Election Commission Has Power To Decide Disputes Over Symbols In Case Of Party Split

In a latest, landmark and laudable judgment titled PJ Joseph vs. Election Commission of India and 7 others in WP(C). No. 18556 and 18638 of 2020 delivered just recently on November 20, 2020, the Kerala High Court has upheld the order of the Election Commission of India (ECI) to allot the party symbol ‘two-leaves’ to Rajya Sabha MP Jose K Mani-led faction of the Kerala Congress (Mani) party. A single Bench of Justice N Nagaresh dismissed the writ petition filed by PJ Joseph MLA who is the leader of the rival section of KC(M), challenging the ECI order. The High Court dismissed the legal argument raised by the lawyers of PJ Joseph that the Election Commission had no power to determine the disputes over election symbol.    

                                        To start with, the ball is set rolling in para 1 of this learned judgment wherein it is put forth that, “Two writ petitions have been filed, one by Working Chairman of a recognised State Political Party, Kerala Congress (Mani) and the other by a Member of the said party, aggrieved by Ext.P1 order dated 30.08.2020 in Dispute Case No.2 of 2019 of the 1st respondent-Election Commission of India. In Ext.P1, by a majority of 2:1, the Election Commission of India held that the group of the said Party led by the 2nd respondent, is the Kerala Congress (Mani) and is entitled to use its name and its reserved symbol “Two Leaves” for the purpose of the Election Symbols (Reservation and Allotment) Order, 1968.”

                                   While narrating the brief background, it is then laid down in para 2 that, “Respondents 2 to 5 filed a petition before the 1st respondent-Election Commission invoking Paragraph 15 of the Election Symbols (Reservation and Allotment) Order, 1968 (hereinafter referred to as ‘the Symbols Order’, for short) claiming that two rival factions were existing in Kerala Congress (Mani) (hereinafter referred to as ‘the KC(M)’, for short) and seeking to declare that the faction led by the 2nd respondent be declared as the KC(M), entitled to use the name “Kerala Congress (Mani)” and entitled to use its name and symbol “Two Leaves” for the purposes of Symbols Order.”

                      Going forward, it is then divulged in para 3 that, “The Election Commission noted that the last organisational Election of of KC(M) was held on 20.04.2018 and results intimated to the Commission by letter dated 30.04.2018. As per the said letter, 351 State Committee Members (out of a total 450 Members) who were present, elected Sri. K.M. Mani as Chairman, the petitioner in W.P.(C) No.18556/2020 as Working Chairman and the 2nd respondent as Vice Chairman. Apart from five office bearers, the State Committee also elected 99 members to State Steering Committee. The State Steering Committee further elected 29 Members to the High Power Committee. However, the list of 450 Members of the State Committee was not provided to the Election Commission.”

                                 Furthermore, para 4 then brings out that, “Sri. K.M. Mani, Chairman of KC(M) passed away on 09.04.2019. Article XXIX of the Constitution of KC(M) provided that in the absence of the Chairman, all functions and powers of the Chairman will vest in the Working Chairman. On 30.05.2019, the petitioner in W.P.(C) No.18556/2020 (hereinafter referred to as ‘the petitioner’. The ‘petitioner in W.P.(C) No.18638/2020’ will be referred to as such) sent a letter to the Commission stating that on the demise of the Party Chairman, he has assumed charge as ‘Acting Chairman’ and that election to the vacancies of Party Chairman and leader of Legislative Party would be held as per law in due course.”

              In addition, it is then made known in para 5 that, “The 2nd respondent submitted before the Tribunal that by representation dated 29.05.2019 signed by himself and 1/4th members of the State Committee, the petitioner was asked to convene State Committee meeting to elect Chairman, but the petitioner did not take any action on the representation. Thereupon, a Member of the High Power Committee called for a State Committee meeting on 16.04.2019(sic). The meeting attended by 314 Members unanimously elected the 2 nd respondent as Chairman, which election was communicated to the Election Commission. On 19.06.2019, the Commission received communication from two members of the KC(M) stating that election of the 2nd respondent a Chairman has been stayed in OS No.166/2019 of Munsiff’s Court, Thodupuzha as per order dated 17.06.2019 of the Court. The 2 nd respondent, however, informed the Election Commission that order dated 17.06.2019 is only an ex-parte interim order of temporary injunction.”

                                      What’s more, para 6 then states that, “On 28.08.2019, the Election Commission announced by-poll for 93 – Pala Assembly Constituency to fill the vacancy caused by the death of Sri. K.M. Mani. The petitioner, according to the Election Commission, informed that the party would not contest the by-election. The 2nd respondent, however, stated that a Sub Committee formed by the Steering Committee of the Party decided to field Sri. Jose Tom Pullikkunnel, in the election. The Returning Officer rejected his nomination paper as candidate of KC(M), on the ground that Form-A and Form-B of nomination paper did not contain signature of the Chief Executive Officer of the Party. The candidate thereupon contested as independent candidate and eventually lost the election. The 2nd respondent thereupon approached the Election Commission stating that rival factions had emerged in KC(M) and the faction led by him should be declared as KC(M).”

                         Not stopping here, it is then brought out in para 7 that, “The Commission considered the written submission of the parties and instructed the Director (Law) to verify the authenticity of the separate lists of State Committee Members submitted by both sides and make a report on his findings. The Director (Law) submitted his Report dated 05.02.2020, with the following important findings:- 

“(i) That there is a discrepancy in relation to the authority who finalized the State Committee list of KC(M) after the 2018 organizational elections. The State Committee List submitted by the Petitioner was issued and signed by the State Returning Officer of the Party. On the contrary, the list submitted by the Respondents was signed by the State Election Committee of the Party. It is pertinent to note that the Party Constitution does not provide for the authority responsible for finalizing the list of Party State Committee members.

(ii) That after taking into account the allegations made by both the Parties against each other’s list, it was noted that possibility of forgery and manipulation by both the parties regarding their respective lists could not be ruled out. 

(iii) That both the lists had 305 names in common. It is proposed that the Commission may consider only these undisputed members of the State Committee for the purpose of deciding the dispute under Paragraph 15 of the Symbols Order. 

(iv) That the Commission may ask both the Parties to submit affidavits of their supporters from the State Committee (Organizational Wing) and the Legislative Wing of the Party.””

                                               To put things in perspective, it is then pointed out in para 50 that, “The further contention of the petitioners is that under the Symbols Order, in view of the fact that registration of political parties now falls under Part IV-A of the Representation of the People Act, 1951, the Election Commission is exercising only a peripheral jurisdiction. In view of the judgments of the Apex Court in Jai Mahal Hotels Pvt. Ltd. v. Rajkumar Devraj and others [(2016) 1 SCC 423] and in Ammonia Supplies Corporation (P) Ltd. v. Modern Plastic Containers Pvt. Ltd. [(1998) 7 SCC 105], if for reasons of complexity or otherwise the matter could be more conveniently decided in a Suit, the Election Tribunal ought to relegate the parties to such remedy. The argument is not acceptable for two reasons. Firstly, even according to the petitioners, a decision taken by the Election Commission in exercise of its powers under Article 324 and Paragraph 15 of the Symbols Order is not tentative, but final. When a Constitutional functionary exercises powers and passes orders which are final in nature, subject only to judicial review under Constitutional provisions, it cannot be said that such Constitutional functionary’s jurisdiction is peripheral. Secondly, the Hon’ble Apex Court has in All Party Hill Leaders’ Conference, Shillong (supra) has held that the decision with regard to the reserved symbol is within the special jurisdiction of the Election Commission and it is not permissible for the ordinary hierarchy of courts to entertain such a dispute. In such circumstances, it cannot be held that the adjudicatory powers exercised by the Election Commission are peripheral in nature.”

                                 As it turned out, it is then pointed out in para 51 that, “Yet another ground urged by the petitioners is that the Election Commission can invoke Paragraph 15 only when the Commission has sufficient 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 argument is that the 2nd respondent has raised a dispute only as to who is the Chairman of the KC(M) and that by itself is not sufficient to hold that there are rival groups/factions in KC(M).”

                                        Needless to say, it is then observed in para 52 that, “The Election Commission, in fact, did not consider the dispute as to the Election of Chairman held on 16.06.2019. The Election Commission noted the following facts:- 

(1) Both groups held separate Steering Committee Meetings in relation to by-election in Pala Assembly Constituency and took divergent decisions in fielding a candidate.

 (2) Four out of the seven elected legislators had signed the petition dated 18.10.2019 stating that rival factions exist, which is an indicator of split in the legislative wing.

 (3) Both parties claimed majority support in the State Committee and submitted affidavits in support of them. Both parties failed to submit original list of the State Committee Members.”    

                             Truth be told, it is then pointed out in para 53 that, “It was on the basis of the aforesaid undisputed facts that the Election Commission came to the conclusion that there are two factions/groups in the KC(M). The conclusions arrived at by the Election Commission were based on materials available before the Commission. The conclusions of the Commission cannot be said to be perverse and it cannot be said that no reasonable person can arrive at such conclusions. This Court cannot, in exercise of the jurisdiction under Article 226 of the Constitution of India, interfere with the said finding of fact.”

                                     It would be pertinent to mention here that it is then observed in para 55 that, “It may be noted that in Ext.P14 Order in IA No.295/2019 in OS No.53/2019, the Munsiff’s Court, Idukki also also doubted the authenticity of list and observed that the custodian of the list has not produced the list of State Committee Members before the Court. As both the lists produced by the rival factions were unreliable, the Election Commission proceeded to decide the numerical strength based on majority of members admitted by both sides. Such action of the Commission cannot be found fault with, in the circumstances of the case. It is further to be noted that the Commission based on its decision, not only considering the support of undisputed State Committee members, but also on the numerical strength of legislative party members of the party. Therefore, the Election Commission was justified in adopting a course available to it, in the facts and circumstances of the case.”

                                     To say the least, the key point of para 56 is that, “This Court is also not inclined to accept the argument that the petition of the 2nd respondent claiming Party Symbol is a class action and all members of the KC(M) ought to have been put to notice. The KC(M) being a State Party, the Election Commission treated the State Committee of KC(M) as the representative organisational wing and proceeded to determine comparative strength of both factions in the said Committee. Respondents 6 and 7 therefore cannot be heard to contend that petitions before the Commission is a class action and all members of KC(M) ought to have been put to notice. In view of the findings as stated above, this Court finds no reason to interfere with the impugned order of the 1st respondent-Election Commission of India. The writ petitions therefore stand dismissed.”

                          No doubt, the Kerala High Court has very rightly concluded after careful analysis in this noteworthy case that the Election Commission has the power to decide the disputes over symbols in case of party split. It has certainly ascribed right reasons also for doing so which we have already discussed above in detail. It is thus now quite ostensible that the Election Commission certainly has the requisite power to determine the disputes over election symbol. Very rightly so!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh