Telangana High Court
Samajwadi Forward Bloc Party vs Election Commission Of India on 26 March, 2019
Equivalent citations: AIR 2019 TELANGANA 46, (2019) 3 ANDHLD 368
Author: A. Rajasheker Reddy
Bench: Thottathil B.Radhakrishnan, A.Rajasheker Reddy
HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
THE HON'BLE THE CHIEF JUSTICE SRI THOTTATHIL B.
RADHAKRISHNAN
&
THE HON'BLE SRI JUSTICE A. RAJASHEKER REDDY
****
WP No.4092 of 2019
Between:
SAMAJWADI FORWARD BLOC PARTY
REP. BY ITS NATIONAL PRESIDENT
....Petitioner
&
ELECTION COMMISSION OF INDIA,
NEW DELHI, REP. BY ITS SECRETARTY AND & ANOTHER
...Respondents
DATE OF JUDGMENT PRONOUNCED: 26-03-2019
SUBMITTED FOR APPROVAL:
1. Whether Reporters of local newspapers
may be allowed to see the Judgment? Yes/No
2. Whether the copies of judgment may be
marked to Law Reporters/Journals Yes/No
3. Whether Your Lordships wish to
see the fair copy of the Judgment? Yes/No
______________________________
A. RAJASHEKER REDDY, J
2
*THE HON'BLE THE CHIEF JUSTICE SRI THOTTATHIL B.
RADHAKRISHNAN
&
*THE HON'BLE SRI JUSTICE A. RAJASHEKER REDDY
+WP No.4092 of 2019
%26-03-2019
# SAMAJWADI FORWARD BLOC PARTY
REP. BY ITS NATIONAL PRESIDENT
....Petitioner
&
$ ELECTION COMMISSION OF INDIA,
NEW DELHI, REP. BY ITS SECRETARY AND & ANOTHER
...Respondents
< GIST:
> HEAD NOTE:
! Counsel for PETITIONER: Sri P. Shashi Kiran
^Counsel for Respondent R1: Sri Avinash Desai
^Counsel for Respondent R2: Sri J. Ramchander Rao
? Cases referred
1. (1985) 4 SCC 628
2. (2008) 14 SCC 318
3. 1994 SCC OnLine AP 542
4. (1972) 4 SCC 664
3
THE HON'BLE THE CHIEF JUSTICE
SRI THOTTATHIL B. RADHAKRISHNAN
&
THE HON'BLE SRI JUSTICE A.RAJASHEKER REDDY
WP No.4092 of 2019
ORDER :( per the Hon'ble Sri Justice A. Rajasheker Reddy ) This writ petition seeks to issue a writ more particularly, one in the nature of writ of mandamus declaring the action of the 1st respondent in unilaterally proposing to strike down the "Truck" symbol allotted to the petitioner political party during the elections held to the Telangana State Legislature Assembly, 2018 without issuing any notice as being illegal, arbitrary, violative of principles of natural justice, violative of Articles 14 and 19 of the Constitution of India besides, violative of provisions of the Representation of People Act, 1951 and contrary to the provisions of Election Symbols (Reservation and 4 Allotment) Order, 1968 (for short, "the Election Symbols Order") and; consequently direct the 1st respondent to desist from the proposed action and to extend the concession of allotting "Truck" symbol to the petitioner party in the ensuing elections 2019 to be held to the House of People, as also the Legislative Assemblies in all the States including the State of Andhra Pradesh, to meet the ends of justice.
02. Facts that gave rise to the lis, briefly stated are:-
petitioner is a registered political party viz., (Samajwadi Forward Bloc) party, ("petitioner party" for short), sought for grant of common symbol to its candidates set up in various constituencies in the State of Telangana during 2018 elections vide application dated 18-09-2018. In pursuance thereof, the 1st respondent vide proceedings dated 29-09-2018 allotted common symbol "Truck" to the petitioner 5 party. Two more applications were made on 03-10-
2018 and 23-10- 2018 to allot "Truck" symbol to its candidates contesting in all the 119 constituencies in the State of Telangana. Purportedly, when 1st respondent remained un-sensitised to the applications made by it, petitioner party moved a writ petition, being WP No.40816 of 2018 and in the meanwhile, the 1st respondent issued proceedings dated 15-11-2018 allotting common symbol "Truck" to all the candidates of the petitioner party and since the issue was resolved, the writ petition came to be closed as infructuous by order dated 16-11-2019.
03. The grievance of the petitioner party is that the General Secretary and the President of the 2nd respondent party, (Telangana Rastra Samithi) symbol "Car" made representations seeking to delete certain symbols, one among them being the "Truck" symbol 6 allotted to the petitioner party solely on mere apprehension, not supported by any iota of evidence, that it resembles their party symbol "Car" from the free symbols list of States of Telangana and Andhra Pradesh. The petitioner party also alleges that at the behest of the 2nd respondent party, the 1st respondent has recommended for removal of the symbol "Truck" from the list of free symbols in the States of Telangana and Andhra Pradesh. According to the petitioner party the design of the symbol "Truck" is distinct and there is no scope for confusion among the electorate with the design of the symbol "Car" and "Truck". That the 2nd respondent party itself was formed for the separate Statehood of Telangana and from the day of its inception, till date, at no point of time it had contested elections in Andhra area districts now forming part of the residuary State of Andhra Pradesh. Hence, the 7 conclusion reached by the 1st respondent to delete the "Truck" symbol allotted to the petitioner party on the ground that it resembles to the reserved symbol (Car) is without any material and justification.
04. A perusal of the averments made in the counter affidavit filed in the matter by the Deputy Chief Electoral Officer, who has been authorised to depose on behalf of the 1st respondent is to the effect that under Order 10B of the Election Symbols Order, the 'candidates' of a registered unrecognised party may be allotted a common symbol subject to fulfilment of certain conditions. That the Election Symbols Order provides for a one-time concession for allotment of common symbol to the candidates of an unrecognised party. That free symbol allotted as a common symbol is available for candidates of other parties/independent candidates in those 8 constituencies in which the party does not field candidates. The allotment of common symbol to the candidates of an unrecognised political party does not mean that the symbol is reserved for that political party as symbols are allotted on a first-come-first- served basis. That an unrecognised political party cannot insist on allotment of particular symbol either to the party or to the candidates sponsored by it. It is stated that representations from 2nd respondent party to delete "Truck" from the list of free symbols were received on the premise that it is similar to their symbol "Car" and creating confusion amongst the voters. That on consideration of the matter, the Election Commission decided to delete the symbol "Truck" from the list of free symbols in the States of Andhra Pradesh and Telangana, where the 2nd respondent is a registered recognised political party. 9 That several other political parties in Telangana and Andhra Pradesh had applied for allotment of the symbol "Truck" prior to the petitioner political party making application for allotment of symbol "Truck" and therefore, in any event the petitioner political party would not be entitled for allotment of symbol "Truck" as the free symbols are allotted on the first- come first-served basis.
05. Heard the learned counsel for the petitioner, Sri Avinash Desai, learned counsel for the 1st respondent and the learned counsel Sri J. Ramchander Rao for the 2nd respondent.
POINTS ::
(i) Whether the petitioner political party is entitled for allotment of "Truck" symbol or further extension of concession under Order 10B of the Election Symbols Order for the second time; &
(ii) Whether the conclusion reached by the 1st respondent to delete the symbol "Truck" from the free list of symbols in the States of Telangana and Andhra Pradesh acting on the representations made by the 2nd respondent political 10 party is bad in law and violative of the principles of natural justice.
06. Points (i) & (ii) :: Article 324 of the Constitution of India provides for superintendence, direction and control of the preparation of electoral rolls for and the conduct of all elections to Parliament and Legislative Assemblies of the States and all elections to the offices of President and Vice-President held under the Constitution shall vests with the Election Commission of India. The Election Symbols Order has been issued by the Election Commission in exercise of the powers conferred by Article 324 of the Constitution of India.
07. The preamble of the Election Symbols Order provides that in the interest of purity of elections to the House of the People and the Legislative Assembly of every State and in the interest of the conduct of such elections in a fair and efficient manner, for the 11 specification, reservation, choice and allotment of symbols, for the recognition of political parties in relation thereto and for matters connected therewith. The Election Symbols Order makes detailed provisions for recognition of parties, allotment of symbols and their specification, reservation, choice thereof and its constitutional validity was upheld by the Supreme Court in KANHIYA LAL OMAR vs. R.K TRIVEDI1.
08. Para 2 of the Election Symbols Order contains various definitions and interpretation thereof. Clause
(h) of Para 2 defines political party as an association or body of individual citizens of India registered with the Commission as a political party under Section 29A of the Representation of People Act, 1951. Para 4 provides for allotment of symbols. Para 5 deals with the classification of symbols. As per Para 5 of the 1 (1985) 4 SCC 628 12 Election Symbols Order, a reserved symbol is a symbol reserved for a political party for exclusive use by that party. A symbol other than the reserved symbol has been described by the said paragraph to be a free symbol. Political parties have been classified as recognised political parties and unrecognised political parties and a recognised political party shall either be a National party or a State party as per Para 6. Para 6A stipulates the conditions for recognition as a State party and likewise 6B specifies the conditions for recognition as a National party.
09. Petitioner party is a registered political party with the 1st respondent vide Registration No.56/47/2016-17/PP1, dated 10-08-2017 and it being an unrecognised political party, it is entitled under Order 10B of the Election Symbols Order for 13 allotment of a common symbol on an application being made in the prescribed format. The petitioner political party has been extended the facility of one-time concession at the general elections held to the State Legislature Assembly in 2018 and allotted the symbol "Truck".
10. Clause (ii) of Explanation to Para 10B states that a political party which availed of the concession of allotment of common symbol to the candidates, be eligible for the concession in any subsequent general elections provided the votes polled by all the contesting candidates set up by the party at the general election in the State concerned was not less than 1% of the total valid votes polled in the State. The valid votes polled to the petitioner party in all the constituencies in the State is less than 1% of the total valid votes 14 polled and it could secure only 0.8% votes, which is less than 1% of the total votes polled as such petitioner's party is not entitled for the same concession in subsequent general election under this provision.
11. Clause (iv) of Explanation to Para 10B stipulates that allotment of common symbol shall be done on first-come-first-served basis. In this case applications dated 21-01-2019, 15-01-2019, 31-12-2018 and 22- 12-2018 from parties like Telangana Praja Party, Aadhi Abadhi Party, Bahujan Rajyam Party (Phule Ambedkar) and Navrang Congress Party respectively were already received for the allotment of the same symbol "Truck" which are prior in time than the application of the petitioner party dated 07-02-2019, as such petitioner party would not be entitled for such 15 allotment of common symbols under this provision too. The petitioner party is a registered party and not a recognised State or National party. It has not acquired any statutory right muchless indefeasible right for allotment of a particular symbol and in such circumstance, it cannot question the decision to delete the free symbol as a matter of vested right on the ground of violation of principles of natural justice or on the ground of discrimination in allotting free symbols. (see SUBRAMANIAN SWAMY vs. ELECTION COMMISSION OF INDIA2).
12. A Division Bench of this Court in ALL INDIA MAJLIS-E-ITTEHADUL MUSLIMEEN vs. THE CHIEF ELECTION COMMISSION OF INDIA, NEW DELHI3 dealing with a similar fact situations as the one on hand at para 35 held thus:-
2
(2008) 14 SCC 318 3 1994 SCC OnLine AP 542 16 "35.At the risk of repeating ourselves we may say that under the Symbols Order, 1968 a reserved symbol is a symbol reserved for a political party for exclusive use by that party, while a symbol other than the reserved symbol is treated as "free symbol". Political parties have been classified as "recognized political parties" and "unrecognised political parties". The recognized political party is either a National party or a State party. The right therefore, if any, has been created only in favour of either the National party or the State party by making a specific provision in the Symbols Order, 1968 as also the 1961 Rules, that the reserved symbol shall not be allotted to any other party or candidate and shall be allotted only to the recognized political party either of the State level or the National level, and to the candidates sponsored by those parties at the Parliamentary or Assembly Elections. An unrecognized political party has no right to insist on the allotment of a particular symbol either to the party or to the candidates sponsored by it, as the party or the candidates sponsored by it have to be allotted a free symbol in accordance with the provisions of the Symbols Order, 1968 and the 1961 Rules, or any other statutory provision in that regard".
13. A person contesting on behalf of a recognised political party will inherit the symbol allotted to the recognised party. An independent candidate or a candidate contesting on behalf of an unrecognised 17 political party has to chose a symbol from the list of 'free' symbols available or chose the symbol suggested by it if it conforms to the conditions laid down in Para 10B of the Election Symbols Order. Reservation of symbol would imply that a recognized political party would get an opportunity to make canvass with its symbol throughout the area, which facility is not available to the political parties, whose symbols have not been reserved. It is stated in the counter affidavit that the similar decisions were taken when it is an apprehension of elector mistaking one symbol for another on the representation of political parties that the symbol is similar to their symbol. The Supreme Court in SUBRAMANIAN SWAMY (supra 1) held;
34. "......A symbol is not a tangible thing nor does it generate any wealth, it is only the insignia which is associated with the particular political party so as to help the millions of 18 illiterate voters to properly exercise their right to franchise in favour of the candidate of their choice belonging to a particular party. In the election process it is not merely the individual candidate's personality or his identity that weighs with the voters. It is undoubtedly a very relevant factor but along with it the voter also can and does vote in favour of the party. It is under such circumstances that the symbol becomes relevant and important. However, all that it provides is the essential association that it has with a particular party. The concerned party would have a legal right to exclusively use the same but that is not, in our considered opinion, a property of the party and, therefore, the Election Commission which is required to ensure free, fair and clean elections have every right to deprive a particular party with a dismal performance of that symbol. The Election Commission puts a clamp on the right of such a political party to use the symbol rightfully. We are, therefore, not in a position to accept the argument that symbol is a property of a party and, therefore, such property cannot be taken away from that political party. The symbol may be an outcome of intellectual exercise but it does not become an "intellectual property" which concept has monetary implications. In case of a political party as contemplated in Symbols Order, monetary angle is conspicuously absent." 19
14. The importance of symbols in Indian electoral politics is well-known. It is not out of place to mention here that usually the electorate vote identified by the symbol of the party. Illiterate rural electorate mostly remember the political parties with their symbols and any near similarity of the symbols of two or more political parties may create confusion in the electorate. The object is to ensure that the process of election is as genuine and fair as possible and that no electorate should suffer from any handicap in casting his vote in favour of a candidate of his choice. It is the submission of the learned counsel for the 1st respondent that the Election Commission on being satisfied that the symbol "Truck" is similar to the reserved symbol "Car" of the 2nd respondent party and there is every possibility that the electorate mistaking one symbol for another. Even otherwise, the 20 similarities of "Truck" symbol with "Car" symbol is examined by the 1st respondent-Election Commission and a decision has been taken to delete the same which cannot be interfered by this Court by exercising power of judicial review under Article 226 of the Constitution of India as this Court is not exercising appellate jurisdiction over the decision of the Election Commission of India. The 2nd respondent party also sought for deletion of three more symbols i.e. Tractor Chalta Kisan, Electric Iron and Camera from the list of free symbols in the States of Telangana and Andhra Pradesh and out of them, the 1st respondent could concede to delete symbols of "Truck" and "Electric Iron". In SADIQ ALI vs. ELECTION COMMISSION OF INDIA4, the Supreme Court in a similar fact 4 (1972) 4 SCC 664 21 situations of allotment of symbols observed at page 681 as under:-
"....The Commission is an authority created by the Constitution and according to Article 324, the superintendence, direction and control of the electoral rolls for and the conduct of elections to Parliament and to the Legislature of every State and of elections to the office of President and Vice-President shall be vested in the Commission. The fact that the power of resolving a dispute between two rival groups for allotment of symbol of a political party has been vested in such a high authority would raise a presumption, though rebuttable, and provide a guarantee, though not absolute but to a considerable extent, that the power would not be misused but would be exercised in a fair and reasonable manner..."
15. In MOHINDER SINGH vs. CHIEF ELECTION COMMISSIONER, the Supreme Court while construing Article 324 of the Constitution of India and the powers of the Election Commission held thus:-
"............there are two limitations laid on the Election Commission's plenary character in exercise of its power. Firstly, when Parliament or any State Legislature has made valid law relating to or in connection, with elections, the Commission, shall act in conformity with, not in violation of, 22 such provisions but where such law is silent Article 324 is a reservoir of power to act for the avowed purpose of, not divorced from, pushing forward a free and fair election with expedition. Secondly, the Commission shall be responsible to the rule of law, act bona fide and be amenable to the norms of natural justice in so far as conformance to such canons can reasonably and realistically be required of it a as fair play-in- action in a most important area of the constitutional order, viz., elections......the Commission is entitled to exercise certain powers under Article 324 itself on its own right, in an area not covered by the Acts and the rules". (emphasis added)
16. On the above analysis of the matter, the points are answered accordingly. The writ petition fails and it is accordingly dismissed. Miscellaneous petitions pending if any in this petitions shall also stand dismissed.
_____________________________________ THOTTATHIL B. RADHAKRISHNAN, CJ ___________________________ A.RAJASHEKER REDDY, J Dated: 26-03-2019 NRG 23 THE HON'BLE THE CHIEF JUSTICE SRI THOTTATHIL B. RADHAKRISHNAN & THE HON'BLE SRI JUSTICE A.RAJASHEKER REDDY WP No.4092 of 2019 //WEB// Dated : 2603-2019 NRG LR COPY 24