Delhi High Court: The present writ petition was filed under Article 226 of the Constitution seeking to pass a writ of Certiorari or any other writ/order/direction of like nature by striking down Explanation (iv) and Proviso 1 to Explanation (iv) of Order 10-B(B) of the Election Symbols (Reservation and Allotment) Order, 1968 (‘Election Symbols Order’) as being arbitrary and violative of Article 14 of Constitution. The Division Bench of Manmohan, ACJ.*, and Manmeet Pritam Singh Arora, J., opined that if petitioner’s plea was accepted, the same would operate against the essence of ‘free symbols’, as it would take away the rights and benefits granted to the unrecognized political parties to contest the elections with a free and common symbol. The Court dismissed the petition and held that the allotment of the free symbol “Ganna kisan” by Respondent 1 in favour of Respondent 2 by the impugned letters was neither arbitrary nor unconstitutional.
Background
Petitioner, Naam Tamilar Katchi was an unrecognized political party in India, registered under Section 29-A of the Representation of the People Act, 1951, on and with effect from 27-9-2013. It was stated that in the year 2019, petitioner applied and was allotted “Ganna Kisan” as its common symbol from the list of free symbols published under Order 10-B(B) of the Election Symbol Order, for the general elections of the Lok Sabha for the year 2019. The said symbol was also allotted to petitioner by Tamil Nadu State Election Commission for the local bodies’ elections for rural and urban, held during the years 2021 and 2022.
On 9-2-2024, petitioner requested Respondent 1, the Election Commission of India (‘ECI’) to allot the “Ganna Kisan” symbol to petitioner for upcoming Lok Sabha elections in the year 2024. However, for the said Lok Sabha elections, Respondent 1 vide its communication(s)/letter(s) dated 13-2-2024 and 20-2-2024 (‘impugned letter’) had directed the Returning Officers to allot free symbol – “Ganna Kisan” to the candidates set up by Respondent 2 in the State of Tamil Nadu and Puducherry. It was stated that Respondent 2 contested Karnataka General Assembly elections with the symbol of ‘Gas Cylinder’ in the year 2023.
Petitioner submitted that it sent its representations on 19-2-2024 and 24-2-2024 to Respondent 1 seeking cancelation of the allotment of “Ganna Kisan” symbol to Respondent 2 and to allot the said symbol to petitioner for the Lok Sabha elections, 2024. It was stated that as per the communication dated 17-5-2023 published on the website of Respondent 1, an application seeking allotment of free symbol should be filed from 17-12-2023 and as per applicable rules, the application for allotment of the free symbol could be made by the party till at least three months before the date of expiry of the term of the House of the People. As per the Proviso 2 to the Explanation (iv) of Order 10-B(B) of the Election Symbols Order, if two parties filed their respective applications on the ‘same date’, giving preference for the same symbol, then the symbol would be allotted to the applicant to whom the said symbol was allotted at the previous occasion as well. It was submitted that the policy of ‘first-come-first-served’ which formed the basis of the Proviso was unconstitutional considering the law laid down by the Supreme Court in Anant Raj Ltd. v. State of Haryana,(2022) 15 SCC 596.
Analysis, Law, and Decision
The Court noted that petitioner admitted that allotment of the free symbol “Ganna Kisan” to Respondent 2 was made in accordance with the procedure laid down in Order 10-B(B) of the Election Symbols Order. The Court opined that a plain reading of the impugned Explanation along with its Proviso(s) clearly showed that the said provision was based on the principle of ‘first-come-first-served’ basis and to achieve this object, and the objective criteria of determination of the ‘first’ applicant was fixed as the ‘date’ on which the application for allotment of the symbol is received by Respondent 1. The criteria of ‘date’ appeared consistently in each of the three provisos to Explanation (iv) and therefore, the method applied uniformly in its application.
The Court opined that petitioner’s contention that this Court should recast Proviso(s) 1 and 2 to replace the phrase ‘same date’ therein with appropriate words/phraseology, so as, to permit equal consideration to all valid applications received by Respondent 1, within the permissible window period, could not be acceded to. The Court opined that “firstly, petitioner’s submission ignored the repetitive occurrence of the phrase ‘same date’ as it appeared in each of the three Proviso(s) to the said Explanation (iv). Secondly, the consequence of alleged re-casting of the said Proviso(s) 1 and 2 as sought by petitioner would render otiose the Explanation (iv) itself, which provided that the allotment would be made on the principle of ‘first-come-first-served’ basis. Petitioner’s suggestion, if accepted would do violence to Explanation (iv)”.
The Court relied on Union of India v. Deoki Nandan Aggarwal, 1992 Supp (1) SCC 323; V. Jagannadha Rao v. State of A.P., (2001) 10 SCC 401; and Expeditious Trial of Cases under Section 138 of NI Act, 1881, In Re, (2021) 16 SCC 116, and opined that “the Court could not re-write the statute”.
The Court opined that the scheme of Explanation (iv) and its Proviso(s) including Proviso 1 were consistent, non-discriminatory, and applied uniformly to all eligible applicants. The language of the impugned Explanation and Proviso1 was plain and unambiguous. There was no scope for reading into Proviso 1 the plea contended by petitioner by replacing the phrase ‘same date’ with ‘within permissible time period’. A reasonable preference for political parties to whom the symbol had been allotted in the previous election and political parties who had elected representatives was also duly recognized in Proviso 2 and Proviso 3, respectively. The Court thus opined that petitioner was unable to show that the said impugned Explanation and Proviso 1 was unconstitutional.
The Court opined that if petitioner’s plea was accepted, the same would operate against the essence of ‘free symbols’, as it would take away the rights and benefits granted to the unrecognized political parties to contest the elections with a free and common symbol. Petitioner by the proposed re-phrasing was seeking to retain an advantage for the registered unrecognized political parties to get continued access to a particular free symbol and therefore indirectly converting a free symbol into a reserved symbol.
The Court dismissed the petition and held that the allotment of the free symbol “Ganna kisan” by Respondent 1 in favour of Respondent 2 by the impugned letters was neither arbitrary nor unconstitutional.
[Naam Tamilar Katchi v. Election Commission of India, 2024 SCC OnLine Del 1577, decided on 1-3-2024]
*Judgment authored by: Acting Chief Justice Manmohan
Advocates who appeared in this case :
For the Petitioner: Haripriya Padhmanabhan, Senior Advocate; Priya R., Manoj Kumar, Shrutanjaya Bhardwaj, Omkar Hemanth, Advocates
For the Respondents: Ankit Agarwal, Standing Counsel; Ashish Shukla, Advocate
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