SADIQ AJ;,I AND. ANIJ, ETC v. ELECTION COMMISSION OF INDIA ETC & Ors.

The Judgment of the Court was delivered by Khanna, J. Civil Appeal No. 70 of 1971 has been filed by special leave by Shri Sadiq Ali and another against the order of the Election Commission of India (hereinafter referred to as the Commission) under paragraph 15 of the Election Symbols (Reser vation & Allotment) Order, 1968 (hereinafter referred to as the 'Symbols Order'), whereby the Commission held that for the vur pose of allotment of symbol in elections the political party pre sided over by Shri Jagjivan Ram was the Indian National Congress and was entitled to the symbol of ''Two Bullocks with Yoke on'', reserved for the said Congress. to as Indian National Congress (hereinafter referred 'Congress') is a recognised National Party under the Symbols Order. The symbol of the "Two Bullocks with Yoke on" was exclusively reserved for the Congress' for the purpose of elections to the Houses of Parliament and the Legislative Assemblies of the States and Union Territories. The Congress is a voluntary asso ciation; it is neither a statutory body 0rior a registered society under It has framed fts own constitution the Societies Registration Act. and rules. Shri S. Nijalingappa was elected President. of Congress with effect from 1st January, 1968 for a period of two years. Dr. Zakir Hussain, President of India, died in 1969. Split then took place in the Congress Party following differences over E F G H A B c D E F G SADIQ ALI v. ELECTION COMMISSION (Khanna, J.) 323 the choice of Congress nominee for the office of the Presidenrot India. Each group claime\l. to represent the Congress Party. One of the groups elected Shri C. Subramaniam as (he President of the Congress. Subsequently, Shri Jagjivan Ram was elected President by this group in place of Shri Subramaniam. For sake ·Of conve nience this group would hereafter be referred to as Congress 'J'. Shri Nijalingappa continued to be the President of the party represented by the other group which would hereafter be referred to as Congress 'O'. On 21st December, 1969, Shri Subramaniam claiming to ~e the President of the Congress, addressed a letter to the Chief Election Commissioner stating that there had been a change in the office-bearers of the Congress. Enclosed with the letter was the list of office-bearers of Congress 'J' Party and it was stated that they were the office-bearers of the Congress. There was then some exchange of correspondence between the Commission and Congress 'J' Party. On 3rd January, 1970, a communication was addressed to the Election Commission on behalf of the Congress 'J' that Shri Jagjiva.n Ram had been duly eletced as Pre.sident of the Congress and had taken charge on December 25, 1969, during the plenary session held at Bombay. On 8th January, 1970, a letter was sent on behalf of the Com mission to the Secretary of Congress '0'. Enclosed with letter was a copy ·of the letter of Shri Subramaniam dated 21-12-1969. 1 The Congress '0' was asked to make its comments so as to enable the Commission to take decision in the matter after hearing both parties. On 14th January, 1970, a reply was sent on behalf of Congress 'O' by its General Secretary, Shri Sadiq Ali. In that reply it was stated that Shri Subramaniam who had styled himself as the President of the Congress was, in fact, not its Presi dent and that the duly elected President of the Congress was Shri It was also stated that the office-bearers mentioned Nijalingappa. by Shri Subramaniam including Shri Subramaniam llimself, were persons expelled from the Congress and ha.d otherwis\ c~ed to be the members of the Congress. Further, according t<\ the letter of Shri S_adi9 Ali, the Commission should not have entertained any commumca!ion from a group of people who had formed a·· new party and were masq?erading themselves in the name and style T~1s association of persons, added Shri Sadiq of . the Con.gress. Ah, was neither a splmter group nor a rival section of the Congress. The competence of the Commission to enquire into the matter was also questioned. On 15th January, 1970, a coii1munication was addressed bv the Commission to the Secretary of Congress 'J' as well as that <if Congress 'O' stating that, "a dispute appears to have arisen as to 324 SUPREME COURT REPORTS [1972] 2 S.C.R. which of the two groups is the recognised political party known as the .Indian National Congress for the purposes of the Election Symbols (Reservation & Allotment) Order, 1968, and the Com llPssion is requried to take a decision in the; matter in terms of p(U'agraph 15, read with paragraphs 18, of the said Order. The Commission proposes to afford reasonable opportunities to each group to present its case before it so that the Commission may take into account all the available facts and circumstances . for deciding the case". On 22nd January 1970, a statement was filed on behalf of Congress • J' before the Election Commission. According to that statement Shri Nijalingappa was elected President of the Congress with effect from 1st January, 1968 for a period of two years under Article 5 of the old Constitution which came into force on 25th June, 1967. The election of the members of the All India Cong ress Committee was he Id by the delegates. In accordance with the old Constitution,_the members of the Pradesh Congress Ccmmittees were delegates to the Indian National Congress. The term of the members of the All India Congress Committee, - the Pradesh Congress Committees and the Couunittees subordinate thereto and of the office-bearers thereof was to expire on 31st December, 1969, under Article 5 of the Old Constitution. On 28th April, 1969, the Working Committee of the Congress passed a resolution at Faridabad for extending the term of all Committees of the Congress and of the office-bearers including that of the President, Shri Nija- 18ngappa, for a further period of one year. The said resolution, according to Congress 'J' was not legal as there was no emergency or special situation warranting the extension of the normal term of two years. The resolution was also stated to be invalid as it was not submitted under the old Constitution to the All India Congress Committee for ratification as early as possible. Under the new Constitution which came into force on 11th July, 1969, the above resolution was required, according to the statement on behalf of Congress 'J', to be submitted to the All India Congress Committee for ratification in any case within 6 months. The resolution was not ratified at the meeting of the All India Congress Committee held in Bangalore in July, 1969. The period of 6 months prescribed for the ratification of the resolution expired on 28th October, 1969 and ·as the resolution was not ratified, the same according to the statement became void. Further, as the term of Shri Niialingappa as President was going to expire on 3 lst December, 1969, it became necessary for the All India Congress Committee to make arrangements for the election of the President before the said date. A requisition, it is stated, signed by more than 400 members of the All India Congress Committee, out of A B c D E F G H SADIQ ALI v. ELECTION COMMISSION (Khanna, /.). 325 A B c D E F G H a total of 707, was sent for calling a meeting of the All India Congress Committee. Shri Nijalingappa then called a meeting Gf the Congress Working Committee on 1st November, 1969. Before that, on the night.of 31st October, 1969, Shri Nijalingappa dec lared that Shri Subramaniam, a member of the Congress Working Committee had ceased to be a member of that Committee. Sbri Nijalingappa also on that night removed Shri Fakhruddin Ali Ahmed from the membership of the Working Committee. The above act of Shri Nijalingappa according to the statement, was mala fide, illegal and against the principles of natural justice. According further to the statement submitted on behalf of Congress 'J', the requisition sent by more than 400 members of All India Congress Committee was received by Shri Nijalingappa on the night of 31st October, 1969 and was turned down by the Working Committee. 17 members of the All India Congress Committee who were also signatories to the above-mentioned requisition, issued a notice on 5th November, 1969 calling a meet ing of the All India Congress Committee to consider the subjects mentioned in the requisition. Copies of the said notice were sent to Shri Nijalingappa and a public statement was issued by Shri Subramaniam that Shri Nijalingappa would be presiding over the meeting if he attended the same. The requisitioned meeting of the All India Congress Committee was held at Delhi on 22nd and 23rd November, 1969 and was, according to the statement, attend· ed by 435 members of the All Ipdia Congress Committee out of a total of 707. Shri Nijalingappa and his followers did not attend the requisitioned meeting. Six members having voting rights also communicated their support in writing for the i:equisitioned meet ing. One of the resolutions passed ·at the requisitioned meeting related to the removal of Shri Nijalingappa from the office of President. By another resolution Shri Subramaniam was appoint ed President and he was asked to function as such until a: new President was elected by the delegates. In accordance with the resolution passed in the above requisitioned meeting, a plenary session of the Congress was held in Bombay on 28th and 29th December, 1969. Shri Jagjivan Ram was ele_c:ted President before the said plenary session. An overwhelming majority of delegates are stated to have attended the plenary session. held at Bombay under the Presidentship of Shri Jagjivan Ram. The resolutions passed in the requisitioned meeting of 22nd and 23rd November, 1969 were ratified at the plenary session in Bombay. 423 out of 707 members of the All India Congress Committee attended the Bombay Session. · According further to the statement submitted on behalf of Congress 'J', 229 out of 284 Congress Members of Lok Sabha and 106 out of 147 Congress Members of Rajya Sabha declared their 326 SUPREME COURT REPORTS [1972] 2 S.C.R. allegiance to the Congress Government Jed by Shrimati Indira Gandhi as Prime Minister and to the Congress led by Shri Jagjivan Ram as President. As against that, Congress '0' claimed the a!legilinc~ of 65 Members of Lok Sabha and 40 Members of Rajya Sabha. The Congress Legislature Parties. of Maharashtra, Madhya Pradesh, · Andhra Pradesh, Rajasthan, Assam, Haryana, Jammu & Kashmir, Himachal Pradesh and Tripura declared their support to the Congress Governments in those States and ·Congress 'J'. !fhe Speaker of Lok Sabha and the Chairman of Rajya Sabha recognised Congress 'J' in Parliament as the party ·which was in power and which ran the Central Government. The statement added that the Election Commission was the only autho rity to decide dispute about the allotment of symbol. Prayer was accordingly made that the symbol reserved for Congress for the purposes of general elections and bye-elections should be allotted to candidates who would be nominated and declared their allegi ance to Congress' 'J'. A counter-statement was submitted on behalf of Congress 'O' by its General Secretary, Shri Sadiq Ali on 16th February, 1970. The various allegations made in the st; ttement submitted on behalf <>f Congress 'I' were controverted and it was stated that the Elec tion Commission had no jurisdiction to hold the enquiry. Accord ing to the counter-statement, the Congress Parliamentary Board in its meeting held in July 1969 decided by majority to put up Shri N. Sanjiva Reddy as candidate for the office of the"President -Of lndi;i. The decision of the majority upset Smt. Indira Gandhi. Smt. Indira Gandhi, Shri Jagjivan Ram and Shri Fakhruddin Ali Ahmed, at the initial stage8 'Ot the Presidential election, supported the candidature of Shri Sanjiva Reddy but subsequently they started a campaign for the defeat of the Congress candidate al!d for the ~uccess of Shri V. V. Giri. The explanaiions of Shrin_lllti Indira Gandhi, Shri Jagjivan Ram and Shri Fakhruddin Ali Ahmed were -called by the Congress President on 18th August, 1969 .. On 31st October 1969, Shri Nija!ingappa wrote a letter to Shri Subrama llliam that he had ceased to be a member of the Working Com mittee. The reason for that was that Shri Subramaniam who was a member of _the All India Congress Committee by virtue of being the President of the Tamil Nadu Congress Coinmittee, had resigned the Presidentship thereof and had thus ceased to be a member of the All India Congress Committee. Shri Fakhruddin Ali Ahmed was removed from the membership of the Working Committee because according to the counter-statement, he had lost the confid ence of the President. The requisition sent for calling a meeting: of the All India Congress Committee was rejected in a meeting of the Congress Working Committee on 1st November, 1969. W11e11 the members of the Congress Working Committee learnt A B c D E, F G H A , B c D E F G H SADIQ ALI v. ELECTION COMMISSION (Khanna, !.) 321 from newspaper reports that some members of the Working Com •. mittee had taken a decision to convene a meeting ol the All India. Congress Committee on 22nd and 23rd November, 1969, the Working Committeti to· the view result in indiscipline. Shri Nijalingappa then addressed a letter to Shrimati Indira Gandhi charging her with indiscipline and. asking her to explain her position. it was bound As regards the validity of the resolution postponing the elec-· tions, the case set up in the counter-statement is that the said resolution was valid ir. law and its validity had not been questioned by one one. Regarding the notice sent by 17 members of the All India Congress Committee for convening the requisitioned meeting of the All lndia Congrtss Committee, the case of the Congress '0' is that the said notice was invalid and the persons who attended the meeting on 22nd and 23rd November, 1969 did so in their personal capacity. The decisions taken in that meeting are stated to have no effect on the Working Committee. Smt. Indira Gandhi, who presided over the meeting, according to the counter-statemept, had been expelled from the primary membership. of Congress on 12th November, 1969. The resolution passed in the meeting held on 22nd and 23rd November, 1969 being void ab initio could not be subsequently ratified by any authority. As regards the Members of Parliame, rit and State Legislatures who declared their allegiance to Congress 'J', the stand taken in the countcr statement is that their position was that of defector. A rejoinder and some c;ither applications were thereafter filed~ 1he Commission U1l 7th March, 1970 framed and settled the following four points for discussion : -

#1. Has the Election Commission jurisdiction within the mea!ling of paragraph 15 of the Election Sym bol (Reservation & Allotment) Order 1968, to decide whether any one or none of the rival sec tions or groups of the Indian National Congress .. a national party, is the said Lndian National Congress?

#2. Has the Election Commission, for the purpose of undertaking the inquiry to come to a decision as aforesaid, been satisfied on information possession sections or that there are two rival groups of the said Indian National Congress each· claiming to be that Congress ?

#3. What is the nature of an election symbol under the Election Symbols (Reservation and Allotment) 328 SUPREME COURT REPORTS (1972] 2 S.C.R. Order, 1968, and whether an election symbol, whether reserved or free, is property ?

#4. Whether, on the facts and circumstances available to the Election Commission, any of the alleged rival sections of the said Indian National Congress is that Congress for the purposes of the Election Symbols (Reservation and Allotment) Order 1968; if so, which 1s that rival section, or, whether on the facts and Circumstances referred to above, none of the rival sections of the said Indian National Congress is that Congress ?" In an order covering 43 7 pages which, consideri, rtg the nature of controversy, appears to be abnormally prolix, the Commission held on the first point that R had jurisdiction to decide the matter. The contention that the Working Committee or the President of Congress '0' were the only authorities to give a binding decision .in the dispute was repelled in the following words : - "If, therefore, there are facts in the present case which show a total and entire cleavage in the Indian National Congress from top to bottom, and that the rivalry be tween the two l(roups has almost assumed the form of enmity, then relying upon a few provisions of Constitution and the rules of the party it cannot, in my view, be validly contended that the Election Commission has no jurisdiction because the Working Committee or the President of one group whose existence and authority ar~ totally repudiated by the other group, are the only authorities to give final ·and binding decisions in the present dispute. The very existence of such a conllict is enough to create jurisd~ction to find out and decide whether the conflict is genuine and whether the claims and allegations of the applicants are valid or the conten tions and objections of the opposite parties. But that question will have to be determined on the facts and circumstances established in the case". On point 2, the Commission observed that it was satisfied on the information available in its possession that there were two rival sections of the Indian National Congress, each claiming to be that Congress. Regarding point 3, the finding of the Commission was that the Election Symbol was not property. As regards point No. 4, the Commission observe that the majority test was a valuable and relevant test in a democratic organisation. The test based upon the provisions of the Constitution of the Congress canvassed on behalf of the Congress '0' was held to be hardly of any assist ance in view of the removals from membership and expulsions A B c D E F G H SADIQ ALI v. ELECTION COMMISSION (Khanna, J.) 329 A B c D E F G H the Constitution of the Congress. from the Committees of the Congress of the members belonging to one group by those belonging to the opposite group. Reference was also made in this context to the rejection of the requisition sent by some members of Congress 'J' for convening a meeting of the All India Congress Committee. The Commission then con sidered another test, namely, that based upon the aims and objects as incorporated It was observed that none of the two groups had challenged in any manner or openly repudiated those aims and objects. The test based upon the aims and object was consequently held to be ineffective and neutral. Applying the test of majority, the Commission observed that Congress 'J' had the majority out of the total number of members returned on Congress tickets to the Houses of Parliament as well as the majority out of the sum total of the members of all the Legislatures returned on Congress tickets although in some States, like Gujarat and Mysore, Congress '0' had majority in the Legislature. As regards the organisl_ltional wing of the Congress, the Commission came to the. conclusion that Congress 'J' enjoyed majority in the All India Congress Committee as well as amongst the delegates of the undivided Congress. Decision was accordingly given that for the purpose of paragraph 15 of the Symbol Order, Congress 'J' was the Congress for which the symbol "Two bullocks with Yoke On had been reserved. Before dealing with the contentions advanced in appeal, it may be appasite to refer to the relevant provisions. Art. 324 of the Constitution provides inter alia that the superintendence, dllection and control of the preparation of electoral rolls for and the con duct of all elections to Parliament and Legislative Assemblies of the States and all elections to the offices of President and Vioe President held under the Constitution shall be vested in the Com· mission. According to section 169 of the Representation of the People Act, 1951 (Act 43 of 1951), the Central Government may, after consulting the Election Commission by notification in the oflici~l gazette, make rules for carrying out the purposes of the 'Y1thout prejudice to the generality oi the foregoing power, Act. s~b-section (2) en~erate_s some of the matters for which provi s10n may be made Ill the rules. Sub-section ( 3) requires that the rules framed should be laid before each House of Parliament. Conduct of Elections Rules, 1961 were thereafter framed by the C~n~al Goverll!11ent. Rule S of those Rules requires the Com m1ss10n. to specify ~he symbols that may be chosen by candidates at. e~echons ID ~arhamentary and Assembly elections and the res tnctt?!lS to which that ch01ce shall be subject. Rule 10 makes prov1S1on f?r allotment of symbols to the contesting candidates by the Returmng Officer subject to general or special directions issued by the Commission. · 330 SUPREME COURT REPORTS [197Z] 2 S.C.R. The Symbols Order has been issued by the Commission in exer cise of. the powers conferred by Article 324 9f the Constitution read. with Rules 5 and 10 of the Conduct of Election Rules. Para graph 2 of the Symbols Order contains the vanous definitions. According to cla!Jle (h) of that paragraph, 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 the Commission a political party deemed to be registered with under the proviso to sub-paragraph 2 of that paragraph. Para l!raph 3 deals with registration with the Commission of associations and bodies as political parties for the purpose of the Order. According tq that paragraph, any association or body of individuals, citizens of India calling itself a politcal party and intending to avail itself of the provisions of the Order shall make an application to the Commission for its registration as a political party for the purpose of that Order. S.ub-paragraph (2) provides the period within which an application has to be made. Exemption from making the application in certain contigency with which we. are not concerned is also granted. Sub-paragraphs 3 & 4 specify the formalities and the particulars !"equired for the application. The particulars include the names of the President, Secretary and other office-bearers of the political party, the numerical strength of· its members as well as the political principles on which it was based and the policies, aims and objects it pursued or sought to pursue. Power is given to the Commission under sub-paragraph 5 to call for further particulars. The Commissio,n thereafter decides whe ther to register the association or body as political party or not. The decision of the Commission in this respect has been made final by sub-paragraph 7. Provision is furthter made by sub paragraph 8 that after the association or body has been registered as a political party, any change i,n its name,. head-office, oflice bearers, address and political principles, policies_, aims and objects and any change in any other material matter, shall be communi cated to the Commission without delay. Paragraph 4 provide> for allotment of symbols. Paragraph 5 deals with the classifica tion of symbols. According to this paragraph, a reserved symbol is a symbol reserved for a political party for exclusive use by that party. A symbol other than the reserved symbol has been des cribed by the said paragraph to be a free symbol. Political parties have been classified as recognised political parties of un-recognised political parties by _paragraph 6. The recognised political parties have been divided into t.,vo categories. If a political party js treated as a recognised political party in four or more states jn accordance.with paragraph 6, it shalJ have the status of a national party throughout the ·whole of In~ia. If .~n the cont; ary a poli ti'cal party is treated as a recogmsed po]Itlcal party m Jess than four states, it shall enjoy the status of a state party in the state A B c D E F G H A B c D E F G H SADIQ ALI v. ELECTION COMMISSION (Khanna, J.) 331 or siates in which it is a recognised political party. We need not dilate upon this aspect because I.it is common case of the part!es tlrat the Congress is a national party. Paragraph S deals with choice of symbols by candidates of national and state parties and allotment thereof. Paragraphs 9, 10, 11 & 12 deal with certain restrictions on the allotment of symbols, concessions to certain candidates as well as the c)mice oJ' symbols by some categories ~f candidates with which we are not concerned. Paragraph 13 speci fies' as to when a candidate shall be deemed to be set up as a candidate by a political party and reads as under:- " 13. When a candidate shall be deemed to be set up by a political party- For the purposes of this Order a ca, ndidate shalJ be deemed to be set up by a political party if, and only if·-- (a) the candidate has made a declaration to that effect in his nomination paper; ( h) a notice in writing to that effect has not later than 3 p.m. on the last day of withdrawal of candidatures, been delivered the returning officer of the constituenc:z:; and ( c) the said notice is signed by the President, the secretary or any other office-bearer of the party and the president, secretary or such other office bearer is authorised by the party to send such notice and the name and specimen signature of the president, the secretary or such other office- bearer are communicated in advance returning officer of the constituency and to the Chief Electoral Officer o( the State". Par~graph 14 gives power to the Commission to issue certain . mstruct10ns to ~n-recognised poli!ical parties. Paragraph 15 with which we are directly concerned m this case reads as under : - "15. P~wer of ,<;ommission in relation to splinter groups or nval sections oi a recognised political party- . When .the Commission is satisfied on information in Jts pos~ess1on t.h.at there are rival sections or groups of a recog, msed polJtic.al _Party each of whom claims to be that party, the Comm1ss10n may, after taking into account all the ~vailable facts and. circumstances of the case and hearing such represe~tauves of the sections of groups and o.ther per~ons as desire to be heard, decide that ooe such nval section or group or none of such rival sections or 8-L500S:ip. Cl/72 332 SUPREME COURT REPORTS [1972] 2 5.C.R. groups is that recognised political party and the decision of the Commission shall be binding on all such rival sections or groups". The powers of the Commission in .case of amalgamation of two or more political parties is contained in paragraph 16 and it reads : "16. Power of Commission in case of amalgama tion of two 'or more political parties- ( 1) when two or more political parties, one or some or all of whom is a recognised political party or are recognised political parties, join together to form a new political party, the Commission· may, after taking into account all the facts and circumstances of the case, hear ing such representatives of the newly formed party and other persons as desire to be heard and having regard to the provisions of this Order. decide- (a) whether such newly formed party should be a ' National party; and (b) the symbol to be allotted to it· ( 2) The decision of the Conunission under sub paragraph ( 1 ) shall be binding on the newly formed political party and all the component units thereof" A notification containing the list of political parties and symbols has to be issued by the Commission under paragraph 17 while paragraph 18 'gives certain additional powers to the Commission for issuing instructions and directions. The requisite notification was accordingly issued by the Commission under paragraph 17. According to that notification. lndian National Congress was a National party and its 1:esc1Tcd symbol was "Two Bullocks with Yoke On". Perusal of the different paragraphs of the Symbols Order makes it manifest that they provide, as is made clear by its preamble, for specification, reservation, choice and allotment of symbols at elec tions in parliamentary and assembly constituencies as well as for the recognition of political parties· in relation thereto and for matters con, nected therewith. One such matter is the decision of a dispute when two rival Jgcticins or groups of a recognised political party claim to be that party for the purpose of the Symbols Order. Paragraph 15 provides for the machinery as well as the manner of resolving such a dispute. Before discussing the scope and ambit of paragraph 15, it n1ay be pertinent to find out th~ reasons which led to the introduction A B c D E F G II A B C D E F G H SADIQ ALI V. ELECTION COMMISSION (Khanna, J.) 333 It is well known tha~ overwhelming majority of the of symbols. electorate are illiterate. It was realised that in view of the handi cap o£ illiteracy, it might not be possible for the illiterate voters to cast their votes in favour of the candidate of their choice unless there was some pictorial representation on the ballot paper itself whereby such voters might identify the candidate of their choice. Symbols were accordingly brought into use. Symbols or emblems In some are not a peculiar feature of the election law of India. countries, details in the form of letters of alphabet or numbers are added 2gainst the name oi each candidate while in others, resort is made to symbols or emblems. The object is to ensure that the process of election is as genuine and fair as possible and that no · elector should suffer from any handicap in casting his vote in favour of a candidate of his choice. Although the purpose which accounts for the origin of symbols was of a limited character, the symbol of each political party with the passage of time acquired a great value because the bulk of the electorate associated t~e political party at the time of elections with its symbol. It 1s, therefore, no wonder that in case of a split in a political party, there is ·a keen contest by each rival group to get the symbol of that party. Let us now go back to paragraph 15. The occasion for mak ing an order under this paragraph arises when the Commission is satislied on information in its possession that there are rival sections or groups of a recognised political party each of whom claims to be that party. The Commission in such -an event decides the matter after 1aking into account all available facts and circumstances of the case and hearing such representatives of the sections or group; The Commission may and other persons as desire to be heard. decide that one such ri\'al section or group is recognised political party or that none of such rival sections or groups is that p_arty. T!Je aforesaid decision has been made binding on all the nval .sections or groups who claim to be the political party in question. In the present case. we find that a claim was made on behalf of Congress 'f that its office-bearers were the office-bearers of the Congr~ss. ":he. said claim was repudiated by Congress 'O' and accordmg to 1t, 1t was the genume Congress Party and its President was . Shri Nijlingappa. According further to the stand taken on beh.alf of Congress .'0'. the members of Congress 'J' were masque rad111g. t~ems~lves m. the name and style of the Congress. The Comn11ss1on m the circumstances, had to decide the matter under ~aragraph 15 and we find nothing objectionable in the communica- 11on dated January 15. 1970 sent to the two rival parties oh its b~half wherein it was <tJted that "a dispute appears to have arisen 334 SUPREME COURT REPORTS (1972] 2 S.C.R. as to which of the two groups is the recognised political party known as the Indian National Congress for the purposes of the Symbols Order." Controversy between the parties has ranged on the question whether the Commission has taken into account all 'the available facts and circumstances of the case'. The Commission in this con- text considered the various criteria for determining which of the two groups, Congress 'J' or Congress 'O' was the Congress and came to the conclusion that the criteria other than that of the numerical strength or m_&ority could not· provide a satisfactory solution. So far as the test of maiority is concerned, the Commis- sion found that the relative strength of the two groups in the two c Houses of Parliament and the State Legislature was as under : - B. Name of the House. Position as on 22-1-1970 Position in the later half of 1970 Remarks .. Congress Congress Congress Congress 'J' 'O' 'J' 'O' 2 3 4 5 6 I-Parlian1e11t

#1. Lok Sabha 2. Rajya Sabha Il-Legislati1'e Assen1h/ies A. Slatts I. Andhra Pradesh 2. Assan1 3. Bihar 4. Gujarat 5. Haryana .

#6. Jammu & Kashn1ir 7. Kerala . 8. Madhya Pradesh 9. Maharashtra . 10. Mysore . 11. Nagaland J:!. Orissa . . 13. Punjab . 14. Rajasthan 15. Tamil Nadu 16. Uttar Pradesh 221 103 64 42 31 96 81 5 (no separate group strength of 48 Congress rnen1bers) !he 4 177 204 23 28 111 120 5 1:!6 102 228 85 175 75 86 8 53 61 33 192 191 37 13 127 Jn~ National No party as Congress. 8 28 113 8 150 D 65 40 E 14 28 108 6 4 3 41 8'4 t G H SADIQ ALI v. ELECTION COMMISSION (Khanna, J.) 335

#17. West Bengal 2 3 38 4 13 s 6 Assembly dis•olved 30-7·70 B. Union Territories J. Goa, Daman & Diu

#2. Himachal Pradesh 3. Manipur 4. Pondicherry 5. Tripura . III.-Legislatire Councils 1. Andhra Pradesh 2. Bihar 3. Maharashtra • 4. Mysore. 5. Tamil Nadu . 6. Uuar Pradesh 42 43 Dissolved with effect from 16-10-69. 4 7 27 . 6 27 SI 6 37 46 33 52 33 46 7 2 33 3 6 22 3 43 17 29 As regards the delegates who were entitled to vote at the earlier Faridabad Session oJ' Congress, the Commission found that out of the total number of 4,690 delegates, 2,870 pledged their sup port to Congress ·r. Regarding the members of the All India Congress Commitee (hereinafter referred to as the AICC), the Commission held that the total number of AICC members who attended the Bombay meeting of the Congress 'J'. AICC was 423 out of 707 elected members and 56 out of 95 nominated and coopted members. The Bombay Session, it was further held, resolutions importance in view of the fact that all the assumed passed at the requisitioned meeting of Congress 'J' at Delhi were ratified unanimously at the Bombay session. For determining as to who were members of AICC and delegates, the Commission accepted those persons as members of- AICC a:1d delegates who held that position in the earlier session of the Congress at Farida ln viP.w of the removals and ~xpulsions bad before the split. which followed i11 the wake of S.i)lit.in the Congress, the Commis sion, in our opinion, adopted proper apprPach for determining as to who should be taken to be members of AICC or the delegates, more so, when in the opinipn of the Commission, the validity of those· removals and expulsions was open to question. The figures found by the Commission of the members of the two Houses -0f Parliament and of the State Legislatures as well as those o.f AICC members and delegates who supported Congress 'J' have not been shown to us to be incorrect. In view of those. figures, it can hardly be ~isputed that substantial majority of the members of the Congress in both its legislative wing as well as B C D E F G H 336 SUPREME COURT REPORTS [!972] 2 S.C.R. the organisational wing supported the Congress 'f. As Congress 'J' is a democratic organisation, the test of majority and numerical strength, in our opinion, was a very valuabl,: and relevant test. Whatever might be the position in another system of government or organisation, numbers have a relevance and importance in a democratic system of government or political set up and it is neither possible nor permissible to lose sight of them. . Indeed it is the view of the majority which in the final analysis proves decisive in a democratic set up. It may be mentioned that according to paragraph 6 of the Symbols Order, one of the factors which may be taken into account in treating a political party as a recognised political party is the number of seats secured by that party in the House ot People or the State Legislative Assembly or the number of votes polled by If the number of the contesting candidates set up by such party. seats secured by a political party or the number of votes cast in favour or the candidates of a political party can be a relevant consideration for the recognition of a political party, one is at a loss to understand as to how the number of seats in the Parliament and State Legislatures held by the supporters of a group of the political party can be considered to be relevant. We can consequently discover no error in the approach of the Commission in applying the rule cf majority and numerical strength for deter mining as to which of the two groups, Congress 'J' and Congress '0' was the Congress party for the purpose of paragraph 15 of Symbols Order. A B c D E It is no doubt true that the mass of Congress members are its primary members. There were obvious difficulties in ascertaining who were the primary members because there would in that event have been allegations of fictitious and bogus members and it would F have been difficult for the Commission to go into those allegations and find the truth within a short span of time. The Commissioo in deciding that matter under paragraph 15 has to act with a certain measure of promptitude and it has to see that the inquiry does not get bogged down i,n a quagmire. This apart, there was practical difficulty in ascertaining the wishes of those members. G The Commission for this purpose could obviously be not expected to take referendum in all the 1owns and villages in the country in which there were the primary members cf the Congress. It can. in our opinion, be legitimately considered that the members of AICC and the delegates reflected by a,nd large the views of the primary members. H It is urged by Mr. Shanti Bhushan on behalf of the appellants that 11 members or the Congress Working Committee were with • SADIQ ALI v. ELECTION COMMISSION (Khanna, J.) 337 A B c D E F G H Congress 'O' while 10 members were with. Congress 'J'. The matter, according to the learned counsel, should have been decided in accordance with the majority in the Working Committee. So far as this aspect is concerned, we find that as it is not always conve; nlent to convene general session of the Congress or a meeting of the AICC, the Congress has its Working · Committee which represents the Congress for administrative purposes and for taking decision on political and other matters. Some of the members of the Working Committee are elected by the AlCC while others are ,nominated by the President. The Working Committee has not been shown to possess any power of vetoing the decision of the AICC. On the contrary, major decisions taken by the Working Committee at the time of AICC meetings are placed before the AICC for ratification. In view of the fact that the wishes of the majority of the members of AICC as well as the delegates have been ascertained, we find it difficult to accede to the contention that the majority enjoyed by Congress 'O' against Congress 'J' in the Worki; ng Committee should carry so much weight as to out weigh the majority support obtained by Congress 'J' among dele In any case, we find that as gates and the members of AICC. again>-t the slender majority enjoyed by Congress 'J' in the Work ing Conunittee, Congress 'J' had substantial majority among the members of AlCC and the delegates as well as the Congress mem bers of two Houses of Parliament as also the sum total cf members of the State Legislatures. The observations of late Pandit Jawahar!al Nehru in the course of his speech on Kamraj Plan in the meeting of AICC held in August 1963, to which a reference has be~n made on behalf of 'the appellants, is hardly of any assistance to the appellants for the purpose of this case. Pandit Nehru in that speech emphasized the importance of the organisational wing of the Congress and said that if the AICC or the Working Committee did not desire that h.e should remain in office, he was not going to have general elec tions 1o secure the support of the people against the said Com mittees. It is obvious that the stress in that speech was on the i:eed of . the Prime Minister securing the support of the organisa !JOnal wmg. The speech did not deal with a contingency as arises in the present case of resolving a dispute wherein one group has the s~pp?rt of t~e majority of the legislative wing as well as the orgamsa.uonal wmg other than the Working Committee. The pret<ent is. not a case wherein a conflict has arisen because of one gro~1r having majority in the organisational wing and the other havmg a majority in the legislative wing of the party. Argument has been advanced on behalf of the appellants that . t~I(_ maner should have been. de~ided in accordance with the provi- 9!0ns 0f the Congress const1tut10n. The Commission in this con- • 338 SUPREME COURT REPORTS (1972) 2 S.C.R. text has found that there were removals and expulsions of the supporters of Congress 'J' from the various Committees of the Congress by the members of Congress '0' and the President, Shri Nijalingappa. The Commission has come. to the conclusio,n that the validity of the action of Shri Nijalingappa and other members of Congress '0' in removing :ind expelling members of the .other group was doubtful and open to question. The Commission has also questioned the propriety of the action of the Working Com mittee in rejecting the requisition sent by the members of AICC for convening meeting of the AICC. It is, \n our opinion, not necessary for this Court to express any opinion for the purpose of this appeal about the validity_ of the above mentioned removals and expulsions ,nor is it necessary to express any view about the propriety of the rejection of the requisition. Likewise it is not essential to say anything as to whether one or both the groups were in the wrong and if so, to what ext•ent in the controversy relating to the split in the Congress. All that this Court is con cerned with is whether the test of majority or numerical strength which has been taken i.nto account by the Commission is in the circumstances of the case a relevant and germane test. On that point, we have no hesitation in holding that in the context of the facts and circumstances of the case, the test c.f majority and nume rical strength was not only germa, ne and relevant but a very valuable test. A B c D E Reference has been made on behalf of the appellants to para graph 13 of the Symbols Order which has been reproduced earlier in this judgment. The said paragraph mentions as to whe,n a candidate shall be deemed to be set up by a political party. The three requisites for that are : that the candidate has made a decla ration to that effect in his nomination paper; that a not.ce is deli vered to the Returning Officer before the specified time and the F said notice is signed by such office-bearer of the party who h1S. It also requires that the name been authorised to send the notice. and specimen signature of such offic~-btarer should be communi cated in advance to the Retur.ning Officer and the Chief Electoral Officer of the State. Reading o.f paragraph 13 makes it plain that it . deals with the case of individual candidates and provides a safeguard against the contingency of a claim being made by two rival candidates of being the nominee of the same party. Para graph 13 has nothing to do with the question of resolvinll; a dispute wherein two rival sections or groups of a recognised political party claim to be that party. For the resolving of such a dispute, we have only to look to paragraph 15. G Question during the course of hearing of the appeal has also arisen whether the persons who were heard during the cour.se of proceedings under paragraph 15 become parties to those proceed· H SADIQ ALI v. ELECTION COMMISSION (Khanna, J.) 339 A B c D E F G H ings so ;µ to be entitled to be heard in appeal. In this connection, we are o.f the opinion that although the Commission may hear during the course of proceedings under paragraph 15 'such repre sentatives of the sections or .groups or other persons as desire to be heard', the parties to the dispute necessarily remain rival sections or groups of the recognised political party. Other persons as desire to be heard and who are heard by the Commission do not become parties to the dispute so as to have a right of addressing this Court in appeal. We have consequently not allowed arguments to be addressed in appeal on their behalf., Question then arisen as to what is the binding nature of the decision given by the Commission under paragraph 15. In this respect, it has to be boI11e in mind that the Commission only decides the question as to whether any of the rival sections or groups of a recognised political party, each of whom claims to be that party, is that party. The claim made in this respect is only for the purpose of symbols in connection with the elections to the Parliament and State Legisfatures and the decision of the Com mission pertains to this limited matter. The Commission while deciding the matter under paragraph 15 does not decide dispute about property. The proper forum for adjudication of disputes about property are the civil courts. The decision of the Commis sion under paragraph 15 constitutes a direction to the Returning Officer for the purpose of Rule 10 of the Conduct of Elections Rules, 1961. The said direction shall be binding upon the Return ing Officers in accordance with sub-rules ( 4) and ( 5) of the above mentioned Rule. Whether the decisian of the Commission can be called into question in appropriate proceedings in a Court of law is a matter which does not arise in this case' and we need not express any opinion thereon. Contention has also been advanced on behalf of the appellants that Congress 'O' although adhering to Congress aims and objects is deprived of the use of symbol of "Two Bullocks with Yoke on" which had b~en allotted to .the Congress for the purpose of elections. The answer to 'this contention is that as a result of differences and dissensions, a political party may be sp)it into two or more groups It is only one of the rival sections but the symbol cannot be split. or groups, as is held to be that political party under paragraph 15, which would be entitled to the use of the symbol in the elections while the other section or group would have to do without that It is not permissible in a controversy like the present symbol. to dissect the ~mbol arid give one out of two bu!locks represented in the symbol of the Congress to one group and the other bullock to .the other group. The symbol is not property to be divided be.tween co-owners. The allotment of a symbol to the candidates set up by a p;ilitical party is a legal right and in case of split, the .. .· 340 SUPREME COURT REPORTS [1972] 2 S.C.R. Commission has been authorised to determine which of the rival groups or sections· is the party which was entitled to the symbol. T)le Comfi1ission in resolving this dispute does not decide as to which group represents the party but which group is that party. U it were a question of representation, even a small group accord ing to the Constitution of the organisation ;may be entitled to represent the party. Where, however, the question arises as t•J which of the rival groups is the party, the question assumes a different complexion and the numerical strength of each group becomes an important and relevant factor. It cannot be gainsaid that in deciding which group is the party, the c;:ommission has to decide as to which group substantially constitutes the party. Attempt has also been made during the course of arguments to show that the supporters of Congress 'J' were defaulters in pay ment of subscription. No such case was admittedly set up before the Commission. We have consequently not aJlowed the appel lants to rais~ this matter which hinges upon facts jn appeal. Reference has been made on b~half cf the appellants to a House of Lords decision in the case of General Assemb[y·ot Free Church of Scar/and and other~-v. Lord Overtoun and others('). The said case related to the denomination of Christians which called itself It the Free Church of Scotland and had been founded in 1843. consisted of ministers and laity who seceded from the Established Church of Scotland, but who professed to carry with .them the doctrine and system of the Established Church, only freeing them selves by secession from what they regarded as interference by tbe State in matters spiritual. For many years, efforts had been made to bring about a union between the Free Church and the United Presbyterian Church, also seceders from the Established Church. In 1900 Acts of Assembly were passed by the majority of the Free Church and unanimously by the United Presbyterian Church for union under the name of the United Free. Church and the Free Church property was conveyed to the new trustees for behoof of the new Church. The United Presbyterian Church was opposed to the Establishment principle, and did not maintain the West minster Confession of Faith in its entirety. The respondents contended that the Free Church had full power to change its doc trines so long as the identity was preserved. The appelants, a very 'mall minority of the Free Church, objected to the union main taining that the Free Church had no power to change its original doctrines. or to unite with a body which did not.. confess those doctrines. The appellants accordingly complained of breach of trust. It was held that the Establishment principle and the West minster Confession were distinctive tenets of the Free Church and 11) [1904] A.C. 515. A B c D E F G H - SADIQ ALI v. ELECTION COMMISSION (Khanna, J.) 341 A B c D E F the Free Church had no power, where property was concer';led, ta alter the doctrine of the Church; that there was no true umon, as. the United Free Church had not preserved its identity with the Free Church not havil}g the same distinctive tenets and that the appel lants were entitled to hold for behoof of the Free Church the pro perty held by the Free Church before the union in 1900. The It above case can hardly be of any assistance to the appellants. is clearly distinguishable on two grounds. The first ground relates to change of tenets on the part of a religious group. As against that, the present case relates to a political party. whc; rein none of the ri\'al groups professes to renounce the aims and objects of the party. The other ground is that the dispute in the cited case related to propert:: while that in the present case relates to a legal right and not to property. The case of Samyukto Socialist Party v. Election Commission of India & Anr.(') has also no bearing on the present case. Thee cited case related to merger of two political parties into one as a result of which the election symbol of one of the merger parties was allotted to the new party. The parties separated again and the question which arose for determination was whether the symbol can be taken back from the new party and given to the party to It is plain that the nature of contro which it originally belonged. versy in the said case was entirely different. Civil Appeals Nos. 2122-2124 of 1970 have been filed by Shri P. Kakkan and another against the judgment of the Madras. High Court on a certificate granted by that Court. It is not neces sary to give the facts givin)!; rise to these appeals because according to Shri Natesan, learned counsel for the appellants in these appeals, the only additional point to be agitated is about the vires of para graph 15 of the Symbols Order. The Madras High Court repelled the contention advanced on behalf of the appellants that paragraph 15 was ultra vires and invalid in so far as it conferred power on the Commission to decide the dispute between two groups of a political party. G II 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 recogni tion of political parties in connection therewith. That the Com mission 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 (1) [1967] I S.C.R. 643. .342 SUPREME COURT REPORTS [1972] 2 S.C.R. A c B allotment of symbols by the Returning Officers has to be in accord .ance with those directions. Sub-rule (5) of rule 10 gives a power to the Commission to revise the allotment oi a symbol by Returning Officers in so far as the said allotment is inconsistent w.ith 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 a,\ld for issuing directions in connection therewith, it is plainly essential that 1he Commission should have the power to settle a dispute in case claim .for the allot; ment of the symbol of a political In case, it is a dispute party is made by two rival claimants. between two individuals, the method for the settlement of If on dispute is provided by paragraph 13 of the Symbols Order. the other hand, a dispute arises between two rival groups for allot ment of a symbol of a political party on the ground that each group professes to be that party, the machinery and the manner of resolv- · D ing such a dispute is given in paragraph 15. Paragraph 15 is intend- ed to effectuate and subserve the main purposes and objects of the Symbols Order. The paragraph is designed to ensure that because of a dispute Ji.aving arisen in a political party between two or more groups, the entire scheme of the Symbols Order relatini! to the allotment of a symbol reserved 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 would not constitute a valid ground for assailing the vires of and striking down para graph 15. The Commission is an authority .created by the Con stitution and according to Article 324, the superintendence, tlirec- tion and control of the electoral rolls fo~ and the conduct of elections to Parliament and to the Legislature o.f every State and of elections to the office 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 a political party has been vested in such a high authority would raise a presumption, though rebuttable. and provide a guarantee. though not absolute but to a considerable extent, that the pow~r would not be misused but would be exercised in a fair :rnd reasonable manner. G F [ There is also no substance in the contention that as power ;;> make provisions in respect to elections has been given Par.liament by Article 327 of the Constitution. the- power cannot be f.urther delegated to the Commission. The oocnin.g worcb <>i Article 327 are "subject to the provisions of thi, Constitutiun·· Tl1e above words indicate that any law made by the Parliament in H SADIQ ALI v. ELECTION COMMISSION (Khanna, J.) 343 A B exercise of the powers conferred by Article 327 would be subject to the other provisions of the Constitution including Article 324. Article 324 as mentioned above provides that superintendence, direction and control of elections shall be vested in Election Com nms1on. It, therefore, cannot be said that when the Commission issues direction, it does so not on its own behalf but as the delegate. of some other authority. It may also be mentioned in this con text that when the Central Government issued Conduct of Elections Rules, 1961 in exercise of its powers under section 169 of the Representation of People Act, 1951, it did so as required by that section after consultation with the Commission. c We, therefore, find no substance in the contention that para the powers of the graph 15 of the Symbols Order is ultra vires Commisison. The result is that all the four appeals fail and are dismissed' but in the circumstances without costs. S.C. Appeals dismissed.