Calcutta High Court (Appellete Side)
Gorkha Janmukti Morcha & Anr vs The Election Commission Of India & Ors on 11 March, 2019
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IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
W.P. No. 5027 (W) of 2019
Gorkha Janmukti Morcha & Anr.
Vs.
The Election Commission of India & Ors.
For the Petitioner : Mr. Joy Saha
Mr. Rajdeep Majumdar
Mr. Srijib Chakraborty
Mr. Mayukh Mukherjee
Mr. Aditya Mondal
For the respondent nos. 1 to 3: Mr. Dipayan Choudhury
Ms. Priyanka Choudhury Mr. Bijit Chakraborty For the Respondent nos. 5 : Mr. Asimes Goswami Ms. Paulomi Banerjee Mr. Panthu Rai Hearing concluded on : March 11, 2019 Judgment on : March 11, 2019 DEBANGSU BASAK, J.:-
The petitioner seeks a direction upon the Election Commission to decide as to who represents the registered political party described as the first petitioner in the writ petition.
Learned senior advocate for the petitioner submits that, the petitioner applied before the Election Commission informing the Election Commission of the change of composition of the first 2 petitioner and to take on record such composition of the first petitioner in terms of Section 29A of the Representation of the People Act, 1950. He submits that, the request was initially considered by the Election Commission. A hearing was given to the petitioner in the month of August, 2018. Thereafter, the Election Commission did not take any steps.
In Referring to the definition of a political party as appearing in Section 2(f) of the Act of 1950, learned senior advocate for the petitioner submits that, Section 2(f) of the Act of 1951 describes a political party. Neither a recognised political party nor an unrecognised political party are defined in the Act of 1951. He draws the attention of the Court to the Election Symbols (Reservation and Allotment) Order, 1968 and submits that, the same also defines a political party. The order of 1968 proceeds to classify the political parties as a National or State party. It lays down the conditions for recognition of State party, a National party as also the condition for continued recognition of a party as a National or a State party. He submits that, the power of the Commission to decide disputes in relation to splinter groups or rival sections of a recognised political party is provided in Clause 15 of the Order of 1968. Since, the first 3 petitioner is yet to be a recognised political party, therefore, the question of applying the provisions of the Order of 1968 does not arise. He relies upon (2012) 2 SCC 794 (Jeevan Chandrabhan Idnani & Anr. Vs. Divisional commissioner, Konkan Bhavan & Ors.) with regard to the scope of the Order of 1968. According to him, Section 29A(9) of the Act of 1951 empowers the Election Commission to decide upon the disputes as presently obtaining. Moreover, in the facts of the present case, since the Election Commission has already intervened, according to him, the Election Commission should be directed to take final decision.
Learned advocate for the Election Commission relies upon 2012(129) DRJ 265 (DB) (Chandra Prakash Kaushik Vs. Election Commission of India & Anr.) and submits referring to paragraphs 6 and 10 thereof that, the Election Commission has no jurisdiction to decide the disputes between the private parties when, the first petitioner is an unreocgnised registered political party.
Learned advocate for the respondent no. 5 submits that, in the event, the Court is pleased to direct the Election Commission to decide the disputes, then, the respondent no. 5 should also be heard by the Election Commission.4
Learned senior advocate for the petitioner submits that, Chandra Prakash Kaushik (supra) did not take into consideration the provisions of Section 29A(9) of the Act of 1951. Moreover, it proceeded on the basis of the concessions given by the learned counsel appearing for the parties to arrive at a finding that the Election Commission of India has no jurisdiction or mechanism to adjudicate the rival claims of unrecognised political parties registered with it.
Conduct of elections of the Houses of Parliament and Houses of Legislature, qualifications and disqualification from membership of those houses, corrupt practices and other offences in connection with elections and the decision on the doubts and disputes arising out of or in connection with elections are dealt with by the Act of 1951. The Act of 1951 is divided into 3 parts. Although, the parts start at I and goes upto XI, since, there is a Part IV A and Part VA, it is to be taken that the Act of 1951 stands divided into 13 parts. Some of the Parts are divided into chapters. A political party is defined in Section 2(f) of the Act of 1951 as follows:5
"2(f). "political party" means an association or body of individual citizens of India registered with the Commission as a political party under Section 29-A"
Registration of political parties is provided for in Part IVA of the Act of 1951. Section 29A of the Act of 1951 deals with the registration with the election of association and bodies as political parties. It is as follows:
"29A. Registration with the Election Commission of associations and bodies as political parties. -- (1) Any association or body of individual citizens of India calling itself a political party and intending to avail itself of the provisions of this Part shall make an application to the Election Commission for its registration as a political party for the purposes of this Act.
(2) Every such application shall be made,--
(a) if the association or body is in existence at the commencement of the Representation of the People (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;6
(c) the address to which letters and other communications meant for it should be sent;
(d) the names of its president, secretary, treasurer and other office-bearers;
(e) the numerical strength of its members, and if there are categories of its members, the numerical strength in each category;
(f) whether it has any local units; if so, at what levels;
(g) whether it is represented by any member or members in either House of Parliament or of any State Legislature; if so, the number of such member or members.
(5) The application under sub-section (1) shall be accompanied by a copy of the memorandum or rules and regulations of the association or body, by whatever name called, and such memorandum or rules and regulations shall contain a specific provision that the association or body shall bear true faith and allegiance to the Constitution of India as by law established, and to the principles of socialism, secularism and democracy, and would uphold the sovereignty, unity and integrity of India.
(6) The Commission may call for such other particulars as it may deem fit from the association or body.
(7) After considering all the particulars as aforesaid in its possession and any other necessary and relevant factors and after giving the representatives of the association or body reasonable opportunity of being heard, the Commission shall decide either to register the association or body as a political party for the purposes of this Part, or not so to register it; and the Commission shall communicate its decision to the association or body:
Provided that no association or body shall be registered as a political party under this sub-section unless the memorandum or rules and regulations of such association or body conform to the provisions of sub-section (5). (8) The decision of the Commission shall be final.7
(9) After an association or body has been registered as a political party as aforesaid, any change in its name, head office, office-bearers, address or in any other material matters shall be communicated to the Commission without delay.]"
Sub-section 9 of Section 29A of the Act of 1951 requires the association or body registered with the Election Commission as a political party, to communicate the change of its name, head office, office bearers, address or any other material matter to the Election Commission without any delay.
In a given case, there may be disputes with regard to the information supplied to the Election Commission. In my understanding, the Election Commission is the authority to decide on the disputes raised with regard to any of the information tabulated in Sub-section 9 of Section 29A before taking cognizance of the same.
The Election Symbols (Reservation and Allotment) Order, 1968 was promulgated in exercise of powers conferred under Article 324 of the Constitution of India read with Section 29A of the Act of 1951 and Rules 5 and 10 of the Conduct of Election Rules, 1961. The Order of 1968 deals with the specification, reservation, choice and allotment of symbols at elections in parliamentary and assembly constituencies, for the recognition of political party in relation thereto and for matters 8 connected therewith. A political party is defined in Clause 2(h) of the Order of 1968 as follows:
"2(h). "political party" means an association or body of individual citizens of India registered with the Commission as a political party under Section 29A of the Representation of the People Act, 1951."
Classification of political parties is dealt with in Clause 6 of the Order of 1968. Clause 6A lays down the condition for recognition of a State party. Clause 6B lays down the condition for recognition of a National party. Clause 6C lays down the condition for continued recognition of a registered political party, as a National or a State party. Clause 15 of the Order of 1968 recognises the power of the Election Commission to decide on disputes in relation to splinter groups or rival functions of a recognised political party.
The Order of 1968, as noted above, deals with the choice and allotment of symbols in an election. While deciding on the choice and allotment of symbols, a registered political party is classified as a recognised or an unrecognised political party. It is also classified as a National or a State recognised political party on the basis of the votes polled in its favour. Such classification have nexus with the symbol that is required to be allotted to a candidate participating in the 9 election in any constituency under the registered political party depending upon its recognition as a National or a State political party.
The Order of 1968 was promulgated in exercise of powers, inter alia, under Article 324 of the Constitution of India and Section 29A of the Act of 1951. Article 324 of the Constitution vests the superintendence, direction and control of elections in the Election Commission. Rule 5 of the Rules of 1957 empowers the Election Commission to notify the symbols that may be chosen by candidates in an election. Rule 10 of the Rules of 1957 lays down the procedure by which the list of contesting candidates is prepared. The Order of 1968 empowers the Election Commission to decide on disputes between splinter or rival groups of recognised political party. The Order of 1968, can be safely said to be a legislation which is subordinate to that of the Act of 1951. Therefore, in my understanding, the right of the Commission to decide such disputes under the Order of 1968, emanates out of the power already available to the Election Commission under Section 29A of the Act of 1951. The Order of 1968 does not create an additional right in favour of the 10 Election Commission which is beyond or dehors the provisions of the Act of 1951. It cannot do so as, the Order of 1968 was promulgated in exercise of powers inter alia under the Act of 1951. In such perspective, it cannot be said that, the Election Commission has no jurisdiction to decide a dispute between rival factions or splinter groups of a registered political party when it can do so in respect of such registered political party when it is recognised.
Chandra Prakash Kaushik (supra) is a decision, which did not consider Section 29A of the Act of 1951. It noticed provisions of Section 52 of the Act of 1951 particularly, the explanation appearing in such section. Section 52 of the Act of 1951 is under Chapter III of Part V of the Act of 1951. Part V of the Act of 1951 deals with conduct of elections. Chapter III of Part V of the Act of 1951 deals with general procedure at elections. Section 52 of the Act of 1951 appearing in chapter III Part V of the Act of 1951 deals with the situation where, there is a death of a candidate of a recognised political party before poll. It is in this context, it explains that, recognised political party means a political party recognised by the Election Commission under the Order of 1968. In my understanding, 11 such an explanations does not oust the jurisdiction of the Election Commission to decide on the dispute as sought to be raised by the petitioners before the Election Commission in the facts of the present case.
Jeevan Chandrabhan Idnani (supra) is of the view that, recognised party and registered party in the context of political parties in this country have definite legal connotations. It takes note of Part IVA of the Act of 1951 and Section 29A of the Act of 1951. It is of the view that, registration of a political party is not compulsory but optional. However, a registration enables a political party to claim certain benefits under the law such as accepting of a contribution.
In the facts of the present case, the Election Commission did enter into the disputes as it gave the petitioner a personal hearing on August 2, 2018. The Election Commission also called upon the parties to place various documents before it for consideration. True, if an authority assumes jurisdiction, which it lacked, then, the assumption by itself will not vest such authority with jurisdiction. However, in the facts of the present case, the Election Commission is 12 not without jurisdiction when it was faced with the issues as raised by the petitioners so far as the affairs of the first petitioner is concerned.
In such circumstances, the Election Commission is requested to decide on the issues raised by the petitioner before it, in accordance with law, after affording the petitioners and the respondent no. 5 an opportunity of hearing. The Election Commission is at liberty to hear such other parties and consult such documents that it deems appropriate in arriving at its decision. It is expected that, the Election Commission decides the issues as expeditiously as possible and preferably within a period of two weeks from the date of communication of this order.
Since, I have not invited any affidavits, allegations made by the petitioner in the petition are deemed to be denied by the respondents.
WP No. 5027(W) of 2019 is disposed of. No order as to costs. Urgent certified website copies of this judgment and order, if applied for, be made available to the parties upon compliance of the requisite formalities.
[DEBANGSU BASAK, J.] 13