TRIUPATI NARASHIMA MURARI vs UNION OF INDIA AND ORS.

$~P-1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Delivered on 20.11.2024

+ W.P.(C) 9420/2018

TIRUPATI NARASHIMA MURARI …..Petitioner
Through: Mr. Hari Shankar Jain, Mr. Vishnu Shankar Jain, Ms. Mani Munjal and Mr. Parth Yadav, Advocates.

versus

UNION OF INDIA AND ORS. …..Respondents
Through: Mr. Harish Vaidyanathan Shankar, CGSC with Mr. Srish Kumar Mishra and Mr. Alexander Mathai Paikaday, Advocates for UOI.
Ms. Suruchi Suri, SC for R-2.
Mr. Muhammad Ali Khan, Mr. Omar Hoda, Ms. Eesha Bakshi, Mr. Kamran Khan, Ms. Gurbani Bhatia and Mr. Arjun Sharma, Advocates for R-3.
CORAM:
HON’BLE MR. JUSTICE PRATEEK JALAN
JUDGMENT
1. By way of this writ petition, under Article 226 of the Constitution, the petitioner seeks the following reliefs against the respondent No. 2 – Election Commission of India [“ECI”]:
“(a) Issue an appropriate writ or order quashing the registration granted to All India Majlis-e-Ittehadul Musalimeen as a political party by the Election Commission of India ;
(b) Issue an appropriate writ or order quashing the circular/order No.56/Review/2014/PPS-II dated 19.06.2014 issued by the Election Commission of India granting recognition to All India Majlis-e-Ittehadul Musalimeen as a State level party in the State of Telangana (Annexure P-3):
(c) Issue an appropriate writ or direction in the nature of mandamus restraining the Election Commission of India from recognizing and treating the All India Majlis-e-Ittehadul Musalimeen as registered political party hence ; and
(d) Issue any other writ, order or direction as the Hon’ble Court may deem fit and proper to do complete justice in the case.”
A. Facts:
2. At the time of filing of the writ petition, the petitioner was a member of Shiv Sena, a political party registered and recognised by the ECI.1 He assails the ECI’s orders registering and recognising the respondent No. 3 – All India Majlis-e-Ittehadul Musalimeen [“AIMIM”], as a political party, on the ground that it does not fulfil the conditions laid down in Section 29A of the Representation of the People Act, 1951 [“the Act”]. The petitioner’s contention is that the constitution of AIMIM is intended to further the cause only of one religious community (viz. Muslims), and thus militates against the principles of secularism, to which every political party must adhere under the scheme of the Constitution and the Act.
3. AIMIM was founded as a political party in the year 1958, and made its electoral debut in 1959 by contesting municipal elections in the city of Hyderabad. Subsequently, it expanded its participation to elections to the Legislative Assembly of the erstwhile State of Andhra Pradesh in 1962. In 1984, AIMIM secured a victory in the Lok Sabha elections from the Hyderabad constituency, following which it applied for registration with ECI in 1989.
4. Section 29A of the Act was inserted by the Representation of the People (Amendment) Act, 1988, with effect from 15.06.1989. AIMIM thereafter addressed a communication dated 09.08.1989 to the ECI, stating that its Constitution had been amended to bring it in line with Section 29A, including by incorporation of the provision contemplated in Section 29A(5) of the Act. The ECI accepted AIMIM’s request for registration on 01.06.1992.
5. AIMIM qualified for recognition as a State party in the State of Telangana, after contesting elections regularly since and obtaining the necessary votes, and was granted such recognition on 19.06.2014. I am informed that the status of AIMIM as a recognised State party still subsists.
B. Statutory provisions:
6. In the course of their arguments, learned counsel for the parties cited Section 29A and 123 of the Act, the relevant provisions of which are set out below:
“29A. Registration with the Election Commission of associations and bodies as political parties.–(1) Any association or body of individual citizens of India calling itself a political party and intending to avail itself of the provisions of this Part shall make an application to the Election Commission for its registration as a political party for the purposes of this Act.
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(5) The application under sub-section (1) shall be accompanied by a copy of the memorandum or rules and regulations of the association or body, by whatever name called, and such memorandum or rules and regulations shall contain a specific provision that the association or body shall bear true faith and allegiance to the Constitution of India as by law established, and to the principles of socialism, secularism and democracy, and would uphold the sovereignty, unity and integrity of India.
(6) The Commission may call for such other particulars as it may deem fit from the association or body.
(7) After considering all the particulars as aforesaid in its possession and any other necessary and relevant factors and after giving the representatives of the association or body reasonable opportunity of being heard, the Commission shall decide either to register the association or body as a political party for the purposes of this Part, or not so to register it; and the Commission shall communicate its decision to the association or body:
Provided that no association or body shall be registered as a political party under this sub-section unless the memorandum or rules and regulations of such association or body conform to the provisions of sub-section (5).
(8) The decision of the Commission shall be final.
(9) After an association or body has been registered as a political party as aforesaid, any change in its name, head office, office-bearers, address or in any other material matters shall be communicated to the Commission without delay.
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123. Corrupt practices.—
The following shall be deemed to be corrupt practices for the purposes of this Act:—
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(3)The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate:
Provided that no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purposes of this clause.
(3A) The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.”2
C. Submissions of learned counsel:
7. In support of the petition, Mr. Vishnu Shankar Jain, learned counsel for the petitioner, drew my attention to the aims and objectives of AIMIM, detailed in Chapter II of its Constitution, which are set out below:
“Aim and Objectives:
The aim and objectives of the Majlis will be as follows:
The All India Majlis Ittehadul Muslimeen shall work for social justice and economic upliftment of the backward sections of the society and the Muslims who are backward both economically and in the field of education, with this end in view, it seeks to:
i) Strive for unity among the Muslims and safeguarding their rights and interests as guaranteed under the constitution of India.
ii) Promote education both technical and non-technical.
iii) Promote Islamic education (Deeni Taleem) among Muslims, the reading of Quaran and its understanding.
iv) Create a general awakening among the Muslims to abide by the Shariat Laws.
v) Resist all forms of discriminations in the recruitment to Government jobs and in Industrial and Educational Institutions.
vi) Remove unemployment by securing employment in Government and Industrial establishments for Muslims and other backward sections of the society in proportion to their population and to establish self employment schemes.
vii) Introduce an organised system of Zakath collection to help the poor and deserving members of the community.
viii) Promote harmonious and fraternal relations between Muslims and other communities to make them good citizens of India.
ix) Help the victims of communal violence through rehabilitation programmes.
x) Take part in the elections to Parliament, State Legislative Assemblies, Municipal Bodies and Panchayats and to set up candidates irrespective of caste and creed to further the aims and objectives of the Majlis.
xi) Strive to see that the Muslims ignore differences and factions, stick to their respective principles and cooperate in the maintenance of public peace, and morality subject to the religious, economic, social and other common problems.”
8. Mr. Jain submitted that the above emphasis on protection and safeguarding of the rights of a particular religious community, is inconsistent with the statutory mandate of Section 29A(5) of the Act, which enjoins all political parties to adopt the principle of secularism. Mr. Jain cited the judgment of the Supreme Court in Indian National Congress. vs. Institute of Social Welfare and Ors.3, in support of his contention that a breach of Section 29A(5) of the Act provides a limited class of cases in which the ECI can exercise its power to deregister a registered political party.
9. Mr. Jain also referred to the Constitution Bench decision of the Supreme Court in Abhiram Singh vs. C.D. Commachen & Ors.4 to submit that an attempt to garner votes on the grounds of religion, constitutes a “corrupt practice” under Section 123(3) of the Act. He argued that any candidate set up by a political party, which is itself founded principally on religious lines, would ipso facto be guilty of corrupt practice, as provided under Section 123(3) of the Act.
10. The petition was opposed by Mr. Harish Vaidyanathan Shankar, learned Central Government Standing Counsel for Union of India, Ms. Suruchi Suri, learned counsel for ECI, and Mr. Omar Hoda, learned counsel for AIMIM.
11. Learned counsel submitted that AIMIM has fulfilled the conditions stipulated in Section 29(A)(5) of the Act, by amending its constitutional documents to incorporate the declaration provided by statute. There has been no subsequent amendment or change in the constitution of AIMIM, which would render it in breach of the Act, so as to entitle the ECI to cancel its registration. They submitted that the judgment in Indian National Congress5 clearly holds that the ECI has no power to deregister a political party once registered, except in the three limited classes of cases mentioned therein. In the absence of any amendment or change in the constitution of AIMIM following its registration, it is not vulnerable to deregistration under any of the exceptions. They further submitted that Section 123 of the Act, which deals with corrupt practices, has no application to the question of registration or recognition of a political party.
12. Mr. Hoda additionally drew my attention to an order dated 03.06.2016 passed by the ECI itself, on the issues raised in this petition. Pursuant to an order of the Division Bench of this Court in a public interest litigation6, the ECI considered a representation seeking a change in the name of AIMIM. The ECI noted that, since the year 2005, it does not permit the registration of any political party having a religious name, but did not consider it appropriate to require a change of name of political parties which had already been registered. The ECI further noted that several political parties had been registered prior to the year 2005 with names including religious connotation, such as Akhil Bharat Hindu Mahasabha, Indian Union Muslim League, Shiv Sena, Shiromani Akali Dal, Bharatiya Muslim Party (Siddiqui), and Christian Mannetra Kazhagam, etc.
D. Analysis:
13. The relief sought by the petitioner must be examined in the context of the particular role played by political parties in the democratic system. This has been noticed by the Supreme Court inter alia in DMDK vs. Election Commission of India7, wherein the Court observed as follows:-
“106. “Political parties are indispensable to any democratic system and play the most crucial role in the electoral process—in setting up candidates and conducting election campaigns.” [See Justice M.N. Venkatachaliah, “National Commission to review the working of the Constitution Report” (2002).] [Ed.: Dr Mahendra Gaur, Indian Political Parties Annual, 2006, Preface.] The legal and constitutional position of political parties varies from country to country. In most countries, the political parties do not have any express constitutional or statutory recognition, except Germany, whose Constitution guarantees the legitimacy of the political parties and their right to exist, subject to the condition that they accept the principles of the democratic governance.
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109. The Indian Constitution made no reference to political parties prior to the Fifty-second Amendment made in 1985 by which the Tenth Schedule was inserted in the Constitution. The Tenth Schedule recognises the existence of political parties in this country and the practice of political parties setting up candidates for election to either of the Houses of Parliament or the State Legislature. However, the Election Commission recognised, from the inception, the existence of political parties and the practice of political parties setting up candidates at elections to any one of the Houses created by the Constitution.
110. A political party is nothing but an association of individuals pursuing certain shared beliefs. Article 19(1)(c) confers a fundamental right on all citizens to form associations or associate with organisations of their choice. Article 19(1)(a) confers a fundamental right on the citizens of the freedom of speech and expression. The amplitude of the right takes within its sweep the right to believe and propagate ideas whether they are cultural, political or personal. Discussion and debate of ideas is a part of free speech.
111. This Court in Romesh Thappar v. State of Madras [AIR 1950 SC 124: (1950) 51 Cri LJ 1514] stated as under: (AIR pp. 128-29, para 11)
“11. … without free political discussion no public education, so essential for the proper functioning of the processes of popular Government, is possible.”
112. Therefore, all the citizens have a fundamental right to associate for the advancement of political beliefs and opinions held by them and can either form or join a political party of their choice. Political parties are, no doubt, not citizens, but their members are generally citizens. Therefore, any restriction imposed on political parties would directly affect the fundamental rights of its members.”8
14. The Andhra Pradesh High Court has also recognized this, in V.R. Sreerama Rao vs. Telugudesam, a political party9, in the following terms:-
“15. …But for the effectuation of this entire vital and life-giving process, the participation of organised political parties in these free and fair elections is indispensable. Although Disraeli called political party merely as organised opinion, a political party in the 20th century is decidedly more than that, it is a great twentieth century mechanism designed not only to educate the mass of voters called the people in political affairs but is also intended to bring them into the political community. It is the political party that educates, arouses and organises the political will of the voters. It is for this reason that in democratic societies, law treats political parties as more than a sum total of its members and followers; Law accords a hierarchially superior status to the political parties in the matter of contesting elections. While the law confines the right of the contesting candidate to seek power to the limits of the existing legal mechanism, it freely allows a political party the right to make an appeal to the voters to change the law itself.”10

15. As far as the Act is concerned, Section 29A was the first statutory provision which recognised the role of political parties in the democratic process. It included a requirement that the constitutional documents of a political party should declare that the party bears true faith and allegiance to the Constitution, and to the basic tenets of socialism, secularism, and democracy, which are embedded in our constitutional values.
16. On the facts of the present case, this requirement has been fulfilled by AIMIM. The petitioner himself has annexed to the writ petition, a letter dated 09.08.1989, submitted by AIMIM in support of its application for registration, stating that its constitution had been amended in terms of Section 29A(5) of the Act. A copy of the amended constitution has also been placed on record, which opens with the following words:
“Whereas, it is deemed expedient to amend the Constitution and to redefine the aims and objectives of the All India Majlise Ittehadul Muslimeen, in view of the expanding trend in its activities, therefore the following constitutions is adopted.
The All India Majlis Ittehadul Muslimeen bears true faith and allegiance to the Constitution of India as by law established and to the principles of Socialism, Secularism and Democracy and will uphold the sovereignty, unity and integrity of India.”11
17. The judgment in Indian National Congress12, upon which counsel on both sides placed reliance, lays down the general principle that the ECI is not empowered to deregister a political party even on the grounds that it has violated Section 29A(5) of the Act. The following paragraphs of the judgment have been cited by learned counsel13:
“17. After Section 29-A of the Act came into force, paragraph 3 of the Symbols Order stood amended inasmuch as the definition of a political party in paragraphs 2(1) and (4) of the Symbols Order was also amended. Earlier, under paragraph 3 of the Symbols Order, a political party was defined as a registered party. After Section 29-A was inserted in the Act, the definition of a political party in the Symbols Order was amended to the effect that a political party means a party registered with the Election Commission under Section 29-A of the Act. Consequently, paragraph 3 of the Symbols Order was also amended to the extent it prescribed additional information which a political party was required to furnish to the Election Commission along with an application for registration. Now such additional information the Election Commission is authorised to call for under sub-section (6) of Section 29-A of the Act. A perusal of unamended paragraph 3 of the Symbols Order shows that it did not provide for deregistration of a political party registered under the Symbols Order. Nor any such provision was made after the Symbols Order was amended after Section 29-A was inserted in the Act. Further, neither the provisions of Section 29-A of the Act nor the rules framed thereunder, provide for deregistration or cancellation of registration of a political party. We are, therefore, of the view that neither under the Symbols Order nor under Section 29-A of the Act, the Election Commission has been conferred with any express power to deregister a political party registered under Section 29-A of the Act on the ground that it has either violated the provisions of the Constitution or any provision of undertaking given before the Election Commission at the time of its registration.
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32. This matter may be examined from another angle. If the directions of the High Court for considering the complaint of the respondent that some of the appellant political parties are not functioning in conformity with the provisions of Section 29-A is to be implemented, the result will be that a detailed enquiry has to be conducted where evidence may have to be adduced to substantiate or deny the allegations against the parties. Thus, a lis would arise. Then there would be two contending parties opposed to each other and the Commission has to decide the matter of deregistration of a political party. In such a situation the proceedings before the Commission would partake the character of quasi-judicial proceeding. Deregistration of a political party is a serious matter as it involves divesting of the party of the 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 deregistering a political party for having violated the constitutional provisions.
33. However, there are three exceptions where the Commission can review its order registering a political party. One is where a political party obtained its registration by playing fraud on the Commission, secondly, it arises out of sub-section (9) of Section 29-A of the Act and thirdly, any like ground where no enquiry is called for on the part of the Election Commission, for example, where the political party concerned is declared unlawful by the Central Government under the provision of the Unlawful Activities (Prevention) Act, 1967 or any other similar law.
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35. The second exception is where a political party changes its nomenclature of association, rules and regulations abrogating the provisions therein conforming to the provisions of Section 29-A(5) or intimating the 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 with the provisions of Section 29-A(5). In such cases, the very substratum on which the party obtained registration is knocked off and the Commission in its ancillary power can undo the registration of a political party. Similar case is in respect of any like ground where no enquiry is called for on the part of the Commission. In this category of cases, the case would be where a registered political party is declared unlawful by the Central Government under the provisions of the Unlawful Activities (Prevention) Act, 1967 or any other similar law. In such cases, power of the Commission to cancel the registration of a political party is sustainable on the settled legal principle that when a statutory authority is conferred with a power, all incidental and ancillary powers to effectuate such power are within the conferment of the power, although not expressly conferred. But such an ancillary and incidental power of the Commission is not an implied power of revocation. The ancillary and incidental power of the Commission cannot be extended to a case where a registered political party admits that it has faith in the Constitution and principles of socialism, secularism and democracy, but some people repudiate such admission and call for an enquiry by the Election Commission, reason being, an incidental and ancillary power of a statutory authority is not the substitute of an express power of review.
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41. To sum up, what we have held in the foregoing paragraph is as under:
1. That there being no express provision in the Act or in the Symbols Order to cancel the registration of a political party, and as such no proceeding for deregistration can be taken by the Election Commission against a political party for having violated the terms of Section 29-A(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 29-A 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 been 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 29-A(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 with the provisions of Section 29-A(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 29-A of the Act acts quasi-judicially, the provisions of Section 21 of the General Clauses Act have no application.”14
18. The exception relied upon by Mr. Jain [Exception (b) enumerated in paragraph 41(3) of the Indian National Congress15 judgment] is a limited one, and arises when the political party informs the ECI that it has changed its constitution so as to abrogate the provision which conforms to Section 29A(5) of the Act or that it does not believe in the provisions of the Constitution. As indicated inter alia by the reference to Section 29A(9) in paragraph 33 of the judgment, the Supreme Court has clearly limited the exception to a case of change in the nomenclature of association, or its rules and regulations, by which the political party abrogates compliance with Section 29A(5) of the Act, and thus vitiates the substratum on which it was registered in the first place. Subject to the three limited exceptions provided for by the Supreme Court, the ECI has no power to review its decision to register the political party, even on the ground that it has violated any provision of the Constitution, or committed a breach of the undertaking given to the ECI at the time of registration. The limited exception is when the political party itself acts to delete or amend the provision in its constitution, by which it demonstrated adherence to Section 29A(5) of the Act. The argument of Mr. Jain, that the aims and objectives of the political party must be critically examined to assess whether it in fact adheres to the principles enumerated in Section 29A(5) of the Act, invites a substantive review of the original decision to register the party. This is exactly what, the Supreme Court has held, cannot be done.
19. A Division Bench of this Court had occasion to consider the same issue in Hans Raj Jain vs. Election Commission of India16. A public interest litigation was filed seeking cancellation of registration of a political party on the ground that it had been registered on the basis of forged, wrong and incomplete documents. This Court followed the judgment of the Supreme Court in Indian National Congress17 to hold that no such power was vested in the ECI. The Division Bench found that the petitioner’s case, although couched in terms of fraud and forgery, essentially assailed ECI’s decision to register the political party on the ground that the documents/materials supplied were insufficient. While holding that this was beyond the jurisdiction of ECI, the Division Bench held as follows:
“18. As far as the other grounds urged by the petitioner in support of the reliefs claimed are concerned, we do not find the same to be amounting to violation of any of the conditions for registration stipulated in Section 29A. The need for incorporation of Part IVA (supra) in the RP Act arose in the year 1989 (the same was incorporated with effect from 15th June, 1989) merely to enable regulation of political parties by the respondent ECI. Prior thereto ECI had no control over political parties and was only concerned with the candidates contesting the election. Registration under Section 29A is only optional and is only for registration of name of the political party and there is no specific provision for registration of flag, symbol or slogan or design of the flag in the RP Act. The particulars regarding flag, symbol or slogan are not relevant factors to be furnished by the political party for registration. We have to view the contents of Section 29A in this perspective only and in no other. Else, the settled law is that right to form association has been conferred the status of Fundamental Right under Article 19(1)(c) of the Constitution of India. The particulars required by Section 29A to be furnished by a political party seeking registration are only for the purpose of identification thereof and not for any other reason. The provisions of Section 29A are not intended to be a deterrent to registration of political parties thereunder.”18

20. The petitioner’s arguments are thus tantamount to interference with the fundamental rights of the members of AIMIM to constitute themselves as a political party espousing their political beliefs and values. Such a consequence cannot lightly be countenanced and has been specifically proscribed in the judgments cited above.
21. Although Mr. Hoda submitted that the aims and objectives of the AIMIM have also been misread by the petitioner, and interpreted in a slanted manner so as to infer that it acts only for the benefit of one religious community, I do not consider it necessary to examine this issue as I am of the view that the relief sought by the petitioner lies beyond the jurisdiction of the ECI.
22. The argument of Mr. Jain based on Section 123 of the Act and the judgment in Abhiram Singh19 also does not commend to me. Section 123 of the Act defines “corrupt practices” for the purposes of the Act, which includes an appeal by a candidate, his agent (or by any other person, with their consent) to vote one way or another on the ground of religion, race, caste, community or language, or the use of religious symbols for the purposes of elections. However, the purpose of defining “corrupt practices” is to determine disputes in the process of election, including election petitions and to adjudicate disqualification of candidates under Section 8A of the Act. The provisions of Section 123 of the Act are not relevant to the requirements for registration of a political party, but to the outcome of a particular election, and to the disqualification of a person to participate in the electoral process. The contention based on Section 123 of the Act is therefore rejected.
E. Conclusion:
23. For the aforesaid reasons, I do not find any merit in the present writ petition, which is hereby dismissed.

PRATEEK JALAN, J
NOVEMBER 20, 2024
“Bhupi/Ainesh”/

1 In the course of hearing, I was informed that the petitioner is now a member of the Bhartiya Janata Party.
2 Emphasis supplied.
3 (2002) 5 SCC 685.
4 (2017) 2 SCC 629.
5 Supra (note 3).
6 Rizwan Haider vs. All India Majlis-e-Ittehadul Muslimeen & Anr. [W.P.(C) 9938/2015, decided on 19.10.2015].
7 (2012) 7 SCC 340.
8 Emphasis supplied.
9 1982 SCC OnLine AP 251.
10 Emphasis supplied.
11 Emphasis supplied.
12 Supra (note 3).
13 As the outcome of the present case turns substantially on an understanding of the said judgment, it is necessary to extract it somewhat extensively.
14 Emphasis supplied.
15 Supra (note 3).
16 2015 SCC OnLine Del 8173.
17 Supra (note 3).
18 Emphasis supplied.
19 Supra (note 4).
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