' AJMAL MIAN, C.J.---We have disposed of the above appeals by the following short order: "ORDER ' For the reasons to be recorded later on, the above appeals are disposed of as follows.
We are of the view, that the learned Chief Election Commissioner has the jurisdiction to decide the question as to, whether the person who had forwarded the reference in respect of the defection of certain members was the leader of the party or not. However, if there is a genuine dispute as to his being elected as the leader, which will be a dispute relating to the political party, he may decline to decide the same and the party may approach the Civil Court, if so advised."
2 We intend to record the reasons in support of the above short order.
' The brief facts of the case are that on 6th December, 1996, three Political Parties, namely, Balochistan National Movement (Mengal Group), Pakistan National Party (Bizenjo Group) and Pakistan National Party (Lehri Group), merged into one Political Party and adopted Balochistan National Party (BNP) as its name. It appears that the appellant with the consent of the above three components was nominated as its Chief Organiser. It further seems that as per Interim Constitution of the Party, the Chief Organiser was designated as Head of the Party till adoption of a permanent Constitution. It appears that the private respondent alongwith others applied for the tickets for contesting election for the Balochistan Provincial Assembly, the detail of which is as follows:--
1. Sardar Bahadur Khan Bangulzai, PB-27 Mastung.
2. Asadullah Baloch, PB-36 Punjgur.
3. Mr. Muhammad Ali Rind, PB-39 Kech-III.
4. Mir Israrullah Zehri, PB-29 Kalat-Ill.
5. Mir Abdul Ghafoor Kalmati, PB-40 Gawader.
6. Syed Ehsan Shah, PB-37 Kech-I."
3. It may be stated that except Sardar Bahadur Khan Bangulzai, the above named persons were respondents in the above Constitution Petitions. In the general elections besides the abovenamed persons M/s Sardar Muhammad Akhtar Mengal, Prince Musa Jan, Dr. Tara Chand and Muhammad Aslam Gichki returned as successful candidates. It appears the BNP with the collaboration of some other political parties formed a Government headed by Sardar Muhammad Akthar Mengal (son of respondent No,1) as its Chief Minister in which the appellants and others were taken as Ministers and were allocated different portfolios.
' It seems that the convention of BNP was notified to be held at Quetta with effect from 13-7-1998, when on its second day i.e, 14-7-1998 a permanent Constitution of the BNP in place of the interim one was approved and adopted. On the same day an Election Committee was also constituted to elect the Head of the Party and other Office-bearers including the Executive Committee under the Chairmanship of Mr. Sana Baloch. It further seems that on the above day, respondent No,1 as the head of the party delivered his address in the convention, whereafter the respondents submitted their resignations indicating therein that the leader of the Party in his address imputed false allegations against them. It is the case of respondent No,1' that the above elections for the party positions were held on 15-7-1998 as was scheduled. Whereas, the case of the appellants before the Chief Election Commissioner and the High Court was that the above elections were rigged by the respondent No,1 to declare himself successful and that, in fact, one Mir Moheem Khan Baloch who contested the election against respondent No,1 polled more votes than the later. Be that as it may, it appears that the appellants and others, by letter dated 17-7-1998, informed the Speaker, Balochistan Assembly, that on 16-7-1998 they had elected Sardar Bahadur Khan Bangulzai (who was respondent No,2 in Constitution Petition No,343/98) as their Parliamentary Leader in the Provincial Assembly.
4. It seems that the appellants did not accept respondent No,1 as the head of the party on the basis of the above alleged elections held on 14-7-1998, but their plea was that aforesaid Mir Moheem Khan Baloch was elected. It appears that on 6-8-1998 respondent No,1 on the letterhead of BNP served a notice under Article 63-A(1) of the Constitution of the Islamic Republic of Pakistan (hereinafter referred to as the Constitution) on the appellants alleging therein breach of party discipline with the further violations committed later on, consisting of: "(i) Formation of parallel group in the party;
(ii) Declaration of new Parliamentary Leader without getting approval of the Central Committee;
(iii) Persistently and continuously floating negative propaganda, maligning Party and its Leadership;
(iv) Working to change the Party Government of the Province, and
(v) Occasioning the downfall of the Chief Minister."
' The appellants were called upon to show cause within three days of the receipt of the above notice as to why declaration under clause (2) of Article 63-A of the Constitution be not made against them.
' It appears that respondent No, 1 's notice was replied by the appellants on the letter-head of BNP, wherein the above allegations were repudiated. It was also pleaded that respondent No,1 had no locus standi to issue the above show-cause notice for the following reason: "Firstly; it may' be pointed out, that notice in terms of clause (1) of Article 63-A of the Constitution of Islamic Republic of Pakistan, 1973, has been issued, without lawful Authority. Inasmuch as, neither your goodself are President/Head of the Balochistan National Party, nor has been so authorised by the President, to issue such notice. Factually, in the election held on 15th July, 1998, Mr. Moheem Khan Baloch has been elected as President of the Party, whereas you lost of the said election, and in order to fulfil your designs formed a parallel body and are styling yourself as President, actually and in accordance with the by-laws and constitution of the Party, you have no authority to issue a notice under Article 63-A of clause (1) of the Constitution."
' It further seems that on receipt of above reply respondent No,1, as the President/Head of BNP submitted reference to the Chief Election Commissioner through Speaker of the Balochistan Provincial Assembly against the appellants and others for their disqualification in terms of clause
(1) read with clause (3) of Article 63-A of the Constitution.
' On receipt of notice, the appellants filed their respective replies raising preliminary objections challenging therein the locus standi of respondent No,1 to file the above reference on the plea that the President of BNP was Mir Moheem Khan Baloch and not respondent No,1. It was also pleaded that the appellants had not defected within the meaning of Article 63-A(1) of the Constitution.
' It appears that Mir Moheem Khan Baloch styling himself as the President/Head of BNP filed References Nos.14 to 17 of 1998, for disqualification of Sardar Muhammad Akhtar Mengal and others, through the Speaker of the Balochistan Provincial Assembly.
5. Upon receipt of the aforesaid References the learned Chief Election Commissioner through the above order dated 25-9-1998, held as under: "18. Having considered the facts of the case, I am clear in my mind that before approaching this forum, the title of the Head of a Party must be established. Either there should be no dispute or in case of dispute it should have been settled by Court of general jurisdiction. It has to be established which is the real Party? And who is the Head of that Party? The existence of jurisdiction of Chief Election Commissioner depends upon the existence of a single Political Party and its Head. Where the title is disputed, any reference by the disputed leader does not confer jurisdiction on a special tribunal. In the instant case Sardar Attaullah Khan Mengal has filed the affidavits of 167 members of the party in support of his claim. Whereas Mir Moheem Khan Baloch has filed affidavits of 192 members of the party. It is, therefore, clear that it needs a detailed enquiry and the references cannot be decided unless the title is established. Preliminary facts about the status of a Head of a Party have to be resolved in case of dispute, unless law empowers the tribunal of special jurisdiction to determine such status. It would be beyond its jurisdiction to determine the status of a Party or its Head. In the circumstances of the case,, the Reference against Sardar Bahadur Khan Bangulzai, Mir Israrullah Zehri, Mr. Asadullh Baloch, Syed Ehsan Shah. Mir Muhammad Ali Rind, Mr. Abdul Ghafoor Kalmati, Sardar Muhammad Akhtar Mengal, Mr. Muhammad Aslam Gichki, Dr. Tara Chand and Prince Musa Jan, Members, Provincial Assembly, Balochistan are rejected."
6. Against the above order of the learned Chief Election Commissioner inter alia respondent No,1 filed Constitution Petitions Nos. 343 to 348 of 1998 in the High Court of Balochistan, which were heard by a Full Bench comprising three learned Judges. The above Constitution Petitions were allowed through the judgment dated 5-4-1999 as under:-- "Thus for the foregoing reasons we are inclined to hold that under Article 63-A(1) of the Constitution of Islamic Republic of Pakistan, 1973 the Chief Election Commissioner has the jurisdiction to determine that who is the Head of the Political Party being a jurisdictional fact. However, no powers are available to the Chief Election Commissioner for resolving in-built organizational structural disputes which might have cropped up in the folds of a Political Party.
' Consequently, the impugned order, dated 25th September, 1998 passed by Chief Election Commissioner of Pakistan is declared to have been passed without jurisdiction, thus, it is of no legal effect. Accordingly case is remanded to Chief Election Commissioner for decision of References Nos. 8 to 13 of 1998 filed by Petitioner Sardar Attaullah Khan Mengal. Because the judgment is being held, as of no legal effect, therefore, References Nos.14 to 17 of 1998 filed by Mir Moheem Khan Baloch against Sardar Muhammad Akhtar Mengal and others, shall also be deemed to be pending for decision before the Chief Election Commissioner, in view of the observations made hereinabove."
7. After that the appellants filed C.P.L.As. Nos. 775 to 780 of 1999 for leave to appeal against the above judgment of the High Court. Leave was granted to consider the following questions:--
(i) Whether the High Court, after having held that no powers are available to the Chief Election Commissioner for resolving in-built organisational structural disputes which might have cropped up in the folds of a political party, was justified in remanding the case to the Chief Election Commissioner for determining whether Sardar Attaullah Khan Mengal was the head of the party or Mir Moheem Khan Baloch being a jurisdictional fact.
(ii) Whether the Chief Election Commissioner is competent to decide the dispute as to who is the head of the party in a Reference under Article 63-A(1) of the Constitution.
(iii) Whether the Chief Election Commissioner is obliged to inquire into the bona fide of the plea challenging the status of a head of the party in a Reference made before him under Article 63A-(1) of the Constitution before refusing to adjudicate upon the merits of the reference.
8. In support of the above appeal Mr. Fakhruddin G. Ebrahim, learned Senior Advocate Supreme Court appearing for the appellants, has urged as under:
(i) That since the Chief Election Commissioner has only those powers and functions which are conferred on him by the Constitution and law in view of clause (3) of Article 213 of the Constitution and as no Constitutional provision or of any law confers on him jurisdiction to adjudicate upon a dispute relating to internal matters of a political party, he has no jurisdiction to decide as to who is the Head of the political party under reference.
(ii) That even if it is to be assumed that the Chief Election Commissioner has jurisdiction to decide jurisdictional fact for entertaining the reference as to who is the Head of the political party involved, he is not bound to decide the same.
(iii) That the question who is the Head of the party is of the nature which needs detailed inquiry into factual matters, which can only be inquired into by a Civil Court and not by the Chief Election Commissioner.
9. On the other hand, Mr. Basharatullah, learned Senior Advocate Supreme Court appearing for the contesting respondent, has vehemently contended that the Chief Election Commissioner has the exclusive jurisdiction to decide who is the Head of the party involved in order to adjudicate on the references received by him under Article 63-A of the Constitution.
10. Before commenting upon the above contentions of the learned counsel for the parties, we may observe that prior to the incorporation of Article 63-A in the Constitution clause (1) of Article 63 provided that a person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e-Shoora (Parliament) if he is covered by any of the sub-clauses (a) to (p) of above clause (1). It may further be observed that clause (2) of above Article 63 lays down that "If any question arises whether a member of the Majlis-e-Shoora (Parliament) has become disqualified from being a member, the Speaker or, as the case may be, the Chairman shall refer the question to the Chief Election Commissioner and, if the Chief Election Commissioner is of the opinion that the member has become disqualified, he shall cease to be a member and his seat shall become vacant".
11. It may be observed that disqualification on account of defection was not covered by any of the above sub-clauses (a) to (p) of clause (1) of Article 63 of the Constitution, but it was the subject- matter of other law.
12. It may be pertinent to mention that the legisaltive history in respect thereof has been dilated upon inter alia by one of us (Ajmal Mian, C.J.) in the judgment of this Court in the case of Wukala Mahaz Barai Tahafaz Dastoor and another v. Federation of Pakistan and others (PLD 1998 SC 1263).
The relevant portion of the above judgment containing the above legislative history reads as follows:-- "5. It will not be out of context to mention that on account of cancerous vice of floor crossing, Pakistan was unable to achieve stability in the polity of the country. In this regard, it may be advantageous to refer to the legislative history relating to defection. It may be stated that Act XIII of 1962 enacted on or about 15-7-1962 section 8 in the Political Parties Act, 1962 (hereinafter referred to as Act III of 1962), which provided as follows:-
8. Certain disqualifications for being a member of the National Assembly or a Provincial Assembly. ---(1) A person who has been an office-bearer of the Central or a Provincial Committee of a political party dissolved under section (2) of section 6 or who has been convicted under section 7 shall be disqualified from being elected as a member of the National Assembly or a Provincial Assembly for a period of five years from the date of such dissolution or conviction, as the case may be.
2. If a person having been elected to the National or a Provincial Assembly as a candidate or nominee of a political party, withdraws himself from it, he shall, from the date of. Such withdrawal, be disqualified from being a member of the Assembly for the unexpired period of his terms as such member unless he has been re-elected at a bye-election caused by his disqualification.'
' The above subsection (2) was omitted by Ordinance No,XXI of 1974 dated 26-10-1974 with effect from 8-5-1974. It may be pointed out that above-quoted section 8 was re-enacted and amended several times but it did not contain any provision corresponding to above subsection (2) of section 8 of Act III of 1962.
' It may further be stated that section 8-B was enacted by Act No,XII of 1985 on or about 24-12-1985 providing as under:-- '8-B. Disqualification on ground of defection, etc.- --If a member of a House---
(a) having been elected as such as a candidate or nominee of a political party, or
(b) having been elected as such otherwise than as a candidate or nominee of a political party and having become a member of a political party after such election, defects or withdraws himself from the political party he shall, from the date of such defection or withdrawal, be disqualified from being a member of the House for the unexpired period of his term as such member, unless he has been re-elected at a bye-election held after his disqualification.
(2) If any question arises whether a member of a House has become disqualified under subsection
(1) from being a member, the question shall, on a reference by the Leader of the Parliamentary Party concerned, be determined by the Election Commission.
(3) An appeal against a decision of the Election Commission under subsection (2) shall lie to the Supreme Court, within thirty days of the decision.'
' It may also be mentioned that Ordinance No,X of 1990 dated 22-10-1990 added explanation to section 8-B of the Act, whereby inter alia defection was defined. The above explanation reads as under-- 'Explanation.-- -For the purpose of this section---
(a) a member of a House shall be deemed to defect a political party if he---
(i) votes or abstains from voting in such House contrary to any direction issued by the disciplinary committee of the Parliamentary Party to which he belongs or, if there be no disciplinary committee of such Parliamentary Party, by the Parliamentary Party itself, without obtaining in either case prior permission of the disciplinary committee or, as the case may be, of the Parliamentary Party, and such voting or abstention has not been condoned by the Parliamentary Party within thirty days from the date of such voting or abstention;
(ii) accepts any office of or under the Government of a political party other than the one to which he belongs without obtaining the prior permission in writing of the Parliamentary Party to which he belongs;
(b) ' House' means a House of the Majlis-e-Shoora (Parliament) and includes a Provincial Assembly;
(c) ' disciplinary committee of a Parliamentary Party' means a committee of not less than five members who for the time being are elected by the Parliamentary Party concerned;
(d) ' Parliamentary Party' in relation to a member of a House belonging to political party, means the group consisting of all the members of the House for the time being to that political party; and
(e) ' political party' also includes an alliance or combination of two or more political parties which participate in an election under a common symbol.'
' It may further be observed that subsection (2) of section 8-B was amended by a Act XXIII of 1992 on or about 10-12-1992 adding the right of hearing to the affected member to be provided by the Election Commission. Then Ordinance No,XXX of 1993, dated 7-10-1993 amended the aforesaid subsection (2) and substituted subsection (2) of section 8-B of the Act by providing for the words ' majority of the members of such parliamentary party of the House' in above subsection (2).
Whereas under subsection (3) the forum of appeal in place of the Supreme Court, the Speaker of the National Assembly or the Chairman of the Senate, as the case may be, was provided. Since the above Ordinance XXX of 1993 expired on or about 6-2-1994, the original section 8-B of the Act stood revived."
13. It may be observed that in the case of Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly, N.-W.F.P. And another (PLD 1995 SC 66) in which on account of defection of two Members of the N.-W.F.P. Assembly belonging to PML(N) and ANP, the Government of Pir Sabir Shah was toppled and Sherpao Government belonging to PPP was installed, the question arose whether the Chief Election Commissioner by virtue of clause (2) of Article 63 of the Constitution has the jurisdiction to decide the question of defection or the appeal would lie to the Supreme Court against a decision of the Election Commission under subsection (2) of above-quoted section 8-B of the Political Parties Act. The majority view in the above case was that since the provisions of subsections (2) and (3) of section 8-B of the Political Parties Act were in conflict with clause (2) of Article 63 of the Constitution as to the appellate forum (i.e, the former provided the Supreme Court, whereas the latter specified the Chief Election Commissioner) the latter shall prevail.
14. That since the vice of defection could not be dealt with effectively under above section 8-B of the Political Parties Act, the Parliament unanimously enacted above Article 63-A by the Constitution (Fourteenth Amendment) Act, 1997 (Act XXVI of 1997) on 3-7-1997. The vires of the above newly added Article have been thoroughly examined and dealt with by this Court in the case of Wukala Mahaz Barai Tahafaz Dastoor and another v. Federation of Pakistan and others (PLD 1998 SC 1263) (supra).
15. It may be pointed out that since Article 63-A of the Constitution does not contain a non- obstante clause, the above Article is to be construed alongwith the other Articles of the Constitution including Article 63 keeping in view that a Constitution is an organic document designed and intended to cater the needs for all times to come. It is like a living tree, it grows and blossoms with the passage of time in order to keep pace with the growth of the country and its people. Thus, the approach, while interpreting a Constitutional provision should be dynamic, progressive and oriented with the desire to meet the situation or suppress the mischief, which has arisen, effectively. The interpretation cannot be narrow and pedantic. But the Court's efforts should be to construe the same broadly, so that it may be able to meet the requirements of ever- changing society. The general words cannot be construed in isolation but the same are to be construed in the context in which they are employed. In other words, their colour and contents are derived from their context, as held by this Court in the cases of Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahab Khairi and others v. Federation of Pakistan and others (PLD 1996 SC 324), Sardar Farooq Ahmed Khan Leghari and others v. Federation of Pakistan and others (PLD 1999 SC 57 relevant at page 93) and The Collector of Customs, Karachi and others v. Messrs New Electronics (Pvt) Limited and 59 others (PLD 1994 SC 363 relevant at page 389).
16. Having dealt with the factual, historical and legal background, we may now advert to Article 63- A of the Constitution. The above Article reads as follows: "63-A. Disqualification on ground of defection, etc.---(1) if a member of a Parliamentary Party defects, he may by means of a notice in writing addressed to him by the Head of the Political Party or such other person as may be authorized in this behalf by the Head of the Political Party, be called upon to show cause, within not more than seven days of such a notice, as to why a declaration under clause (2) should not be made against him. If a notice is issued under this clause, the Presiding Officer of the concerned House shall be informed accordingly.
Explanation.-- -A member of a House shall be deemed to defect from a political party if he, having been elected as such, as a candidate or nominee of a political party; or under a symbol of political party or having been elected otherwise than as a candidate or nominee of a political party, and having become a member of a political party after such election by means of a declaration in writing---
(a) commits a breach of party discipline which means a violation of the party constitution, code of conduct and declared politics, or
(b) votes contrary to any direction issued by the Parliamentary Party to which he belongs, or
(c) abstains from voting in the House against party policy in relation to any Bill
(2) Where action is proposed to be taken under the Explanation to clause (1), sub-clause (a), the disciplinary committee of the party, on a reference by the Head of the Party, shall decide the matter, after giving an opportunity of a personal hearing to the member concerned within seven days. In the event the decision is against the member, he can file an appeal, within seven days, before the Head of the Party, whose decision thereon shall be final, in cases covered by the Explanation to clause (1), sub-clauses (b) and (c), the declaration may be made by the Head of the Party concerned after examining the explanation of the member and determining whether or not that member has defected.
(3) The Presiding Officer of the House shall be intimated the decision by the Head of the Political Party in addition to intimation which shall also be sent to the concerned member. The Presiding Officer shall within two days transmit the decision to the Chief Election Commissioner. The Chief Election Commissioner, shall give effect to such decision, within seven days from the date of the receipt of such intimation by declaring the seat vacant and amend it under the schedule of the bye-election.
(4) Nothing contained in this Article shall apply to the Chairman or Speaker of a House.
(5) For the purpose of this Article:---
(a) House' means the National Assembly or the Senate, in relation to the Federation, and the Provincial Assembly in relation to the Province, as the case may be.
(b) .' Presiding Officer' means the Speaker of the National Assembly, the Chairman of the Senate or the Speaker of the Provincial Assembly, as the case may be.
(6) Notwithstanding anything contained in the Constitution, no Court including the Supreme Court and a High Court shall entertain any legal proceedings, exercise any jurisdiction, or make any order in relation to the action under this Article."
17. A perusal of the above-quoted Article 63-A indicates that clause (1) thereof deals with the disqualification on the ground of defection. It envisages that if a member of a Parliamentary Party defects, he may by means of a notice in writing addressed to him by the Head of the Political Party or such other person as may be authorized in this behalf by the Head of the Political Party, be called upon to show cause, within not more than seven days of such a notice, as to why a declaration under clause (2) should not be made against him. It further envisages that if a notice is issued under above clause (1), the Presiding Officer of the concerned House shall be informed accordingly.
' It may further be noticed that Explanation defines defection by laying down that a member of a House shall be deemed to defect from a political party if he, having been elected as such, as a candidate or nominee to a political party; or under a symbol of political party or having been elected otherwise than as a candidate or nominee of a political party, and having become a member of a political party after such election by means of a declaration in writing (a) commits a breach of party discipline which means a violation of the party constitution, code of conduct and declared policies, or (b) votes contrary to any direction issued by the Parliamentary Party to which he belongs, or (c) abstains from voting in the House against party policy in relation to any Bill.
' It may also be noticed that clause (2) thereof provides mechanism as to how a defection case is to be dealt with by laying down that where action is proposed to be taken under the Explanation to clause (1), sub-clause (a), the disciplinary committee of the party, on a reference by the Head of the Party, shall decide the matter, after giving an opportunity of a personal hearing to the member concerned within seven days and that in the event the decision is against the member, he can file an appeal, within seven days, before the Head of the party, whose decision thereon shall be final. It also provides that in cases covered by the Explanation to clause (1), sub-clauses (b) and (c), the declaration may be made by the Head of the Party concerned after examining the explanation of the member and determining whether or not that member has defected.
' It may also be pointed out that clause (3) provides that the Presiding Officer of the House shall be intimated the decision by the Head of the Political Party in addition to intimation which shall also be sent to the concerned member. It further lays down that the Presiding Officer shall within two days transmit the decision to the Chief Election Commissioner, who shall give effect to such decision, within seven days from the date of the receipt of such intimation by declaring the seat vacant and announcing the schedule of the bye-election.
' It may also be noticed that clause (5) defines that 'House' means the National Assembly or the Senate, in relation to the Federation, and the Provincial Assembly, in relation to the Province, and that the 'Presiding Officer' means the Speaker of the National Assembly, the Chairman of the Senate or the Speaker of the Provincial Assembly, as the case may be.
' It may also be mentioned that clause (6) ousts the jurisdiction of the Court by providing that notwithstanding anything contained in the Constitution, no Court including the Supreme Court and a High Court shall entertain any legal proceedings, exercise any jurisdiction, or make any order in relation to the action under this Article.
18. In our view, the above Article 63-A of the Constitution is to be construed in conjunction with Article 63 thereof which also deals with the question of disqualification and which has direct nexus with the question of defection. Though in clause (3) of Article 63-A, it has been provided that the Chief Election Commissioner upon receipt of the reference from the Presiding Officer shall give effect to such decision within seven days from the date of receipt of such intimation by declaring the seat vacant and announcing the schedule of bye-election, but it does not mean that he has no power to decide the question as to, whether the reference which has been made to him by the Presiding Officer is competent or not. We are unable to subscribe to the submission of Mr. Fakhruddin G. Ebrahim that he is merely a post office. In our view the above clause (3) of Article 63- A is to be read in conjunction with clause (2) of Article 63 which provided that if any question arises whether a Member of the Majlis-e-Shoora (Parliament) has become disqualified from being a member, the Speaker or, as the case may be, the Chairman shall refer the question to the Chief Election Commissioner and, if the Chief Election Commissioner is of the opinion that the member has become disqualified, he shall cease to be a member and his seat shall become vacant. We are in full agreement with the observation of the High Court that the Chief Election Commissioner has the jurisdiction to determine as to how is the head of a political party being a jurisdictional fact, but he has no power to resolve in-built organisational structural disputes which might have cropped up in the folds of a political party.
19. We are inclined to hold that if a plea is raised before the Chief Election Commissioner that the person who had made reference on account of alleged defection is not the head of the political party involved, the Chief Election Commissioner is obliged to examine the bona fides of such a plea. If the person who has made the reference as the Head of the political party involved has been acting as such in the past, the Chief Election Commissioner is supposed to proceed on the assumption that he is the Head of the political party involved. However, in case he finds that there is no reliable material before him to conclude that factually the person who has made the reference is the head of the political party involved and that the above question relates to inbuilt organisational structural disputes of the political party involved, in that event he may ask the parties to get the above question resolved through a civil proceeding.
20. We may observe that the approach of the learned Chief Election Commissioner should be that the above Article 63-A of the Constitution which is intended to eliminate cancerous vice of defection which has brought bad name to our country and also political instability should not be rendered ineffective on account of raising of frivolous pleas before him. If we were to hold that the Chief Election Commissioner has no power to examine the above plea, it would render the above Article 63-A ineffective as it will be very easy for a member who has defected to challenge the status of the bead of the political party involved before the Chief Election Commissioner and then to compel initiation of a civil proceeding which could not have been the intention of the framer of above Article 63-A of the Constitution. It also runs counter to clause (2) of Article 63, thereof, which is to be read in conjunction with above Article 63-A.
21. Before concluding the above judgment, we may observe that in order to avoid the controversy of the nature at issue, either an amendment be made in the Political Parties Act, 1962, or a rule thereunder be framed (whichever is more in consonance with law), mandating every political party or group having representation in the House to file a declaration after every general elections with the Presiding Officer concerned and with the Chief Election Commissioner naming the Head for the purpose of Article 63-A of the Constitution, and such declaration should remain binding till it is replaced according to law.
22. The above appeals are disposed of in terms of the above short order as enunciated above.