Kerala Congress Party v State Election Commission of Kerala, Election Commission of India and Shri Francis George

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 5TH OCTOBER 2010 / 13TH ASWINA 1932 WA.No. 1693 of 2010 --------------------AGAINST THE ORDER IN WPC.29734/2010 Dated 29/09/2010 .................... ## APPELLANT/PETITIONER: --------------------------- KERALA CONGRESS PARTY, REPRESENTED BY ITS WORKING CHAIRMAN, SCARIA THOMAS, EX.M.P. STATE COMMITTEE OFFICE, EAREKADAV, KOTTAYAM. BY ADV.SRI.K.P. DANDAPANI(SENIOR) SRI.ROJO J.THURUTHIPARA RESPONDENTS/RESPONDENTS: ---------------------------------- 1. THE STATE ELECTION COMMISSION OF KERALA, CORPORATION OFFICE COMPLEX, LMS JUNCTION, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM-695033 REPRESENTED BY ITS COMMISSIONER. 2. THE ELECTION COMMISSION OF INDIA, NIRVACHAN SADAN, NEW DELHI. 3. SHRI.FRANCIS GEORGE EX.MP, GENERAL SECRETARY, KERALA CONGRESS (M), STATE COMMITTEE OFFICE OF KC(M), NEAR FIRE STATION, KOTTAYAM. R1 & R2 BY SRI.MURALI PURUSHOTHAMAN, SC,ELE.COMMN. R3 BY ADV. SRI.K.RAMAKUMAR(SENIOR) SRI.NOBLE MATHEW. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 05/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **J.Chelameswar, C.J. & P.R. Ramachandra Menon, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.No. 1693 OF 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5[th] day of October, 2010 ## **JUDGMENT** ## **J.Chelameswar, C.J.** This appeal is filed by the petitioner in W.P.(C) No.29734 of 2010 aggrieved by the order dated 29[th] September, 2010, by which a learned Judge of this Court declined to grant an interim order as prayed for by the Writ Petitioner. 2. The Writ Petition itself is filed challenging the order (Ext.P1) of the first respondent the State Election Commission, Kerala constituted under Article 243K of the Constitution of India. 3. The facts leading to the present litigation are as follows: Political parties in this Country were functioning for a long period without any specific statutory obligation to register themselves with anybody. Most of the political parties are bodies registered as Societies under a relevant statute either WA No.1693 of 2010 -:2:- Central or local. However the Representation of the People Act, 1951 was amended by Act 1 of 1989. By the said amendment, Part IVA came to be introduced in the Act 1951. Section 29A occurring in the said part obligates any association or body of individual citizens of India calling itself a political party to make an application to the Election Commission of India, seeking registration as a political party for the purpose of the Act 1951. Under sub section (2) all existing political parties are required to make an application within 60 days from the date of coming into effect of the amendment. Sub section (3) prescribes the data which is required to be provided in the application. Sub section (4) prescribes the documents which are required to be accompanied the application. Further details of the section may not be necessary at present. 4. The Election commission of India, constituted under Article 324 of the Constitution of India is invested with various powers, functions and duties for conducting elections to Parliament as well as Legislative assemblies of the various states etc. WA No.1693 of 2010 -:3:- 5. The _**Election Symbols (Reservation and Allotment)Order 1968**_ is an order made by the Election Commission. It deals with allotment of symbols to candidates contesting election. Under para 5 ***** of the said order, the symbols are classified as either Reserved or free. Under sub para (2) therein a reserved symbol is stated to be a symbol which is reserved for a recognised political party for exclusive allotment to the contesting candidates set up by that party; whereas free symbols is stated to be symbol other than the reserved symbol. 6. Para 6 of the said order specifies that for the purpose of the order, the political parties are either recognised political parties or unrecognised political parties. In ------------------------------------------------------------------------- “5. Classification of symbols-(1) For the purpose of this Order symbols are either reserved or free. (2) Save as otherwise provided in this Order, a reserved symbol is a symbol which is reserved for a recognised political party for exclusive allotment to contesting candidates set up by that party. (3) A free symbol is a symbol other than a reserved symbol.” WA No.1693 of 2010 -:4:- either case, a 'political party' must necessarily be registered with the Commission as a political party under Section 29A of the Representation of the People Act, 1951. It may be stated that every registered political party under Section 29A does not automatically become a recognised political party for the purpose of the Election Symbols Order, 1968. The said order also further classifies political parties to be either National or State parties. Different criteria are stipulated under para 6A and 6B for recognition either as a State Party or as a National Party respectively. Para 6C deals with the C _onditions for continued recognition as a National or State Party_ 7. A political party by name **Kerala Congress** has been recognised as a political party for the purpose of the Symbols ordered in 1968. It appears from the records that at some point of time earlier, there was a split in the said political party resulting in two rival groups claiming the **Name and Symbol** of the said party. Eventually both the groups came to be recognised as two separate political parties, one to be called _**Kerala Congress**_ and the other _**Kerala Congress (M)**_ . The WA No.1693 of 2010 -:5:- election commission of India allotted the symbol of **'Bicycle'** and **'Two Leaves'** respectively to the above mentioned two parties. 8. In the last election to the Legislative Assembly of Kerala, the Kerala Congress party had successfully set up four candidates, whereas the Kerala Congress (M) had successfully set up 7 candidates to the Legislative Assembly of Kerala. 9. It appears that an application dated 17.07.2010 was received by the Election Commission of India (R2). It is stated in the application that a combined meeting of the State Level Committees of the above mentioned two parties was held on 24.05.2010 at Kottayam and “ _**unanimously resolved”**_ that the above mentioned political parties be merged and function henceforth in the name and style of **'Kerala Congress** ' and also to adopt the symbol of ' **Two Leaves** ” as election symbol of the said united party and therefore prayed the Election commission of India as follows: _“_ On the basis of the facts stated above, we humbly submit before the Hon. Election Commission of India the following prayers :- WA No.1693 of 2010 -:6:- a. To approve the unification of 'Kerala Congress (M)' and 'Kerala Congress' b. To treat the unified party as a recognized political party in the State of Kerala with the name 'Kerala Congress' under Section 29 A of the Representation of the People Act 1951. c. To allot and reserve the symbol 'Two Leaves' as the election symbol of the new party under the Election Symbol (Reservation and Allotment) Order 1968 taking into account the fact that the unified party has one member in the House of the People and eleven members in the 140 member Kerala Legislative Assembly. In view of the impending Elections to the Local Self Govt. Institutions in Kerala, the Hon. Election Commission of India may permit the new party to function as 'Kerala Congress (M)' with 'Two Leaves' as its election symbol as an interim arrangement till a final verdict is given by Hon. Election Commission of India regarding the use of the name 'Kerala Congress' as prayed in the above paras (5b & 5c) To freeze the symbol 'Bicycle' in the State of Kerala taking into the account the fact that the symbol 'Bicycle' has been reserved as the election symbol of Kerala Congress led by Sri. P.J. Joseph since 1996 and if the said symbol 'Bicycle' is alloted to any other political party or candidates it may create confusion among election. WA No.1693 of 2010 -:7:- The said application is said to be pending consideration. 10. In the meanwhile, by two notifications dated 27[th] September, 2010 of the State of Kerala, the electoral colleges constituted under the Kerala Panchayat Raj Act 1994 and the Kerala Municipalities Act 1994 were called upon to elect representatives to various local bodies functioning under the above mentioned two Acts. 11. On the same day, i.e. 27.09.2010, W.P.(C) No.29734 of 2010 came to be filed with a prayer which is already noticed earlier. 12. It may be mentioned here that the Writ Petition as well as the instant appeal are purported to have been filed by a political party (Kerala Congress) represented by an individual (Dr.Scaria Thomas) claiming to be its working Chairman who also happens to be a former Member of the Parliament (Lok Sabha). We do not wish to examine the question whether legal proceedings are maintainable at the instance of a political party. Though we have some doubt in this regard, we proceed on the basis, for the purpose of the present case, that the Writ Petition WA No.1693 of 2010 -:8:- is filed by the above mentioned Shri. Scaria Thomas. 13. Broadly speaking, the allegations in the Writ Petition is that there was no valid decision taken by the political party known as **Kerala Congress** to merge with the other political party **Kerala congress (M);** it was only an individual decision taken by some of the members belonging to the Kerala Congress party, who according to the writ petitioner are **'** _**defectors** '_ from the Kerala Congress Party; further that the petitioner and others who have been members of the Kerala Congress Party are entitled to continue under the identity of the political party - **Kerala Congress** . They are aggrieved by the decision taken by the first respondent under Ext. P1 by which the first respondent ordered that the symbol of **Bicycle** allotted to the Kerala Congress be forzen pending consideration of the representation (Ext. P2) dated 17.07.2010 (before the Election Commission of India). 14. The 1[st] respondent owes its existence to Article 234 of the Constitution. The functioning of the 1[st] respondent is regulated by the Kerala Panchayat Raj Act and the Rules framed WA No.1693 of 2010 -:9:- thereunder. 15. In the matter of allotment of symbols to political parties and to candidates not sponsored by any political party contesting an election under the Kerala Panchayat Raj Act, the 1[st] respondent is governed by Rule 12 of Kerala Panchayat Raj (Conduct of Election Rules), 1995 which in so far as it is relevant to the present purpose reads as follows: “ **12. Symbols.-** (1) As soon as may be after the coming into force of these rules, the State Election Commission shall, by notification in the Gazette, publish a list of symbols and may elaborate or alter them in such manner and the Returning Officer shall then assign symbols of preference to the contesting candidates from such list: Provided that the candidates belonging to political parties shall be assigned the same symbols assigned by the Election Commission of India: Provided further that in the case of candidates belonging to political party to which Election Commission of India has not assigned symbol, such candidate shall be assigned symbols from the list of symbols published under sub-rule (1) in the order of preference noted by them. “(1A) In the case where a political party recognized by or registered with the Election Commission of India is split into two or more political parties and each of such party raises claim for the same symbol assigned by the Election Commission of India or WA No.1693 of 2010 -:10:- for which eligible for preference as per the second proviso to subrule (1), the State Election Commission shall not assign such symbol to the candidates belonging to those parties and shall assign one symbol each from the symbols notified under sub-rule (1) to the candidates belonging to each such party. (B) In the case where symbol can be assigned to candidates belonging to a political party on preference as per the second proviso to sub-rule (1), the State Election Commission shall; as far as possible, assign the same symbol to candidates throughout the State belonging to that political party.” 16. In the background of the events that occurred on 24.05.2010 and a subsequent application made to the 2[nd] respondent on 17.07.2010 it appears that certain correspondence was made to the 1[st] respondent by the two groups of persons of the Kerala Congress Party, i.e. a letter dated 27.08.2010 from the 3[rd] respondent herein and another letter dated 13.07.2010 by one Sri.P.C.Thomas, apparently a supporter of the writ appellant and his group. The 1[st] respondent passed the order impugned in the writ petition dated 24.09.2010. In passing such an order the 1[st] respondent also consulted the 2[nd] respondent in view of the fact that the dispute such as the one between the two rival factions of the Kerala WA No.1693 of 2010 -:11:- ## Congress Party can be adjudicated only by the 2[nd] respondent. Ext.P1, the impugned order in this regard states as follows: “In view of Clause 15 of the Election Symbols (Reservation and Allotment) Order, 1968 and other enabling provision under the Constitution of India and the Representation of the People Act, the Election Commission of India has to consider and decide the question whether there is a split in the Kerala Congress. The State Election Commission is not in a position to take a decision regarding the claims of both factions of Kerala Congress. In this context State Election Commission requested the Election Commission of India to clarify the question as to whether there is a split in the Kerala Congress or a merger with Kerala Congress (M) in the State and the question of freezing the symbol 'Bicycle' in the state which is an issue pending before the Election Commission of India. Election Commission of India in the fax message No.56/4/2010/PPS-11 dated 23.09.2010 informed that the matter is under consideration of the Commission and Commission is yet to take a decision in the matter. The only alternative left before the State Election Commission is to freeze the Symbol 'Bicycle' till a final decision is taken in this matter by the Election Commission of India.” 17. The learned counsel for the appellant Sri.K.P.Dandapani argued that the impugned order Ext.P1 is wholly without any authority of law and therefore the decision of the learned Judge in declining to grant interim order as sought WA No.1693 of 2010 -:12:- for by the writ petitioner/appellant is an error of law which is required to be corrected by an intra-court appeal. The learned counsel argued that assuming for the sake of argument that the 1[st] respondent has the necessary authority of law to freeze the symbol in view of the dispute pending between the two factions of the Kerala Congress, such a decision could be taken only in contingencies contemplated under Rule 12(1A) of the Kerala Panchayat Raj(Conduct of Election Rules), 1995 which is already extracted. The learned counsel argued that though there is a dispute between the two factions of the Kerala Congress, even going by Ext.P2 representation pending before the 2[nd] respondent, the rival faction represented by the 3[rd] respondent herein does not lay any claim to the symbol of 'Bicycle' and therefore the power to freeze the 'Bicycle' symbol during the pendency of the adjudication by the 2[nd] respondent is not available to the 1[st] respondent, as there is no dispute at all regarding the 'Bicycle' symbol. 18. On the other hand, the learned senior counsel for the 3[rd] respondent Sri.K.Ramakumar argued that though there WA No.1693 of 2010 -:13:- are two factions in the Kerala Congress, each of which asserting that it is the real political and recognised party by the Election Commission of India, called the Kerala Congress. The learned counsel submitted that apart from the representation, Ext.P2 made by the 3[rd] respondent group, no claim by any other person is pending before the 2[nd] respondent asserting that such a rival claimant represented a recognised political party called the Kerala Congress. He further submitted that assuming for the sake of argument such a dispute between the two factions of the Kerala Congress exists, until such an issue is resolved, it is only just and proper that the original symbol alloted in favour of the Kerala Congress is not alloted to either of the disputing factions. The learned counsel also submitted that in view of the fact that notifications calling upon the electoral colleges to elect their representatives to the various bodies under the Kerala Panchayat Raj Act and Kerala Municipalities Act have already been issued and in view of the prohibition contained under Article 243-O, granting of an interim order such as the one sought by the appellant would amount to ignoring the prohibition WA No.1693 of 2010 -:14:- under Article 243-O. The learned counsel submitted that Article 243-O is substantially similar to Article 329. 19. Mr.Ramakumar submitted that by a catena of decisions (viz. **M.P.Ponnuswami v. Returning Officer, Namakkal** [AIR 1952 SC 64], **Mohinder Sing Gill and another v. The Chief Election Commissioner, New Delhi and others** [(1978) 1 SCC 405], **S.T.Muthusami v. K.Natarajan and others** [AIR 1988 SC 616], **Rajalakshmi v. Election Commission of India** [1998 (2) KLT 414], **Election Commission of India v. Ashok Kumar and others [** (2000) 8 SCC 216], **Manda Jaganath v. K.S.Rathnam and others** [(2004) 7 SCC 492] **Subramaniam Swami v. Election Commission of India** [(2008) 14 SCC 216], the Supreme Court held that the High Court in exercise of jurisdiction under Article 226 of the Constitution of India would not normally interfere in the conduct of any election. 20. Various ancillary submissions are made on either side in support of the main submissions recorded above. We are of the opinion that a detailed examination of the various WA No.1693 of 2010 -:15:- submissions is not called for in the instant appeal for two reasons. (1) the instant appeal arises out of an interim order rejecting an interim relief in favour of the appellant/writ petitioner and the main writ petition is still pending, wherein each one of the submissions made on either side would be pressed into service and an adjudication on those submissions would be demanded by the parties. In such case any examination of those issues at this stage would certainly affect adversely the interests of some party or other to the writ petition. (2) The more important aspect which is also required to be kept in mind is that any decision of any one of the issues raised by the parties to this litigation necessarily involves establishment of certain basic facts which can only be done by recording appropriate evidence and such facts are not yet available on record. 21. We are also of the opinion that the interim relief such as the one sought by the appellant/writ petitioner cannot be granted as it amounts to ignoring the Constitutional bar contained under Article 243-O of the Constitution of India. We WA No.1693 of 2010 -:16:- may mention here that the learned counsel for the appellant/writ petitioner made a submission that though the election is in progress now, on the date of the impugned order the election process had not yet commenced and therefore the bar under Article 243-O cannot be pressed into service to deny the interim relief to the appellant/writ petitioner. 22. We regret our inability to accept the submission. Irrespective of the fact that the impugned order preceded the commencement of the election process, judicial intervention in the election process, whether the cause of action arose before or after the election process commenced, is barred under Article 243-O. We may also place on record that we take note of the fact that the 1[st] respondent has already passed an order dated 30.09.2010, the relevant portion of which reads as follows: “The State Election Commission vide Order read above has frozen the symbol 'Bicycle' allotted to Kerala Congress, a State Party vide Notification No.56/2009/PPS-II dated 14[th] September 2009 of the Election Commission of India. Now, the party General Secretary has applied for the assignment of the symbol “Chair” to the party for the ensuing election. As per the second proviso to Rule 12(1) of the Kerala Panchayat Raj (conduct of Election) Rules, 1995 and the Kerala Municipality (conduct of WA No.1693 of 2010 ## -:17:- Election) Rules, 1995, the State Election Commission has discretion to assign symbol from the list of symbols published under Sub rule (1) in the order of preference noted by them. Further as per Sub rule (1) B of the above Rules the Commission has discretion to assign the same symbol to the candidates belonging to the registered political party throughout the state. The State Election Commission therefore direct the Returning Officers of all the Constituencies of local bodies of the Kerala State to assign the symbol “Chair” to the candidates belonging to the Kerala Congress.” ## In the circumstances we reject the appeal at the admission stage. **J.Chelameswar, Chief Justice.** **P.R. Ramachandra Menon, Judge.** ttb WA No.1693 of 2010 -:18:-