# SADIQ AJ;,I AND. ANIJ, ETC v. ELECTION COMMISSION OF INDIA AND OTHERS ETC

- **Citation:** [1972] 2 S.C.R. 318
- **Court:** Supreme Court of India
- **Decided:** 1971-11-11
- **Bench:** K. S. ijEGDE, A. N. Grover, H. R. Khanna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sadiq-aj-i-and-anij-etc-v-election-commission-of-india-and-others-etc-5656
- **Pages:** 26

## Headnote

SyinboTs (Resetvation and Allotment) Ord_er,
1968-Paragraph 15Party splitting itself into two groups-Each group
claiming symbolPowers of Eleftion Commission in inquiry under para. 15-Test of majority mrd numerical strength-Relevancy-Binding nature of decislon oJ
Election Commission-Para 15 not ultra vites the powers of the Commission.
The Indian National Congress, a recognised national party under the
C
Election Symbols (Reservation and Allotment) Order, 1%8 had as its
symbol ''Two Bullocks with Yoke on" for the purpose of elections. The
Congress is a voluntary associatiop with its own Constitution. In 1969,
following differences over the choice of the
congress nominee for the
office of the President of India, the Congress split itself into tl;o groupscongress 'O' and1 congress 'J'. On January 15.
1970 " communication
was addressed by the Election Commission to the Secretary of congress 'J'
D
as well as that of congress '0' stating that "a dispute appears to have
arisen as to which ·of the two groups is the recognised political party
known as the Indian National Congr~ss" far the purpos, of the Election
Symbols Order and that the commission was required to take a decisioa
in the matter in terms of para 15 read with para 18 of the. Order. Both
the groups presented their claim before the Commission. The Commission framed and settled the following four points for consideration :
(I) Has the Election Commission jurisdiction within the meaning
E
of paragraph 15 of the Election Symbol (Reservetion & Allotment) Order 1968, to decide whether any one or none of the
rival section or groups
of the Indian National Congres.s,
"natiorial party", i.s the said Indian 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 in its possession that there are tWo rival section
F
or groups of the said Indian Na!ional Congress each claiming
to ~ that Congress ?
(3) What is the nature of an election symbol under the Election
Symbols (Reservation and Allotment) Order. 1968 and whether an election symbol, whelher 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
G
Indian National Congress is that Congress for the purpose of
the Election Symbols (Reservation and Allotment) Order 1968;
if so: which is that rival section, or whether on the facts and
circumstances referred to above. noDc of the rival sections of
the .i;aid Indian National Congress is that Congress ?
The contention that the Working Committee or the President of Cong-
~ess 'O', who ~as the President of the Indian National Congress at the
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time of the spht, were the only authorities to give a binding decision was
repelled bv the Commission.· The Commission -held that the very existence
of a conftict was enough to create jurisdiction to find ou: and decide, on
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SADIQ, ALI V. ELECTION COMMISSION
319
the facts and circumstances established, whether the conflict was genuine
and whether the claim and allegations of the applicants were valid.
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 CommissioILObserved that the majority test \Vas a valuable and relevant test in '!.l. democratic organisation. The
test based upon the provisions of the Constitution of the Congress, canvassed on ;;"holi of the Congress 'O', was held to be hardly of any assistance
in view .of the removals from membership '1nd expulsions from the
committees of the Congress of the members
belonging to one group
by those belonging to the opposite group.
The Commission then considered anothe.r. test, namely, that based upon

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318
SADIQ AJ;,I AND. ANIJ, ETC.
v.
ELECTION COMMISSION OF INDIA AND OTHERS ETC.
November 11, 1971
[K. S. ijEGDE, A. N. GROVER AND H. R. KHANNA, JJ.]
SyinboTs (Resetvation and Allotment) Ord_er,
1968-Paragraph 15Party splitting itself into two groups-Each group
claiming symbolPowers of Eleftion Commission in inquiry under para. 15-Test of majority mrd numerical strength-Relevancy-Binding nature of decislon oJ
Election Commission-Para 15 not ultra vites the powers of the Commission.
The Indian National Congress, a recognised national party under the
C
Election Symbols (Reservation and Allotment) Order, 1%8 had as its
symbol ''Two Bullocks with Yoke on" for the purpose of elections. The
Congress is a voluntary associatiop with its own Constitution. In 1969,
following differences over the choice of the
congress nominee for the
office of the President of India, the Congress split itself into tl;o groupscongress 'O' and1 congress 'J'. On January 15.
1970 " communication
was addressed by the Election Commission to the Secretary of congress 'J'
D
as well as that of congress '0' stating that "a dispute appears to have
arisen as to which ·of the two groups is the recognised political party
known as the Indian National Congr~ss" far the purpos, of the Election
Symbols Order and that the commission was required to take a decisioa
in the matter in terms of para 15 read with para 18 of the. Order. Both
the groups presented their claim before the Commission. The Commission framed and settled the following four points for consideration :
(I) Has the Election Commission jurisdiction within the meaning
E
of paragraph 15 of the Election Symbol (Reservetion & Allotment) Order 1968, to decide whether any one or none of the
rival section or groups
of the Indian National Congres.s,
"natiorial party", i.s the said Indian 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 in its possession that there are tWo rival section
F
or groups of the said Indian Na!ional Congress each claiming
to ~ that Congress ?
(3) What is the nature of an election symbol under the Election
Symbols (Reservation and Allotment) Order. 1968 and whether an election symbol, whelher 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
G
Indian National Congress is that Congress for the purpose of
the Election Symbols (Reservation and Allotment) Order 1968;
if so: which is that rival section, or whether on the facts and
circumstances referred to above. noDc of the rival sections of
the .i;aid Indian National Congress is that Congress ?
The contention that the Working Committee or the President of Cong-
~ess 'O', who ~as the President of the Indian National Congress at the
H
time of the spht, were the only authorities to give a binding decision was
repelled bv the Commission.· The Commission -held that the very existence
of a conftict was enough to create jurisdiction to find ou: and decide, on
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SADIQ, ALI V. ELECTION COMMISSION
319
the facts and circumstances established, whether the conflict was genuine
and whether the claim and allegations of the applicants were valid.
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 CommissioILObserved that the majority test \Vas a valuable and relevant test in '!.l. democratic organisation. The
test based upon the provisions of the Constitution of the Congress, canvassed on ;;"holi of the Congress 'O', was held to be hardly of any assistance
in view .of the removals from membership '1nd expulsions from the
committees of the Congress of the members
belonging to one group
by those belonging to the opposite group.
The Commission then considered anothe.r. test, namely, that based upon the aims
and objects
as
incorporated in the Constitution of the Congress. 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
objects was consequently held to be ineffective and neutral. Applying
the test of majority, the Commission observed that Congress 'J'
had
the m'1jority out of the total numbor of members retu'med
on
con~
tickets to the HQuses 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, Congross 'O' had majority in the Legislature.
As regards the organisational 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.
As regards the delegates who were entitled to vote at the earlier Faridabad Session of Congress, the Commission
found that out of the total number of 4690 delegates, 2870 pledged their
support to Congress 'J'.
Regarding the members of the All India Congress Committee (A. i. C. C. ) • the Commission held that the total number
of A.I.C.C. members who attended the Bombay meeting of the Congress
J. was 423 out of 707 elected members and 56 out of 95 nominated and
coopted n1embers.
The Bombay session, it was
further held,
assumed
importance in view of the fact that all tlro resolutions passed at the requisitioned meeting of Congress 'J' at Delhi were 'r:lfified unanimously at
the Bombay session.
For dotermining as to
who were
members of
A.!.C.C. and delegates the Commission accepted those persons as members of A. I. C. C. and delegates who held that position in the earlier session of the C'on~ress at Faridabad before the split.
Decision w~s 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.
Appeal was
filed
against this orde.r _of the Election Commission.
An appeal was also filed
against the judgment of the Madras High Court on a certifiC'1te granted
bv that Court. repelling the contention that paragraph 15 was ultra vires
and invalid in so far as it conferred power on the Comn1ission to decide
the dispute between two groups of a political party. On (i) the question
whether the test of majority or numerical strength which was taken into
account by tbe Commission was in the circumstances of the case a relevant and germane-test; (ii) the binding nature of !he decision given by
the Commission under paragraph 15; and (iii) the question whether paragraph 15 was ultra vires and invalid
HELD ; Dismissing the appeals
(!) The occasion for making an order under paragraph 15 arises when
the Commission is satisfied, on the information in its possession, that there
are rival sections or groups of a recognised political party each of whom
320
SUPREME COURT REPORTS
[1972) 2 S.C.R.
claims to be that party. In the circumstances of the pre"-lnt case the commission had to decide the matter under paragraph 15 and there was notlling objectionable in the communication dated January 15, 1970, sent to
the two rival parties on its behalf. [333 El
As Conaress iS a democratic organisation the test of majority and
numerical strength was a very valuable and
relevomt test. The figures
found by the Commission of the members of the two houses of Parliament and of the state legislatures as well as those of A.I~C.C. members
and delegates who supported Congress 'J', have not been shown to ·be
incorrect. In view of these figures it can hardly be disputed that susbtantial majority Qf the members of the congress in both its legislative wing
as well as th» organisation wing supported Congress 'J'. -L336 Al
In view of the removals and expulsions which followed in the wake
of split in the con_gress, the Commission adopted proper approach for
determining as to who should be taken to be members of A. I. C. C. or the
delegates, more so, when in the opinion of the Commission, the validity
of those removal~ and expulsions was open to question. Further, if according to paragraph 6 of the Symbols Order the number of seats secured
by a political party or the number of votes cast in fayour of the candidates of a politi~al party can be a relevant consideration for the recognition of a politioal party, one is at a loss to understand how u,, numbers
of seats in the Parliament and state legislatures held by the supporters of
a group of the political party can be considered irrelevant.. Consequently,
there is no errqr in the approach of the commission in applying the rule
of majority and numerical strength for determining as to which of the two
groups was the Congress party for the purpose of para 15 of the Symbols
Order. [336 E, C; 338 Bl
Even though the mass of congress members are primary members
there are practical difficulties in ascertaining the wishes of those members.
It can be legitimately considered that the members of the A.I.C.C. and
the delegates reflected, by and large, the views of the primary members.
The Commission, in any inquiry 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 in " quagmire. [336 Fl
Paragraph 13 of the Symbols order has nothing to do with the question of resolvini: a dispute wherein two rival sections or groups of a recognised political 11arty claim to be that party. For resolving of such a dispute only paragraph 15 is to be looked into. 1338 G-H]
General Assembly of Free Church of Scotland and Others v. Lord
Overtoun and Others, E!904] A.C. 515, distinguished.
Samyukta Socialist Party v. Election Commission of India & Anr.,
[1967] I S.C.R 643, held inapplicable.
The symbol is not property to be divided betwetn co-owners. The
allotment of a symbol to the candidates set up by a political party is a
legal right and in case of split the Commission has
been authorised to
determine which of the rival groups or section is the party which was entitled to the symbol. The Commission in resolving this dispute does not
decide as to which group represents the party, but which group is that
party. (339 HJ
(ii) The claim made is only for the purpose of symbols m connection
with elections to the Parliament and state legislatures and the decision of
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SADIQ ALI v. ELECTION COMMISSION (Khanna, J.)
32 I
lhe Commission under parallfaph 15 constitutes a direction to the Returning Officer for the purpose of rule 10 of the Conduct of Election Rules,
1961. The said direction shall be binding upon the Returning Officer
in accord;mce with sub-rules (4) and (5) of rule JO. 1339 DJ
[The Court did not express any opinion on the question whether the
decision of the Commission can be called into question in appropriate proceedinKs in a court of law.]
(iii} There is no substance in the contention that paraaraph 15 of the
Symbols order is ultra vires the powers of the Commission. The Commission has been clothed with plenary powers by the Conduct of Election
Rules in the matter of allotmeqt of symbols. If the Commission is not
to be disabled from exercising effectively the plena;y powers >"CSted in it
in the matter of allotment of symbol and for issuing directions in connec:lion therewitl!, 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. Para 15 is intended
to effectuate and subscrve the main purpose and objects of the symbols
order. The Commission is an authority created by the Constitution and
according to Article 324, the superintendence, direction and clontrol of
the Electoral rolls for the conduct of elections to
Parliament and the
legiolature of every state and of elections to the offices of President and
Vice President is vested in the Commission. The fact thaJ 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 power would not be misused
but would be exercised in a fai'r and reasonable manner. [342 A-G]
There is also no substance in the contention that as power fo make
pr0>isions in respect to elections has been given to the Parliament by
Article 327, the power cannot be further delegated to the Commission.
The law made bv Parliament under article 327 is subject to the other
provisions of the Constitution including artic~ 324. It, therefore, cannot
be said that when the Commission issues direction, it does so not on its
own behalf but as delegate of some other authority. [342 H]
ClvIL APPEELLATE JURISDICTION : Civil Appeal No. 70 of
1971.
Appeal by Special Leave from the decision dated the 11th
I anuary 1971 of the Election Commission of India in the matter
of an inquiry under paragraph 15 of the Election Symbols (Reservation and Allotment) Order, 1968.
AND
Civil Appeals Nos. 2122 to 2124 of 1970.
Appeals from the judgment and order dated the 1 Sth June,
1970 of the Madras High Court in W.As. Nos. 327 and 345 of
1970 and W.P. No. 513 of 1970.
Shanti Bhushan, K. C. Sharma, Y. K.
Mathew and V.P.
H
Chaudhry, for the Appellants in C.A. No. 70 of 1971.
R. N. Sachthey, for respondent No. 1 (In C.A. No. 70 of
1971 ).
322
SUPREME COURT REPORTS
[1972] 2 S.C.R.
K. L. Mishra, A. P. Misra, Naunit Lal, V. P. Nanda, Janak
Raj, Swaranjit Sodhi and R. K. Shukla, for respondent No. 2 (ln
C.A. No. 70 of 1971).
A. K. Sen, Bawa Shiv Charan, K. S. Suri, 0. P. Sharma and
Kai/ash Mehta, for respondent No. 3 (in C.A. No. 70 of 1971).
P. N. Lekhi, M. K. Garg and V. C. Prashar, for respondent
No. 5 (In C.A. No. 70 of 1971 ).
Mukat Behari Lal Bhargava, S.
L. Bhargava and V. C.
Prashar, for respondent No. 5 (In C.A. No. 70 of 1271.
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Respondent No. 6 appeared in person
(In C.A. No. 70 of
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1971 ).
M. Natesan, T. L. Garg and R. Gopalakrishnan, for 'ihe
Intervener (In C.A. No. 70 of 1971)
and the appellants (In
C.As. Nos. 2122 to 2124 of 1970).
R. N. Sachthey and S. P. Nayar, for respondents Nos. 1 and
2 (In C.A. Nos. 2122 and 2123 of 1970) and respondent No. 1
(C.A. No. 2124 of 1970).
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 (Reservation & Allotment) Order, 1968 (hereinafter referred to as the
'Symbols Order'), whereby the Commission held that for the vurpose of allotment of symbol in elections the political party presided 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.
Indian National Congress (hereinafter referred
to
as
the
'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 association; it is neither a statutory body 0rior a registered society under
the Societies Registration Act. It has framed fts own constitution
and rules.
Shri S. Nijalingappa was elected President. of the
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
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SADIQ ALI v. ELECTION COMMISSION (Khanna, J.)
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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 convenience 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 Commission to the Secretary of Congress '0'.
Enclosed with that
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 President and that the duly elected President of the Congress was Shri
Nijalingappa.
It was also stated that the office-bearers mentioned
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
of . the Con.gress.
T~1s association of persons, added Shri Sadiq
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 ComllPssion 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 Congress 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 Nija18ngappa, 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
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325
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 declared 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 meeting 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 meeting.
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 appointed 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 to
·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 authority 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 allegiance 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 Election Commission had no jurisdiction to hold the enquiry.
According 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 Subramallliam that he had ceased to be a member of the Working Committee.
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 confidence 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
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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 took the view that it was bound to·
result in indiscipline.
Shri Nijalingappa then addressed a letter
to Shrimati Indira Gandhi charging her with indiscipline and.
asking her to explain her position.
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 countcrstatement 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 Symbol (Reservation & Allotment) Order 1968, to
decide whether any one or none of the rival sections 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 in
its
possession that there are two rival
sections or
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 between the two l(roups has almost assumed the form of
enmity, then relying upon a few
provisions
of the
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 contentions 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 assistance in view of the removals from membership and expulsions
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SADIQ ALI v. ELECTION COMMISSION (Khanna, J.)
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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 considered another test, namely, that based upon the aims and objects
as incorporated in the Constitution of the Congress.
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 conduct of all elections to Parliament and Legislative Assemblies of
the States and all elections to the offices of President and VioePresident 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
Act.
'Y1thout prejudice to the generality oi the foregoing power,
s~b-section (2) en~erate_s some of the matters for which provis10n 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 Comm1ss10n. to specify ~he symbols that may be chosen by candidates
at. e~echons ID ~arhamentary and Assembly elections and the restnctt?!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.
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330
SUPREME COURT REPORTS
[197Z] 2 S.C.R.
The Symbols Order has been issued by the Commission in exercise of. the powers conferred by Article 324 9f the Constitution
read. with Rules 5 and 10 of the Conduct of Election Rules.
Paragraph 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
a political party deemed to be registered with the Commission
under the proviso to sub-paragraph 2 of that paragraph.
Paral!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 whether 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 subparagraph 8 that after the association or body has been registered
as a political party, any change i,n its name,. head-office, oflicebearers, address and political principles, policies_, aims and objects
and any change in any other material matter, shall be communicated to the Commission without delay.
Paragraph 4 provide>
for allotment of symbols.
Paragraph 5 deals with the classification 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 described 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 politi'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
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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
B
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 specifies' as to when a candidate shall be deemed to be set up as a
candidate by a political party and reads as under:-
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" 13. When a candidate shall be deemed to be set up
by a political partyFor 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.