Punjab-Haryana High Court
Babu Lal Singal And Others vs State Of Haryana And Others on 8 November, 1994
Equivalent citations: AIR1995P&H71, (1995)109PLR175, AIR 1995 PUNJAB AND HARYANA 71, (1995) 109 PUN LR 175, (1995) 1 LANDLR 330, (1995) 1 CURLJ(CCR) 30, 1995 REVLR 1 88
Author: R.P. Sethi
Bench: R.P. Sethi
ORDER
1. Whether a political party or its candidates have a right to contest the election to the local bodies on a particular symbol allotted to it by the Election Commission of India? Is a question required 10 be adjudicated in this petition. What is the role of a national recognised political party in a democratic polity, as we have in this country, in the elections held for local bodies including the Corporation also requires adjudication by us.
2. The petitioners who are all candidates set up by the Bhartiya Janta Party for the forth-coming election to Municipal Corporation, Faridabad, have prayed for the issuance of a direction to the respondents to allot the symbol of Lotus after quashing the notification, Annexure P/1, by which the symbol of Lotus for allotment to its candidates contesting the election to the said Corporation has been excluded. It is submitted that after the incorporation of the Haryana Municipal Corporation Act, 1994 (for short the 'Act') the only town of Faridabad in the State of Haryana having a population of more than five lacs was considered to be the Municipal Corporation for which election schedule was announced on 13-10-1994. According to the Schedule nomination papers were to be presented between 28-10-1994 to 2-11-1994, scrutiny of nomination paper was ;o he held on 4-11-1994, last date of withdrawal of candidature is fixed on 9-11-1994 and the polling, if necessary, is to be held on 29-11-1994 between 8.00A.M. to 4.00P.M.
3. The State of Haryana constituted State Flection Commission for the purpose of conducting the election to the Municipal Corporation in the State and Shri J. K. Duggal was appointed as one man Commission known as State Election Commission for Haryana. In exercise of the powers vested in him under Rule 20 of the Haryana Municipal Corporation Rules, 1994, the Election Commission issued a notification, Annexure P/1, by which the election symbol of Lotus allotted to the Bhartiya Jama Party by the Chief Election Commission of India was excluded. The pro forma of nomination paper is attached with the petition as Annexure P/3 which specifically provides a column indicating the name of the party by which the candidate has been set up for contesting the election. The Election Commission is stated to have issued an order called the Election Symbol (Reservation and Allotment) Order, 1968 by virtue of which a symbol is reserved for every recognised party. As the Bhartiya Janta Party is a recognised political party throughout the country, its candidates are claimed to have a right to contest all the elections in the country on its symbol i.e. Lotus. As there is no bar either under the Act or the Rules framed thereunder for any political party to set up its candidates, the respondents are alleged to have committed an illegality by depriving the petitioners their right to contest the elections on the symbol of Lotus. It is submitted that the symbol of Lotus has been purposely and intentionally excluded with a view to deprive the Bhartiya Janta Party to put its candidates in the election. The ruling Congress (I) in the State of Haryana is alleged to be afraid of Bhartiya Janta Party which is alleged to be the motive for exclusion of the symbol of Lotus from the list of election symbols issued vide notification, Annexure P/1. It is submitted that it is the fundamental right of a political party to contest the election on the particular symbol. It is the legal and statutory right to contest the election on the symbol of their choice. It is contended that the Bhartiya Janta Party has already prepared the material to canvass for the petitioners treating them to be the candidates belonging to that political party and in case the symbol of Lotus is not allotted it would result in the loss of lakhs of rupees,
4. In the reply filed on behalf of the State Election Commissioner, it is submitted that the petitioners have no right to file the present petition as no legal or fundamental rights of the petitioners have been infringed. The noti-
fication prescribing symbols lor the contesting elections under sub-rule (1) of Rule 20 of the Municipal Corporation Rules. 1994 (for short the Rules) was published on 12-9-1994 and the petitioners did not object to it for a pretty long time. The election of the the Municipal Corporation is required to be held on or before 30-11-1994 under the Act which was enacted to give effect to the Constitution (74th Amendment) Act of 1992. The Election Commissioner has a legal right to prescribe the symbols out of which any candidate can ask for any symbol. The prescribing of column for filling the nomination paper is not disputed but it is submitted that the column merely means to indicate that a candidate has been put up by a particular recognised political party and allotment of symbol is claimed to be within the authority of the State Election Commissioner. It is submitted that neither any leader of the Bhartiya Janta Party nor any candidate has approached the State Election Commission in writing for allotment of Lotus symbol. Respondent No. 2 has claimed to be an independent statutory authority under the Act and no other person or statutory authority has any right to interfere in the matter entrusted to him under the Act and the Rules framed thereunder. The State Election Commissioner claims to be not bound to accept the allotment of symbols made by the Chief Election Commissioner of India. It is denied that the State Election Commissioner has purposely or intentionally excluded the symbnol of Lotus from the list of symbols notified by it. It is claimed that the Commission has prescribed its symbols for the contesting candidates and none of the symbols prescribed by Election Commission of India for National/State Political Parties including the Bhartiya Janta Party has been prescribed by the State Election Commission. Candidates of all the political parties are equally placed for the choice of the symbols out of those notified by the Commission.
5. In the affidavit filed on behalf of respondent No. 1, it is submitted that holding of elections of the Municipal Corporation is a constitutional function of the State Election Commission under Article 243ZA and 243K of the Constitutions (as amended by 74th Amendment Act). The State Election Commission is required to follow its own procedure with regard to the conduct of election in accordance with the rules framed by the State Government especially with regard to the allotment of symbols to the candidates. An-nexure P/1 has been issued by the State Election Commission under Rule 20 of the Rules. By this notificatin the election symbols of the ruling Congress (I), V. H. P., B. J. P., R. S. J. P. etc. have also been excluded. No favourtism is stated to have been shown to any of the political parties.
6. In the written statement filed on behalf of respondent No. 4, it is submitted that despite the issuance of notification on 12-9-1994, none of the petitioners challenged the notification in time and have approached this Court at this stage with the purpose of only frustrating the election process. The notification is claimed to have been issued in accordance with the provisions of the law and is within the powers of the Election Commission. It is submitted that issuance of any direction at this stage would require fresh elections of Municipal Corporation of Faridabad which would be against the provisions of the Act requiring the elections to be held for Faridabad Municipal Corporation on or before 30-11-1994. No fundamental or legal right of the petitioners has been alleged to be violated.
7. In the written statement filed on behalf of respondent No. 3, it is submitted that according to the proviso to sub-section (4) of Section 4 of the Act, the first election to the newly created Corporation shall be held within a period of six months. As the Municipal Corporation was constituted on 31-5-1994, its elections are compulsorily required to be completed on or before 30-11-1994. The election programme has since been notified and the election process has started. In case, the notification (Annexure P/1) issued by the State Election Commission publishing the symbols to be allotted to the contested candidates is quashed or allowed to include the other symbols of the political parties, a fresh notification for the election of Municipal Corporation, Faridabad, shall be required and in that case it shall not be possible to hold the election within the stipulated period which would frustrate the whole of the Scheme of Constitution and would violate the provisions contained in the Act. Symbols of all national parties have been excluded to maintain the real local self government/ regional autonomy and no prejudice is caused to the Bhartiya Janta Party or the petitioners. The election petition is alleged to be misconceived and premature.
8. We have heard the learned counsel for the parties and perused the record.
9. No person or a political party has a right to contest the election to the local bodies on a particular specified symbol. It is true that the political parties are inherent part of democratic polity in our system but it does not confer any special right upon such political parties to claim the allotment of a particular symbol for the purpose of election to the local bodies which arc claimed to be being held on non political party basis. Rule 20 of the Rules provides that the State Election Commission shall by a notification to be published in the official gazette list the symbols along with the restrictions, if any, subject to which those may be chosen by the candidates at the election and may, in the like manner, add to or vary such list. The petitioners have not challenged the vires of the aforesaid Rule 20. If the aforesaid Rule is legal and valid, the petitioners cannot have any grievance for exclusion of the symbol of Lotus from the list of symbols to be allotted to the candidates desirous of contesting the election to the Corporation. The claim of the petitioners that they have a right to the allotment of symbol of Lotus under the Election Symbols (Reservation and Allotment) Order, 1968 is misconceived inasmuch as the said order specifically provides:
"An order to provide for specification, reservation, choice and allotment of symbols at elections in Parliamentary and Assembly Constitutencies, for the recognition of political parties in relation thereto and for matters connected therewith."
The political party recognised at the national level or at the State level have a statutory right to claim the allotment of a symbol for the purposes of elections only in parliamentary or assembly constitutencies and not for the local bodies including the Municipal Corporation. While issuing the aforesaid order of 1968, the Election Commission of India had in mind a specific object sought to be achieved which cannot be applied with respect to the elections held for the local bodies including the corporation. The respondent -- Election Commission in its wisdom excluded the symbol of all political parties recognised by the Election Commission at national and State levels and all political parties have been treated alike. The petitioners or the Bhartiya Janta Party cannot have any special grievance as has been projected in the present writ petition. We are also conscious of the fact that the election process for election to the Corporation has already commenced and interference at this stage may hamper the election and protract its holding which may be against the provisions of the Act requiring the election to be held within a period of six months only. Any direction at this stage would require fresh notification which may ultimately defeat the object for which the Act was enacted and the Rules framed. The role of the political parties is admittedly a basic characterstic in a democratic set up but no person or party can claim a right to stand in the election to be a fundamental right. Relying upon the earlier judgments in N. P. Ponnuswami v. The Returning Officer, AIR 1952 SC 64 and Jagan Nath v. State of Punjab, AIR 1957 SC 201 (sic) it was reiterated by the Supreme Court in Jyoti Basu v. Debi Ghosal, AIR 1982 SC 983 as under at page 986 :--
"A right to elect, fundamental through it is to democracy, is, anomalously enough, neither a fundamental right nor a common law right. It is pure and simple, a statutory right. So, is the right to be elected....."
10. Similarly, in Rama Kant Pandey v. Union of India, 1993 (I) JT SC 440 : (1993 AIR SCW 2209), it was held by the Supreme Court that right to vote or right to elect is neither a fundamental nor a civil right but was a pure and simple statutory right.
11. In Mohan Lal Tripathi v. The'District Magistrate Rae Bareilly, 1992 (4) JT SC 363 (AIR 1993 SC 2042) again it was by the Supreme Court as under at page 2045 of AIR:--
"Democracy is a concept, a political philosphy an ideal practised by many nations culturally advanced and politically mature by resorting to governance by representatives of the people elected directly or indirectly. But electing representatives to govern is neither a 'fundamental right' nor a 'common law right' or a 'political right' or 'Privilege' and not a 'natural' 'absolute' or 'vested right'. Concepts familiar to common law and equity must remain stranger to Election Law unless statu-torily recognised."
12. There is no force in the argument of the learned counsel for the petitioner that there has been discrimination or violation of Article 14 of the Constitution of India because all the national recognised political parties have been treated alike and no discrimination has been made. The mere fact that the nomination paper refers to the mentioning of the name of the party by which the candidate was sponsored does not confer a right upon the petitioners to get a particular election symbol.
13. In view of what has been stated herein above, the petitioners have failed to show us the violation of any fundamental or legal right requiring our interference. It has, however, been urged that the respondent-Election Commissioner and the Returning Officer should have allotted one symbol to all the petitioners so that they could be identified to be candidates of the Bhartiya Janta Party. Without conceding the legal proposition put forth by the learned counsel for the petitioner, the learned Advocate-General, Haryana, appearing for the respondents has submitted that the respondents have no objection if a direction is issued to allot one symbol to all the petitioners who belong to the Bhartiya Janta Party. On the basis of the concession made and with the consent of the learned counsel for the parties, it is directed that all the petitioners who are candidates of the Bhartiya Janta Party shall be allotted the symbol of 'Rising Sun' as specified at item No. 23 of Annexure P/1 even if some other candidate has given the preference for 'Rising Sun' that would not debar the Returning Officer and the State Election Commissipner from allotting the said symbol to the petitioners and three other candidates of the Bhartiya Janta Party whose names are not included in the array of the petitioners but who have been sponsored for Ward Nos. 1, 13 and 24. The allotment of the symbol of 'Rising Sun' to the petitioners and three other candidates Bhartiya Janta Party shall not be deemed to be a precedent as the order has been passed upon the commission by the learned counsel for the respondents.
14. With the above order and directions, the writ petition stands disposed of. A copy of the order be furnished today itself to Mr. H. L. Sibal, Advocate-General, Haryana, appearing for the respondent-State for compliance of directions contained in this order. A copy of the order be also supplied to the counsel for the petitioner today itself on payment.
15. Order accordingly.