Dr. M. Mohan Babu vs Chief Election Commissioner, Election Commission of India, Delhi and others

B. Subhashan Reddy, J

This writ petition is filed by Dr. M. Mohan Babu, a Member of Rajya Sablia, impugning the action of the Chief Election Commissioner, 1st respondent herein, in issuing the Order dated 16-1-1998.

We are not concerned with the political controversies, but will only adjudicate the legal and constitutional questions raised and state only relevant facts for such adjudication.

The petitioner had announced to observe silence and fast on 2nd October, 1997 (Birthday of Mahatma Gandhi) to invite the attention of the people towards the movement for fighting against the corruption. He made an application to the City Police Commissioner for permission to observe fast at N.T.R Ghat near Tank bund on the said date. As there was no reply by the Police Commissioner, he had filed WP No. 25199 of 1997 for necessary directions to the City Police Commissioner for grant of permission. Ultimately, the permission was granted to observe fast not at NTR Ghat, but at some other place.

As the petitioner was elected to Rajya Sabha on Telugu Desam Party ticket, show-cause notice dated 6-10-1997 was issued by the concerned Telugu Desam Party functionary construing the fast undertaken by the petitioner as an anti-party activity and as to why he should not be expelled from the party. The petitioner gave a reply that the right to undertake a fast for a just cause of fighting corruption is a fundamental right guaranteed to a citizen under the Constitution of India and any attempt to curtail the same violates the fundamental right to freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution. After receipt of reply from the petitioner, the 2nd respondent had issued proceedings expelling the petitioner from Telugu Desam Party.

On 16-10-1997, the petitioner had filed a representation before the 1st respondent and relevant part of the complaint in the representation for adjudication of this case is that the Telugu Desam Party while making application for registration as a political party as contemplated u/s 29-A of the Representation of the People Act, 1951 (hereinafter referred to as ''the Act'') had violated the provisions contained in sub-Section (5) thereof. A combined reading of sub-sections (1) and (5) of Section 29-A of the Act is necessary and the said provisions are extracted below:

"29-A. Registration with the Commission of associations/bodies us 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 Ejection Commission for its registration as a political party for the purposes of this Act.

(2).............................

(3).............................

(4).............................

(5) The application under subsection (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."

The petitioner''s contention is that in the rules and regulations of Telugu Desam Party, which have been filed along with the application for registration, such a declaration to bear true faith and allegiance to the Constitution of India has not been made and as such, Telugu Desam Party is not one validly registered under the Act, and that it ought not to have been registered because of the mandate contained under sub-section (7) and the Proviso of Section 29-A of the Act. It is apt to extract the said sub-section-(7) with Proviso.

"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)."

Counter affidavit has been filed by the Election Commission of India and records have also been produced. We have perused the entire Note File of the Commission. The Election Commission, though was of the prima facie opinion that the mandatory statement of reposing true faith and allegiance to the Constitution of India was not found in the Rules and Regulations filed by the Telugu Desam Party, later on, on perusal of the reply of Telugu Desam party as also going through the rules and regulations of the Party annexed to the reply, Commission was of the considered view that there was no such violation of mandatory provisions and that there was a proper compliance of requirements stated in sub-section (5) of Section 29-A of the Act and the same was -communicated by letter dated 16-1-1998 to the petitioner.

Mr. K. Ashok Reddy, the learned Counsel for the petitioner, strenuously contended that the Election Commission having found earlier that there was a violation, was estopped from pleading contra. But, we did not rely only on the counter affidavit and we have tested the contents of the counter affidavit sworn by Mr. L.H. Faruqi, Secretary of the Chief Election Commissioner, 1st respondent herein, with the note file produced before us by Mr.C.P. Saralhi, the learned senior Counsel appearing for the Election Commission of India, and there is absolutely no doubt to hold that there was a proper compliance of the requirement of mandatory statement regarding true faith and allegiance to the Constitution by Teiugu Desam Party and as such, there is no illegality or unconstitutionally committed by the 1st respondent in registering Telugu Desam Party, as a political party under the Act.

Mr. K. Ashok Reddy, the learned Counsel for the petitioner, draws our attention to the paper reports to the effect that the Election Commission had found that the mandatory statement u/s 29-A(5) of the Act was not made by the Telugu Desam Party and that there was no change in the material so as to come to a different conclusion. While adjudicating a cause and particularly where a disputed fact arises as is in this case regarding filing of proper material, we have to go by the records produced before us relating to the case and cannot rely upon any other extraneous facts and circumstances. In view of the above, we do not find any merit in the contention that the Telugu Desam Party was not properly registered.

Mr. K. Ashok Reddy, the learned Counsel appearing for the petitioner, further reports that the alteram partem rule has been grossly violated in the instant case and that the Election Commission, before taking the decision, was bound to issue notice to the petitioner and if the petitioner wanted a personal hearing, it ought to have been given. But, audi alteram partem rule shall not be read as an abstract rule and cannot be put in a straight jacket. The application or otherwise of audi alteram parent rule depends upon facts and circumstances of each case. It is applicable when the statute requires the issuance of the same and when such statutory provision is read as mandatory. It may also be applicable when the action results in civil consequence. In the instant case, the matter needed a decision on the basis of the material placed, i.e., rules and regulations of the party and the Commission having found that the rules and regulations conform to the legal requirement, no notice was necessary to the petitioner. Further, the expulsion of the petitioner has got no nexus or concern with the complaint made.

Mr. K. Ashok Reddy, then contends that even if Telugu Desam Party was properly registered, the petitioner''s expulsion from the Party is a clear violation of Article 19(1)(a) of the Constitution and merely because the petitioner is a Member of a political party, he cannot be precluded from holding a Dhama or a meeting or fast to highlight the corruption. But , such a dispute relates to intra party discipline and cannot be a subject matter of writ petition. In no event, this Court, in exercise of its extra-ordinary jurisdiction under Article 226 of the Constitution of India, can enter into such a dispute as raised by the petitioner regarding his right to go against the whip and wishes of the political party, to which he belonged to.

In the circumstances, this Writ Petition is devoid of merits and it is accordingly dismissed. No Costs.