Supreme Court of India
INDIAN NATIONAL CONGRESS (I)versusINSTITUTE OF SOCIAL WELFARE AND ORS.
- Citation
- 2002 INSC 278
- Decided
- 10 May 2002
- Disposal
- Case Partly allowed
- Bench
- V N KHARE
Holding
The Election Commission of India does not have express or implied power under Section 29A or the Symbols Order to de‑register a political party, and Section 21 of the General Clauses Act cannot be applied to a quasi‑judicial order; de‑registration is permissible only in limited cases of fraud, constitutional breach, or where no enquiry is required.
Summary
The Supreme Court examined whether the Election Commission of India (ECI) could de‑register a political party under Section 29A of the Representation of the People Act, 1951 when the party called a hartal that involved force, intimidation or coercion, allegedly violating the Constitution. The Kerala High Court had directed the ECI, under Section 21 of the General Clauses Act, to entertain complaints and de‑register parties that breached their constitutional undertaking. The Court held that neither the Symbols Order nor Section 29A expressly empowers the ECI to cancel a party’s registration, and that Section 21 cannot be invoked to alter a quasi‑judicial order. It clarified that the ECI’s function under Section 29A is quasi‑judicial, not administrative, and that no review power exists except in limited situations such as fraud, a change that defeats the constitutional pledge, or where no enquiry is required. Consequently, the High Court’s directions (iii) and (iv) were set aside and the appeals were allowed in part. The Court also listed three specific exceptions where the ECI may cancel registration.
Issues considered
- Whether the Election Commission of India has power under Section 29A of the Representation of the People Act, 1951 to de‑register a political party for calling a hartal that involves force, intimidation or coercion.
- Whether Section 21 of the General Clauses Act, 1897 can be used to confer de‑registration power on the Election Commission for quasi‑judicial orders.
- Whether the functions of the Election Commission under Section 29A are quasi‑judicial or administrative in nature.
- Whether any implied or ancillary powers allow the Election Commission to cancel registration in the absence of express statutory provision.
Legislation cited
Subjects
Election lawDe‑registration of political partiesRepresentation of the People ActQuasi‑judicial functionGeneral Clauses ActHartal vs BundhConstitutional violationStatutory interpretation
Judgment
)
A INDIAN NATIONAL CONGRESS (I) --1--~
v.
INSTITUTE OF SOCIAL WELFARE AND ORS.
MAY IO, 2002
">\
B [V.N. KHARE AND ASHOK BHAN, JJ.] I
Election laws :
'~ .......'
I
'
Representation of the People Act, 1951: Section 29A-Power of the
c Commission-De-registration/cancellation ofregistration ofa Political Party-
On the grounds of hartal by force/intimidation/coercion-Held, in the absence
ofexpress provisions in the Act/Symbol Order, no proceeding could be initiated
by the Election Commission against a political party for its de-registration.
Election (Reservation and Allotment) Symbols Order.
D •Power of the Commission to review~Exercise of-Held, incidental and
ancillary power. But such power is not an implied power of revocation. r- -
Administrative law :
Quasi-Judicial and Administrative functions-Distinction between-
E Authority acting quasi-judicially should act according to the rules whereas
authority acting administratively is dictated by the policy and expediency.
Quasi-judicial authority-Circumstances-Presence of /is is sufficient to
hold that statutory authority is a quasi judicial authority-However, in the
f.--
absence of /is, a statutory authority would be quasi-judicial authority only if r- ....
F it is required to act judicially under the Statute.
t
General Clause Act: Section 21 •
Applicability of-Held, Provision cannot be extended to the Election
Commission since it acts quasi-judicially while exercising its power under
G Section 29A of the Representation of the People Act.
Writ Petitions were filed before the High Court for enforcement of
decision in the case Communist Party of India (Marxist) v. Bharat Kumar '1
..
and Ors., AIR (1998) SC 184 wherein it was held by the Supreme Court
·H 1040
,.
r
~'1
INDIAN NATIONAL CONGRESS(/) 1·. INSTITUTE OF SOCIAL WELFARE 1041
that" there is a distinction between 'Bundh' and 'Hartal'. A call for a A
Bandh involves coercion of others into towing the lines of those who
called for the bundh and that the act was unconstitutional, since it violated
the rights and liberty of other/citizens guaranteed under the Constitution".
It was alleged in the writ Petitions that political parties continued to call
bundh under the name and cover of hartal, and prayed to issue B
appropriate directions to the State Government to give effect to the
declaration of law as laid down by the apex Court since High Court
earlier issued orders accordingly and State Government in compliance
thereof issued necessary orders/directions which proved ineffective. Some
of the writ petitioners submitted representation to the Election Commission
as well for de-registration of such political parties who had contravened C
the provisions of the Constitution and no action has been taken by the
Election Commission and, therefore, it was prayed for issuing a direction
to the Election Commission of India to take action against registered
political parties for violation of their undertaking that they would abide
by the Constitution. High Court found that the political parties had
contravened the constitutional provisions of guaranteed freedom to the D
citizens. Thus they were liable to be appropriately dealt with and though
there is the absence of express provisions to de-register a political party
but on application of Section 21 of the General Clauses Act, and on a
complaint filed for de-registation of a political party on the ground of
violation on Constitutional provisions, the Election Commission, after E
giving an opportunity to such political party on a finding that such political
party had com milted breach of the provisions of the Constitution, Election
Commission could de-register or cancel the registration of such political
parties. Hence these appeals.
It was contended for the appellants that in the absence of express F
provision to, cancel registration of a political party, the Election
• Commission of India, under Section 29A of the Act, could not initiate any
such proceeding against a political party. There was no power of review
conferred on the Election Commission. Therefore, it could not de-register
a political party for violation of either the provisions of the Constitution G
or for commission of breach of Undertaking given to the Election
Commission; and that it is erroneous to draw conclusion that the Election
Commission is empowered to revoke the rescind the order of registration
on application of Section 21 of the General Clauses Act.
It was contended for the respondent that in the absence·of lis, H
1042 SUPREME COURT REPORTS (2002] 3 S.C.R.
A functions being discharged by the Election Commission cannot be termed
as quasi-judicial functions but administrative in nature.
It was contended for the Union of India that the Election Commission
while exercising power under Section 29A of the Act, acts quasi-judicially
and it has no power to de-register a political party excepting (a) when
B Election Commission finds th&t the party had secured registration by
playing fraud on the Commission (h) when party informs about change
in its constitution or does not believe in the provisions of the Constitution '"f.
and (c) any like ground where no enquiry is called for on the part of the
Election Commission.
c Partly allowing the appeals, the Court
HELD : I. A perusal of un-amended paragraph 3 of the Election
(Representation and Allotment) Symbols Order shows that it did not
provide for de-registration of a political party registered under the
D Symbols Order. Nor any such provision was made after the Symbols
Order was amended and Section 29A was inserted in the Representation
of the People Act. Neither the provisions of Section 29A of the Act nor
the rules framed thereunder provide for de-registration or cancellation
of registration of a political party. Thus, Election Commission has not
been conferred with any express power to de-register a registered political
E party either under Section 29A of the Act or under the Symbol Order on
the ground that it has either violated the provisions of the Constitution
or an undertaking given before the Election Commission at the time of
its registration. I1055-C, D, EI
2.1. The dictionary meaning of the word quasi is 'not exactly' and 'f
F it is just in bet·ween a judicial and administrative function. It is true, in
many cases, the statutory authorities were held to be qausi-judicial
authorities and decisions rendered by them were regarded as quasi
judicial, where there were contest between the two contending parties
and the statutory authority was required to adjudicate upon the rights of
G the parties. 11056-H; 1057-A)
Cooper v. Wilson, 11937) 2 KB 309, referred to.
2.2. Where there are two or more parties contesting each other's
claim and the statutory authority is required to adjudicate the rival claims
H between the parties, such a statutory authority was held to be quasi-
INDIAN .NATIONAL CONGRESS (I) I'. INSTITUTE OF SOCIAL WELFARE } Q4 3
judicial and decision rendered by it was a quasi-judicial order. Thus, A
where there is a lis or two contesting parties making rival claims and the
statutory authority under the provision is required to decide such a
dispute, in the absence of any other attributes of a quasi-judicial authority,
such a statutory authority is quasi-judicial authority. 11057-B, Cl
2.3. Presence of a lis or contest between the contending parties B
before a statutory authority, in the absence of any other attributes of a
quasi-judicial authority, is sufficient to hold that such a statutory authority
is quasi judicial authority. However, in the absence of a lis before a
y
statutory authority, the authority would be quasi-judicial authority if it
• is required to act judicially. 11059-AI C
Queen v. Dublin Corporation, (1878) 2 Ir. R. 371; Electricity
Commissioner, (1924) 1 KB 171 and Province of.Bombay v. Kusa/das S.
Advani and Ors., 119501 SCR 621, referred to.
2.4. It is true that mere presence of one or two attributes of quasi- D
judicial authority would not make an administrative act as quasi-judicial
act. In some cases, an administrative authority may determine question
of fact before arriving at a decision which may affect the right of the
petitioner but such a decision would not be quasi-judicial act. It is different
thing that in some cases fair-play may demand affording of an opportunity
to the claimant whose right is going to be affected by the act of the E
administrative authority, still such an administrative authority would
not be quasi-judicial authority. 11059-B, q
2.5. Test which distinguishes administrative function from quasi-
judicial function is, the authority who acts quasi-judicially is required to
act according to the rules , whereas the authority which acts F
f administratively is dictated by policy and expediency. In the present case,
the Election Commission is not required to register a P,olitical party in
accordance with any policy or expediency but strictly in accordance with
the statutory provisions. The Election Commission while exercising its
power to register a political party under section 29A of the Act, acts G
quasi-judicially and decision rendered by it is a quasi-judicial order and
once a political party is registered, no power or review having conferred
on the Election Commission, it has no -.power to review the order
registering a political party for having violated the provisions of the
r Constitution or for having committed breach of undertaking given to the
Election Commission at the time of registration. 11060-A, B, G, H; 1061-CI H
I
?
1044 SUPREME COURT REPORTS (2002] 3 S.C.R.
A Radhey Shyam Khare v. State of M.P. and Ors., 119591 SCR 1440,
referred to.
Wade & Forsyth 's Administrative Law, referred to.
3.1. From the provisions as contained in Section 29 of the Act, it is
B manifest that the Commission is required to consider the matter, to give
opportunity to the representative of political party and after making
enquiry and further enquiry arrive at the decision whether to reg.ister a
political party or not. In view of the requirement of law that the
Commission is to give decision only after making an enquiry, wherein an y ._.
C opportunity of hearing is to be given to the representatives of the political
party, the Election Commission under Section 29A is required to act
judicially and in that view of the matter the act of the Commission is
quasi-judicial.
3.2. There are three exceptions where the Commission can review
D its order registering a political party where a political party obtained its
registration by playing fraud on the Commission, secondly ar~ses out of
sub-Section (9) of Section 29A of the Act and thirdly, any like ground
where no enquiry is called for on the part of the Election Commission.
To the first exception, it is almost settled law that fraud vitiates any act
or order passed by any quasi-judicial authority even if no power of review
E is conferred upon it. In fact, fraud vitiates all actions. Fraud or forgery
practised by a political party while obtaining a registration, if comes to
the notice of the Election Commission, it is open to the Commission to
de-register such a political party. As to the second exception, the very
substratum on which the party obtained registration is knocked off and
the Commission its ancillary power can undo the registration of a political
F
party. In such cases, power of the Commission to cancel the registration
of a political party is sustainable on the settled legal principle that when
a statutory authority is conferred with a power, all incidental and ancillary
powers to effectuate such power are within the conferment of the power,
although not expressly conferred. But such an ancillary and incidental
G power of the Commission is not an implied power of revocation.
11061-D-E-F-G; 1062-B-CI
Smith v. East Elias Rural Distt. Council, 119561 5 SCC 550 and Indian .
Bank v. Satyam Fibres (India) Pvt. Ltd., 119561 5 SCC 550, referred to.
t
H 4. Parliament consciously had not chosen to confer any power on
INDIAN NATIONAL CONGRESS (I) 1·. INSTITUTE OF SOCIAL WEI.FARE fV.N. KHARE, J.] } 045
the Election Commission to de-register a political party on the premise A
that it has contravened the provisions of sub-section (5) of Section 29A.
The question which arises for consideration is \'Vhether in the absence of
any express or implied power, the Election Commission is empowered to
cancel the registration of a political party on the strength of the provisions
of Section 21 of the General Clauses Act. The Expression 'order' employed B
in Section 21 of the General Clauses Act shows that such an order must
be in the nature of notification, rules and bye-Jaws etc. The order which
can be modified or rescinded on the application of Section 21 has to be
either executive or legislatiive in nature. But the order which the
-- Commission is required to pass under Section 29A is neither a legislative
nor an exe~utive order but is a quasi·judicial order. Thus, the provisions
of Section 21 of the General Clauses Act cannot be invoked to confer
C
powers of de-registration/cancellation of registration after enquiry by
the Election Commission. Therefore, Section 21 of the General Clauses
Act has no application where a statutory authority is required to act
quasi-judicially. J1063-C-D-F-GJ
D
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 3320-
21 of 200 I.
From the Judgment and Order dated 1.6.2001 of the Kerala High Court
in O.P. No. 20641, 17833 of 1998.
- WITH
C.A. Nos. 3322-23/200 l, C.P. (C) Nos. 334-335/2000 in C.A. Nos.
E
3320-3321, 3324 and 3325 of 200 I.
L. Nageshwara Rao Haris Beeran, S. U.K. Sagar, Ranji Thomas, Javed
M. Rao, Krishnan Venugopal, Ms. Hema Srinivasan for S.N. Terdol, G. F,
Prakash, T.G.N. Nair, Ramesh Babu M.R., K.R. Sasiprabhu, John Mathew,
S. Murlidhar, B.K. Pal, P.N. Jha and M.T. Goerge for the appearing parties.·
The Judgment of the Court was delivered by
V.N. KHARE, J. The foremost question that arises in this group of G
appeals is whether the Election Commission of India under Section 29A of
the Representation of the People Act, 1951 (hereinafter referred to as the
'Act') has power to de-register or cancel the registration of a political party
, on the ground that it has called for hartal by force, intimidation or coercion
and thereby violated the provisions of the Constitution of India. H
1046 SUPREME COURT REPORTS [2002] 3 S.C.R .
A The aforesaid question has arisen out of the directions issued by the
High Court of Kerala on the writ petitions filed for enforcement of decision
in the case of Communist Party of India (Marxist) v. Bharat Kumar and Ors.,
AIR (1998) SC 184 wherein it was held that "there is a distinction between
'bundh' and 'hartal'. A call for a bundh involves coercion of others into
B towing the lines of those who called for the bundh and that the act was
unconstitutional, since it violated the rights and liberty of other citizens
guaranteed under the Constitution".
In the writ petitions filed before the High Court it was alleged that
despite the law having been declared by the Supreme Court that calling of a
C bundh is unconstitutional, the political parties in the State of Kerala continued
to call bundh under the name and cover of hartal. It was prayed that direction
be issued to the government of Kerala for taking appropriate measures to
give effect to the declaration of law by the Supreme Court in the case of
Communist Party of India (supra). The High Court from time to time issued
orders and in compliance thereof, the Chief Secretary as well as Director
D General of Police issued necessary orders, but such directions proved
ineffective and the political parties continued to give call for bundh in the
name ofhartal. It was also alleged that some of the writ petitioners submitted
representations to the Election Commission of India for taking necessary
proceedings against the registered political parties for de-registration as they
E had contravened the provisions of the Constitution, but no action has been
taken by the Election Commission in that regard. In one of the writ petitions
one of the reliefs sought for with which we are concerned in this group of
appeals, was to issue a direction to the Election CommissiotJ of India to take
action against the registered political parties for violation of their undertaking
that they. will abide by the Constitution. In nutshell, the case of the writ
F petitioners before the High Court was that by holding a hartal and enforcing
it by force, threat and coercion, there is the performance of an unconstitutional
act and one of the clear and definite ways of preventing such unconstitutional
activity on the part of political parties registered under the Representation of
the People Act is to take steps for their de-registration on the ground of
G violation of the Constitution of India.
In the said writ petitions, the Communist Party of India (Marxist) filed
counter affidavit and stated therein that they did not give call for a bundh
and, in fact, the call given by them was for a hartal. It is also stated therein
that at the call for hartal, it was optional for every citizen either to open or
.H close their shops and in fact there was only an appeal to public to join the
INDIAN NATIONAL CONGRESS (I) 1·. INSTITUTE OF SOCIAL WELFARE [V.N. KHARE, J.] ) 047
hartal and further there was no element of compulsion in the appeal and, A
therefore, the Communist Party of India (Marxist) did not violate either the
provisions of the Constitution or decision rendered by the Supreme Court in
the case of Communist Party of India v. Bharat Kumar (supra). Indian National
Congress (I) also filed a counter affidavit submitting that the call for hartal
given by them was not a bundh. It was also stated therein that giving a call B
for ha1tal was a part freedom of speech and expression protected under Article
19(1 )(a) of the constitution and it was merely a d_evice to elicit the support
of the people towards their specific issues highlighted by political parties,
- y
organisation and also to inform and educate the public regarding specific
problems affecting their day to day life. It was also stated that the State can
take preventive measures in case there is any violence or interference of
constitutional or legal rights of the citizens.
C
The Election Commission oflndia also filed its return and stated therein
that it does not have power to de-register or cancel the registration of a
political party under Section 29A of the Act. It was also stated by the Election
Commission that similar maner··~rose before it in a petition filed by Shri D
Arjun Singh and others seeking de-registration of the Bharatya Janata Party
as a political party and also freezing of its reserved symbol 'LOTUS' and the
- ~ Election Commission oflndia by its order dated 19.2.92 rejected the petition
after having found that it does not have power under Section 29A of the Act
to de-register a registered political party. It was also brought to the notice of E
the High Court that the decision of the Election Commission of India was
also tested by filing a special leave petition before the Supreme Court, but the
same was dismissed on 28.8.92. In that view of the matter, no direction can
be issued by the High Court to the Election Commission of India to take any
proceeding for de-registration of a registered political party for having violated
the constitutional provisions. F
The High Court was of the view that mere giving a call for a hartal or
advocating of it as understood in the strict sense cannot be held to be illegal
• in the context of the decision in Communist Party of India v. Bharat Kumar
(supra). However, the moment d hartal seeks to impinge the right of others
it ceases to be a hartal in a real sense of the freedom and really turns out a G
violent demonstration affecting the rights of others and such an act has to be
curtailed at the instance of other citizens whose rights are affected by such
an illegal act. The High Court, as a matter of fact, found that what was called
a hartal was not what was strictly meant by that term, but a form of a bundh
involving intimidation and coercion of those who do not want to respond to H
/
....
1048 SUPREME COURT REPORTS [2002] 3 S.C.R.
A the call or participate in it. The High Court after having found that the
political parties have contravened the constitutional provisions of guaranteed
freedom to the citizens, they are liable to be appropriately dealt with. In that
context, the High Court was of the view that although Section 29A of the Act
expressly does not empower the Election Commission of India to de-register
a registered political party for having contravened the provisions of the
B Constitution, but on application of Section 21 of the General Clauses Act, the
Election .Commission of India has power on a complaint filed with it, to
initiate proeeedings for de-registration against a political party for having
violated the .constitutional provisions and after giving opportunity to such
political parties, ifit is found that they have committed breach of the provisions
C of the Constitution, the Election Commission of India has power to de-register
or cancel the registration of such political parties. The High Court distinguished
the summary dismissal of the special leave petition No. 8738/1992 filed by
Shri Arjun Singh against Bharatiya Janata Party and another by the appex
Court Qn 28.8.92 on the ground that dismissal of a special leave petition
without any reason is not binding as it does not lay down law within the
D meaning of Art. 141 of the Constitution.
In the aforesaid view of the matter, the High Court while allowing the
writ petitions passed the following orders:
"(i) We declare that the enforcement of a hartal call by force,
E intimidation, physical or mental and coercion would amount to an
unconstitutional act and party or a hartal has no right to enforce it by
resorting to force or intimation.
(ii) We direct the State, Chief Secretary to the State, Director General
of Police and all the administrative authorities and police officers in
F the State to implement strictly the directives issued by the directions
given by the Director General of Police dated 4.2.1999 and set out
fully in the earlier part of this judgment. --
(iii) We issue a writ of mandamus to the Election Commission to
entertain complaints, if made, of violation of Section 29A(5) of the
G Representation of the People Act, 1951 by any of the registered
political parties or associations, and after a fair hearing, to take a
decision thereon for de-registration or cancellation of registration of
that party or organisation, if it is warranted by the circumstances of
the case. ·
H (iv) We issue a writ of mandamus directing the Election Commission
INDJAN NATIONAL CONGRESS (I) 1·. INSTITUTE 01;· SOCIAL WELFARE [V.N. KHARE, 1.J } 049
to consider and dispose of in accordance with law, the Representation A
Ext. P9 in o.p. 20641 of 1998, after giving all the affected parties an
opportunity of being heard.
(v) We direct the state of Kerala, the Chief Secretary to the
Government, the Director General of Police and all other officers of
the State to take all ·necessary steps at all necessary tin1es, to give B
effect to this judgment.
(vi) We direct the State, District Collectors, all other officers of the
State and Corporations owned or controlled by the State to take
i1n1nediate and prompt action, for recovery of damages in cases where
pursuant to a call for hartal, public property or property belonging to C
the corporation is dan1aged or destroyed, from the perpetrators of the
acts leading to destruction/damage and those who have issued the cal\
for hartal."
It is against the aforesaid decision of the High Court these appeals
have been filed by way of separate special leave petitions. D
We have heard Shri Ashwani Kumar, learned senior counsel appearing
- -( for the Indian National Congress (I), Shri Soli J. Sorabjee, learned Attorney
General appearing for the Union of India, Shri S. Muralidhar, learned counsel,
appearing for Election Commission of India, Shri Rajeev Dhavan, learned E
senior counsel and Shri B.K. Pal, learned counsel appearing for Communist
Party of India (Marxist) and Communist Party of India, respectivef~, and Shri
L Nages\Yara Rao, learned senior counsel appearing for the writ petitioners
respondents.
Shri Soli J. Sorabjee, learned Attorney General and other learned counsel
F
for the appellants appearing in other connected civil appeals stated that these
appeals are pressed only against direction Nos. (iii) and (iv) given by the
High Court to the Election Commission of India.
Learned counsel appearing for the appellants, inter a/ia, argued -
- that there being no express provision in the Act to cancel the registration
of a political party under Section 29A of the Act, and as such no proceedings
can be taken by the Election Commission of India against a political party for
having violated the provisions of the Constitution; -that the Election
Con1n1issio11 of India while exercising the power to register a political party
under Section 29A of the Act acts quasi-judicially and once a political party H
1050. SUPREME CO,URT REPORTS [2002] 3 S.C.R.
A is registered, no power of review having been conferred on the Election
Commission of India, the Election Commission has no power to de-register
a political pa1ty for having violated the provisions of the Constitution or
committed breach of undertaking given to the Election Commission at the
time of its registration;
B - and that the view taken by the High Cou1t that since the Election
Commission has power to ~egister a political party under Section 29A of the
Act, it is eq'ually empowered to revoke or rescind the order of registration on
application otSection 2 I of the General Clauses Act is erroneous.
C Learned counsel appearing for the respondent supported the judgment
of the High Court and argued that the appeals deserve dismissal.
-
Befo1:e we advert to the arguments raised by learned counsel for the
parties it is necessary to refer to relevant provisions of the Act and rules
framed thereunder and the provisions of the Election Symbols (Reservation
D and Allotment) Order, 1968 (hereinafter referred to as the 'Symbols Order')
framed by the Election Commission in exercise of its power under Article
324 of the Constitution to find out whether the Election Commission has
power to de-register a registered political party.
By the Representation of the People (Amendment ) Act, I 988 (I of·
E 1989), Section 29A was inserted in the Act. The Statement of Objects and
Reasons appended to the Bill which was introduced in the Parliament and
subsequent(~ was converted into an Act, runs as under :
"At present, there is no statutory definition of political party in the
Election Law. The recognition of a political party and the allotment
F of symbols for each party are presently regulated under the Election
Symbols (Reservation and Allotment) Order, 1968. It is felt that the
Election Law should define political party and lay down procedure
for its registration. It is also felt that the political parties should be
required to include a specific provision in the memorandum or rules
and regulations governing their functioning that they would fully be
G committed to and abide by the principles enshrined in the preamble
to the Constitution".
Before Section 29A of the Act came into force, the political parties
were registered under the Election (Reservation and Allotment) Symbols Order
H 1968 (hereinafter referred to as the 'Symbols Order) read with Rules 5 and
INDIAN NATIONAL CONGRESS (I) 1·. INSTITUTE OF SOCIAL WELFARE !V.N. KHARE, J.] ] 051
- ,. IO of the Conduct of Election Rules. Paragraph 3 of the Symbols Order as A
it existed prior to coming into force Section 29A of the Act, runs as under:
"3. Registration with the Commission of associations and bodies as
political parties for the purposes of th is Order - (I) Any association
or body of individual citizens of India calling itself a political party
and intending to avail itself of the provisions of this Order shall make B
an application to the Commission for its registration as a political
party for the purposes of th is Order.
(2) Such application shall be made -
(a) if the association or body is in existence at the commencement C
of this Order, within sixty days next following such
commencement:
(b) if the association or body is formed after the commencement of
this Order, within sixty days next following the ·date of its
formation:
D
- ·--(
Provided that no such application for registration shall be necesSary
on the part of any political party which immediately before the
commencement of this Order is either a multi-state party or a
recognised party other than a multi-state party and every such party
shall be deemed to be registered with the Commission as a political E
party for the purposes of this Order.
(3) Every application under sub-paragraph (I) shall be signed by the
chief executive officer of the association or body (whether such chief
executive officer is known as Secretary or by any other designation)
and either presented to a Secretary to the Commission or sent to such F
Secretary by registered post.
(4) Every such application shall contain the following particulars,
namely :-
(a) the name of the association or body;
G
(b) the State in which its head office is situated;
(c) the address to which letters and other communications meant
for it should be sent;
(d) the names of its president, secretary and all other office-bearers; H
•
r
1052 SUPREME COURT REPORTS [2002] 3 S.C.R. I
A (e) the numerical strength of its members, and if there are categories ~-
of its men:ibers, the numerical strength in each category;
(f) whether it has any local units; if so, at what levels (such as
district level, thana or block level), village level, and the like);
(g) the political principles on which it is based;
B
(h) the policies, aims and objects it pursues or seeks to pursue;
(i) its programs, functions and activities for the purpose of carrying
out its political principles, policies, aims and objects;
"' .....
~
U) its relationship with the electors and popular support it enjoys,
c and tangible proof, if any, of such relationship and support;
(k) whether it is represented by any member or members in the
House of the People or any State Legislative Assembly, if so,
the number of such member or members;
(I) any other particulars which the association or body make like to
D
mention.
r--
(5) The Commission may call for such other particulars as it may
deem fit from the association or body.
(6) After considering all the particulars as aforesaid in its possession
E and any other necessary and relevant factors and after giving the
representatives of the association or body reasonable opportunity of
being heard, the Commission shall decide either to register the
association or body as a political party for the purposes of this Order,
or not so to register it; and the Commission shall communicate its
decision to the association or body.
F
(7) The decision of the Commission shall be final;
(8) After an association or body has been registered as a political
party as aforesaid, any change in its name, head office, office-bearers,
address or political principles, policies, aims and objects and any
G change in any other material matters shall be communicated to the
Commission without delay."
Section 29A of the Act runs as under:
"29A. Registration with the Election Commission of association and
H bodies as political parties
INDIAN NATIONAL CONGRESS (I)"· INSTITUTE OE SOCIAL WELEARE [V.N. KMARE, J.j ] 053
(I) Any association or body of individual citizens of A
India calling itself a political party and intending to avail itself of
provisions of this Part shall make an application to the Election
Commission for its registration as a political party for the purposes
of this Act
B
(2) Every such application shall be made -
- (a)
(b)
if the association or body is in existence at the co1nmence1nent
of the Representation of the People (Amendment) Act, 1988, (I
of 1989), within sixty days next following such commencement:
if the association or body is formed after such commencement, C
within thirty days next following the date of its formation:
(3) Every application under sub-section (!) shall be signed by the
chief executive officer of the association or body (whether such chief
executive officer is known as Secretary or by any other designation)
and presented to the Secretary to the Commission or sent to such D
Secretary by registered post
(4) Every such application shall contain the following particulars,
namely :-
(a) the name of the association or body;
E
(b) the State in which its head office is situated;
(c) the address to which letters and other communications meant
for it should be sent;
y
(d) the names of its president, secretary, treasurer and other office-
"' bearers;
F
(e) the numerical strength of its members, and ifthere are categories
of its members, the numerical strength in each category;
• (f)) whether it has any local units; if so, at what levels;
G
(g) whether it is represented by any member or members in either
House of Parliament or of any State Legislature; if so, the number
of such n1e1nber or members.
(5) The application under sub-section (I) shall be accompanied by a
copy of the me1norandu1n or rules and regulations of the association H
1054 SUPREMI~ COURT REPORTS [2002] 3 S.C.R.
A or body, by whatever name called, and such memorandum or rules
and regulations shall contain a specific provision that the association
or body shall bear true faith and allegiance to the Constitution of
India as by law established, and to the principles of socialism,
secularism and democracy, and would uphold the sovereignty, unity
and in~egrity of India.
B
(6) The Commission may call for such other particulars as it may
deem fit from the association or body.
(7) After considering all the particulars as aforesaid in its possession
and any other necessary and relevant factors and after giving the
C representatives of the association or body reasonable opportunity of
being heard, the Commission shall decide either to registe~ the
association or body as a political party for the purposes of this Part,
or not so to register it; and the Commission shall communicate its
decision to the association or body:
D Provided that no association or body shall be registered as a
political party under this sub-section unless the memorandum or rules r--- '
and regulations of such association or body conform to the provisions
of sub-section (5).
(8) The decision of the Commission shall be final;
E
(9) After an association or body has been registered as a political
party as aforesaid, any change in its name, head office, office-bearers,
address or in any other material matters shall be communicated to the
Commission without delay."
F A conjoint reading of Section 29A and paragraph 3 of the Symbols
Order as it existed prior to enforcement of Section 29A of the Act shows that
there were only two significant changes and other provisions remained L:te
same. The first change is reflected in sub-section (5) of Section 29A of the
Act which provides that the application for registration· shall be accompanied
G by a copy of memorandum or rules and regulations of the political party
seeking registration under the Act and such memorandum or rules and
regulations shall contain a specific provision that such a political party shall
bear true faith and allegiance to the Constitution of India, as by law established
and to the principles of socialism, secularism and democracy and would
uphold the sovereignty, unity and integrity of India. The second change is
H reflected in sub-section (4) of Section 29A of the Act which embodied in it,
INDIAN NATIONAL CONGRESS (I) 1·. INSTITUTE OF SOCIAL WELFARE [V.N_ KHARE, .I.} 1055
A
the provisions of different clauses of sub-paragraph (4) of paragraph 3 of the
Symbols Order.
After Section 29A of the Act came into force, paragraph 3 of the
Symbols Order stood amended inasmuch as the definition of a political party
in paragraph 2(1) (4) of the Symbols Order was also amended. Earlier, under B
paragraph 3 of the Symbols Order, a political party wa.< defined as a registered
party. After Section 29A was inserted in the Act. tl :finition of a political
party in the Symbols Order was amended to the effl iat the political party
n1eans a party registered \Vith the Election Co1n1nissi6fl under Section 29A of
the Act. Consequently, paragraph 3 of the Symbols Order was also amended C
to the extent it prescribed additional information which a political party was
required to furnish to the Election Co1n1nission along with an application for
registration. Now such additional information the Election Con1mission is
authorised to call for under sub-section (6) of Section 29A of the Act. A
perusal of un-amended paragraph 3 of the Symbols Order shows that it did
not provide for de-registration of a political party registered under the Symbols D
Order. Nor any such provision was made after the Symbols Order was amended
after Section 29A was inserted in the Act. Further, neither the provisions of
Section 29A of the Act nor the rules framed thereunder, provide for de-
registration or cancellation of registration of a political party. We are, therefore,
of the view that neither under the Symbols Order nor under Section 29A of
the Act, the Election Co1n1nission has been conferred with any express power E
to de-register a political party registered under Section 29A of the Act on the
ground that it has either violated the provisions of the Constitution or any
provision of unde1taking given before the Election Co1n1nission at the time
of its registration.
F
The question then arises whether, in the absence of an express power
in the Act, the Election Commission is empowered to de-register a registered
political party. Learned Attorney General, appearing for the Union of India
urged that the Election Commission while exercising its power under Section
29A of the Act, acts quasi-judicially and in absence of any express power of
review having been conferred on the Election Co1nmission, the Election G
Commission has no power to de-register a political party. According to lean1ed
Attorney General. excepting in three circun1stances when the Election
Commission could not be deprived of the power to de-register a party are -
(a) when the Election Commission finds that the party has secured registration
by playing fraud on the Commission, (b) when a political party itself informs H
1056 SUPREME COURT REPORTS [2002] 3 S.C.R.
A the Commission in pursuance of Section 29A(9) that it has changed its ...c._ -4-
constitution so as to abrogate the provision therein conforming to the provisions
of Section 29A(5) or does not believe in the provisions of the Constitution,
rejecting the very basis on which it secured· registration as a registration
political party and (c) any like ground where no enquiry is called for on the
part of Election Commission, the Commission has no power to de-register a
B political party. Learned Attorney General further argued that in a situation
where a complaint is made to the Election Commission and it is required to
make an inquiry that a particular registered political party has committed
breach of the undertaking given before the Election Commission or has violated
the provisions of the Constitution, the election Commission has neither any
C power to make any inquiry into such a complaint nor de-register such a
political party.
Whereas, Shri L. Nageshwara Rao, learned counsel appearing for
respondent No. I urged that the discharge of function by the Election
Commission under Section 29A of the Act cannot be termed as quasi-judicial
D function, in the absence of a lis - a proposition and apposition between the
two contending parties which the statutory authority is required to decide.
According to him, unless there is a lis or two contending parties before the
Election Commission, the function assigned to the Election Commission under
Section 29A is an administ~ative in nature. His further argument is that where
E exercise of an administrative function manifests one of the attributes of quasi-
judicial function, such a discharge of function is not quasi-judicial. Learned
counsel referred to a passage from Wade & Forsyth 's Administrative Law
and relied upon decisions in Province of Bombay v. Kusa/das S. Advani and
Ors., (1950] SCR 621, Shri Radeyshyam Khare and Anr. v. The State of
Madhya Pradesh and Ors., (1959] SCR 1440, TN. Seshan, Chief Election
F Commissioner of India etc. v. Union of India and Ors., [1995] 4 SCC 611
and State of H.P. v. Raja Mahendra Pal and Ors., (1999] 4 SCC 43 in
support of his argument.
On the argument of parties, the question that arises for our consideration
is, whether the Election Commission, in exercise of its powers under 29A of
G the Act, acts administratively or quasi-judicially. We shall first advert to the
argument raised by learned counsel for the respondent to the effect that in the
absence of any lis or contest between the two contending parties before the
Election Commission under Section 29A of the Act, the function discharged -J.c
by it is administrative in nature and not a quasi judicial one. The dictionary
H meaning of the word quasi is 'not exactly' and it is just in between a judicial
I
lND!AN NATIONAi. CONGRESS (l) 1·. INSTITUTE OF SOCIAL WELFARE {V N. KHARE, .1.\ }057
and adtninistrative function. It is true, in 111any cases, the statutory authorities A
were held to be quasi-judicial authorities and decisions rendered by them
were regarded as quasi judicial, where there were contest between the two
contending parties and the statutory authority was required to adjudicate
upon the rights o'f the parties. In Cooper v. Wilson (1937) 2 KB 309, it is
stated that "the definition of a quasi-judicial decision clearly suggests that B
there 111ust be t\vO or n1ore contending parties and an outside authority to
decide those disputes''. In view of the aforesaid statement of law, where there
are two or 1nore parties contesting each other's claim and the statutory authority
• is required to adjudicate the rival claims between the parties, such a statutory
authority was held to be quasi-judicial and decision rendered by it as a quasi-
judicial order. Thus, where there is a lis or two contesting p~rties 1naking C
rival clai1ns and the statutory authority under the statutory provision is required
to decide such a dispute, in the absence of any other attributes of a quasi-
judicial authority, such a statutory authority is quasi-judicial authority.
But there are cases where there is no lis or two contending parties
before a statutory authority yet such a statutory authority has been held to be D
quasi-judicial and decision rendered by it as quasi-judicial decision when.
such a statutory authority is required to act judicially. In Queen v. Dublin
Corporation, (1878) 2 Ir. R. 371, it was held thus:
"In this connection the term judicial does not necessarily 1nean acts
of a Judge or legal tribunal sitting for the detennination of matters of E
law, but for purpose of this question, a judicial act seen1s to be an act
done by con1petent authority upon consideration of facts and
circumstances and imposing liability or affecting the rights. And if
there be a body e111polvered by law to enquire into facts, makes
estimates to impose a rate on a district, it would seem to me that the F
acts of such a body involving such consequence would be judicial
acts."
Atkin L.J. as he then was, in Rex v. Electricity Commissioners, (1924)
KB 171 stated that when any body of persons having legal authority to
determine questions affecting the rights of subjects and having the duty to act G
judicially, such body of persons is a quasi-judicial body and decision given
by then1 is a quasi-judicial decision. In the said decision, there ~as no contest
or !is betv.. een the two contending parties before the Co1n1nissioner. The
1
~ Con1111issioner_ after n1aking an enquiry and hearing the objections was
required to pass order. In nutshell, what was held in the aforesaid decision
was, where a statutory authority is e1npo,Nered to take a decision which H
1058 SUPREME COURT REPORTS [2002] 3 S.C.R.
A affects the rights of persons and such an authority under the relevant law
required to make an enquiry and hear the parties, such authority is quasi-
judicial and decision rendered by it is a quasi-judicial act.
--\ .•
In Province of Bombay v. Kusa/das S Advani and Ors., (supra), it was
held thus:
B
''(i) that if a statute empowers an authority, not being a Cou11 in the
ordinary sense, to decide disputes arising out of a claim made by one
party under the statute which claim is opposed by another party and
to determine the respective rights of the contesting pai1ies who are
· opposed to each other, there is a lis and prima facie and in the
c absence of anything in the statute to the contrary it is the duty of the
authority to act judicially and the decision of the authority is a quasi-
judicial act ; and
(ii) that if a statutory authority has power to do any act which will
prejudicially affect the subject, then, although there are not two parties
D apart from the authority and the contest is between the authority
proposing to do the act and the subject opposing it, the final
determination of the authority will yet be a quasi-judicial act provided
the authority is required by the statute to act judicially.
In other words, while the presence of two parties besides the
E deciding authority will prima facie and in the absence of any other
factor impose upon the a~thority the duty to act judicially, the absence
of two such parties is not decisive in taking the act of the authority
out of the category of quasi-judicial act ifthe authority is nevertheless
required by the statute to act judicially."
F
The legal principles laying down when an act of a statutory authority
would be a quasi-judicial act, which emerge from the aforestated decisions
are these :
Where (a) a statutory authority empowered under a statute to do any
G act (b) which would prejudicially affect the subject (c) although there
is no lis or two contending parties and the contest is between the
authority and the subject and (d) the statutory authority is required to
act judicially under the statute, the decision of the said authority is
quasi-judicial.
H Applying the aforesaid principle, we are of the view that the
INDIAN NATIONAL CONGRESS (I) r. INSTITUTE OF SOCIAL WELFARE {V.N. KHARE, J.] l 059
__ >- presence of a lis or contest between the contending parties before a statutory A
_authority, in the absence of any other attributes of a quasi-judicial authority
is sufficient to hold that such a statutory authority is quasi judicial authority.
However, in the absence of a lis before a statutory authority, the authority
would be quasi-judicial authority if it is required to act judicially.
Con1ing to the second argun1ent of learned counsel for the respondent, B
it is true that 1nere presence of one or two attributes of quasi judicial authority
\Vould not 1nake an adn1inistrative act as quasi-judicial act. In so1ne cases, an
adn1inistrative authority 1nay detennine question of fact before arriving at a
decision which may affect the right of an appellant but such a decision would
not be quasi-judicial act. It is different thing that in some cases fair-play may C
den1and affording of an opportunity to the clai1nant whose right is going to
be affected by the act of the administrative authority, still such an
administrative authority would not be quasi-judicial authority.
What distinguishes an adn1inistrative act from quasi-judicial act is, in
the case of quasi-judicial functions under the relevant law the statutory D
authority is required to act judicially. Jn other words, where law requires that
an authority before arriving at decision must make an enquiry, such a
requirement of Jaw makes the authority a quasi-judicial authority.
Learned counsel for the respondent then contended that a quasi-judicial
function is an administrative function v:hich the law requires to be exercised
0 E
in some respects as if it were judicial and in that view of the matter, the
function discharged by the Election Commission under Section 29A of the
Act is totally administrative in nature. Learned counsel in support of his
argument relied upon the following passage from Wade & Forsyth's
Administrative Law :
F
"A quasi-judicial function is an administrative function which the
Jaw requires to be exercised in some respects as if it were judicial. A
typical example is a minister deciding whether or not to confirm a
compulsory purchase order or to allow a planning appeal after a
public inquiry. The decision itself is administrative, dictated by policy G
and expediency. But the procedure is subject to the principles of
natural justice, which require the 1ninister to act fairly towards the
objections and not (for example) to take fresh evidence without
disclosing it to theni. A quasi-judicial decision is therefore an
administrative decision which is subject to some measure of judicial
procedure." H
0
1060 SUPREME COURT REPORTS [2002] 3 S.C.R.
A We do not find any merit in the submission. At the outset, it must be
borne in mind that another test which distinguishes administrative function
from quasi-judicial function is, the authority who acts quasi-judicially is
required to act according to the rules, whereas the authority which acts
administratively is dictated by the policy and expediency. In the present case,
B the Election Commission is not required to register a political party in
accordance with any policy .or expediency but strictly in accordance with the ...
statutory provisions. The afore-quoted passage from Administrative Law by
Wade & Forsyth is wholly inapplicable to the present case. Rather, it goes
against the argument of learned counsel for the respondent. The afore-quoted
passage shows that where an authority whose decision is dictated by policy
C and expediency acts administratively although it may be exercising functions
in some respects as if it were judicial, which is not the case here.
We shall now examine Section 29A of the Act in the light of the
principles of law referred to above. Section 29A deals with the registration
of a political party for the purposes of the Representation of the Peoples Act.
D Sub-Section (I) of Section 29A of the Act provides who can make an
application for registration as a political party. Sub-sections (2) and (3) of the
said Section lay down making an application to the Commission. Sub-sections
(4) and (5) of the said Section provide for contents of the application. Sub-
section (7) of Section 29 r>rovides that the Election Commission after
E considering all the particulars in its possession and any other necessary and
relevant factors and after giving the representatives of the association
reasonable opportunity of being heard shall decide either to register the
association or body as a political party or not so to register it and thereupon
the Commission is required to communicate its decision to the politi~al party.
Further, sub-section (8) of Section 29A attaches finality to the decision of the
F Commission.
From the aforesaid provisions, it is manifest that the Commission is
required to consider the matter, to give opportunity to the representative of
political party and after making enquiry and further enquiry arrive at the
decision whether to register a political party or not. In view of the requirement
G of law that the Commission is to give decision only after making an enquiry,
wherein an opportunity of hearing is to be given to the representatives of the
political party, we are of the view that the Election Commission under Section
29A is required to act judicially and in that view of the matter the act of the +
Commission is quasi-judicial.
H
INDIAN NATIONAL CONGRESS (I)'" INSTITUTE OF SOCIAL WELFARE {V.N. KHARE, J.] l 06]
This 1natter niay be exan1ined fro1n al1other angle. If the directions· of A
- ;.- the High Court for considering the con1plaint of the respondent that some of
the appellants/political parties are not functioning in confonnity with the
provisions of Section 29A is to be implemented, the result will be that a
detailed enquiry has to be conducted where evidence may have to be adduced
to substantiate or deny the allegations against the parties. Thus, a !is would B
arise. Then there would be two contending parties opposed to each other and
the Comn1ission has to decide the matter of de-registration of a political
party. In such a situation the proceedings before the Co1nmission would
partake the character of quasi-judicial proceeding. De-registration of a political
party is a serious n1atter as it involves divesting of the party of a statutory
status of a registered political party. We are, therefore, of the v"iew that unless C
there is express power of review conferred upon the Election Commission,
the Con11nission has no po\ver to entertain or enquire into the con1plaint for
de-registering a political party for having violated the Constitutional provisions.
However, there are three exceptions where the Commission can review
its order registering a political party. One is where a political party obtained D
its registration by playing fraud on the Com1nission, secondly it arises out of
sub-section (9) of Section 29A of the Act and thirdly, any like ground where
no enquiry is called for on the part of the Election Commission, for example,
where the political party concerned is declared unlawful by the Central
Government under the provision of the Unlawful Activities (Prevention ) E
Act, 1967 or any other similar law.
Coming to the first exception, it is ahnost settled law that fraud vitiates
any act or order passed by any quasi-judicial authority even if no power of
review is conferred upon it. In fact, fraud vitiates all actions. In Smith v. East
Ellos Rural Distt. Council, (1956) I All E.R. 855, it was stated that the effect F
of fraud would normally be to vitiate all acts and order. In Indian Bank v.
Satyam Fibres (India) Pvt. ltd., [1996] 5 SCC 550, it was held that a power
to cancel/recall an order which has been obtained by forgery or fraud applies
not only to courts of law, but also statutory tribunals which do not have
power of review. Thus, fraud or forgery practised by a political party while G
obtaining a registration, if conies to the notice of the Election Co1n1nission,
it is open to the Com1nission to de-register such a political party.
The second exception is where a political party changes its no111enclature
of association, rules and regulation abrogating the provisions therein
conforming to the provisions of Section 29A (5) or intimating the Commission H
1062 SUPREME COURT REPORTS [2002].3 S.C.R.
A that it has ceased to have faith and allegiance to the Constitution of India or
. to the principles of socialism, secularism and democracy, or it would not
uphold the sovereignty, unity and integrity of India so as to comply the
provisions of Section 29A (5). In such cases, the very substratum on which
the party cl:itained registration is knocked off and the Commission in its
B ancillary power can undo the registration of a political party.Similar case is
in respect of any like ground where no enquiry is called for on the part of
the Commission. In this category of cases, the case would be where a registered
political party is declared unlawful by the Central Government under the
-
provisions of Unlawful Activities (Prevention) Act, 1967 or any other similar
law. In such cases, power of the Commission to cancel the registration of a
C political party is sustainable on the settled legal principle that when a statutory
authority is conferred with a power, all incidental and ancillary powers to
effectuate such power are within the conferment of the power, although not
expressly conferred. But such an ancillary and incidental power of the
Commission is not an implied power of revocation. The ancillary and incidental
power of the Commission cannot be extended to a case where a registered
D political party admits that it has faith in the Constitution and principles of
socialism, secularism and democracy, but some people repudiate such
admission and call for an enquiry by the Election Commission. Reason being,
an incidental and ancillary power of a statutory authority is not the substitute
of an express power of review.
E
Now, coming to the decisions relied upon by the learned counsel for
the respondent, we are of the view that none of the decisions relied upon are
of any assistance to argument of learned counsel for the respondent. The
decision of this Court in Province of Bombay v. Kusaldas Advani, (supra) has
been dealt with by us in the foregoing paragraph and is of no help to the case
F of the respondent. In the case of Radhey Shyam Khare v. State of MP.,
(supra), the State government issued an order on the ground of expediency
and policy and, therefore, it was held that the impugned order is an
administrative in nature. In TN. Seshan v. Union of India (supra), it was held
that the Election Commission besides administrative function is required to
G perform quasi-judicial duties and undertakes subordinate legislation making
functions as well. This decision also is of no help to the case of the respondent.
In the case of State of H.P. v. Raja Mahendra Pal (supra), this Court found
that Price Committee appointed by the government was not constituted under
any statutory or plenary administrative power and, therefore, did not discharge
any quasi-judicial function. This decision again is of no assistance to the case f-
H of the respondent.
IND/AN NATIONAL CONGRESS (I) 1·. INSTITUTE OF SOCIAL WELFARE. [V.N. Kl-IARE, J.] } 063
It was next urged by the learned counsel for the appellants that the A
view taken by the High Court that by virtue of application of provisions of
• Section 21 of the General Clauses Act, 1897 the Commission has power to
de-register a political party if it is found having violated the undertaking
given before the Election Com1nission, is erroneous. According to him, once
it is held that the Co111mission while exercising its powers under Section 29A B
of the Act acts quasi-judicially and an order registering a political party is a
quasi-judicial order, the provision of Section 21 of the General Clauses Act
has no application. We find 1nerit in the submission.
We have already extensively examined the matter and found that
Parliament consciously had not chosen to confer any power on the Election C
Co1n1nission to de-register a political party on the pren1ise it has contravened
the provisions of sub-section (5) of Section 29A. The question which arises
for our consideration is whether in the absence of any express or implied
power, the Election Commission is empowered to cancel the. registration of
a political party on the strength of the provisions of Section 21 of the General
Clauses Act. Section 21 of the General Clauses Act runs as under: D
"21. Power to issue, to include power to add to amend, vary or
rescind, notification, orders, rules or bye-laws. Where by any central
Act or regulation, a power to issue notifications, -orders, rules or byew
laws is conferred then that power includes a power exercisable in the
like manner and subject to the like sanction, and conditions (if any), E
to add to, a1nend, vary or rescind any notifications, orders, rules or
bye-laws so issued."
On perusal of Section 21 of the General Clauses Act, we find that the
expression 'order' employed in Section 21 shows that such an order must be
in the nature of notification, rules and bye-Jaws etc. The order which can be F
modified or rescinded on the application of Section 21 has to be either
executive or legislative in nature. But the order which the Com1nission is
required to pass under Section 29A is neither a legislative nor an executive
order but is a quasi-judicial order. We have already examined this aspect of
the matter in the foregoing paragraph and held that the functions exercisable G.
by the Commission under Section 29A is essentially a quasi-judicial in nature
and order passed thereunder is a quasi-judicial order. In that view of the
matter, the provisions of Section 21 of the General Clauses Act cannot be
invoked to confer powers of de-registration/cancellation of registration after
• enquiry by the Election Commission. We, therefore, hold that Section 21 of
the General Clauses Act has no application where a statutory authority is H
1064 SUPREME COURT REPORTS [2002] 3 S.C.R.
A required to act quasi-judicially.
It may be noted that the Parliament deliberately omitted to vest the
Election Commission of India with the power to de-register a political parfy
for non-compliance with the conditions for the grant of such registration.
This 111ay be for the reason that under the Constitution the Election Com111ission
B o~ India is required to function independently and ensure free and fair elections.
A1i enquiry into non-co111pliance with the conditions for the grant of registration
might involve the Co111111ission in matters of a political nature and could
mean monitoring by the Co111111ission of the political activities, programmes
and ideologies of political parties. This position gets strengthened by the fact
C that on 30th June, 1994 the Representation of the People (Second Amendment)
Bill, 1994 was introduced in the Lok Sabha proposing to introduce Section
29-B whereunder a complaint to be 111ade to the Hi&h Court within whose
jurisdiction the main office of a political party is situated for cancelling the
registration of the party on the ground that it bears a religious name or that
its memorandum or rules and regulations no longer conforming the provisions
D of Section 29-A (5) or that the activities are not in accordance with the said
memorandum or rules and regulations. However, this bill lapsed on the
dissolution of the Lok Sabha in 1996, (See p. 507 of "How India Votes :
Election Laws, Practice and Procedure" by V.S. Rama Devi and S.K.
Mendiratta).
E To sum up, what we have held in the foregoing paragraph are as under:
1. That there being no express provision in the Act or in the Symbol
Order to cancel the registration of a political party, and as such no
proceeding for de-registration can be taken by the Election
Commission against a political party for having violated the terms of
F . Section 29A(5) of the Act on the complaint of the respondent.
2. The Election Commission while exercising its power to register a
political party under Section 29A of the Act, acts quasi-judicially and
decision rendered by it is a quasi-judicial order and once a political
party is registered, no power of review having conferred on the
G
Election Commission, it has no power to review the order registering
a political party for having violated the provisions of the Constitution
or for having committed breach of undertaking given to the Election
Commission at the time of registration.
H 3. However, there are exceptions to the principle stated in paragraph
INDTAN NATIONAL CONGRESS (I) 1•. INSTITUTE OF SOCIAL WELFARE [V.N. KHARE, J.] } 065
2 above where the Election Commission is not deprived of its power A
to cancel the registration. The exceptions are these -
(a) where a political party has obtained registration by practising
fraud or forgery;
(b) where a registered political party amends its nomenclature of
association, rules and regulations abroga~ing therein confonning
B
to the provisions of Section 29A(5) of,\~e Act or intimating the
Election Commission that it has ceased to have faith and
!'
allegiance to the Constitution of India or to the principles of
socialism, secularism and democracy or it would not uphold the
sovereignty, unity and integrity of India so as to comply the c
provisions of Section 29A(5) of the Act; and
(c) any like ground where no enquiry is called for on the part of the
Commission.
(d) The provisions of Section 21 of the General Clauses Act cannot
be extended to the quasi-judicial authority. Since the Election D
- .... -.- Commission while exercising its power under Section 29A of
the Act acts quasi-judicially, the provisions of Section 21 of the
General Clauses Act has no application.
For the aforesaid reasons, the appeals deserve to be allowed in part.
Consequently, direction Nos. (iii) and (iv) of the impugned judgment ·are set E
<!Side. The appeals are allowed in part. The contempt petitions are rejected.
There shall be no order as to costs.
S.K.S. Appeals partly allowed .
•
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