Milan Gupta vs State Election Commission & Anr
2016 Latest Caselaw 2163 Del

           *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Date of decision: 18th March, 2016

+                              W.P.(C) 8523/2011
       MILAN GUPTA                                             ..... Petitioner
                         Through:      Petitioner in person.

                                    Versus

       STATE ELECTION COMMISSION & ANR. ..... Respondents

Through: Ms. Meenakshi Midha and Mr. Siddhartha Nagpal and Ms. Jyoti Nagpal, Advs. for R-1.

Mr. P.R. Chopra, Adv. for ECI.

CORAM:-

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. This petition was filed seeking (i) mandamus to the then sole

respondent State Election Commission (SEC), National Capital Territory

(NCT) of Delhi to allot a free symbol with immediate effect to the petitioner

for contesting the Municipal Corporation of Delhi (MCD) elections in 2012;

(ii) declaration that election symbol opted for by more than one independent

candidate shall be allotted to the candidate who has already contested the

previous election on that election symbol from that same ward; and, (iii)

direction to the respondent SEC to, make such amendments in the Delhi

Election Symbols (Reservation and Allotment) Order, 2007 as may be

necessary for registration of political parties that intend to contest ward

elections to MCD.

2. This petition came up first before this Court on 5 th December, 2011

when it was felt that the Election Commission of India (ECI) is a necessary

party for examination of the issues raised in the petition. Accordingly, ECI

was impleaded as respondent no.2 and notice of the petition issued.

3. Counter affidavit has been filed only by the respondent no.1 SEC; the

counsel for the respondent no.2 ECI stated that no reply is required to be filed.

4. Since the petitioner was appearing in person, Mr. Aly Mirza, Advocate

was appointed as an Amicus Curiae and though he appeared for some dates

but has neither filed any written submissions as directed nor appeared when

arguments were heard on 20th July, 2015 and judgment reserved.

5. It was the case of the petitioner (i) that he intended to contest the ward

elections to MCD due in the year 2012 as an independent candidate; (ii) that

all the political parties had already begun to prepare for the said elections and

the political parties as the BJP and the Congress had already begun to display

their election symbols in ward areas and had begun to put up posters with

election symbols at various places in Municipal wards; (iii) it is a bare

minimum requirement of even the best political candidates to have an

electoral symbol; without spreading and campaigning with such an election

symbol, not even the best candidates holding affection of the voters can ever

win an election because the ballot papers do not hold his name but have his

election symbol; (iv) that the petitioner was utterly handicapped to campaign

without an election symbol; (v) though the petitioner had represented to the

respondent no.1 SEC in this regard but to no avail; (vi) that the petitioner is

not desirous of a reserved symbol like the National Political Parties; the

petitioner merely wants a symbol from the list of free symbols which are not

part of the reserved symbols; (vii) the conduct of SEC of not allotting even a

free symbol to the petitioner while at the same time allowing the large

political parties to campaign with their reserved symbols is discriminatory;

(viii) as per para 4(e)(iii) of the Delhi Election Symbols (Reservation and

Allotment) Order, 2007 (Election Symbols Order 2007) upon more than one

independent candidates choosing the same election symbol, the Returning

Officer is to decide the allotment by a draw of lots; (ix) this drawing of lots

compels even further expenditure for an independent candidate who is

contesting the elections for the second time in a subsequent election in the

same ward; in the same ward, where people have already begun to recognise

such candidate with an election symbol in the previous election, the people

have to be re-told that the candidate‟s election symbol has changed, requiring

wasteful expenditure to be incurred and again placing large National Parties,

having reserved symbols, at an advantage over the independent candidates;

(x) para 4(e)(iii) supra does not allow the continuance of the election symbol

to the candidate who has already contested the previous election on the

symbol in the same ward and who has thus already invested heavily in terms

of time, effort and expenditure into the symbol; (xi) the Rules also do not

provide for an allotment of symbols to parties other than a National or State

Party registered with the respondent no.2 ECI; on the other hand the

respondent no.2 ECI does not allow registration of political parties if the

parties are not contesting elections conducted by the respondent no.2 ECI -

the petitioner thus does not have the option of allotment of any election

symbol ever, if he were to contest MCD ward elections only; and, (xii) not

providing for registration or recognition of political parties that will contest

ward elections is a violation of Article 19(c) of the Constitution of India

guaranteeing the freedom of association.

6. The respondent no.1 SEC in its counter affidavit has stated (i) the term

"political party" is defined in Section 2(1)(f) of the Representation of

People‟s Act, 1951 (RP Act) as an association or a body of individual citizens

of India registered with the Election Commission as a political party under

Section 29A; hence, to enjoy the status of a political party, any such

association has to be registered under Section 29A of the Act; (ii) the Election

Symbols (Reservation and Allotment) Order, 1968 (Elections Symbol Orders

1968) specifies the symbols that may be chosen by the candidates at elections

in Parliamentary or Assembly Constituencies and the restrictions to which

their choice shall be subject; the said Order also lays down the criteria /

conditions for recognition of a political party (registered under Section 29A of

the Act) as a National Party or a State Party; (iii) that as per the scheme of the

statute relating to Election Laws in India, the registration and recognition of

political parties is the prerogative of the ECI and symbols are recognised for

recognised parties only; (iv) the Delhi Municipal Corporation Act, 1957

(MCD Act) vests the superintendence, directions and control of the

preparation of electoral rolls for, and the conduct of, all elections to the MCD

in the respondent no.1 SEC; (v) the Delhi Municipal Corporation (Election of

Councillors Rules) Rules are issued/notified under the provisions of Section 7

of the MCD Act; (vi) that as per the scheme of the MCD Act and said Rules

and the Orders issued thereunder, there is no provision for registration of

political parties and for all purposes, the National Parties and State Parties for

the NCT of Delhi as are recognised by the ECI under Section 29A of the RP

Act, are recognised as such by the respondent no.1 SEC; (vii) that as per the

scheme of the MCD Act, the respondent no.1 SEC only recognises those

parties which are registered and recognised with the respondent no.2 ECI;

(viii) that it is for this reason that under the MCD Act and the Election of

Councillors Rules, the symbols used by the parties recognised by the

respondent no.2 ECI are reserved under the very same name and those very

symbols, as reserved by the respondent no.2 ECI under the Election Symbols

Order, 1968; (ix) accordingly a list of "free symbols" to be chosen by other

candidates (independents) is issued by the respondent no.1 SEC; (x) the

candidates belonging to unrecognised parties registered by the respondent

no.1 ECI are also treated as independent candidates for all purposes including

the number of proposers required and allotment of symbols and are not given

any preference over any independent candidates in allotment of free symbols

or allotted only one free symbol for all its candidates; (xi) without

recognition, no reserved symbol can be allotted; (xii) reserving of a particular

election symbol is privilege given only to recognised National and State

Parties on fulfillment of certain conditions; (xiii) the case of unrecognised

parties and independent candidates cannot be equated to that of recognised

parties; (xiv) the MCD Act or the Election of Councillors Rules do not

envisage recognition or de-recognition of the political parties and the said

powers are concentrated in the respondent no.2 ECI; (xv) allotment of free

symbol before the filing of nomination papers is contrary to the provisions of

Election Symbols Order, 1968; and, (xvi) that on every occasion of General

Election, there are approximately 2000 independent candidates contesting the

said election and if symbols are reserved for every independent candidates for

future elections also, there ought to be 2000 free symbols for every occasion.

7. The petitioner in rejoinder has pleaded (i) that the provisions making

registration and recognition of political parties a sole prerogative of the

respondent no.2 ECI have to be tested on the grounds of being constitutional,

reasonable, legal, proper and valid; and, (ii) neither MCD Act nor any of the

Rules or Orders bar the relief claimed by the petitioner.

8. The petitioner appearing in person, during the hearing, reiterated his

case. The counsel for the respondent no.1 SEC besides taking me through the

provisions cited in the counter affidavit, also drew attention to Rule 15 of the

Delhi Municipal Corporation (Election of Councillors) Rules, 2012 requiring

the SEC to recognise the parties and adopt the symbols subject to the

conditions mentioned therein inter alia to the effect a) that the National

Parties and the State Parties recognised by the ECI are to be recognised under

the very same name by the SEC; b) the National Parties and the State Parties

recognised by the ECI shall use only those very symbols which are reserved

for them by the ECI and not any other symbol; and, c) the facsimiles of the

symbols thus allowed shall not be different from the facsimiles prescribed and

recognised by the ECI and the SEC shall also adopt free symbols as have been

notified by the ECI for the time being in respect of elections to Lok Sabha and

Legislative Assembly for the NCT of Delhi. It was further argued that as the

ECI amends its Election Symbols Order from time to time, the SEC also

issues an Election Symbols Order at the eve of every General Election to the

MCD in consonance with the free symbols available; a copy of the order

dated 6th March, 2012 issued by the SEC has been filed along with the written

submissions. Attention was also invited to Rule 24 of the Election of

Councillors Rules to contend that there is no provision to allot a reserved

symbol or even a free symbol to other candidates including independents, in

anticipation of the elections, to enable campaigning as recognised parties do.

Reliance was placed on Subramanian Swamy Vs. Election Commission of

India (2008) 14 SCC 318 rejecting the contention that providing the symbols

and reserving them for the recognised political parties alone amounted to an

undemocratic act.

9. I have considered the controversy.

10. I am at the outset reminded of the basic premises relating to election

law and which is often found escaping the attention in the context of

challenge to the elections and/or to the procedure of the election, that, a right

to elect, fundamental though it is to democracy, is, anomalously enough,

neither a fundamental right nor a Common Law Right; it is pure and simple, a

statutory right; so is the right to be elected; so is the right to dispute an

election. It was so held in Jyoti Basu Vs. Debi Ghosal (1982) 1 SCC 691

where it was further held that outside of statute, there is no right to elect, no

right to be elected and no right to dispute an election - statutory creations they

are, and therefore, subject to statutory limitation. It was further reasoned that

an election petition is not an action at Common Law, nor in equity; it is a

statutory proceeding to which neither the Common Law nor the principles of

Equity apply but only those rules which the statute makes and applies.

Concepts familiar to Common Law and Equity were held to be strangers to

Election Law unless statutorily embodied. It was held that a Court has no

right to resort to them on considerations of alleged policy because policy in

such matters is what the statute lays down. The petitioner herein also, instead

of citing any provision of law under which he has been wrongly denied the

relief claimed by him and is entitled to the relief, is seeking the relief de hors

the provisions if not contrary to the provisions and which he forgets, in the

matter of elections he is not entitled to. Not only so, the petitioner in the

petition has not even challenged the provisions of law which do not entitle

him to the relief but entitle others similarly placed as him, as claimed by him,

to the relief.

11. The MCD Act (i) vide Section 3A provides for division of the area of

Corporation into number of zones and of each zone into a number of wards as

specified in the 14th Schedule; (ii) vide Section 3 provides for the

establishment of Municipal Corporations to be composed inter alia of

councillors to be chosen by direct election on the basis of adult suffrage from

various wards which the corporation comprises of; (iii) vide Section 4

provides that a Corporation, unless sooner dissolved under section 490, shall

continue for five years from the date appointed for its first meeting and no

longer and for an election to constitute a Corporation to be completed before

the expiry of its duration or before the expiration of a period of six months

from the date of its dissolution; (iv) vide Section 5 provides for delimitation

of wards; (v) vide Section 7, vests the superintendence, direction and control

of the preparation of electoral rolls for, and the conduct of, all elections to the

Corporation in the Election Commission of the NCT of Delhi consisting of an

Election Commissioner to be appointed by the Administrator; (vi) vide

Section 8 prescribes the qualifications to be chosen as a councillor and vide

Section 9 prescribes the disqualifications for membership of Corporation;

(vii) vide Section 10 confers on every persons whose name is for the time

being entered in the electoral roll for the ward to vote at the election of a

councillor from that ward; (viii) vide Section 11 provides for holding of a

general election of the councillors for constituting a Corporation by issuance

of Notification(s) calling upon the wards to elect the councilors; (ix) vide

Section 14 provides for publication of result of election; (x) vide Sections 15

to 19 provides for questioning the election of a councillor and in Sections 22

to 30 provides for corrupt practices and electoral offences and penalties

therefor; and (xi) vide Section 31 empowers the Central Government to make

rules to provide for or regulate all or any matters prescribed therein for the

purpose of preparation, revision and maintenance of electoral rolls of wards

and holding elections.

12. Nowhere in the MCD Act is there any reference to recognised political

party or to allocation of symbols for contesting an election. MCD Act as

aforesaid vests the conduct of the elections absolutely in the SEC, subject

only to the other provisions mentioned hereinabove.

13. The Central Government in exercise of Rule making power under

Section 31 of the Act enacted the Election of Councillors Rules, 1970 which

were in force at the time of filing of the petition but which stand substituted

by the Election of Councillors Rules, 2012 notified on 28 th February, 2012.

Rule 15 thereof under Chapter-I titled "Nomination of Candidates" in Part III

thereof titled "Conduct of Elections" deals with symbols and is as under:-

" 15. Symbols: (1) For the purpose of election to a Municipal Corporation of Delhi, the National Parties and State parties for the National Capital Territory of Delhi, as are recognized for the time being by the Election Commission of India in the National Capital Territory of Delhi, under section 29A of the Representation of the People Act, 1951 and the rules and procedure made thereunder, shall be recognized as such by the Commission. The Commission shall recognize the parties and adopt symbols subject to the following conditions, namely:-

(a) The National Parties and the State Parties recognized by the Election Commission of India shall be recognized under the very same name by the Commission.

(b) The National Parties and the State Parties recognized by the election Commission of India shall use only those very symbols which are reserved for them by the Election Commission of India and not any other symbol, and

(c) The facsimiles of the symbols thus allowed shall not be different from the facsimiles prescribed and recognized by the Election Commission of India.

(2) A candidate shall be deemed to have been set up by a political party only if the candidate has made a declaration to that effect in the nomination paper first filed by him and duly supported by all authorised to such effect by the party concerned.

(3) The Commission shall also adopt free symbols as have been notified by the Election Commission of India for the time being in respect of elections to Lok Sabha and Legislative Assembly for the National Capital Territory of Delhi. (4) The Commission shall specify by notification in the official Gazette, the symbols that may be chosen by candidates and the restrictions to which their choice shall be subject. (5) Where at any such election, more nomination papers than one are delivered by or on behalf of a candidates, the declaration as to symbols, made in the nomination paper first delivered, and no other declaration as to symbols, shall be taken into consideration under rule 24 even if that nomination paper has been rejected.

(6) A failure to complete, or a defect in completion the declaration as to symbols in a nomination paper shall not be deemed to be a defect of a substantial character within the meaning of sub-rule (4) of rule 22."

14. It would thus be seen that it is under Rule 15 supra that the National

and the State Parties are recognised for the purpose of election to the

Corporation and are restricted to the symbol reserved for them by the ECI. It

is also as per the said Rule that the symbols notified by the ECI as free "for

the time being" in respect of elections to Lok Sabha and Legislative Assembly

for NCT of Delhi are notified. The position, in this respect, is not found to be

any different under the Election of Councillors Rules, 1970.

15. Rule 15 supra requires the SEC to specify by Notification in the

Official Gazette the symbols that may be chosen by candidates and the

restrictions to which their choice is subject. This is necessary because a

symbol which was free at the time of one election may not be free at the time

of a subsequent election.

16. Supreme Court, in Subramanian Swamy supra, has negatived the

contention of discrimination in providing the symbols and reserving them for

the recognized political parties and not for others. The petitioner thus cannot

be heard to make any grievance with respect to being discriminated against or

being at a disadvantage vis-à-vis recognised political parties on the said count.

Once that is so, the other reliefs claimed by the petitioner also do not survive.

What the petitioner is wanting is, to retain the symbol for the next election

also and which as per the law is only for recognised political parties and

which law has been held to be not discriminatory.

17. Once there is to be no reservation, no error is also found in the modus

provided in the Orders issued from time to time for allotment of a free symbol

by draw of lots in the event of more than one candidate desiring the same

symbol. The reservation claimed by the petitioner is also contrary to the

Election of Councillors Rules which provide only for the free symbols being

notified at the time of each election.

18. I may add that the matter is also not res integra. I find that the Supreme

Court, as far back as in Samyukta Socialist Party Vs. Election Commission

of India AIR 1967 SC 898, after noticing that when two or more candidates

desire the same symbol, there is drawing of lots to determine who should get

it and that a free symbol becomes free symbol again after it has been used in

an election by a candidate, held that a notification of free symbols before each

election is necessitated because circumstances change, parties may come into

existence and parties may go out of existence; parties may unite or parties

may separate- all this will require amendment of notification. Supreme Court,

in Kanhiya Lal Omar vs. R.K. Trivedi (1985) 4 SCC 628 held that Election

Commission of India is empowered to issue Symbols Order in exercise of

power of superintendence, direction and control of elections and has not

issued the Symbols Order as a delegate of any other authority. It was also

observed that the provisions of Election Symbols Order, 1968 are

Constitutionally valid. Recently also in Desiya Murpokku Dravida

Kazhagam vs. The Election Commission of India (2012) 7 SCC 340 it was

held that Election Commission of India has been clothed with plenary powers

in the matter of conducting of elections, which includes the power to allot

symbols to candidates during elections; the challenge to the validity of

reasonableness and validity of provisions of Symbols Order setting down poll

performance criterion for gaining recognition as a political party was

dismissed by the majority view though arguments as of the petitioner herein

found favour to the minority view.

19. The petition is dismissed.

No costs.

RAJIV SAHAI ENDLAW, J MARCH 18, 2016 „pp‟..