Kanhiyalal Omar v. R.K. Trivedi

A citizen challenged the Election Symbols (Reservation and Allotment) Order, 1968. He said the Election Commission had no power to issue it. The Supreme Court held that Article 324 and the election rules gave the Commission that power, and it dismissed the petition.

Quick Revision

Read the full judgment: Supreme Court of India (sci.gov.in)

Parties

Kanhiyalal Omar — petitioner. He is a convener of a social organisation called SAPRYA in Kanpur (U.P.), set up to propagate National truth. He filed the petition under Article 32.

R.K. Trivedi — first respondent. The judgment does not describe his role. The title also names & Ors.; the judgment does not name the other respondents.

Election Commission of India — the body that issued the Symbols Order. The judgment calls it the Commission.

Procedural History

The judgment records no lower-court decision. The matter is an original petition in the Supreme Court.

1. The petition is a writ (a court's formal order) petition, No. 11738 of 1985, filed under Article 32 of the Constitution (Original Jurisdiction).
2. The petitioner appeared through Gobind Mukhoty, R.P. Gupta and Miss Kirti Gupta.
3. The Court heard the petition and decided it on 24 September 1985.
4. Venkataramiah, J. delivered the judgment of the Court, and the petition was dismissed.

Facts

1. In 1968 the Election Commission issued the Election Symbols (Reservation and Allotment) Order, 1968 (the Symbols Order). It acted under Article 324 of the Constitution, read with Rules 5 and 10 of the Conduct of Election Rules, 1961.
2. The Symbols Order was published as S.O. 2959 dated 31 August 1968. Its preamble says the Commission has superintendence, direction and control of all elections. It says the Order is needed for purity of elections and for fair and efficient conduct of elections.
3. The Order provides for the specification, reservation, choice and allotment of symbols. It also provides for the recognition of political parties in relation to symbols.
4. The petitioner is a convener of SAPRYA, at 67/68, Daulat Ganj, Kanpur (U.P.). He says it was set up to propagate National truth and to make people aware of its ideals.
5. He is unhappy about the growth of many political parties at the national and State level. He says this has seriously harmed the ideals of a democratic country.
6. He refers in the petition to various acts of several political parties. He says these acts are highly harmful to the country.
7. He says the rise of these parties is due to the Symbols Order. The Order provides for registration of parties and for reservation and allotment of symbols to them.
8. He challenged the Order in the Supreme Court. His case was that the Commission had no power to issue it under the Constitution, the Act or the Rules.

Issues Raised

1. Is the Symbols Order legislative in character, so that the Commission could not issue it without a law that gives it that power?
2. Does Article 324 of the Constitution, which gives the Commission superintendence, direction and control of elections, include the power to issue the Symbols Order?
3. Is there any constitutional or legal provision that justifies the recognition of political parties for elections?
4. Could the Central Government, which had rule-making power under Section 169 of the Representation of the People Act, 1951, pass on the power to make subordinate legislation (the Symbols Order) to the Commission, without the Act allowing such further delegation?
5. Should the Order be struck down because of the evils said to exist among political parties?

Arguments Contended

For the petitioner (Kanhiyalal Omar)

1. The Symbols Order is legislative in character. The Commission could not issue it, because no law entrusts it with the power to make such an order on the specification, reservation and allotment of symbols for parliamentary and assembly elections.
2. Article 324 gives the Commission superintendence, direction and control of elections. It cannot be read as giving the power to issue the Symbols Order.
3. No provision, constitutional or legal, justifies the recognition of political parties for elections.
4. The Central Government had only delegated power to make rules under Section 169 of the Act. He calls the Symbols Order subordinate legislation. The Central Government could not delegate further the power to make subordinate legislation in the form of the Symbols Order, unless the Act itself allowed that.
5. The Order is liable to be struck down because the Commission has no power to issue it under the Constitution, the Act or the Rules.
6. The Order registers parties and reserves and allots symbols to them, and this has caused many parties to emerge. The evils and malpractices of those parties are due to the Order.

For the respondents

The judgment does not record any argument for the respondents or the Commission. Only the petitioner's counsel is named.

Court's Reasoning

The judgment has no numbered paragraphs. It is a single opinion by Venkataramiah, J. for the Court. Steps below follow the order of the opinion. References say opinion in place of paragraph numbers.

Venkataramiah, J. (for the Court)

1. Noted: The petitioner challenges the constitutional validity of the Symbols Order issued by the Commission. His main point is that the Order is legislative and the Commission has no legal power to issue it. He also says Article 324 cannot be read to confer that power. (opinion, opening)
2. Noted: Article 324(1) vests superintendence, direction and control of the preparation of electoral rolls, and the conduct of all elections to Parliament, the State Legislatures and the offices of President and Vice-President, in the Election Commission. (opinion, provisions)
3. Noted: Article 327 lets Parliament make law, subject to the Constitution, on all matters relating to elections to Parliament and State Legislatures. This includes electoral rolls, delimitation of constituencies and all matters needed for due constitution of the Houses. Article 328 gives the State Legislature a similar power, so far as Parliament has made no provision. (opinion, provisions)
4. Noted: Under Article 327, Parliament enacted the Representation of the People Act, 1951. It covers conduct of elections, qualifications and disqualifications, corrupt practices and offences, and the decision of election disputes. (opinion, provisions)
5. Noted: Section 169 of the Act lets the Central Government make rules, after consulting the Commission, to carry out the Act. The Conduct of Elections Rules, 1961 were made under it. (opinion, provisions)
6. Noted: Rule 5(1) requires the Commission to specify, by Gazette notification, the symbols candidates may choose and the limits on their choice. Rule 5(2) says that where a candidate files more than one nomination paper, the symbol declared in the first paper counts, subject to the Commission's directions under rule 10(4) or 10(5). (opinion, provisions)
7. Noted: Rule 10(4) tells the returning officer to consider candidates' choice of symbols, subject to any general or special direction of the Commission. He must give each candidate a different symbol, as far as practicable as chosen. If more than one candidate prefers the same symbol, he decides by lot. (opinion, provisions)
8. Noted: Rule 10(5) makes the returning officer's allotment final. The exception is where it is inconsistent with the Commission's directions; then the Commission may revise it as it thinks fit. Under rule 10(6) each candidate or election agent must be told the symbol at once and given a specimen. (opinion, provisions)
9. Noted: The Commission issued the Symbols Order in 1968 under Article 324 read with rules 5 and 10. The preamble of the Order records this (S.O. 2959 of 31 August 1968). (opinion, provisions)
10. Noted: Paragraph 2(1)(h) of the Order defines political party as an association or body of Indian citizens registered with the Commission under paragraph 3. Paragraph 3 requires an association that calls itself a party, and wants the Order's benefits, to apply for registration. Sub-paragraphs (2), (3) and (4) set the manner of application. The Commission decides, and its decision is final. (opinion, description of the Order)
11. Noted: Paragraph 4 requires every contested election to allot a symbol, with different symbols for different candidates in a constituency. Paragraph 5 divides symbols into reserved symbols (reserved for a recognised party's candidates) and free symbols (all others). (opinion, description of the Order)
12. Noted: Paragraph 6 classifies parties as recognised or unrecognised. Recognised parties are national parties or State parties. The Order also deals with deciding whether a candidate has been set up by a party. It lets the Commission give instructions to unrecognised parties for early recognition once conditions in paragraph 6 are met. (opinion, description of the Order)
13. Noted: Paragraphs 15 and 16 cover the Commission's power over splinter groups or rival sections of a recognised party, and over the merger of parties. Paragraph 17 requires the Commission to publish lists of national parties, State parties, unrecognised parties and free symbols, kept up to date. (opinion, description of the Order)
14. Noted: Paragraph 18 reserves to the Commission the power to issue instructions and directions to clarify the Order, to remove difficulty, and to deal with matters about symbols and recognition for which the Order makes no or insufficient provision. It may do so where needed for smooth and orderly elections. (opinion, description of the Order)
15. Noted: The petitioner's grievance is the rise of many parties. He says the Order causes this and the Commission has no constitutional or statutory power to issue it. He says no provision justifies recognising political parties for elections. (opinion, description of the petition)
16. Noted: The constitutional scheme is clear. The Constitution first sets up a high-power body, the Commission, to be in charge of elections to Parliament, State Legislatures and the offices of President and Vice-President. Article 324 deals with its constitution and general powers. (opinion, constitutional scheme)
17. Noted: The Commission has the Chief Election Commissioner, appointed by the President, and may have other Election Commissioners fixed by the President. The Chief Election Commissioner chairs it. Regional Commissioners may be appointed to assist. (opinion, constitutional scheme)
18. Noted: For independence and impartiality, the Chief Election Commissioner cannot be removed except in the same manner and on the same grounds as a Supreme Court Judge. His service conditions cannot be varied to his disadvantage after appointment. An Election Commissioner or Regional Commissioner cannot be removed except on the Chief Election Commissioner's recommendation. (opinion, constitutional scheme)
19. Held: The words superintendence, direction and control in Article 324(1) are "wide enough to include all powers necessary for the smooth conduct of elections". (opinion, constitutional scheme)
20. Noted: Parliament has law-making power under Article 327 read with Entry 72 of List I of the Seventh Schedule. A State Legislature has power under Article 328 read with Entry 37 of List II, subject to the Constitution and to Parliament's law. (opinion, constitutional scheme)
21. Held: The Commission's general powers under Article 324(1) are subject to any law made under Article 327 or Article 328. (opinion, constitutional scheme)
22. Held: The word election in Article 324 is used in a wide sense. It covers the whole process of election, with its several stages and many steps, some with an important bearing on the result. (opinion, constitutional scheme)
23. Noted: India has millions of voters, and a large percentage is still illiterate. Symbols are therefore needed to identify candidates. The illiterate voter can then vote in secrecy by identifying the candidate by the symbol printed on the ballot paper against the name. (opinion, constitutional scheme)
24. Noted: Until recently the Constitution did not expressly refer to political parties. Yet their existence is implicit in the democratic form of government that India has adopted. (opinion, political parties)
25. Noted: A symbol, be it a donkey or an elephant, has a unifying effect on people with a common political and economic programme. It helps establish the Westminster-type democracy adopted by India, with a Cabinet responsible to the elected representatives in the lower House. (opinion, political parties)
26. Noted: Parties have to exist if the present system of government is to succeed. The chasm dividing the parties should be so profound that a change of administration would in fact be a revolution disguised under a constitutional procedure. The Court calls it a paradox. The country has a strong sense of unity and continuity. Yet its working parts are organised on party lines, that is, on systematised differences and unresolved conflicts. That is the essence of the system, and it helps set up a government by the majority. (opinion, political parties)
27. Held: The Constitution (Fifty-Second Amendment) Act, 1985 now clearly recognises political parties. The Tenth Schedule that it added acknowledges parties and sets out when a member of Parliament or a State Legislature is deemed to have defected from his party and is disqualified. (opinion, political parties)
28. Held: It is therefore difficult to say that the Symbols Order's references to recognition and registration of political parties are unauthorised and against the political system the country has adopted. (opinion, political parties)
29. Noted: Paragraph 15 of the Symbols Order, on splinter groups, was considered in Sadiq Ali v. Election Commission of India. (opinion, precedents)
30. Noted: In Sadiq Ali (pages 341-343), the Court noted that the validity of the Rules was not challenged. It said the Symbols Order makes detailed provision for reservation, choice and allotment of symbols and recognition of parties. Rule 5 makes it obligatory for the Commission to specify symbols. Rule 10(4) lets it give general or special directions to returning officers, and rule 10(5) lets it revise their allotments. (opinion, precedents)
31. Noted: Sadiq Ali held that the rules clothe the Commission with plenary powers over allotment of symbols. To use those powers effectively, the Commission must be able to settle disputes between rival claimants to a party's symbol. Paragraph 13 covers disputes between two individuals. Paragraph 15 covers disputes between two groups, each claiming to be the party. (opinion, precedents)
32. Noted: Sadiq Ali said paragraph 15 serves the main purpose of the Order and keeps the scheme from being defeated by a party split. Vesting this power in a high authority created by the Constitution raises a presumption, though rebuttable, that it will be used fairly and reasonably. (opinion, precedents)
33. Noted: Sadiq Ali rejected the argument that Parliament's power under Article 327 could not be further delegated to the Commission. Article 327 opens with subject to the provisions of this Constitution, so laws under it are subject to Article 324. When the Commission issues a direction, it does not act as the delegate of another authority. The Central Government made the 1961 Rules after consulting the Commission, as Section 169 requires. (opinion, precedents)
34. Held: Sadiq Ali upheld the Commission's power to recognise political parties and to decide disputes among them or between splinter groups. It also upheld the power to issue the Symbols Order, which fell within the power of superintendence, direction and control of elections. (opinion, precedents)
35. Noted: In All Party Hill Leaders' Conference, Shillong v. Captain M.A. Sangma (at page 408), the Court overruled the objection that the Order is legislative and the Commission has no entrusted power. It did not decide whether the Order is legislative activity. It held that the Commission is empowered in its own right under Article 324 and rules 5 and 10 to give directions in widest terms, general and specific, for free and fair elections with promptitude. (opinion, precedents)
36. Noted: Sangma added that the Commission may make general provisions in anticipation or in the light of experience on symbols, regulate its own procedure on symbol disputes, and sometimes adjudicate disputes about recognition of parties or rival claims to a symbol. The Order is a collection of directions for situations about symbols. The power flows from Article 324 and rules 5 and 10, whether or not it is legislative activity. (opinion, precedents)
37. Noted: In Roop Lal Sathi v. Nachhattar Singh (at page 719), the Court said the Symbols Order consists of general directions issued by the Commission under Article 324 read with rules 5 and 10 to regulate allotment of symbols. Elections in India are fought on symbols. It follows that the Order is made under the Act, and any other view would destroy the system of elections on adult suffrage. (opinion, precedents)
38. Held: Even if some provision of the Order cannot be traced to the Act or the Rules, the Commission's plenary power under Article 324(1) can cover it. "Article 324 of the Constitution operates in areas left unoccupied by legislation", and the words superintendence, direction, control and conduct of all elections are the broadest terms, covering the power to make all such provisions. The Court cites Mohinder Singh Gill v. Chief Election Commissioner and A.C. Jose v. Sivan Pillai. (opinion, Article 324)
39. Held: The Court finds no substance in the argument that the Central Government could not further delegate its Section 169 rule-making power by way of the Symbols Order, without the Act allowing it. (opinion, delegation)
40. Held: Any part of the Order not traceable to rules 5 and 10 can be traced to the reservoir of power in Article 324(1). That Article lets the Commission issue all directions needed for smooth, free and fair elections. (opinion, delegation)
41. Held: The petitioner's counsel did not point to any provision of the Order that cannot be brought within rule 5, rule 10 or Article 324(1) and that is hit by the principle delegatus non potest delegare (a delegate cannot delegate). The Commission is itself a holder of plenary powers under Article 324(1), subject to any legislation under Articles 327 and 328 (read with Entry 72 of List I or Entry 37 of List II) and the rules made under it. (opinion, delegation)
42. Noted: While reading superintendence, direction and control in Article 324(1), "every norm which lays down a rule of conduct cannot possibly be elevated to the position of legislation or delegated legislation". Some authorities in grey areas may be sources of rules of conduct without being equal to those who can make law in the strict sense. (opinion, delegation)
43. Noted: A direction may be an order to a particular individual or a precept many must follow. It may be specific or general. (opinion, delegation)
44. Held: The source of power here is the Constitution, the highest law and the source of all legal powers. "any power granted by the Constitution for a specific purpose should be construed liberally" so that the object is effectively achieved. (opinion, delegation)
45. Held: Seen this way, no provision of the Symbols Order lacks authority in the Commission that issued it. (opinion, delegation)
46. Held: The Court is not satisfied that the evils and malpractices alleged among political parties are due to the Symbols Order recognising and registering parties. Their causes lie elsewhere. (opinion, last paragraphs)
47. Noted: "The surer remedy for getting rid of those evils malpractices etc. is to appeal to the conscience of the nation." The Court cannot set aside the Order on the grounds in the petition. (opinion, last paragraphs)

Authorities

• Sadiq Ali & Anr. v. Election Commission of India & Ors., [1972] 2 S.C.R. 318 — relied on and quoted at length (pages 341-343). It upheld the Commission's power to issue the Symbols Order, to recognise parties and to settle disputes between rival groups (opinion, precedents).
• All Party Hill Leaders' Conference, Shillong v. Captain M.A. Sangma & Ors., [1978] 1 S.C.R. 393 — relied on and quoted (page 408). The Commission has power in its own right under Article 324 and rules 5 and 10, whether or not the Order is legislative (opinion, precedents).
• Roop Lal Sathi v. Nachhattar Singh, [1983] 1 S.C.R. 702 — relied on and quoted (page 719). The Order is a set of general directions made under Article 324 and rules 5 and 10 (opinion, precedents).
• Mohinder Singh Gill & Anr. v. The Chief Election Commissioner, New Delhi & Ors., [1978] 2 S.C.R. 272 — cited for Article 324 operating where legislation leaves a gap (opinion, Article 324).
• A.C. Jose v. Sivan Pillai & Ors., [1984] 3 S.C.R. 74 — cited with Mohinder Singh Gill for the same point (opinion, Article 324).

Also cited in footnotes: none; the judgment has no footnotes.

Provisions mentioned

• Article 32 — the right to move the Supreme Court for enforcement of fundamental rights (the basic rights the Constitution guarantees). The petition was filed under it.
• Article 324(1) — vests superintendence, direction and control of electoral rolls and the conduct of all elections to Parliament, the State Legislatures and the President's and Vice-President's offices in the Election Commission.
• Articles 327 and 328 — Parliament and State Legislatures may make law on election matters, subject to the Constitution. A State law is also subject to Parliament's law.
• Entry 72, List I and Entry 37, List II of the Seventh Schedule — the law-making entries for elections to Parliament and State Legislatures.
• Section 169, Representation of the People Act, 1951 — the Central Government may make rules for carrying out the Act, after consulting the Commission.
• Rules 5 and 10, Conduct of Elections Rules, 1961 — specification of symbols; allotment by the returning officer, subject to the Commission's directions.
• Election Symbols (Reservation and Allotment) Order, 1968 — paragraphs 2(1)(h), 3, 4, 5, 6, 13, 15, 16, 17, 18, as described above.
• Constitution (Fifty-Second Amendment) Act, 1985 and the Tenth Schedule — recognise political parties and set the rules on defection.

Judgement

1. The Court held that no provision of the Symbols Order lacks authority in the Election Commission.
2. The Court did not accept that the evils among political parties are due to the Order.
3. The Court refused to set aside the Order on the grounds alleged in the petition.
4. The writ petition was dismissed. No order on costs is recorded.

Legal Principle / Ratio

The Election Commission can issue the Symbols Order. Its power comes from Article 324(1) and from rules 5 and 10 of the 1961 Rules. The Constitution's grant of power is read liberally.

Key holding: "Article 324 of the Constitution operates in areas left unoccupied by legislation".

Note: the Court did not itself decide whether the Order is legislative. It quoted Sangma, which left that question open, and said not every norm of conduct is legislation or delegated legislation (law made under power from a legislature). The judgment does not label any part of its reasoning obiter.

Critical Analysis

Analysis based on the judgment text.

• The Court did not settle if the Symbols Order is legislative. It rested the power on Article 324 and the rules, so that question stays open on this judgment.
• The limit on the Commission is stated only in general words. Its powers give way to law made under Articles 327 and 328. The judgment does not say how a conflict would be tested.
• The judgment records no argument for the respondents. The reasoning therefore answers only the petitioner's points.
• The petitioner's complaint about party evils is answered in one line: appeal to the conscience of the nation. The Court gives no legal test for it.

Significance

• The case confirms that the Commission has plenary power under Article 324(1) where no law covers the field.
• It confirms the Symbols Order's validity, including the registration and recognition of political parties.
• It follows Sadiq Ali, All Party Hill Leaders' Conference and Roop Lal Sathi.
• It uses the 1985 Tenth Schedule to show that the Constitution itself now recognises political parties.

Exam-Important Points

• Rule: Article 324(1) is a plenary power, and the words superintendence, direction and control are read widely. Trap: it is subject to laws under Articles 327 and 328.
• The Symbols Order was issued under Article 324 read with rules 5 and 10 of the Conduct of Elections Rules, 1961.
• The Court did not itself decide whether the Order is legislative (it quoted Sangma, which left the point open). Not every rule of conduct is legislation or delegated legislation.
• The argument based on delegatus non potest delegare failed. The Commission is itself a holder of plenary power under Article 324(1).
• Political parties are implicit in democracy. The Fifty-Second Amendment (1985) and Tenth Schedule give express recognition.
• Cases to name: Sadiq Ali (1972), All Party Hill Leaders' Conference (1978), Roop Lal Sathi (1983), Mohinder Singh Gill (1978), A.C. Jose (1984).
• Bench: Venkataramiah and R.B. Misra, JJ. Decided 24 September 1985. Dismissed.

Prepared from the full text of the judgment. The judgment has no numbered paragraphs, so no paragraph numbers are given. The AIR and SCC citations are printed in the judgment text.