{"id":16233,"date":"1985-09-24T00:00:00","date_gmt":"1985-09-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kanhiyalal-omar-vs-r-k-trivedi-ors-on-24-september-1985"},"modified":"2018-02-12T06:46:02","modified_gmt":"2018-02-12T01:16:02","slug":"kanhiyalal-omar-vs-r-k-trivedi-ors-on-24-september-1985","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kanhiyalal-omar-vs-r-k-trivedi-ors-on-24-september-1985","title":{"rendered":"Kanhiyalal Omar vs R.K. Trivedi & Ors on 24 September, 1985"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Kanhiyalal Omar vs R.K. Trivedi & Ors on 24 September, 1985<\/div>\n
Equivalent citations: 1986 AIR 111, \t\t 1985 SCR Supl. (3)\t1<\/div>\n
Author: E Venkataramiah<\/div>\n
Bench: Venkataramiah, E.S. (J)<\/div>\n
           PETITIONER:\nKANHIYALAL OMAR\n\n\tVs.\n\nRESPONDENT:\nR.K. TRIVEDI & ORS.\n\nDATE OF JUDGMENT24\/09\/1985\n\nBENCH:\nVENKATARAMIAH, E.S. (J)\nBENCH:\nVENKATARAMIAH, E.S. (J)\nMISRA, R.B. (J)\n\nCITATION:\n 1986 AIR  111\t\t  1985 SCR  Supl. (3)\t1\n 1985 SCC  (4) 628\t  1985 SCALE  (2)1370\n\n\nACT:\n     Constitution of  India 1950  -  Articles  324  and\t 327\nRepresentation of  People Act  1951, Section  169 Conduct of\nElection Rules\t1961, Rules  5 and  10\t&  election  Symbols\n(Reservation and Allotment) Order 1968.\n     Symbols Order  - Whether  legislative  in\tcharacter  -\nElection Commission whether competent to issue Order.\n     Words & Phrases :\n     'Superintendence, direction  and control'\t- Meaning of\nArticle 324 (1) Constitution of India 1950.\n\n\n\nHEADNOTE:\n     The petitioner  in his  Writ  Petition  to\t this  Court\nchallenged the\tElection Symbols (Reservation and Allotment)\nOrder,\t1968   contending  that\t as  it\t is  legislative  in\ncharacter lt  could not\t have been  issued by  the  Election\nCommission because  the Commission  is not  entrusted by law\nthe  power   to\t issue\t such\tan   Order   regarding\t the\nspecification, reservation and allotment of symbols that may\nbe chosen  by the  candidates at  elections in parliamentary\nand assembly constituencies, and that there is no provision,\nconstitutional or  legal which\tjustifies the recognition of\npolitical parties  for the  purposes  of  election.  It\t was\nfurther contended that Article 324 of the Constitution which\nvests the power of superintendence, direction and control of\nall elections  to Parliament  and to  the Legislature  of  a\nState in  the Election\tCommission cannot  be  construed  as\nconferring power  on the  Commission to\t issue\tthe  Symbols\nOrder, and  the Central\t Government which had been delegated\nthe  power  to\tmake  rules  under  &  Section\t169  of\t the\nRepresentation\tof   People  Act,  1951\t could\tnot  further\ndelegate the  power to\tmake any  subordinate legislation in\nthe form  of the  Symbols Order\t to the\t Commission, without\nitself being  empowered by  The Act  to\t make  such  further\ndelegation.\n     Dismissing the Writ Petition,\n2\n^\n     HELD: 1.  In exercise  of the  powers  conferred  Under\nArticle 324  of the  Constitution, read with rule 5 and rule\n10 of  the Conduct  of Election\t Rules,\t 1961  the  Election\nCommission of India issued the Election Symbols (Reservation\nand Allotment) Order in the year 1968 for the specification,\nreservation,  choice  and  allotment  of  symbols,  for\t the\nrecognition of political parties in relation thereto and for\nmatters connected therewith. [15 C-D]\n     2. It  cannot be said that any of the provisions of the\nElection Symbols  (Reservation and  Allotment)\tOrder,\t1968\nsuffers from  want of  authority on the part of the Election\nCommission which has issued it. [16 F]\n     3. The  power of  the Election  Commission to recognise\npolitical parties  and to  decide disputes  arising  amongst\nthem or between splinter groups within a political party has\nbeen upheld  in Sadiq  Ali v. Election Commission  of India,<\/a>\n[1972] 2  S.C.R. 318.  It also\tupholds\t the  power  of\t the\nCommission to issue the Symbols Order and the power to issue\nthe Symbols  Order was\theld to be comprehended in the power\nof 'superintendence,  direction and  control'  of  elections\nvested in the Election Commission. [11G; 14A]\n     4. Even  if  the  powers  of  the\tElection  Commission\nmentioned in  the Symbols  Order are  not traceable  to\t the\nRepresentation\tof  People  Act,  1951\tor  the\t Conduct  of\nElection Rules,\t 1961 the  power  of  the  Commission  under\nArticle 324(1)\tof the\tConstitution which  are\t plenary  in\ncharacter would\t encompass all such provisions. Article 324.\nOf the\tConstitution operates  in areas\t left unoccupied  by\nlegislation and the words 'superintendence' 'direction', and\n'control' as  well as  'conduct of  all elections'  are\t the\nbroadest terms\twhich would  include the  power to  make all\nsuch   provisions.    While   construing    the\t  expression\n'superintendence, direction  and control' in Article 324(1),\none has\t to remember  that every norm which lays down a rule\nof conduct  cannot possibly  be elevated  to the position of\nlegislation  or\t  delegated  legislation.   There  are\tsome\nauthorities or\tpersons in  certain grey  areas who  may  be\nsources of rules of conduct and who at the  same time cannot\nbe equated  to authorities  or persons\twho can make law, in\nthe strict sense in which it is understood in jurisprudence.\nA direction  may  mean\tan  Order  issued  to  a  particular\nindividual or  a precept  which many  may have to follow. It\nmay be a specific or a general order. The source of power in\nthis case  is the Constitution, the highest law of the land,\nwhich is  the repository  and source of all legal powers and\nany power granted by the Constitution for a specific purpose\nshould be  construed liberally\t80 that the object for which\nthe power is\n3\n     All Party\tHill Leaders' Conference Shillong v. Captain\nM.A.   Sangma  & Ors.<\/a> [1978] 1 S.C.R. 393, Roop Lal Sathi v.\nNachhattar Singh<\/a>  [1983] 1 S.C.R. 702, Mohinder Singh Gill &\nAnr. v.\t The Chief  Election Commissioner,  New Delhi & Ors.<\/a>\n[1978] 2  S.C.R. 272  and A.C.\tJose v.\t Sivan Pillai & Ors.<\/a>\n[1984] 3 S.C.R. 74, referred to.\n     5. Till  recently the  Constitution of  India  had\t not\nexpressly referred  to the  existence of  political parties,\nbut by the amendments made to it by the Constitution (Fifty-\nSecond Amendment) Act, 1985 there is now a clear recognition\nof political parties by the constitution. The Tenth Schedule\nto the\tConstitution which  was added  by the above Amending\nAct acknowledges the existence of political parties and sets\nout the\t circumstances when a member of Parliament or of the\nState Legislature  would be deemed to have defected from his\npolitical party\t and would thereby be disqualified for being\na member  of the House concerned. It is therefore, difficult\nto say\tthat the reference to recognition, registration etc.\nOf political  parties by  the Symbols  Order is unauthorised\nand against the political system adopted by our country. [11\nE-F]\n\n\n\nJUDGMENT:\n<\/pre>\n
     ORIGINAL JURISDICTION  : Writ  Petition  No.  11738  of
\n1985.\n<\/p>\n
     (Under Article 32 of the Constitution of India).
\n     Gobind Mukhoty,  R.P.. Gupta  and Miss  Kirti Gupta for
\nthe Petitioner.\n<\/p>\n
     The Judgment of the Court was delivered by
\n     VENKATARAMIAH, J.\tIn this petition filed under Article
\n32  of\t the  Constitution  the\t petitioner  challenges\t the
\nconstitutional validity of the Election Symbols (Reservation
\nand Allotment)\tOrder, 1968 (hereinafter referred to as ‘the
\nSymbols Order’\twhich is  issued by  the Election Commission
\n(hereinafter referred to as ‘the Commission’). The principal
\ncontention  urged  by  the  petitioner\tin  support  of\t his
\ncontention is that the Symbols Order which is legislative in
\ncharacter could\t not have  been\t issued\t by  the  Commission
\nbecause the  commission is not entrusted by law the power to
\nissue such an order regarding the specification, reservation
\nand  allotment\t of  symbols  that  may\t be  chosen  by\t the
\ncandidates  at\t elections  in\tparliamentary  and  assembly
\nconstituencies. It  is further urged that Article 324 of the
\nConstitution  which  vests  the\t power\tof  superintendence,
\ndirection
\n4<\/span>
\nand control  of all  elections\tto  Parliament\tand  to\t the
\nLegislature of a State in the Commission cannot be construed
\nas conferring  the power  on the  Commission  to  issue\t the
\nSymbols Order .\n<\/p>\n
     It is  necessary to  set out the relevant provisions of
\nlaw having a bearing on the above question at the outset for
\na proper  appreciation of the contentions urged on behalf of
\nthe petitioner.\t Article 324  (1) of  the Constitution reads
\nthus:\n<\/p>\n
\t  “324.(1)  The\t  superintendence,   direction\t and
\n\t  control of  the preparation of the electoral rolls
\n\t  for,\tand   the  conduct   of,  all  elections  to
\n\t  Parliament and  to the  Legislature of every State
\n\t  and of  elections to\tthe offices of President and
\n\t  Vice-President held  under this Constitution shall
\n\t  be vested  in a  Commission (referred\t to in\tthis
\n\t  Constitution as the Election Commission).<\/p><\/blockquote>\n
     Articles 327 and 328 of the Constitution which vest the
\npower of  making provisions  with respect  to  elections  on
\nParliament and\tthe  Legislatures  in  the  States  read  as
\nfollows :\n<\/p>\n
\t  “327.\t Subject   to\tthe   provisions   of\tthis
\n\t  Constitution, Parliament  may from time to time by
\n\t  law make  provision with  respect to\tall  matters
\n\t  relating to,\tor in  connection with, elections to
\n\t  either House\tof Parliament  or to  the  House  or
\n\t  either  House\t of  the  Legislature  of,  a  State
\n\t  including the\t preparation of electoral rolls, the
\n\t  delimitation\tof   constituencies  and  all  other
\n\t  matters   necessary\t for   securing\t   the\t due
\n\t  constitution of such House or Houses.\n<\/p><\/blockquote>\n
\t  328.\t Subject   to\tthe   provisions   of\tthis
\n\t  Constitution and  in 80  far as  provision in that
\n\t  behalf is  not made by Parliament, the Legislature
\n\t  of a\tState may  from time  to time  by  law\tmake
\n\t  provision with respect to all matters relating to,
\n\t  or in\t connection with, the elections to the House
\n\t  or either  House of  the Legislature\tof the State
\n\t  including the\t preparation of\t electoral rolls and
\n\t  all other  matters necessary\tfor securing the due
\n\t  constitution of such House or Houses.”<\/p><\/blockquote>\n
     Article 327  of the  Constitution confers\tthe power on
\nParliament to  make by\tlaw provision  with respect  to\t all
\nmatters
\n5<\/span>
\nrelating to,  or in  connection with,  elections  to  either
\nHouse of  Parliament or\t to the House or either House of the
\nLegislature  of\t  a  State   including\tthe  preparation  of
\nelectoral rolls,  the delimitation of constituencies and all
\nother matters necessary for securing the due constitution of
\nsuch House  or Houses  subject\tto  the\t provisions  of\t the
\nConstitution.  Article\t 328  of  the  Constitution  confers
\nsimilar\t power\ton  the\t Legislature  of  a  State  to\tmake
\nprovision with\trespect to  all matters\t relating to,  or in
\nconnection with,  the elections to the House or either House
\nof the Legislature of the State including the preparation of
\nelectoral rolls and all other matters necessary for securing
\nthe due\t constitution of such House or Houses subject to the
\nprovisions of the Constitution and in so far as provision in
\nthat behalf  is not  made by  Parliament. In exercise of the
\npower  conferred   by  Article\t 327  of   the\tConstitution
\nParliament has enacted the Representation of the People Act,
\n1951 (43  of 1951)  (hereinafter referred  to as  ‘the Act’)
\nproviding for  the conduct  of elections  to the  Houses  of
\nParliament and\tto the House or Houses of the Legislature of
\neach State,  the qualifications\t and  disqualifications\t for
\nmembership of  those Houses, the corrupt practices and other
\noffences at  or in  connection with  such elections  and the
\ndecision of  doubts  and  disputes  arising  out  of  or  in
\nconnection with\t such elections.  Section  169\tof  the\t Act
\nempowers the  Central Government  to promulgate rules, after
\nconsultation with  the\tCommission,  for  carrying  out\t the
\npurposes of  the Act.  In exercise  of the  said  power\t the
\nCentral Government  has promulgated the Conduct of Elections
\nRules, 1961  (hereinafter referred  to as  the ‘the Rules’).
\nRules 5\t and 10\t of the\t Rules which  are material  for\t the
\npurposes of this case read thus:\n<\/p>\n
\t  5. Symbols  for  elections  in  parliamentary\t and
\n\t  assembly  constituencies   –\t(1)   The   Election
\n\t  Commission shall,  by notification  in the Gazette
\n\t  of India,  and in  the Official  Gazette  of\teach
\n\t  State, specify  the symbols  that may be chosen by
\n\t  candidates  at   elections  in   Parliamentary  or
\n\t  assembly constituencies  and the  restrictions  to
\n\t  which their choice shall be subject.
\n\t  (2) Subject  to any  general or  special direction
\n\t  issued by  the Election  Commission  either  under
\n\t  sub-rule (4)\tor sub-rule (5) of rule 10, where at
\n\t  any such election, more nomination papers than one
\n\t  are delivered\t by or on behalf of a candidate, the
\n\t  declaration as  to symbols  made in the nomination
\n\t  paper first delivered, and no other declaration as
\n\t  to
\n6<\/span>
\n\t  symbols shall\t be taken  into consideration  under
\n\t  rule 10  even if  that nomination  paper has\tbeen
\n\t  rejected.\n<\/p><\/blockquote>\n
\t  10. Preparation of list of contesting candidates
\n\t  (4) At  an election in a parliamentary or assembly
\n\t  constituency, where  a poll becomes necessary, the
\n\t  returning officer  shall consider  the  choice  of
\n\t  symbols expressed  by the contesting candidates in
\n\t  their nomination  papers and shall, subject to any
\n\t  general or special direction issued in this behalf
\n\t  by the Election Commission –\n<\/p><\/blockquote>\n
\t  (a) allot  a different  symbol to  each contesting
\n\t  candidate in\tconformity, as\tfar as\tpracticable,
\n\t  with his choice; and\n<\/p><\/blockquote>\n
\t  (b) if  more contesting  candidates than  one have
\n\t  indicated their  preference for  the same  symbol,
\n\t  decide by  lot to  which of  such  candidates\t the
\n\t  symbol will be allotted.\n<\/p><\/blockquote>\n
\t  (5) The  allotment by the returning officer of any
\n\t  symbol to  a candidate shall be final except where
\n\t  it is\t inconsistent with  any directions issued by
\n\t  the Election\tCommission in  this behalf  in which
\n\t  case\tthe   Election\tCommission  may\t revise\t the
\n\t  allotment in such manner as it thinks fit.
\n\t  (6) Every  candidate or  his election\t agent shall
\n\t  forth with  be informed  of the symbol allotted to
\n\t  the candidate\t and be\t supplied  with\t a  specimen
\n\t  thereof by the returning officer.”<\/p><\/blockquote>\n
     Sub-rule (1)  of rule  5  of  the\tRules  empowers\t the
\ncommission to  specify by  a notification  in the Gazette of
\nIndia and in the Official Gazette of each State, the symbols
\nthat  may   be\tchosen\t by  candidates\t  at  elections\t  in
\nParliamentary  or   assembly\t  constituencies   and\t the
\nrestrictions to\t which their  choice shall  be subject. Sub-
\nrule (4)  of rule  10 of  the  Rules  provides\tthat  at  an
\nelection in  a parliamentary or assembly constituency, where
\na  poll\t becomes  necessary,  the  returning  officer  shall
\nconsider the  choice of\t symbols expressed by the contesting
\ncandidates in  their nomination\t papers and shall subject to
\nany general  or special\t direction issued  in this behalf by
\nthe Commission allot a
\n7<\/span>
\ndifferent symbol to each contesting candidate in conformity,
\nas  far\t  as  practicable,  with  his  choice  and  if\tmore
\ncontesting  candidates\t than  one   have  indicated   their
\npreference for\tthe same  symbol, decide  by lot to which of
\nsuch candidates the symbol will be allotted. Sub-rule (5) of
\nrule  10  of  the  Rules  provides  that  the  allotment  by
\nreturning officer  of any  symbol to  a candidate  shall  be
\nfinal except  where it\tis inconsistent\t with any directions
\nissued by  the Commission  in this  behalf in which case the
\nCommission may\trevise the  allotment in  such manner  as it
\nthinks fit. Under sub-rule (6) of rule 10 of the Rules every
\ncandidate or his election agent should be informed forthwith
\nthe symbol  allotted to\t the candidate and is entitled to be
\nsupplied with a specimen thereof. Purporting to exercise its
\npower under Article 324 of the Constitution read with rule 5
\nand rule  10 of the Rules, the Commission issued the symbols
\nOrder in  the year  1968 which is impugned in this petition.
\nThe Preamble to the Symbols Order reads thus :\n<\/p>\n
\t  “S.O. 2959  dated 31st  August, 1968 – Whereas the
\n\t  superintendence,  direction  and  control  of\t all
\n\t  elections to\tParliament and to the Legislature of
\n\t  every State  are vested  by  the  Constitution  of
\n\t  India in the Election Commission of India;
\n\t  And, whereas,\t it is\tnecessary and  expedient  to
\n\t  provide in  the interests of purity of election to
\n\t  the  House  of  the  People  and  the\t Legislative
\n\t  Assembly of  every State  and in  the interests of
\n\t  the  conduct\tof-such\t elections  in\ta  fair\t and
\n\t  efficient   manner,\t for   the    specification,
\n\t  reservation, choice  and allotment of symbols, for
\n\t  the recognition  of political\t parties in relation
\n\t  thereto and for matters connected therewith.
\n\t  Now,\ttherefore,   in\t exercise   of\tthe   powers
\n\t  conferred by Article 324 of the Constitution, read
\n\t  with\trule  5\t and  rule  10\tof  the\t Conduct  of
\n\t  Elections  Rules,   1961,  and  all  other  powers
\n\t  enabling  it\t in  this   behalf,   the   Election
\n\t  Commission of\t India hereby  makes  the  following
\n\t  Order.”<\/p><\/blockquote>\n
     The  expression   ‘political  party’   is\tdefined\t  in
\nParagraph 2(1)(h) of the Symbols Order thus :\n<\/p>\n
\t  2.(1)(h) –  ‘Political party’ means an association
\n\t  or body of individual citizens of India registered
\n\t  with the  Commission as  a political\tparty  under
\n\t  paragraph 3
\n8<\/span>
\n\t  and  includes\t a  political  party  deemed  to  be
\n\t  registered with  the Commission  under the proviso
\n\t  of sub-paragraph (2) of that paragraph;”<\/p><\/blockquote>\n
     Paragraph 3  of the  Symbols Order\t provides  that\t any
\nassociation or\tbody of individual citizens of India calling
\nitself a  political party  and intending  to avail itself of
\nthe  provisions\t  of  the   Symbols  Order   shall  make  an
\napplication to\tthe Commission\tfor its\t registration  as  a
\nparty for  the purposes of the Symbols Order. Sub-paragraphs
\n(2), (3) and (4) of paragraph 3 of the Symbols Order provide
\nfor the\t manner in which such applications should be made by
\nassociations and  bodies  calling  themselves  as  political
\nparties\t for   registration  with  the\t  Commission.  m  at
\nparagraph empowers  the Commission  to consider all relevant
\nparticulars and\t to decide  whether the\t association or body
\nshould be  registered as  a political  party or\t not and its
\ndecision in  that regard  is stated to be final. Paragraph 4
\nof the\tSymbols\t Order\tprovides  that\tin  every  contested
\nelection  a   symbol  shall  be\t allotted  to  a  contesting
\ncandidate in  accordance with  the provisions of the Symbols
\nOrder and  different symbols shall  be allotted to different
\ncontesting  candidates\t at  an\t  election   in\t  the\tsame
\nconstituency. m\t e symbols  specified by  the Commission are
\nclassified into two categories by paragraph 5 of the Symbols
\nOrder. They  are either\t reserved or free. A reserved symbol
\nis a  symbol which  is reserved\t for a\trecognised political
\nparty for  exclusive allotment\tto contesting candidates set
\nup by  that   party. A\tfree symbol is a symbol other than a
\nreserved symbol\t Paragraph 6  of the  Symbols Order provides
\nfor  the  classification  of  the  political  parties,\tinto
\nrecognised  political  parties\tand  unrecognised  political
\nparties. Amongst  the recognised political parties according
\nto the\tSymbols Order  there  are  two\tcategories,  namely,
\nnational parties  and the  State parties.  The Symbols Order
\nfurther provides  for  the  determination  of  the  question
\nwhether a  candidate has been set up by a political party or
\nnot. It\t deals with  the power\tof the\tCommission to  issue
\ninstructions to\t unrecognised political\t parties  for  their
\nexpeditious  recognition   on  fulfillment   of\t  conditions
\nspecified in  paragraph 6.  The power  of the  commission in
\nrelation to  splinter groups  or  rival\t   sections  of\t the
\nrecognised  political\tparty  and  its\t power\tin  case  of
\namalgamation of two or more political parties are dealt with
\nin  paragraphs\t15  and\t 16  of\t the  Symbols  Order.  Under
\nparagraph 17 of the Symbols Order the Commission is required
\nto publish  by one  or more  notifications in the Gazette of
\nIndia lists  specifying the national parties and the symbols
\nrespectively reserved  for   them, the\tState  parties,\t the
\nState or States in which they are
\n9<\/span>
\nState parties and the symbols respectively reserved for them
\nin  such State or States, unrecognised political parties and
\nthe State  or States  in which\tthey function  and the\tfree
\nsymbols for  each State.  Every such  list is required to be
\nkept up-to-date,  as far  as possible. Under paragraph 18 of
\nthe Symbols  Order the Commission has reserved to itself the
\npower  to   issue  instructions\t  and  directions   for\t the
\nclarification of any of the provisions of the Symbols Order,
\nfor the\t removal  of  any  difficulty  which  may  arise  in
\nrelation to the implementation of any such provisions and in
\nrelation to  any matter\t with respect to the reservation and
\nallotment of  symbols and  recognition of political parties,
\nfor which  the Symbols\tOrder makes  no provision  or  makes
\ninsufficient provision\tand provision  is in  the opinion of
\nthe Commission\tnecessary for the smooth and orderly conduct
\nof elections.\n<\/p>\n
     The petitioner  claims to\tbe a  convener of  a  social
\norganisation named  “SAPRYA” situated at 67\/68, Daulat Ganj,
\nKanpur (U.P.)  which is\t stated to have been established for
\nthe  purposes\tof  propagating\t ‘National  truth’  and\t for
\nacquainting the\t people of  India about the ideals cherished
\nby it.\tThe petitioner\tis aggrieved  by the  emergence of a
\nlarge number  of political parties at the national level and
\nat the\tState level  which according  to him  has prejudiced
\nseriously  the\tideals\tof  a  democratic  country.  He\t has
\nreferred in  the course\t of the petition to the various acts
\ncommitted by  the several  political parties which according
\nto him\tare highly  detrimental\t to  the  interests  of\t the
\ncountry. He  contends that  the emergence of these political
\nparties is  due to  the provisions  contained in the Symbols
\nOrder which  provides  for  the\t registration  of  political
\nparties, reservation  and allotment  of symbols in favour of
\nvarious political parties. It is contended by the petitioner
\nthat the  Symbols Order\t is liable  to be struck down on the
\nground that  the Commission  is not  empowered to  issue  it
\neither under  the Constitution or the Act and the Rules made
\nthereunder. It is his contention that there is no provision,
\nconstitutional or  legal, which justifies the recognition of
\npolitical parties for purpose of elections.\n<\/p>\n
     The constitutional scheme with regard to the holding of
\nthe elections  to Parliament  and the  State Legislatures is
\nquite clear.  First, the  Constitution has  provided for the
\nestablishment of  a high  power body  to be  incharge of the
\nelections to  Parliament and  the State\t Legislatures and of
\nelections to  the offices  of President\t and Vice President.
\nThat body is the Commission. Article 324 of the Constitution
\ncontains detailed
\n10<\/span>
\nprovisions regarding  the constitution of the Commission and
\nits general  powers. The  Commission consists  of the  Chief
\nElection Commissioner  who is appointed by the President and
\nit  may\t  also\tconsist\t  such\tnumber\t of  other  Election
\nCommissioners, if  any, as  the President  may from  time to
\ntime fix,  who are  also to  be appointed  by the President.
\nWhen  Election\t Commissioners\tare   appointed,  the  Chief
\nElection  Commissioner\t becomes   the\t Chairman   of\t the
\nCommission.  There  is\tprovision  for\tthe  appointment  of
\nRegional Commissioners to assist the Commission. In order to
\nensure the  independence and impartiality of the Commission,
\nit is  provided that  the Chief\t Election Commissioner shall
\nnot be\tremoved from his office except in like manner and on
\nthe like  grounds as  a Judge  of the Supreme Court of India
\nand that  the\tconditions of  service of the Chief Election
\nCommissioner shall  not be  varied to his disadvantage after
\nhis appointment.  An Election  Commissioner  or\t a  Regional
\nCommissioner cannot  be removed\t from office  except on\t the
\nrecommendation\tof  the\t Chief\tElection  Commissioner.\t The
\nsuperintendence, direction  and control\t of the\t conduct  of
\nelections referred  to in Article 324(1) of the Constitution
\nare    entrusted    to\t  the\t Commission.\tThe    words
\n‘superintendence’, ‘direction’ and ‘control’ are wide enough
\nto include  all powers\tnecessary for  the smooth conduct of
\nelections. It  is, however,  seen that\tParliament has\tbeen
\nvested with  the power\tto make law under Article 327 of the
\nConstitution read  with Entry  72 of  List I  of the Seventh
\nSchedule to  the Constitution  with respect  to all  matters
\nrelating to  the elections  to either House of Parliament or
\nto the\tHouse or  either House of the Legislature of a State
\nsubject to  the provisions  of the  Constitution. Subject to
\nthe provisions\tof the Constitution and any law made in that
\nbehalf by  Parliament, the  Legislature of a State may under
\nArticle 328  read with\tEntry 37  of List  II of the Seventh
\nSchedule to  the  Constitution\tmake  law  relating  to\t the
\nelections to  the House\t or Houses  of Legislature  of\tthat
\nState. The  general powers of superintendence, direction and
\ncontrol of  the elections  vested in  the  Commission  under
\nArticle 324(1)\tnaturally are subject to any law made either
\nunder Article  327 or under Article 328 of the Constitution.
\nThe word  ‘election’ in\t Article 324 is used in a wide sense
\nso as  to include  the entire\tprocess\t of  election  which
\nconsists of  several stages and it embraces many steps, some
\nof which  may have an important bearing on the result of the
\nprocess. India\tis a  country which  consists of millions of
\nvoters. Although  they are  quite conscious  of their duties
\npolitically, unfortunately,  a large  percentage of them are
\nstill illiterate.  Hence there\tis need for using symbols to
\ndenote the  candidates who  contest elections  so  that\t the
\nilliterate voter
\n11<\/span>
\nmay cast  his vote  in secrecy in favour of the candidate of
\nhis choice  by identifying  him with  the help of the symbol
\nprinted on the ballot paper against his name.\n<\/p>\n
     It is  true that till recently the Constitution did not
\nexpressly refer\t to the\t existence of political parties. But
\ntheir existence is implicit in the nature of democratic form
\nof Government  which our  country has  adopted. The use of a
\nsymbol, be  it a donkey or an elephant, does give rise to an
\nunifying effect\t amongst the  people with a common political
\nand  economic\tprogramme  and\t ultimately  helps   in\t the
\nestablishment of  a Westminster\t type of  democracy which we
\nhave adopted  with a  Cabinet  responsible  to\tthe  elected
\nrepresentatives of  the\t people\t who  constitute  the  Lower
\nHouse. The political parties have to be there if the present
\nsystem of  Government should  succeed and the chasm dividing
\nthe political parties should be so profound that a change of
\nadministration would in fact be a revolution disguised under
\na constitutional  procedure. It\t is no\tdoubt a paradox that
\nwhile the  country as  a whole\tyields to  no other  in\t its
\ncorporate sense\t of unity  and continuity, the working parts
\nof its\tpolitical system  are so organized on party basis in
\nother  words  on  systematized\tdifferences  and  unresolved
\nconflicts.  That  is  the  essence  of\tour  system  and  it
\nfacilitates the\t setting up of a Government by the majority.
\nAlthough till  recently the  Constitution had  not expressly
\nreferred to  the existence  of\tpolitical  parties,  by\t the
\namendments made\t to it\tby  the\t Constitution  (Fifty-Second
\nAmendment) Act, 1985 there is now a clear recognition of the
\npolitical parties by the Constitution. The Tenth Schedule to
\nthe Constitution  which is  added by  the above amending Act
\nacknowledges the existence of political parties and sets out
\nthe circumstances  when a  member of  Parliament or  of\t the
\nState Legislature  would be deemed to have defected from his
\npolitical party\t and would thereby be disqualified for being
\na member  of the  House concerned.  Hence it is difficult to
\nsay that  the reference to recognition, registration etc. of
\npolitical parties  by the  Symbols Order is unauthorised and
\nagainst the political system adopted by our country.\n<\/p>\n
     Paragraph 15  of the Symbols Order which dealt with the
\npower of  the Commission  in relation  to splinter groups or
\nrival sections\tof a  recognised political party came up for
\nconsideration before  this Court in Sadiq Ali & Anr. etc. v.
\nElection Commission  of India  & Ors.  etc. [1972]  2 S.C.R.\n<\/p>\n
318.
\n     The Court observed in that case at pages 341-343 thus:\n<\/p>\n
12<\/span><\/p>\n
\t  “It would  follow from  what\thas  been  discussed
\n\t  earlier in  this judgment  that the  Symbols Order
\n\t  makes detailed  provisions  for  the\treservation,
\n\t  choice  and\tallotment   of\t symbols   and\t the
\n\t  recognition of  political  parties  in  connection
\n\t  therewith.  That  the\t Commission  should  specify
\n\t  symbols  for\t elections  in\t parliamentary\t and
\n\t  assembly  constituencies   has  also\t been\tmade
\n\t  obligatory by rule 5 of Conduct of Election Rules.
\n\t  Sub-rule (4)\tof Rule\t 10 gives  a  power  to\t the
\n\t  Commission to\t issue general or special directions
\n\t  to  the  Returning  Officers\tin  respect  of\t the
\n\t  allotment of\tsymbols. m e allotment of symbols by
\n\t  the Returning\t Officers has  to be  in  accordance
\n\t  with those  directions. Sub-rule  (5) of  rule  10
\n\t  gives\t power\tto  the\t Commission  to\t revise\t the
\n\t  allotment of a symbol by the Returning Officers in
\n\t  80 far  as the said allotment is inconsistent with
\n\t  the directions issued by the Commission. It would,
\n\t  there\t fore,\t follow\t that  Commission  has\tbeen
\n\t  clothed with plenary powers by the above mentioned
\n\t  Rules in  the matter\tof allotment of symbols. The
\n\t  validity of the said Rules has not been challenged
\n\t  before us. If the Commission is not to be disabled
\n\t  from exercising  effectively\tthe  plenary  powers
\n\t  vested in it in the matter of allotment of symbols
\n\t  and\tfor   issuing\tdirections   in\t  connection
\n\t  therewith,  it   is  plainly\tessential  that\t the
\n\t  Commission should  have  the\tpower  to  settle  a
\n\t  dispute in  case claim  for the  allotment of\t the
\n\t  symbol of  a political  party is made by two rival
\n\t  claimants. In\t case, it  is a\t dispute between two
\n\t  individuals, the method for the settlement of that
\n\t  dispute is provided by paragraph 13 of the Symbols
\n\t  Order. If  on the  other hand,  a  dispute  arises
\n\t  between two rival groups for allotment of a symbol
\n\t  of a political party on the ground that each group
\n\t  professes to\tbe that party, the machinery and the
\n\t  manner of  resolving such  a dispute\tis given  in
\n\t  para\tgraph\t15.  Paragraph\t15  is\tintended  to
\n\t  effectuate and  subserve  the\t main  purposes\t and
\n\t  objects of  the Symbols  Order.  me  paragraph  is
\n\t  designed to  ensure  that  because  of  a  dispute
\n\t  having arisen\t in a political party between two or
\n\t  more groups,\tthe entire  scheme  of\tthe  Symbols
\n\t  Order\t relating  to  the  allotment  of  a  symbol
\n\t  reserved for\tthe political  party is\t not set  at
\n\t  naught. m e fact that the power for the settlement
\n\t  of  such   a\tdispute\t  has  been  vested  in\t the
\n\t  Commission would not constitute a valid ground for
\n\t  assailing the vires
\n13<\/span>
\n\t  of and  striking down paragraph 15. The Commission
\n\t  is an\t authority created  by the  Constitution and
\n\t  according to\tArticle\t 324,  the  superintendence,
\n\t  direction and\t control of  the electoral rolls for
\n\t  and the  conduct of elections to Parliament and to
\n\t  the Legislature of every State and of elections to
\n\t  the offices Of President, and Vice President shall
\n\t  be vested  in the  Commission. The  fact that\t the
\n\t  power of  resolving a\t dispute between  two  rival
\n\t  groups for  allotment of  symbol  of\ta  political
\n\t  party has  been vested  in such  a high  authority
\n\t  would raise  a presumption, though rebuttable, and
\n\t  provide a  guarantee, though not absolute but to a
\n\t  considerable extent,\tthat the  power would not be
\n\t  misused but,\twould be  exercised in\ta  fair\t and
\n\t  reasonable manner.\n<\/p>\n
\t  There is  also no substance in the contention that
\n\t  as  power   to  make\t provisions  in\t respect  to
\n\t  elections has\t been given  to\t the  Parliament  by
\n\t  Article 327  of the Constitution, the power cannot
\n\t  be  further  delegated  to  the  Commission.\tm  e
\n\t  opening words\t of Article  327 are ‘subject to the
\n\t  provisions of\t this Constitution’. The above words
\n\t  indicate that\t any law  made by  the Parliament in
\n\t  exercise of  powers conferred by Article 327 would
\n\t  be  subject\tto  the\t  other\t provisions  of\t the
\n\t  Constitution including Article 324. Article 324 as
\n\t  mentioned  above  provides  that  superintendence,
\n\t  direction and control of elections shall be vested
\n\t  in Election  Commission, It,\ttherefore, cannot be
\n\t  said when the Commission issued direction, it does
\n\t  so not  on its  own behalf  but as the delegate of
\n\t  some other  authority. It may also be mentioned in
\n\t  this context\tthat  when  the\t Central  Government
\n\t  issued  conduct   of\tElections   Rules,  1961  in
\n\t  exercise of  its powers  under section  169 of the
\n\t  Representation of  People Act,  1951, it did so as
\n\t  required by  that section  after consultation with
\n\t  the Commission.\n<\/p>\n
     The above\tdecision upholds the power of the commission
\nto  recognise  political  parties  and\tto  decide  disputes
\narising amongst\t them or  between splinter  groups within  a
\npolitical party. It also upholds the power of the Commission
\nto issue  the Symbols  Order. m e Court has further observed
\nthat it\t could not  be said  that when the Commission issued
\nthe Symbols  Order it was not doing so on its own behalf but
\nas the delegate of some other
\n14<\/span>
\nauthority. m  e power to issue the Symbols Order was held to
\nbe comprehended\t in the\t power of superintendence, direction
\nand control of elections vested in the commission.\n<\/p>\n
     Over-ruling the  objection raised as to the validity of
\nthe Symbols  Order on  the ground that it was legislative in
\ncharacter and the Commission had no power to issue it in the
\nabsence of  entrustment of  the\t power\tto  make  a  law  in
\nrelation to elections, this Court observed in All Party Hill
\nLeaders’ Conference,  Shillong v. Captain M.A. Sangma & Ors.<\/a>
\n[1978] 1 S.C.R. 393, at page 408 thus:\n<\/p>\n
\t  “It is  not necessary\t in this appeal to deal with
\n\t  the question whether the Symbols Order made by the
\n\t  Commission is\t a piece of legislative activity. It
\n\t  is  enough   to  hold,   which  we  do,  that\t the
\n\t  Commission is\t empowered in  its own\tright  under
\n\t  Article 324  of the  Constitution and\t also  under
\n\t  rules 5  and 10 of the Rules to make directions in
\n\t  general in  widest terms  necessary  and  also  in
\n\t  specific cases  in order to  facilitate a free and
\n\t  fair election\t with promptitude. It is, therefore,
\n\t  legitimate on\t the part  of the Commission to make
\n\t  general provisions  even in anticipation or in the
\n\t  light of experience in respect of matters relating
\n\t  to symbols.  m at would also inevitably require it
\n\t  to regulate  its own\tprocedure  in  dealing\twith
\n\t  disputes regarding  choice of\t symbols when raised
\n\t  before  it.  Further\tthat  would  also  sometimes
\n\t  inevitably lead  to adjudication  of disputes with
\n\t  regard to  recognition of  parties or rival claims
\n\t  to a\tparticular symbol.  The\t Symbols  Order\t is,
\n\t  therefore, a compendium of directions in the shape
\n\t  of general  provisions to  meet various  kinds  of
\n\t  situations   appertaining    to   elections\twith
\n\t  particular reference to symbols. The power to make
\n\t  these directions,  whether  it  is  a\t legislative
\n\t  activity or not, flows from Article 324 as well as
\n\t  from rules  5 and  10. It  was held  in Sadiq\t Ali
\n\t  (Supra) that\t‘if the\t Commission  is\t not  to  be
\n\t  disabled from\t exercising effectively\t the plenary
\n\t  powers vested\t in it in the matter of allotment of
\n\t  symbol and  for issuing  directions in  connection
\n\t  therewith,  it   is  plainly\tessential  that\t the
\n\t  Commission should  have  the\tpower  to  settle  a
\n\t  dispute in  case claim  for the  allotment of\t the
\n\t  symbol of  a political  party is made by two rival
\n\t  claimants’. It has been
\n15<\/span>
\n\t  held in  Sadiq Ali (Supra) that the Commission has
\n\t  been\t clothed with  plenary powers  by rule 5 and
\n\t  sub-rules (4)\t and (5)  of rule 10 of the Rules in
\n\t  the matter of allotment of symbols.\n<\/p><\/blockquote>\n
     In Roop  Lal Sathi v. Nachhattar Singh,<\/a> [1983] 1 S.C.R.\n<\/p><\/blockquote>\n
702, the  same\t view is  reiterated. The  Court observed in
\nthis case at page 719 as follows :\n<\/p>\n
\t  “The Symbols Order made by the Election Commission
\n\t  in exercise  of its power under Article 324 of the
\n\t  Constitution read  with rules\t 5  and\t 10  of\t the
\n\t  Conduct of  Elections Rules  and all\tother powers
\n\t  enabling it  in that\tbehalf, are in the nature of
\n\t  general  directions\tissued\t by   the   Election
\n\t  Commission to\t regulate the  mode of\tallotment of
\n\t  symbols to  the contesting  candidates.  It  is  a
\n\t  matter of  common knowledge  that elections in our
\n\t  country are  fought on  the basis  of symbols.  It
\n\t  must but logically follow as a necessary corollary
\n\t  that the  Symbols Order is an order made under the
\n\t  Act. Any  other view\twould be  destructive of the
\n\t  very fabric of our system of holding parliamentary
\n\t  and assembly constituency elections in the country
\n\t  on the basis of adult suffrage.”<\/p><\/blockquote>\n
     Even if  for any  reason, it  is held  that any  of the
\nprovisions contained  in the Symbols Order are not traceable
\nto the\tAct or\tthe Rules, the power of the Commission under
\nArticle 324(1)\tof the\tConstitution  which  is\t plenary  in
\ncharacter can  encompass all such provisions, Article 324 of
\nthe  Constitution  operates  in\t areas\tleft  unoccupied  by
\nlegislation and the words ‘superintendence’, ‘direction’ and
\n‘control’ as  well as  ‘conduct of  all elections’  are\t the
\nbroadest terms\twhich would  include the  power to  make all
\nsuch provisions.  (See Mohinder\t Singh Gill  &\t Anr. v. The
\nChief Election\tCommissioner, New  Delhi  &  Ors.<\/a>  [1978]  2
\nS.C.R. 272,  and A.C.  Jose v.\tSivan Pillai & Ors.<\/a> [1984] 3
\nS.C.R. 74.)
\n     We do  not also  find any\tsubstance in  the contention
\nthat the  Central Government  which had\t been delegated\t the
\npower to  make rules  under section 169 of the Act could not
\nfurther\t delegate   the\t power\t to  made   any\t subordinate
\nlegislation  in\t the  form  of\tthe  Symbols  Order  to\t the
\nCommission, without  itself being  empowered by\t the Act  to
\nsuch further delegation. Any part of the Symbols Order which
\ncannot be traced to rules 5 and 10 of the Rules can
\n16<\/span>
\neasily be  traced in  this case\t to the\t reservoir of  power
\nunder Article  324(1) which empowers the Commission to issue
\nall directions\tnecessary  for\tthe  purpose  of  conducting
\nsmooth, free  and fair elections. Our attention is not drawn
\nby the\tlearned counsel\t for the  petitioner to any specific
\nprovision in  the   Symbols Order  which cannot\t be  brought
\nwithin the scope of either rule 5 or rule 10 of the Rules or
\nArticle 324(1)\tof the\tConstitution and which is hit by the
\nprinciple delegatus  non pottes\t delegare, i.e.\t a  delegate
\ncannot delegate,  the Commission itself in this case being a
\ndonee of  plenary  powers  under  Article  324\t(1)  of\t the
\nConstitution in\t connection with  the conduct  of  elections
\nreferred to  therein subject  of course\t to any\t legislation
\nmade under  Article 327\t and Article 328 of the Constitution
\nread with  Entry 72  in List I or Entry 37 in List II of the
\nSeventh Schedule  to the  Constitution and  the\t rules\tmade
\nthereunder.\tWhile\t   construing\t  the\t  expression
\n‘superintendence’,  ‘direction\t and  control’\t in  Article
\n324(1), one  has to remember that every norm which lays down
\na rule\tof  conduct  cannot  possibly  be  elevated  to\t the
\nposition of  legislation or delegated legislation. There are
\nsome authorities or persons in certain grey areas who may be
\nsources of  rules of conduct and who at the same time cannot
\nbe equated  to authorities  or persons\twho can make law, in
\nthe strict sense in which it is understood in jurisprudence.
\nA direction  may  mean\tan  order  issued  to  a  particular
\nindividual or  a precept  which many  may have to follow. It
\nmay be\ta specific  or a  general order.  One  has  also  to
\nremember that  the source  of power  in\t this  case  is\t the
\nConstitution, the  highest law\tof the\tland, which  is\t the
\nrepository and\tsource of  all legal  powers and  any  power
\ngranted by the Constitution for a specific purpose should be
\nconstrued liberally  so that  the object for which the power
\nis granted  is effectively  achieved. Viewed from this angle
\nit cannot  be said that any of the provisions of the Symbols
\nOrder suffers  from want  of authority\ton the\tpart of\t the
\nCommission, which has issued it.\n<\/p>\n
     We are  not satisfied  with  the  submission  that\t the
\nseveral evils,\tmalpractices etc.  which are  alleged to  be
\nexisting amongst  the political parties today are due to the
\nSymbols\t Order\t which\trecognises   political\tparties\t and
\nprovides for  their registration  etc. m  e reasons  for the
\nexistence of  such evils,  malpractices etc. are to be found
\nelsewhere. The\tsurer remedy  for getting rid of those evils
\nmalpractices etc.  is to  appeal to  the conscience  of\t the
\nnation. We  cannot, however,  set aside the Symbols Order on
\nthe grounds alleged in the petition.\n<\/p>\n
     We dismiss the petition accordingly.\n<\/p>\n
N.V.K.\t\t\t\t\t Petition dismissed.\n17<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Kanhiyalal Omar vs R.K. Trivedi & Ors on 24 September, 1985 Equivalent citations: 1986 AIR 111, 1985 SCR Supl. (3) 1 Author: E Venkataramiah Bench: Venkataramiah, E.S. (J) PETITIONER: KANHIYALAL OMAR Vs. RESPONDENT: R.K. TRIVEDI & ORS. DATE OF JUDGMENT24\/09\/1985 BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) MISRA, R.B. (J) […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-16233","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nKanhiyalal Omar vs R.K. 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