities are closely supervised by the University authorities. Employment in such institutions, therefore, is not devoid of any public character. So are the service conditions of the academic staff. When the University takes a decision regarding their pay scales, it will be binding on the management. The service conditions of the academic staff are, therefore, not purely of a private character. It has super-added protection by University decisions creating a legal right-duty relationship between the staff and the management. When there is existence of this relationship, mandamus cannot be refused to the aggrieved party.
xxx xxx xxx
20. The term "authority" used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non- fundamental rights. The words "any person or authority"
used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the WP(C).No.31413 of 2017 - 18 - body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed, if a positive obligation exists mandamus cannot be denied".
19. BCCI not burdened by Government control, all the same was held to be amenable to writ jurisdiction in the "nature of duties and functions" which the BCCI performs, as has been held in paragraph 33:
"33. The majority view thus favours the view that BCCI is amenable to the writ jurisdiction of the High Court under Article 226 even when it is not "State" within the meaning of Article 12. The rationale underlying that view if we may say with utmost respect lies in the "nature of duties and functions" which BCCI performs. It is common ground that the respondent Board has a complete sway over the game of cricket in this country. It regulates and controls the game to the exclusion of all others. It formulates rules, regulations, norms and standards covering all aspects of the game. It enjoys the power of choosing the members of the national team and the umpires. It exercises the power of disqualifying players which may at times put an end to the sporting career of a person. It spends crores of rupees on building and maintaining infrastructure like stadia, running WP(C).No.31413 of 2017 - 19 - of cricket academies and supporting State associations. It frames pension schemes and incurs expenditure on coaches, trainers, etc. It sells broadcast and telecast rights and collects admission fee to venues where the matches are played. All these activities are undertaken with the tacit concurrence of the State Government and the Government of India who are not only fully aware but supportive of the activities of the Board. The State has not chosen to bring any law or taken any other step that would either deprive or dilute the Board's monopoly in the field of cricket. On the contrary, the Government of India has allowed the Board to select the national team which is then recognised by all concerned and applauded by the entire nation including at times by the highest of the dignitaries when they win tournaments and bring laurels home. Those distinguishing themselves in the international arena are conferred highest civilian awards like the Bharat Ratna, Padma Vibhushan, Padma Bhushan and Padma Shri apart from sporting awards instituted by the Government. Such is the passion for this game in this country that cricketers are seen as icons by youngsters, middle aged and the old alike. Any organisation or entity that has such pervasive control over the game and its affairs and such powers as can make dreams end up in smoke or come true cannot be said to be undertaking any private activity".
WP(C).No.31413 of 2017 - 20 -
20. Janet Jeyapaul was a case in which writ of mandamus was sought against a Deemed University under Section 3 of the UGC Act. Paragraph 30 extracted herein reveals the reasoning of the Court:
"30. This we say for the reasons that firstly, Respondent No.1 is engaged in imparting education in higher studies to students at large. Secondly, it is discharging "public function" by way of imparting education. Thirdly, it is notified as a "Deemed University"
by the Central Government Under Section 3 of the UGC Act. Fourthly, being a "Deemed University", all the provisions of the UGC Act are made applicable to Respondent No. 1, which inter alia provides for effective discharge of the public function-namely education for the benefit of public. Fifthly, once Respondent No. 1 is declared as "Deemed University" whose all functions and activities are governed by the UGC Act, alike other universities then it is an "authority" within the meaning of Article 12 of the Constitution. Lastly, once it is held to be an "authority" as provided in Article 12 then as a necessary consequence, it becomes amenable to writ jurisdiction of High Court Under Article 226 of the Constitution".
WP(C).No.31413 of 2017 - 21 -
21. None of these decisions help the petitioner in seeking invocation of the writ jurisdiction against a political party. A political party essentially is an association of individuals and the registration under the RP Act enables the political party to contest the elections to the various governing and law making bodies; at the Panchayat level, the State Assemblies and the Union Parliament. There are no public functions the political party is obliged to perform when not in power. Whatever activities a political party or its members carry out amongst the public and in the public domain, are voluntary activities, borne out of a desire to do public service or as found by the Hon'ble Supreme Court, in their endeavour to capture State power. There is absolutely no public duty enjoined upon a political party when they are out of power. Their actions collectively and individually are always under public scrutiny, which regulates their electoral destinies too. But, that alone does not make it an obligatory public function; as in the case of a Deemed University or College imparting education, or in the case of BCCI which selects the team of the Nation and shapes or puts to peril, the career of individuals in the National and International arena. WP(C).No.31413 of 2017 - 22 -
22. Even when in power, it is not the political party which exercises the power of the State, though the party's policies and philosophies would have its influence generally in the laws enacted as also the act of governing in particular. It is not the political party which governs. When in a majority, the executive Government comprised of elected members of the political party and in law making the Legislature; are the two collectives who wield the power and authority. Even then it cannot be said that there is a public function mandated on the political party in power. The obligation if any is moral and entwined with electoral destinies. The public duties legally enjoined on them does not constitute an internal organisational election.
23. In this context, K.K.Saksena v. International Commission on Irrigation and Drainage and Others [(2015) 4 SCC 670] assumes significance. Distinguishing private law from public law, it was held that even private law obligations of State and public authorities would not be amenable to writ jurisdiction. Reference can be made to paragraphs 43 to 45, which are extracted hereunder:
"43. What follows from a minute and careful reading of the aforesaid judgments of this Court is that if a person or authority is a 'State' within the meaning of WP(C).No.31413 of 2017 - 23 - Article 12 of the Constitution, admittedly a writ petition Under Article 226 would lie against such a person or body. However, we may add that even in such cases writ would not lie to enforce private law rights. There are catena of judgments on this aspect and it is not necessary to refer to those judgments as that is the basic principle of judicial review of an action under the administrative law. Reason is obvious. Private law is that part of a legal system which is a part of Common Law that involves relationships between individuals, such as law of contract or torts. Therefore, even if writ petition would be maintainable against an authority, which is 'State' Under Article 12 of the Constitution, before issuing any writ, particularly writ of mandamus, the Court has to satisfy that action of such an authority, which is challenged, is in the domain of public law as distinguished from private law.
44. Within a couple of years of the framing of the Constitution, this Court remarked in Election Commission of India v. Saka Venkata Subba Rao MANU/SC/0060/1953 : AIR 1953 SC 210 that administrative law in India has been shaped in the English mould. Power to issue writ or any order of direction for 'any other purpose' has been held to be included in Article 226 of the Constitution 'with a view WP(C).No.31413 of 2017 - 24 - apparently to place all the High Courts in this country in somewhat the same position as the Court of the King's Bench in England. It is for this reason ordinary 'private law remedies' are not enforceable through extraordinary writ jurisdiction, even though brought against public authorities (See-Administrative Law; 8th Edition; H.W.R. Wade & C.F. Forsyth, page 656). In a number of decisions, this Court has held that contractual and commercial obligations are enforceable only by ordinary action and not by judicial review.
45. On the other hand, even if a person or authority does not come within the sweep of Article 12 of the Constitution, but is performing public duty, writ petition can lie and writ of mandamus or appropriate writ can be issued. However, as noted in Federal Bank Ltd. (supra), such a private body should either run substantially on State funding or discharge public duty/positive obligation of public nature or is under liability to discharge any function under any statute, to compel it to perform such a statutory function.
24. The prayer made in the above writ petition is to issue a mandamus to conduct organizational elections to the 1st respondent within the State of Kerala in accordance with Exhibits P1 and P6, WP(C).No.31413 of 2017 - 25 - which are respectively the Constitution of the Party and the Guidelines for Organizational Election-2017. These are internal measures applicable to the association and its members, which does not fall under the ambit of a public duty. The grounds raised by the petitioner also speak of the organizational elections, if not conducted in accordance with the constitution and the guidelines making the inner party democracy a casualty. The right of the party members, including the petitioner, to exercise their choice would be denied is the further ground. These are all private rights arising as a member of the political party, which could be raised within its organizational structure or before the appropriate civil forum.
25. The last nail, so to say; is the question of what would be the consequence, if a mandamus is issued. This Court, on well established principles, would not issue a futile writ. Useful reference can be made to paragraph 291 of S.R.Bommai, wherein was considered the question of power of the Court to restore the Government to office in the event of the proclamation under Article 356 being found to be unconstitutional. The Court held that there can be no dispute on the power of the Court to so restore the State WP(C).No.31413 of 2017 - 26 - Government if the proclamation is struck down, since otherwise the very power of judicial review would be rendered nugatory and the entire exercise meaningless. It was held:
"If the Court cannot grant the relief flowing from the invalidation of the Proclamation, it may as well decline to entertain the challenge to the Proclamation altogether. For, there is no point in the Court entertaining the challenge, examining it, calling upon the Union Government to produce the material on the basis of which the requisite satisfaction was formed and yet not give the relief. In our considered opinion, such a course is inconceivable".
26. This Court having found against the maintability under Article 226, the petitioner's further argument is based on the complaint raised before the Election Commission. What possibly could be the action taken by the Election Commission is answered in Indian National Congress (I). The case arose in the context of a writ petition filed before the High Court seeking enforcement of the decision of the Hon'ble Supreme Court declaring the calling of a Bandh to be unconstitutional. The cause of action was traced to the practise of the WP(C).No.31413 of 2017 - 27 - political parties to call for Hartals, which resulted in a complete break-down, as in the case of a Bandh. The specific prayer was to direct the Election Commission of India to take action against the registered political parties for violation of their undertaking that they will abide by the Constitution. The prayer sought for, was to direct the Election Commission to take action for violation of the essential principles of democratic set up, incorporated in the constitution of the political party, based on the constitutional values of the country, having been violated. The action demanded from the Election Commission was a deregistration of the party under Section 29A, which was argued to be an administrative action and not a quasi-judicial one. It was held so:
"We are, therefore, of the view that neither under the Symbols Order nor under S.29A of the Act, the Election Commission has been conferred with any express power to deregister a political party registered under S.29A of the Act on the 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".
WP(C).No.31413 of 2017 - 28 -
Answering the argument regarding the ancillary and incidental power of the Election Commission, it was held:
"The ancillary and incidental power of the Commission cannot be extended to a case where a registered political party admits that it has faith in the Constitution and principles of socialism, secularism and democracy, but some people repudiate such admission and call for an enquiry by the Election Commission. Reason being, an incidental and ancillary power of a statutory authority is not the substitute of an express power of review".
Reference can also be made to the following paragraphs:
"40. It may be noted that Parliament deliberately omitted to vest the Election Commission of India with the power to deregister a political party for non-compliance with the conditions for the grant of such registration. This may be for the reason that under the Constitution the Election Commission of India is required to function independently and ensure free and fair elections. An enquiry into non- compliance with the conditions for the grant of registration might involve the Commission in matters of a political nature and could mean monitoring by the Commission of the political activities, programmes and ideologies of WP(C).No.31413 of 2017 - 29 - political parties. This position gets strengthened by the fact that on 30-6-1994 the Representation of the People (Second Amendment) Bill, 1994 was introduced in the Lok Sabha proposing to introduce Section 29-B whereunder a complaint could be made to the High Court within whose jurisdiction the main office of a political party is situated for cancelling the registration of the party on the ground that it bears a religious name or that its memorandum or rules and regulations are no longer conforming the provisions of Section 29-A(5) or that the activities are not in accordance with the said memorandum or rules and regulations. However, this Bill lapsed on the dissolution of the Lok Sabha in 1996 (see p. 507 of How India Votes: Election Laws, Practice and Procedure by V.S. Rama Devi and S.K. Mendiratta).
41. To sum up, what we have held in the foregoing paragraph is as under:
1. That there being no express provision in the Act or in the Symbols Order to cancel the registration of a political party, and as such no proceeding for deregistration can be taken by the Election Commission against a political party for having violated the terms of Section 29-A(5) of the Act on the complaint of the respondent.
2. The Election Commission while exercising its power to register a political party under Section 29-A of the Act, acts quasi-judicially and decision rendered by it is a WP(C).No.31413 of 2017 - 30 - quasi-judicial order and once a political party is registered, no power of review having been conferred on the Election Commission, it has no power to review the order registering a political party for having violated the provisions of the Constitution or for having committed breach of undertaking given to the Election Commission at the time of registration.
3. However, there are exceptions to the principle stated in paragraph 2 above where the Election Commission is not deprived of its power to cancel the registration. The exceptions are these:
(a) where a political party has obtained registration by practising fraud or forgery;
(b) where a registered political party amends its nomenclature of association, rules and regulations abrogating therein conforming to the provisions of Section 29-A(5) of the Act or intimating the Election Commission that it has ceased to have faith and allegiance to the Constitution of India or to the principles of socialism, secularism and democracy or it would not uphold the sovereignty, unity and integrity of India so as to comply with the provisions of Section 29-A(5) of the Act; and
(c) any like ground where no enquiry is called for on the part of the Commission.
4. The provisions of Section 21 of the General Clauses Act cannot be extended to the quasi-judicial authority. Since the Election Commission while exercising its power under Section 29-A of the Act acts quasi-judicially, the provisions of Section 21 of the General Clauses Act have no application".
WP(C).No.31413 of 2017 - 31 -
27. The Election Commission has also filed a statement, to the effect that it ensures that all recognized political parties report to the Commission about the holding of their elections at prescribed intervals as provided in their respective party constitutions and that they also submit the list of office bearers elected at the Central level. The monitoring of the elections within the recognised political parties, by the Election Commission, is stated to be only to the extent that they are conducted in time as mentioned in the bye-laws of the party constitution. The 1st respondent party has been directed to submit the complete list of office bearers by the 1st week of January, 2018 and no action, according to the Commission, is called for at present. This Court has to respectfully bow to the dictum laid down in Indian National Congress (I); that the Commission could take no action to deregister a political party. The Commission cannot also regulate the inner party functioning. A writ, hence, would be futile and this Court would shun such exercise. The petitioner's right if at all arises from his membership and merely because, when in power the executive comprised of the elected representatives, constitute the Government, the status of the party in power does not change. It is a collective, an WP(C).No.31413 of 2017 - 32 - association, striving to serve the public and the nation, without any obligation enjoined, whether in power or otherwise; ideally! The writ petition is rejected as not maintainable.
Sd/-
K.Vinod Chandran Judge.
vku/-
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