Delhi High Court
Common Cause, A Regd. Society vs Bahujan Samaj Party on 7 July, 2016
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 7th July, 2016
+ W.P.(C) No.8363/2010
COMMON CAUSE, A REGD. SOCIETY ..... Petitioner
Through: Mr. Rohit Kumar Singh, Adv.
Versus
BAHUJAN SAMAJ PARTY ..... Respondent
Through: Mr. Satish Chandra Mishra, Sr. Adv.
with Mr. Ashok Chhabra and Mr.
Shail Kumar Dwivedi, Advs. for BSP.
Mr. P.R. Chopra, Adv. for Election
Commission of India.
CORAM:-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. The petition (a) impugns the order dated 11th October, 2010 of
Election Commission of India (ECI) of dismissal as not maintainable of the
application preferred by petitioner seeking freezing of the symbol
―Elephant‖ as the reserved symbol of the respondent Bahujan Samaj Party
(BSP), a Recognised National Party within the meaning of Clauses 6 and 6A
of the Election Symbols (Reservation and Allotment) Order 1968, (Symbols
Order); and, (b) seeks a mandamus to the ECI to cancel or freeze the
reserved election symbol ―Elephant‖ of the respondent BSP.
W.P.(C) No.8363/2010 Page 1 of 26
2. Notice of the petition was issued and a reply has been filed on behalf
of the respondent BSP and to which a rejoinder has been filed by the
petitioner. Vide order dated 16th July, 2012 ECI which was earlier impleaded
as respondent No.1, was deleted from array of parties but its counsel
requested to remain present.
3. When the matter was called on 25th February, 2016, the senior counsel
for the respondent BSP stated that the order of ECI under challenge in this
petition came to be passed in pursuance to an order of the Supreme Court in
a petition filed by some other person and which petition is still pending
before the Supreme Court and the said order of ECI has been placed before
the Supreme Court for further consideration in that proceedings; he thus
contended that the hearing of this petition be deferred till the decision of the
Supreme Court.
4. It was however enquired from the senior counsel for the respondent
BSP as to why in the last over five years for which this petition had been
pending, the respondent BSP did not have this petition transferred to the
Supreme Court or seek a clarification in this respect from the Supreme
W.P.(C) No.8363/2010 Page 2 of 26
Court, particularly when it was informed that in the last five years the
petition in the Supreme Court had been taken up on several occasions.
5. Per contra, the contention of the counsel for the petitioner was that
though the impugned order of ECI, besides on the application of the
petitioner is also on the applications of others but the petitioner herein is not
a party in the proceedings before the Supreme Court and the relief claimed
by the petitioner is also materially different from the relief claimed in the
proceeding before the Supreme Court.
6. In this view of the matter, option was given to the senior counsel for
the respondent BSP that this petition would be adjourned for a period of one
month to enable the respondent BSP to seek directions from the Supreme
Court. However the senior counsel for the respondent BSP did not press the
objection taken earlier and accordingly the counsels were heard and
judgment reserved.
7. It is the case of the petitioner (i) that the petitioner vide its application
dated 25th June, 2009 to ECI drew attention to the recent trend, of erecting at
public places and at State expense, statues of political functionaries and
symbols linked to the ruling party - the statues entailing a monumental
W.P.(C) No.8363/2010 Page 3 of 26
waste of public resources were built to last till the end of time; this practice
has assumed gargantuan proportions in the State of Uttar Pradesh, where
statues of incumbent Chief Minister and other members of the respondent
BSP and its election symbol ―Elephant‖ were sprouting from countless
memorials, public squares and parks; (ii) that such display has the effect of
disturbing the level playing field vis-a-vis the political functionaries and
candidates of other parties; reliance in this regard is placed on ECI's
circulars No.437/6/INST/2008-CC&BE dated 28th March, 2009 and 1st
April, 2009 prohibiting display in government buildings and premises of
photographs and images of the political functionaries who have deep
influence on the minds of electors and many of whom are still active in
public life and may even be contesting the current general elections; (iii) that
besides the petitioner, Shri Ravi Kant and Shri Sukumar, Advocates and one
Shri Atul Kumar Singh had also filed similar applications before ECI and all
the three sets of applications were clubbed together; and, (iv) that Shri Ravi
Kant aforesaid also filed W.P.(C) No.266/2009 before the Supreme Court
seeking inter alia directions to the State of Uttar Pradesh to stop further
construction and expenditure of public funds for installing the statues of the
incumbent Chief Minister and the party symbol of the respondent BSP in
W.P.(C) No.8363/2010 Page 4 of 26
public land and to remove the statues in question from public land and the
Supreme Court vide interim order dated 22nd February, 2010 in the said
petition, finding that the said Shri Ravi Kant had also moved ECI for certain
relief with respect to the statues, had directed ECI to decide the application
/representation of the said Shri Ravi Kant.
8. ECI, in the impugned order dated 11th October, 2010, has
found/observed/held:-
(i) that the claim in the application of freezing of the election
symbol amounted to withdrawing the symbol ‗elephant' from
the respondent BSP and allotting an alternative symbol to the
party so that the respondent BSP does not get an undue
advantage of its symbol which had been propagated at the State
cost;
(ii) allotment and reservation of symbol to recognised political
parties or withdrawal of such allotment or reservation has to be
traceable to specific provisions under the Symbols Order;
(iii) grant of recognition to a party which entitles it to a reserved
symbol under the Symbols Order is dependent on the poll
performance of the party in terms of the percentage of votes
polled and the number of seats won as per the criteria laid down
in paragraphs 6A and 6B of the Symbols Order;
W.P.(C) No.8363/2010 Page 5 of 26
(iv) under the Symbols Order, withdrawal of reserved symbol is
either:-
(a) a consequence of withdrawal of recognition upon failure
of the party to come up with the poll performance as
required; or,
(b) a consequence of the recognised political party failing or
refusing to observe the provisions of the ‗Model Code of
Conduct for Guidance of Political Parties and
Candidates' (Model Code of Conduct) as issued by the
ECI or to follow or carry out any lawful directions and
instructions of the ECI given from time to time with a
view to furthering the conduct of free, fair and peaceful
elections or safeguarding the interests of the general
public and the electorate in particular, also resulting in
withdrawal of recognition.
(v) neither was it the ground of the petitioner or any of the other
applicants before ECI that the respondent BSP had failed in the
required poll performance or that it had violated any lawful
direction or instruction issued by ECI;
(vi) the only question which remained was whether the respondent
BSP had violated the Model Code of Conduct by erecting and
installing the statues of ‗elephant' and Ms. Mayawati;
W.P.(C) No.8363/2010 Page 6 of 26
(vii) however the Model Code of Conduct comes into play when
ECI announces any schedule for an election and it ceases to be
effective on the completion of election by declaration of result;
(viii) every political party has a right to propagate its symbol by
erecting of statues of the symbol and also of its leaders, without
however misuse of public funds and official position;
(ix) ECI is not empowered to go into the question of misuse of
official position and public funds in the matter of erection of
such statues as the same had the sanction of the State
Legislature;
(x) that the State Government had however refused to furnish the
information as to where and how many of the statues had been
erected and installed and thus ECI was in dark with respect
thereto and unable to gauge the impact of the statues on the
mind of the electors;
(xi) that thus ECI was not capable of granting the reliefs claimed;
and,
(xii) however at the time of elections ECI would take appropriate
steps and measures to see that statues of Ms. Mayawati and
BSP symbol ‗elephant' do not disturb the level playing field
and do not give undue advantage to the respondent BSP vis-a-
vis other political parties.
W.P.(C) No.8363/2010 Page 7 of 26
9. The counsel for the petitioner argued (i) that ECI in the impugned
order has accepted most of the submissions of the petitioner and rejected
almost all the contentions of the respondent BSP but notwithstanding the
same held the application to be not maintainable; (ii) the application could
not have been rejected on the ground of the respondent BSP having failed to
provide the desired information; (iii) that ECI having accepted the
contention that the respondent BSP was guilty of defeating the object of
Model Code of Conduct by installing statues of its election symbol at public
expense, ought to have withdrawn the symbol; (iv) that ECI vide its order
dated 8th January, 2012 had required each and every statue of ‗elephant'
erected in public places in the State at government expense to be covered
until the impending general election to the State Legislative Assembly;
however no such covering was ordered during 2014 Lok Sabha Election; (v)
that ECI has very wide power under Article 324 of the Constitution of India
to issue any order/direction to ensure free and fair elections which are
critical to the preservation of our democratic polity; (vi) reliance is placed on
Mohinder Singh Gill Vs. The Chief Election Commissioner, New Delhi
(1978) 1 SCC 405, Union of India Vs. Association for Democratic Reforms
(2002) 5 SCC 294 and Kuldip Nayar Vs. Union of India (2006) 7 SCC 1 to
W.P.(C) No.8363/2010 Page 8 of 26
contend that where the law on the subject is silent, Article 324 is a reservoir
of power for the ECI to act for the avowed purpose of pursuing the goal of
free and fair election; (vi) that the installation of permanent representations
of election symbol of a political party in a public place has the effect of
permanently disturbing the level playing field in an electoral contest; and,
(vii) if the display of a photograph inside an office can vitiate the level
playing field, the installation of a permanent statue at a public place which is
visible at all times to every passerby can be said to have a deeper impact on
the mind of the electorate.
10. Per contra, the senior counsel for the respondent BSP argued (i) that
there is no provision in the Symbols Order to freeze a particular symbol; (ii)
there can be no cancellation/withdrawal of election symbol de hors the
provisions of the Symbols Order; (iii) the respondent BSP did not gain
anything in any manner from the erection and installation of the said statues
in the Assembly elections held in the year 2012; (iv) that there is no bar to
the use of an election symbol; (v) example was given of a bicycle and cow
which are election symbols and can be seen all over; (vi) that a recognised
political party cannot be left without a symbol; and, (vii) elephants are to be
W.P.(C) No.8363/2010 Page 9 of 26
seen not only in the statues erected and installed by the State Government
but in all the temples also.
11. The counsel for ECI stated that do's and don't's qua the symbols are
during the election time only and not otherwise.
12. The counsel for the petitioner in rejoinder argued that if the party in
power so propagates its symbol with public money, then it is wrong,
otherwise it is not.
13. I have considered the controversy and wondered whether there is any
bar to a recognised political party with its own monies so propagating its
symbol or its leaders, year round, by installing statues or hoardings thereof,
in compliance with Municipal and other applicable Regulations. I am unable
to find any, and as aforesaid, the counsel for the petitioner also agreed that it
is so open to a political party.
14. The only issue which thus remains is, of the respondent BSP having
done so by misuse of public monies and public office.
15. However the counsel for the petitioner was at a loss to show any
power vested in ECI to, on such grounds, exercise any jurisdiction.
W.P.(C) No.8363/2010 Page 10 of 26
16. Though the Symbols Order is not found to contain any specific clause
even for allotment of a symbol to a recognised political party but Clause 5
thereof while giving the classification of symbols defines a reserved symbol
as a symbol which is reserved for a recognised political party for exclusive
allotment to contesting candidates set up by that party and vide Clause 8
thereof provides that a candidate set up by a recognised political party, at
any election, in any constituency of India, shall choose and shall be allotted
the symbol reserved for that party and no other symbol. Clause 8(3) further
provides that a reserved symbol shall not be chosen by or allotted to any
candidate in any constituency other than a candidate set up by a recognised
political party for whom such symbol has been reserved. Therefrom it
follows that ECI allots a reserved symbol to a recognised political party. The
same necessarily has to be done by passing an order to the said effect.
17. I have wondered whether the power of ECI of making an order of
allotment and reservation of election symbol for a recognised political party
would, in accordance with the General Clauses Act, 1897, include the power
to withdraw the election symbol so reserved/allotted.
W.P.(C) No.8363/2010 Page 11 of 26
18. Section 16 of the General Clauses Act provides that where, by any
Central Act or Regulation, a power to make any appointment is conferred,
then, unless a different intention appears, the authority having power to
make the appointment shall also have power to suspend or dismiss any
person so appointed. Similarly Section 21 of the said Act provides that
where, by any Central Act or Regulation, a power to issue notifications,
orders, rules, or bye-laws is conferred, then that power includes a power, to
add to, amend, vary or rescind notifications, orders, rules or bye-laws so
issued.
19. Though the Symbols Order may not qualify as a Central Act or
Regulation but by virtue of Clause 2(2) thereof provides that the General
Clauses Act shall as far as may be applied in relation to the interpretation of
the Symbols Order as it applies in relation to the interpretation of a Central
Act.
20. Vis-à-vis Central Act, Supreme Court in Shree Sidhbali Steels
Ltd. Vs. State of U.P., (2011) 3 SCC 193, referring besides to Section 21 of
the General Clauses Act also to Section 14 thereof, held that when a power
W.P.(C) No.8363/2010 Page 12 of 26
is conferred to do a particular act such power can be exercised from time to
time and carries with it the power to withdraw, modify, amend or cancel.
21. Vis-à-vis ECI, it was held in Janata Dal (Samajwadi) Vs. The
Election Commission of India (1996) 1 SCC 235 that it cannot be
conceived that a political party having been recognised as a national party or
a State party shall continue as such in perpetuity although it had forfeited the
right to be recognised as a national party; though there is no specific
provision under the Symbols Order vesting power in the ECI to derecognise
a political party, Clause 2(2) thereof making the provisions of the General
Clauses Act applicable, vests power in ECI, which had issued the order
recognising a political party, to derecognise the political party.
22. I may however state that since the judgment aforesaid, vide
notification dated 1st December, 2000 the Symbols Order was amended and
Clause 6C thereof as it now stands, lays down ―conditions for continued
recognition as a National or State Party.‖
23. However subsequently, in Indian National Congress (I) Vs. Institute
of Social Welfare (2002) 5 SCC 685; in the context of the question, whether
ECI has power to de-register or cancel the registration of a political party on
W.P.(C) No.8363/2010 Page 13 of 26
the ground that it had called for hartal by force, intimidation or coercion and
thereby violated the provisions of the Constitution or on the ground of
having violated the undertaking given at the time of its registration, it was
held that Section 21 of the General Clauses Act cannot be invoked by ECI to
de-register a political party on such grounds because for Section 21 to
apply, the order which can be modified or rescinded has to be in the nature
of a notification, rule, bye-law etc. i.e. either executive or legislative in
character but de-registration of a political party on such grounds would
entail a quasi judicial enquiry under Section 29-A of the Representation of
People Act, 1951 (R.P. Act) into whether the undertaking and Section 29-A
have been violated or not and Section 21 has no application where an
authority is required to act quasi judicially. It was further held that
Parliament deliberately omitted to vest ECI with the power to de-register a
political party for non-compliance with the conditions for the grant of such
registration - may be for the reason that under the Constitution ECI is
required to function independently and ensure free and fair elections; an
enquiry into non-compliance with the conditions for the grant of registration
might involve the Commission in matters of a political nature and could
mean monitoring by the Commission of the political activities, programmes
W.P.(C) No.8363/2010 Page 14 of 26
and ideologies of political parties. It was however clarified that ECI is not
deprived of its power to cancel the registration where registration has been
obtained by practicing fraud or forgery or where a registered political party
amends its nomenclature of association, rules, regulations abrogating therein
conforming to provisions of Section 29-A(5) of R.P. Act or intimates that it
has ceased to have faith in and allegiance to the Constitution of India or on
any like ground where no enquiry is called for on the part of ECI.
24. In the judgment supra of a bench of two Hon'ble Judges, the earlier
judgment in Janta Dal (Samajwadi) of a bench of three Hon'ble Judges was
not noticed. In fact Supreme Court earlier, in Kanhiya Lal Omar Vs. R.K.
Trivedi (1985) 4 SC 628 referring on Sadiq Ali Vs. Election Commission of
India (1972) 4 SCC 664 which were also not noticed, held that ECI cannot
be disabled from exercising its plenary powers under the Conduct of
Election Rules, in the matter of allotment of symbols and for issuing
directions in connection therewith and that it is plainly essential that ECI
should have the power to settle disputes between two rival groups or
between splinter groups for allotment of a symbol.
W.P.(C) No.8363/2010 Page 15 of 26
25. Such power, I may notice, is expressly with the ECI under Clause 15
of the Symbols Order. So is the power given by Clause 16A to suspend or
withdraw recognition on the grounds of violation or defiance of Model Code
of Conduct or of any lawful direction or instruction of ECI and which
enquiry is to be after giving a reasonable opportunity of showing cause. In
my humble opinion, an enquiry of the nature mentioned in Clause 16A of
Symbols Order into whether a recognised political party has defied the
provisions of the Model Code of Conduct and/or of the directions issued by
ECI from time to time for free, fair and peaceful elections or for
safeguarding the interest of general public and electorate in particular would
necessarily take the hue of a political nature and/or could mean monitoring
by the ECI of the political activities, programmes and ideologies of political
parties. The same appears to belie the logic/reasoning given in Indian
National Congress (I) supra that ―an enquiry into non-compliance with the
conditions for the grant of registration might involve the Commission in
matters of a political nature and could mean monitoring by the Commission
of the political activities, programmes and ideologies of political parties‖.
26. I however remain bound by Indian National Congress (I) supra and
as per which the provisions of General Clauses Act cannot be read in the
W.P.(C) No.8363/2010 Page 16 of 26
Symbols Order for exercise of a power requiring a quasi-judicial enquiry.
Certainly, in the absence of any existing direction of ECI with respect to the
situation of which grievance is made by petitioner, withdrawal of symbol or
freezing of symbol would require a quasi-judicial enquiry. The petitioner
also has not contended otherwise.
27. Even otherwise, as per Symbols Order, ‗recognition' as a political
party carries a right to a reserved symbol. I have not been able to find any
conditions prescribed qua use of or dealing with that symbol. It thus appears
that a symbol once reserved for a recognised political party under the
prevalent laws, cannot be taken away. This is certainly a lacuna and which,
if the averments of the petitioner are correct, has indeed been exploited by
the respondent BSP. However with respect to the law of elections, which is a
special law, it has famously been said by the Supreme Court in Jyoti Basu
Vs. Debi Ghosal (1982) 1 SCC 691 that a right to elect or to be elected,
fundamental though it is to democracy, is anomalously enough neither a
fundamental right nor a Common Law Right and is pure and simple a
statutory right; and that outside of statute, there is no right to elect, no right
to be elected and no right to dispute an election - statutory creations they
are and therefore subject to statutory limitations.
W.P.(C) No.8363/2010 Page 17 of 26
28. I therefore hold that there is no power in ECI under the Symbols
Order, to withdraw/freeze an election symbol once allotted and/or reserved
for a recognised political party and the only manner in which the symbol
once allotted/reserved is lost, is on loss of recognition. Though the powers
of ECI otherwise flow from Article 324 of Constitution of India and are
plenary but ECI, in exercise of such powers having promulgated the
Symbols Order and having therein not provided for such eventuality, the
same, in my opinion, cannot be sprung as a surprise.
29. Neither ECI had nor I have any doubt that if there is any truth in what
the petitioner complains of, then what the respondent BSP has done is
wrong. Wherever there is a wrong, there has to be remedy. There is no
wrong without a remedy--ubi jus ibi remedium and which, Supreme Court
in Dhannalal Vs. Kalawatibai (2002) 6 SCC 16 has held, leads to the
invention of the form of action. I am of the view that a constitutional
functionary as ECI, upon finding a wrong or a possibility of wrong in the
arena of election and qua which it has plenary powers cannot express
helplessness owing to lack of any existing provision and has to devise ways
and means to address the wrong, to maintain purity in the stream of election.
W.P.(C) No.8363/2010 Page 18 of 26
ECI, in this spirit has to be continuously evolving to keep pace with the
evolving society and ought to have invented the remedy.
30. Clause 16A of the Symbols Order providing for suspension or
withdrawal of recognition is also found to be providing therefor either on the
ground of refusing or defying to observe the provisions of the ‗Model Code
of Conduct for Guidance of Political Parties and Candidates' as issued by
the ECI or on the ground of refusing or defying to follow or carry out the
lawful directions and instructions of ECI given from time to time with a
view to furthering the conduct of free, fair and peaceful elections or
safeguarding the interests of the general public and the electorate in
particular. However as aforesaid, before de-recognising a political party a
reasonable opportunity of hearing is required to be given.
31. ECI in the impugned order has held that Model Code of Conduct is
applicable only during the election and not otherwise. No dent to the said
reasoning of ECI has been made by the petitioner. As far as the other ground
for withdrawal of recognition accorded to a political party prescribed in
Clause 16A supra is concerned, though I have perused the ―Handbook for
Candidates‖ published by the ECI in the year 2009, the ―Code of Conduct -
W.P.(C) No.8363/2010 Page 19 of 26
Do's & Dont's‖ published by ECI on 7th January, 2007 as well as the
―Model Code of Conduct for the Guidance of Political Parties and
Candidates‖ published by ECI in 2007 and also the ―Compendium of
Instructions on Model Code of Conduct‖ published by ECI on 21st August,
2015 as available on the website of ECI but I am unable to find any
instruction/guideline prescribed prohibiting the conduct of which the
petitioner accuses the respondent BSP and for defiance of which it can be
said that ECI ought to have initiated proceedings for withdrawal of
recognition of the respondent BSP.
32. However it is found (i) that vide ECI's letter no.3/9/2004/J.S.-II dated
24th August, 2004 the directions relating to aspect of advertisements in print
media were issued (See instructions serial no.32 in the ―Compendium of
Instructions on Model Code of Conduct‖ published on 21st August, 2015);
(ii) that vide ECI's letter no. 437/6/2004-PLN III dated 24th December, 2004
the party in power was directed to ensure that no cause is given for any
complaint that it has used its official position for the purposes of its election
campaign and issue of advertisement at the cost of public exchequer in the
newspapers and other media and the misuse of official mass media during
the election period for partisan coverage of political news and publicity
W.P.(C) No.8363/2010 Page 20 of 26
regarding achievements with a view to furthering the prospects of the party
in power was prohibited and direction issued for removal of hoardings,
advertisements, etc. which purport to project the achievements of any living
political functionaries or political party or which carry their photos or names
or party symbol, at the cost of public resources (See instructions serial no.30
in the ―Compendium of Instructions on Model Code of Conduct‖ published
on 21st August, 2015); (iii) in the ―Handbook for Candidates - 2009‖, vide
Clause 6(A) thereof wall writing, pasting of posters or display of any cut-
outs, hoardings, banners, flags etc. on Government premises and
Government offices and their campus was prohibited and the party in power
was directed to ensure that no public place was dominated/monopolised and
that all parties and candidates should be provided equal opportunity in this
regard; (iv) in the ―Code of Conduct - Do's & Dont's‖ dated 7th January,
2007, announcement of new projects or programme or concessions or
financial grants in any form or promises thereof or laying of foundation
stones, etc., which have the effect of influencing the voters in favour of the
party in power was prohibited and misuse of official machinery for election
work was also prohibited; and, (v) in the ―Model Code of Conduct for
Guidance of Political Parties and Candidates‖ also, Chapter VII dealing with
W.P.(C) No.8363/2010 Page 21 of 26
party in power and issues detailed instructions to ensure that no cause is
given to any complaint that it has used its official position for the purposes
of its election campaign.
33. It would thus be seen that in spirit, what the petitioner complains of,
is prohibited though not expressly. What the respondent BSP is accused of is
akin to advertisements by ruling party at the cost of public exchequer in the
print media, use of by party in power of government buildings/premises and
use by party in power of official machinery and of which is already
prohibited and indulging wherein could lead to withdrawal of recognition
and resultant loss of symbol. I am of the view that since ECI till now has
not issued any express direction or instruction prohibiting recognised
political parties from doing what the respondent BSP is accused of and
further since the petitioner, for the wrong alleged invoked the remedy of
recall/freezing of symbol and which I have held to be not available, the
respondent BSP should not be caught unaware and no case for proceeding
against respondent BSP for withdrawal of recognition is made out.
34. I am however of the view that there indeed is a need for ECI to now,
that the lacuna has been detected and has complained of having been
W.P.(C) No.8363/2010 Page 22 of 26
exploited, to consider issuing express directions in this regard so that no
political party in power can exploit the same in future. There can be no
doubt of the power of ECI to issue such a direction. I direct accordingly.
35. That will however take care only of the future. The question of the
installations already made by the respondent BSP continuing to give an
undue advantage to the respondent BSP in future elections remains. I am of
the view that covering thereof during the elections does not undo what they
are capable of doing. The size of the said installations, visible from
surrounding areas, even though covered, continue to remind the public of
what lies beneath. In fact a covered installation is more of a reminder and
has a higher impact capable of influencing. I am unable to agree with the
senior counsel for respondent BSP that the loss suffered in elections is proof
of the same having no influence. A failed attempt does not wash away the
wrong means adopted to succeed. Just like irrespective of the party in power
coming back to power or not, its violation of the directions already issued
would render it liable for withdrawal of recognition, so is the position here.
36. A political party in power cannot use development activities carried
out by it and which the government in any case is expected to perform, to
W.P.(C) No.8363/2010 Page 23 of 26
propagate its symbol or its leaders so as to come in the way of a free and fair
election. The performance of a political party in governance should be
allowed to speak for itself.
37. No merit is also found in contention of senior counsel for BSP that
most of the symbols are found commonly in day to day life and are thus
incapable of influencing. As aforesaid, there is no bar to a political party
propagating itself at its own cost. The issue is of dong so from public places
and with use of public funds to which the political party by being in power
gets access.
38. Supreme Court recently in Common Cause Vs. Union of India
(2015) 7 SCC 1, concerned with a public interest litigation seeking restraint
on the Union of India and the State Governments from using public funds on
the government advertisements which were primarily intended to project
individual functionaries of the Government or a political party, constituted a
committee to suggest guidelines to regulate government action in the matter,
so as to prevent misuse / wastage of public funds in connection with such
advertisements and approved of the guidelines framed inter alia to the effect
W.P.(C) No.8363/2010 Page 24 of 26
that the advertising must not be directed at promoting political interest of a
political party.
39. The reasoning of ECI, that it could not make a factual assessment
because of the directions seeking information remaining uncomplied also
cannot be accepted. Supreme Court in Sadiq Ali supra has held that ECI is
an authority created by Constitution of India and according to Article 324
has superintendence, direction and control of the conduct of elections and
the fact that the power of resolving disputes has been vested in such a high
authority would provide a guarantee that the power would be used in a
reasonable manner. ECI, in my view, cannot abdicate its power for such
reasons.
40. I therefore dispose of this petition with a request to ECI to:
(A) within a period of three months, consider issuing appropriate
direction / guideline within the meaning of Clause 16A(b) of the
Symbols Order preventing recognised political party in power from
using public places and public funds for propagating its reserve
symbol and / or its leaders, so as to come in the way of conducting of
W.P.(C) No.8363/2010 Page 25 of 26
free, fair and peaceful election and to safeguard the interest of the
general public and the electorate in future; and,
(B) after issuing the said direction / guideline, within a further
period of three months therefrom, consider whether the actions
already done by the respondent BSP and as complained of by the
petitioner are in violation of the said guideline and if finds so, to give
an opportunity to the respondent BSP to undo the same, so as to in
future not obstruct free and fair election and if the respondent BSP
does not avail of the said opportunity, to initiate proceedings under
Clause 16A of the Symbols Order for withdrawal of recognition
thereof.
No costs.
RAJIV SAHAI ENDLAW, J.
JULY 07, 2016 ‗pp/bs' W.P.(C) No.8363/2010 Page 26 of 26