KANHIYALAL OMAR versus R.K. TRIVEDI & ORS.

VENKATARAMIAH, J. In this petition filed under Article 32 F of the Constitution the petitioner challenges the constitutional validity of the Election Symbols (Reservation and Allotment) Order, 1968 (hereinafter referred to as 'the Symbols Order' which is issued by the Election Conmission (hereinafter referred to as 'the Co1Jllllission') • The principal ,contention urged by the petitioner in support of his contention is that the Symbols Order G which is legislative in character could not have been issued by the Cotmnissio11 because the conmission is not entrusted by law the power to issue such an order regarding the specification,

p. 3

reservation and allotment of symbols that may be chosen by the _. candidates at elections in parliamentary and assembly constituencies. It is further urged that Article 324 of the Constitution which vests the power of superintendence, direction H and control of all elections to Parliament and to the Legislature of a State in the COlllllission cannot be construed as conferring the power on the Collllllission to issue the Symbols

pp. 3–4

Order. B It is necessary to set out the relevant provisions of law having a bearing on the above question at the outset for a proper appreciation of the contentions urged on behalf of the ..petitioner. Article 324 (l) of the Constitution reads thus:

p. 4

"324.(l) The superintendence, direction and control of

p. 4

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 Comnission -- (referred to in this Constitution as the Election

p. 4

Collllllission)." D >'lrticles 327 and 328 of the Constitution which vest the power of making provisions with respect to elections on· Parliament and the Legislatures in the States read as follows "327. Subject to the provisions of this Constitution,

p. 4, margin C

Par lia.nent may from time to time by law make provision with respect to all matters relating to, or in ~ connection with, elections to either House of Parliament or to the House or either House of the Legislature of a State including the preparation of electoral rolls, the delimitation of constituencies

p. 4, margin C

and all other matters necessary for securing the due constitution of such House or Houses.

p. 4, margin E

328. Subject to the provisions of this Constitution and in so far as provision in that behalf is not made by Parliament, the Legislature of a State may from

p. 4, margin F

time to time by law make provision with respect to all matters relating to, or in connection with, the elections to the House or either House of the Legislature of the State including the preparation of electoral rolls and all other matters necessary for securing the due constitution of such House or

p. 4, margin F

Houses."

p. 4, margin G

Article 327 of the Constitution confers the power on Parliament to make by law provision with respect to all matters relating to, or in connection with, elections to either House of Parliament or to the House or either House of the Legislature of a State including the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses subject to the provisions of the Constitution. Article 328 of the

pp. 4–5, margin G

Constitution confers similar power on the Legislature of a State -. B to make provision with respect to all matters relating to, or in connection with, the elections to the House or either House of the Legislature of the State incluoing the preparation of electoral rolls and all other matters necessary for securing the due constitution of such House or Houses subject to the provisions of the Constitution and in so far as provision in that behalf is not made by Parliament. In exercise of the power

p. 5

conferred by Article 327 of the Constitution Parliament has --. enacted the Representation of the People Act, 1951 (43 of 1951)

p. 5

(hereinafter referred to as 'the Act') providing for the conduct of elections to the Houses of Parliament and to the House or Houses of the Legislature of each State, the qualifications and

p. 5

D' disqualifications for membership of those Houses, the corrupt practices and other offences at or in connection with such elec-· tions and the decision of doubts and disputes arising out of or in connection with such elections. Section 169 of the Act empowers the Central Government to promulgate rules, after consultation with the Commission, for carrying out the purposes of the Act. ln exercise of the said power the Central Government has promulgated the Conduct of Elections Rules, 1961 (hereinafter referred to as the 'the Rules'). Rules 5 and 10 of the Rules which are material for the purposes of this case read thus:

p. 5

"5. Symbols for elections in parliamentary and assembly constituencies - (1) The Election Comnission shall, by notification in the Gazette of India, and in the Official Gazette of each State, specify the symbols that may be chosen by candidates at elections in Parliamentary or assembly constituencies and the restrictions to which their choice shall be subject.

p. 5

(2) Subject to any general or special direction issued by the Election Commission either under sub-rule (4) or sub-rule (5) of rule 10, where at any such election, more .nomination papers than one are delivered by or on behalf of a candidate, the declaration as to symbols made in the nomination paper first delivered, and no other declaration as to symbols shall be taken into consideration under rule 10 even if that nomination paper has been rejected. 10. Preparation of list of contesting candidates ••••• (4) At an election in a parliamentary or assmembly constituency, where a poll becomes necessary, the returning officer shall consider the choice of symbols •expressed by the contesting candidates in their nomination papers and shall, subject to any general or special direction issued in this behalf by the Election Commission- (a) allot a different symbol to each contesting candidate in conformity, as far as practicable, with his choice; and (b) if more contesting candidates than one have indicated their preference for the same symbol, decide by lot to which of such candidates the symbol will be allotted. ( 5) The allotment by the returning officer of any symbol to a candidate shall be final except where it is inconsistent with any directiona issued by the Election Cooinission in this bahalf in which case the Election Comnission may revise the allotment in such manner as it thinks fit. (6) Every candidate or his election agent shall forthwith be informed of the symbol allotted to the candidate and be supplied with a specimen thereof by

pp. 5–6

the returning officer."

p. 6, margin E

Sub-rule (1) of rule 5 of the Rules empowers the cOIDndssion to specify by a notification in the Gazette of India and in the Official Gazette of each State, the symbols that may be chosen by candidates at elections in Parliamentary or assembly constituencies and the restrictions to which their choice shall be subject. Sub-rule (4) of rule 10 of the Rules provides that at an election in a parliamentary or assembly constituency, where a poll becomes necessary, the retruning officer shall consider the choice of symbols expressed by the contesting candidates in their nomination papers and shall subject to any general or special direction issued in this behalf by the Comnission allot a different symbol to esch contesting candidate in conformity, as A far as practicable, with his choice and if more contesting candidates than one have indicated their preference for the same symbol, decide by lot to which of such candidates the symbol will be allotted. Sub-rule (5) of rule 10 of the Rules provides that the allotment by returning officer of any symbol to a candidate

pp. 6–7, margin F

shall be final except where it is inconsistent with any B • directions issued by the Commission in this behalf in which case the Commission may revise the allotment in such manner as it thinks fit· Under sub-rule (6) of rule 10 of the Rules every candidate or his election agent should be informed forthwith the " symbol allotted to the candidate and is entitled to be supplied with a specimen thereof. Purporting to exercise its powexc under c Article 324 of the Constitution resd with rule 5 and rule 10 of

p. 7

the Rules, the Commission issued the symbols Order in the year "" 1968 which is impugned in this petition. The Preamble to the Symbols Order reads thus :

p. 7

"S.O. 2959 dated 31st August, 1968 - llhereas the D superintendence, direction and control of all elections to Parliament and to the Legislature of every State are vested by the Constitution of India in the Election Commission of India; And, whereas, it is necessary and expedient to provide E in the interests of purity of election to the House of the People and the Legislative Assembly of every State and in the interests of the conduct of such elections in a fair and efficient manner, for the specification, reservation, choice and allotment of symbols, for the recognition of political parties in relation th&eto and for matters connected therewith. F Now, therefore, in exercise of the powers conferred by Article 324 of the Constitution, read with rule 5 and rule 10 of the Conduct of Elections Rules, 1961, and all other powers enabling it in this behalf, the Election Commission of India hereby makes the G

p. 7

following Order."

p. 7

The expression 'political party' is defined in Paragraph 2(l)(h) of the Symbols Order thus :

p. 7

"2. (l)(h) - 'Political party' means an association or body of individual citizens of India registered with the Commission as a political party under paragraph 3 and includes a political party deemed to be registered with the Coumission under the proviso of sub-paragraph

pp. 7–8

(2) of that paragraph;"

p. 8, margin A

Paragraph 3 of the Symbols Order provides that any association or body of individual citizens of India calling its elf a political party and intending to avail its elf of the provisions of the Symbols Order shall make an application to the Coumission for its registration as a party for the purposes of the Symbols Order. Sub-paragraphs (2), (3) and (4) of paragraph 3 of the Symbols Order provide for the manner in which such applications should be made by associations and bodies calling themselves as political parties for registration with the Collllllission. That paragraph empowers the Collllllission to consider all relevant particulars and to decide whether the association or body should be registered as a political party or not and its decision in that regard is stated to be final. Paragraph 4 of the Symbols Ortler provides that in every contested election a symbol shall be allotted to a contesting cacdidate in accordance with the provisions of the Symbols Order and different symbols shall be allotted to different contesting candidates at an election in the same constituency. The symbols specified by the Collllllission are classified into two categories by paragraph 5 of the Symbols Order. They are either reserved or free. A reserved symbol is a symbol which is reserved for a recognised political party for exclusive allotment to contesting candidates set up by that party. A free symbol is a symbol other than a reserved symbol· Paragraph 6 of the Symbols Order provides for the classification of the political parties into recognised political parties and unrecognised political parties. Amongst the recognised political parties according to the Symbols Order there are two categories, namely, national parties and the State parties. The Symbols Order further provides for the determination of the question whether a candidate. has been set up by a political party or not. It deals with the power of the Conmission to issue instructions to unrecognised political parties for their expeditious recognition on fulfilment of conditions specified in paragraph 6. The power of the collllllission in relation to splinter groups or rival sections of the recognised political party and its power in case of amalgamation of two or more political parties are dealt with in paragraphs [5 and 16 of the Symbols Order. Under paragraph 17 of the Symbols Order the Collllllission is required to publish by one or more notificatioas in the Gazette of India lists specifying the national parties and the symbols respectively reserved for them, the State parties, the State or States in which they are State parties and the symbols such State or States, State or States in which they each State. Every such list far as possible. Under i;omntssion has reserved to fuid directions for the clarification 'the Symbols Order, for the arise in relation to the and in relation to any matter allotment of symbols and which the Symbols Or~er makes provision and provision necessary for the smooth and

pp. 8–9, margin A

The petitioner claims organisation named "SAPRYA" Kanpur (U.P.) which is stated purposes of propagating 'National people of India about the is aggrieved by the emergence parties at the national according to him has prejudiced democratic country. He has to the various acts comnitted which according to him are the country. ·lie contends parties is due to the provisions which provides for the reservation and allotment political parties. It is Symbols Order is liable to Commission is not empowered Constitution or the Act and contention that there is which justifies the recognition of elections.

p. 9, margin C

The constitutional scheme elections to Parliament and clear. First, the Constitution of a high power body Parliament and the State offices of President and Vice Commission. Article 324 provisions regarding the constitution of the Commission and its general powers. The Commission consists of the Chief Election Commissioner who is appointed by the President and it may also consist such number of other Election Colilllissioners, if any, as the President may from time to time fix, who are also to be appointed by the President. When Election Commissioners are appointed, the Chief Election Commissioner becomes the Chairman of the Commission. There is provision for the appointment of Regional Commissioners to assist the Commission. In order to ensure the independence and impartiality of the Commission, it is 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 of India and that the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage ~fter his appointment. An Election Commissioner or a Regional Commissioner cannot be removed from office except on the recommendation of the Chief Election Commissioner. The superintendence, direction and control of the conduct of elections referred to in Article 324(1) of the Constitution are entrusted to the Commission. The words 'superintendence', 'direction' and 'control' are wide enough to include all powers necessary for the smooth conduct of elections. It is, however, seen that Parliament has been vested with the power to make law under Article 327 of the Constitution read with Entry 72 of List I of the Seventh Schedule to the Constitution with respect to all matters relating to the elections to either House of Parliament or to the House or either House of the Legislature of a State subject to the provisions of the Constitution. SubJect to the provisions of the Constitution and any law made in that behalf by Parliament, the Legislature of a State may under Article 328 read with Entry 37 of List II of the Seventh Schedule to the Constitution make law relating to the elections to the House or Houses of Legislature of that State. The general powers of superintendence, direction and control of the elections vested in the Commission under Article 324(1) naturally are subject to any law made either under Article 327 or under Article 328 of the Constitution. The word 'election' in Article 324 is used in a wide sense so as to include the entire process of election which consists of several stages and it embraces many steps, some of which may have an important bearing on the result of the process. India is a country which consists of millions of voters. Although they are quite conscious of their duties politically, unfortunately, a large percentage of them are still illiterate. Hence there is need for using symbols to denote the candidates who contest elections so that the illiterate voter may cast his vote in secrecy in favour of the candidate of his choice by identifying him with the help of the symbol printed on the balllot paper against his name.

pp. 9–11, margin G

It is true that till recently the Constitution did not expressly refer to the existence of political parties• But .their existence is implicit in the nature of democratic form of Government which our country has adopted. The use of a symbol, be it a donkey or an elephant, does give rise to an unifying effect amongst the people with a common political and economic progranme and ultimately helps in the establishment of a Westminster type of democracy which we have adopted with a Gabinet responsible to the elected representatives of the people who constitute the Inwer House. The ·political parties have to be there if the present system of Government should succeed and the chasm dividing the political parties should be so profound that a change of administration would in fact be a revolution disguised under a constitutional procedure. It is no doubt a paradox that while the country as a whole yields to no other in its corporate sense of unity and continuity, the working parts of its political system are so organished on party basis in other words "on systematized differences and unresolved conflicts." That is the essence of our system· and it faci.litates the setting up of a Government by the majority. Although till recently the Constitution had not expressly referre_d to the existence of political parties, by the amendments made to it by the Constitution (Fifty.:.Second Amendment) Act, 1985 there is now a clear recognition of the political parties the Constitution. The Tenth Schedule to the Constitution which is added by the above amending Act acknowledges the existence of political parties and sets out the circumstances when a member of Parliament or of the State Legislature would be deemed to have defected from his political party and would thereby be disqualified for being a member of the House concerned. Hence it is difficult to say that the reference to recognition, registration etc. of political parties by the Symbols Order is unauthorised and against the political system adopted by our country.

p. 11, margin A

Paragraph 15 of the Symbols Order which dealt with the power of the Commission in relation to splinter groups or rival sections of a recognised political party came up for consideration before this Court in Sadiq Ali Aur. etc. Election Comnission of India Ors. etc. [1972] 2 s.c.R. 318.

p. 11, margin G

The Court observed in that case at pages 341-343 thus:

p. 11, margin G

"It would follow from what has been discussed earlier in this judgment that the Symbols Order makes detailed provisions for the reservation, choice and allotment of symbols and the recognition of political parties in connection therewith• That the Commission should specify symbols for elections in parliamentary and assembly constituencies has also been made obligatory by rule 5 of Conduct of Election Rules. Sub-rule (4) of Rule 10 gives a power to the Commission to issue general or special directions to the Returning Officers in respect of the allotment of symbols. The allotment of symbols by the Returning Officers has to be in accordance with those directions. Sub-rule (5) of rule 10 gives power to the Commission to revise the allotment of a symbol by the Returning Officers in so far as the said allotment is inconsistent with the directions issued by the Commission. It would, therefore, follow that Commission has been clothed with plenary powers by the above mentioned Rules in the matter of allotment of symbols. The validity of the said Rules has not been challenged before us. If the Commission is not to be disabled from exercising effectively the plenary powers vested in it in the matter of allotment of symbols and for issuing directions in connection therewith, it is plainly essential that the Commission should have the power to settle a dispute in case claim for the allotment of the symbol of a political party is made by two rival claimants. In case, it is a dispute between two individuals, the method for the settlement of that dispute is provided by paragraph 13 of the Symbols Order. If on the other hand, a dispute arises between two rival groups for allotment of a symbol of a political party on the ground that each group professes to be that party, the machinery and the manner of resolving such a dispute is given in paragraph 15. Paragraph 15 is intended to effectuate and subserve the main purposes and objects of the Symbols Order. The paragraph is designed to ensure that because of a dispute having arisen in a political party between two or more groups, the entire scheme of the Symbols Order relating to the allotment of a symbol reserv~d for the political party is not set at naught. The fact that the power for the settlement of such a dispute has been vested in the Commission "°uld not constitute a valid ground for assailing the vires of and striking down paragraph 15. The Commission is an authority created by the Conatitution and according to Article 324, the superintendence, direction and control of the electoral rolls for and the conduct of elections to Parliament and to the Legislature of every State and of electiona to the off ices of President, and Vice President shall be vested in the Commission. The fact that the power of resolving a dispute between two rival groups for allotment of symbol of ~ political party has been vested in sueh a high authority would raise a preswnption, though rebuttable, and provide a guarantee, though not absolute but to a conaiderable extent, that the power would not be misused but.would be exercised in a fair and reasonable manner. There is also no substance in the contention that as power to make provisiona in respect to electiona has been given to the Parliament by Article 327 of the Conatitution, the power cannot be further delegated to the Commission. The opening words of Article 327 are 'subject to the provisiona of this Conatitution'. The above words indicate that any law made by the Parliament in exercise of powers conferred by Article 327 would be subject to -the other provisiona of the Constitution including Article 324. Article 324 as mentioned above provide_s that superintendence, direction and control of elections shall be vested in Election Commission. It, therefore, cannot be said when the Commission issued direction, it does so not on its own behalf but as the delegate of some other authority. It may also be mentioned in this context that when the Central Government issued conduct of Elections Rules, 1961 in exercise of its powers under section 16r of the Representation of People Act, 1951, • it did so as required by that section after conaulta-

pp. 12–13

tion with the Commission." •

p. 13, margin G

The above decision upholds the power of the commission to recognise political parties and to decide disputes arising amongst them or between splinter groups within a political party. It also upholds the power of the Commission to issue the Symbols Order. The Court has further observed that it could not be said that when the Commission issued the Symbols Order it was not doing so on its own behalf but as the delegate of some other A authority. The power to issue the Symbols Order was held to be comprehended in the power of superintendence, direction and control of elections vested in the connnission.

pp. 13–14, margin G

Over-ruling the objection raised as to the validity of the

p. 14

Symbols Order on the ground that it was legislative in character and the Coomission had no power to issue it in the absence of

p. 14

.~ entrustment of the power to make a law in relation to elections, this Court observed in All Party Hill Leaders' Conference Sbillong v. Captain M.A. Sangma & Ors. [1978] 1 s.c.R. 393, at page 408 thus:

p. 14

"It is not necessary in this appeal to deal with the question whether the Symbols Order made by the Coomission is a piece of legislative activity. It is enough to hold, which we do, that the Commission is empowered in its own right under Article 324 of the Constitution and also under rules 5 and 10 of the Rules to make directions .in general in widest terms

p. 14, margin B

necessary and also in specific cases in order to facilitate a free and fair election with promptitude. It is, therefore, legitimate on the part of the Conmission to make general provisions even in anticipation or in the light of experience in respect of matters relating to symbols. That would also

p. 14, margin C

inevitably require it to regulate its own procedure in dealing with disputes regarding choice of symbols when raised before it. Further that would also sometimes inevitably lead to adjudication of disputes with regard to recognition of parties or rival claims to a particular symbol. The Symbols Order is, therefore, a

p. 14, margin D

compendium of directions in the shape of general provisions to meet various kinds of situations appertaining to elections with particular reference to symbols. The power to make these directions, whether it is a legislative activity or not, flows from Article 324 as well as from rules 5 and 10. It was

p. 14, margin E

held in Sadiq Ali (Supra) that 'if the Commission is not to be disabled from exercising effectively the plenary powers vested in it in the matter of allotment of symbol and for issuing directions in connection therewith, it is plainly essential that the Commission should have the power to settle a dispute in case

p. 14, margin F

claim for the allotment of the symbol of a political party is made by two rival claimants'. It has been held in Sadiq Ali (Supra) that the Commission has been clothed with plensry powers by rule 5 and sub-rules (4) and (5) of rule 10 of the Rules in the matter of

pp. 14–15, margin G

allotment of symbols."

p. 15

In lal Sathi v. Nachbattar Singh, [1983) 1 s.c.R. 102,

p. 15

the same view is reiterated. The Court observed in this case at ft. page 719 as follows :

p. 15

"The Symbols Order made by the Election Commission in exercise of its power under Article 324 of the Constitution read with rules 5 and 10 of the Conduct of Elections Rules and all other powers enabling it in that behalf, are in the nature of general directions issued by the Election Commission to regulate the mode of allotment of symbols to the contesting candidates. It is a matter of common knowledge that elections in our country are fought on the basis of symbols• It must but logically follow as a necessary corollary that the Symbols Order is an order made under the Act. Any other view would be destructive of the very fabric of our system of holding parliamentary and assembly constituency elections in the country on the basis of

p. 15

adult suffrage."

p. 15

Even if for any reason, it is held that any of the provisions contained in the Symbols Order are not traceable to the Act or the Rules, the power of the Commission under Article 324(1) of the Constitution which is plenary in character can encompass all ouch provisions, Article 324 of the Constitution operates in areas left unoccupied by legislation and the words 'superintendence•, 'direction' and 'control' as well as 'conduct of all elections' are the broadest terms which would include the power to make all such provisions • (See Hobinder Singh Gill .Anr. v. Qdef Election Coom!s•imt!r, New Delhi Ors. (1978) 2 s.c.R. 272, and A.c. Jose v. Sivan Pillai Ors. (1984 J 3 s.c.R. 74.)

p. 15

do not also find any substance in the contention that the Central Government which had been delegated the power to make rules under section 169 of the Act could not further delegate the power to made any subordinate legislation in the form of the Symbols Order to the Commission, without itself being empowered by the Act to such further delegation. Any part of the Symbols Order which cannot be traced to rules 5 and 10 of the Rules can easily be traced in this csse to lhe reservoir of· power under Article 324(1) which empowers the Comnission to issue all directions necessary for the purpose of conducting smooth, free and fair <!lections. Our attention is not drawn by the learned counsel for the petitioner to any speciric provision in the Symbols Order which cannot be brought within the scope of either rule 5 or rule 10 of the Rules or Article 324(1) of the Constitution and which is hit by the principle delegatus pottes clelegare, i.e. a delegate cannot delegate, the Comnission itself in this case being a donee of plenary powers under Article 324 (1) of the Constitution in connection with the conduct of elections referred to therein subject of course to any legislation made under Article 327 and Article 328 of the Constitution read with Entry 72 in IJ.st I or Entry 37 in IJ.st II of the Seventh Schedule to the Constitlltion and the rules made thereunder. While cons truing the expression 'superintendence' , 'direction and control' in Article 324(1), one has to remember that every norm which lays down a rule of conduct cannot possibly be elevated to the position of legislation or delegated legislation. There are some authorities or persons in certain grey areas who may be sources of rules of conduct and who at the same time cannot be equated to authorities o.r persons who csn make law, in the strict sense in which it is understood in jurisprudence. A direction may mean an order issued to a particular individual or a precept which many may have to follow. It may be a specific or a general order. One has also to remember that the source of power in this csse is the Constitution, the highest law of the land, which is the repository and source of all legal powers and any power granted by the Constitution for a specific purpose should be construed liberally so that the object for which the power is granted is effectively achieved. Viewed from this angle it cannot be said that any of the provisions of the Symbols Order suffers from want of authority on the part of the Commission, which has issued it.

pp. 15–16

We are not satisfied with the submission that the several evils, malpractices etc. which are alleged to be existing amongst the political parties today are due to the Symbols Order which recognises politics! parties and provides for their registration etc• The reasons for the existence of such evils, malpractices etc. are to be found elsewhere. The surer remedy for getting rid of those evils malpractices etc. is to appeal to the conscience of the nation. We cannot, however, set aside the Symbols Order on the grounds alleged in the petition.

p. 16, margin F

We dismiss the petition accordingly. N.V.K. Petition dismissed.

p. 16, margin H