TMI Blog2002 (5) TMI 847X X X X Extracts X X X X X X X X Extracts X X X X ..... for the bundh and that the act was unconstitutional, since it violated the rights and liberty of other citizens guaranteed under the Constitution . In the writ petitions filed before the High Court it was alleged that despite the law having been declared by the Supreme Court that calling of a bundh is unconstitutional, the political parties in the State of Kerala continued to call bundh under the name and cover of hartal. It was prayed that direction be issued to the government of Kerala for taking appropriate measures to give effect to the declaration of law by the Supreme Court in the case of Communist Party of India (supra). The High Court from time to time issued orders and in compliance thereof, the Chief Secretary as well as Director General of Police issued necessary orders, but such directions proved ineffective and the political parties continued to give call for bundh in the name of hartal. It was also alleged that some of the writ petitioners submitted representations to the Election Commission of India for taking necessary proceedings against the registered political parties for de- registration as they had contravened the provisions of the Constitution, but no acti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was also stated by the Election Commission that similar matter arose before it in a petition filed by Shri Arjun Singh and others seeking de-registration of the Bharatya Janata Party as a political party and also freezing of its reserved symbol 'LOTUS' and the Election Commission of India by its order dated 19.2.92 rejected the petition after having found that it does not have power under Section 29A of the Act to de-register a registered political party. It was also brought to the notice of the High Court that the decision of the Election Commission of India was also tested by filing a special leave petition before the Supreme Court, but the same was dismissed on 28.8.92. In that view of the matter, no direction can be issued by the High Court to the Election Commission of India to take any proceeding for de-registration of a registered political party for having violated the constitutional provisions. The High Court was of the view that mere giving a call for a hartal or advocating of it as understood in the strict sense cannot be held to be illegal in the context of the decision in Communist Party of India vs. Bharat Kumar (supra). However, the moment a hartal seeks ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sued by the directions given by the Director General of Police dated 4.2.1999 and set out fully in the earlier part of this judgment. iii. We issue a writ of mandamus to the Election Commission to entertain complaints, if made, of violation of Section 29A(5) of the Representation of the People Act, 1951 by any of the registered political parties or associations, and after a fair hearing, to take a decision thereon for de-registration or cancellation of registration of that party or organisation, if it is warranted by the circumstances of the case. iv. We issue a writ of mandamus directing the Election Commission to consider and dispose of in accordance with law, the Representation Ext. P9 in o.p. 20641 of 1998, after giving all the affected parties an opportunity of being heard. v. We direct the state of Kerala, the Chief Secretary to the Government, the Director General of Police and all other officers of the State to take all necessary steps at all necessary times, to give effect to this judgment. vi. We direct the State, District Collectors, all other officers of the State and Corporations owned or controlled by the State to take immediate and prompt action, for reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent supported the judgment of the High Court and argued that the appeals deserve dismissal. Before we advert to the arguments raised by learned counsel for the parties it is necessary to refer to relevant provisions of the Act and rules framed thereunder and the provisions of the Election Symbols (Reservation and Allotment) Order, 1968 (hereinafter referred to as the 'Symbols Order') framed by the Election Commission in exercise of its power under Article 324 of the Constitution to find out whether the Election Commission has power to de-register a registered political party. By the Representation of the People (Amendment ) Act, 1988 (1 of 1989), Section 29A was inserted in the Act. The Statement of Objects and Reasons appended to the Bill which was introduced in the Parliament and subsequently was converted into an Act, runs as under : At present, there is no statutory definition of political party in the Election Law. The recognition of a political party and the allotment of symbols for each party are presently regulated under the Election Symbols (Reservation and Allotment) Order, 1968. It is felt that the Election Law should define political party and lay d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cretary and all 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 (such as district level, thana or block level), village level, and the like); (g) the political principles on which it is based; (h) the policies, aims and objects it pursues or seeks to pursue; (i) its programs, functions and activities for the purpose of carrying out its political principles, policies, aims and objects; (j) its relationship with the electors and popular support it enjoys, and tangible proof, if any, of such relationship and support; (k) whether it is represented by any member or members in the House of the People or any State Legislative Assembly, if so, the number of such member or members; (l) any other particulars which the association or body make like to mention. (5) The Commission may call for such other particulars as it may deem fit from the association or body. (6) After considering all the particulars as aforesaid in its possession and any other necessary and relevant factors and after giving the represe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that it did not provide for de-registration of a political party registered under the Symbols Order. Nor any such provision was made after the Symbols Order was amended after Section 29A was inserted in the Act. Further, neither the provisions of Section 29A of the Act nor the rules framed thereunder, provide for de-registration or cancellation of registration of a political party. We are, therefore, of the view that neither under the Symbols Order nor under Section 29A of the Act, the Election Commission has been conferred with any express power to de-register a political party registered under Section 29A of the Act on the ground that it has either violated the provisions of the Constitution or any provision of undertaking given before the Election Commission at the time of its registration. The question then arises whether, in the absence of an express power in the Act, the Election Commission is empowered to de-register a registered political party. Learned Attorney General, appearing for the Union of India urged that the Election Commission while exercising its power under Section 29A of the Act, acts quasi-judicially and in absence of any express power of review having bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner of India etc. vs. Union of India Ors. (1995) 4 SCC 611 and State of H.P. vs. Raja Mahendra Pal Ors. (1999) 4 SCC 43 in support of his argument. On the argument of parties, the question that arises for our consideration is, whether the Election Commission, in exercise of its powers under 29A of the Act, acts administratively or quasi-judicially. We shall first advert to the argument raised by learned counsel for the respondent to the effect that in the absence of any lis or contest between the two contending parties before the Election Commission under Section 29A of the Act, the function discharged by it is administrative in nature and not a quasi judicial one. The dictionary meaning of the word quasi is 'not exactly' and it is just in between a judicial and administrative function. It is true, in many cases, the statutory authorities were held to be quasi-judicial authorities and decisions rendered by them were regarded as quasi judicial, where there were contest between the two contending parties and the statutory authority was required to adjudicate upon the rights of the parties. In Cooper vs. Wilson (1937) 2 KB 309, it is stated that the definition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he relevant law required to make an enquiry and hear the parties, such authority is quasi-judicial and decision rendered by it is a quasi-judicial act. In Province of Bombay vs. Kusaldas S Advani Ors. (supra), it was held thus: (i) that if a statute empowers an authority, not being a Court in the ordinary sense, to decide disputes arising out of a claim made by one party under the statute which claim is opposed by another party and to determine the respective rights of the contesting parties who are opposed to each other, there is a lis and prima facie and in the absence of anything in the statute to the contrary it is the duty of the authority to act judicially and the decision of the authority is a quasi-judicial act ; and (ii) that if a statutory authority has power to do any act which will prejudicially affect the subject, then, although there are not two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it, the final determination of the authority will yet be a quasi-judicial act provided the authority is required by the statute to act judicially. In other words, while the presence of two pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the respondent then contended that a quasi- judicial function is an administrative function which the law requires to be exercised in some respects as if it were judicial and in that view of the matter, the function discharged by the Election Commission under Section 29A of the Act is totally administrative in nature. Learned counsel in support of his argument relied upon the following passage from Wade Forsyth's Administrative Law : A quasi-judicial function is an administrative function which the law requires to be exercised in some respects as if it were judicial. A typical example is a minister deciding whether or not to confirm a compulsory purchase order or to allow a planning appeal after a public inquiry. The decision itself is administrative, dictated by policy and expediency. But the procedure is subject to the principles of natural justice, which require the minister to act fairly towards the objections and not (for example) to take fresh evidence without disclosing it to them. A quasi-judicial decision is therefore an administrative decision which is subject to some measure of judicial procedure. We do not find any merit in the submission. At the outset ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of hearing is to be given to the representatives of the political party, we are of the view that the Election Commission under Section 29A is required to act judicially and in that view of the matter the act of the Commission is quasi-judicial. This matter may be examined from another angle. If the directions of the High Court for considering the complaint of the respondent that some of the appellants/political parties are not functioning in conformity with the provisions of Section 29A is to be implemented, the result will be that a detailed enquiry has to be conducted where evidence may have to be adduced to substantiate or deny the allegations against the parties. Thus, a lis would arise. Then there would be two contending parties opposed to each other and the Commission has to decide the matter of de-registration of a political party. In such a situation the proceedings before the Commission would partake the character of quasi-judicial proceeding. De-registration of a political party is a serious matter as it involves divesting of the party of a statutory status of a registered political party. We are, therefore, of the view that unless there is express power of review co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f cases, the case would be where a registered political party is declared unlawful by the Central Government under the provisions of Unlawful Activities (Prevention) Act, 1967 or any other similar law. In such cases, power of the Commission to cancel the registration of a political party is sustainable on the settled legal principle that when a statutory authority is conferred with a power, all incidental and ancillary powers to effectuate such power are within the conferment of the power, although not expressly conferred. But such an ancillary and incidental power of the Commission is not an implied power of revocation. The ancillary and incidental power of the Commission cannot be extended to a case where a registered political party admits that it has faith in the Constitution and principles of socialism, secularism and democracy, but some people repudiate such admission and call for an enquiry by the Election Commission. Reason being, an incidental and ancillary power of a statutory authority is not the substitute of an express power of review. Now, coming to the decisions relied upon by the learned counsel for the respondent, we are of the view that none of the decisions re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to amend, vary or rescind, notification, orders, rules or bye-laws. Where by any central Act or regulation, a power to issue notifications, orders, rules or bye-laws is conferred then that power includes a power exercisable in the like manner and subject to the like sanction, and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued. On perusal of Section 21 of the General Clauses Act, we find that the expression 'order' employed in Section 21 shows that such an order must be in the nature of notification, rules and bye-laws etc. The order which can be modified or rescinded on the application of Section 21 has to be either executive or legislative in nature. But the order which the Commission is required to pass under Section 29A is neither a legislative nor an executive order but is a quasi-judicial order. We have already examined this aspect of the matter in the foregoing paragraph and held that the functions exercisable by the Commission under Section 29A is essentially a quasi-judicial in nature and order passed thereunder is a quasi-judicial order. In that view of the matter, the provisions of Section 21 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eview having conferred on the Election Commission, it has no power to review the order registering a political party for having violated the provisions of the Constitution or for having committed breach of undertaking given to the Election Commission at the time of registration. 3. However, there are exceptions to the principle stated in paragraph 2 above where the Election Commission is not deprived of its power to cancel the registration. The exceptions are these - (a) where a political party has obtained registration by practising fraud or forgery; (b) where a registered political party amends its nomenclature of association, rules and regulations abrogating therein conforming to the provisions of Section 29A(5) of the Act or intimating the Election Commission that it has ceased to have faith and allegiance to the Constitution of India or to the principles of socialism, secularism and democracy or it would not uphold the sovereignty, unity and integrity of India so as to comply the provisions of Section 29A(5) of the Act; and (c) any like ground where no enquiry is called for on the part of the Commission. 4. The provisions of Section 21 of the General Clauses Act ..... X X X X Extracts X X X X X X X X Extracts X X X X
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