Indian National Congress (I) v. Institute of Social Welfare

Supreme Court of India · 10 May 2002 · 2 judges

The Election Commission, acting quasi-judicially when registering a political party under Section 29A of the Representation of the People Act, 1951, has no power to de-register it for violating the Constitution, save in three narrow exceptions.

Facts

Writ petitions in the Kerala High Court complained that political parties continued to call bundhs in the name of hartals, enforced by force and coercion, despite the Supreme Court's decision that calling a bundh is unconstitutional. One relief sought was a direction to the Election Commission to act against registered parties for breaching their undertaking to abide by the Constitution. The Commission said it had no power under Section 29A to de-register a party. The High Court held that, by Section 21 of the General Clauses Act, the Commission could entertain complaints and de-register parties, and issued mandamus to that effect. In the appeals, the appellants pressed their challenge only against the two directions to the Election Commission.

Questions before the Court

Does the Election Commission have power under Section 29A of the Representation of the People Act, 1951 to de-register a political party for violating the Constitution or its undertaking under Section 29A(5)?
Does the Commission act administratively or quasi-judicially when registering a political party?
Can Section 21 of the General Clauses Act, 1897 supply a power to cancel registration?

What the Court held

Neither Section 29A nor the rules nor the Election Symbols Order expressly empowers the Election Commission to de-register a registered political party for violating the Constitution or its undertaking.
An authority that may prejudicially affect a subject and is required by law to act judicially, as by holding an enquiry and hearing the party, is quasi-judicial even without a lis. Under Section 29A the Commission decides after enquiry and hearing, so it acts quasi-judicially and, lacking an express power of review, cannot reopen a registration on a complaint.
The Commission can still cancel registration obtained by fraud or forgery; where the party itself amends its rules or tells the Commission it no longer bears allegiance to the Constitution and the principles in Section 29A(5); or on any like ground needing no enquiry, such as the party being declared unlawful under the Unlawful Activities (Prevention) Act, 1967.
Section 21 of the General Clauses Act applies only to executive or legislative orders, notifications, rules and bye-laws, not to quasi-judicial orders. It cannot give the Commission power to de-register a party.
The High Court's directions (iii) and (iv) to the Election Commission were set aside, the appeals were allowed in part and the contempt petitions were rejected.

Why it matters

The judgment lays down when a statutory authority is quasi-judicial even without a dispute between two parties, and holds that Section 21 of the General Clauses Act does not apply to quasi-judicial orders. Applying this, it settles that the Election Commission cannot de-register a registered political party on a complaint of unconstitutional conduct, and lists the limited situations in which cancellation is open. It notes that Parliament deliberately did not give the Commission that power.

In the Court's words

Copied from the official judgment; each passage links to its page.

“Where (a) a statutory authority empowered under a statute to do any act (b) which would prejudicially affect the subject (c) although there is no lis or two contending parties and the contest is between the authority and the subject and (d) the statutory authority is required to act judicially under the statute, the decision of the said authority is quasi-judicial.”

V.N. Khare, J.Page 10 of the judgment

“De-registration of a political party is a serious matter as it involves divesting of the party of a statutory status of a registered political party. We are, therefore, of the view that unless there is express power of review conferred upon the Election Commission, the Commission has no power to entertain or enquire into the complaint for de-registering a political party for having violated the Constitutional provisions.”

V.N. Khare, J.Page 12 of the judgment

“The order which can be modified or rescinded on the application of Section 21 has to be either executive or legislative in nature. But the order which the Commission is required to pass under Section 29A is neither a legislative nor an executive order but is a quasi-judicial order.”

V.N. Khare, J.Page 13 of the judgment

Provisions interpreted

Section 29A, Representation of the People Act, 1951
Section 21, General Clauses Act, 1897
Paragraph 3, Election Symbols (Reservation and Allotment) Order, 1968

Case and bench

Parties: Indian National Congress (I) v. Institute of Social Welfare
Case: Civil Appeal Nos. 3320-21 of 2001 (with C.A. Nos. 3322-3323/2001, 3324 and 3325/2001 and Contempt Petition Nos. 334-335/2000)
Decided: 10 May 2002
Bench: V.N. Khare, Ashok Bhan
Opinions: Unanimous. Judgment of the Court by V.N. Khare, J., also signed by Ashok Bhan, J.

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