Madras High Court
B.Ramkumar Adityan vs The Chief Election Commissioner on 21 December, 2018
Author: V.Bhavani Subbaroyan
Bench: V.Bhavani Subbaroyan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 21.12.2018
CORAM:
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
W.P(MD)No.SR110146 of 2018
B.Ramkumar Adityan ... Petitioner
Vs.
1.The Chief Election Commissioner,
O/o.Election Commission of India,
Nirvachan Sadan, Ashoka Road,
New Delhi – 110 001.
2.Sh.O.Paneerselvam
3.Sh.Edappadi K.Palanichami
4.Sh.E.Madhusudhanan
5.Smt.V.K.Sasikala
6.Sh.K.C.Palanisamy
7.Mr.T.T.V.Dinakaran ... Respondents
Prayer: Petition filed under Article 226 of the Constitution of India, to
issue a writ of Mandamus, directing the first respondent to dispose
petitions of the petitioner, dated 15.02.2017, 17.03.2017, 08.07.2017,
06.02.2018, 07.11.2018 and 12.11.2018 by affording sufficient
opportunity of hearing to the petitioner to produce any material and
clarification and pass a reasonable speaking order on main issues raised
and relief claimed within the stipulated time.
For Petitioner : Mr.Karthick Subramanian
http://www.judis.nic.in
2
ORDER
The petitioner has filed the present writ petition, before being numbered it is posted for maintainability as the Registry has raised certain questions with regard to maintainability of the prayer sought for by the petitioner.
2.The learned counsel appearing for the petitioner canvassed for maintainability of the present writ petition. The prayer sought for in the writ petition under Article 226 of the Constitution of India and in the affidavit filed in support of the writ petition, the petitioner claims to be the member of All India Anna Dravida Munnetra Kazhagam, hereinafter referred to as 'AIADMK' in the presence of their supremo Dr.J.Jayalalitha, former Chief Minister of Tamil Nadu at Kovilpatti on 06.12.2000. The petitioner claims that the AIADMK is a recognized party vide first respondent in the State of Tamil Nadu and Puducherry, which has its own Constitution known as Rules and Regulations.
3.The petitioner further claims that the supremo of 'AIADMK' late.Dr.J.Jayalitha has been unanimously elected as General Secretary to their party on 29.08.2014 who appointed various persons as second, third and fourth respondents as party Treasurer, Presiding Chairman and party organizing Secretary respectively. Due to sudden death of Dr.J.Jayalitha on 05.12.2016, the respondents 2 to 5 and other top cadres instead of http://www.judis.nic.in 3 organizing election for selecting the new General Secretary of the party as per Rule 20(ii) of the Party's Constitution organized a meeting of General Council members of 'AIADMK' on 29.12.2016 and unanimously passed a resolution and appointed V.K.Sasikala as interim General Secretary of the 'AIADMK' against the provisions of Rules and Regulations of the 'AIADMK'. Earlier to the said meeting a letter, calling for emergency General Council meeting, was sent to the members of the General Council. Rule 20(ii) which according to the petitioner is as follows:-
“Rule 20(ii)- The general Secretary shall be elected by the primary members of all the party units of Tamil Nadu and the members of the party in other States like Pondicherry, Andhra Pradesh, Karnataka, Kerala and Andaman Islands.”
4.The petitioner further claims that as per the resolution, passed immediately after the death of Dr.J.Jayalalitha, the council unanimously resolved that the said smt.V.K.Sasikala will be appointed as General Secretary until she is formally elected to the post by vesting all the powers vested with the General Secretary. Thus, on 30.12.2016, it was informed to the first respondent/the Chief Election Commissioner, New Delhi that smt.V.K.Sasikala assumed office as General Secretary with effect from 31.12.2016.
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5.The petitioner further submits that as it was done in violation of provisions of the party constitution, the sixth respondent submitted petitions before the first respondent for interference. The petitioner would further claim that there is no provision or temporary gender Secretary in the Rules and Regulations of the party 'AIADMK'. Thereafter, smt.V.K.Sasikala was unanimously elected as leader of 'AIADMK' legislature party at the meeting held on 05.02.2017.
6.The second respondent, O.Panneer Selvam, who was the then Chief Minister of Tamil Nadu, who proposed Smt.V.K.Sasikala as their legislature party leader at the parties M.L.A meeting, had submitted his resignation letter to the Honourable Governor of Tamil Nadu. The petitioner would further submit that after Apex Court verdict in the disproportionate asset's case, by which, smt.V.K.Sasikala had been lodged in Parappana Agrahara Jail, Bengaluru on 15.02.2017. Thereafter, the third respondent herein has been sworn as the Chief Minister of Tamil Nadu on 16.02.2017 and had passed the floor test on 18.02.2017. The petitioner further submits that the second respondent/Mr.O.Paneer Selvam claimed himself that having majority support in party cadres as against smt.V.K.Sasikala and voted against the third respondent.
7.The petitioner further submits that in the meanwhile, the first respondent/the Chief Election Commissioner announced bye-election to http://www.judis.nic.in 5 R.K.Nagar Assembly Constituency which fell vacant following the death of the party supremo and the then Chief Minister Dr.J.Jayalalitha, which was scheduled to be held on 12.04.2017. The fourth respondent and the seventh respondent have filed their nominations to contest and both of them claimed 'Two Leaves' symbol without any party authorisation. Since there arose a dispute between the respondent No.4 and respondent No.7, the fourth respondent who represented through the party 'AIADMK', the seventh respondent-T.T.V.Dhinakaran, who claimed to be an ascendant of smt.V.K.Sasikala, the first respondent by its order, dated 22.03.2017, in Dispute Case No.2 of 2017 prohibited both factions and from using the symbol and frozed the 'Two Leaves' symbol. However, later point of time, the first respondent allotted 'Hat' symbol to T.T.V.Dhinakaran, who led the faction of AIADMK and named it is as 'AIADMK Amma'.
8.The petitioner further submits that since the first respondent kept pending the decision with regard to the party symbol 'Two Leaves', the petitioner as a member of the political party filed W.P(MD)No.15818 of 2017 seeking for a direction, directing the first respondent to conduct an election in a joint sitting of all M.L.A's and M.P's and members of Executive Council and General Council of 'AIADMK' to ascertain support enjoyed by splinter groups under the supervision of a retired High Court Judge and subsequently, allot party symbol 'Two Leaves' to the splinter group which enjoys the majority support in the above said joint sitting. http://www.judis.nic.in 6
9.By an order, dated 15.09.2017, the Honourable First Bench of this Court directed the first respondent to dispose of the proceedings in Dispute Case No.2 on merits and as per law, after hearing all the parties to the dispute as expeditiously as possible and in any case, on or before 31.10.2017.
10.In the interregnum period, the petitioner further claims that most of the party M.L.A's and M.P's, Executive and General Council members under the leadership of the seventh respondent had left from 'AIADMK Amma' faction and merged with 'AIADMK Puratchi Thalaivi Amma' faction on 12.09.2017. In the meanwhile, the respondents 2 and 3 jointly informed the first respondent through their letter dated 21.09.2017 about the resolutions passed and in consequent to the same, the first respondent allotted 'Two Leaves' symbol to the faction led by the respondents 2 and 3 herein on 23.11.2017.
11.It is the further case of the petitioner that instead of organizing election to elect new General Secretary, the respondents 2, 3 and 4 conducted General Council meeting on 29.12.2016 by inviting all General Council without any signature and agenda in the name of the party, Headquarters letter head. The petitioner further submits that no personal invitation was sent by smt.V.K.Sasikala, the fifth respondent as General Secretary, the fifth and seventh respondents have not attended http://www.judis.nic.in 7 the meeting. Hence, the meeting held on 12.09.2017 was not their General Council meeting.
12.The petitioner submits that against the Rules and Regulations of the party and the bye-laws of the party, the meetings were convened. Under these circumstances, the meetings cannot be recognized as General Council of their party as such, the petitioner claims that the resolution passed in the aforesaid meetings is illegal and do not bind any member of their party and do not have any legal face and force and it cannot be implemented.
13.Quoting various provisions of the bye-law of the party, the petitioner has come forward with the present un-numbered writ petition stating that the first respondent has to dispose of his petitions dated 15.02.2017, 17.03.2017, 08.07.2017, 06.02.2018, 07.11.2018 and 12.11.2018 by affording sufficient opportunity of hearing to the petitioner and to produce any material and clarification and pass a reasonable speaking order on main issues raised and the relief claimed are hereunder:-
“a.Declare the Party Constitution available as on 05.12.2016 with the Election Commission is valid.
http://www.judis.nic.in 8 b.Direct the Party Cadres to conduct election for the post of the General Secretary within three months from the date of receipt of this letter according to provisions of our Party Constitution.
c.Declare those who are members for five years without any break as on 05.12.2016 alone eligible to contest for post of the Party General Secretary.
d.Declare those who are members of our Party as on 05.12.2016 alone are eligible to vote.
e.Declare meeting of the General Council members dated 29.12.2016 and 12.09.2017 is against provisions of the Party Constitution available with the Election Commission.
f.Set aside all Resolutions passed in aforesaid meetings are illegal.
g.Remove amended Rules and Regulations of our ADMK Party from the Election Commission and upload the Party Constitution available as on 05.12.2016.
h.Approve any amendments in the Party Constitution if it is signed by our Party General Secretary.
i.Approve if Form A and Form B signed by our General Secretary and reject nomination of our party candidates if submitted Form A and Form B with any other person signature.”
14.The learned counsel appearing for the petitioner argued that since the political parties are recognized and registered under the Representation of the People Act, 1951 and the political parties as such discharging public function from time to time they are governed under the Election http://www.judis.nic.in Law and accordingly, he would argue that the Chief Election 9 Commission would under Article 324 of the Constitution of India has immense power to control the political parties registered under them. The petitioner would further contend that the Election Commission being the monitoring agent of all recognised political parties every internal election of the political parties are also guided and monitored by the Chief Election Commission. Since the first respondent has mandated all political parties for it to be recognised has to be a registered political parties under Section 29-A of Representation of People's Act, 1951.
15.The learned counsel also emphasis that it is the duty of the first respondent to direct the party cadres to conduct election for the post of General Secretary within three months according to the provisions of the party Constitution. He has also issued representations to declare the appointment of smt.V.K.Sasikala as General Secretary by the resolution passed by the General Council members on 29.12.2016 and 12.09.2017 is against the provisions of the party Constitution and contrary to the bye- law of 'AIADMK'. He would also further seeks to set aside all the resolution passed in the said meeting as illegal and to consider his representations, dated 15.02.2017, 17.03.2017, 08.07.2017, 06.02.2018, 07.11.2018 and 12.11.2018 and directing the first respondent to dispose of his petition, after affording sufficient opportunity to the petitioner. He would also submits that as per the representation dated 17.03.2017 and 08.07.2017 to conduct General Secretary Election by the party cadres was not http://www.judis.nic.in 10 considered. He would also further submit that the Chief Election Commissioner/the first respondent has to declare those who are members for five years without any break as on 05.12.2016 alone eligible for contesting the post of party General Secretary and the members who are members for five years without any break alone are eligible to vote.
16.He would further submit that his requisition is not considered till date. As a matter of power conferred both under Article 324 of the Constitution of India and Section 29-A of the Representation of the People Act, the first respondent is to consider his representation and bound to direct the party to conduct General Secretary Election.
17.Heard the learned counsel appearing for the petitioner and perused the materials available on record.
18.On a conjoint reading of the affidavit filed in support of the writ petition and the documents furnished by the petitioner and upon considering the arguments putforth by the learned counsel for the petitioner, the following main issues comes into consideration while deciding the maintainability of the writ petition.
(a) Whether merely because registration of a political party under Section 29-A of the Representation of the People Act, 1951, the http://www.judis.nic.in 11 first respondent/Chief Election Commissioner has any role to play in the internal affairs of the registered political parties.
(b) Maintainability of a writ petition under Article 226 of the Constitution of India, directing the first respondent to direct the party cadres to conduct election for the post of general secretary within three months from the date of receipt of his representation according to the provisions of their party constitution.
19.For deciding the issue No.1, it would be pertinent to extract Article 324 of the Constitution of India and Section 29-A of the Representation of the People Act as relied by the petitioner which is hereunder:-
Article 324 of the Constitution of India:-
“324.Superintendence, direction and control of elections to be vested in an Election Commission.- (1) The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President held under this Constitution shall be vested in a Commission (referred to in this Constitution as the Election Commission).
(2) The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time http://www.judis.nic.in fix and the appointment of the Chief Election Commissioner and 12 other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President.
(3) When any other Election Commissioner is so appointed the Chief Election Commissioner shall act as the Chairman of the Election Commission.
(4) Before each general election to the House of the People and to the Legislative Assembly of each State, and before the first general election and thereafter before each biennial election to the Legislative Council of each State having such Council, the President may also appoint after consultation with the Election Commission such Regional Commissioners as he may consider necessary to assist the Election Commission in the performance of the functions conferred on the Commission by clause (1).
(5) Subject to the provisions of any law made by Parliament, the conditions of service and tenure of office of the Election Commissioners and the Regional Commissioners shall be such as the President may by rule determine:
Provided that the Chief Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment:
Provided further that any other Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner.
(6) The President, or the Governor of a State, shall, when so requested by the Election Commission, make available http://www.judis.nic.in to the Election Commission or to a Regional Commissioner such 13 staff as may be necessary for the discharge of the functions conferred on the Election Commission by clause (1).” Section 29-A of the Representation of the People Act, 1951:-
“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;
(d) the names of its President, Secretary, Treasurer http://www.judis.nic.in and other office-bearers;14
(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.
(8) The decision of the Commission shall be final. (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 http://www.judis.nic.in shall be communicated to the Commission without delay”.15
20.Article 324 of the Constitution of India forms part of Chapter XV of the Constitution of India. From Article 324 to 329-A, the powers of Election Commission and its Superintendence and the control of elections which is vested with an Election Commission. The Constitution empowers the election commission being an independent body providing a complete constitutional scheme for the conduct of free and fair election. From the very first notification calling upon the electorates to elect and till the final declaration of the returned candidate, the Election Commissioner plays a very vital role in upholding the Democratic stature of the Country as the democracy is the essence of our Country being the largest democratic Country in the world.
21.The Election Commission discharges public function is in the nature of administrative and at times quasi-judicial too, while deciding issues pertaining to symbols and etc. The Election Commission is an independent body which can only be removed the way in which Constitution provides the provisions to remove the Honourable Supreme Court Judges. From Article 324 to 329A of the Constitution of India, the Election Commission is vested with vide powers with respect to all the issues relating to the Election which can be independently decided for itself in matters relating to Election, even to direct re-polling in a constituency wherever necessary.
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22.The word 'Superintendence' found in Article 324 of the Constitution of India would only mean the 'Superintendence' over the process of election, where the Election Commission is vested with powers which has to be exercised judiciously. Nowhere in the Articles from Articles 324 to 329A of the Constitution of India has empowered the Election Commission, to deal with or to interfere with the in-house administration of any political party. Neither the Constitution vests any such duties to the Election Commission to do so.
23.The argument of the petitioner's counsel that the party 'AIADMK' is registered, under Section 29-A of the Representation of the People Act, 1951 with the first respondent and discharging public function to which the first respondent has Superintendence over the political parties cannot be accepted. As such the political parties necessarily need to be registered under the first respondent by virtue of Section 29-A of the Representation of the People Act, 1951, if such political parties intending to avail itself of the provisions of this part to take part or contest in the election.
24.The political parties unless registered with the first respondent under Section 29A of the Representation of the People Act, 1951, will not be permitted to contest any election conducted by the first respondent by virtue of power conferred under Article 324 to 329-A of http://www.judis.nic.in 17 the Constitution of India. The registration under Section 29-A of the Representation of the People Act, 1951, is a pre-requisite to any political party to contest the election. At the same time, independent candidates not representing any political party can contest the elections on its independent capacity and on the symbol allotted to him by the first respondent. Registration under Section 29-A of the Representation of the People Act, 1951, is only applicable only to the political parties and not to any individuals, who intend to contest any elections.
25.A conjoint reading of Article 324 to 329-A of the Constitution of India would enshrine that the first respondent/the Chief Election Commissioner is an independent agency created under the Constitution to conduct free and fair election throughout the Country to uphold the democratic stature of our Country. At the same time, for any political party to participate and to contest election thus notified by the first respondent, necessarily need to register itself with the Chief Election Commissioner under Section 29A of the Representation of the People Act, 1951. Neither Article 324 of the Constitution of India nor Section 29A of the Representation of the People Act, 1951, prescribes any duty cast upon the Chief Election Commission to over see the in-house function of any political party, and, if for any reason, the first respondent is cast upon with such duty to monitor the in-house activity of any registered political parties the essence of Article 324 to 329A of the Constitution of India http://www.judis.nic.in 18 would be watered down. Moreover, there are almost around 1900 political parties having registered with the Chief Election Commission and if any action taken by the Chief Election Commissioner will only be endavouring into the internal affairs of the political parties rather than conducting the general election for the State and Central in a fair and free manner.
26.To sum up regarding issue No.1, merely because a political party registered under Section 29-A of the Representation of the People Act, 1951, does not crave any Superintendence by the Chief Election Commissioner over the in-house administration of the political party and the first respondent has no duty cast upon it to oversee the in-house activity of the political party.
27.With regard to issue No.2 regarding maintainability of the writ petition with a prayer sought for by the petitioner to issue a Writ of Mandamus to the Chief Election Commission to dispose of his representations, dated 15.02.2017, 17.03.2017, 08.07.2017, 06.02.2018, 07.11.2018 and 12.11.2018 in which seeking for a prayer to direct the party cadres to conduct election for the post of General Secretary, it would be pertinent to discuss whether a political party does any statutory function for the petitioner to crave leave of this Court under Article 226 of the Constitution of India to issue such order to the first respondent when first respondent has no Superintendence over the political party. http://www.judis.nic.in 19
28.Prima facie, it could be seen that the political parties are only group of individuals thereby forming an Association and thereafter, registering their political party under Section 29-A of the Representation of the People Act, 1951, to claim themselves as registered political party. Merely because they are registered under Section 29-A of the Representation of the People Act, 1951, one cannot construe a political party to perform public function and neither they are expected to perform the same nor they assume any statutory States. All the political parties, when they commenced as a political party, they come into public domain on their own will and wish under the guise of doing some public activities. Though the political parties are integral part of governance but when comes to issuance of writ and make them amenable to the jurisdiction of this Court under Article 226 of the Constitution of India, especially to pass orders with regard to their in-house activities in electing their General Secretaries and setting right the party constitution and declaring certain meetings of General Council as illegal as prayed for by this petitioner, it is to be seen that whether a political party comes under the definition of Article 12 of the Constitution of India, for which it is to be considered within the meaning of 'State' and the same reads as follows:-
“Article 12 of the Constitution of India:-
Definition.—In this Part, unless the context otherwise requires, “the State’’ includes the Government and Parliament http://www.judis.nic.in of India and the Government and the Legislature of each of 20 the States and all local or other authorities within the territory of India or under the control of the Government of India.”
29.For issuance of writ under Article 226 of the Constitution of India one has to confirm within the meaning under/or definition under Article 12 of the Constitution of India. The Honourable Supreme Court in two different cases in Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and others Vs. V.R.Rudani and others reported in 1989 (2) SCC 691 and Board of Control for Cricket in India Vs. Cricket Association of Bihar and others reported in 2015 (3) SCC 251, has laid down the yardsticks for issuance of writ under Article 226 of the Constitution of India.
30.The law laid down in Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and others Vs. V.R.Rudani and others reported in 1989 (2) SCC 691 is hereunder:-
“12.The essence of the attack on the maintainability of the writ petition under Article may now be examined. It is argued that the management of the college being a trust registered under the Bombay Public Trust Act is not amenable to the writ jurisdiction of the High Court. The contention in other words, is that the trust is a private institution against which no writ of mandamus can be issued. In support of the contention, the counsel relied upon two decisions of this Court: (a) Executive http://www.judis.nic.in 21 Committee of Vaish Degree College, Shamli Vs. Lakshmi Narain and others (1976) 2 SCC 1006 and (b) Deepak Kumar Biswas Vs. Director of Public Institutions (1987) 2 SCC 252. In the first of the two cases, the respondent institution was a Degree College managed by a registered co-operative society. A suit was filed against the college by the dismissed principal for reinstatement. It was contended that the Executive Committee of the college which was registered under the Co-operative Societies Act and affiliated to the Agra University (and subsequently to Meerut University) was a statutory body. The importance of this contention lies in the fact that in such a case, reinstatement could be ordered if the dismissal is in violation of statutory obligation. But this Court refused to accept the contention. It was observed that the management of the college was not a statutory body since not created by or under a statute. It was emphasised that an institution which adopts certain statutory provisions will not become a statutory body and the dismissed employee cannot enforce a contract of personal service against a non-statutory body.
13..........
14.........
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 http://www.judis.nic.in and working of educational institutions. The aided institutions like 22 Government institutions discharge public function by way of imparting education to students. They are subject to the 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.
(see the Evolving Indian Administration Law by M.P. Jain [1983] p. 266). 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 can not be refused to the aggrieved party.
16.The Law relating to mandamus has made the most spectacular advance. It may be recalled that the remedy by prerogative writs in England started with very limited scope and suffered from many procedural disadvantages. To overcome the difficulties, Lord Gardiner (the Lord Chancellor) in pursuance of Section 3(1)(e) of the Law Commission Act, 1965, requested the Law Commission "to review the existing remedies for the judicial control of administrative acts and omissions with a view to evolving a simpler and more effective procedure." The Law Commission made their report in March 1976 (Law Commission No.73). It was implemented by Rules of Court (Order 53) in 1977 and given statutory force in 1981 by Section 31 of the Supreme Court Act, 1981. It combined all the former remedies into one proceeding called Judicial Review. Lord Denning explains the scope of this "judicial review":
"At one stroke the Courts could grant whatever relief was appropriate. Not only certiorari and mandamus, but also http://www.judis.nic.in 23 declaration and injunction. Even damages. The procedure was much more simple and expeditious. Just a summons instead of a writ. No formal pleadings. The evidence was given by affidavit. As a rule no cross-examination, no discovery, and so forth. But there were important safeguards. In particular, in order to qualify, the applicant had to get the leave of a Judge.
The Statute is phrased in flexible terms. It gives scope for development. It uses the words "having regard to". Those words are very indefinite. The result is that the courts are not bound hand and foot by the previous law. They are to 'have regard to' it. So the previous law as to who are - and who are not
- public authorities, is not absolutely binding. Nor is the previous law as to the matters in respect of which relief may be granted. This means that the Judges can develop the public law as they think best. That they have done and are doing." (See The Closing Chapter by Rt. Hon. Lord Denning p. 122).
19...........
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 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 http://www.judis.nic.in 24 means the duty is imposed, if a positive obligation exists mandamus cannot be denied.
21..............
22.Here again we may point out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. Commenting on the development of this law, Professor De Smith states: "To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract." (Judicial Review of Administrative 'Act 4th Ed. p. 540). We share this view. The judicial control over the fast expanding maze of bodies effecting the rights of the people should not be put into watertight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available 'to reach injustice wherever it is found'. Technicalities should not come in the way of granting that relief under Article 226. We, therefore, reject the contention urged for the appellants on the maintainability of the writ petition.”
31.In the same line of thought in the later case in Board of Control for Cricket in India Vs. Cricket Association of Bihar and others reported in 2015 (3) SCC 251 the Honourable Supreme Court in a majority view brought the Board of Cricket Control of India under Article 226 of the Constitution of India even when it is not a 'State' within the http://www.judis.nic.in 25 meaning of Article 12 of the Constitution of India and the relevant portion of the said Judgment reads as follows:-
“12.Based on the enquires made by it from all concerned, the Committee submitted a report dated 09.02.2014, in which the Committee arrived at the following conclusions:-
12.1.That Gurunath Meiyappan formed an integral part of Chennai Super Kings and most persons viewed him as the face of the team, through de jure ownership vested in India Cements Limited.
12.2.That Gurunath Meiyappan was a team official within the meaning of the IPL Operational Rules if not de facto owner of CSK.
12.3.That Gurunath Meiyappan had knowledge of or was in a position to easily access sensitive team information, team strategies, knowledge about match conditions, etc., which knowledge was outside the purview of an ordinary person following the game of cricket.
12.4.That Gurunath Meiyappan was also a participant under IPL Anti-Corruption Code hence the IPL Rules and Regulations were squarely applicable to him.
12.5.That Gurunath Meiyappan was in regular touch with bookies and punters.
12.6.That several calls were traced between Gurunath Meiyappan and Vindoo Dara Singh who was himself a punter in close proximity with several other bookies, evident from the telephonic transcripts produced by the Bombay Police.
12.7.That Mr.Ramesh Vyas and Jupiter were acting for Vindoo Dara Singh who was also placing bets for certain IPL http://www.judis.nic.in stakeholders and actors including Mr. Gurunath Meiyappan.26
Mr.Meiyappan was in close contact with Mr.Vikram Agarwal who is a hotelier and alleged punter operating from Chennai as revealed by call record details produced by the Chennai Police in Crime No.1 of 2013 registered by CBCID Branch.
12.8.That Mr. Gurunath Meiyappan would regularly place bets in IPL matches both in favour of his team (ie., CSK) and against his team – a fact established from call records produced by the Mumbail Police.
12.9.That Mr. Gurunath Meiyappan would place bets through Vindoo Dara Singh and such bets were even placed during the course of IPL matches as revealed by transcripts produced by Mumbai Police.
12.10.That in one instance Mr.Gurunath Meiyappan made certain predictions to Mr.Vindoo Dara Singh regarding the runs that would be scored in a match between CSK and Rajasthan Royals held on 12.05.2013 at Jaipur. According to Mr.Meiyappan's prediction that CSK would score 130-140 runs came true as CSK actually scored 141 runs only.
30.The question whether the respondent BCCI is “State” within the meaning of Article 12 fell directly for consideration of this Court in Zee Telefilms Limited Vs. Union of India (2005) 4 SCC 649. By a majority, of 3:2 this Court ruled that respondent BCCI was not “State” within the meaning of Article 12. This Court held that the Board was not created by any statute, nor was a part of the share capital held by the Government. There was practically no financial assistance given to the Board by the Government, and even when the Board did enjoy a monopoly status in the field of cricket such status was not State conferred or State protected. So also there is no deep and pervasive State control. The control, if any, is only http://www.judis.nic.in regulatory in nature as applicable to other similar bodies. The 27 control is not specifically exercised under any special statute applicable to the Board. All functions of the Board are not public functions nor are they closely related to governmental functions. The Board is not created by transfer of a government-owned corporation and was an autonomous body. Relying upon the tests laid down in Pradeep Kumar Biswas Case (2002) SCC (L & S) 633, this Court held that the Board was not financially, functionally or administratively dominated by or under the control of the Government so as to bring it within the expression “State” appearing in Article 12 of the Constitution. Having said that this Court examined whether the Board was discharging public duties in the nature of State functions.
31.Repelling the contention that the functions being discharged by the Board were public duties in the nature of State functions which would make the Board “State” within the meaning of Article 12 this Court observed: (Zee Telefilms Limited case (2005) 4 SCC 649, SCC page 681, para 29) “29.It was then argued that the Board discharges public duties which are in the nature of State functions. Elaborating on this argument it was pointed out that the Board selects a team to represent India in international matches. The Board makes rules that govern the activities of cricket. These, according to the petitioner, are all in the nature of State functions and an entity which discharges such functions can only be an instrumentality of State, therefore, the Board falls within the definition of State for the purpose of Article 12. Assuming that the abovementioned functions to the Board do amount to public duties or State functions, the question for our consideration is: would this be sufficient to hold the Board to be a State for the purpose of Article 12? While considering this http://www.judis.nic.in aspect of the argument of the petitioner, it should be borne in 28 mind that the State/Union has not chosen the Board to perform these duties nor has it legally authorised the Board to carry out these functions under any law or agreement. It has chosen to leave the activities of cricket to be controlled by private bodies out of such bodies' own volition (self-arrogated). In such circumstances when the actions of the Board are not actions as an authorised representative of the State, can it be said that the Board is discharging State functions” The answer should be no. In the absence of any authorisation, if a private body chooses to discharge any such function which is not prohibited by law then it would be incorrect to hold that such action of the body would make it an instrumentality of the State. The Union of India has tried to make out a case that the Board discharges these functions because of the de facto recognition granted by it to the Board under the guidelines framed by it, but the Board has denied the same. In this regard we must hold that the Union of India has failed to prove that there is any recognition by the Union of India under the guidelines framed by it, and that the Board is discharging these functions on its own as an autonomous body.”
32.Having said that this Court recognised the fact that the Board was discharging some duties like the selection of Indian Cricket Team, controlling the activities of the players which activities were akin to public duties or State functions so that if there is any breach of a constitutional or statutory obligation or the rights of other citizens, the aggrieved party shall be entitled to seek redress under the ordinary law or by way of a writ petition under Article 226 of the Constitution which is much wider than Article 32. This Court observed: (Zee Telefilms Limited case (2005) 4 SCC 649, SCC page 682, para http://www.judis.nic.in
31) 29 “31.Be that as it may, it cannot be denied that the Board does discharge some duties like the selection of an Indian cricket team, controlling the activities of the players and others involved in the game of cricket. These activities can be said to be akin to public duties or State functions and if there is any violation of any constitutional or statutory obligation or rights of other citizens, the aggrieved party may not have a relief by way of a petition under Article 32. But that does not mean that the violator of such right would go scot-free merely because it or he is not a State. Under the Indian jurisprudence there is always under Article 32 is not available, an aggrieved party can always seek a remedy under the ordinary course of law or by way of a writ petition under Article 226 of the Constitution, which is much wider than Article 32.” (emphasis supplied)
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 of 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 of cricket academies and supporting State associations. http://www.judis.nic.in It frames pension schemes and incurs expenditure on coaches, 30 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.
34.The functions of the Board are clearly public functions, which, till such time the State intervenes to takeover the same, remain in the nature of public functions, no matter discharged by a society registered under the Registration of Societies Act. Suffice is to say that if the Governance not only allows an autonomous/private body to discharge functions which it could in law take over or regulate but even lends its assistance to such a non-government body to undertake such http://www.judis.nic.in functions which by their very nature functions or that the entity 31 discharging the same is not answerable on the standards generally applicable to judicial review of State action.”
32.A plain reading of the above Judgments, it is clear that to enforce a right by Mandamus, public duty does not necessarily have to be one imposed by the statute. It may be sufficient for the duty have been imposed by a character, common law, custom or even contract, as expressed by the Honourable Supreme Court in Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and others Vs. V.R.Rudani and others reported in 1989 (2) SCC 691.
33.As far as the case in hand, the petitioner is seeking a Mandamus to dispose of his representation against the conduct of election to a political party and to declare the meetings held for electing the General Secretary in the earlier point of time as illegal. As stated above, a political party is only a group of individual's who may contest the election and thereafter, who may even govern the State. Even during, when the political parties are in power, the political party as such does not assume the confirmity of the definition the 'State' within the meaning of Article 12 of the Constitution of India. Though the political parties are under scrutiny by the Chief Election Commissioner but that does not mandate the Chief Election Commissioner to interfere in the in-house activity of any political http://www.judis.nic.in party.
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34.The conduct of election within a political party to chose their general secretary or political functionaries and any amendments to the Constitution of the party or internal matters within the political party which do not fall within the ambit of public duty to attract the jurisdiction under Article 226 of the Constitution of India.
35.Now the petitioner has come forward to seek a writ of Mandamus, to dispose of the representations, dated 15.02.2017, 17.03.2017, 08.07.2017, 06.02.2018, 07.11.2018 and 12.11.2018, when the jurisdiction of the High Court under Article 226 of the Constitution of India cannot be invoked for the in-house activities of a political party, the question of directing the Chief Election Commissioner to dispose of the representations made by the petitioner seeking for various prayers on different dates cannot also be maintained, when the authority has no duty cast upon them to monitor or direct internal election to a political party to be conducted which is only an internal activity. When the Chief Election Commissioner has no role to monitor the internal activity of a political party, there cannot be directions issued to the Chief Election Commissioner to dispose of the representation of the petitioner also.
36.With the above discussions, this Court is of the view that a political party registered under section 29-A of the Representation of the People Act, 1951, within the Chief Election Commissioner, the Chief http://www.judis.nic.in 33 Election Commissioner has got no power to regulate the internal affairs of the political party. The petitioner has also sought for a prayer to conduct election to the post of General Secretary without even making such a party as party respondent in the writ petition and the writ petition has to be dismissed even on this account.
37.Hence, under the above stated facts and circumstances as discussed, the political parties even if it registered under Section 29-A of the Representation of the People Act, 1951, does not come under the jurisdiction of Article 226 of the Constitution of India and no Writ Petition can lie concerning the internal affairs of the political party. Accordingly, W.P(MD)No.SR110146 of 2018 is rejected as not maintainable. No costs.
21.12.2018
Index : Yes / No
Internet : Yes / No
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To
The Chief Election Commissioner,
O/o.Election Commission of India,
Nirvachan Sadan, Ashoka Road,
New Delhi – 110 001.
http://www.judis.nic.in
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V.BHAVANI SUBBAROYAN,J.
ps
W.P(MD)No.SR110146 of 2018
21.12.2018
http://www.judis.nic.in