VERY IMPORTANT POINT
High Court was wrong in directing Election Commission to consider complaint that calling for a bandh (Hortal) by a political party is unconstitutional and further to consider de-registration or cancellation of registration of that political party, if it is warranted by the circumstances of the case. As Election Commission has no express or implied power under Section 29A of Representation of the People Act, 1951 or on application of Section 21 of the General Clauses Act, 1898 for de-registration of a registered political party for having called for hartal by force, intimidation or coercion and thereby violated the constitutional provisions.

Headnote:Representation of the People Act, 1951-Section 29A (as inserted in 1988) General Clauses Act, 1898-Section 21-Election (Reservation and Allotment) Symbols Order, 1968-Paragraph 3-Registration with the Election Commission of association and bodies as political parties-Whether the Election Commission has power to de-register a registered political party [on account of coercion caused by Bandh (strike)]-High Court directing Election Commission to consider it-Appeal against to Supreme Court-Whether in the absence of an express power in RP Act, the Election Commission is empowered to de-register a registered political party? (No)-Appeals allowed in part, only directions to Election Commission to consider cancellation of registration set aside [Unlawful Activities (Prevention) Act, 1967-Constitution of India-Article 19(1)(a)].
       Held : In the aforesaid view of the matter, the High Court while allowing the writ petitions passed the following orders :
        "(i) We declare that the enforcement of a hartal call by force, intimidation, physical or mental and coercion would amount to an unconstitutional act and party or a hartal has no right to enforce it by resorting to force or intimation.
        (ii) We direct the State, Chief Secretary to the State, Director General of Police and all the administrative authorities and police officers in the State to implement strictly the directives issued by the directions given by the Director General of Police dated 4.2.1999 and set out fully in the earlier part of this judgment.
        (iii) We issue a writ of mandamus to the Election Commission to entertain complaints, if made, of violation of Section 29A(5) of the Representation of the People Act, 1951 by any of the registered political parties or associations, and after a fair hearing, to take a decision thereon for de-registration or cancellation of registration of that party or organisation, if it is warranted by the circumstances of the case.
        (iv) We issue a writ of mandamus directing the Election Commission to consider and dispose of in accordance with law, the Representation Ext. P9 in o.p. 20641 of 1998, after giving all the affected parties an opportunity of being heard.
        (v) We direct the State of Kerala, the Chief Secretary to the Government, the Director General of Police and all other officers of the State to take all necessary steps at all necessary times, to give effect to this judgment.
        (vi) We direct the State, District Collectors, all other officers of the State and Corporations owned or controlled by the State to take immediate and prompt action, for recovery of damages in cases where pursuant to a call for hartal, public property or property belonging to the corporation is damaged or destroyed, from the perpetrators of the acts leading to destruction/damage and those who have issued the call for hartal."
       It is against the aforesaid decision of the High Court these appeals have been filed by way of separate special leave petitions. (Paras 7 and 8)
       Held after reviewing statutory provisions and case law :
       To sum up, what we have held in the foregoing paragraph are as under :
        1. That there being no express provision in the Act or in the Symbol Order to cancel the registration of a political party, and as such no proceeding for de-registration can be taken by the Election Commission against a political party for having violated the terms of Section 29A(5) of the Act on the complaint of the respondent.
        2. The Election Commission while exercising its power to register a political party under Section 29A of the Act, acts quasi-judicially and decision rendered by it is a quasi-judicial order and once a political party is registered, no power of review having conferred on the Election Commission, it has no power to review the order registering a political party for having violated the provisions of the Constitution or for having committed breach of undertaking given to the Election Commission at the time of registration.
        3. However, there are exceptions to the principle stated in paragraph 2 above where the Election Commission is not deprived of its power to cancel the registration. The exceptions are these-
        (a) where a political party has obtained registration by practising fraud or forgery;
        (b) where a registered political party amends its nomenclature of association, rules and regulations abrogating therein conforming to the provisions of Section 29A(5) of the Act or intimating the Election Commission that it has ceased to have faith and allegiance to the Constitution of India or to the principles of socialism, secularism and democracy or it would not uphold the sovereignty, unity and integrity of India so as to comply the provisions of Section 29A(5) of the Act; and
        (c) any like ground where no enquiry is called for on the part of the Commission.
        4. The provisions of Section 21 of the General Clauses Act cannot be extended to the quasi-judicial authority. Since the Election Commission while exercising its power under Section 29A of the Act acts quasi-judicially, the provisions of Section 21 of the General Clauses Act has no application. (Para 42)
       Held finally : For the aforesaid reasons, the appeals deserve to be allowed in part. Consequently, direction Nos. (iii) and (iv) of the impugned judgment are set aside. The appeals are allowed in part. The contempt petitions are rejected. There shall be no order as to costs. (Para 43)

JUDGMENT

V.N. Khare, J.-The foremost question that arises in this group of appeals is whether the Election Commission of India under Section 29A of the Representation of the People Act, 1951 (hereinafter referred to as the Act ) has power to de-register or cancel the registration of a political party on the ground that it has called for hartal by force, intimidation or coercion and thereby violated the provisions of the Constitution of India.

2. The aforesaid question has arisen out of the directions issued by the High Court of Kerala on the writ petitions filed for enforcement of decision in the case of Communist Party of India (Marxist) vs. Bharat Kumar & Ors. AIR (1998) SC 184 wherein it was held that "there is a distinction between `bundh and `hartal . A call for a bundh involves coercion of others into towing the lines of those who called for the bundh and that the act was unconstitutional, since it violated the rights and liberty of other citizens guaranteed under the Constitution."

3. In the writ petitions filed before the High Court it was alleged that despite the law having been declared by the Supreme Court that calling of a bundh is unconstitutional, the political parties in the State of Kerala continued to call bundh under the name and cover of hartal. It was prayed that direction to be issued to the government of Kerala for taking appropriate measures to give effect to the declaration of law by the Supreme Court in the case of Communist Party of India (supra). The High Court from time to time issued orders and in compliance thereof, the Chief Secretary as well as Director General of Police issued necessary orders, but such directions proved ineffective and the political parties continued to give call for bundh in the name of hartal. It was also alleged that some of the writ petitioners submitted representations to the Election Commission of India for taking necessary proceedings against the registered political parties for de-registration as they had contravened the provisions of the Constitution, but no action has been taken by the Election Commission in that regard. In one of the writ petitions one of the reliefs sought for with which we are concerned in this group of appeals, was to issue a direction to the Election Commission of India to take action against the registered political parties for violation of their undertaking that they will abide by the Constitution. In nutshell, the case of the writ petitioners before the High Court was that by holding a hartal and enforcing it by force, threat and coercion, there is the performance of an unconstitutional act and one of the clear and definite ways of preventing such unconstitutional activity on the part of political parties registered under the Representation of the People Act is to take steps for their de-registration on the ground of violation of the Constitution of India.

4. In the said writ petitions, the Communist Party of India (Marxist) filed counter affidavit and stated therein that they did not give call for a bundh and, in fact, the call given by them was for a hartal. It is also stated therein that at the call for hartal, it was optional for every citizen either to open or close their shops and in fact there was only an appeal to public to join the hartal and further there was no element of compulsion in the appeal and, therefore, the Communist Party of India (Marxist) did not violate either the provisions of the Constitution or decision rendered by the Supreme Court in the case of Community Party of India vs. Bharat Kumar (supra). Indian National Congress (I) also filed a counter affidavit submitting that the call for hartal given by them was not a bundh. It was also stated therein that giving a call for hartal was a part freedom of speech and expression protected under Article 19(1)(a) of the constitution and it was merely a device to elicit the support of the people towards their specific issues highlighted by political parties, organisation and als

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2002 Supreme(SC) 647

Cases Referred (6)