Jammu & Kashmir High Court
Harshdev Singh, Mla vs Election Commission Of India And Anr. on 27 January, 1998
Equivalent citations: AIR1998J&K80, AIR 1998 JAMMU AND KASHMIR 80
Bench: R.C. Gandhi, A.K. Goel
JUDGMENT Gandhi, J.
1. Petitioner has presented this petition seeking to quash para 6(2)(b) of the Election Symbols (Reservation and allotment) Order, 1968 (hereinafter referred to as 'Symbols Order 1968') as ultra vires and to issue appropriate directions for setting aside the order dated 29-8-1997 issued by respondent No. 1 whereby the recognition granted to the Jammu and Kashmir Panthers Party as a State party in the J & K State in terms of paras 6 & 7 of the Symbols Order 1968 as well as under the provisions of the Jammu and Kashmir Conduct of Election Rules, 1965, has been withdrawn thereby disentitling the party to exclusively use the symbol 'Bicycle' for the purpose of election.
2. The petition was initially heard by the learned single Judge who has referred it to the larger bench for disposal.
3. The petitioner has projected in the petition that the Jammu & Kashmir Panthers Party is a recognised Stale party in the State of Jammu and Kashmir, under the Symbols Order 1968 and the symbol of 'Bicycle' has been reserved for the party for the purposes of election to the House of the People and to the State Legislature in the State. The party was so recognised in 1985 and contested election in 1987. Respondent No. 1, has, by the impugned order, withdrawn the recognition on the ground that the party has not secured 4 per cent, votes in terms of para 6(2)(b) of the Symbols Order 1968. The petitioner has challenged the impugned order being illegal, improper, unconstitutional and ultra vires Article 14 of the Constitution. He has further averred that the Panthers Party had secured 4.80 per cent. votes in the general election of 1996 to the House of People in the State. The exclusion of votes secured by the defeated candidates who did secure less than 1/12th of the valid votes polled in the Assembly Election, is not justiciable and is ultra vires Article 14 of the Constitution. He has also pleaded that the National Conference (J & K) Party did not participate in the Lok Sabha election in 1996 and no such action was taken against that party and the Panthers Party has been, as such, discriminated.
4. Respondent No. 1 has filed objections slating therein that the petition is not maintainable against para 6(2) (b) of the Symbols Order 1968 as the said provision has been amended by the Election Symbols (Reservation and allotment) Amendment Order 1997 and para 6(2)(b) of the Symbols Order 1968, in the form in which it then existed, is no longer in existEnce and has been substituted by para 6(2)(b) by providing 2-A being saving provision. The said provision of amended law has not been challenged. The petitioner is guilty of suppressio veri having suppressed in this petition the fact of filing Writ Petition No. 5026/97 titled J & K Panthers Party v. Election Commission of India before the Delhi High Court challenging the impugned order which has been withdrawn on 12-12-1997 as the same was bound to be dismissed and no second petition for the same relief is maintainable. The provisions of para 6(2)(b) are intra vires and not illegal, unconstitutional or discriminatory for attracting Article 14 of the Constitution. The yardstick applied by respondent No. 1 in case of the Panthers Party for withdrawing its recognition, was similarly applicable to all the political parties throughout the country and many political parties which were recognised as State parties have lost recognition like Panthers Party. The petitioner is not entitled to seek relief unless his party had secured 4 per cent, votes excluding the votes secured by the defeated candidates who have not secured more than l/12th of the polled votes in a particular constituency. The classification placed in paras 6 & 7 has been made on rational basis which has nexus which is laudable and in the public interest to be achieved.
5. Heard learned counsel for the parties and considered the grounds taken in the petition, reply of respondents, impugned order and the notification issued by the President of India on 21-1-1998 calling upon the parliamentary constituencies of all the Stales including the State of Jammu and Kashmir to elect members to the House of People.
6. The sole controversy to be determined in this petition is as to whether the provisions of Para 6(2)(b) of the Symbols Order 1968 are ultra vires and the order impugned deserves to be set aside? Para 6(2)(b) reads as under :
"6. Classification of political parties : (1) xx xx xx (2) A political party shall be treated as a recognised political party in a State, if and only if either the conditions specified in clause (A) are, or the conditions specified in clause (B), is fulfilled by that party and not otherwise, that is to say-
(a) xx xx xx xx xx xx
(b) that the total number of valid votes by all the contesting candidates set up by such party at the general election in the State to the House of the People, or as the case may be, to the Legislative Assembly for the time being in existence and functioning (excluding the valid votes of each such contesting candidate in a constituency as has not been elected and has not polled at least one-twelfth of the total number of valid votes polled by all the contesting candidates in that constituency) is not less than four per cent. of the total number of valid votes polled by all the contesting candidates at such general election in that State (including the valid votes of those contesting candidates who have forfeited their deposits)."
7. Mr. Bhardwaj, chllenging the impugned order of respondent No. 1, has urged that the Panthers Party, during election to the House of People, did secure 4.80 per cent, polled votes and fulfilled the requirement of para 6(2)(b) of the Symbols Order 1968 which envisages that the total number of valid votes secured by all contesting candidates set up by such party at the general election in the State, should not be less than 4 per cent. of the total number of valid votes polled by all the contesting candidates at such general election in the State. Therefore, the Panthers Party has satisfied the requirement of law and application of the bracketted clause, is bad being illegal and unconstitutional which is extracted and reads :
".........(excluding the valid votes of each such contesting candidates in aconstituency as has not been elected and has not polled at least one-twelfth of the total number of valid votes polled by all the contesting candidates in that constituency).............."
Mr. Bhardwaj next contended that the National Conference party which has been recognised under the provisions of Symbols Order 1968, has not participated in the general elections to the House of People, conducted in the State in the year 1998 but recognition of that party has not been withdrawn and as such the withdrawal of recognition of Panthers Party is discriminatory.
The argument is attractive but not workable. The National Conference party in the State has participated in election to the State Legislative Assembly and secured absolute majority. Now. it cannot be said that this party ought to have been de-recognised. Nothing prevented the petitioner to move the Election Commission at the relevant time and in case he has not done so, he cannot ask for similar treatment, as Article 14 is a positive but not a negative concept. The recognition of the said party cannot be withdrawn now when it enjoys the majority support of the people of the State and has secured absolute majority in the Legislative Assembly. The discrimination as pointed out by the petitioner vis-a-vis the National Conference party, does not attract Article 14 of the Constitution in such a situation for setting aside the impugned order protecting the recognition of the Panthers' party. The argument being fallacious and unworkable, is rejected.
8. During the course of arguments, Mr. Salaria, learned Advocate General, filed a copy of notification No. 464/Sch-II/98 dated 21-1-1998, issued by the President of India calling upon all the parliamentary constituencies in the Stales toelect the members to the House of People and pursuant thereto a notification has been issued by the Secretary, Ministry of Law and Justice, Legislative Department, Govt. of India, on 21-1-1998 to hold general elections for the purpose of constituting a new Hose of the People on the dissolution of the 11th House of People and in pursuance of the provisions contained in Sub-section (2) of Section 14 of the Representation of the People Act. 1951(XLIII of 1951) to call upon 6 Jammu Parliamentary Constituency in the State of Jammu and Kashmir and all parliamentary constituencies of other States to elect members in accordance with the provisions of the said Act and rules and orders framed thereunder. Mr.Salaria, has simultaneously contended that after the issuance of notification for holding elections, the writ petition is not maintainable, as in terms of Article 329(b) of the Constitution, no election to the either House of Parliament or to the House of Legislature of a State, can be called in question except by an election petition presented to such Authority and in such a manner as may be provided for by or under any law made by appropriate legislation.
9. Mr, Salaria has supported his contention by citing a judgment of the Supreme Court reported in AIR 1978 SC 851 (Mohinder Singh v. Chief Election Commission) wherein it is held (at page 864) :--
".........The ambit and spirit of the bar imposed by the Article was elucidated with reference to the principle that 'it does not require much argument to show that in a country with a democratic constitution in which the legislatures have to play a very important role, it will lead to serious consequences if the elections are unduly protracted or obstructed'. In the view of the learned Judge, immediate individual relief at an intermediate stage when the process of election is under way has to be sacrificed for the paramount public good of promoting the completion of elections. Fazal Ali J. ratiocinated on the ineptness of interlocutory legal hold-ups. He posed the issue and answered it thus (at p. 68 of AIR 1952 SC) :
The question now arises whether the law of elections in this country contemplates that there should be two attacks on matters connected with election proceedings, one while they are going on by invoking the extraordinary jurisdiction of the High Court under Article 226 of the Constitution (the ordinary jurisdiction of the Courts having been expressly excluded), and another after they have been completed by means of an election petition. In my opinion, to affirm such a position would be contrary to the scheme of Part XV of the Constitution and the Representation of the People Act, which, as I shall point out later, seems to be that any matter which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner before a special tribunal and should not be brought up at an intermediate stage before any Court. It seems to me that under the election law, the only significance which the rejection of a nomination paper has consists in the fact that it can be used as a ground to call the election in question. Article 329(b) was apparently enacted to describe the manner in which and the stage at which this ground, and other grounds which may be raised under the law to call the election in question, could be urged. I think it follows by necessary implication from the language of this povision that those grounds cannot be urged in any other manner, at any other stage and before any other Court. If the grounds on which an election can be called in question could be raised at an earlier stage and errors, if any, are rectified, there will be no meaning in enacting a provision like Article 329(b) and in setting up a special tribunal. Any other meaning ascribed to the words used in the article would lead to anomalies, which the Constitution could not have contemplated, one of them being that conflicting views may be expressed by the High Court at the prepolling stage and by the election tribunal, which is to be an independent body, at the stage when the matter is brought before it."
(Para 24) Their Lordships further held :
"There have been amendments to these provisions but the profile remains substantially the same. After pointing out that the Act, in Section 88, and the Constitution, in Article 329(b), speak substantially the same language and inhibit other remedies for election grievances except through the election tribunal, the Court observed (at p. 69 of AIR 1952 SC) :
"That being so, I think it will be a fair inference from the provisions of the Representation of the People Act to state that the Act provides for only one remedy, that remedy being by an election petition to be presented after the election is over, and there is no remedy provided at any intermediate stage".
(Para 25) In AIR 1988 SC 61 the Supreme Court held : "...........In view of the non obstante clause contained in Article 329 of the Constitution the power of the High Court to entertain a petition questioning an election on whatever grounds under Article 226 of the Constitution is taken away. The word 'election' has by long usage in connection with the process of selection of proper representatives in democratic institutions acquired both a wide and a narrow meaning. In the narrow sense it is used to mean that the final selection of a candidate which may embrace the result of the poll when there is polling, or aparticular candidate being returned unopposed when there is no poll. In the wide sense, the word is used to connote the entire process culminating in a candidate being declared elected and it is in this wide sense that the word is used in Part XV of the Constitution in which Article 329(b) occurs........"
(Para 8)
10. The impugned order was passed by re-
spondent No. ! on 29-8-1997 and the writ petition has been presented before this Court in the month of December. 1997, i.e., after over three months. The Presidential notification for holding ejections to the House of People has been published in the Gazette of India on 21-1-1998. In this view of the matter, Mr. Salaria has argued that the election process has commenced and the High Court, because of the mandate and non obstante clause of Article 329(b) and the law laid down by the Supreme Court (supra), should not interfere with the election process, as such, the writ petition is not maintainable. In this connection, reference is made to para 91 of AIR 1978 SC 851 of which para 1 is extracted as under :--
"l(a) Article 329(b) is a blanket ban on litigative challenges to electoral steps taken by the Election Commission and its officers for carrying forward the process of election to its culmination in the formal declaration of the result.
(b) Election, in this context, has a very wide connotation commencing from the Presidential notification calling upon the electorate to elect and culminating in the final declaration of the returned candidate."
11. Considering the rival contentions urged before us and the law cited at bar it is significant and amply clear that the election process is in motion and culminates in final declaration of the results, the petitioner is left with no option but to challenge it after the election process is complete and accomplished.
12. For the aforesaid reasons the present writ petition is held to be not maintainable at this stage and is accordingly dismissed.