Jai Maha Bharath Party vs The Chief Election Commissioner, ...
2016 Latest Caselaw 2245 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                          Date of decision: 21st March, 2016.

+                                 W.P.(C) 2501/2016

       JAI MAHA BHARATH PARTY                   ..... Petitioner
                   Through: Mr. Shri Bhagawaan Shri Rangadeva
                            Shri Anantha Vishwa Vishnudeva
                            Prabhu, President of petitioner-in-
                            person.

                                  Versus

    THE CHIEF ELECTION COMMISSIONER, ELECTION
    COMMISSION OF INDIA & ANR.              ..... Respondents

Through: Mr. Pankaj Chopra and Mr. Y.R.

Sharma, Advs.

CORAM:

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

CMs. No.10712/2016 & 10713/2016 (both for exemption)

1. Allowed, subject to just exceptions.

2. The application is disposed of.

W.P.(C) 2501/2016 & CMs No.10710/2016 (for directions) & 10711/2016 (for stay)

3. This petition dated 15th March, 2016 and which has come up for the first time today seeks the reliefs of:

(i) stay of Assembly General Elections 2016 of States of Assam, West Bengal, Tamil Nadu, Puducherry and Kerala going to be

announced by the respondents Election Commission of India (ECI) in the first week of March, 2016;

(ii) mandamus to the respondents ECI to allot the petitioner a new common symbol to contest the Assembly General Elections 2016 of the aforesaid States;

(iii) quashing of all resemblances, religious connotations, communal connotations and depictions of animal symbols which are already allotted to the registered recognized Political Parties under para 10B of the Election Symbols (Reservation and Allotment) Order 1968;

(iv) quashing of Election Symbols (Reservation and Allotment) Order, 1968 (Election Symbols Order) and the Election Symbols (Reservation and Allotment) (Amendment) Order, 2015 dated 26 th June, 2015 (Election Symbols Amendment Order); and,

(v) mandamus to the respondents ECI to permanently register proposed common symbol of the petitioner, a registered unrecognized Political Party, to contest any General Election to the Legislative Assembly of all States and Lok Sabha, all over India, forever under the umbrella of one common symbol.

4. The petition is drawn and filed by the National President of the

petitioner who has also been heard.

5. It is inter alia the case of the petitioner (a) that it is registered under

Section 29A of the Representation of People Act, 1951 as a National Level

Political Party; (b) that it made an application for a new common symbol to

contest Lok Sabha General Election 2014 all over India; (c) however it was

not allotted a common symbol due to the arbitrary, illegal and

unconstitutional Election Symbols Order and the Election Symbols

Amendment Order; (d) that the same was challenged by the petitioner before

the Supreme Court in W.P.(C) No.279/2014 and W.P.(C) No.31/2015 which

were disposed of vide orders dated 2nd December, 2014 and 1st July, 2015;

(e) that though the petitioner participated in the Lok Sabha General Election

2014 but the respondents ECI allotted 13 different election symbols in

different Parliamentary Constituencies to the candidates set up by the

petitioner; (f) that the said conduct of the respondents ECI is absolutely

unfair and impure and violative of Articles 14, 19, 21, 39, 41 & 51 of the

Constitution of India; (g) that the petitioner on 21 st January, 2016 submitted

a proposal to the respondents ECI for allotment of a new common symbol

for the Assembly Elections due in the year 2016 and the schedule whereof

was likely to be published in the first week of March 2016; (h) however the

respondents ECI vide its letter dated 4th February, 2016 has denied the said

proposal of the petitioner; (i) that the petitioner filed W.P.(C) No.153/2016

in the Supreme Court in this regard; (j) that though the Supreme Court vide

order dated 11th March, 2016 dismissed the petition but with observations

that if the petitioner approached the High Court, the High Court will look

into the merits of the case and decide the same in accordance with law; (k)

that the symbols proposed by the petitioner had no religious connotation; (l)

considered in this light, the symbol of Bharatiya Janta Party (BJP) also

connotes to Lord Vishnu and Goddess Laxshmi, the symbol of Indian

National Congress also represents the manner in which blessing is given, the

symbol of Bahujan Samaj Party (BSP) is the vehicle of Lord Indra and so on;

(m) that the action of the respondents ECI suppresses new Political Party and

safeguards old and established political groups.

6. I may mention that W.P.(C) No.279/2014 and W.P.(C) No.31/2015

earlier filed by the petitioner were on 2nd December, 2014 and on 1st July,

2015 respectively disposed of observing that with the issuance of the

Election Symbols Amendment Order enabling registered unrecognized

Political Parties desirous of contesting election and having more than 5%

seats in Assembly Constituencies of that State to get a common election

symbol, the principal prayer with which the petitioner had approached the

Court stood granted.

7. I may further notice that the respondents ECI vide its letter dated 4 th

February, 2016 refused the request of the petitioner for allotment of common

symbol to the candidates set up by the petitioner in the General Election in

the Legislative Assemblies of Assam, Kerala, West Bengal, Tamil Nadu and

Puducherry observing that the common symbol proposed by the petitioner

had religious connotation and as per para 10B of the Election Symbols

Order, religious symbols could not be allotted as a common symbol.

8. The symbols proposed by the petitioner were as under:

9. It may yet further be noted that though the petitioner has alleged that

the symbols already allotted to other Political Parties also have religious

connotations but the petitioner has not impleaded those Political Parties as

parties to the petition and there is no challenge in the petition to allotment of

those symbols. The challenge in the petition is thus confined to the refusal

dated 4th February, 2016 of either of the three symbols proposed by the

petitioner for contesting the Assembly Elections aforesaid.

10. The President of the petitioner during the hearing also, with reference

to the aforesaid symbols, stated that they could not be said to be having any

religions connotation.

11. I may at the outset notice that the schedule for the General Election to

the Legislative Assemblies of the aforesaid States was notified by the

respondents ECI on 4th March, 2016 and the election process has thus begun.

Supreme Court as far back as in N.P. Ponnuswami Vs. Returning Officer

Namakkal Constituency AIR 1952 SC 64, in the context of the meaning to

be ascribed to the word „election‟ in Article 329(b) of the Constitution of

India held that it refers to the entire process which consists of several stages

and embraces many steps and that if any irregularities are committed while

election is in progress and they belong to the category or class which under

the law by which the elections are governed would have the effect of

vitiating the election and enable the person affected to call it in question,

they should be brought up before a special tribunal by means of an election

petition and not be made the subject of a dispute before any Court while the

election is in progress. In Supreme Court Bar Association Vs. B.D. Kaushik

(2011) 13 SCC 774 also it was reiterated that once election process has

started, the Court should not ordinarily interfere with the said process by

granting injunction and that the election process commences when the

schedule of the election is fixed. A Division Bench of this Court also

recently in Vijay Mahajan Vs. Akhil Bhartiya Mahajan Shiromani Sabha

MANU/DE/1769/2015 held that the election process commences after a list

of valid voters is drawn up and the process of finalizing the electoral roll

must precede the notification publishing the schedule of the election and the

schedule of the election would mean voters to be notified the dates on which

nomination forms can be obtained, the date by which nominations can be

filed, the date on which the nominations would be scrutinized, the date on

which list of eligible candidates would be published and followed lastly by

the date when the polling would be held and the date on which counting

would take place. A Division Bench of the High Court of Punjab and

Haryana also in Baldev Raj Vs. State of Punjab MANU/PH/1370/2008 held

that the schedule of the elections having been notified, the writ petitions

could not be entertained. An exhaustive discussion on the subject is also to

be found in the judgment of the Single Judge of this Court in Sekar @

Balasunderam Vs. Election Commission of India MANU/DE/0185/2002

where it was observed that though the writ petition had been filed on the

alleged ground of failure of the Election Commission of India to discharge

its constitutional obligation but in substance sought the relief of deferment of

elections and interfered with the election process and the writ petition would

thus be hit by bar under Section 329(b) of the Constitution of India.

12. This petition, first relief wherein is of stay of election, cannot be

entertained and the petition is liable to be dismissed on this ground alone.

13. The question of consideration of validity of the order dated 4th

February, 2016 of the respondents ECI would otherwise not arise, as under

the Election Symbols Amendment Order, common election symbol has to be

allotted to the recognized Political Party, only if they contest more than 5%

of the Assembly seats and the petitioner will have to make a fresh

application at the time of the next Assembly Elections, if contesting more

than 5% of the seats.

14. The petitioner of course has also impugned the Election Symbols

Amendment Order. The petitioner however forgets that if the Election

Symbols Amendment Order goes, then the petitioner as an unrecognized

Political Party would not be entitled to an election symbol per se. If

however the challenge thereto is confined to the second Proviso to paragraph

10B(A) thereof inter alia providing that symbols proposed shall not have any

religious or communal connotation, then also, I find no merit in the

challenge thereto. The Preamble of our Constitution secures to all the

citizens inter alia fraternity assuring the dignity of the individual and the

unity and integrity of the State and sets up India as a secular State and

prohibits discrimination on the grounds of religion. In this light, the

provision prohibiting election symbols having religious or communal

connotation cannot be found fault with.

15. I am even otherwise of the view that the challenge to the orders /

decisions of the respondents ECI can be on very limited ground. Supreme

Court in Election Commission of India Vs. Ashok Kumar (2000) 8 SCC

216 reiterated that power vested in a constitutional functionary like the

Election Commission is a trust and in view of the same having been vested

in high functionary can be expected to be discharged reasonably, with

objectivity and independence and in accordance with law. On an analysis of

the earlier judgments, it was further held that Representation of the People

Act, 1951 provides for only one remedy; that remedy being by an election

petition to be presented after the election is over and there is no remedy

provided at any intermediate stage and that the non-obstante clause with

which Article 329 opens, pushes out Article 226 where the dispute takes the

form of calling in question an election. It was observed that the founding

fathers of the Constitution have consciously employed the use of the words

"no election shall be called in question" in the body of Section 329(b) and

thus the words provide the determinative test for attracting applicability of

Article 329(b) and that if the petition presented to the Court „calls in question

an election‟, the bar of Article 329(b) is attracted; Else, the action taken or

orders issued by Election Commission are open to judicial review without

however interrupting, obstructing or delaying the progress of the election.

16. The petitioner here has not urged any ground to show any procedural

impropriety in the order impugned in this petition i.e. the communication

dated 4th February, 2016 and has also not alleged any bias and mala fide. I

even otherwise do not find any error in the decision of the respondents ECI

of, the three symbols proposed by the petitioner indeed having religious

connotation and the first association in the mind on seeing the symbols is

with the Hindu Religion and the symbols thus are clearly in contravention of

paragraph 10B supra and have been rightly denied to the petitioner. In fact,

Dr. Saiyid Mohd. Saadullah in the Constituent Assembly, while representing

the philosophy and the idea which our National Flag represents, debated that

the "emblem now embodied in our National Flag ought to remind every

administrator and every citizen of the federation of India that we should

forget the past and look to the future and try to carry on the tradition of that

Buddhist emperor Ashoka .........this Chakra was a religious emblem and we

cannot disassociate our social life from our religious environment." Supreme

Court in Mullapudi Venkata Krishna Rao Vs Vedula Suryanarayana 1993

Supp (3) SCC 504 held that the depiction of anyone in the attire of Lord

Krishna blowing a 'shanku' and quoting the words from the Bhagavad Gita

addressed by Lord Krishna to Arjuna, is to every Indian symbolic of Hindu

religion and the use thereof by a candidate would amount to use of a

religious symbol to prejudicially affect the election of the candidate of the

rival political party.

17. I may lastly refer to Kanhiya Lal Omar Vs. R.K. Trivedi (1985) 4

SCC 628 upholding the validity of the Election Symbols Order and holding

the same to be sustainable by Article 324(1) of the Constitution of India and

not unconstitutional. Similarly, in Krishna Mohini Vs. Mohinder Nath

Sofat (2000) 1 SCC 145 it was observed that the Scheme of Election

Symbols Order shows that it does not deal with unregistered political parties

and deals with registered political parties only. In Desiya Murpokku

Dravida Kazhagam Vs. Election Commission of India 2012 (7) SCC 340

the amendment of the year 2000 to the Election Symbols Order mandating

that in order to be recognized as a State party in the State, not less than 6%

of the total valid votes polled in the State should have been polled in favour

of the party and the party should have returned at least two members to the

Legislative Assembly of the State, was upheld. It was held that the decision

of the Election Commission setting down a benchmark for recognition as the

political party was not unreasonable.

18. No ground for entertaining the petition is thus made out.

Dismissed.

No costs.

RAJIV SAHAI ENDLAW, J.

MARCH 21, 2016 Bs/gsr..

(Corrected and released on 29th April, 2016)