Madras High Court
J.Jayachandran vs 6 Munnaivar Pollachi V.Jayaram on 2 December, 2021
W.P.No.26171 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 07.12.2021
DELIVERED ON : 14.12.2021
CORAM :
THE HON'BLE MR.MUNISHWAR NATH BHANDARI,
ACTING CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE P.D.AUDIKESAVALU
W.P.No.26171 of 2021
J.Jayachandran .. Petitioner
Vs
1 The Election Commissioner of India,
Election Commission of India,
Nirvachan Sadan, Ashoka Road,
New Delhi- 110 001.
2 The All India Anna Dravida Munnetra Kazhagam (AIADMK)
rep. by its Coordinator O.Pannerselvam and
Joint-coordinator Edapadi K.Palanisamy
Head Office - No. 226 Avvai Shanmugam Salai,
Royapettah, Chennai - 600 014.
3 O.Paneerselvam
Coordinator
The All India Anna Dravida Munnetra Kazhagam (AIADMK)
No.226, Avvai Shanmugam Salai,
Royapettah, Chennai- 600 014.
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4 Edapadi K.Palanisamy
Joint Coordinator
The All India Anna Dravida Munnetra Kazhagam (AIADMK)
No.226, Avvai Shanmugam Salai,
Royapettah, Chennai- 600 014.
5 C.Ponnaiyan
Election Commissioner-cum-Organizational Secretary
All India Anna Dravida Munnetra Kazhagam
Head Office - No.226, Avvai Shanmugam Salai
Royapettah, Chennai - 600 014.
6 Munnaivar Pollachi V.Jayaram, MLA
Election Commissioner-cum-
Secretary of the Constituency
Electoral Division
All India Anna Dravida Munnetra Kazhagam
Head Office - No.226, Avvai Shanmugam Salai
Royapettah, Chennai - 600 014. .. Respondents
Prayer: Petition filed under Article 226 of the Constitution of India
praying for a writ of mandamus forbearing the first respondent from
according its approval for the newly elected post of Coordinator and
Joint Coordinator of AIADMK party pursuant to the Election Notice
dated 02.12.2021.
For the Petitioner : Mr.N.G.R.Prasad
for M/s.R.Thirumoorthy
ORDER
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W.P.No.26171 of 2021
MUNISHWAR NATH BHANDARI, ACJ
The writ petition has been filed seeking a writ of mandamus to
forbear the first respondent from according its approval for the newly
elected posts of Coordinator and Joint Coordinator of All India Anna
Dravida Munnetra Kazhagam (AIADMK) pursuant to the election
notice dated 2.12.2021. An interim injunction is also sought to
restrain the fifth and sixth respondents from announcing the election
result for the posts of Coordinator and Joint Coordinator pursuant to
the election notice, pending disposal of the writ petition.
2. Learned counsel submits that the petitioner is a loyal and
sincere member of the second respondent political party for more
than thirty years, who rendered dedicated service for upliftment of
the people of the Tamil Nadu at large. The second respondent
political party came into existence at the instance of
M.G.Ramchandran and was approved by the first respondent in the
name of All India Anna Dravida Munnetra Kazhagam (AIADMK) and
allotted a symbol.
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W.P.No.26171 of 2021
3. Learned counsel further submits that recently a resolution
dated 1/2.12.2021 was flashed in the press/media relating to election
to the posts of Coordinator and Joint Coordinator of AIADMK, from
which it came to light that the rule relating to election of Coordinator
and Joint Coordinator was amended by providing for direct election
by primary members through a single ballot. The third and fourth
respondents jointly announced the election notice on 2.12.2021,
where the date of election to the posts of Coordinator and Joint
Coordinator was mentioned to be on 7.12.2021 and, accordingly, the
fifth and sixth respondents were appointed as Election
Commissioners. As per the schedule given therein, the counting of
votes and results are scheduled on 8.12.2021. The third and fourth
respondents ignored the mandatory requirement of issuance of notice
21 days prior to the announcement of the elections and the attempt
of the respondents was only to allow two nominations excluding
others.
4. Learned counsel also submits that when the petitioner made
an effort to enter into the party office, he was physically prevented
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W.P.No.26171 of 2021
and brutally manhandled. The third and fourth respondents along
with the fifth and sixth respondents did not allow any member to
submit their nomination papers and, as a consequence, the third and
fourth respondents would definitely get elected pursuant to the
elections. The petitioner knowing about the schedule of election and
denial of nomination by none other than the third and fourth
respondents is left with no option but to prefer this writ petition to
safeguard the democratic values of the party and the country. The
petitioner seeks conduct of free and fair election even if it is for the
post in the political party for the reason that the members of the
political party are elected as Members of Legislative Assembly and
Members of Parliament after the election conducted by the Election
Commission of India. In view of the above, the petitioner challenged
the election notice dated 2.12.2021 and, presently, even the result of
the election conducted after sacrificing the democratic value for which
the country is known.
5. Learned counsel submits that the writ petition would be
maintainable as directions have been sought against the Election
Commission of India. It is in view of the fact that every election is to
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W.P.No.26171 of 2021
be monitored by the Election Commission under the Representation of
the People Act, 1951 (for brevity, "the Act of 1951"). As all the
political parties are registered with the Election Commission of India,
the Election Commission of India is under an obligation even to
monitor the internal elections of the parties to maintain the
democratic values. The Election Commission of India failed to
intervene in the internal elections of the second respondent political
party despite such elections being conducted in an unfair manner
depriving any of the members of the party to participate in the
election and, therefore, the relief as sought should be granted.
6. Referring to the judgment in the case of All India Anna
Dravida Munnetra Kazhagam v. State Election Commissioner,
2007 (1) CTC 705, learned counsel for the petitioner submits that a
public interest litigation would be maintainable whenever injustice is
meted out to large number of people. The court need not insist on
alternative remedy, rather in exceptional and extraordinary
situations, it can exercise the jurisdiction under Article 226 of the
Constitution of India. The democracy can function only if there are
free and fair elections. The right to vote is a constitutional right and
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W.P.No.26171 of 2021
exercise of such right is accomplishment of freedom of expression of
voters. The failure on the part of the State Election Commission to
ensure free and fair elections may require exercise of the
extraordinary jurisdiction under Article 226 of the Constitution of
India by this Court. It is for the reason that democracy can function
only if there are free and fair elections and duty of the Election
Commission is to ensure the same. Taking aforesaid into
consideration, the writ petition has been filed when the Election
Commission failed to exercise its powers to maintain the democratic
values and save the valuable right of the voter when it is otherwise a
constitutional right. A reference to paragraphs 147 and 148 of the
said judgment was given, apart from the direction in paragraph 253
of the judgment, to impress upon the Court not only to entertain the
writ petition, but to issue appropriate direction on the Election
Commission not to accord approval for the newly elected posts of
Coordinator and Joint Coordinator, rather to pass appropriate orders
to nullify the internal elections of the second respondent political
party.
7. Learned counsel for the petitioner has given further reference
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of the judgment of the Apex Court in the case of Board of Control
for Cricket in India v. Cricket Association of Bihar and others,
(2015) 3 SCC 251, wherein also the objection to the maintainability
of the writ petition against the BCCI was raised. The Apex Court did
not accept the objection, rather the writ petition was maintained
keeping in mind the affairs of the BCCI not only to select the cricket
team to represent the country, but even other functions of the BCCI.
Those functions were taken to be public functions and thereby the
writ petition was held maintainable. The expression "State"
appearing in Article 12 of the Constitution of India was given
meaning. It is the case of the petitioner that the said judgment is
squarely applicable to the present case. The second respondent
political party, AIADMK, represents the public in the elections and
thereby the writ petition would be maintainable against it. A further
reference to an earlier judgment in the case of Zee Telefilms Ltd v.
Union of India, (2005) 4 SCC 649, has been given in paragraph 30
of the judgment in Board of Control for Cricket in India (supra),
where the scope of Article 12 of the Constitution of India was
elaborately discussed and held that if the function of a body is of
public nature or State function, the writ petition would be
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W.P.No.26171 of 2021
maintainable and, accordingly, the prayer is made not only to
maintain the writ petition, but to issue appropriate direction nullifying
the election to the posts of Coordinator and Joint Coordinator of the
second respondent political party.
8. We have considered the submission made by learned counsel
for the petitioner and perused the records.
9. The writ petition has been filed by impleading the Election
Commission of India as a party respondent, apart from the political
party (AIADMK) and other private parties as respondents to the
litigation. The petitioner sought directions against the Election
Commission of India not to accord its approval to the newly elected
posts of Coordinator and Joint Coordinator of the second respondent
political party. The prayer aforesaid is made without showing or
referring to a provision under the Act of 1951, which obligates the
Election Commission to approve the internal elections of the political
party. Learned counsel for the petitioner could not specify the role of
the Election Commission in the internal elections of the political
party. It is apart from the fact that no provision could be referred to
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approve or given cognizance to the result of internal party elections.
Thus, learned counsel for the petitioner could not clarify as to why
Election Commission of India has been impleaded as a party
respondent. The issue aforesaid is quite relevant for the reason that
all other respondents are private parties in reference to which
question of maintainability of the writ petition needs to be examined.
10. Learned counsel would harp on the issue of democratic
values to be maintained by the political party, but could not refer to
any provisions whereby the Election Commission can have a role so
as to pass appropriate direction on the relief prayed for by the
petitioner.
11. As per Article 324 of the Constitution of India the
superintendence, direction and control of elections is vested in the
Election Commission. It is not for internal election of a political
party. Section 29A of the Act of 1951 pertains to registration with
the Election Commission of associations and bodies as political
parties. However, there is nothing in Section 29A that requires an
enquiry to be conducted into the fairness and validity of the internal
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elections held for the posts in a political party. The objection raised
by the petitioner that the elections to the posts of Coordinator and
Joint Coordinator of the second respondent political party were held
without adopting democratic procedure cannot be countenanced, as
the Election Commission is not empowered to go into the internal
elections of a political party. All that Section 29A(9) of the Act of
1951 contemplates is that after an association or body has been
registered as a political party, any change in its name, head office,
office-bearers, address, etc., shall be communicated to the Election
Commission of India without any delay. Such power does not confer
any corresponding duty on the Election Commission of India to enter
into the internal elections of a political party. In view of the above,
we find the impleadment of the Election Commission of India is for
the sake of it.
12. Now next issue that arises for consideration is as to
whether the writ petition would be maintainable against the
respondent Nos.2 to 6, private parties. Learned counsel for the
petitioner submitted that the second respondent is discharging public
function and thus a writ petition against it would be maintainable in
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W.P.No.26171 of 2021
the light of the judgment of the Apex Court in the case of Board of
Control for Cricket in India (supra). The BCCI is not a government
functionary, yet a writ petition was found maintainable and,
accordingly, applying the same principle on the ratio propounded by
the Supreme Court in the case of Board of Control for Cricket in
India (supra), the present writ petition should be entertained and, in
the absence of it, the democratic values required to be maintained by
each party would stand sacrificed. It is more so when the internal
elections conducted for the second respondent political party cannot
be said to be free and fair.
13. In the case of All India Anna Dravida Munnetra
Kazhagam v. State Election Commissioner (supra), the writ
petition was not filed to challenge the internal elections of a political
party, but the elections to the local bodies. The allegation therein
was of mass booth-capturing and rigging. Therefore, this court took
cognizance of the aforesaid to maintain the writ petition seeking free
and fair elections to the local bodies in reference to Article 243 of the
Constitution. In the instant case, the election is not to local bodies,
Assembly or Parliament, but internal elections of the political party.
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It is not governed by any of the provisions of the Constitution or even
the provisions of the Act of 1951 so as to direct the Election
Commission not to approve or recognise the internal elections of the
party. Moreover, we have already held that the Election Commission
of India has no authority to look into the internal elections of a
political party. In view of the above, the judgment in the case of All
India Anna Dravida Munnetra Kazhagam v. State Election
Commissioner (supra) would have no application as a direction
therein in the concluding paragraph was in reference to the elections
to local bodies and not a private body.
14. The other judgment referred by learned counsel for the
petitioner is in the case of Board of Control for Cricket in India
(supra), wherein also an objection was raised about the
maintainability of writ petition. The Apex Court threadbare
considered the facts of the case, and especially the functions of the
BCCI, to record its finding with reference to Article 12 of the
Constitution of India holding that the BCCI is selecting the cricket
team to represent India and is discharging many other functions of
public nature and thereby discharging public duties, thus it would fall
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W.P.No.26171 of 2021
within the ambit of Article 12 of the Constitution of India.
15. In the case on hand, the second respondent is not
discharging duties of the nature discussed by the Apex Court in the
case of Board of Control for Cricket in India (supra) or even in the
case of Zee Telefilms Ltd v. Union of India (supra). In view of the
above, the ratio propounded by the Apex Court in the case of Board
of Control for Cricket in India (supra) would not have any application
to the facts of this case.
16. In the light of the discussion made above, we do not find
the writ petition to be maintainable against respondent Nos.2 to 6
and no direction can be issued to the Election Commission of India in
reference to the internal election of the parties. Hence, the writ
petition would not be maintainable in the present case. It is more so
when despite an opportunity to learned counsel for the petitioner, he
could not refer to any provision of the Act of 1951 empowering the
Election Commission of India to look into the internal elections of the
political party.
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W.P.No.26171 of 2021
For the foregoing reasons, the writ petition fails and is
dismissed finding it to be not maintainable. No costs. Consequently,
W.M.P.No. 27625 of 2021 is closed.
(M.N.B., ACJ.) (P.D.A., J.)
14.12.2021
Index : Yes
sasi
To:
The Election Commissioner of India,
Election Commission of India,
Nirvachan Sadan, Ashoka Road,
New Delhi- 110 001.
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W.P.No.26171 of 2021
M.N.BHANDARI, ACJ
AND
P.D.AUDIKESAVALU,J.
(sasi)
W.P.No.26171 of 2021
14.12.2021
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