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PETITIONER: SADIQ ALI AND ANR. ETC.

       Vs.

RESPONDENT: ELECTION COMMISSION OF INDIA AND OTHERS ETC.

DATE OF JUDGMENT11/11/1971

BENCH: KHANNA, HANS RAJ BENCH: KHANNA, HANS RAJ HEGDE, K.S. GROVER, A.N.

CITATION:  1972 AIR  187            1972 SCR  (2) 318  CITATOR INFO :  D          1974 SC 445  (10,18)  RF         1977 SC2155  (22)  F          1982 SC1559  (18)  D          1984 SC 921  (11)  F          1986 SC 111  (11,14)

ACT: Symbols  (Reservation and Allotment) Order,  1968--Paragraph 15--Party  splitting  itself  into  two  groups--Each  group claiming  symbol--Powers of Election Commission  in  inquiry under    para   15--Test   of   majority    and    numerical strength--Relevancy--Binding nature of decision of  Election Commission--Para  15 not ultra vires the powers of the  Com- mission.

HEADNOTE: The  Indian National Congress, a recognised  national  party under  the  Election  Symbols  (Reservation  and  Allotment) Order,  1968 had as its symbol "Two Bullocks with  Yoke  on" for  the purpose of elections.  The Congress is a  voluntary association  with its own Constitution.  In 1969,  following differences over the choice of the congress nominee for  the office of the President of India, the Congress split  itself into  two groups congress ’O’ and congress ’J’.  On  January 15,  1970  a  communication was addressed  by  the  Election Commission to the Secretary of congress ’J’ as well as  that of  congress  ’O’ stating that "a dispute  appears  to  have arisen  as  to  which of the two groups  is  the  recognised political  party known as the Indian National Congress"  for the  purpose  of  the Election Symbols Order  and  that  the commission was required to take a decision in the matter  in terms  of para 15 read with para 18 of the Order.  Both  the groups  presented  their claim before the  Commission..  The Commission framed and settled the following four points  for consideration :               (1)  Has the Election Commission  jurisdiction               within  the  meaning of paragraph  15  of  the               Election  Symbol  (Reservation  &   Allotment)               Order 1968, to decide whether any one or  none               of  the  rival  section or  groups     of  the               Indian  National  Congress,."national  party",               is the said Indian National Congress ?

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             (2)  Has  the  Election  Commission,  for  the               purpose of undertaking the inquiry to come  to               a  decision  as aforesaid, been  satisfied  on               information  in its possession that there  are               two rival section or groups of the said Indian               National  Congress  each claiming to  be  that               Congress ?               (3)  What is the nature of an election  symbol               under  the Election Symbols  (Reservation  and               Allotment) Order, 1968 and whether an election               symbol, whether reserved or free, is  property               ?               (4)  Whether  on the facts  and  circumstances               available  to the Election Commission, any  of               the alleged rival sections of the said  Indian               National  Congress  is that Congress  for  the               purpose  of the Election Symbols  (Reservation               and  Allotment)  Order 1968; if so:  which  is               that  rival section, or, whether on the  facts               and  circumstances referred to above, none  of               the   rival  sections  of  the  _said   Indian               National Congress is that Congress? The  contention that the Working Committee or the  President of  Congress  ’O’,  who  was the  President  of  the  Indian National  Congress at the time of the split, were  the  only authorities  to give a binding decision was repelled by  the Commission.  The Commission held that the very existence  of a conflict was enough to create jurisdiction to find out and decide, on- 319 the   facts  and  circumstances  established,  whether   the conflict  was genuine and whether the claim and  allegations of  the  applicants were valid. on point  2  the  Commission observed that it was satisfied on the information  available in its possession that there were two rival sections of  the Indian National Congress, each claiming to be that congress. Regarding point 3 the finding of the Commission was that the Election  Symbol was not property.  As regards point No.  4, the  Commission  observed  that  the  majority  test  was  a valuable  and  relevant test in a  democratic  Organisation. The  test based upon the provisions of the  Constitution  of the  Congress, canvassed on behalf of the Congress ’O’,  was held to be hardly of any assistance in view of the  removals from  membership and expulsions from the committees  of  the Congress  of  the members belonging to one  group  by  those belonging to the opposite group.  The Commission then consi- dered  another  test, namely, that based upon the  aims  and objects   as  incorporated  in  the,  Constitution  of   the Congress.   It was observed that none of the two groups  had challenged in any manner or openly repudiated those aims and objects.   The  test  based upon the aims  and  objects  was consequently  held to be ineffective and neutral.   Applying the test of majority, the Commission observed that  Congress ’J’  had  the majority out of the total  number  of  members returned on congress tickets to the Houses of Parliament  as well as the majority out of the sum total of the members  of all  the Legislatures returned on congress tickets  although in  some States, like Gujarat and Mysore, Congress  ’O’  had majority in the Legislature.  As regards the  organisational wing of the congress, the Commission came to the  conclusion that Congress ’J’ enjoyed majority in the All-India Congress Committee as well as amongst the delegates of the  undivided congress.   As  regards the delegates who were  entitled  to vote  at  the  earlier Faridabad Session  of  Congress,  the Commission  found  that  out of the  total  number  of  4690

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delegates,  2870  pledged  their support  to  Congress  ’J’. Regarding  the members of the All India  Congress  Committee (A.I.C.C.), the Commission held that the total number of  A. 1.  C.  C. members who attended the Bombay  meeting  of  the Congress J. was 423 out of 707 elected members and 56 out of 95  nominated and coopted members.  The Bombay  session,  it was  further  held, assumed importance in view of  the  fact that all the resolutions passed at the requisitioned meeting of  Congress ’J’ at Delhi were ratified unanimously  at  the Bombay  session.  For determining as to who were members  of A.I.C.C. and delegates the Commission accepted those persons as members of A.I.C.C. and delegates who held that  position in  the earlier session of the Congress at Faridabad  before the split. Decision  was  accordingly  given that for  the  purpose  of paragraph  15  of  the Symbol order  Congress  ’J’  was  the congress  for which the symbol "Two Bullocks with  Yoke  on" had  been reserved.. Appeal was filed against this order  of the  Election Commission.  An appeal was also filed  against the judgment ofthe  Madras High Court on a  certificate granted by that Court, repellingthe    contention    that paragraph  15  was ultra vires and invalid in so far  as  it conferred  power  on the Commission to  decide  the  dispute between twogroups  of  a political party.   On  (i)  the question whether the test of majority or numerical  strength which  was taken into account by the Commission was  in  the circumstances of-the case a relevant and germane test;  (ii) the  binding nature of the decision given by the  Commission under paragraph 15; and (iii) the question whether paragraph 15 was ultra vires and invalid HELD : Dismissing the appeals (1)  The  occasion for making an order  under  paragraph  15 arises when the Commission is satisfied, on the  information in its possession that there are rival sections or groups of a recognised political party each of whom 320 claims  to  be  that party.  In  the  circumstances  of  the present  case the commission had to decide the matter  under paragraph  15  and there was nothing  objectionable  in  the communication dated January 15, 1970, sent to the two  rival parties on its behalf. [333 E] As  Congress  is  a  democratic  Organisation  the  test  of majority  and  numerical strength was a  very  valuable  and relevant  test.  The figures found by the Commission of  the members  of  the two houses of Parliament and of  the  state legislatures  as  well  as those  of  A.I.C.C.  members  and delegates who supported Congress ’J’, have not been shown to be  incorrect.   In view of these figures it can  hardly  be disputed  that  susbtantial majority of the members  of  the congress  in  both  its  legislative wing  as  well  as  the Organisation wing supported Congress ’J’. [336 A] In view of the removals and expulsions which followed in the wake of split in the congress, the Commission adopted proper approach  for  determining as to who should be taken  to  be members  of A. I. C. C. or the delegates, more so,  when  in the  opinion  of  the  Commission,  the  validity  of  those removals  and expulsions was open to question.  Further,  if according to paragraph 6 of the Symbols Order the number  of seats  secured by a political party or the number  of  votes cast in favour of the candidates of a political party can be a relevant consideration for the recognition. of a political party,  one  is at a loss to understand how the  numbers  of seats  in the Parliament and state legislatures held by  the supporters  of  a  group  of  the  political  party  can  be considered  irrelevant.  Consequently, there is no error  in

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the  approach  of  the commission in applying  the  rule  of majority and numerical strength for determining as to  which of the two groups was the Congres party for the’ purpose  of para 15 of the Symbols Order.[336E, C; 338 B] Even though the mass of congress members are primary members there are practical difficulties in ascertaining the  wishes of  those members.  It can be legitimately  considered  that the members of the A.I.C.C. and the delegates reflected, by, and   large,  the  views  of  the  primary   members.    The Commission,  in any inquiry under paragraph 15, has  to  act with a certain measure of promptitude and it has to see that the inquiry does not get bogged down in a quagmire. [336 F]. Paragraph 13 of the Symbols order has nothing to do with the question  of resolving a dispute wherein two rival  sections or  groups of a recognised political party claim to be  that party.  For resolving of such a dispute only paragraph 15 is to be looked into. ;[338 G-H] General  Assembly of Free Church of Scotland and  Others  v. Lord Overtoun and Others, :[1904] A.C. 515, distinguished. Samyukta  Socialist Party v. Election Commission of India  & Anr., [1967] 1 S.C.R. 643, held inapplicable. The symbol is not property to be divided between  co-owners. The  allotment  of a symbol to the candidates set  up  by  a political  party is a legal right and in case of  split  the Commission  has  been authorised to determine which  of  the rival  groups or section is the party which was entitled  to the  symbol.  The Commission in resolving this dispute  does not decide as to which group represents the party, but which group is that party. [339 H] (ii)  The claim made is only for the purpose of  symbols  in connection  with  elections  to  the  Parliament  and  state legislatures and the decision of 321 the Commission under paragraph 15 constitutes a direction to the  Returning  Officer for the purpose of rule  10  of  the Conduct of Election Rules, 1961 The said direction shall  be binding  upon the Returning Officer in accordance with  sub- rules (4) and (5) of rule 10. [339 D] [The  Court  did  not express any opinion  on  the  question whether  the decision of the Commission can be  called  into question in appropriate proceedings in a court of law.] (iii) There is no substance in the contention that paragraph 15  of  the Symbols order is ultra vires the powers  of  the Commission.   The, Commission has been clothed with  plenary powers  by  the Conduct of Election Rules in the  matter  of allotment  of  symbols.   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. Para  15  is intended to effectuate and  subserve  the  main purpose and objects of the symbols order.  The Commission is an  authority created by tile Constitution and according  to Article  324, the superintendence, direction and control  of the  Electoral  rolls  for  the  conduct  of  elections   to Parliament  and  the  legislature  of  every  state  and  of elections to the offices of President and Vice President  is vested  in  the  Commission.  The fact  that  the  power  of resolving  a dispute between two rival groups for  allotment of  symbol  of a political party has been vested in  such  a high authority would raise a presumption, though rebuttable, and  provide  a  guarantee, though not  absolute  but  to  a considerable extent, that the power would not be misused but

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would be exercised in a fair and reasonable manner.[342 A-G] There  is also no substance in the contention that as  power to make provisions in respect to elections has been given to the  Parliament by Article 327, the power cannot be  further delegated  to  the Commission.  The law made  by  Parliament under article 327 is subject to the other provisions of  the Constitution  including article 324.  It, therefore,  cannot be  said that when the Commission issues direction, it  does so  not  on  its own behalf but as delegate  of  some  other authority. [342 H]

JUDGMENT: CIVIL APPEELLATE JURISDICTION : Civil Appeal No. 70 of 1971. Appeal  by Special Leave from the decision dated the  11  th January  1971  of the Election Commission of  India  in  the matter  of  an inquiry under paragraph 15  of  the  Election Symbols (Reservation and Allotment) Order, 1968.                             AND         Civil Appeals Nos. 2122 to 2124 of 1970. Appeals  from  the judgment and order dated the  15th  June, 1970  of the Madras High Court in W.As. Nos. 327 and 345  of 1970 and W.P. No. 513 of 1970. Shanti  Bhushan,  K.  C.  Sharma,  Y.  K.  Mathew  and  V.P. Chaudhry, for the Appellants in C.A. No. 70 of 1971. R.  N.  Sachthey, for respondent No. 1 (In C.A.  No.  70  of 1971). 322 K.  L. Mishra, A. P. Misra, Naunit Lal, V. P. Nanda,  Janak: Rai, Swaranjit Sodhi and R. K. Shukla, for respondent No.  2 (In C.A. No. 70 of 1971). A.  K. Sen, Bawa Shiv Charan, K. S. Suri, O. P.  Sharma  and Kailash  Mehta,  for  respondent No. 3 (in C.A.  No.  70  of 1971)., P.  N. Lekhi, M. K. Garg and V. C. Prashar,  for  respondent No. 5 (In C.A. No. 70 of 1971). Mukat Behari Lal Bhargava, S. L. Bhargava and V. C. Prashar, for respondent No. 5 (In C.A. No. 70 of 1971. Respondent  No.  6  appeared in person (In C.A.  No.  70  of 1971). M.  Natesan,  T. L. Garg and R,.   Gopalakrishnan,  for  the Intervener  (In C.A. No. 70 of 1971) and the appellants  (In C.As. Nos. 2122 to 2124 of 1970). R. N. Sachthey and S. P. Nayar, for respondents Nos.  1  and 2 (In C.A. Nos. 2122 and 2123 of 1970) and respondent No.  1 (C.A. No. 2124 of 1970). The Judgment of the Court was delivered by Khanna,  J.  Civil Appeal No. 70 of 1971 has been  filed  by special  leave  by Shri Sadiq Ali and  another  against  the order  of  the  Election Commission  of  India  (hereinafter referred  to  as the Commission) under paragraph 15  of  the Election  Symbols  (Reservation  &  Allotment)  Order,  1968 (hereinafter  referred to as the ’Symbols  Order’),  whereby the  Commission  held that for the purpose of  allotment  of symbol  in  elections the political party presided  over  by Shri  Jagjivan Ram was the Indian National Congress and  was entitled  to  the  symbol of "Two Bullocks  with  Yoke  on", reserved for the said Congress. Indian  National  Congress (hereinafter referred to  as  the ’Congress’) is a recognised National Party under the Symbols Order.   The symbol of the "Two Bullocks with Yoke  on"  was exclusively  reserved for the Congress’ for the  purpose  of elections  to the Houses of Parliament and  the  Legislative Assemblies  of  the  States  and  Union  Territories.    The

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Congress  is  a  voluntary  association;  it  is  neither  a statutory body nor a registered society under the  Societies Registration  Act.  It has framed its own  constitution  and rules.   Shri S. Nijalingappa was elected President  of  the Congress with effect from 1st January, 1968 for a period  of two years. Dr. Zakir Hussain, President of India, died in 1969.   Split then took place in the Congress Party following  differences over 323 the  choice  of  Congress  nominee for  the  office  of  the President  of  India.  Each group claimed to  represent  the Congress  Party.  :  One;  of the  groups  elected  Shri  C. Subramaniam as the President of the Congress.  Subsequently, Shri  Jagjivan  Ram was elected President by this  group  in place  of  Shri Subramaniam.  For sake of  convenience  this group would hereafter be referred to as Congress ’J’.   Shri Nijalingappa  continued to be the President of the  party  . represented  by  the other group which  would  hereafter  be referred to as Congress ’O’. On 21st December, 1969, Shri Subramaniam claiming to be  the President  of the Congress, addressed a letter to the  Chief Election  Commissioner stating that there had been a  change in  the office-bearers of the Congress.  Enclosed  with  the letter was the list of office-bearers of Congress ’J’  Party and  it was stated that they were the office-bearers of  the Congress.   There was then some exchange  of  correspondence between  the  Commission and.  Congress ’J’ Party.   On  3rd January, 1970, a communication was addressed to the Election Commission on behalf of the Congress ’J’ that Shri Jagjivan, Ram  had been duly eletced as President of the Congress  and had  taken charge on December 25, 1969, during  the  plenary session held at Bombay. On  8th  January, 1970, a letter was sent on behalf  of  the Commission to the Secretary of Congress ’O’.  Enclosed  with that  letter  was a copy of the letter of  Shri  Subramaniam dated  21-12-1969.  The Congress ’O’ was asked to  make  its comments so as to enable the Commission to take decision  in the  matter after’ hearing both parties.  On  14th  January, 1970,  a  reply was sent on behalf of Congress  ’O’  by  its General  Secretary,  Shri Sadiq Ali.  In that reply  it  was stated  that Shri Subramaniam who had styled himself as  the President  of the Congress was, in fact, not  its  President and that the duly elected President of the Congress was Shri Nijalingappa.   It was also stated that  the  office-bearers mentioned  by  Shri Subramaniam including  Shri  Subramaniam himself,  were  persons expelled from the Congress  and  had otherwise  ceased  to  be  the  members  of  the   Congress. Further,  according  to the letter of Shri  Sadiq  Ali,  the Commission  should  not have entertained  any  communication from  a group of people who had formed a new party and  were masquerading  themselves  in  the  name  and  style  of  the Congress.   This  association of persons, added  Shri  Sadiq Ali, was neither a splinter group nor a rival section of the Congress.  The competence of the Commission to enquire  into the matter was also questioned. On 15th January, 1970, a communication was addressed by  the Commission to the Secretary of Congress ’J’ as well as  that of  Congress  ’O’ stating that, "a dispute appears  to  have arisen as to 324 which  of the two groups is. the recognised political  party known  as the Indian National Congress for the  purposes  of the Election Symbols (Reservation & Allotment) Order,  1968, and  the  Commission is requried to take a decision  in  the

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matter in terms of paragraph 15, read with paragraphs 18, of the   said  Order.   The  Commission  proposes   to   afford reasonable  opportunities to each group to present its  case before  it so that the Commission may take into account  all the  available  facts  and circumstances  for  deciding  the case". On  22nd  January 1970, a statement was filed on  behalf  of Congress  ’J’ before the Election Commission.  According  to that  statement Shri Nijalingappa was elected  President  of the Congress with effect from 1st January, 1968 for a period of  two years under Article 5 of the old Constitution  which came  into  force on 25th June, 1967.  The election  of  the members of the All India Congress Committee was held by  the delegates.   In accordance with the old  Constitution,-  the members  of the Pradesh Congress Committees were,  delegates to the Indian National Congress.  The term of the members of the  All  India  Congress Committee,  the  Pradesh  Congress Committees and the Committees subordinate thereto and of the office-bearers  thereof  was to expire on  31  st  December, 1969,  under  Article 5 of the Old  Constitution.   On  28th April, 1969, the Working Committee of the Congress passed  a resolution  at  Faridabad  for extending  the  term  of  all Committees  of  the  Congress  and  of  the   office-bearers including  that of the President, Shri Nijalingappa,  for  a further period of one year.  The said resolution,  according to  Congress ’J’ was not legal as there was no emergency  or special  situation  warranting the extension of  the  normal term  of  two years.  The resolution was also stated  to  be invalid  as it was not submitted under the old  Constitution to  the  All India Congress Committee  for  ratification  as early as possible. Under  the new Constitution which came into force on  11  th July, 1969, the above resolution was required, according  to the statement on behalf of Congress ’J’, to be submitted  to the  All  India Congress Committee for ratification  in  any case  within 6 months.  The resolution was not  ratified  at the  meeting  of the All India Congress  Committee  held  in Bangalore in July, 1969.  The period of 6 months  prescribed for  the  ratification  of the resolution  expired  on  28th October,  1969 and as the resolution was not  ratified,  the same  according to the statement became void.   Further,  as the  term  of Shri Nijalingappa as President  was  going  to expire  on 31st December, 1969, it became necessary for  the All  India Congress Committee to make arrangements  for  the election   of  the  President  before  the  said  date.    A requisition,  it is stated, signed by more than 400  members of the All India Congress Committee, out of 325 a  total  of 707, was sent for calling a meeting of  the  AR India  Congress Committee.  Shri Nijalingappa then called  a meeting of the Congress Working Committee on 1 st  November, 1969.  Before that, on the night of 31st October, 1969, Shri Nijalingappa declared that Shri Subramaniam, a member of the Congress Working Committee had ceased to be a member of that Committee.   Shri  Nijalingappa also on that  night  removed Shri Fakhruddin Ali Ahmed from the membership of the Working Committee,.  The, ,above act of Shri Nijalingappa  according to  the  statement, was mala fide, illegal and  against  the principles of natural justice. According  further to the statement submitted on behalf  of’ Congress ’J’, the requisition sent by more than 400  members of  All  India  Congress  Committee  was  received  by  Shri Nijalingappa  on  the night of 31st October,  1969  and  was turned down by the Working Committee. 17 members of the  All India Congress.  Committee who were also signatories to  the

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above-mentioned   requisition,  issued  a  notice   on   5th November,  1969 calling a meeting of the All India  Congress Committee   to  consider  the  subjects  mentioned  in   the requisition.   Copies of the said notice were sent  to  Shri Nijalingappa  and  a  public statement was  issued  by  Shri Subramaniam  that Shri Nijalingappa would be presiding  over the  meeting  if he attended the  same.   The  requisitioned meeting  of  the All India Congress Committee  was  held  at Delhi on 22nd and 23rd November, 1969 and was, according  to the  statement,  attended by 435 members of  the  All  India Congress Committee out of a total of 707.  Shri Nijalingappa and his followers did not attend the requisitioned  meeting. Six  members having voting rights also,  communicated  their support  in writing for the requisitioned meeting.   One  of the resolutions passed at the requisitioned meeting  related to  the  removal  of Shri Nijalingappa from  the  office  of President.   By  another  resolution  Shri  Subramaniam  was appointed  President  and he was asked to function  as  such until  a  new President was elected by  the  delegates.   In accordance   with  the,  resolution  passed  in  the   above requisitioned  meeting, a plena session of the Congress  was held  in  Bombay  on 28th and  29th  December,  1969.   Shri Jagjivan  Ram was elected President before the said  plenary session.   An overwhelming majority of delegates are  stated to  have attended the plenary session held at  Bombay  under the  Presidentship  of Shri Jagjivan Ram.   The  resolutions passed  in  the  requisitioned  meeting  of  22nd  and  23rd November,  1969  were  ratified at the  plenary  session  in Bombay.  423  out of 707 members of the All  India  Congress Committee attended’ the Bombay Session. According  further to the statement submitted on  behalf  of Congress  ’J’, 229 out of 284 Congress Members of Lok  Sabha and 106 out of 147 Congress Members of Rajya Sabha  declared their 326 allegiance,  to  the  Congress Government  led  by  Shrimati Indira ,Gandhi as Prime Minister and to the Congress led  by Shri  Jagjivan Ram as President.  As against that,  Congress ’O’ claimed the allegiance of 65 Members of Lok Sabha and 40 Members of Rajya Sabha.  The Congress Legislature Parties of Maharashtra,  Madhya  Pradesh,  Andhra  Pradesh,  Rajasthan, Assam,  Haryana,  Jammu  &  Kashmir,  Himachal  Pradesh  and Tripura  declared their support to the Congress  Governments in  those  States and to Congress ’J’.  The Speaker  of  Lok Sabha  and the Chairman of Rajya Sabha  recognised  Congress ’J’ in Parliament as the party .which was in power and which ran  the Central Government.  The statement added  that  the Election Commission was the only authority to decide dispute about the allotment of symbol.  Prayer was ,accordingly made that  the symbol reserved for Congress for the  purposes  of general  elections and bye-elections should be  allotted  to candidates who would be nominated and declared their  alleg- ance to Congress ’J’. A counter-statement was submitted on behalf of Congress  ’O’ by  its General Secretary, Shri Sadiq Ali on 16th  February, 1970.   The  various  allegations  made  in  the   statement submitted  on behalf ,of Congress ’J’ were controverted  and it   was  stated  that  the  Election  Commission   had   no jurisdiction to hold the enquiry.  According to the counter- statement,  the Congress Parliamentary Board in its  meeting held  in  July 1969 decided by majority to put  up  Shri  N. Sanjiva  Reddy as candidate for the office of the  President of  India.  The decision of the majority upset Smt.   Indira Gandhi.   Smt.   Indira Gandhi, Shri Jagjivan Ram  and  Shri Fakhruddin   Ali  Ahmed,  at  the  initial  stages  of   the

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Presidential  election, supported ,the candidature  of  Shri Sanjiva  Reddy but subsequently they started a campaign  for the defeat of the, Congress candidate and for the success of Shri  V.  V.  Giri.  The  explanations  of  Shrimati  Indira ,Gandhi,  Shri  Jagjivan Ram and Shri Fakhruddin  Ali  Ahmed were ,called by the Congress President on 18th August, 1969. On  31st October 1969, Shri Nijalingappa wrote a  letter  to Shri  Subramaniam that he had ceased to be a member  of  the Working  Committee.   The  reason for  that  was  that  Shri Subramaniam  who  was  a member of the  All  India  Congress Committee by virtue of being the President of the Tamil Nadu Congress  Committee, had resigned the Presidentship  thereof and had thus ceased to be a member of the All India Congress Committee.   Shri Fakhruddin Ali Ahmed was removed from  the membership of the Working Committee because according to the counter-statement,  he  had  lost  the  confidence  of   the President.   The requisition sent for calling a  meeting  of the  All India Congress Committee was rejected in a  meeting of  the Congress’ Working Committee on 1st  November,  1969. When the members of the Congress Working Committee learnt 327 from  newspaper  reports that some members  of  the  Working Committee  had taken a decision to convene a meeting of  the All  India.  Congress Committee on 22nd and  23rd  November, 1969, the Working Committee took the view that it was  bound to,   result  in  indiscipline.   Shri   Nijalingappa   then addressed  a letter to Shrimati Indira Gandhi  charging  her with indiscipline and asking her to explain her position. As  regards  the validity of the resolution  postponing  the elections, the case set up in the counter-statement is  that the  said resolution was valid in law and its  validity  had not  been questioned by one one.  Regarding the notice  sent by  17  members  of the AR   India  Congress  Committee  for convening  the  requisitioned  meeting  of  the  All   India Congress Committee, the case of the Congress ’O’ is that the said  notice  was invalid and the persons who  attended  the meeting  on  22nd and 23rd November, 1969 did  so  in  their personal capacity.  The decisions taken in that meeting  are stated,.  to have no effect on the Working Committee.   Smt. Indira  Gandhi, who presided over the meeting, according  to the  counter-statement, had been expelled from  the  primary membership   of  Congress  on  12th  November,  1969.    The resolution  passed  in the meeting, held on  22nd  and  23rd November,   1969   being  void  ab  initio  could   not   be subsequently  ratified  by any authority.  As  regards,  the Members  of Parliament and State Legislatures  who  declared their  allegiance  to Congress ’J’, the stand taken  in  the counter   statement  is  that their  position  was  that  of defector. A  rejoinder  and some other  applications  were  thereafter filed.  The Commission on 7th March, 1970 framed and settled the following four points for discussion               1.   Has the Election Commission  jurisdiction               within  the  meaning of paragraph  15  of  the               Election  Symbol  (Reservation  &   Allotment)               Order 1968, to decide whether any one or  none               of the rival sections or groups of the  Indian               National  Congress,. a national party, is  the               said lndian National :Congress ?               2.  Has  the  Election  Commission,  for   the               purpose of undertaking the inquiry to come  to               a  decision  as aforesaid, been  satisfied  on               information  in its possession that there  are               two  rival  sections  or groups  of  the  said               Indian National Congress each. claiming to  be

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             that Congress ?               3.    What is the nature of an election symbol               under  the Election Symbols  (Reservation  and               Allotment) 328               Order,  1968, and whether an election  symbol,               whether reserved or free, is property ?               4.  Whether,  on the facts  and  circumstances               available  to the Election Commission, any  of               the alleged rival sections of the said  Indian               National  Congress  is that Congress  for  the               purposes of the Election Symbols  (Reservation               and  Allotment)  Order 1968; if so,  which  is               that  rival section, or, whether On the  facts               and  circumstances referred to above, none  of               the rival sections of the said Indian National               Congress is that Congress ?" In an order covering 437 pages which, considering the nature of  controversy,  appears  to  be  abnormally  prolix,   the Commission held on the first point that if had  jurisdiction to  decide  the matter.  The, contention  that  the  Working Committee  or the President of ;Congress ’O’ were  the  only authorities  to give a binding decision in the  dispute  was repelled in the following words               "If, therefore, there are facts in the present               case which show a total and entire cleavage in               the  Indian  National  Congress  from  top  to               bottom,  and that the rivalry between the  two               groups has almost assumed the form of  enmity,               then  relying  upon a few  provisions  of  the               Constitution  and  the rules of the  party  it               cannot, in my view, be validly contended  that               the  Election Commission has  no  jurisdiction               because the Working Committee or the President               of one group whose existence and authority are               totally repudiated by the other group, are the               only  authorities  to give final  and  binding               decisions  in the present dispute.   The  very               existence  of  such a conflict  is  enough  to               create  jurisdiction  to find out  and  decide               whether  the conflict. is genuine and  whether               the  claims and allegations of the  applicants               are valid or the contentions and objections of               the opposite parties.  But that question  wilt               have  to  be  determined  on  the  facts   and               circumstances established in the case". On point 2, the Commission observed that it was satisfied on the information available in its possession that there  were two  rival  sections of the Indian National  Congress,  each claiming  to  be  that Congress.   Regarding  point  3,  the finding  of the Commission was that the Election Symbol  was not  property.   As  regards point  No.  4,  the  Commission observe  that the majority test was a valuable and  relevant test in a democratic Organisation.  The test based upon  the provisions of the Constitution of the Congress canvassed  on behalf  of  the Congress ’O’ was held to be  hardly  of  any assistance  in  view  of the removals  from  membership  and expulsions 329 from the Committees of the Congress of the members belonging to one group by those belonging to the opposite group.  Ref erence was also made in this context to the rejection of the requisition  sent  by  some  members  of  Congress  ’J’  for convening  a  meeting of the All India  Congress  Committee. The  Commission then considered another test,  namely,  that

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based  upon  the  aims and objects as  incorporated  in  the Constitution of the Congress.  It was observed that none  of the  two  groups  had challenged in  any  manner  or  openly repudiated those aims and objects.  The test based upon  the aims and object was consequently held to be ineffective  and neutral.   Applying  the test of  majority,  the  Commission observed that Congress ’J’ had the majority out of the total number of members returned on Congress tickets to the Houses of  Parliament as well as the majority out of the sum  total of the members of all the Legislatures, returned on Congress tickets  although in some States, like Gujarat  and  Mysore, Congress  ’O’ had majority in the Legislature.   As  regards the  organisational  wing of the Congress,  ’the  Commission came to the conclusion that Congress ’J’ enjoyed majority in the  All  India Congress Committee as well  as  amongst  the delegates   of   the  undivided  Congress.    Decision   was accordingly  given that for the purpose of paragraph  15  of the  Symbol Order, Congress ’J’ was the Congress  for  which the symbol "Two bullocks with Yoke On had been reserved. Before  dealing with the contentions advanced in appeal,  it may  be apposite to refer to the relevant provisions.   Art. 324  of  the  Constitution  provides  inter  alia  that  the superintendence, direction and control of the preparation of electoral  rolls  for and. the conduct of all  elections  to Parliament and Legislative Assemblies of the States and  all elections  to  the offices of President  and  Vice-President held  under  the Constitution shall be vested  in  the  Com- mmission  According to section 169 of the Representation  of the  People  Act,  1951  (Act  43  of  1951).,  the  Central Government may,-after consulting the Election Commission  by notification  in  the  official  gazette,  make  rules   for carrying out the purposes of the Act.  Without prejudice  to the  generality  of  the foregoing  power,  sub-section  (2) enumerates  some of the matters for which provision  may  be made in the rules.  Sub-section (3) requires that the  rules framed  should  be  laid before each  House  of  Parliament. Conduct  of Elections Rules, 1961 were thereafter framed  by the Central Government.  Rule 5 of those Rules requires  the Commission  to  specify the symbols that may  be  chosen  by candidates  at  elections  in  Parliamentary  and   Assembly elections and the restrictions to which that choice shall be subject.   Rule 10 makes provision for allotment of  symbols to  the  contesting  candidates  by  the  Returning  Officer subject  to  general  or special directions  issued  by  the Commission. 330 The Symbols Order has been issued by the Commission in exer- cise  of  the  powers  conferred  ’by  Article  324  of  the Constitution  read  with Rules 5 and 10 of  the  Conduct  of Election  Rules.  Paragraph 2 of the Symbols Order  contains the  various definitions.  According to clause (h)  of  that paragraph,  political party means an association or body  of individual citizens of India registered with the  Commission as  a  political  party under paragraph  3  and  includes  a political party deemed to be registered with the  Commission under  the  proviso to sub-paragraph 2  of  that  paragraph. Paragraph  3 deals with registration with the Commission  of associations and bodies as political parties for the purpose of the Order.  According to that paragraph, any  association or  body of individuals, citizens of India calling itself  a political  party  and  intending  to  avail  itself  of  the provisions  of  the Order shall make an application  to  the Commission for its registration as a political party for the purpose  of  that  Order.  Sub-paragraph  (2)  provides  the period   within  which  an  application  has  to  be   made.

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Exemption from making the application in certain  contigency with  which  we  are not concerned is  also  granted.   Sub- paragraphs 3 & 4 specify the formalities and the particulars required  for the application.  The particulars include  the names  of the President, Secretary and other  office-bearers of  the  political  party, the  numerical  strength  of  its members as well as the political principles on which it  was based  and  the  policies, aims and objects  it  pursued  or sought  to pursue.  Power is given to the, Commission  under sub-paragraph  5  to  call  for  further  particulars.   The Commission  thereafter  decides  whether  to  register   the association or body as political party or not.  The decision of  the  Commission in this respect has been made  final  by sub-paragraph 7. Provision is further made by subparagraph 8 that after the association or body has been registered  ,as’ a  political  party, any change in  its  name,  head-office, office bearers, address and political principles, policies., aims  and  objects  and any change  in  any  other  material matter,  shall  be communicated to  the  Commission  without delay.   Paragraph  4  provides for  allotment  of  symbols. Paragraph  5  deals  with  the  classification  of  symbols. According  to this paragraph, a reserved symbol is a  symbol reserved  for  a political party for exclusive use  by  that party.   A  symbol other than the reserved symbol  has  been described  by  the  said  paragraph to  be  a  free  symbol. Political   parties  have  been  classified  as   recognised political  parties  of un-recognised  political  parties  by paragraph  6.  The recognised political  parties  have  been divided  into  two  categories.  If  a  political  party  is treated  as  a recognised political party in  four  or  more states  in  accordance with paragraph 6, it shall  have  the status  of a national party throughout the whole  of  India. If  on  the  contrary a political party  is  treated  as’  a recognised  political  party in less than  four  states,  it shall enjoy the status of a state party in the state 331 or  states in which it is a recognised political party.   We need  not dilate upon this aspect because it is common  case of  the  parties  that the Congress  is  a  national  party. Paragraph  & deals with choice of symbols by  candidates  of national   and   state  parties   and   allotment   thereof. Paragraphs 9, 10, 11 & 12 deal with certain restrictions  on the allotment of symbols, concessions to certain  candidates as  well  as  the choice of symbols by  some  categories  of candidates  with which we are not concerned.   Paragraph  13 specifies  as to when a candidate shall be deemed to be  set up as a candidate by a political party and reads as under :-               "13.When a candidate shall be deemed to be set               up by a political party--               For  the  purposes of this Order  a  candidate               shall  be deemed to be set up by  a  political               party if, and only if-               (a)  the candidate has made a  declaration  to               that effect in his nomination paper;               (b) a notice in writing to that effect has not               later   than  3  p.m.  on  the  last  day   of               withdrawal of candidatures, been delivered  to               the  returning officer of  the  constituency_;               and               (c)   the  said  notice  is  signed   by   the               President, the secretary or any other  office-               bearer   of  the  party  and  the   president,               secretary   or  such  other  officebearer   is               authorised  by the party to send  such  notice               and  the  name and specimen signature  of  the

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             president, the secretary or such other office-               bearer  are  communicated in  advance  to  the               returning  officer of the constituency and  to               the Chief Electoral Officer of the State". Paragraph 14 gives power to the Commission to issue  certain instructions to un-recognised political parties.   Paragraph 15  with which we are directly concerned in this case  reads as under :-               "15.   Power  of  Commission  in  relation  to               splinter   groups  or  rival  sections  of   a               recognised political party-               When   the   Commission   is   satisfied    on               information  in its possession that there  are               rival  sections  or  groups  of  a  recognised               political party each of whom claims to be that               party,  the Commission may, after taking  into               account   all   the   available   facts    and               circumstances  of  the case and  hearing  such               representatives of the sections of groups  and               other  persons as desire to be  heard,  decide               that  one such rival section or group or  none               of such rival sections or 8-L500Sup.  Cl/72               332               groups is that recognised political party  and               the  decision  of  the  Commission  shall   be               binding on all such rival sections or groups". The powers of the Commission in case of amalgamation of two’ or  more political parties is contained in paragraph 16  and it reads               "16.  Power of Commission in case of amalgama-               tion of two or more political parties-               (1) when two or more political parties, one or               some or all of whom is a recognised  political               party  or  are recognised  political  parties,               join  together to form a new political  party,               the Commission may, after taking into  account               all  the facts and circumstances of the  case,               hearing  such  representatives  of  the  newly               formed party and other persons as desire to be               heard  and having regard to the provisions  of               this Order, decide--               (a) whether such newly formed party should  be               a National party; and               (b) the symbol to be allotted to it.               (2) The decision of the Commission under  sub-               paragraph  (1) shall be binding on  the  newly               formed  political party and all the  component               units thereof". A notification containing the list of political parties  and symbols  has to be issued by the Commission under  paragraph 17 while paragraph 18 gives certain additional powers to the Commission  for  issuing instructions and  directions.   The requisite   notification  was  accordingly  issued  by   the Commission   under   paragraph  17.    According   to   that notification, Indian National Congress was a National  party and its reserved symbol was "Two Bullocks with Yoke On". Perusal  of  the different paragraphs of the  Symbols  Order makes it manifest that they provide, as is made clear by its preamble,   for  specification,  reservation,   choice   and allotment  of  symbols  at elections  in  parliamentary  and assembly  constituencies as well as for the  recognition  of ’political  parties  in  relation thereto  and  for  matters connected  therewith.  One such matter is the decision of  a dispute  when two rival sections or groups of  a  recognised political  party claim to be that party for the  purpose  of

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the Symbols Order.  Paragraph 15 provides for the  machinery as well as the manner of resolving such a dispute. Before  discussing the scope and ambit of paragraph  15,  it may  be pertinent to find out the reasons which led  to  the introduction 333 of symbols.  It is well known that overwhelming majority  of the electorate are illiterate.  It was realised that in view of the handicap of illiteracy, it might not be possible  for the  illiterate voters to cast their votes in favour of  the candidate  of their choice unless there was  some  pictorial representation  on  the  ballot paper  itself  whereby  such voters  might  identify  the  candidate  of  their   choice. Symbols  were  accordingly  brought into  use.   Symbols  or emblems  are not a peculiar feature of the election  law  of India.  In some countries, details in the form of letters of alphabet  or  numbers  are added against the  name  of  each candidate  while  in others, resort is made  to  symbols  or emblems.   The  object  is to ensure  that  the  process  of election  is  as genuine and fair as possible  and  that  no elector should suffer from any handicap in casting his  vote in  favour  of  a candidate of  his  choice.   Although  the purpose  which accounts for the origin of symbols was  of  a limited  character, the symbol of each political party  with the passage of time acquired a great value because the  bulk of the electorate associated the political party at the time of  elections with its symbol.  It is, therefore  no  wonder that  in  case of a split in a political party, there  is  a keen  contest by each rival group to get the symbol of  that party. Let us now go back to paragraph 15.  The occasion for making an order under this paragraph arises when the Commission  is satisfied  on information in its possession that  there  are rival  sections  or groups of a recognised  political  party each  of  whom claims to be that party.  The  Commission  in such  an event decides the matter after taking into  account all  available  facts  and circumstances  of  the  case  and hearing  such representatives of the sections or groups  and other  persons  as desire to be heard.  The  Commission  may decide  that  one  such  rival  section  or  group  is  that recognised  political  party  or that  none  of  such  rival sections  or groups is that party.  The  aforesaid  decision has  been made binding on all the rival sections  or  groups who claim to be the political party in question. In the present case, we find that a claim was made on behalf of  Congress  ’J’ that its office-bearers were  the  office- bearers  of the Congress.  The said claim was repudiated  by Congress  ’O’  and  according  to it,  it  was  the  genuine Congress  Party  and  its President  was  Shri  Nijlingappa. According  further to the stand taken on behalf of  Congress ’O’,   the  members  of  Congress  ’J’   were   masquerading themselves  in  the  name and style of  the  Congress.   The Commission  in the circumstances, had to decide  the  matter under paragraph 15 and we find nothing objectionable in  the communication  dated January 15, 1970 sent to the two  rival parties on its behalf wherein it was stated that "a  dispute appears to have, arisen 334 as  to which of the two groups is the  recognised  political party known as the Indian National Congress for the purposes of the Symbols Order." Controversy  between the parties has ranged on the  question whether  the  Commission  has taken into  account  all  ’the available  facts  and  circumstances  of  the  case’.    The Commission  in this context considered the various  criteria

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for  determining which of the two groups , Congress  "J"  or Congress  ’O’  was the Congress and came to  the  conclusion that the criteria other than that of the numerical  strength or  Majority could not provide a satisfactory solution.   So far  as  the test of majority is concerned,  the  Commission found  that the relative strength of the two groups  in  the two  Houses of Parliament and the State Legislature  was  as under :- ------------------------------------------------------------ Name of the House. Position as on. Position in the                    22-1-1970    later half of 1970   Remarks                  Congress Congress Congress Congress                     ’J’     ’O’      ’J’       ’O’ ----------------------------------------------------------- 1                       2        3      4      5       6 I-Parliament   1. Lok Sabha                  221      64     228    65   2. Rajya Sabha                103      42      85    40 II-Legislative Assemblies   A. States   1 .  Andhra Pradesh........... --      --     175    14   2.  Assam..................... --              75    --   3.  Bihar..................... 81      31      86    28   4.  Gujarat...................  5      96       8   108   5.  Haryana............... . (no separate group 53    6                                 in the strength                                 of 48 Congress                               members)   6.  Jammu & Kashmir............ --      --      61   --   7.  Kerala....................   4       5      33    4   8.  Madhya Pradesh..........    177     --     192   --   9.  Maharashtra..............   204     --     191   13  10. Mysore.....................   23     126     37   127  11. Nagaland                   --     -- No party asIn-                                           dianNational                                           Congress.  12. Orissa.....................   --      --      8    3  13. Punjab.....................   28      --     28    --  14. Rajasthan..................  111       1    131     1  15. Tamil Nadu                    --       --     8    41  16. Uttar Pradesh                120       102  150    84 335 1                          2       3      4     5     6 17. WestBengal.............       38     13     -  Assembly                                                    dissolved                                                        on                                                     30-7-70 B. Union Territories 1. Goa, Daman & Diu.........        --    --     1    -- 2. Himachal Pradesh.........       42     --    43    -- 3. Manipur              Dissolved with effect from 16-10-69. 4. Pondicherry                       6      4    7     3 5. Tripura                          27     --   27    -- III.-Legislative Councils 1.   Andhra Pradesh                 --     --   52     6 2.   Bihar                          --     --   33    22 3.   Maharashtra                    51     --   46     3 4.   Mysore                         6      46    7    43 5.   Tamil Nadu                     --     --    2    17 6.   Uttar Pradesh                  37     33    33   29      As  regards the delegates who were entitled to vote  at the  earlier Faridabad Session of Congress,  the  Commission found that out of the total number of 4,690 delegates, 2,870 pledged  their  support  to  Congress  ’J’.   Regarding  the members  of  the All India  Congress  Commitee  (hereinafter

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referred to as the AICC), the Commission held that the total number  of AICC members who attended the Bombay  meeting  of the  Congress ’J’.  AICC was 423 out of 707 elected  members and 56 out of 95 nominated and coopted members.  The  Bombay Session, it was further held, assumed importance in view  of the   fact   that  all  the  resolutions   passed   at   the requisitioned   meeting  of  Congress  ’J’  at  Delhi   were satisfied   unanimously   at  the   Bombay   session.    For determining  as to who were members of AICC  and  delegates, the Commission accepted those persons as members of AICC and delegates  who held that position in the earlier session  of the Congress at Faridabad before the split.  In view of  the removals and expulsions which followed in the wake of  split in  the  Congress, the Commission, in our  opinion,  adopted proper  -approach for determining as to who should be  taken to be members of AICC or the delegates, more so, when in the opinion  of the Commission, the validity of  (hose  removals and expulsions was open to question. The  figures found by the Commission of the members  of  the two  Houses of Parliament -and of the State Legislatures  as well  as those of AICC members and delegates  who  supported Congress ’J’ have not been shown to us to be incorrect.   In view  of  those  figures, it can  hardly  be  disputed  that substantial majority of the members of the Congress in  both its legislative wing as well as 336 the  organisational  wing supported the  Congress  ’J’.   As Congress  ’J’  is  a democratic Organisation,  the  test  of majority and numerical strength, in our opinion, was a  very valuable and relevant test.  Whatever might be the  position in  another  system of government or  Organisation,  numbers have  a relevance and importance in a democratic  system  of government  or political set up and it is  neither  possible nor  permissible  to lose sight of them.  Indeed it  is  the view  of  the majority which in the  final  analysis  proves decisive in a democratic set up. It  may  be mentioned that according to paragraph 6  of  the Symbols  Order, one of the factors which may be  taken  into account  in  treating  a political  party  as  a  recognised political party is the number of seats secured by that party in the House of People or the State Legislative Assembly  or the number of votes polled by the contesting candidates  set up  by  such  party.  If the number of seats  secured  by  a political party or the number of votes cast in favour of the candidates   of  a  political  party  can  be   a   relevant consideration for the recognition of a political party,  one is at a loss to understand as to how the number of seats  in the Parliament and State Legislatures held by the supporters of  a group of the political party can be considered  to  be relevant.   We  can consequently discover no  error  in  the approach of the Commission in applying the rule of  majority and numerical strength for deter-’ mining as to which of the two  groups, Congress ’J’ and Congress ’O’ was the  Congress party for the purpose of paragraph 15 of Symbols Order. It  is no doubt true that the mass of Congress  members  are its  primary  members.  There were obvious  difficulties  in ascertaining  who  were the primary  members  because  there would in that event have been allegations of fictitious  and bogus  members  and  it would have been  difficult  for  the Commission to go into those allegations, and find the  truth within  a short span of time.  The Commission’  in  deciding that  matter  under paragraph 15 has to act with  a  certain measure  of promptitude and it has to see that  the  inquiry does  not get bogged down in a quagmire.  This apart,  there was practical difficulty in ascertaining the wishes of those

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members.  The Commission for this purpose could obviously be not  expected  to  take  referendum in  all  the  towns  and villages  in  the country in which there  were  the  primary members  of  the  Congress.   It can,  in  our  opinion,  be legitimately  considered that the members of, AICC  and  the delegates  reflected by and large the views of  the  primary members. It  is  urged  by  Mr.  Shanti  Bhushan  on  behalf  of  the appellants  that  1  1  members  of  the  Congress   Working Committee were with 337 Congress ’O’ while 1 0 members were with Congress ’J’.   The matter,  according to the learned counsel, should have  been decided  in  accordance  with the majority  in  the  Working Committee.  SO far as this aspect is concerned, we find that as it is not always convenient to convene general session of the Congress or a meeting of the AICC, the Congress has  its Working   Committee  which  represents  the   Congress   for administrative purposes and for taking decision on political and  other  matters.   Some of the members  of  the  Working Committee are elected by the AICC while others are nominated by the President.  The Working Committee has not been  shown to  possess any power of vetoing the decision of  the  AICC. On  the  contrary,  major decisions  taken  by  the  Working Committee at the time of AICC meetings are placed before the AICC for ratification.  In view of the fact that the  wishes of  the  majority  of the members of AICC  as  well  as  the delegates  have  been ascertained, we find it  difficult  to accede  to  the  contention that  the  majority  enjoyed  by Congress  ’O’ against Congress ’J’ in the Working  Committee should  carry  so much weight as to  outweigh  the  majority support  obtained  by Congress ’J’ among delegates  and  the members  of AICC.  In any case, we find that as against  the slender  majority  enjoyed by Congress ’J’  in  the  Working Committee,  Congress ’J’ had substantial majority among  the members  of AICC and the delegates as well as  the  Congress members of two Houses of Parliament as also the sum total of members of the State Legislatures. The  observations  of late Pandit Jawaharlal  Nehru  in  the course  of his speech on Kamraj Plan in the meeting of  AICC held  in August 1963, to which a reference has been made  on behalf of the appellants, is hardly of any assistance to the appellants  for the purpose of this case.  Pandit  Nehru  in that speech emphasized the importance of the  organisational wing  of  the  Congress and said that if  the  AICC  or  the Working  Committee did not desire that he should  remain  in office, he was not going to have general elections to secure the  support of the people against the said Committees.   It is obvious that the stress in that speech was on the need of the  Prime  Minister securing the Support of  the  organisa- tional wing.  The speech did not deal with a contingency  as arises  in the present case of resolving a  dispute  wherein one group has the support of the majority of the legislative wing  as  well  as the organisational wing  other  than  the Working  Committee.   The present is not a  case  wherein  a conflict has arisen because of one group having majority  in the  organisational wing and the other having a majority  in the legislative wing of the party. Argument has been advanced on behalf of the appellants  that the  matter should have been decided in accordance with  the provisions of the Congress constitution.  The Commission  in this con- 338 text  has found that there were removals and  expulsions  of the  supporters of Congress ’J’ from the various  Committees

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of  the  Congress  by the members of Congress  ’O’  and  the President,  Shri Nijalingappa.  The Commission has come.  to the  conclusion  that  the validity of the  action  of  Shri Nijalingappa  and other members of Congress ’O’ in  removing and  expelling members of the other group was  doubtful  and open  to question.  The Commission has also  questioned  the propriety  of  the  action  of  the  Working  Committee   in rejecting  the requisition sent by the members of  AICC  for convening  meeting of the AICC.  It is, in our opinion,  not necessary  for  this Court to express any opinion.  for  the purpose  of  this  appeal about the  validity.of  the  above mentioned  removals  and expulsions nor is it  necessary  to express any view about the propriety of the rejection of the requisition.   Likewise it is not essential to say  anything as  to whether one or both the groups were in the wrong  and if  so, to, what extent in the controversy relating  to  the split  in  the Congress.  All that this Court  is  concerned with  is whether the test of majority or numerical  strength which  has been taken into account by the Commission  is  in the  circumstances of the case a relevant and germane  test. On that point, we have no hesitation in holding that in  the context of the facts and circumstances of the case, the test of majority and numerical strength was not only germane  and relevant but a very valuable test. Reference has been made on behalf of the appellants to para- graph  13  of the Symbols Order which  has  been  reproduced earlier in this judgment.  The said paragraph mentions as to when a candidate shall be deemed to be set up by a political party.   The  three  requisites  for that  are  :  that  the candidate  has  made  a declaration to that  effect  in  his nomination  paper;  that  a  notice  is  delivered  to   the Returning  Officer  before the specified time and  the  said noticed is signed by such office-bearer of the party who has been  authorised to send the notice.  It also requires  that the name and specimen signature of such office-bearer should be communicated in advance to the Returning Officer and  the Chief Electoral Officer of the State.  Reading of  paragraph 13 makes it plain that it deals with the case of  individual candidates and provides a safeguard against the  contingency of  a claim being made by two rival candidates of being  the nominee  of the same party.  Paragraph 13 has nothing to  do with  the question of resolving a dispute wherein two  rival sections or groups of a recognised political party claim  to be that party.  For the resolving of such a dispute, we have only to look to paragraph 15. Question during the course of hearing of the appeal has also arisen whether the persons who were heard during the  course of  proceedings under paragraph 15 become parties  to  those proceed,- 339 ings  SO as to be entitled to be heard in appeal.   In  this connection,  we  are  of  the  opinion  that  although   the Commission  may hear during the course of proceedings  under paragraph  15  ’such  representatives of  the  sections  or. groups or other persons as desire to, be heard’, the parties to  the dispute necessarily remain rival sections or  groups of the recognised political party.  Other persons as  desire to  be  heard  and who are heard by the  Commission  do  not become  parties  to  the dispute so as to have  a  right  of addressing  this Court in appeal.  We have consequently  not allowed arguments to be addressed in appeal on their behalf. Question then arisen as to what is the binding nature of the decision  given  by the Commission under paragraph  15.   In this respect, it has to be borne in mind that the Commission only  decides  the question as to whether any of  the  rival

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sections or groups of a recognised political party, each  of whom claims to be that party, is that party.  The claim made in  this  respect  is only for the  purpose  of  symbols  in connection  with the elections to the Parliament  and  State Legislatures and the decision of the Commission pertains  to this  limited  matter.  The Commission  while  deciding  the matter  under  paragraph 15 does not  decide  dispute  about property.   ’The proper forum for adjudication  of  disputes about  property are the civil courts.  The decision  of  the Commission under paragraph 15 constitutes a direction to the Returning Officer for the purpose of Rule 10 of the  Conduct of  Elections  Rules,  1961.  The said  direction  shall  be binding upon the Returning Officers in accordance with  sub- rules  (4) and (5) of the abovementioned Rule.  Whether  the decision  of the Commission can be called into  question  in appropriate proceedings in a Court of law is a matter  which does  not  arise in this case and we need  not  express  any opinion thereon. Contention   has  also  been  advanced  on  behalf  of   the appellants  that Congress ’O’ although adhering to  Congress aims  and objects is deprived of the use of symbol  of  "Two Bullocks  with  Yoke  on" which had  been  allotted  to  the Congress for the purpose of elections.  The answer to  ’this contention   is  that  as  a  result  of   differences   and dissensions, a political party may be split into two or more groups  but the symbol cannot be split.  It is only  one  of the  rival  sections  or  groups, as  is  held  to  be  that political party under paragraph 15, which would be  entitled to  the use of the symbol in the elections while  the  other section  or group would have to do without that symbol.   It is  not  permissible in a controversy like  the  present  to dissect  the  symbol  and  give  one  out  of  two  bullocks represented  in the symbol of the Congress to one group  and the  other  bullock to the other group.  The symbol  is  not property to be divided between co-owners.  The allotment  of a symbol to the candidates set up by a political party is  a legal right and in case of split, the 340 Commission  has  been authorised to determine which  of  the rival groups or sections is the party which was entitled  to the  symbol.  The Commission in resolving this dispute  does not decide as to which group represents the party but  which group   is   that  party.   It  it  were   a   question   of representation,   even  a  small  group  according  to   the Constitution   of  the  Organisation  may  be  entitled   to represent the party.  Where, however, the question arises as to  which  of the rival groups is the  party,  the  question assumes a different complexion and the numerical strength of each  group  becomes an important and relevant  factor.   It cannot  be  gainsaid  that in deciding which  group  is  the party,  the  Commission  has to decide  as  to  which  group substantially constitutes the party. Attempt has also been made during the course of arguments to show that the supporters of Congress ’J’ were defaulters  in payment  of subscription.  No such case was  admittedly  set tip before the Commission.  We have consequently not allowed the appellants to raise this matter which hinges upon  facts in appeal. Reference  has  been made on behalf of the appellants  to  a House  of Lords decision in the case of General Assembly  of Free  Church  of Scotland and others v.  Lord  Overtoun  and others(1).   The  said case related to the  denomination  of Christians  which called itself the Free Church of  Scotland and had been founded in 1843.  It consisted of ministers and laity  who seceded from the Established Church of  Scotland,

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but who professed to carry with them the doctrine and system of  the  Established  Church,  only  freeing  themselves  by secession  from  what they regarded as interference  by  the State  in matters spiritual.  For manly years,  efforts  had been made to bring about a union between the Free Church and the  United  Presbyterian  Church, also  seceders  from  the Established Church.  In 1900 Acts of Assembly were passed by the  majority  of  the Free Church and  unanimously  by  the United  Presbyterian Church for union under the name of  the United  Free.   Church  and the  Free  Church  property  was conveyed  to the new trustees for behoof of the new  Church. The   United   Presbyterian  Church  was  opposed   to   the Establishment  principle,  and did not  maintain  the  West- minster   Confession  of  Faith  in  its   entirety.    ’the respondents contended that the Free Church had full power to change its doctrines so long as the identity was  preserved. The  appellants, a very small minority of the  Free  Church, objected  to the union maintaining that the Free Church  had no power to change its original doctrines or to unite with a body which did not confess those doctrines.  The  appellants accordingly complained of breach of trust.  It was held that the  Establishment principle and the Westminster  Confession were distinctive tenets of the Free Church and (1) [1904] A.C. 515. 341 the Free Church had no power, where property was  concerned, to .alter the doctrine of the Church; that there was no true union,  as,  the United Free Church had  not  preserved  its identity   with  the  Free  Church  not  having   the   same distinctive tenets and that the appellants were entitled  to hold for behoof of the Free Church the property held by  the Free  Church before the union in 1900.  The above  case  can hardly be of any assistance to the appellants. It is clearly distinguishable  on two grounds.  The first ground  relates. to  change of tenets on the part of a religious  group.   As against that, the present case relates to a political  party wherein  none of the rival groups professes to renounce  the aims and objects of the party.  The other ground is that the dispute in the cited case related to property while that  in the  present  case  relates  to a legal  right  and  not  to property. The case of Samyukto Socialist Party v. Election  Commission of India & Anr.(1) has also no bearing on the present  case. The  cited case related to merger of two  political  parties into one as a result of which the election symbol of one  of the  merger  parties  was allotted to the  new  party.   The parties  separated  again and the question which  arose  for determination was whether the symbol can be taken back  from the new party and given to the party to which it  originally belonged.  It is plain that the nature of controversy in the said case was entirely different. Civil Appeals Nos. 2122-2124 of 1970 have been filed by Shri P.  Kaklcan and another against the judgment of the  Madras. High  Court on a certificate granted by that Court.   It  is not necessary to give the facts giving rise to these appeals because  according to Shri Natesan, learned counsel for  the appellants in these appeals, the only additional point to be agitated  is about the vires of paragraph 15 of the  Symbols Order.   The  Madras  High  Court  repelled  the  contention advanced  on behalf of the appellants that paragraph 15  was ultra  vires and invalid in so far as it conferred power  on the  Commission to decide the dispute between two groups  of a. political party. It would follow from what has been discussed earlier in this judgment  that the Symbols Order makes  detailed  provisions

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for the reservation, choice and allotment of symbols and the recognition  of political parties in  connection  therewith. That the Commission should specify symbols for elections  in parliamentary and assembly constituencies has also been made obligatory by rule 5 of Conduct of Election Rules.  Sub-rule (4)  of  rule 10 gives a power to the  Commission  to  issue general  or special directions to the Returning Officers  in respect of the allotment of symbols.  The (1) [1967] 1 S.C.R. 643. 342 allotment of symbols by the Returning Officers has to be  in accordance  with those directions.  Sub-rule (5) of rule  10 gives a power to the Commission to revise the allotment of a symbol  by  the  Returning Officers in so far  as  the  said allotment is inconsistent with the directions issued by  the Commission.  It would, therefore, follow that Commission has been  clothed  with plenary powers by  the  above  mentioned Rules  in the matter of allotment of symbols.  The  validity of  the- said Rules has not been challenged before  us.   If the  Commission  is  not  to  be  disabled  from  exercising effectively the plenary powers vested in it in the matter of allotment of symbols and for issuing directions in cnnection 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.  In case, it is a dispute between  two individuals,  the method for the settlement of that  dispute is provided by paragraph 13 of the Symbols Order.  If on the other  hand, a dispute arises between two rival  groups  for allotment  of  a symbol of a political party on  the  ground that  each group professes to be that party,  the  machinery and  the  manner  of resolving such a dispute  is  given  in paragraph  15.  Paragraph 15 is intended to  effectuate  and subserve the main purposes and objects of the Symbols Order. The  paragraph  is  designed to ensure  that  because  of  a dispute  having arisen in a political party between  two  or more  .groups,  the  entire  scheme  of  the  Symbols  Order relating  to  the  allotment of a symbol  reserved  for  the political  party  is not set at naught.  The fact  that  the power  for the settlement of such a dispute has been  vested in  the Commission would not constitute a valid  ground  for assailing the vires of and striking down paragraph 15.   The Commission  is an authority created by the Constitution  and according to Article 324, the superintendence, direction and control  of  the  electoral rolls for  and  the  conduct  of elections  to  Parliament and to the  Legislature  of  every State and of elections to the office of President and  Vice- President shall be vested in the Commission.  The fact  that the  power of resolving a dispute between two  rival  groups for allotment of symbol of a political party has been vested in  such a high authority would raise a presumption,  though rebuttable, and provide a guarantee, though not absolute but to  a  considerable  extent, that the  power  would  not  be misused  but  would be exercised in a  fair  and  reasonable manner. There  is also no substance in the contention that as  power to make provisions in respect to elections has been given to the Parliament by Article 327 of the Constitution, the power cannot be further delegated to the Commission.  The  opening words of Article 327 are "subject to the provisions of  this Constitution". The above words indicate that any law made by the Parliament in 343 exercise  of  the powers conferred by Article 327  would  be subject   to  the  other  provisions  of  the   Constitution

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including  Article  324.   Article 324  as  mentioned  above provides  that  superintendence, direction  and  control  of elections  shall  be  vested in  Election  Commission.   It, therefore,  cannot be said that when the  Commission  issues direction,  it  does  so not on its own behalf  but  as  the delegate of some other authority.  It may also be  mentioned in  this  context that when the  Central  Government  issued Conduct  of Elections Rules, 1961 in exercise of its  powers under section 169 of the Representation of People Act, 1951, it  did  so as required by that section  after  consultation with the Commission. We,  therefore,  find no substance in  the  contention  that paragraph 15 of the Symbols Order is ultra vires the  powers of the Commission. The  result  is  that  all the four  appeals  fail  and  are dismissed but in the circumstances without costs. S.C.                           Appeals dismissed. 344