)· V• R.K. mIVEDI SEPTEMBER 24 & Ors. v. R.K. TRIVEDI [VENKATARAMIAH & Ors.

Subject to any general or special direction issued by the Election Commission either under sub-rule (4) or sub-rule (5) of rule 10, where at any such election, more .nomination papers than one are delivered by or on behalf of a candidate, declaration as to symbols made in the nomination paper first delivered, and no other declaration as A B D' E F G H 6 SUPREME COURT REPORTS [1985] SUPP.3 s.c.R. ': symbols shall be taken into consideration under rule 10 even if that nomination paper has been rejected.

#10. Preparation of list of contesting candidates ••••• (4) At an election in a parliamentary or assmembly constituency, where a poll becomes necessary, returning officer shall consider the choice of symbols • expressed by the contesting candidates in their nomi nation papers and shall, subject to any general or special direction Election Commission- this behalf by issued (a) allot a different symbol to each contesting candidate in conformity, as far as practicable, with his choice; and (b) if more contesting candidates than one have indi cated their preference for the same symbol, decide by lot to which of such candidates the symbol will be allotted. ( 5) The allotment by the returning officer of any symbol to a candidate shall be final except where i t is inconsistent with any directiona issued by Election Cooinission in this bahalf in which case the Election Comnission may revise the allotment in such manner as it thinks fit. (6) Every candidate or his election agent shall forth with be candidate and be supplied with a specimen thereof by the returning officer." the symbol allotted informed of A B c D E F elections Sub-rule (1) of rule 5 of the Rules empowers the cOIDndssion to specify by a notification in the Gazette of India and in the Official Gazette of each State, the symbols that may be chosen by assembly candidates G constituencies and the restrictions to which their choice shall be subject. Sub-rule (4) of rule 10 of the Rules provides that at an election in a parliamentary or assembly constituency, where a poll becomes necessary, the retruning officer shall consider the choice of symbols expressed by the contesting candidates in their nomination papers and shall subject to any general or special the Comnission allot a H direction issued in this behalf by in Parliamentary '>- KANHIYALAL v. R.K. TRIVEDI [VENKATARAMIAll, J • J 7 • final except where different symbol to esch contesting candidate in conformity, as far as practicable, with his choice and if more contesting candidates than one have indicated their preference for the same symbol, decide by lot to which of such candidates the symbol will be allotted. Sub-rule (5) of rule 10 of the Rules provides that the allotment by returning officer of any symbol to a candidate shall be inconsistent with any directions issued by the Commission in this behalf in which case the Commission may revise the allotment in such manner as it thinks fit· Under sub-rule (6) of rule 10 of the Rules every candidate or his election agent should be informed forthwith the " symbol allotted to the candidate and is entitled to be supplied with a specimen thereof. Purporting to exercise its powexc under Article 324 of the Constitution resd with rule 5 and rule 10 of the Rules, the Commission issued the symbols Order in the year to the "" 1968 which is impugned in this petition. The Preamble it is Symbols Order reads thus : llhereas the "S.O. 2959 dated 31st August, 1968 - control of all superintendence, elections to Parliament and to the Legislature of every State are vested by the Constitution of India in the Election Commission of India; direction And, whereas, it is necessary and expedient to provide in the interests of purity of election to the House of the People and the Legislative Assembly of every State and in the interests of the conduct of such elections in a fair and efficient manner, for the specification, reservation, choice and allotment of symbols, for the recognition of political parties in relation th&eto and for matters connected therewith. Now, therefore, in exercise of the powers conferred by Article 324 of the Constitution, read with rule 5 and rule 10 of the Conduct of Elections Rules, 1961, and all other powers enabling it in this behalf, Election Commission of India hereby makes following Order." The expression 'political party' is defined in Paragraph 2(l)(h) of the Symbols Order thus : "2. (l)(h) - 'Political party' means an association or body of individual citizens of India registered with the Commission as a political party under paragraph 3 A B c D E F G H 8 SUPREME COURT REPORTS [1985] SUPP.3 s.c.R. ... and includes a political party deemed to be registered with the Coumission under the proviso of sub-paragraph (2) of that paragraph;" • - - the manner Paragraph 3 of registration with the Symbols Order provides the Symbols Order provide for that any individual citizens of India calling association or body of its elf a political party and intending to avail its elf of the provisions of the Symbols Order shall make an application to the Coumission for its registration as a party for the purposes of the Symbols Order. Sub-paragraphs (2), (3) and (4) of paragraph 3 in which such applications should be made by associations and bodies calling themselves as political parties Collllllission. That paragraph empowers the Collllllission to consider all relevant particulars and to decide whether the association or body should be registered as a political party or not and its decision in that regard is stated to be final. Paragraph 4 of the Symbols Ortler provides that in every contested election a symbol shall be allotted to a contesting cacdidate in accordance with the provisions of the Symbols Order and different symbols shall be allotted to different contesting candidates at an election in the same constituency. The symbols specified by the Collllllission are classified into two categories by paragraph 5 of the Symbols Order. They are either reserved or free. A reserved symbol is a symbol which is reserved for a recognised political party for exclusive allotment party. A free symbol is a symbol other than a reserved symbol· Paragraph 6 of the Symbols Order provides for the classification of the political parties into recognised political parties and unrecognised political parties. Amongst the recognised political parties according to the Symbols Order there are two categories, namely, national parties and the State parties. The Symbols Order further provides for the determination of the question whether a candidate. has been set up by a political party or not. It deals unrecognised political parties for their expeditious recognition on fulfilment of conditions specified in paragraph 6. The power in relation to splinter groups or rival sections of the recognised political party and its power in case of amalgamation of two or more political parties are dealt with in paragraphs [5 and 16 of the Symbols Order. Under paragraph 17 of the Symbols Order the Collllllission is required to publish by one or more notificatioas in the Gazette of India lists specifying the national parties and the symbols respectively reserved for the State parties, the State or States in which they are them, to contesting candidates set up by issue instructions the Conmission the collllllission the power of A B c D E F G H KANHIYALAL V• R.K. TRIVEDI [VENKATARAMIAH, J. J 9 State parties and the symbols respectively reserved for them in such State or States, unrecognised political parties and the State or States in which they function and the free symbols for each State. Every such list is required to be kept up-to-date, as far as possible. Under paragraph 18 of the Symbols Order the i;omntssion has reserved to itself the power to issue instructions fuid directions for the clarification of any of the provisions of 'the Symbols Order, for the removal of any difficulty which may arise in relation to the implementation of any such provisions and in relation to any matter with respect to the reservation and allotment of symbols and recognition of political parties, which the Symbols Or~er makes nc provision or makes insufficient provision and provision is in the opinion of the Commission necessary for the smooth and orderly conduct of elections. The petitioner claims to him has prejudiced seriously to be a convener of a social organisation named "SAPRYA" situated at 67/68, Daulat Ganj, Kanpur (U.P.) which is stated to have been established for the purposes of propagating 'National truth' and for acquainting the people of India about the ideals cherished by it. The petitioner is aggrieved by the emergence of a large number of political parties at the national level and at the State level which according ideals of a democratic country. He has referred in the course of the petition to the various acts comnitted by the several political parties which according to him are highly detrimental to the interests of the country. ·lie contends that the emergence of these political parties is due to the provisions contained in the Symbols Order the registration of political parties, which provides reservation and allotment of symbols in favour of various political parties. It is contended by the petitioner that the Symbols Order is liable to be struck down on the ground that the Commission Constitution or the Act and the Rules made thereunder. It is his contention that there is no provision, constitutional or legal, which justifies the recognition of political parties for purpose of elections. issue it either under is not empowered to Parliament and The constitutional scheme with regard to the holding of the elections the State Legislatures is quite clear. First, the Constitution has provided for the establishment of a high power body Parliament and the State Legislatures and of elections to the offices of President and Vice President. That body is the the Constitution contains detailed Commission. Article 324 of to be · incharge of the elections A B c D E F G H 10 SUPREME COURT REPORTS [1985] SUPP.3 s.c.R. recommendation of provisions regarding the constitution of the Commission and its general powers. The Commission consists of the Chief Election Commissioner who is appointed by the President and it may also consist such number of other Election Colilllissioners, if any, as the President may from time to time fix, who are also to be appointed by the President. When Election Commissioners are appointed, the Chief Election Commissioner becomes the Chairman of the Commission. There is provision for the appointment of Regional Commissioners to assist the Commission. In order to ensure the independence and impartiality of the Commission, it is the Chief Election Commissioner shall not be provided removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court of India and that the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage ~fter his appointment. An Election Commissioner or a Regional Commissioner cannot be removed from office except on the the Chief Election Commissioner. The superintendence, direction and control of the conduct of elections referred to in Article 324(1) of the the Commission. The words Constitution are entrusted 'superintendence', 'control' are wide enough to 'direction' and include all powers necessary for the smooth conduct of elections. It is, however, seen that Parliament has been vested with the power to make law under Article 327 of the Constitution read with Entry 72 of List I of the Seventh Schedule to the Constitution with respect to all matters relating to the elections to either House of Parliament or to the House or either House of the Legislature of a State subject Constitution. SubJect to the provisions of the Constitution and any law made in that behalf by Parliament, the Legislature of a State may under Article 328 read with Entry 37 of List II of the Seventh Schedule to the Constitution make law relating to the elections to the House or Houses of Legislature of that State. The general powers of superintendence, direction and control of the elections vested the Commission under Article 324(1) naturally are subject to any law made either under Article 327 or 'election' in under Article 328 of the Constitution. The word Article 324 is used in a wide sense so as to include the entire process of election which consists of several stages and it embraces many steps, some of which may have an important bearing on the result of the process. India is a country which consists of millions of voters. Although they are quite conscious of their duties politically, unfortunately, a large percentage of them are still illiterate. Hence there is need for using symbols to denote the candidates who contest elections so that the illiterate voter the provisions of A JI c D E F G H .. KANHIYALAL v. R.K. TRIVEDI [VENKATARAMIAH, J. J 11 may cast his vote in secrecy in favour of the candidate of his choice by identifying him with the help of the symbol printed on the balllot paper against his name. should succeed and It is true that till recently the Constitution did not expressly refer to the existence of political parties• But .their existence is implicit in the nature of democratic form of Government which our country has adopted. The use of a symbol, be it a donkey or an elephant, does give rise to an unifying effect amongst the people with a common political and economic progranme and ultimately helps in the establishment of a Westminster type of democracy which we have adopted with a Gabinet responsible to the elected representatives of the people who constitute the Inwer House. The ·political parties have to be there if the the chasm present system of Government dividing the political parties should be so profound that a change of administration would in fact be a revolution disguised under a constitutional procedure. It is no doubt a paradox that while the country as a whole yields to no other in its corporate sense of unity and continuity, the working parts of its political system are so organished on party basis in other words "on systematized differences and unresolved conflicts." That is the essence of our system· and it faci.litates the setting up of a Government the majority. Although recently Constitution had not expressly referre_d the existence of political parties, by the amendments made to it by the Constitu tion (Fifty.:.Second Amendment) Act, 1985 there is now a clear recognition of the political parties by the Constitution. The Tenth Schedule to the Constitution which is added by the above amending Act acknowledges the existence of political parties and sets out the circumstances when a member of Parliament or of the to have defected from his State Legislature would be deemed political party and would thereby be disqualified for being a member of the House concerned. Hence it is difficult to say that the reference to recognition, registration etc. of political parties by the Symbols Order is unauthorised and against the political system adopted by our country. Paragraph 15 of the Symbols Order which dealt with the power in relation to splinter groups or rival the Commission sections of consideration before this Court in Sadiq Ali & Aur. etc. V• Election Comnission of India & Ors. etc. [1972] 2 s.c.R. 318. recognised political party a The Court observed in that case at pages 341-343 thus: A B c D E F G H 12 SUPREME COURT REPORTS [1985] SUPP.3 s.c.R. .... A B c D E F G H .- is not therewith• That special directions "It would follow from what has been discussed earlier in this judgment that the Symbols Order makes detailed provisions for the reservation, choice and allotment of symbols and the recognition of political parties in connection the Commission should specify symbols for elections in parliamentary and assembly constituencies has also been made obligatory by rule 5 of Conduct of Election Rules. Sub-rule (4) of Rule 10 gives a power to the Commission general or the Returning Officers in respect of the allotment of symbols. The allotment of symbols by the Returning Officers has to be in accordance with those directions. Sub-rule (5) of rule 10 gives power to the Commission to revise the allotment of a symbol by the Returning Officers in so far as the said allotment is inconsistent with the directions issued by the Commission. It would, there fore, follow that Commission has been clothed with the above mentioned Rules in the plenary powers by matter of allotment of symbols. The validity of the said Rules has not been challenged before us. If the Commission to be disabled from exercising effectively the plenary powers vested in it in the issuing matter of allotment of symbols and for directions therewith, it is plainly essential that the Commission should have the power to settle a dispute in case claim for the allotment of the symbol of a political party is made by two rival claimants. individuals, the method for the settlement of that dispute is provided by paragraph 13 of the Symbols Order. If on the other hand, a dispute arises between two rival groups for allotment of a symbol of a that each group political party on professes to be manner of resolving such a dispute is given in para graph 15. Paragraph 15 is intended to effectuate and subserve the main purposes and objects of the Symbols Order. The paragraph is designed because of a dispute having arisen in a political party between two or more groups, the entire scheme of the Symbols Order relating to the allotment of a symbol reserv~d for the political party is not set at naught. The fact that the power for the settlement of such a dispute has been vested in the Commission "°uld not constitute a valid ground for assailing the vires In case, it is a dispute between the machinery and in connection that party, the ground to ensure - _, KANHIYALAL v. R.K. TRIVEDI [VENKATARAMIAH, J •] · 13 to Parliament and of and striking down paragraph 15. The Commission is an authority created by the Conatitution and according to Article 324, the superintendence, direction and control of the electoral rolls for and the conduct of elections to the Legislature of the off ices of every State and of electiona President, and Vice President shall be vested in the Commission. The fact that the power of resolving a dispute between two rival groups for allotment of symbol of ~ political party has been vested in sueh a high authority would though rebuttable, and provide a guarantee, though not absolute but to a conaiderable extent, that the power would not be misused but.would be exercised in a fair and reasonable manner. raise a preswnption, to - the other provisiona of There is also no substance in the contention that as power to make provisiona in respect to electiona has been given to the Parliament by Article 327 of the Conatitution, the power cannot be further delegated to the Commission. The opening words of Article 327 are 'subject to the provisiona of this Conatitution'. The above words indicate that any law made by the Parlia- ment in exercise of powers conferred by Article 327 would be subject Constitution including Article 324. Article 324 as superintendence, mentioned direction and control of elections shall be vested Election Commission. It, therefore, cannot be said when the Commission issued direction, it does so not on its own behalf but as the delegate of some other in this context authority. It may also be mentioned that when the Central Government issued conduct of Elections Rules, 1961 in exercise of its powers under section 16r of the Representation of People Act, 1951, • it did so as required by that section after conaulta- tion with the Commission." provide_s The above decision upholds the power of the commission to recognise political parties and to decide disputes arising amongst them or between splinter groups within a political party. It also upholds the power of the Commission to issue the Symbols Order. The Court has further observed that it could not be said that when the Commission issued the Symbols Order it was not doing so on its own behalf but as the delegate of some other A B c D E F • G H -· I .~ - 14 SUPREME COURT REPORTS [1985] SUPP.3 s.c.R. A authority. The power to issue the Symbols Order was held to be in the power of superintendence, direction and comprehended control of elections vested in the connnission. Over-ruling the objection raised as to the validity of the Symbols Order on the ground that it was legislative in character and the Coomission had no power to issue it in the absence of entrustment of the power to make a law in relation to elections, in All Party Hill Leaders' Conference this Court observed Sbillong v. Captain M.A. Sangma & Ors. [1978] 1 s.c.R. 393, at page 408 thus: relating therefore, the part of legitimate on symbols. That would the Symbols Order made by "It is not necessary in this appeal to deal with the question whether Coomission is a piece of legislative activity. It is enough to hold, which we do, that the Commission is empowered in its own right under Article 324 of the Constitution and also under rules 5 and 10 of Rules to make directions .in general in widest terms necessary and also in specific cases in order to faci- litate a free and fair election with promptitude. It is, Conmission to make general provisions even in antici pation or in the light of experience in respect of matters inevitably require it to regulate its own procedure in dealing with disputes regarding choice of symbols when raised before it. Further that would also sometimes inevitably to adjudication of disputes with regard to recognition of parties or rival claims to a particular symbol. The Symbols Order is, therefore, a compendium of directions in the shape of general 0 provisions to meet various kinds of situations apper taining symbols. The power to make these directions, whether it is a legislative activity or not, Article 324 as well as from rules 5 and 10. It was held in Sadiq Ali (Supra) that 'if the Commission is not to be disabled from exercising effectively the plenary powers vested in it in the matter of allotment of symbol and for issuing directions in connection therewith, it is plainly essential that the Commission the power to settle a dispute in case should have claim for the allotment of the symbol of a political two rival claimants'. It has been party is made by to elections with particular reference B C D E F G H KANHIYALAL v. R.K. TRIVEDI [VENKATABAMIAI!, J.] 15 held in Sadiq Ali (Supra) that the Commission has been clothed with plensry powers by rule 5 and sub-rules (4) and (5) of rule 10 of the Rules in the matter of allotment of symbols." ft. In Boop lal Sathi v. Nachbattar Singh, [1983) 1 s.c.R. 102, the same view is reiterated. The Court observed in this case at page 719 as follows : "The Symbols Order made by the Election Commission in exercise of its power under Article 324 of the Consti tution read with rules 5 and 10 of the Conduct of Elections Rules and all other powers enabling it in that behalf, are in the nature of general directions issued by the Election Commission to regulate the mode of allotment of symbols to the contesting candidates. It is a matter of common knowledge that elections in our country are fought on the basis of symbols• It must but logically follow as a necessary corollary that the Symbols Order is an order made under the Act. Any other view would be destructive of the very fabric of our system of holding parliamentary and assembly constituency elections in the country on the basis of adult suffrage." that any of Even if for any reason, it is held provisions contained in the Symbols Order are not traceable to the Act or the Rules, the power of the Commission under Article 324(1) of the Constitution which is plenary in character can encompass all ouch provisions, Article 324 of the Constitution operates in areas left unoccupied by legislation and the words 'superintendence•, 'direction' and 'control' as well as 'conduct of all elections' are the broadest terms which would include the power to make all such provisions • (See Hobinder Singh Gill & .Anr. v. The Qdef Election Coom!s•imt!r, New Delhi & Ors. (1978) 2 s.c.R. 272, and A.c. Jose v. Sivan Pillai & Ors. (1984 J 3 s.c.R. 74.) We do not also find any substance in the contention that the Central Government which had been delegated the power to make rules under section 169 of the Act could not further delegate the power to made any subordinate legislation in the form of the Symbols Order to the Commission, without itself being empowered by the Act to such further delegation. Any part of the Symbols Order which cannot be traced to rules 5 and 10 of the Rules can A B c D E F G H A B c D E F G H 16 SUPREME COURT REl'ORTS [1985] SUPP.3 s.c.R. course cons truing the Comnission therein subject of the Constitution in connection with easily be traced in this csse to lhe reservoir of· power under issue all Article 324(1) which empowers directions necessary for the purpose of conducting smooth, free and fair <!lections. Our attention is not drawn by the learned counsel for the petitioner to any speciric provision in the Symbols Order which cannot be brought within the scope of either rule 5 or rule 10 of the Rules or Article 324(1) of the Consti tution and which is hit by the principle delegatus 1111n pottes clelegare, i.e. a delegate cannot delegate, the Comnission itself in this case being a donee of plenary powers under Article 324 the conduct of (1) of elections referred legislation made under Article 327 and Article 328 of the Consti tution read with Entry 72 in IJ.st I or Entry 37 in IJ.st II of the Seventh Schedule to the Constitlltion and the rules made there 'superintendence' , under. While 'direction and control' in Article 324(1), one has remember that every norm which lays down a rule of conduct cannot possibly be elevated to the position of legislation or delegated legis lation. There are some authorities or persons in certain grey areas who may be sources of rules of conduct and who at the same time cannot be equated to authorities o.r persons who csn make law, in the strict sense in which it is understood in jurispru dence. A direction may mean an order issued to a particular individual or a precept which many may have to follow. It may be a specific or a general order. One has also to remember that the source of power in this csse is the Constitution, the highest law of the land, which is the repository and source of all legal powers and any power granted by the Constitution for a specific purpose should be construed liberally so that the object for which the power is granted is effectively achieved. Viewed from this angle it cannot be said that any of the provisions of the Symbols Order suffers from want of authority on the part of the Commission, which has issued it. expression ~ We are not satisfied with the submission that the several evils, malpractices etc. which are alleged to be existing amongst the political parties today are due to the Symbols Order which recognises politics! parties and provides for their registration etc• The reasons for the existence of such evils, malpractices etc. are to be found elsewhere. The surer remedy for getting rid of those evils malpractices etc. is to appeal to the conscience of the nation. We cannot, however, set aside the Symbols Order on the grounds alleged in the petition. We dismiss the petition accordingly. I N.V.K. Petition dismissed.