Delhi High Court
T. T. V Dhinakaran vs The Election Commission Of India ... on 9 March, 2018
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 19.02.2018
Date of Decision: 09.03.2018
+ W.P.(C) 10728/2017 & C.M.Nos.4089/2018,43913/2017.
T. T. V DHINAKARAN .....PETITIONER
Through Mr. Kapil Sibal, Senior Advocate, Dr.
A.M. Singhvi, Senior Advocate, Ms.
Meeankshi Arora, Senior Advocate
with Mr.Vivek Singh, Mr. N. Raja
Senthoor Pandian, Mr. Amit Bhandari,
Mr.Mohit Paul, Advocates.
versus
THE ELECTION COMMISSION OF INDIA
AND ORS. ...RESPONDENT
Through Mr.P.R.Chopra, Advocate for
R-1.
Mr.Anwesh Madhukar with Mr.Anand
Kannan, Advocates for Applicant.
Mr.C.S.Vaidhyanathan, Senior Advocate for
R-3.
Mr.Guru Krishna Kumar, Senior Advocate
with Mr.Balaji Srinivasan, Ms.Vaishavani
Subrahmanyam, Ms.Pratiksha Mishra,
Mr.Abhishek Bharti, Ms.Sristhi Govil,
Mr.Ram Shankar, Advocates for R 2 & 4.
Mr.Mukul Rohatgi, Senior Advocate with
Ms.Diksha Rai with Ms.Palak Mahajan,
Advocates for R-5.
CORAM:
HON'BLE MS. JUSTICE REKHA PALLI
W.P.(C) 10728/2017 Page 1 of 45
JUDGMENT
REKHA PALLI, J
C.M.No.2994/2018(for interim relief)
1. This order disposes of an interim application preferred by the
Petitioner, who being aggrieved by the order dated 23rd November,
2017 passed by the Respondent No. 1/Election Commission of India
(hereinafter referred to as ECI), has challenged the same by way of a
writ petition under Articles 226 & 227 of the Constitution of India on
various grounds, including the plea that the decision of the
Respondent No. 1/ECI is based on fabricated and untested materials
produced by the Respondent Nos. 2 to 5, which the Petitioner was not
allowed to rebut. However, pleadings in the writ petition are yet to be
completed and though the Respondents have filed their counter
affidavits, the same are still not on record.
2. In these circumstances, the Petitioner has filed the present
application seeking the following directions:-
―a. Issue a direction to the Respondents to permit the
group led by the Petitioner and the Respondent No.6 to
use a suitable name for carrying out its political
activities, during the pendency of the present Writ
Petition;
b. Issue a direction to the Respondents,
permitting/allocating the group led by the Petitioner
herein and the Respondent No.6 to use the Symbol of
―Pressure Cooker‖ for the purpose of Local Bodies
Elections likely to be held in April, 2018 or any other
election, during the pendency of the present Writ
Petitions.‖
3. The background in which the present application has been
moved by the Petitioner is that vide the impugned order dated 23rd
November, 2017 (hereinafter referred to as Impugned Order), the
Respondent No. 1/ECI had decided the election dispute in favour of
the Respondent Nos. 2 to 5 and thereby held that the group led by the
Respondent No. 2 will be entitled to use the name of the party 'All
India Dravida Munnetra Khazagam (AIADMK)' and its reserved „Two
Leaves‟ symbol. The Petitioner submits that it is actually the
Petitioner and Respondent No. 6 who are the real leaders of the
AIADMK party and due to the Impugned Order, the Petitioner and his
group of cadres and leaders have been left without any name or
symbol and are, therefore, unable to ventilate their political aspirations
during the pendency of the writ petition. The Petitioner further points
out that due to the absence of any party name and symbol, he and his
group of leaders and supporters are not even being granted police
permission to organize political meetings as they do not have any
identifiable name.
4. The Petitioner claims in the present application that he not only
has an enormous support from the members and cadre of the
AIADMK party but also enjoys great support from the general public.
By placing reliance on an interim order dated 22.03.2017 passed by
the Respondent No. 1/ECI, it is contended that when the issue as to
which out of the two rival factions of the party would be entitled to the
name and symbol reserved for the party was pending, the Respondent
No. 1/ECI, while directing that none of the rival groups would be
permitted to use the name or symbol of the party, had directed that
both the groups would be known by such names as they may choose
for their respective groups and would also be allotted such different
symbols as they may choose from the list of free symbols issued by
the Respondent No. 1/ECI for the Assembly bye-election. The
Petitioner, therefore, claims that keeping in view the fact that this
Court is examining the legality of the Impugned Order and the
difficulties being faced by the Petitioners and his supporters to
ventilate their political aspirations in the absence of any name or
symbol, during the pendency of this Writ Petition, a similar order as
passed by Respondent No. 1/ECI on 22.03.2017 during the pendency
of the election dispute before it, may be passed by this Court to enable
the Petitioner and his supporters to effectively participate in political
activities.
5. Upon notice being issued in the present application, Respondent
No. 1/ECI has filed a short affidavit and has opposed the application
mainly on two grounds. The first ground being that since the group led
by the Petitioner is not a political party registered with Respondent
No. 1/ECI there is no question of the Respondent No. 1/ECI assigning
any name or symbol to the Petitioner or his group. The second plea
taken by Respondent No. 1/ECI is that since the real cause for the
Petitioner to file the present application is claimed to be the
forthcoming local body elections likely to be held in the State of Tamil
Nadu in April 2018, the Petitioner ought to approach the State
Election Commission of Tamil Nadu, which is the sole authority for
assigning names and symbols for local body/authority elections as the
Respondent No. 1/ECI has no role in conducting them.
6. Respondent Nos. 2 to 4 have filed a common reply, wherein
besides opposing the application on the ground of lack of territorial
jurisdiction by invoking the doctrine of forum conveniens, it has also
been contended that the allocation of a name and symbol to a political
party is a statutory power which is neither vested in a writ court nor
can be exercised by it. The Respondents, while denying the claim of
the Petitioner that he and Respondent No. 6 are the real leaders of the
AIADMK party, have contended that the present application is wholly
without any cause of action as the Petitioner and Respondent No. 6 are
free to carry out their political activities by registering themselves as a
political party and thereafter applying for a name and symbol in
accordance with the Election Symbols (Reservation & Allotment)
Order, 1968 (hereinafter referred to as Symbols Order) and there is no
reason why they should be allotted a symbol or name without applying
for registration as a political party.
7. Respondent No. 5 has also filed a similar reply, raising a
preliminary plea that the most convenient forum for agitating the
issues raised in this application are the Courts in Chennai, since all the
parties, except Respondent No. 1/ECI, are residents of the State of
Tamil Nadu. It has been further averred that the AIADMK party‟s
main sphere of influence is in the state of Tamil Nadu and the Union
Territory of Puducherry and the said party has been recognized as a
state party by the Respondent No. 1/ECI in the state of Tamil Nadu
and Puducherry. According to Respondent No. 5, the most proximate
connection to the issues raised and the parties involved in the present
petition, is with the High Court of Judicature at Madras, which is also
the forum conveniens to entertain the present application. It is also
contended that the relief sought by the Petitioner is beyond the scope
and powers of this Court, which is sitting only in judicial review of the
order passed by the Respondent No. 1/ECI. It is further stated that
under the Representation of the People Act (hereinafter referred to as
the Act) and the Symbols Order, even the Respondent No. 1/ECI does
not have any power to give a name or symbol to a group of persons
who are not registered as a political party. The emphasis of
Respondent No. 5's reply is that the Petitioner can only be granted a
name and a symbol in accordance with the provisions of the Act and
Symbols Order. Another ground urged by Respondent No. 5 to oppose
the application is that this Court, vide its order dated 04.12.2017, had
already considered the impact of the Symbols Order and had declined
to grant any interim order allotting the symbol of "Hat" to the
Petitioner, as had been claimed by him. Respondent No. 5 has also
contended that the Impugned Order passed by the Respondent No.
1/ECI clearly shows that the group led by the Petitioner comprises
only of 150 members of the total 2140 members of the AIADMK
party and, thus, it had become clear that there was only one original
party and there was no group within the party, as is being claimed by
the Petitioner.
8. Arguing for the Petitioner, Mr. Kapil Sibal, learned Senior
Counsel, at the outset states that there is no reason for any of the
Respondents to oppose the Petitioner's application, since the relief
sought by the Petitioner causes no prejudice to any of the
Respondents. He submits that even otherwise, the present proceedings
are merely a continuation of the proceedings before the Respondent
No. 1/ECI, and since a similar relief was granted by the Respondent
No. 1/ECI itself, vide its interim order dated 22.03.2017 in Dispute
Case No. 2 of 2017, there can possibly be no objection from any party
to a similar relief being granted at this stage of the proceedings. Mr.
Sibal further urges that when the group led by Respondent No. 3 had
approached Respondent No.1/ECI during the pendency of the election
dispute for interim orders, their situation was similar to the situation of
the Petitioners at the time of approaching this court. He submits that at
the time of approaching Respondent No. 1/ECI, the support received
by both the rival factions from the legislative wing of AIADMK was
as follows:
I. 12 MLAs out of 134 of the AIADMK supported the faction led
by Respondent No. 3 while 122 MLAs supported the Petitioner-
led-faction.
II. 37 out of 50 Members of Parliament of the AIADMK were in
support of the Petitioner-led-faction.
9. With reference to the Impugned Order, Mr. Sibal submits that
the numerical strength of the two rival factions, at the time of
approaching this Court, was as follows:
I. 111 MLAs out of 134 MLAs of the AIADMK supported the
faction led by Respondent No. 3 and 20 MLAs supported the
Petitioner-led-faction.
II. 6 out of 50 Members of Parliament of AIADMK were in
support of the Petitioner-led-faction.
10. Highlighting the similarity in both the situations, when the
Petitioner and the Respondent Nos. 2 to 4 had approached the
Respondent No.1/ECI and this Court respectively in almost converse
positions, Mr. Sibal submits that since in a similar situation
Respondent No. 1/ECI had, in this dispute itself, granted a relief
similar to the one sought by the Petitioner in the present application,
its position before this court is inconsistent with the approach adopted
by it in this case itself. He submits that by opposing this application,
the Respondents are trying to force the Petitioner to register the group
led by him as a separate political party, thereby giving up his claim in
the main Writ Petition to the AIADMK name and its "Two Leaves"
symbol. Mr. Sibal contends that as long as the Petitioner's claim on
the "Two Leaves" symbol is pending, he cannot be forced to register a
new political party.
11. Mr. Sibal further contends that the group led by the Petitioner
has a fundamental right under Article 19(1)(c) of the Constitution of
India to form an association and, since a political party is merely an
association of persons, there is a fundamental right of a political
faction to form an association to carry out all its political activities,
including carrying out any political campaign. He contends that no
political party or faction thereof can carry out any political campaign
without a name and without associating the name of such faction with
a symbol, since in the Indian electorate, which consists of literate and
illiterate individuals, an elector votes mainly on the basis of symbols.
12. Mr. Sibal further contends that in the event this Court were to
not grant a name and symbol to the Petitioner's faction, it would
amount to the Petitioner, not having any remedy in the eyes of law
against the decision of Respondent No.1/ECI, as the Petitioner would
be forced to register a new political party to exercise his right to form
a functional political association, and thereby give up his claim and
render his own petition infructuous.
13. Mr. Sibal further contends that the relief sought by the present
application is not in any way limited to a particular election but is
being sought for conducting all political activities during the pendency
of the present Writ Petition. While drawing this Court's attention to
Prayer (a) in the Application, where a direction to the Respondent No.
1/ECI to permit the Petitioner-led-faction to use a suitable name for
carrying out its political activities has been sought, as also to Prayer
(b), where a direction has been sought enabling the use of the 'Pressure
Cooker' symbol by the Petitioner-led-faction for the purposes of the
local body election or 'any other election' during the pendency of the
Writ Petition, Mr. Sibal submits that during the proceedings before the
Respondent No.1/ECI, even after the proposed election was
countermanded on 9.04.2017, the interim order dated 22.03.2017 was
still continued by Respondent No.1/ECI by its order dated 20.04.2017.
Mr. Sibal further submits that this goes to show that even in the event
of no impending election, the Respondent No. 1/ECI had extended the
interim relief granted by it to allow both the factions to conduct their
political activities during the pendency of the election dispute. He,
thus, contends that in light of the order dated 20.04.2017 of
Respondent No. 1/ECI, the Respondents cannot now take the stand
that since there are no impending elections, the Petitioner-led-faction
cannot be granted a name and symbol to conduct its political activities.
14. As regards the power of this Court to grant the relief prayed for
by the Petitioner, Mr. Sibal submits that this Court, while exercising
its writ jurisdiction under Articles 226 and 227, has the power to do
complete justice qua the parties and hence can grant the interim relief
so prayed for by the Petitioner. To buttress this argument he relies on
interim orders passed by the Supreme Court of India in WP(C)
177/2009 titled Viduthalai Chiruthaigal Katchi v Election
Commission of India and W.P(C) 532/2008 titled Desiya Murpokku
Dravida Kazagham & Anr. v Election Commission of India, in which
an interim arrangement has been made by the Supreme Court by
allotting a symbol to registered unrecognised political parties for a
limited period.
15. Mr. Sibal has further attempted to distinguish the present
Application from the earlier CM No.43911/2017 in this writ petition,
which was disposed of by this Court vide its order dated 04.12.2017
by rejecting the Petitioner‟s prayer for grant of a particular symbol and
instead directed the Petitioner to approach the Returning Officer to
consider his request as per the procedure laid down in Clause 12 of the
Symbols Order. He contends that the order dated 04.12.2017 was
passed by this Court in a situation where the notification for conduct
of elections to the RK Nagar Election had already been issued and the
Petitioner had already approached the Returning officer, whereas the
present situation shows that the Petitioner has already won the RK
Nagar Assembly election by a margin of 40,000 votes while
campaigning under the 'Pressure Cooker' symbol. He, thus, submits
that the present Application raises an issue which is materially
different from the issue decided by this Court on 04.12.2017.
16. Dr. Abhishek Manu Singhvi, who appears for the Petitioner in
the connected writ petition, also supports the Application of the
Petitioner herein and submits that the Petitioner-led-faction has a
fundamental right to form an association and conduct political
activities, which the Respondents, by objecting to this Application, are
attempting to stall. It is his contention that a democratic form of
government has been read into the basic structure of the constitution.
He further submits that since the existence of political parties is
implicit in the nature of democracy, the group led by the Petitioner,
which is a rival faction of the present form of AIADMK, has a
fundamental right to take part in the democratic process by associating
under a common symbol for conducting political activities, while their
rights are being determined in this Court. If the Petitioner's faction, he
states, is not granted a common symbol under which it can campaign
and associate with the common public, the Petitioner's Fundamental
Right as guaranteed under Article 19(1)(c) shall stand abrogated. To
fortify this argument he places reliance on the judgment of the
Supreme Court in Kanhiya Lal Omar v R. K. Trivedi (1985) 4 SCC
628.
17. Dr. Singhvi also contends that the interim reliefs prayed for
would not prejudice the rights of any party and, in fact, if the same is
not allowed, it would cause irreparable harm to the Petitioner. He
submits that it is apparent that the only reason the Respondents have
so vehemently objected to this Application is to delay and frustrate the
political rights of the Petitioner. He contends that since the Impugned
Order has allowed the Respondent Nos. 2 to 5 to campaign politically
under the AIADMK party name and the "Two Leaves" symbol, if the
Petitioner-led-faction (which still consists of a considerable number of
persons associated with the AIADMK and still lays a claim to the
AIADMK name and the "Two Leaves" symbol) is not granted a name
and symbol under which it can campaign as a unified group, it would
create a non-level playing field in Tamil Nadu politics in favour of the
Respondents. He further submits that it is necessary for a political
party or a faction to associate itself with the public via political
campaigns and other political activities, for which it needs a common
name and symbol, and contends that the more this process is delayed,
the greater would be the irreparable harm caused to the Petitioner. He
contends that the relief sought by the Petitioner is merely a
correctional measure for the imbalance created by the Impugned Order
which, if granted, would result in the creation of a level playing field
and restoration of political equilibrium in Tamil Nadu politics.
18. Dr. Singhvi further contends that there is no bar on such an
interim relief, as is being contended by the Respondents, and on the
other hand submits that since this is an unoccupied field of law, with
no precedents to guide this court, the burden to demonstrate any such
prohibition, which would need to be specific and unequivocal to limit
the powers of a writ court, lies on the persons asserting the existence
of the same, i.e. the Respondents. His submission, thus, is that this
burden has not at all been discharged by the Respondents, who have
not been able to bring to the notice of this Court any such specific
prohibition which would bar this Court from allowing the interim
arrangement sought by the Petitioner.
19. Dr. Singhvi finally contends that since the present Application
seeks an interim relief, this court should examine whether, once a
prima facie case has been established by the Petitioner, the balance of
convenience is in his favour and/or whether irreparable loss will be
caused to him if such a relief is not granted. He states that since notice
has already been issued in the writ petition, it is evident that a prima
facie case has been established by the Petitioner. What is now to be
considered is whether the balance of convenience is in the Petitioner‟s
favour and whether irreparable harm would be caused to him if his
prayer is rejected by this Court. His plea, thus, is that it is necessary
for the creation of a level playing field in Tamil Nadu politics,
between the Petitioner and the Respondent Nos. 2 to 5, that the
Petitioner's Application is allowed. He contends that in the event the
relief sought is not granted to the Petitioner, the Respondent Nos. 2 to
5 will get an unfair advantage over the Petitioner-led-faction, during
the pendency of the determination of their rights in this Court. On the
aforesaid premise, he asserts that the above two conditions have been
met by the Petitioner for the grant of the interim relief sought in this
Application. He has also placed reliance on the decision of the
Supreme Court in the case of Ramesh Chandra Sankla & Ors v.
Vikram Cement & Ors. (2008) 14 SCC 58 in support of his plea that
the power of this Court under Article 227 of the Constitution is very
wide and must be used to advance the ends of justice.
20. On the other hand, Mr. P. R. Chopra, learned counsel for the
Respondent No.1/ECI, while opposing the Application submits that
the Petitioner-led-faction is not entitled to have a reserved symbol
allotted to it because such a symbol can only be reserved for a
recognised political party for exclusive allotment to the contesting
candidates set up by that party. He places reliance on Paragraph 5 of
the Symbols Order which lays down the classification of symbols into
"free" and "reserved" symbols. He also relies on Paragraphs 6A, 6B
and 6C of the Symbols Orders to contend how the Petitioner-led-
faction is not a recognised political party and, even if it were to
register itself as a political party, it would not meet the criteria as
prescribed in Paragraphs 6A and 6B of the Symbols Orders so as to
entitle it to reserve a symbol for its exclusive use. To buttress this
point he relies on the order dated 19.12.1997 passed by the
Respondent No.1/ECI in In Re: Rashtriya Janata Dal-Application
for its Recognition as a National Party. His submission, thus, is that
since the Petitioner-led-faction is not a recognised political party but
merely a splinter group, there is no provision as per law that can
entitle them to seek reservation of a symbol for their exclusive use.
21. Arguing for Respondent No. 3, Mr. C. S. Vaidyanathan,
Learned Senior Advocate, at the outset contends that this Court does
not have territorial jurisdiction to entertain the Writ Petition on the
ground of the principle of forum non-conveniens. He submits that the
political party AIADMK, in respect of which this entire dispute has
arisen, is a registered political party i.e. recognised in the State of
Tamil Nadu and Puducherry. Further, he submits that all the parties to
the present Petition, except Respondent No.1/ECI, are based in Tamil
Nadu. He also refers to a number of suits arising out of disputes
concerning the AIADMK party, which are stated to be pending in the
Madras High Court. He, thus, contends that only the Madras High
Court has the jurisdiction to entertain the writ petition in which the
present Application has been filed. He relies in this regard on the
decision of the Supreme Court in Kusum Ingots & Alloys Ltd. v
Union Of India (2004) 6 SCC 254 and the observations of this Court
in the case of Sterling Agro Industries Ltd. & Ors v. Union of India
& Ors. AIR 2011 Delhi 174.
22. Mr. Vaidyanathan further submits that the immediate cause for
filing this interim Application, as represented by the Petitioner, is the
impending election to the local bodies in the month of April 2018,
which submission according to him is factually incorrect as, till date,
no notification for any election has been issued. He, therefore,
contends that there is no immediate cause to file the present
Application. He contends that even otherwise, the Respondents have
not, in any manner, prevented the Petitioner from conducting his
political activities, but the same cannot be allowed to be carried out at
the expense of the identity of the original AIADMK party. He
contends that if the Petitioner-led-faction seeks a common identity, the
Petitioner can register a political party. He further submits that the
pendency of a challenge to the Impugned Order, cannot be a ground to
exempt the Petitioner from following the statutory procedure laid
down for allotment of symbols.
23. Mr. Vaidyanathan further contends that there exists a procedure
prescribed by law for a group to register as a political party and
thereafter reserve a name and symbol for itself. The said procedure is
prescribed under the Act, the Symbols Order and the Tamil Nadu
Local Bodies Election Symbols (Reservation and Allotment) Order,
2016 (hereinafter referred to as the State Symbols Order). He contends
that the Petitioner, by preferring this Application, is attempting to
circumvent the prescribed procedure and any such relief, as sought by
the Petitioner, would violate the Act, Symbols Order and the State
Symbols Order. He further submits that the law contemplates only
splinter groups within a political party and once, either of the said
groups is found to be the original party, there cannot be a splinter
group arraying itself against the original political party, which would
go against the very basic idea behind political parties as envisaged in
the Act and the Constitution of India. He has also placed reliance on a
decision of the Supreme Court in K. Prabhakaran v P. Jayarajan
[(2005) 1 SCC 754] to contend that persons like Respondent No. 6,
who have criminal backgrounds, ought to be prevented from entering
politics and his submission, thus, is that even on this ground the
Petitioner is not entitled to any discretionary relief from this Court.
24. The final submission of Mr. Vaidyanathan is that the
proceedings before this Court are not in the nature of an appeal, but in
the nature of a judicial review of the order of the Respondent No.
1/ECI and, therefore, cannot be termed as a continuation of the
proceedings before Respondent No. 1/ECI, as has been urged by the
Petitioner. He further contends that since the right to contest an
election is merely a statutory right and not a fundamental right, such
an interim relief cannot be granted even under Articles 226 & 227 of
the Constitution of India, under which the Petitioner has approached
this court.
25. Arguing for Respondent No. 5, Mr Mukul Rohatgi, learned
Senior Advocate, besides reiterating the submissions made by Mr.
Vaidyanathan, contends that the only manner in which a group can
seek a symbol is by following the procedure prescribed in the Act and
Symbols Orders. He also contends that there has been no material
change in circumstances since 04.12.2017, when this court had passed
an order rejecting the Petitoner's interim prayer to continue the interim
order dated 22.03.2017 passed by the Respondent No. 1/ECI allowing
the Petitioner to use the "Hat" symbol for contesting elections. He
contends that the Petitioner's prayer in the present Application is no
different from what was sought by him in the application which was
disposed of by this Court on 04.12.2017. The Petitioner, he contends,
is trying to agitate a stale claim under the garb of altered
circumstances, while there has been no change as such.
26. Mr. Rohatgi further contends that the Petitioner's claim, that the
rejection of this Application would lead to an abrogation of his
fundamental rights, is without any basis. He submits that there is no
fundamental right provided under the Constitution to contest elections,
and the same is only a statutory right emanating primarily from the
Act, which can be exercised only as per the statutory provisions
creating the said right. He submits that the Petitioner has tried to
colour his right in such a manner so as to seek a relief from this Court
under its writ jurisdiction, which otherwise he would not be entitled
to.
Mr. Rohatgi also contends that the reliance by the Petitioner on
the interim orders passed by the Respondent No. 1/ECI during the
pendency of the election dispute before it, is wholly misconceived.
He submits that the Respondent No. 1/ECI is a specialized tribunal
dealing with election disputes and has very wide and plenary powers
in such matters, whereas this Court cannot sit as an appellate court
while exercising its power of judicial review and pass orders similar to
the interim orders passed by the Respondent No. 1/ECI. Mr. Rohatgi
also reiterates the plea that this Court does not have territorial
jurisdiction to entertain the present Petition and Application by
invoking the principle of forum non-conveniens, and contends that
once all but one of the parties is situated within the jurisdiction of the
Madras High Court, the Petitioner is not justified in approaching this
Court, especially when various other disputes between the same
parties are pending before the Madras High Court.
27. Arguing for Respondent Nos. 2 & 4, Mr. Guru Krishnakumar,
learned Senior Advocate, has also stressed that there is no provision in
law to reserve a symbol for a group of people who have no statutory
recognition as a political party. He has brought to the notice of the
court the State Symbols Order, which provides for the specifications,
reservation, choice and allotment of symbols at elections to local
bodies in the State of Tamil Nadu and for matters connected therewith.
He draws our attention to Paragraphs 2 (i) and 2 (d) of the State
Symbols Order and submits that the State Symbols Order, similar to
the Symbols Order, creates a dual classification of symbols as "free
and "reserved" symbols and allows for grant of a reserved symbol only
to recognised political parties. He further refers to Paragraphs 2 (h),
2(j) and 2(k) to establish that the Petitioner is not in any way covered
by the definition of a "political party" let alone a "recognised political
party". His contention thus is that the Petitioner is seeking a direction
to do something which is contrary to law.
28. Mr. Krishnakumar submits that the Petitioner's plea that the
Respondent No. 1/ECI is precluded from objecting to the interim
arrangement prayed for by the Petitioner in the present Application,
since it had allotted both the rival factions a name and symbol for their
exclusive use during the pendency of the election dispute before it
(which arrangement is similar to the one being prayed for in this
Application), is wholly without any basis. He submits that the
situation in which the interim order dated 22.03.2017 was passed by
the Respondent No. 1/ECI, was materially different in comparison to
the situation in which the Petitioner has approached this Court through
this Application. At that time, no decision qua the rights of the parties
to use the AIADMK name and the "Two Leaves" symbol had been
taken and there was an impending bye-election in the RK Nagar
Constituency. Hence, an interim arrangement was necessary to protect
the rights of the parties. Further, as per the Respondent No. 1's/ECI's
interim arrangement, neither party was allowed to use the "Two
Leaves" symbol and the AIADMK party name. On the contrary, in the
current situation, the Respondent Nos. 2 to 5 have been held to be the
AIADMK party and have been granted the right to use the AIADMK
party name and the "Two Leaves" symbol. Further, since there is no
impending election in the near future, it is evident that equivalence
cannot be drawn by the Petitioners with the interim order dated
22.03.2017.
29. Mr. Krishnakumar finally submits that if the Petitioner is
apprehensive about prejudicing his claim in the current petition by
registering his group as a political party, he can seek protection from
this Court before approaching the Respondent No. 1/ECI.
30. Having heard the learned counsel for the parties at length and
having perused the record, I find that, though great pains have been
taken by learned counsel for the Respondents to contend that the relief
sought in the present Application is not only de hors the statutory
scheme of the Symbols Order but is also beyond the power of this
Court while exercising judicial review under Articles 226 and 227 of
the Constitution of India, the issue arising for my consideration in the
present interim Application is not about the prescribed procedure for
recognition of a political party and allotment of a symbol to the party,
but is slightly different.
31. In my considered opinion, the primary issue arising in the
present Application is whether after the Election Commission of India
has come to a conclusion as to which of the two rival factions would
be entitled to the name and symbol reserved for the AIADMK party
(by exercising its jurisdiction under Paragraph 15 of the Symbols
Order), should the unsuccessful faction be asked to first register itself
as a new political party and seek recognition from the Election
Commission of India and only then carry out its political activities,
even while its challenge to the Election Commission of India‟s order
is pending adjudication before this Court?
32. The other connected issue would be whether, in view of the
Respondent No. 1's/ECI's interim orders (in which the Respondent No.
1/ECI had granted the rival factions the right to use a party name and
free symbol of their choice, without requiring them to follow the
otherwise mandatory procedure under the Act and the Symbols Order,
to carry out their respective political activities during the pendency of
the election dispute before it), would this Court be denuded of its
power to pass a similar interim order/relief in a substantially similar
claim/situation between the two parties, merely because it is not
exercising its appellate but writ jurisdiction under Articles 226 and
227 of the Constitution of India.
33. Another ancillary issue on which great emphasis has been
placed by the learned Senior Counsel for the private Respondents is
whether this Court has the territorial jurisdiction to entertain the
present Application, in the light of the admitted position that this
Court has upon hearing both parties at the admission stage, already
issued notice in the writ petition, wherein pleadings are yet to be
completed.
34. Before dealing with the rival contentions of parties, it would be
appropriate to set out the brief facts leading to the filing of the writ
petition in which the present Application has been filed. It emerges
from the record that after the death of its General Secretary and the
then Chief Minister of Tamil Nadu, Dr. J. Jayalalitha, on 05.12.2016,
an internal dispute arose in the All India Anna Dravida Munnetra
Kazhagam (hereinafter referred to as the AIADMK), a State
recognized political party in the state of Tamil Nadu and Union
Territory of Puducherry. The AIADMK party had been allotted the
"Two Leaves" symbol as its reserved symbol in Tamil Nadu and
Puducherry by the Respondent No. 1/ECI under the provisions of the
Symbols Order. On 16.03.2017, Respondent Nos. 2 to 4 filed a
petition under Paragraph 15 of the Symbols Order before Respondent
No. 1/ECI (registered as Dispute Case No. 2 of 2017) challenging the
appointment of Respondent No. 6 (Smt. V.K. Sasikala) as the General
Secretary of the AIADMK party on 29.12.2016, and sought a direction
to allot the reserved "Two Leaves" symbol of the AIADMK party to
the political group led by Respondents Nos. 2 to 4.
35. During the pendency of aforesaid Dispute Case, Respondent
No. 1/ECI passed an interim order dated 22.03.2017 prohibiting both
the rival groups (i.e., the group led by the Petitioner and Respondent
No. 6 on the one hand, and the group led by the Respondent Nos. 2 to
4 on the other hand) from using the AIADMK party name and its
reserved "Two Leaves" symbol, and directed that both the groups be
allotted such names and symbols, as they may choose for their
respective groups, from the list of free symbols notified by the
Respondent No. 1/ECI for the purposes of the Bye-Election from II-
Dr. Radhakrishna Nagar Assembly Constituency in Tamil Nadu. The
said bye-election was initially slated to be held in April 2017, but was
subsequently postponed to December 2017. Consequently, the Group
led by the Petitioner was allotted the Symbol "Hat" and the name "All
India Anna Dravida Munnetra Kazhagam (Amma)". Upon passing
of the Impugned Order, which is the subject of the present Writ
Petition, the interim order passed on 22.03.2017 stood vacated and
consequently, the Petitioner and his group were left without any name
or symbol.
36. At this stage, it may also be noted that while preferring the
present Writ Petition, the Petitioner had filed an Application being
C.M. No.43904/2017 seeking a direction that the "Hat" symbol, which
had been allotted to him vide the interim order dated 22.03.2011
passed by Respondent No. 1/ECI, may be continued to be retained by
him and he may be permitted to use the same in the bye-elections for
the R.K. Nagar Assembly Constituency, which bye-elections were
then slated for April 2017. This court disposed of the Petitioner‟s
Application vide its order dated 04.12.2017 directing the Returning
Officer to consider the request of the Petitioner already pending with
him, for allotment of the symbol "Hat". The Returning Officer,
however, after rejecting the Petitioner‟s request for allotment of the
symbol "Hat" allotted him the symbol "Pressure Cooker", with which
he contested the bye-election in the R.K. Nagar Assembly
Constituency as an independent candidate and won the same with a
huge margin.
37. In light of these facts, the Petitioner has approached this Court
vide this Application seeking an interim arrangement directing the
Respondents to permit the group led by the Petitioner to use a suitable
name and to use the symbol of "Pressure Cooker" for carrying out its
political activities and contesting elections during the pendency of the
proceedings before this Court.
38. At this stage, it would be appropriate to refer to the relevant
provisions of the Symbols Order, which regulates the mode and
requisite conditions for allotting symbols to individuals and political
parties. The relevant paragraphs for determining the issues raised in
the present Application are reproduced hereinbelow:-
―2. Definitions and interpretation..--(1) In this Order, unless
the context otherwise requires, --
(a) to (c) xxx
(d) contested election‖ means an election in a
parliamentary or an assembly constituency where a poll is
taken;
(e) to (g) xxx
(h) "political party" means an association or body of
individual citizens of India registered with the Commission as a
political party under section 29A of the Representation of the
People Act, 1951.
(i) ―State‖ includes the National Capital Territory of Delhi
and the Union Territory of Pondicherry;
(j) "Sub-paragraph‖ means a sub-paragraph of the
paragraph in which the word occurs;
(jj) ―Union Territory‖ means Union Territory other
than the National Capital Territory of Delhi and the Union
Territory of Pondicherry; and
(k) Words and expressions used but not defined in this
Order but defined in the Representation of the People Act,
1950, or the rules made thereunder or in the Representation of
the People Act, 1951, or the rules made thereunder shall have
the meanings respectively assigned to them in those Acts and
Rules.
4. Allotment of symbols - In every contested election a
symbol shall be allotted to a contesting candidate in
accordance with the provisions of this Order and different
symbols shall be allotted to different contesting candidates at
an election in the same constituency.
5. Classification of symbols.--
(1) For the purpose of this Order symbols are either reserved
or free.
(2) Save as otherwise provided in this Order, a reserved symbol
is a symbol which is reserved for a recognised political party
for exclusive allotment to contesting candidates set up by that
party.
(3) A free symbol is a symbol other than a reserved symbol.
6. Classification of political parties - (1) For the
purposes of this Order and for such other purposes as the
Commission may specify as and when necessity therefore
arises, political parties are either recognised political parties
or unrecognised political parties.
(2) A recognised political party shall either be a National
party or a State party.
6A. Conditions for recognition as a State Party - Apolitical
party shall be eligible for recognition as a State party in a
State, if, and only if, any of the following conditions is fulfilled:
(i) At the last general election to the Legislative Assembly
of the State, the candidates set up by the party have secured not
less than six percent of the total valid votes polled in the State;
and, in addition, the party has returned at least two members to
the Legislative Assembly of that State at such general election;
or
(ii) At the last general election to the House of the People
from that State, the candidates set up by the party have secured
not less than six percent of the total valid votes polled in the
State; and, in addition, the party has returned at least one
member to the House of the People from that State at such
general election; or
(iii) At the last general election to the Legislative Assembly of
the State, the party has won at least three percent of the total
number of seats in the Legislative Assembly, (any fraction
exceeding half being counted as one), or at least three seats in
the Assembly, whichever is more; or
(iv) At the last general election to the House of the People from
the State, the party has returned at least one member to the
House of the People for every 25 members or any fraction
thereof allotted to that State;] or
(v) At the last general election to the House of the People from
the State, or at the last general election to the Legislative
Assembly of the State, the candidates set up by the Party have
secured not less than eight percent of the total valid votes
polled in the State.
6B. Conditions for recognition as a National Party - A
political party shall be eligible to be recognized as National
party, if, and only if, any of the following conditions is fulfilled:
(i) The candidates set up by the party, in any four or more
States, at the last general election to the House of the People,
or to the Legislative Assembly of the State concerned, have
secured not less than six percent of the total valid votes polled
in each of those States at that general election; and, in
addition, it has returned at least four members to the House of
the People at the aforesaid last general election from any State
or States; or
(ii) At the last general election to the House of the People,
the party has won at least two percent of the total number of
seats in the House of the People, any fraction exceeding half
being counted as one; and the party's candidates have been
elected to that House from not less than three States; or
(iii) The party is recognized as State party in at least four
States.
6C. Conditions for continued recognition as a National or
State party - If a political party is recognised as a State party
under paragraph 6A, or as a National party under paragraph
6B, the question whether it shall continue to be so recognised
after any subsequent general election to the House of the
People or, as the case may be, to the Legislative Assembly of
the State concerned, shall be dependent upon the fulfillment by
it of the conditions specified in the said paragraphs on the
results of that general election.
8. Choice of symbols by candidates of National and State
Parties and allotment thereof -
(1) A candidate set up by a National Party at any election in
any constituency in India shall choose, and shall be allotted,
the symbol reserved for that party and no other symbol.
(2) A candidate set up by a State Party at an election in any
constituency in a State in which such party is a State Party,
shall choose, and shall be allotted the symbol reserved for that
Party in that State and no other symbol.
(3) A reserved symbol shall not be chosen by, or allotted to, any
candidate in any constituency other than a candidate set up by
a National Party for whom such symbol has been reserved or a
candidate set up by a State Party for whom such symbol has
been reserved in the State in which it is a State Party even if no
candidate has been set up by such National or State Party in
that constituency.
12. Choice of symbols by other candidates and allotment
thereof.--(1) Any candidate at an election in a constituency in
any State or Union territory, other than--
(a) a candidate set up by a National Party; or
(b) a candidate set up by a political party which is a
State Party in that State; or
(c) a candidate referred to in paragraph 10 or
paragraph 10A;
shall choose, and shall be allotted, in accordance with the
provisions hereafter set out in this paragraph, one of the
symbols specified as free symbols for that State or Union
territory by notification under paragraph 17.
(2) Where any free symbol has been chosen by only one
candidate at such election, the returning officer shall allot that
symbol to that candidate and to no one else.
(3) Where the same free symbol has been chosen by several
candidates at such election, then--
(a) if of those several candidates, only one is a
candidate set up by an unrecognised political party
and all the rest are independent candidates, the
returning officer shall allot that free symbol to the
candidate set up by the unrecognised political party,
and to no one else; and, if, those several candidates,
two or more are set up by different unrecognised
political parties and the rest are independent
candidates, the returning officer shall decide by lot to
which of the two or more candidates set up by the
different unrecognised political parties that free
symbol shall be allotted, and allot that free symbol to
the candidate on whom the lot falls, and to no one
else:
Provided that where of the two or more such candidates set up by
such different unrecognized political parties, only one is, or was,
immediately before such election, a sitting member of the House of
the People, or, as the case may be, of the Legislative Assembly
(irrespective of the fact as to whether he was allotted that free
symbol or any other symbol at the previous election when he was
chosen as such member), the returning officer shall allot that free
symbol to that candidate, and to no one else;
(b) if, of those several candidates, no one is set up by any
unrecognised political party and all the independent
candidates, but one of the independent candidates is, or was,
immediately before such election a sitting member of the House
of the People, or, as the case may be, of the legislative
Assembly, and was allotted that free symbol at the previous
election when he was chosen as such member, the Returning
Officer shall allot that free symbol to that candidate, and to no
one else; and
(c) if, of those several candidates, being all independent
candidates, no one is, or was, a sitting member as aforesaid,
the returning officer shall decide by lot to which of those
independent candidates that free symbol shall be allotted, and
allot that free symbol to the candidates on whom the lot falls,
and to no one else.
15. Power of Commission in relation to splinter groups or
rival sections of a recognised political party - When the
Commission is satisfied on information in its possession that
there are rival sections or groups of a recognised political
party each of whom claims to be that party, the Commission
may, after taking into account all the available facts and
circumstances of the case and hearing such representatives of
the sections or groups and other persons as desire to be heard,
decide that one such rival section or group or none of such
rival sections or groups is that recognised political party and
the decision of the Commission shall be binding on all such
rival sections or groups.
39. In the light of the submissions made by the learned counsel for
the parties as also the provisions of the Symbols Order, there can be
no doubt, as is sought to be contended by the learned counsel for the
Respondents, that the allotment of symbols is governed by the
Symbols Order issued by the Respondent No. 1/ECI. There can also
be no doubt that no party or individual has an absolute right to ask for
a particular symbol. There can be no doubt that even though the right
to elect is fundamental to a democracy, it is not a Fundamental Right
under the Constitution and even the right to obtain a symbol is only a
statutory right which, by virtue of the very nature of the right, has to
be subject to the statutory limitations imposed by the Symbols Order
itself, challenge whereto has already been negated by the Apex Court
in Sadiq Ali & Anr v. The Election Commission of India & Ors.
[(1972) 4 SCC 664]. Therefore, there is no gainsaying that before a
party or individual can be allotted a symbol it has to fulfill the
mandatory requirements prescribed in the Symbols Order and Section
29(A) of the Act.
40. There is also merit in the contention raised by the learned
counsel for the Respondents that, only after a group completes the
modalities of applying to the Respondent No. 1/ECI for registration as
a political party under Section 29(A) of the Act, furnishes positive
evidence of its strength to the Respondent No. 1/ECI and furnishes
documents in relation to the votes polled by its members in the last
general elections, can it claim the allotment of a reserved symbol.
Learned counsel for both the Respondent No. 1/ECI and Respondent
Nos. 2 to 5 have referred to various orders passed by the Respondent
No. 1/ECI to contend that in the past, whenever two factions have
arisen in a recognized party, the only manner in which the splinter
group can be allotted a symbol is by following the uniform procedure
prescribed in the Symbols Order. The Symbols Order envisages that a
political party, howsoever formed, should first get itself registered as
per the procedure under Section 29(A) of the Act, whereafter it has to
show the minimum poll performance, as laid down in the Symbols
Order, for recognition as a National or State Party. It is only then that
a party can seek allotment of a reserved symbol by the Respondent
No. 1/ECI.
41. In this context, it may also be appropriate to refer to the
decision of the Hon‟ble Supreme Court in the case of Subramanian
Swamy v. Election Commission of India through its Secretary
[(2008) 14 SCC 318], wherein the Supreme Court, after examining the
provisions of the Act and the Symbols Order, upheld the allotment of
reserved symbols only to recognised political parties by observing in
para 22 as under:-
"22. Learned counsel for the Respondent is undoubtedly
correct in arguing that concept of recognition is inextricably
connected with the concept of symbol of that party. It is but
natural that a party must have a following and it is only a
political party having substantial following in terms of Paras
6-A, 6-B and 6-C which would have a right for a reserved
symbol. Thus, in our opinion, it is perfectly in consonance with
the democratic principles. A party which remains only in the
records can never be equated and given the status of a
recognised political party in the democratic set up. We have,
therefore, no hesitation in rejecting the argument of Dr. Swamy
that in providing the symbols and reserving them for the
recognised political parties alone amounted to an
undemocratic act.‖
42. At this stage, reference may also be made to the following
observations of the Election Commission in its order passed in
Rashtriya Janata Dal-Application for its Recognition as a National
Party dated 19.12.1997, on which reliance has been placed by Learned
counsel for the Respondent No. 1/ECI:-
―15. Therefore, the Commission has now, unanimously,
decided, as a policy matter, that the provisions of paras 6
land 7 of the Symbols Order would be strictly applied
hereafter, and a political party which is formed as a result of
split in a recognised National or State party, would not be
straightaway recognised merely on the ground that it is a
break-away or splinter group of a recognised party and that
such group enjoys the support of certain MPs and MLAs.
Such new party shall hereafter have to get itself registered
under Section 29A of the Representation of the People Act,
1951, contest a general election on its own manifesto, policies
and programmes and obtain a mandate from the electorate
for its recognition in terms of paragraphs 6 and 7 of the
Symbols Order.
16. Having regard to such policy the prayer of the present
applicant party for recognition as a National party under
paras 6 and 7 of the Symbols Order cannot be maintained or
sustained. Accordingly, that prayer is hereby rejected.‖
It may also be useful to refer to a decision of this Court reported
as 238(2017)DLT 723 titled Swaraj India v. State Election
Commission & Ors., wherein this Court after examining the various
decisions of the Supreme Court opined as under in para 30:-
―30. Given the historical backdrop in which the Symbols
Order, 1968 was introduced and on a conspectus of the judicial
pronouncements documenting the entire scheme and purpose of
the Election Symbols Order, 1968, there is no manner of doubt
that ECI is vested with the plenary powers of superintendence,
direction and control of all elections to the Parliament and to
the Legislature of every State and the Symbols Order, 1968 is
issued by the ECI in exercise of the powers conferred on it by
Article 324 of the Constitution of India read with Section 29A
of the RP Act, Rules 5 and 10 of the Conduct of Election Rules,
1961 (hereinafter referred to as ―Conduct Rules‖) and all
other enabling provisions.‖
43. In my opinion, however, the question in the present case is not
whether an unregistered and unrecognized group can seek allotment of
a reserved symbol without fulfilling the conditions prescribed in the
Act and Symbols Order. In fact, in the view of the settled legal
position, the statutory nature of the Act, and the Symbols Order, there
can be no doubt about the fact that a group has to first register itself as
a party and only then can it claim allotment of a reserved symbol.
44. However, in my opinion, the real issue in the facts of the
present case is slightly different. The issue arising for my
consideration is whether a splinter group or faction, which at the time
of initiation of the election dispute before the Commission, had the
support of the majority of the party members, but for various reasons
was not found to be the real party by the final orders of the
Respondent No. 1/ECI (the validity of which order is still under the
scrutiny of this Court), ought to be compelled to first register itself as
a political party and then follow the process of seeking recognition
and claiming a reserved symbol from the Respondent No. 1/ECI?
Alternatively, is such a party entitled to beseech this Court for an
interim arrangement so as to ensure that it can carry out its political
activities during the pendency of its challenge to the decision of the
Respondent No. 1/ECI, without giving up its right to contend that it is
„the group‟ which is actually entitled to the name and symbol of the
party.
45. Having considered the various judgments relied upon by the
counsels for the parties, I find that none of the decisions cited at the
Bar actually deals with this question. In the various decisions relied
on by the learned counsel for both sides, there is no pending dispute
about the actual representatives of the party in question. In all of these
cases, the splinter group approached the Respondent No. 1/ECI or the
courts for the allotment of a common symbol. However, in the present
case, the very question of who the true/actual representatives of the
AIADMK party are, is pending adjudication before this Court. There
has been no final determination of the question as to which is the
splinter group and which group truly/actually represents the AIADMK
party. In such circumstances, one of the groups claiming to be the
actual representatives of the AIADMK party has approached this
Court for the allotment of a common symbol as an interim relief to
enable them to carry out their political activities. The only Orders
which throw a little light on the approach to be adopted in such a case
is the order dated 23.03.2017 passed by the Respondent No. 1/ECI in
this very dispute, and the order dated 19.12.1997 passed by the
Respondent No. 1/ECI in the case of Rashtriya Janata Dal-
Application for its Recognition as a National Party. Learned counsel
for the Respondents has relied on the latter, though in a different
context.
46. At this stage, reference may be made to the relevant paragraphs
of the interim order passed by Respondent No. 1/ECI on 22.03.2017 in
this very election dispute between the parties.
"12. Having regard to the above facts and circumstances and
the practical difficulties in evaluating and adjudicating upon
the huge evidence running into more than 20,000 pages
adduced by both the parties- that too filed late in the evening
yesterday (2l" March, 2017)- and the oral submissions made
by their learned senior counsels, the Commission is not in a
position to give any final decision at the present juncture in
the short time available mentioned above. Consequently, the
Commission is left with no other option in these compelling
circumstances but to make an interim order which may befair
to both the contending groups. In order to place both the rival
groups on even keel to protect their rights and interests, and
going by the past precedents in such cases, the Commission
hereby makes the following interim order, purely for the
purposes of the current bye-election from II-Dr.
Radhakrishnan Nagar Assembly constituency in Tamil Nadu,
pending the final determination of the dispute raised by the
Petitioners in their petition dated ts" March, 2017 in terms of
para 15 of the Symbols Order:-
(a) Neither of the two groups led by the Petitioners (Sh.
E. Madhusudhanan, Sh. 0. Panneerselvam and Sh. S.
Semmalai) and the Respondents (Smt. VK. Sasikala and Sh. T
T V Dhinakaran) shall be permitted to use the name of the
party 'All India Dravida Munnetra Kazhagam' simplicitor;
(b) Neither of the aforesaid two groups shall also be
permitted to use the symbol 'Two Leaves', reserved for 'All
India Dravida Munnetra Kazhagam ':
(c) Both the groups shall be known by such names as they
may choose for their respective groups, showing, if they so
desire, linkage with their parent party 'All India Dravida
Munnetra Kazhagam '; and
(d)Both the groups shall also be allotted such different
symbols as they may choose from the list of free symbols
notified by the Election Commission for the purposes of the
current byeelection from II-Dr. Radhakrishnan Nagar
Assembly Constituency in TamilNadu.
47. Before dwelling further on the issue, it may also be appropriate
to refer to paragraphs 17, 18, 20 & 22 of the Respondent No. 1's/ECI's
decision dated 19.12.1997 in the case of Rashtriya Janata Dal-
Application for its Recognition as a National Party dated 19.12.1997,
which read as under:-
―17. Though we have rejected the prayer of the applicant
party for grant of recognition to it as a National party, which
would have entitled it to the reservation of an exclusive
election symbol under the Symbols Order, the alternative
prayer of the party to allow it to have a common symbol on
the basis of which it may contest the coming general election
to the House of the People deserves to be considered
sympathetically. It cannot be disputed that the present
applicant party has a substantial following, which consists of
a large number of sitting and former MPs and MLAs of Bihar.
The Speakers of the House of the People and Bihar
Legislative Assembly and Chairmen of the Council of States
and Bihar Legislative Council have also recognised the party
as a separate party, in their Houses, having regard to the size
of their Legislature groups in those Houses under the Tenth
Schedule to the Constitution of India. Asking such a party to
go to the electorates of different constituencies with different
election symbols would not only be unfair to the party, but
also to those electorates, as that would cause confusion in
their minds. This may defeat the very purpose of the symbols
system, evolved by the Commission since the time of the first
general elections in the country after it achieved
independence 50 years ago. The symbols system in elections
was adopted because an overwhelmingly large percentage of
electors was then illiterate and still continues to be so. The
symbols system helps electors in identifying, with ease and
without confusion, the political party of their choice.
Therefore, in the interest of free and fair elections and the
healthy growth of democracy where the electors exercise their
franchise without confusion, it would be desirable that a
political party of the size and proportion as that of the present
applicant party is permitted to approach the electorates in
different constituencies with a common symbol.
18. It is true that unrecognised political parties are not
normally allotted any common symbol for contesting
elections. But all unrecognised political parties cannot claim
to be treated at par or on the same footing. The Symbols
Order already provides for certain distinctions being drawn,
even amongst the unrecognised parties, in the matter of
allotment of symbols to the candidates set-up by such parties.
Para 12 of the Symbols Order which governs the allotment of
symbols to candidates set-up by unrecognised parties already
provides for a preferential treatment being given to the
candidates of unrecognised political parties, which were
previously recognised as State or National parties, or if such
candidates are sitting MPs or MLAs. Moreover, an
unrecognised political party, which does not have any MPs or
MLAs in its fold, cannot claim validly a parity with another
unrecognised political party which has, among its members, a
large number of MPs or MLAs who, but for the above
mentioned technicality, answer the test laid down in the
Symbols Order for recognition under paras 6 and 7 of the
Symbols Order. The distinction sought to be drawn by the
Commission in favour of the present applicant party can also
be justified on the ground that the party is already recognised
by the other highly important Constitutional authorities,
namely, the Speakers of the House of the People and Bihar
Legislative Assembly and the Chairmen of the Council of
States and Bihar Legislative Council.
20. Having regard to all the above material considerations
and peculiar facts and circumstances of the present case, and
particularly the fact that general election to constitute the 12th
Lok Sabha is on the anvil and that the Commission has, in the
past, in respect of certain political groups, not applied the
provisions of paras 6(2) and 6(3) of the Symbols Order with
full vigour and has given them recognition, the Commission
feels that it would not be fair, at this juncture, to make a total
and complete departure from the past, and leave the present
applicant party to fight ensuing elections on different symbols
in different constituencies. Therefore, the Commission is,
unanimously, of the view that, despite the rejection of the
applicant party's prayer for recognition as a National party,
the party may be given the limited concession of contesting
forthcoming general election to the House of the People (for
constituting the 12th Lok Sabha) on a common symbol in the
State of Bihar. Accordingly, the Commission hereby directs
that the symbol ―Hurricane Lamp‖ will be allotted to the
candidates duly set-up by the present applicant party, after
fulfilling the requirements of para 13 of the Symbols order in
respect of each such candidate, in any Parliamentary
Constituency in the State of Bihar. In order to remove any
confusion in the minds of electors, the said symbol
―Hurricane Lamp‖ will not be allotted to any other candidate
in the State of Bihar, even in those constituencies where the
present applicant party does not set up any candidate. Such
limited concession will also be available to the party, if it duly
sets up any candidate in any other Parliamentary or Assembly
Constituency in any other State/Union Territory, where
general elections or bye-elections are held simultaneously
with the ensuing general election to the House of the People.
The party will have to give intimation of all such
Parliamentary and Assembly constituencies to the
Commission, and to the Chief Electoral Officer of the State
concerned, within three days after the date of issue of the
notification calling the election.
22. For the removal of doubt, the Commission would also
like to clarify that the above directions are being issued by the
Commission, in exercise of its plenary powers of
superintendence, direction and control, inter alia, of all
elections to Parliament and State Legislatures conferred on it
by Article 324 of the Constitution read with para 18 of the
Symbols Order. That para expressly empowers the
Commission to issue instructions and directions, inter alia, for
the removal of any doubt or difficulty which may arise in
relation to the implementation of any provisions of that Order
and in relation to any matter with respect to the allotment of
symbols for which that Order makes no provision or makes
insufficient provision and provision is in the opinion of the
Commission necessary for smooth and orderly conduct of
elections. The Symbols Order has been held by the Supreme
Court as a compendium of the Commission's instructions and
directions.‖
48. While dealing with the peculiar facts of this case, where the
Petitioner is seeking allotment of a symbol as an interim measure, I
cannot also lose sight of the fact that in our country, as observed by
the Supreme Court in paragraph 18 of its decision in Sadiq Ali (supra)
(reproduced hereinbelow), a large part of the electorate is illiterate and
there is a special importance of a common symbol, as it is this
pictorial representation which helps the electorate identify the
candidate of their choice. In a country like ours where the electorate
belongs to diverse social and economic backgrounds, a common
symbol helps promote a feeling of unity:-
―18. It is well known that overwhelming majority of the
electorate are illiterate. It was realised that in view of the
handicap of illiteracy, it might not be possible for the illiterate
voters to cast their votes in favour of the candidate of their
choice unless there was some pictorial representation on the
ballot paper itself whereby such voters might identify the
candidate of their choice. Symbols were accordingly brought
into use. Symbols or emblems are not a peculiar feature of
election law of India. In some countries, details in the form of
letters of alphabet or numbers are added against the name of
each candidate while in others, resort is made to symbols or
emblems. The object is to ensure that the process of election is
as genuine and fair as possible and that no elector should
suffer from any handicap in casting his vote in favour of a
candidate of his choice." (emphasis added)
49. Thus, while there is merit in the contention of the learned
counsel for the Respondents that the only route through which a
group of persons can seek registration, recognition and then
allotment of a symbol is prescribed by the statute and the
mandatory conditions prescribed therein have to be followed
before a group of persons can stake their claim to a reserved
symbol, the issue in the present case is only whether the present
Petitioner and his group of supporters (who admittedly still have
the support of 6 MPs, 20 MLA‟s and other party members as per
the Impugned Order) are entitled to pray for such an interim
arrangement whereby he and his supporters can carry out their
political activities by using a common symbol? Alternatively
does the Petitioner have to be compelled to follow the statutory
procedure under the Act and Symbols Order by first registering a
separate political party, thereby making the present petition itself
a fait-accompli. In my considered opinion, compelling the
Petitioner and his supporters to get registered as a new political
party and then apply for a symbol to the Respondent No. 1/ECI,
as urged by the Respondents, cannot be accepted for two reasons.
50. The first reason is that the Respondent No. 1/ECI has
exercised its plenary powers and granted similar protections not
only in the present case, but even in the case of Rashtriya Janata
Dal-Application for its Recognition as a National Party vide its
order dated 19.12.1997, wherein the Respondent No. 1/ECI, in
the interest of free and fair elections and healthy growth of
democracy, had permitted an unrecognized party to approach the
electorate in a different Constituency with a common symbol,
even though the provisions of the Symbols Order only permitted
use of a common symbol only by recognized political parties.
The second, and perhaps more important reason, is that the
challenge to the order passed by the Tribunal (which, according
to the Petitioners, was passed on the basis of wholly untested and
fabricated evidence) is still pending adjudication before this
Court under its writ jurisdiction under Article 227 of the
Constitution of India. Even though the said jurisdiction is not
appellate and only envisages a judicial review, can it be said that
the power of a writ Court under Article 227 of the Constitution of
India is so restricted that it cannot be invoked even if the Court
finds grave injustice being met out to one of the parties, by non-
grant of an interim order, when there is no real prejudice to the
party opposing the Application. Reference may also may be
made to the observations of the Supreme Court in paragraph 91
of its decision in Ramesh Chandra & Ors (supra), wherein the
Court observed as under:-
"91. The power of superintendence under Article 227 of
the Constitution conferred on every High Court over all
courts and tribunals throughout the territories in relation to
which it exercises jurisdiction is very wide and discretionary
in nature. It can be exercised ex debito justitiae i.e. to meet
the ends of justice. It is equitable in nature. While exercising
supervisory jurisdiction, a High Court not only acts as a court
of law but also as a court of equity. It is, therefore, power and
also the duty of the Court to ensure that power of
superintendence must ―advance the ends of justice and uproot
injustice‖.‖
51. I also find that not only the Respondent No. 1/ECI but
even the Supreme Court has, when the facts so warranted,
directed allotment of symbols by way of an interim arrangement.
Vide order dated 27.03.2009 in Desiya Murpokku Dravida
Kazhagam & Anr. v. Election Commission of India bearing
W.P(C)No.532/2008, and vide order dated 27.04.2009 in
Viduthalai Chiruthaigal Katchi v. Election Commission of India
bearing W.P.(C)No.177/2009, the Apex Court directed the
Election Commission of India to allot common symbols to
registered unrecognized political parties as an interim measure
for ensuing elections. I see no reason why, while exercising
jurisdiction under Articles 226 & 227 of the Constitution of
India, this Court should be denuded of the power to pass such an
order, as may be in the interest of justice and equity in the
peculiar facts of the case, especially since Respondent Nos. 2 to
5, who have been entitled to the exclusive use of the AIADMK
party name and „Two leaves‟ symbol vide the Impugned Order,
would not be prejudiced by such an order allotting a separate
„non-identical‟ common symbol to the splinter group. The only
reason, which is not very difficult to gauge, why Respondent
Nos. 2 to 5 are objecting to the present interim Application is to
deny the Petitioner and his group a level playing field in the
political sphere, which a writ Court (which is not only a Court of
record but also a Court of equity) ought not to permit.
52. At this stage, I must also deal with the objections
questioning the territorial jurisdiction of this Court, on the ground
of forum conveniens, raised by learned counsel for Respondent
Nos. 2 to 6. In this regard, it may be useful to refer to the
judgment of this Court in Sonu Sardar v. Union of India bearing
WP(C) No. 441/2015, wherein this Court has correctly
summarized the law on the doctrine of forum conveniens after
considering the judgments in Sterling Agro Industries Ltd. v.
Union of India and Ors. and various other precedents relied on by
the counsel for both sides.:-
―27. In view of the aforegoing, it is clear that the courts
should generally decide disputes upon which they have
jurisdiction. They may decline to exercise such
jurisdiction only if there are compelling reasons for not
doing so. In doing so, the courts must apply a balancing
test and reject to exercise jurisdiction only if there are
compelling reasons keeping the Latin maxim Judex
tenetur impertiri judicium suum in mind.‖
On this issue, the foremost thing which I find relevant is
that the Respondent No. 1/ECI, who passed the Impugned Order,
has not contended either in its reply or arguments, the principle
of forum conveniens or that this Court does not have territorial
jurisdiction to entertain the present Application. Secondly, the
reliefs prayed for are essentially in respect of the Respondent No.
1/ECI, which is located within the jurisdiction of this Court.
53. Thirdly, merely because the majority of the Respondents
are situated in the State of Tamil Nadu, does not render this
Court as a forum non-conveniens to entertain the present
application. This is especially so since the Respondent Nos. 2 to
6, who are situated in the State of Tamil Nadu, are neither the
subjects of the interim relief prayed for nor affected (let alone
prejudiced) by such an interim relief, if granted. It is not
sufficient to contend or show that there is a relatively more
convenient forum to entertain the present application. It must be
shown that this Court is a forum non-conveniens. For the reasons
aforementioned, I am not inclined to accept the contention of the
Respondent No. 2 to 5 that this Court is a forum non-conveniens
to entertain the present Application.
54. Before I conclude, I must also deal with the objection
raised by Mr. Mukul Rohtagi, learned Senior Counsel for
Respondent No. 5, that the present Application seeks a review of
the earlier order dated 04.12.2017 passed by this Court. In my
considered opinion, the present objection is wholly without merit.
I find that Application bearing C.M.No.43911/2017, which was
decided by this Court on 04.12.2017, was filed at a stage when
the Petitioner had already approached the Returning Officer for
allotment of a particular symbol and the Returning Officer was
already seized of the issue of allotment of a symbol to the
Petitioner. Even otherwise, the election process had already been
initiated for the bye-election of the R.K. Nagar constituency in
Chennai and, therefore, this Court disposed of the Application by
directing the Petitioner to request the Returning Officer for the
relief sought by him.
55. The circumstances, however, at this stage are wholly
different. Even though the Petitioner has prayed that the interim
relief be granted to him for contesting the local body elections in
Tamil Nadu likely to be held in April, 2018, which averment has
been denied by the Respondents by contending that the elections
are not likely to take place in the near future, the prayer of the
Petitioner is not restricted to the local body elections alone. In
fact, the Petitioner has not at all confined his prayer to any
particular election, but has sought interim directions so that his
group can continue to carry out its political activities as a unified
entity during the pendency of the challenge to the Impugned
Order before this Court.
56. For all the aforementioned reasons, I find considerable
merit in the prayer made by the Petitioner and the Application
deserves to be allowed. However, keeping in view the nature of
the relief sought in the Application, while upholding the
Petitioner‟s right to seek the use of a common name and symbol
by way of an interim arrangement during the pendency of the
Writ Petition, I deem it appropriate to direct the Respondent No.
1/ECI, which has the necessary expertise to deal with allotment
of symbols, to pass an appropriate order permitting the Petitioner
and his group of persons to use a common symbol (preferably
"Pressure Cooker" as used by the Petitioner during the last
election for the R.K. Nagar constituency) and also permit them to
use the name of their choice, after giving them an appropriate
hearing.
57. The needful shall be done within three weeks. Needless to
say the aforesaid directions are being passed without prejudice to
the rights and contentions of the parties in the main petition.
58. The Application is allowed in the above terms, with no
order as to costs.
(REKHA PALLI)
JUDGE
MARCH 09, 2018
sr
