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PETITIONER: ALL PARTY HILL LEADERS’ CONFERENCE, SHILLONG

       Vs.

RESPONDENT: CAPTAIN M.A. SANGMA & ORS.

DATE OF JUDGMENT12/09/1977

BENCH: GOSWAMI, P.K. BENCH: GOSWAMI, P.K. GUPTA, A.C. FAZALALI, SYED MURTAZA

CITATION:  1977 AIR 2155            1978 SCR  (1) 393  1977 SCC  (4) 161  CITATOR INFO :  R          1978 SC 851  (50,56)  RF         1986 SC 111  (14)  D          1987 SC1629  (17)  RF         1990 SC  19  (22)  RF         1992 SC 320  (82)

ACT: Constitution of India, Articles 136(1), 324 and 327-Election Commission, whether a Tribunal-Representation of People Act, 1951-Sec.  169-The Conduct of Elections Rules  1961-Rules  5 and  10-Election  Symbol  (Reservation  and  Allotment)Order 1968-Dissolution  of  a  political  party-Whether  test   of majority applicable.

HEADNOTE: All  Party  Hill Leaders’ Conference was  constituted  as  a political party in the composite State of Assam in 1960.  In 1962,  APHLC contested General Elections and secured 11  out of  15 seats in the Assam Legislative Assembly reserved  for the  autonomous  Hill districts of the State  of  Assam  and returned one member to the Lok Sabha.  In 1967 it  contested the   General  Elections  and  secured  9  seats   in   the. Legislative  Assembly  and returned one member  to  the  Lok Sabha.  In 1970, an autonomous State of Meghalaya within the State  of  Assam  was constituted under s. 3  of  the  Assam Reorganisation  Act, 1969 and the APHLC secured 34 seats  in the Legislative Assembly. In  1972, State of Meghalaya came into being.  In  the  same year  APHLC contested the General Elections and  secured  32 seats  in the Meghalaya Legislative Assembly out of  60  and returned  2  members to the Lok Sabha and 1  member  to  the Rajya  Sabha.  In August 1976, General Conference  of  APHLC discussed  the question of merger with the  Indian  National Congress  and  decided that there should be  no  merger  but friendly  relations  should be  strengthened.   In  November 1976,  in a meeting of the Central Office bearers  Committee which  is the executive body of the APHLC capt.  Sangma  who was the President of APHLC as well as the Chief Minister  of Meghalaya  made  an  announcement  that  the  Congress  High Command  had rejected the resolution of  friendly  relations and  that it had insisted that the APHLC should  merge  with

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the Indian National Congress.  It was, therefore, decided to call  a meeting of the General Conference in November,  1976 "to review the implementation of the political resolution of the  Conference  held at Shillong on 19th and  20th  August, 1976."  The  agenda, however, did not  specifically  mention about the discussion of the issue of merger. There  was  a storm of protest from  several  quarters.   On 4-11-1976,  the  Executive  Committee  of  the  Khasi  Hills District  expressed  grave  concern  about  the  matter  and requested  President Sangma to postpone the Conference.   On 8-11-1976,  several  leaders from Garo Hills  including  the then Chief Executive Member of the District Council and the, then   Chairman  of  the  Garo  Hills  District   Conference presented  a  Memorandum to Capt.  Sangma  requesting  post- ponement  of  the  Conference so that the  leaders  and  the workers  of  the  party have enough  time  to  consider  the matter.   On  10th  and 11th November,  1976  the  Executive Committee Khasi Hills District decided not to participate in the  Conference.   The  Committee further  appealed  to  the President  of the Party for postponement of the  holding  of the proposed Conference to enable the leadership to take the rank  and file of the party and the people into  confidence. On 14th November, 1976, the Shillong Unit of the Party by  a resolution  requested Capt.  Sangma for giving  the  leaders and  members of the party time and opportunity  to  consider all aspects of the merger issue. Notwithstanding  the opposition, the Conference was held  on 16-11-1976 which was attended by 81 delegates out of 121 and a resolution was passed unanimously in favour of the  merger with the Congress.  The meeting authorised President  Sangma to form a committee consisting of 5 members to work out the modalities,  technicalities and details of the  merger  with the  Indian  National  Congress  in  consultation  with  the Congress High Command.  Although the 394 resolution  recalled  the  part  played  by  the  people  in constituting  a  common political platform the appeal  by  a vocal  section  of  the party to go back to  the  people  to ascertain  their  wish as to obliteration  of  the  platform constituted by them fell on deaf ears.  The Conference of 81 members  unmandated for the purpose decided for  the  people and  the  President acquired from that small  body  absolute power  to nominate his own Committee and to do all that  was necessary  in  order to announce the merger  of  the  party. Immediately after passing of the resolution 4 APHLC  leaders who were Cabinet Ministers, tendered their resignation. Thereafter,   Mr.  Nongtdu  describing  himself   as   Joint Secretary  of  the  erstwhile APHLC  informed  the  Election Commission  that  the  APHLC  had  merged  with  the  Indian National  Congress and that the Election  Commission  should withdraw  the  election  symbol "flower"  reserved  for  the erstwhile  APHLC.   As against that, Mr. Pugh  informed  the Commission  that some APHLC leaders including Capt.   Sangma had joined the Indian National Congress and that the  leader who   had  left  the  party  had  no  authority  to   decide dissolution of the party or to approach the authorities  on the question of recognition or derecognition that the  party was  still in existence and there was no provision  whatever for a person or a group of persons to dissolve the party  of the  people.   The  Commission  invited  comments  from  the parties  and after hearing them delivered its order  holding that APHLC had ceased to exist and that, therefore, the name of  that  party  and the, symbol ’flower’  reserved  for  it should be deleted from the list of recognised State parties. The  Election  Commission ordered that the  symbol  ’flower’

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would remain frozen and that it should not be included as  a free symbol. The  appellant filed a Special Leave petition in this  Court against  the  order  of the Election  Commission  which  was granted.    At  the  hearing  the  respondent   raised   the preliminary  objection  as  to the  maintainability  of  the appeal  by  Special Leave on the ground  that  the  Election Commission  is not a Tribunal within the meaning of  Article 136  of the Constitution.  The appellant contended  that  81 delegates  without any mandate from the members of  a  party cannot dissolve a,, party. Allowing the appeal, HELD  :  (1)  This  Court has laid  down  several  tests  to determine  whether  a  particular body  or  authority  is  a Tribunal  within the ambit of Art. 136.  The tests  are  not exhaustive  in  all  cases.   It  is,  however,   absolutely necessary  that  the authority in order to come  within  the ambit of Art. 136(1) as Tribunal must be constituted by  the State  and invested with some function of judicial power  of the State.  This test is an unfailing one while some of  the other tests may or may not be present at the same time. [404 F-H] Sadiq Ali & Anr. etc. v. Election Commissioner of India  and Others  etc.  1973  (2) SCR  318;  Ramashankar  Kaushik  and Another v. Election Commission of India and Another 1974 (2) SCR 265; Bharat Bank Ltd.  Delhi v. Employees of the  Bharat Bank  Ltd.,  Delhi etc. 1950 (1) SCR 459; Shell  Company  of Australia  v. Federal Commissioner of Taxation 1931 AC  275; Durga Shankar Mehta v. Thakur Raghurai Singh and Others 1955 (1)  SCR 267; J. K. Iron and Steel Co. Ltd. Kanpur  v.   The Iron and Steel Mazdoor Union, Kanpur 1955 (2) SCR 1315; M/s. Harinagar Sugar Mills Ltd. v. Shyam Sundar Jhunjhunwala  and Others, 1962 (2) SCR 339; Jaswaant Sugar Mills Ltd.,  Meerut v.  Lakshmichand  and Others, 1963 Suppl. (1) SCR  242;  The Engineering Mazdoor Sabha and Another v.     The Hind Cycles Ltd., Bombay 1963 Suppl. (1) SCR 625, referred to. Associated  Cement Companies Ltd. v. P. N. Sharma  and  Anr. 1965 (2) SCR 366. followed. (2)The   Election   Commission  is  a  creature   of   the Constitution.   Under  Article  324,  the   superintendence, direction  and control and the preparation of the  electoral roll for and the conduct of all elections to Parliament  and to  the Legislature of every State and all elections to  the offices  of  the President and the Vice President  shall  be vested  in  the  Election  Commission.  The  Chief  Election Commissioner  cannot  be removed from his office  except  in like  manner  and  on the like grounds as  a  Judge  of  the Supreme Court.  The Chief Election Com- 395 missioner   is   a  high   dignitary   whose   independence, impartiality   and  fair  mindedness  are  intended  to   be guaranteed  by the Constitution. for the purpose of  holding elections allocation of symbol will find a prime place in  a country  where illiteracy is still very high.  It  has  been found  from experience that symbol as a device  for  casting votes in favour of a candidate of one’s choice has proved as invaluable aid. [406 G, 407 A-D, E] (3)Article 327 empowers the Parliament to make ’provisions with  respect  to all matters relating to or  in  connection with  the elections.  The Representation of the Peoples  Act 1951  does  not provide for any provisions  with  regard  to symbol.   However, under s. 169(1) of the Representation  of the Peoples Act, the Central Government is empowered to make rules  after consulting the Commission for carrying out  the purpose of the Act.  Sub-section (2) of s. 169 provides that

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in particular and without prejudice to the generality of the power  u/s. 169(1) such rules might provide for the  matters specified  from  (a) to (1).  Clause (c)  provides  for  the manner in which votes are to be given both generally and  in the  case  of  illiterate voters or  voters  under  physical disadvantage.   The last clause is a residuary  clause  with regard  to  any  other matter that may  be  required  to  be prescribed by the Act.  The Conduct of Election Rules, 1961, which have been framed in exercise of the power conferred by s. 169 of the Act provides for various matters.  Rules 5 and 10(4)(5)(6)  deal  with  matters  relating  to  symbol.   In exercise of the power vested in the Commission under Article 324  and rules 5 and 10 of the Conduct of  Elections  Rules, 1961,  and all other powers enabling it in that  behalf  the Election Commission, made the Election Symbols  (Reservation and Allotment) Order 1968.  It is not necessary to deal with the   question  whether  the  symbols  order  made  by   the Commission is a piece of legislative activity.  It is enough to  hold,  which  the Court held,  that  the  Commission  is empowered  on  its  own  right  under  Article  324  of  the Constitution  and also under rules 5 and 10 of the Rules  to make  directions  in general in widest terms  necessary  and also  in  specific cases in order to facilitate a  free  and fair election with promptitude.  It was held in Sadiq  Ali’s case  that  the  symbol  order  was  made  by  the  Election Commission in exercise of powers which flow from Article 324 as well as rules 5 and 10.  The Court, therefore, held  that the Election Commission is a Tribunal within the meaning  of Article 136. [407 G-H, 408 A-E, G-H] (4)The 81 members of the Conference had decided that APHLC should dissolve. 40 members had opposed the move and  stayed away  from  the Conference.  This led to the dispute  as  to whether  notwithstanding  the  majority  resolution  in  the Conference  the APHLC could still continue as  a  recognised political party in the State of Meghalaya for the purpose of allotment of the reserved symbol.  There is thus his between the  two  groups of the Conference.  The Commission  is  the specified and exclusive adjudicating authority of this  lis. The Commission is created by the Constitution and the  power to adjudicate the dispute flows from Article 324 as well  as from  rule  5  and  is thus conferred under  the  law  as  a fraction of judicial power of the State.  The Commission has prescribed its own procedure in the symbol order, namely, to give  a hearing to the parties when there is a dispute  with regard  to recognition or regarding choice of symbols.   The power  to  decide the dispute in question is a part  of  the State’s  judicial power and that power is conferred  on  the Election Commission by Art. 324 of the Constitution as  also by  rule 5 of the Rules.  The principal and nonfailing  test which  must be present in order to determine whether a  body or  authority is a Tribunal within the ambit of Art.  136(1) is fulfilled in this case.  The question whether the primary function  of the Election Commission is adjudicatory or  not is  not relevant.  The question is whether in  deciding  the particular  disputes  between the parties in  a  matter  the Commission  is exercising a judicial function and it  has  a duty  to act judicially.  Having regard to the character  of the Commission in dealing with the particular matter and the nature ’of the enquiry envisaged and the procedure which  is reasonably required to be followed, the Court held, that its primary  function  in  respect  of  the  subject  matter  is judicial. [409 E-G 410 E, 411 A-B] (5)APHLC  has been recognised as a political party in  the State  of  Meghalaya since 1962.  The party has  no  written

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constitution.   It is, however, not disputed that the  APHLC is  a  democratically  run party.  In normal  working  in  a democratic  Organisation the rule of majority must  prevail. That, however, 396 will  not conclude the matter as the Commission  thought  in this  case.   The APHLC is a regional party  but  with  high ideals  of  working out the salvation of the area  as  proud partners  in  a larger scheme of advancement  of  the  whole nation  without  at  the same time  losing  their  identity, culture,  customs.  When a partylike this has  to  disappear from  the political scene as a distinct party it is  a  very grave and serious decision to take.  A party which has  been successfully  running a State Government cannot claim  to  a party  of merely leaders as is sought to be  represented  by the respondents.  The fact that 121 persons who were invited to  the  Conference are delegates shows that  they  must  be delegates of some body or persons.  There is clear  evidence of  democratic  feature  in the pattern of  working  of  the APHLC.   Any issue on which the decision might  normally  be taken  by  the Conference must relate to live matters  of  a living  organ and not to its death wish.  Without the  nexus with  the generality of membership decision will  derive  no force  or  vigour  and no party or Conference  can  hope  to succeed in their plans, efforts or struggle unless backed by the  same.  There is no evidence authorising the  Conference to  dissolve  itself by merger or otherwise and  it  is  not possible  to apply’ the rule of majority only in the  Confe- rence  for such a decision affecting the entire body  as  an entity  in the absences of a clear mandate from the  General Membership.   Assuming  that  the Conference  decided  by  a majority  to  dissolve  the  APHLC it  would  have  been  in accordance  with  the democratic principles  to  place  that decision  before  the General Membership of  the  party  for rectification  prior  to  implementing  the  mere   majority decision  of the Conference without regard to the wishes  of the  members  a,,; a whole.  It is difficult  to  appreciate that  this reasonable request from a responsible section  of the  Conference for referring the matter to the  people  was disregarded:"It  appears that the proposal to  merge  did not come from within but was   wanted" from outside.  [412A, E, F, 413 F-H, 414’A-C, 415 C] The  Commission  fell  into an error  in  holding  that  the Conference  of  APHLC was the General Body even  to  take  a decision about its dissolution by a majority vote. [415 D] The  matter would have been absolutely different if  in  the general  body  of all members from different areas  or  from representatives for the parties assembled to take a decision about the dissolution of the party had reached a decision by majority. [415 D] Under para 6 of the Symbols Order a political party shall be treated  as  a recognised political party in a State  if  it fulfils  either the conditions specified in clause A  or  in clause  B, i.e., either securing certain number of seats  or certain number of valid votes.  It is not disputed that  the APHLC  with  40  members  still  claiming  to  continue  its reserved  symbol answers the test laid down in  Commission’s directions  for being recognised as a State Political  Party in para 6 of the Symbols Order. s, the APHLC as a recognised State Political Party in Meghalaya stays and is entitled  to continue  with their reserved symbol ’flower’. [416 B-C,  H, 417 A, E]

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JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 945 of 1977. Appeal  from  the Order dated the 1st February 1977  of  the Election Commission of India. V.M.  Tarkunde,   P. H. Pareklt, Manju Jetley  and  Manek Tarkunde for the Appellant. P.Parameswararao and R. Nagarathnam for Respondents No. 1 and 2. The Judgment of the Court was delivered by GOSWAMI,   J.  The  All  Party  Hill   Leaders’   Conference (hereinafter  to be described as the APHLC) was  constituted as a political party in the composite State of Assam on July 6, 1960.  In 1962 the APHLC contested the general  elections and secured 11 out of 15 seas in the 397 Assam Legislative Assembly reserved for the Autonomous  Hill Distriots  of the State of Assam and returned one member  to the  Lok Sabha.  In 1967 it contested the general  elections and secured 9 seats in the Legislative Assembly and returned one  member to the Lok Sabha.  In 1970 the autonomous  State of Meghalaya within the State of Assam was constituted under section  3  of the Assam Reorganisation Act, 1969,  and  the APHLC  secured  34 seats in  the Legislative  Assembly.   In 1972  the  State of Meghalaya came into being  as  the  21st State  of  the Indian Union under section 5  of  the  North- Eastern Areas (Reorganisation) Act, 1971.  In the same  year the  APHLC  contested the general elections and  secured  32 seats  in the Meghalaya Legislative Assembly out of  60  and returned two members to the Lok Sabha and one member to  the Rajya Sabha. It  is claimed by the appellant that the APHLC is a  vibrant and  fully  functioning  political party.   It  has  a  high reputation  for its national and patriotic outlook  and  its adherence   to  non-violence,  constitutionalism,   communal harmony  and  the  spirit of  moderation.   APHLC  has  been influential  not only in securing stability in the  area  in which it operates but also in bringing the various tribes of the   North   East  into  the  national  stream.    In   the implementation of national programmes APHLC has  co-operated with  the  Indian  National Congress but  APHLC  has  always remained  essentially a state party.  The essence of  APHLC, says  the  appellant, is the autonomy and  security  of  the small  hill tribes of the North East whose party it  is  and who  do  not  wish  to lose their  identity  as  such.   The appellant  further  asserts  that  it  is  in  the  national interest  no  less  than the interest of  these  small  hill tribes  that  they  should  possess a  sense  of  unity  and Organisation  within the APHLC which in turn  maintains  the best of relations with the Indian National Congress which is a national party. The  appellant  also  claims that  the  APHLC  functions  at several  levels,  namely,  Central,  District,  Circle   and Village  levels.  At the Central level it has affiliated  to it  several  other parties, these being  the  Garo  National Council,  the Eastern India Tribal Union, the Khasi  Jaintia Conference  and  the Jaintia Durbar.  There is  the  Central office  Bearers Committee comprising all the Central  Office Bearers, namely, President, several Vice-Presidents, General Secretary,  Joint Secretaries and  Treasurer.   Furthermore, there  are  branches  at the District  level  each  district having its own office bearers, executive committee and other committees.   Thereafter, there are Circles within the  area of  the district which correspond to M.L.A.  constituencies. Further  below and nearest to the grass roots there are  the village  units comprising a village or a group of  villages.

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There  are about 300 village units in the State,  each  unit having 50 to 200 members of APHLC, according to the size  of the village unit. Originally  the  representatives of  the  District  Congress Committees were also included in the APHLC but some time  in 1961 the District Congress Committees left the APHLC. It is also claimed that ’the APHLC as a political party  has thousand.-,  and  thousands  of  members  in  the  State  of Meghalaya".  As a counter to 398 this assertion, it is stated by the respondents that "as per well-established  convention  of the  erstwhile  APHLC,  the general Conference of the party was the supreme authority to discuss  and  to  decide on any issue  before  it".   It  is pointed  out by the appellant that the presence of  a  large membership has not been even denied by the respondents. It is clear that the main object of the APHLC was to achieve statehood  in  the hill areas within the  framework  of  the Constitution  of  India  and to work  out  its  own  destiny maintaining  its  identity  according to  their  own  genius parting  company with Assam.  This was achieved  finally  on January  21,  1972,  when the ruling party  in  the  Central Government  was  the Indian National  Congress.   The  APHLC election  manifesto of 1972 while disclosing  its  programme and  policy  for  the new State of  Meghalaya  announced  as follows               "The APHLC, with the unreserved support of the               people has been instrumental in bringing about               the  creation  of the Hill State,  and  it  is               confident that with the continued support  and               co-operation  of the people, the  Party  will,               through its programme, succeed in ushering  in               for the people of Meghalaya an era of hope, of               justice and of equality of opportunity". (1) We  have  already  shown  above  how  the  APHLC  came   out successful in the elections. It appears that some time thereafter the question of  merger of  the  APHLC with the Congress occupied the minds  of  the leaders.  The 24th Session of the APHLC held at Shillong  on June  19 and 20, 1973, considered "the future of  the  party and  the question of merger with Congress" and  "unanimously decided  to maintain its identity and continue to serve  the people  as  a party".( ). The issue of merger of  the  APHLC with  the Congress was, however, not dead and it again  came up for consideration in the General Conference of the  APHLC on August 19 and 20, 1976, with notice of two months  issued in  June  1976.   It was again, in line  with  the  previous policy, decided in that Conference "that friendly  relations with  the Indian National Congress should be maintained  and strengthened".  But no merger.  On  November  1, 1976, in a meeting of the  Central  Office Bearers Committee, which is the executive body of the APHLC, Captain  Sangma, who was President of the APHLC as  well  as Chief Minister of Meghalaya, made an announcement that  "the Congress  High  Command  had  rejected  the  Resolution   of friendly  relations  passed at the APHLC Conference  on  the 19th  and  20th  August, 1976 and had  insisted  that  APHLC should merge with the Indian National Congress".   Althought there  is  some  controversy about the  correctness  of  the minutes  of  November 1, 1976, it appears therefrom  that  a General Conference of the APHLC was announced to be held  at Mendipathar.  Garo Hills District, on November 16, 1976, "to review the implementation of the political resolution of the Conference held at Shillong on see APHLC, Suvenir, 1960-1974 page 19.

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(1) See APHLC Souvenir 1960-1974 page 19. (2)  See APHLC Souvenir 1960-1974 page 17. 399 the  19th  and  20th August, 1976".   The  notice  for  this meeting was given with the agenda in the above quoted  terms on  November  3, 1976, and all delegates were  requested  to attend  the Conference on November 16, 1976.  It  is  rather intriguing that the agenda in the notice, with such a  short interval, did not even specifically mention about discussion of the issue of "merger with the INC" even to facilitate the news of this move to trickle far and wide into larger  areas of the populace.  Even so there was a storm of protests from several  quarters.   On  November  4,  1976,  the  Executive Committee of the Khasi Hills District APHLC expressed  grave concern  about  the  matter  and  requested  the  President, Captain Sangma, to postpone the Conference.  On November  8, 1976,  several leaders from Garo Hills, including  the  then Chief Executive Member of the District Council and the  then Chairman  of  the Garo Hills District Council,  presented  a memorandum to Captain Sangma requesting postponement of  the Conference "so that the leaders and the workers of the party have  time enough to consider the matter".  On  November  10 and  11,  1976, the Executive Committee of the  Khasi  Hills District  decided  not to participate in the  Conference  of 16th November, 1976.  The Committee further appealed to  the President  of the party for postponement of the  holding  of the  proposed Conference "to enable the leadership  to  take the  rank and file of the party and the people  into  confi- dence on the issues involved and through calm and  objective discussions, evolve a consensus decision to the satisfaction of all concerned in keeping with the tradition and genius of the  hill people".  On November 14, 1976, two days prior  to the  Conference,  the  Shillong  unit  of  the  APHLC  by  a resolution  requested Captain Sangma for giving the  leaders and  members of the party time and opportunity  to  consider all  aspects of the merger issue "by mutual consultation  at all  levels, so that a consensus may be arrived at and  thus maintain the unity of the party and the people". Notwithstanding  the  opposition, it went unheeded  and  the Conference  was  held on November 16, 1976,  at  Mendipathar which  was  attended  by  81 delegates  out  of  121  and  a resolution  was passed unanimously in favour of merger  with the Congress.  The resolution :               "recalls  with fond memory  the  circumstances               which  actuated the people of  the  autonomous               districts of the then composite State of Assam               to  constitute a common political platform  of               their  own,  styled  as  the  All  Party  Hill               Leaders’  Conference  with a view  to  solving               certain issues vitally affecting their welfare               and interests.               This meeting also recalls in this context that               during   the  last  few  years,  the   APHLC’s               relationship   with  the  Indian National               Congress, including the question of merger               has often been discussed in different  forums,               and formally in the 24th session of the  party               on the 19th and 20th June, 1973 at  Shillong..               The 26th session of the party held on the 19th               land  20th  August, 1976 reiterated  its  firm               resolve to streng-               400               then, through mutually agreed upon steps,  the               said  relationship  with the  Indian  National               Congress........

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             Taking into full account the political changes               which have taken place in the meantime in  the               State and the country it is realised that  the               earlier  resolutions  have  virtually   become               irrelevant  and  it is high time now  to  take               concrete   steps.   This  meeting   therefore,               regrets  that there are nevertheless  some  of               our  people who do not want to face facts  and               consequently fail to appreciate the importance               of the changed situation which will go against               the  interests of the State and the people  to               allow indecision to continue further.               Now, therefore, in view of the constant  stand               of   the   party  to   strengthen   the   good               relationship   with   the   Indian    National               Congress,   and  in  view  of  the   objective               realities of the political situation obtaining               in the country, and having noted the consensus               of  the people through  their  representatives               and our following the plans and programmes  of               the  Indian National Congress which  has  been               consistently  taking special care  to  promote               the  welfare  and interests of  the  Scheduled               Tribes  as  provided in the  Constitution  and               having  been convinced, after a  most  careful               consideration, that there is no better way  to               give  practical  shape to  the  long  standing               convictions of the Party to come closer to the               Prime  Minister and her party than by  merging               with  the  Indian  National  Congress  thereby               providing us with an opportunity to take  full               advantage of the national forum together  with               other  hill people of the northeastern  region               who  have similar problems as we,  and  taking               all  these factors into serious and  realistic               consideration, this meeting hereby unanimously               resolves  that  the APHLC be merged  with  the               Indian  National Congress in response  to  the               desire of the Prime Minister, Shrimati  Indira               Gandhi,  and  her party. for  the  larger  and               fuller interests of the people of Meghalaya in               particular and of the country in general." The  meeting  further  authorised  the  President,   Captain Sangma, "to form a committee consisting of 5 members to work out the modalities, technicalities and details of the merger with the Indian National Congress in consultation with  the’ Congress High Command" and also authorised him "to  announce the  formal  merger of the APHLC with  the  Indian  National Congress  and the consequent dissolution of the  APHLC as  a political  party or association in the State of  Meghalaya". The  meeting also "appeal(ed) to the people of Meghalaya  in particular  to the leaders and supporters of the  APHLC,  to extend their full support to the resolution". It  is an irony that although the meeting recalled the  part played  by "the people" in constituting "a common  political platform" styled as the APHLC, the appeal by a vocal section of the party to go back to "the people" to clearly ascertain their wish as to obliteration of the " platform" constituted by them fell on deaf ears. 401 The  Conference of 81 members, unmandated for  the  purpose, decided for the people and the President acquired from  that small body absolute power to nominate his own committee  and to do all that was necessary in order to announce the merger of  the  party  with  the INC.   The  saving  grace  of  the

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resolution  was "the appeal to the people of  Meghalaya"  to extend this their support to the resolution. The resolution had immediate repercussions. , The very  next day, November 17, 1976, four APHLC leaders, namely,  Messrs. D.  D Pugh (General Secretary of APHLC), P. R. Kyndiah,  S. D.  D.  Nichols Roy and B. B, Lyngdoh issued  the  following Press statement :-               "We  deeply  regret the decision  taken  by  a               section   of   APHLC   leaders   meeting    at               Mendipathar  to leave the party and  join  the               Congress  despite the suggestion  to  postpone               the   meeting  with  a  view  to  enable   the               leadership  time to consult the rank and  file               of  the  party  and to take  the  people  into               confidence.  By this hasty decision Shri W. A.               Sangma  and  ’his followers have  shown  their               complete  disregard of the will of the  people               on  whose  mandate the  APHLC  Government  was               formed.               The  APHLC  will continue to  serve  the  best               interests  of  the  people and  make  its  own               distinctive  contribution to the  progress  of               the State and the country as a whole.  In this               connection, a Conference of the APHLC is being               convened  by the General Secretary on the  7th               December, 1976". The  following  day,  November  18,  1976,  Messrs.   B.  B. Lyngdoh, S. D. D. Nichols Roy, P. R. Kyndiab and D. D. Pugh, who were Ministers in the Government of Meghalaya,  resigned from  the  Cabinet  and  addressed a  letter  to  the  Chief Minister (Captain Sangma) as follows :-               "In  view of the fact that you and  the  other               three Cabinet colleagues have decided to leave               the   APHLC  which  had  formed  the   present               Government and that you have done so without a               mandate  of the people we feel it  has  become               morally  incumbent upon us to resign.  We  do,               therefore, hereby submit our resignation  from               the Cabinet with immediate effect". Even  then  President Captain Sangma did not cry  halt.   On November  20, 1976, Captain Sangma made an  announcement  as follows :-               "Having been duly authorised by resolution  of               the  27th  session of the All  Party  Leaders’               Conference  held  on 16th  November,  1976  at               Mendipathar,   Garo   Hills,   Meghalaya,   in               pursuance  of  the  decision  of  the  Central               Committee  held  on the 1st  November,  76  at               Shillong I, Capt.  W. A. Sangma, President  of               the All Party Hill Leaders’ Conference,  after               finalising  the  modalities of the  merger  as               directed  by the aforesaid resolution,  hereby               announce the merger of the All Party               2-930SCT/77               402               Hill  Leaders’  Conference  with  the   Indian               National Congress. The All Party Hill Leaders’               Conference stands. dissolved, as  a  Political               Party   or  Association  in:.  the  State   of               Meghalaya  with effect from the  afternoon  of               the  aforesaid date, and its assets  including               bank   balance   and   securities   as    also               liabilities  stand  merged  with  the   Indian               National Congress". Without  further  loss of time, the next move began.   By  a

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dated  November  28, 1976, Shri O.  L.  Nongtdu,  describing himself  as,  "Joint  Secretary  of  the  erstwhile   APHLC" informed   the  Election  Commission  (hereinafter   to   be described as the Commission) that the APHLC had merged  with the Indian National Congress (hereinafter to be referred  to as  the  INC)  and consequently  it  stood,  dissolved.   He requested  the  Commission in that letter to  "withdraw  the election symbol (Flower) reserved for the erstwhile  APHLC". He  enclosed with that letter several  documents  containing the resolutions of the party. As  against that move, by a letter dated November 30,  1976, Shri  D.  D. Pugh informed the Commission  that  some  APHLC leaders including Captain Sangma had joined the INC and thus defected  from the APHLC, that the leaders who had left  the party had no authority to decide dissolution of the party or to  approach the authorities on the question of  recognition or derecognition, that the party was still in existence  and there  was no provision whatever for a person or a group  of persons to dissolve this party of the, people. On December 9, 1976, the Commission forwarded to Shri D.  D. Pugh,  General Secretary, APHLC, copies of letters  together with  their  enclosures received from Shri O.  L.  Nongtdu, Joint Secretary, APHLC. and invited comments thereon  before 31st December, 1976 "so as to enable the Commission to  take further  necessary action in the matter".  Shri D.  D.  Pugh forwarded  his  comments to the Commission on  December  24, 1976, concluding his representation as follows :-                "The  party  having  been  recognised  as   a               political  party  with  the  reserved   symbol               ’Flower’ under the provisions of the Order, no               occasion  has  arisen for not  continuing  the               said  symbol "Flower" to the party  which  has               admittedly    14   members   in   the    State               Legislature,  16  members  in the   District               councils   and  thousands  and  thousands   of               members in the State of Meghalaya". The  Commission  heard the parties on January 29,  1977,  on which date Shri B. B. Lyngodh filed an affidavit before  the Commission.  The Commission after hearing the parties passed its order on February 1. 1977, holding that-               "the  APHLC,  a  recognised  State  party   in               Meghalaya under the Election Symbols Order has               ceased to exist and that therefore the name of               that  party and the symbol  "Flower"  reserved               for  it  should be deleted from  the  list  of               recognised               403               State  parties  in  the  Election   Commission               Notification  No.  S.O.  A  61  (E)  dated  31               January  1975 forthwith.  The symbol  "Flower"               shall remain frozen with immediate effect.   I               also  direct that in order to avoid  confusion               the  said symbol should not be included  as  a               free  symbol  in  respect  of  the  States  of               Meghalaya and Assam". It  is  against the above order of the Commission  that  the appellant has brought this appeal by special leave. At  the  outset a preliminary objection has  been  taken  on behalf  of respondents 1 and 2 (hereinafter to be  described as the respondents) to the maintainability of this appeal by special  leave under Article 136 of the  Constitution.   The Commission   being  the  3rd  respondent  has  not   entered appearance.’ It  is  submitted  by Mr. Rao appearing  on  behalf  of  the respondents  that the Election Commission is not a  tribunal

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within the ambit of Article 136(1) of the Constitution. This  question centering round the Election  Commission  has been  raised  before this Court for the first time  in  this appeal.   Although  in two earlier decisions of  this  Court appeals were lodged in this Court by special leave from  the decisions  of  the Election Commission,  no  objection  with regard to the maintainability under Art. 136 was raised (See Sadiq Ali and Anr. etc. v. Election Commission of India  and Others  etc.(1)  and  Ramashankar  Kaushik  and  Another  v. Election  Commission of India and Another(2).   This  would, however,  not  prevent  the respondents  from  raising  this question before us.  We will, therefore, examine the  matter first.   If  the answer is against  the  appellant,  nothing further will arise for decision. The  earliest  decision  of this Court as to  the  ambit  of Article  1  3 6  with reference to the order of  a  tribunal came up for consideration in the Bharat Bank Ltd., Delhi  v. Employees  of  the  Bharat Bank Ltd.,  Delhi,  etc.(3).  The question  whether an Industrial Tribunal  constituted  under the Industrial Disputes Act, 1947, was a tribunal within the scope  of Article 136 was raised in that case.  By  majority the   Constitution  Bench  of  this  Court  held  that   the Industrial  Tribunal  was  a tribunal  for  the  purpose  of Article  136.  Having regard to the scheme of  Article  136, this Court was not prepared to place a narrow interpretation on  the  amplitude of Article 136.  This Court  observed  at page 476/478 of the Report as follows :-               "As  pointed  out in picturesque  language  by               Lord Sankey L. C. in Shell Co. of Australia v.               Federal Commissioner of Taxation(4), there are               tribunals  with  many of the  trappings  of  a               Court  which, nevertheless, are not Courts  in               the strict sense of exercising judicial power.               It seems to me that such               (1)[1972] 2S.C.R.318.               (2)[1974] 2S.C.R.265.               (3)[1950] S.C.R.459.               (4)[1931] A.C.275.               404               tribunals  though  they  are  not  fullfiedged               Courts, yet exercise quasi-judicial  functions               and   are  within  the  ambit  of   the   word               ’tribunal’ in Article 136 of the Constitution,               Tribunals  which do not derive authority  from               the  sovereign  power cannot fall  within  the               ambit of, Article 136.  The    condition               precedent  for bringing a tribunal within  the               ambit  of  Article 136 is that  it  should  be               constituted  by the State.  Again  a  tribunal               would  be outside the ambit of Article 136  if               it  is  not  invested with  any  part  of  the               judicial functions of the State but discharges               purely  administrative  or  executive  duties.               Tribunals,  however, which are found  invested               with  certain functions of a Court of  justice               and have some of its      trappings also would               fall within the ambit of Article 1 3 6. . . " Then  after four years, B. K. Mukerjea, J. (as he then  was) who was   one  of  the  dissenting  Judges  in  Bharat  Bank (supra), true to judicial     discipline,   spoke  for   the unanimous court in the Constitution Bench    in        Durga Shankar Mehta v. ’Thakur Raghuraj Singh and Others(1) in the following words :-               "It  is  now  well  settled  by  the  majority               decision  of this Court in the case of  Bharat

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             Bank Ltd. v. Employees of the Bharat Bank Ltd.               (supra) that the expression "Tribunal" as used               in article 136 does not mean the same thing as               "Court"  but includes, within its  ambit,  all               adjudicating   bodies,   provided   they   are               constituted by the State and are invested with               judicial   as   distinguished   from    purely               administrative or executive functions". The basic principle laid down in the Bharat Bank (supra) has not  been   departed  from  by  this  Court  and  has   been reiterated in several    later decisions [see J. K. Iron and Steel Co. Ltd., Kanpur v. The Iron      and  Steel   Mazdoor Union Kanpur(2), M/s Harinagar Sugar Mills Ltd.   v.   Shyam Sundar Jhunjhunwala and Others(3); Jaswant Sugar Mills Ltd. , Meerut v. Lakshmichand and Others(4); The Engineering  Maz door  Sabha and Another v. The Hind Cycles Ltd.,  Bombay(5); and  Associated  Cement Companies Ltd. v. P. N.  Sharma  and Another(6)]. From  a  conspectus of the above decisionisit will  be  seen that  several  tests have been laid down by  this  Court  to determine whether a      particular  body or authority is  a tribunal within the ambit of Article    136.  The tests  are not exhaustive in all cases. It is also well-settled   that all the tests laid down may not be present in a given  case. While     some  tests may be present others may be  lacking. It  is, however, absolutely necessary that the authority  in order to come within the ambit     of   Article  136(1)   as tribunal must be constituted by the State and     invested with  some  function of judicial power, of the  State.  This particular test is an unfailing one while some of the  other tests may or may not be present at the same time. (1)  (1955) 1 S.C.R. 267. (2)  (1955) 2 S.C.R. 1315 (3)  (1962) 2 S.C.R. 339. (4)  (1963) Supp. 1 S.C.R. 242. (5)  (1963) Supp.  1 S.C.R. 625. (6)  (1965) 2 S.C.R. 366. 405 It  will be profitable to refer to an illuminating  decision of  the  Constitution Bench in Associated  Cement  Companies Ltd. (supra).  The question that was raised for decision  in that  case was as to whether the State Government of  Punjab exercising  its appellate jurisdiction under rule 6  of  the Punjab  Welfare  Officers  Recruitment  and  Conditions   of Service  Rules, 1952, was a tribunal within the  meaning  of Article  136(1) of the Constitution.  Section 49(2)  of  the Factories Act, 1948, provides that the State Government  may prescribe  the  duties,  qualifications  and  conditions  of service  of  Welfare Officers employed in  a  factory.   The State Government framed the Rules under section 49(2) of the Factories Act and rule 6(6) provides that a Welfare  Officer upon  whom a punishment is imposed may appeal to  the  State Government against the order of punishment and the  decision of  the State Government shall be final and binding.  It  is against a certain order passed by the State Government under rule  6(6)  that the company came to this Court  by  special leave and an objection was raised that the State  Government exercising  power under rule 6(6) was not a tribunal  within the  meaning of Article 136(1).  The objection was  repelled in the following words -               "Tribunals  which fall within the  purview  of               Art. 136(1) occupy a special position of their               own  under  the scheme  of  our  Constitution.               Special matters and questions are entrusted to               them  for  their decision and in  that  sense,

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             they   share  with  the  courts   one   common               characteristic  :  both  the  courts  and  the               tribunals  are "constituted by the  State  and               are  invested with judicial  as  distinguished               from   purely  administrative   or   executive               functions."  (vide  Durga  Shankar  Mehta   v.               Thakur  Raghuraj  Singh and  others)  (supra).               They  are  both adjudicating bodies  and  they               deal  with  and  finally  determine   disputes               between  parties which are entrusted to  their               jurisdiction.   The procedure followed by  the               courts   is   regularly  prescribed   and   in               discharging  their  functions  and  exercising               their  powers, the courts have to  conform  to               that  procedure.   The  procedure  which   the               tribunals have to follow may not always be  so               strictly  prescribe, but the approach  adopted               by  both  the  courts  and  the  tribunals  is               substantially  the,  same,  and  there  is  no               essential  difference  between  the  functions               that  they  discharge.   As  in  the  case  of               courts, so in the case of tribunals, it is the               State’s inherent judicial power which has been               transferred  and by virtue of the said  power,               it  is the State’s inherent judicial  function               which they discharge.  Judicial functions  and               judicial  powers  are  one  of  the  essential               attributes  of  a  sovereign  State,  and   on               considerations of policy, the State  transfers               its  judicial functions and powers  mainly  to               the  courts established by  the  Constitution;               but that does not affect the competence of the               State, by appropriate measures, to transfer  a               part  of its judicial powers and functions  to               tribunals  by entrusting to them the  task  of               adjudicating upon special matters and disputes               between parties.  It is really not possible or               even   expedient   to  attempt   to   describe               exhaustively the features which are common  to               the  tribunals  and the courts,  and  features               which are distinct and separate.               406               The basic and the fundamental feature which is               common to both the courts and the tribunals is               that  they  discharge judicial  functions  and               exercise judicial powers which inherently vest               in a sovereign State".(1)                *       *       *     *               "But  as we already stated, the  consideration               about  the  presence of all or.  some  of  the               trappings  of a court is really not  decisive.               The  presence  of some of  the  trappings  may               assist the determination of the question as to               whether the power exercised by the,  authority               which  possesses  the said trappings,  is  the               judicial power of the State or not.  The  main               and  the basic test however, is  whether  the,               adjudicating   power   which   a    particular               authority  is empowered to exercise, has  been               conferred  on  it  by a  statute  and  can  be               described  as a part of the  State’s  inherent               power  exercised in discharging  its  judicial               function.  Applying this test, there can be no               doubt   that  the  power   which   the   State               Government exercises under R. 6(5) and R. 6(6)

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             is  a part of the State’s judicial  power.  It               has been conferred on the State Government  by               a  statutory Rule and it can be  exercised  in               respect of disputes between the management and               its  Welfare  Officers.   There  is,  in  that               sense, a his there is affirmation by one party               and   denial  by  another,  and  the   dispute               necessarily    involves   the    rights    and               obligations  of the parties to it.  The  order               which  the State Government ultimately  passes               is  described as its decision and it  is  made               final  and binding.  Besides, it is  an  order               passed  on  appeal.  Having regard  to  these,               distinctive features of the power conferred on               the  State Government by R. 6(9) and R.  6(6),               we feel no hesitation in holding that it is  a               Tribunal within-the meaning of Art. 136(1)  ".               (2) Mr.  Rao submits that this Court in the above  decision  was particularly   influenced  by  the  fact  that   the   State Government  was  exercising the power of appeal  under  rule 6(5) and rule 6(6).  We are unable to hold that reference to the  order being passed on appeal in the above  passage  had any  decisive  weight  in arriving  at  the  decision.   The principal   test  which  must  necessarily  be  present   in determining  the character of the authority as  tribunal  is whether   that  authority  is  empowered  to  exercise   any adjudicating  power  of the State and whether the  same  has been conferred on it by any statute or a statutory rule. The  Election Commission is a creature of the  Constitution. The   Commission   shall  consist  of   a   Chief   Election Commissioner  and  also other Election Commissioners  if  so considered  necessary and when other Election  Commissioners are appointed, the Chief Election ’Commissioner shall act as Chairman  of  the Election Commission.  The  Chief  Election Commissioner is appointed by the President under (1) Pages 372-373 of the Report. (2) Pages386-387 of the report. 407 Article  324(2) of the Constitution.  Under Article  324(1), the   superintendence,   direction  and   control   of   the preparation of the electoral rolls for, and the conduct  of, all elections to Parliament and to the Legislature of  every State and of elections to the offices of President and Vice- President  shall be vested in the Election Commission.   The Chief  Election Commissioner shall not be removed  from  his office  except on like manner and on the like grounds  as  a Judge  of  the Supreme Court and his conditions  of  service shall   not  be  varied  to  his  disadvantages  after   his appointment.  However, unlike Judges of the Supreme Court or of  the High Courts and the Comptroller and  Auditor-General of  India, be is not required to make and  subscribe  before the President an oath or affirmation under the Constitution. Again,  the  Comptroller and Auditor-General  shall  not  be eligible for further appointment either under the Government of  India or under the Government of any State after he  has ceased  to  hold  his  office  [Article  148(4)].    Similar restrictions  are there in the case of the Chairman  of  the Union Public Service Commission (Article 319).  But there is no  such  restriction  in the case  of  the  Chief  Election Commissioner.  Even so, the Chief Election Commissioner is a high   dignitary   whose  independence,   impartiality   and fairmindedness  are intended to be guaranteed by  the  Cons- titution  in  the  manner set out above.   Since  the  Chief Election  Commissioner  is,  inter alia,  charged  with  the

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solemn  duty  of conducting elections, he has  to  discharge manifold  functions  and powers in facilitating a  fair  and free  election in our country avowedly wedded to  democratic principles.  India is a Democratic Republic and the elements of  democratic concept and process should imbue every  phase and feature of life, social and political. For  the purpose of holding elections, allotment  of  symbol will  find  a prime place in a country where  illiteracy  is still  very  high.  It has been found from  experience  that symbol  as  a  device  for casting  votes  in  favour  of  a candidate  of  one’s choice has proved  an  invaluable  aid. Apart  from this, just as people develop a sense of  honour, glory  and  patriotic  pride for a flag  of  one’s  country, similarly  great  fervor and emotions are  generated  for  a symbol representing a political party.  This is particularly so in a parliamentary democracy which is conducted on  party lines.   People after a time identify ’themselves  with  the symbol  and  the flag.  These are  great  unifying  insignia which cannot all of a sudden be effaced. The Constitution, as we have seen above, has vested  conduct of  all elections in the Commission.  Amongst other  things, conduct of elections would require decisions with regard  to the  allotment  of  symbols and  solution  of  controversies regarding  choice  of symbols.  Although under  Article  327 Parliament  is empowered to make provisions with respect  to all matters relating to or in connection with elections  and other  matters specified therein the Representation  of  the People  Act made thereunder by Parliament has not  expressly provided   for  any  provisions  with  regard  to   symbols. However,  under section 169(1) of the Representation of  the People  Act,  the Central Government is  empowered  to  make rules  after consulting the Commission for carrying out  the purposes  of  this  Act.  Sub-section (2)  of  that  section provides  in  particular,  and  without prejudice  to  the generality of the power under 408 section 169(1), that such rules may provide for the  matters specified  from (a) to (1).  Clause (c),  thereof,  provides for the manner in which votes are to be given both generally and  in  the  case  of illiterate  voters  or  voters  under physical disability.  The last clause is a residuary  clause with  regard to any other matter that may be required to  be prescribed  by  this  Act.  These rules, when  made  by  the Central Government, have to be laid before each House of the Parliament   under  sub-section  (3)  of  section  169   and parliament  control  is  thus  obtained.   The  Conduct   of Elections Rules, 1961, which have been named in exercise  of the  power under section 169 of the Act, provide in Part  11 thereof for various matters under the title "General  Provi- sions".   Rule 5 in Part 11 thereof and sub-rules  (4),  (5) and  (6)  of rule 10 therein deal with matters  relating  to symbols. In  exercise  of the power vested in  the  Commission  under Article.  324  and  rule 5 and rule 10  of  the  Conduct  of Elections  Rules,  1961 (briefly the Rules)  and  all  other powers  enabling it in that behalf, the Election  Commission made the election Symbols (Reservation and Allotment) Order, 1968  (hereinafter to be referred to as the Symbols  Order). The  preamble of the Symbols Order says that it is an  Order to  provide  for  specification,  reservation,  choice   and allotment  of  symbols  at elections  in  Parliamentary  and Assembly constituencies,, for the, recognition of  political parties  in  relation  thereto  and  for  matters  connected therewith. It is not necessary in this appeal to deal with the question

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whether the Symbols Order made by the Commission is a  piece of legislative activity.  It is enough to hold, which we do, that-the  Commission  is empowered on its  own  right  under Article  324 of the Constitution and also under rules 5  and 10  of  the Rules to make directions in  general  in  widest terms  necessary  and  also in specific cases  in  order  to facilitate  a free and fair. election with promptitude.   It is,  therefore, legitimate on the part of the Commission  to make general provisions even in anticipation or in the light of  experience  in respect of matters relating  to  symbols. That  would also inevitably require it to regulate  its  own procedure  in  dealing  with disputes  regarding  choice  of symbols  when  raised before it.  Further  that  would  also sometimes  inevitably lead to adjudication of disputes  with regard  to  recognition  of parties or  rival  claims  to  a particular  symbol.   The  Symbols Order  is,  therefore,  a Compendium of directions in the shape of general  provisions to   meet  various  kinds  of  situations  appertaining   to elections  with particular reference to symbols.  The  power to  make  these  directions, whether  it  is  a  legislative activity  or  not, flows from Article 324 as  well  as  from rules  5 and 10.  It was held in Sadiq Ali (Supra) that  "if the  Commission  is  not  to  be  disabled  from  exercising effectively the plenary powers vested in it-in the matter of allotment of symbol and for issuing directions in connection therewith,  it  is  plainly essential  that  the  Commission 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".  It has been held in Sadiq Ali (supra) that the Commission has been clothed with plenary powers  by rule 5 and sub-rules (4) and (5)   of  rule 10 of the  Rules in the matter of allotment of symbols. 40 9 In Sadiq Ali (supra) the Election Commission entertained the dispute under paragraph 15 of the Symbols Order.  The  vires of  paragraph 15 was challenged in that case and this  Court held that paragraph 15 was not ultra vires the powers of the Commission. In  Sadiq  Ali  (supra) the dispute was  between  two  rival sections  of  the same party, namely,  the  Indian  National Congress, and the dispute came squarely within the scope  of paragraph  15  of  the  Symbols  Order.   Even  the  present impugned order is professedly passed by the Commission under paragraph 15 of the Symbols Order. We may at once state that the controversy raised before  the Commission is not squarely within the scope of paragraph  15 of the Symbols Order.  That would, however, not conclude the matter  as the controversy could well be adjudicated by  the Commission,  relating  as  it was,  to  derecognition  of  a recognised  political  party vis-a-vis the choice  of  their reserved symbol in connection with elections, although ,they may  take  place in future.  The Commission  will  have  the jurisdiction to determine the controversy raised, clothed as it is with the power to conduct elections under Article  324 and  to  give  directions in general  or  in  particular  in respect of symbols which would involve the determination  of claims  as  recognised political parties in the  State.   No objection,  therefore,  can  retaken  to  the   Commission’s adjudication of the matter as being beyond the scope of  its jurisdiction. The  question which we are required to resolve is as to  the character  of  the Commission in adjudicating  this  dispute with  regard  to  recognition  of  APHLC  as  a   continuing recognised  political  part in the State of  Meghalaya.   It appears  that  out of 121 members of the Conference  81  had

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decided  by  majority that APHLC stood dissolved  and  these members  joined the INC. 40 members had opposed the move  to dissolve  the  party  and  actually  stayed  away  from  the Conference  when  the resolution to dissolve the  party  was passed.   That  has  led  to  the  dispute  as  to  whether, notwithstanding  the majority resolution in the  Conference, the  APHLC  could still continue as a  recognised  political party in the State of Meghalaya for the purpose of allotment of  the  reserved symbol.  There is thus a lis  between  two groups of the Conference.  The Commission is undoubtedly the specified and exclusive adjudicating authority of this  lis. The Commission is created by the Constitution and the  power to adjudicate the dispute flows from Article 324 as well  as from  rule  5  and  is thus conferred under  the  law  as  a fraction of judicial power of the State.  The Commission has prescribed  its own procedure in the Symbols Order,  namely, to  give  a hearing to the parties when there is  a  dispute with regard to recognition or regarding choice of symbols. , Paragraph  15 of the Symbols Order makes specific  reference to the procedure to be adopted by the Commission in  hearing like  disputes and it is required to take into  account  all the  available  facts and circumstances of the case  and  to hear such representatives of the sections or the groups  and other  persons as desire to be heard.  The decision  of  the Commission under paragraph 15 shall be binding on all  rival sections  or  groups  in  the  party.   The  Commission  has followed, and if we may say so, rightly, this very procedure laid  down  in  paragraph 15  in  adjudicating  the  present dispute 410 although  the same may not be a dispute  contemplated  under this  paragraph.  The dispute with which the Commission  was concerned in the present case was a dispute of more  serious nature  than that which may be envisaged between  two  rival sections of a political party or between two splinter groups of  the  same  party claiming to be  the  party,  since  the respondent’s  claim,  here,  was  to  annihilate  the  party ’beyond  recognition  and for good.   When,  therefore,  the Commission  has  laid  down a reasonable  procedure  in  the Symbols  Order  in  dealing  with such  a  dispute,  it  was incumbent upon the Commission to choose the same  procedure, as,  indeed,  it actually did, in adjudicating  the  present dispute.   If  the Commission were  not  specially  required under  the law to resolve this dispute within the  framework of  the scheme contemplated under Article 324 read with  the Rules  supplemented by the Symbols Order, the parties  would have  been required to approach the ordinary courts  of  law for determination of their legal riots with regard to  their recognition  or  derecognition.  Since,  however  a  special machinery  has  been set up under the law relating  to  this matter and the same has to be decided with promptitude,  the State’s  power  of  adjudicating such  a  dispute  has  been conferred  upon the Election Commission in this behalf.   It is true that the Election Commission has various administra- tive   functions   but  that  does  not  mean   that   while adjudicating  a dispute of this special nature it  does  not exercise the judicial power conferred on it by the State. To repeat, the power to decide this particular dispute is  a part  of  the  State’s  judicial power  and  that  power  is conferred  on the Election Commission by Article 324 of  the Constitution as also by rule 5 of the Rules.  The  principal and  non-failing  test  which must be present  in  order  to determine  whether a body or authority is a tribunal  within the ambit of Article 136(1), is fulfilled in this case  when the Election Commission is required to adjudicate a  dispute

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between   two  parties,  one  group  asserting  to  be   the recognised political party of the State and the other  group controverting  the  proposition before it, but at  the  same time  not laying any claim to be that party.  The fact  that the decision is not relevant immediately for the purpose  of the  notified election and that disputes regarding  property rights  belonging  to the party may be  canvassed  in  civil courts  or  in  other appropriate, proceedings,  is  not  of consequence in determination of the present question.. It is true that rule 5 (2) and sub-rules (4), (5) and (6) of rule 10 relate to an election which has been notified  under rule  3 of the Rules.  That, however, does not detract  from the  position that under rule 5(1), the Election  Commission is  empowered to specify symbols in general terms  and  also the  restrictions  to which the choice of  symbols  will  be subjected.   As stated earlier, rule 5 is in Part II of  the Rules under the title "General Provisions".  The. conferment of  judicial  power of the State on the  Commission  in  the matter  of  adjudication of the dispute of the  nature  with which  we are concerned clearly flows from rule 5 (1 )  read with Article 324 of the Constitution. 411 Mr.  Rao submits that the primary function of  the  Election Commission is not adjudicatory and, therefore, it cannot  be a tribunal for the purpose of Article 136.  We are unable to accept  this  submission.   The,  question  is  whether   in deciding  the  particular dispute between the parties  in  a matter of the kind envisaged in the particular controversy,- the Commission is exercising a judicial function and it  has a duty to act judicially.  Having regard to the character of the Commission in dealing with the particular matter and the nature  of the enquiry envisaged and the procedure which  is reasonably  required  to  be followed,  we hold  that  its primary  function  in  respect of  this  subject  matter  is judicial.  It is not necessary that this should be the  only function  of the Election Commission in order to answer  the character  of  a tribunal under Article 136.   Even  in  the Associated Cement Companies’ case (supra) this Court had  to deal  with  the exercise of power by. the  State  Government under  rule  6(5)  and (6) of the  Punjab  Welfare  Officers Recruitment  and  Conditions of Service Rules, 1952  and  it held  that the State Government in acting under those  rules was a tribunal within the ambit of Article 136(1).  It  goes without  saying  that  the primary  function  of  the  State Government  is not exercise of judicial power.  We  have  to determine  this  question keeping in view ’the  exercise  of power  with  reference  to  the  particular   subject-matter although in some other matters the exercise of function  may be of a different kind. Mr. Rao further contends that the decision of the Commission in such a case is only a tentative decision and,  therefore, the  Commission  does  not answer the  legal  concept  of  a tribunal.  We are unable to hold that the decision which the Commission gives after hearing the parties in a  controversy in  respect  of  the  Claim of a  party  to  continue  as  a recognised  party  in  the- State  continuing  the  reserved symbol already allotted to it is only a tentative  decision. The  decision  that  the  tribunal  gives  is  a  definitive decision  and is binding on both the contending  parties  so far  as the claim to the reserved symbol is concerned.   The decision  with  regard  to the reserved symbol  or  for  the matter  of  that any symbol for the purpose of  election  is within  the special jurisdiction of the Election  Commission and  it  is not permissible for the  ordinary  hierarchy  of courts  to entertain such a dispute.  The Corn-mission  does

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not  decide any rights to property belonging to a  political party  or rival groups of a political party.  That may be  a matter  for the ordinary civil courts with which we are  not concerned in this appeal. Thus the position that emerges from the above discussion  is that the Commission is created under the Constitution and is invested under the law with not only administrative   powers but  also with certain judicial power of the State,  however fractional  it may be.  The Commission exclusively  resolves disputes,  inter alia, between rival parties with regard  to claims for being a recognised political party for the-  pur- pose of the electoral symbol. We  are, therefore, clearly of opinion that  the  Commission fulfils the essential tests of a tribunal and falls squarely within the ambit of Article 136(1) of the Constitution.  The preliminary objection is, therefore, overruled. 412 Now on the merits. Before  we proceed further we may look at the nature of  the dispute   before  the  Commission.   The  APHLC   has   been recognised  as a political party in the State  of  Meghalaya since  1962.   Unlike  the INC this  party  has  no  written constitution of its own.  It is, however, not disputed  that APHLC is a democratically run party.  True in normal working in  a  democratic  Organisation the rule  of  majority  must prevail  and there can be no dispute about a decision  being arrived at by recourse to a majority vote in case members of a  party  are not unanimous on a  particular  issue.   That, however,  will not conclude the matter in this case  as  the Commission seems to have thought it did. The  history  of the party shows that it took its  birth  in 1960  and  thereafter  this  party  gathered  momentum   and strength to spearhead a peaceful constitutional movement for a  separate hill state.  Other matters were  subordinate  to this  paramount issue which more or less unified  the  hills except  certain  areas which were happy to continue  in  the composite State of Assam.  When the APHLC finally  succeeded in 1972 in securing the statehood for Meghalaya they  really won  the  battle  for which they remained  united  with  one common reserved symbol, namely, "Flower".  After  attainment of  statehood the APHLC was returned in the  elections  that followed  and  took the reins of Government.   No  one  then thought of liquidation or dig-solution of the party  because its paramount aim had been achieved. The  APHLC  is  a regional party but  with  high  ideals  of working out the salvation of the area as proud partners in a larger scheme of advancement of the whole nation without, at the  same  time,  effecting  their  identity,  culture   and customs.  We find from the records that the party as a whole believed  in associating with the national stream of  public life  and indeed the last resolution of the APHLC in  August 1976,  before the split in November 1976, was to  strengthen their tie with the INC. When  a party like this has to disappear from the  political firmament  as  a  distinct party, it is  a  very  grave  and serious   decision  to  take.   A  party  which   has   been successfully running a State Government cannot claim to be a party of mere leaders as is sought to be represented by  the respondents and as the nomenclature may even apparently sug- gest.   It  is  true the leaders took  upon  themselves  the solemn task of fulfillment of the aspirations of the  region and  of the people but only on the basis as  representatives of  the  people whose inner voice  they  articulated,  whose ambition  they  strove to achieve.  There could  be  no  All

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Party Hill Leaders without the people to lead and Without  a general  membership furnishing the infrastructure.   Whether there has been regular membership for the party, about which also there is controversy between the parties, it would be a self-evident  fact  in  a  democratic  party,  which   APHLC undoubtedly  claims to be, that the leaders  cannot  operate from a super-structure without the base of the people. We may in this context refer to a few incontrovertible facts while the APHLC was functioning in a normal way without  any dispute.   Take,  for  example, the notice  of  Shri  P.  R. Kyndiah, General Secre- 413 tary, APHLC dated July 15, 1976, addressed to secretaries of Khasi  Hills District APHLC, Shillong, Garo Hills  District, APHLC, Tura, Jaintia Hills District APHLC, Jewai, All  India Garo National Council, Shillong, and District Garo  National Council, Tura, regarding the 26th Conference of the APHLC on 17th and 18th August, 1976. The writes in this letter :               "I  request you kindly to inform the  eligible               delegates  accordingly.   Meanwhile  you   are               requested  to  send  to me  the  list  of  the               eligible  delegates and invitees on or  before               the 6th August, 1976".               The  Note below the letter shows  the  persons               who  are  entitled to join The  Conference  as               full-fledged delegates.  They are-               "(a) Members of the Party Central Committee.               (b)   All M.Ps., M.L.As. and M.D.Cs  belonging               to the APHLC.               (c)   5  representatives  from  each  District               Branches and affiliated parties.               (d)   2 Nominees of the Party Chief  Executive               Members, District Councils and in the case  of               Khasi  Hills District Branch, its Chairman  is               authorised to nominate the nominees.               (e)   4   additional   delegates   from    the               host district".               It  was  also indicated in the Note  that  the               following numbers of invitees are allotted  to               each  district  branches  for  attending   the               Conference                "(i) Khasi Hills District Branch 15 (ii) Garo                (ii)Garo      Hills      District      Branch               15                (iii)    Jaintia   Hills   District    Branch               8" We are told that the numerical strength of the delegates  to such  a  Conference is 121.  It must, however, be  borne  in mind  that they are " delegates", that is to say,  delegates of some body or persons who would in the usual course, elect or  authorise  the  delegates as  their  representatives  to represent  the larger body or assemblage in the  Conference. There  is clear evidence of the democratic feature  in  this very  notice  which  showed the pattern of  working  of  the APHLC.   It is submitted on behalf of the  respondents  that the  Conference  of these delegates is  authorised  to  take decisions  on  "any  issue".   Assuming  that  is  so,  such authority  in  absence of anything more cannot  authorise  a Conference of the delegates to write off the Organisation or to  sign its death warrant.  "Any issue’ on  which  decision may normally be taken by the Conference must relate to  live matters  of  a  living  organ and not  to  its  death  wish. Without   the  nexus  with  the  generality  of   membership decisions  will  derive no force or vigour and no  party  or conference  can hope to succeed in their plans,  efforts  or

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struggle  unless backed by the same.  There is  no  evidence authorising  the Conference to dissolve itself by merger  or otherwise,  and so it is not possible to apply the  rule  of majority only in the Conference for such a 414 decision  affecting  the  entire body as an  entity  in  the absence  of  a clear man date from the  general  membership. Assuming  that the Conference on November 16, 1976,  decided by  a majority to dissolve the APHLC, it would have been  in accord  with  democratic principles to place  that  decision before the general membership of the party for  ratification prior  to  implementing the mere majority  decision  of  the Conference without regard to the wishes of the members as  a whole.   The  President of the APHLC and those who  were  in favour  of dissolution fell into this error and they  cannot blame  the minority of 40 members who  openly  disassociated with  the  hasty  move  and only  wanted  time  for  further discussion  by taking "the rank and file"  into  confidence. It  is  very  difficult to appreciate  why  this  reasonable request  from  a responsible section of the  Conference  was completely  unheeded and the President thought it proper  to agree  to take upon himself the responsibility  to  announce the dissolution and hastily merge with the INC.  The  matter ought to have struck the President as a grave issue  result- ing,  as it had done, in resignation of four members of  the Meghalaya Cabinet on this very issue. Again in this context it will be appropriate to refer to  an admitted  document being the resolution passed by  the  20th Session  of the All Party Hills Leaders’ Conference held  at Tura on the 14th and 15th October, 1968, when the party  was a unified body.  It may be apposite to extract the following passage from the minutes :               "In  its  19th Session held at Tura  from  the               17th  to the 19th September, 1968,  the  APHLC               discussed  the  Government of  India  decision               announced on September 11, 1968 to  constitute               an Autonomous Hill State.  It was then decided               to  place the Government of India Plan  before               the people of the hill areas and obtain  their               reactions   before  the  APHLC  comes   to   a               decision.                This  20th Session of the APHLC held at  Tura               on  the  14th  and  15th  October,  1968,  has               received  comprehensive  reports  of  meetings               held  in this connection in the various  parts               of the hill areas.  These reports convey  that               the  consensus in the hill areas is  that  the               people,  while expressing deep  disappointment               at  the failure of the Government of India  to               meet their aspirations in full and reasserting               that a fully separate State would be the  best               solution, nevertheless feel that the Plan  may               be given a trial.               Now  therefore,  having fully  considered  the               public   opinion  in  the  hill   areas,   the               ’political  realities in the country  and  the               larger  interests of the country as  a  whole,               this   Conference   resolves   to   give   the               Autonomous  Hill State Plan a fair trial  with               the  clear understanding that the  APHLC  will               continue  all  efforts  to  achieve  a   fully               separate  State comprising all the hill  areas               of the present State of Assam as envisaged  in               the resolution and Plan of the 3rd Session  of               the APHLC held at Haflong in November, 1960".

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415 The above resolution adopted in 1968 would clearly show that the  APHLC  has  been always  working  on  democratic  lines mindful  of the public opinion in the entire hill areas  and whenever momentous decisions had to be taken they thought it absolutely  mandatory  to consult the wishes of  the  people before  taking  a decision.  This is, as it should  be,  for democracy  cannot thrive as democracy by being an  oligarchy masquerading  for  democracy.  There could not have  been  a more  momentous  decision than the dissolution of  a  ruling party in the State. It was crystal clear that the house was emotionally  divided on the issue of merger with the INC and that the history  of the  move  in  the direction of  the  merger  brought  forth discordant  notes  and opposite trends.  The  portents  were sufficiently  indicative  of  almost  unbridgeable  fissures affecting  the harmony in the party.  Leaders who  had  har- moniously  chosen  peaceful paths on various issues  in  the past  could  not  have been expected  to  tear  asunder  the homogeneity  which  successfully  built up  the  party.   It appears,  the  finale of the proposed assimilation  did  not filter  from  within  but  was,  on  the  President’s  frank disclosure  before  the  Central  Committee,  "wanted"  from outside,  a  position to which several  leaders  immediately reacted. The  Commission  fell  into an error  in  holding  that  the Conference of the APHLC was the general body even to take  a decision  about  its dissolution by a  majority  vote.   The matter  would  have  been absolutely  different  if  in  the general  body of all members from different areas  or  their representatives  for  the  purpose,  assembled  to  take   a decision  about the dissolution of the party had  reached  a decision  by majority.  This has not happened in this  case. At best the decision of the Conference on November 16, 1976, was  only a step in that direction and could not be held  as final until it was ratified by the general membership.   The fact  that no membership registers were produced before  the Commission  or that there is controversy with regard to  the existence  of regular members or their enrollment would  not justify the Conference to be indifferent to the consensus of the  members  as a whole whom they had always  consulted  in other momentous issues and but for whose active aid, support and participation they could not have achieved the statehood for  Meghalaya.  The decision of the Commission,  therefore, is completely erroneous. There  can  be no flower without its sap.  There  cannot  be leaders  without  people.  There cannot be a  party  without members.   Action  of  leaders ignoring  the  generality  of membership  is ineffective.  Such action cannot  be  equated it the consensus of the membership which alone supplies  the base for its sustenance. There  is  another aspect of the  matter.   The  controversy arises  not  during an election after it has  been  notified under  rule  3.  The dispute relates  to  the  consideration whether   a  recognised  State  party  has  ceased   to   be recognised,  under  the Symbols Order.  The  Commission  has undertaken the enquiry in the context of paragraph 15 of the Symbols  Order.  We have already indicated that the  dispute does not 41 6 come  within  the  scope  of paragraph  15.   Even  so,  the Commission  would  have the jurisdiction to  adjudicate  the dispute   with  regard  to  cancelling  recognition   of   a recognised political party in terms of the directions  under the  Symbols Order.  Under paragraph 7, sub-para (2) of  the

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Symbols  Order, notwithstanding anything contained  in  sub- paragraph  (1)  with  which  we  are  not  concerned,  every political party which immediately before the commencement of this Order is in a State a recognised political party  shall on  such  commencement, be a State party in that  State  and shall continue to be so until it ceases to be a State  party in  that  State on the result of any general  election  held after such commencement.  Under paragraph 6, sub-para (2) of the  Symbols Order a political party shall be treated  as  a recognised political party in a State if and only if  either the conditions specified in clause (A) are, or the condition specified in clause (B) is, fulfilled by that party and  not otherwise, that is to say               "(A) that such party-               (a)   has been engaged in political activity               for a continuous period of five years; and               (b)   has,  at  the general election  in  that               State  to the House of the People, or, as  the               case may be, to the Legislative Assembly,  for               the  time being in existence and  functioning,               returned               either (i) at least one member to the House of               the  People for every twenty-five  members  of               that  House  or any fraction  of  that  number               elected from that State;               or (ii) at least one member to the Legislative               Assembly  of  that  State  for  every   thirty               members  of that Assembly or any  fraction  of               that number;               (B)   that  the  total number of  valid  votes               polled  by all the contesting candidates  set               up  by such party at the general  election  in               the  State to the House of the People, or,  as               the case may be, to the Legislative  Assembly,               for  the  time being in  existence  and  func-               tioning  (excluding  the valid votes  of  each               such contesting candidate in a constituency as               has  not  been elected and has not  polled  at               least one-twelfth of the total number of valid               votes polled by all the contesting  candidates               in  that constituency), is not less than  four               per  cent of the total number of  valid  votes               polled  by  all the contesting  candidates  at               each general election in the State  (including               the valid votes of those contesting candidates               who have forfeited their deposits) It  is  not disputed that the APHLC With  40  members  still claiming  to continue its reserved symbol answers  the  test laid   down  in  the  Commission’s  directions   for   being recognised as a State political party under paragraph 6  of the Symbols Order.  They bad, on the date of 41 7 entertainment  of the dispute by the Commission,  still  the requisite membership fulfilling the test for recognition  as a  State  political party.  The Commission  was,  therefore, required to follow the provisions of the directions which it has  laid  down in the Symbols Order when  the  question  of derecognition of a party was raised before it.  It is not  a dispute between two factions of the same party, each  claim- ing to be the party so that the Commission has to allow  the symbol to one of them.  The claim of the respondents  before the Commission was that the APHLC had ceased to function  as a  recognised  political  party  n  the  State  and  Captain Sangma’s  group  having merged With the  INC  requested  the Commission  to  scrap the APHLC out of  existence  with  its

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reserved symbol so that the APHLC would be effaced from  the political arena.  The Commission was entirely wrong in  its decision  in  view  of its own directions  embodied  in  the Symbols  Order.   The  Commission could  not  be  reasonably satisfied on the materials before it that under paragraph  6 read  with  paragraph 7 of the Symbols Order the  APHLC  bad ceased to be recognised political party in the State.   Even by application of the directions which it has set out in the Symbols Order the Commission’s decision is absolutely unten- able. Even after a major chunk of the APHLC led by Captain  Sangma had joined the INC., if those who still continued under  the banner  of the APHLC flag and symbol claimed to continue  as APHLC  and  the  directions in the  Symbols  Order  did  not authorise  derecognition of the APHLC as a body  represented by the remainder ,as we have found, no case is made out  for any  interference  by  the Commission  with  regard  to  the reserved  symbol.   Thus the APHLC, as  a  recognised  state political  party  in  Meghalaya, stays and  is  entitled  to continue with their reserved symbol "Flower". In the result the appeal is allowed and the decision of  the Election  Commission  is  set aside.   The  reserved  symbol "Flower"  stands  restored  to  the  APHLC.  In  the  entire circumstances  of  the  case there will be no  order  as  to costs. P.H.P. Appeal allowed. 3--930CI/77 418