Supreme Court: In an appeal filed against decision of Division Bench of Jammu and Kashmir and Ladakh High Court upholding interim order passed by the Single Judge on 9-08-2023 against refusal of plough symbol to Jammu & Kashmir National Conference for General Elections of Ladakh Autonomous Hill Development Council, Kargil (‘LAHDC’), the Division Bench of Vikram Nath and Ahsanuddin Amanullah*, JJ. set aside the entire election process so conducted and issued directions for conduct of elections afresh.
Factual Background
The instant matter was initiated at the instance of Jammu and Kashmir National Conference before publishing of notification dated 02/05-08-2023 by impugning notification dated 26-07-2023 for non-allocation of the plough symbol for its candidates to contest the then-upcoming LAHDC Kargil General Elections. When JKNC approached the ECI regarding denial of plough symbol, it said that ECI does not allocate any symbol for local body elections and that it was a domain falling under the State Election Commission. It had further stated that in the absence of any Legislative Assembly in Ladakh and 1968 Order restricting any recognition to parties in a Union Territory without Legislative Assembly, JKNC could not be recognized. It was added that it was a recognized State party with its reserved symbol being the plough, it could avail concession under Paragraph 10 of 1968 Order.
The ECI’s updated notification contained the name of JKNC recognized as a State Party amongst the names of recognized National and State Parties along with free symbols. During several representations made before the authorities concerned seeking recognition as State Party and allotment of plough symbol for all elections in Ladakh, the opinion of Law Department was advised to be incorporated for recognition and providing reserved symbol for LAHDC elections, but no action was taken.
The ECI’s notification dated 26-07-2023 was challenged before the High Court seeking mandamus to notify plough symbol as its reserved symbol for elections to LAHDC. The matter was decided in JKNC’s favour by the Single Judge of High Court on 9-08-2023 and confirmed by the Division Bench on 14-08-2023 keeping regard with the schedule of elections to constitute the 5th LAHDC, Kargil.
Court’s Analysis
The Court perused the relevant provisions of Election Symbols (Reservation and Allotment) Order, 1968 (‘1968 Order’) regarding restriction on allotment of symbols reserved for State parties, concessions to candidates set up by State party or unrecognized party, choice of symbols by other candidates, disputes regarding elections and procedure for such disputes.
With reference to a catena of cases including Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225; Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1; Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625, the Court stated the settled principle of Basic Structure of the Constitution that the powers vested with the Supreme Court as well as the High Courts as per the Constitution cannot be abridged, excluded or taken away. Pointing out the Ladakh Autonomous Hill Development Councils Act, 1997 (‘1997 Act’), the Court hinted that Section 12 of the same need not detain the Court, and regarding Section 13, the referred to State of U.P. v. Mohd. Nooh, 1958 SCR 595 and several other cases to state that the availability of alternative efficacious remedy did not bar the high prerogative writ jurisdiction and cannot impede a Constitutional Court from proceeding further.
The Court noted that the Election Commission of India (‘ECI’) conducts elections of Parliament, Legislative Assemblies and Councils of the State. The Union Territory of Ladakh currently lacks a Legislative Assembly and the last Parliamentary constituency was held in 2019. The Court clarified that the legal opinion of the Law Department was restrained to internal advice/consideration for appropriate decision, and did not create any right in favour of the parties as was held in Mahadeo v. Sovan Devi, 2022 SCC OnLine SC 1118. The same was explained in detail in Kalpana Mehta v. Union of India, (2018) 7 SCC 1 and the Court took the observations in the said decision to be in perfect sync with the expectations of Constitutional Courts, not restricted to Articles 32 or 226 but ‘lay down a talisman of sorts’.
Pointing out the submission that the appellants were entitled to take independent decision, and that the ECI was competent authority to allot symbols and not the Election Authority of the Union Territory of Ladakh constituted under Rule 5 of The Ladakh Autonomous Hill Development Councils (Election) Rules, 1995, the Court regarded the same to be against their stand before the Division Bench. The Court considered the said stand and explained that the appellants’ entitlement to an independent decision could not be whimsical, arbitrary or capricious, and had to be lawful discretion, reasonable, equitable and just. It said that “a genuine request, in the attendant facts, could not have been turned down only on the ground that there was no provision for the same, when such request could be acceded to (i) without any violation of law, and; (ii) is within the jurisdictional domain and capacity of the authority concerned, and; (iii) does not prejudice any other stakeholder, and; (iv) does not militate against public interest.”
Commenting on the High Court’s power, the Court clarified that being a Constitutional Court, the High Court could not be precluded from issuing a direction under Article 226 of Constitution of India, when such direction did not violate any statutory provision. The Court cited High Court of Tripura v. Tirtha Sarathi Mukherjee, (2019) 16 SCC 663 for the Court affirming the High Court’s power to direct actions in rare and exceptional situations lacking any mention in the provisions concerned. The Court expressed that “Elections to any office/body are required to be free, fair and transparent. Elections lie at the core of democracy. The authority entrusted by law to hold/conduct such elections is to be completely independent of any extraneous influence/consideration.” The Court was ‘surprised’ by the Ladakh authorities not only denying the plough symbol, but not leaving any stone unturned in resisting and frustrating a cause by efflux of time, even after timely decision of the Single Judge of High Court.
The Court showed concern that “the Appellants, while sitting on the representation of JKNC, went ahead and notified the elections on 02/05.08.2023. We are unable to appreciate such conduct. This recalcitrance to decide in time speaks volumes. Instances like these raise serious questions.” The Court did not find any merit in the instant appeal while holding the request for allotment of the Plough symbol as “bonafide, legitimate and just, for the plain reason that in the erstwhile State of Jammu and Kashmir (which included the present Union Territory of Ladakh), it was a recognized State Party having been allotted the Plough symbol. Upon bifurcation of the erstwhile State of Jammu and Kashmir and the creation of two new Union Territories, namely the Union Territory of Jammu and Kashmir and the Union Territory of Ladakh, though the ECI had not notified R1 as a State Party for the Union Territory of Ladakh, it cannot be simpliciter that R1 was not entitled for the allotment of plough symbol to it, in the factual background.” The Court refused to countenance the appellants’ attempts to approbate and reprobate.
The Court explained that there was no conflict with any other stakeholder since the plough symbol was neither exclusively allotted to any National or State party, nor one of the symbols shown in the list of free symbols. The Court pinpointed that the Union’s contention against allotting plough symbol was not supported by any reason or legal impediment was shown, and thus, the provisions of 1968 Order could be safely relied upon as a guideline to exercise of executive power of like nature. The Court further stated that a harmonious reading of Paragraphs 9, 10, 10(A) and 12 of 1968 Order would clearly indicate that JKNC’s request was justified.
For the contention of election process having reached the penultimate stage, the Court rejected the same saying that “Having chosen, with eyes open, to not comply with successive orders of the learned Single Judge and the learned Division Bench, both of which were passed well in time, such as not to stall/delay the notified election schedule, the Appellants cannot be permitted to plead that interference by us at this late juncture should not be forthcoming.” The Court was cautious that no one should have an impression that systemic delay or matter not taken up by the Courts leading to efflux of time would defeat the cause and the Court would be rendered helpless in ensuring justice. Referring to decision in Nabam Rebia & Bamang Felix v. Dy. Speaker, Arunachal Pradesh Legislative Assembly, (2016) 8 SCC 1, it said that the Court could even turn back the clock if the situation warranted such measures, and that the Court’s power to restore status quo ante.
Directions for High Court for matters under reference/review
The Court finger pointed at the judgments and orders by High Courts not deciding cases on the ground of leading judgment being referred to a larger bench, awaiting decision, and refusal to defer to Supreme Court judgments because of later coordinate bench doubting its correctness, the Court suggested the High Courts to proceed with the decisions based on law as it stood, and made it clear that it was not open to await an outcome of reference or review petition unless specifically directed. The Court further restricted following a judgment stating that the same was doubted by a later Coordinate Bench. In case of conflicting judgments decided by Benches of equal strength, the earlier one had to be followed by the High Courts, as held in National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680, and to do so being careful to the facts and circumstances of the case.
The Court indicated that the self-imposed restraint by the Courts as a general principle in election matters subject to matters wherein, once a notification was issued and election process started, the Constitutional Courts are loath to interfere, was not a contentious issue in the instant matter, but they were required/duty bound to step in for issues indicating unjust executive action or attempt to disturb a level-playing field between candidates/political parties without any justifiable or intelligible basis. The Court backed the hand-off approach of the Courts having the objective of ensuring that elections, being a manifestation of people’s will, were taken to their logical conclusion without any delay or dilution and held the Single Judge’s decision justified. The Court expressed that the appellants’ discretion was not unbridled but was guided by 1968 Order.
The Court observed that JKNC approached the Court well in time for relief in their favour, and the same was upheld during appeal. The Court held the appellants responsible for the ‘present imbroglio’, and the said facts could not be broadly equated with other hypothetical scenarios warranting a complete hands-off approach. The Court took note of lurking danger of authorities arbitrarily using their powers relating to elections, being complacent and over-confident of non-interference by the Courts. It said that “conduct by authorities as exhibited herein may seriously compel the Court to have a comprehensive re-think, as to whether the self-imposed restrictions may need a more liberal interpretation, to ensure that justice is not only done but also seen to be done and done in time to nip in the bud any attempted misadventure.”
For State highlighting that nobody from JKNC filed nomination form by the last date, the Court explained that nobody could have filled the form in the absence of plough symbol neither being reserved nor a free symbol, having eclipsed their identity as a political party right before election to LAHDC. The Court reiterated the importance of symbol in the electoral system through Sadiq Ali v. Election Commission of India, (1972) 4 SCC 664, as relied upon in Edapaddi K. Palaniswami v. T.T.V. Dhinakaran, (2019) 18 SCC 219.
Conclusion
The Court set aside the entire election process initiated after notification dated 2-08-2023 and directed the authorities to issue a fresh notification within 7 days for elections to constitute 5th LAHDC, Kargil. The Court declared Jammu & Kashmir National Conference to be entitled to exclusive allotment of the Plough symbol. The Court further dismissed the instant appeal and imposed the cost of Rs 1 lakh to be deposited in the Supreme Court Advocates on Record Welfare Fund.
[Union Territory of Ladakh v. Jammu & Kashmir National Conference, 2023 SCC OnLine SC 1140, decided on 6-09-2023]
Judgment authored by: Justice Ahsanuddin Amanullah
Know Thy Judge | Supreme Court of India: Justice Ahsanuddin Amanullah
Advocates who appeared in this case :
For Petitioners: Additional Solicitor General K.M. Nataraj, Advocate Sharath Nambiar, Advocate Nakul Chengappa K.K., Advocate Vatsal Joshi, Advocate Indra Bhakar, Advocate Vinayak Sharma, Advocate A. Srinivas Udupa, Advocate Chitransh Sharma, Advocate on Record Shreekant Neelappa Terdal
For Respondents: Advocate S.N. Terdal, Senior Advocate Sd Sanjay, Advocate Akshat Agrawal, Advocate on Record Akshay Amritanshu, Advocate Ashutosh Jain, Advocate Samyak Jain, Advocate on Record Shakil Ahmad Syed, Advocate Shariq J. Reyaz, Advocate Mohd. Parvez Dabas, Advocate Uzmi Jameel Husain, Advocate Aqib Baig
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