SWARAJ INDIA vs. STATE ELECTION COMMISSION AND ANR

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ W.P.(C) 2409/2017

Reserved on: 24.03.2017
Date of decision: 29.03.2017

IN THE MATTER OF:
SWARAJ INDIA ..... Petitioner
Through: Mr. Shanti Bhushan, Senior Advocate
with Mr. Prashant Bhushan, Mr. P.S. Sharda,
Mr. Shakti Bardhan and Ms. Amiy Shukla,
Advocates

versus

STATE ELECTION COMMISSION AND ANR ..... Respondents
Through: Mr. Sumeet Pushkarna, Standing
Counsel with Mr. Siddhartha Nagpal, Advocate
and Mr. O.P. Arora (Consultant) for R-1/SEC.
Mr. Sanjoy Ghose, ASC for R-2/GNCTD.

CORAM
HON'BLE MS.JUSTICE HIMA KOHLI
HIMA KOHLI, J.
1. The petitioner herein, Swaraj India, a registered unrecognized
political party, had originally filed the present petition praying inter alia for
issuing directions to the respondent No.1/State Election Commission, NCT
of Delhi, (in short „SEC‟) and the respondent No.2/Govt. of NCT of Delhi

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(in short „GNCTD‟) to modify/quash Para 4(d) of the Municipal
Corporation of Delhi Election Symbols (Reservation and Allotment) Order,
2016 and the orders dated 21.02.2017 and 07.03.2017 passed by the
respondent No.1/SEC, rejecting its request for granting a common symbol
in the forthcoming MCD Elections, 2017 to candidates nominated by it.
The second relief is for directions to the respondent No.1/SEC to allot a
common symbol to all the candidates nominated by the petitioner for the
MCD Elections, 2017. Lastly, a restraint order has been prayed for against
the respondents, restraining them from notifying the schedule for the MCD
Elections, 2017.
2. When the petition was listed for admission on 15.3.2017,
Mr. Pushkarna, learned Standing Counsel for the respondent No.1/SEC had
appeared and stated that he had not been furnished an advance copy of the
paper book. An advance copy of the petition was served only in the office
of the Standing Counsel (Civil), Govt. of NCT of Delhi. Counsel for the
petitioner was directed to furnish a copy of the paper book to the counsel
for the respondent No.1/SEC in the course of the day and the matter was
adjourned to 20.03.2017. On 20.03.2017, learned counsel for the
respondent No.1/SEC had stated that by the date the present petition was
listed for admission on 15.3.2017, SEC had already notified the new
Symbols Order, 2017 on 14.03.2017, which has not been assailed by the
petitioner. In view of the aforesaid development, counsel for the petitioner
had sought time to file an application to amend the writ petition.

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3. Vide order dated 21.03.2017, the amendment application filed by the
petitioner was allowed and the amended writ petition was taken on record.
In the amended petition, prayer (1) was modified to assail Para 4(d) of the
Municipal Corporation of Delhi Election Symbols (Reservation and
Allotment) Order 2017 (hereinafter referred to as “Delhi Symbols Order,
2017”). Rest of the reliefs were as before. Due to the urgent nature of the
relief prayed for in the petition, learned counsels for the respondent
No.1/SEC and the respondent No.2/GNCTD were directed to obtain
necessary and complete instructions for addressing final arguments on the
petition. Thereafter, extensive arguments were advanced by learned
counsels over 22.3.2017, 23.3.2017 and 24.3.2017.
4. The relevant facts germane for deciding the present petition are as
follows. The petitioner was formed as a political party on 02.10.2016. On
10.10.2016, the petitioner applied to the Election Commission of India
(ECI) for registration. On 14.02.2017, the petitioner made a representation
to the respondent No.1/SEC that it proposed to contest in the MCD
Elections, 2017 and nominate candidates in all the 272 seats, for which a
common symbol may be granted to the party, from out of the free symbols
available with it. The said representation was turned down by the
respondent No.1/SEC vide order dated 21.02.2017. On 27.02.2017, the ECI
registered the petitioner as a registered unrecognized political party. On
the very next day, i.e., on 28.2.2017, the petitioner submitted a review
application before the respondent No.1/SEC, seeking review of its earlier

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order dated 21.02.2017, which was once again declined vide order dated
07.03.2017.
5. On 06.03.2017, MCD Elections, 2017 were notified by the
respondent No.1/SEC. On 14.3.2017, a press note was issued by the
respondent No.1/SEC announcing the elections. The present petition came
to be filed by the petitioner on 10.3.2017 and it was listed in court for
admission on 15.3.2017. Subsequently, a Notification dated 22.03.2017
was issued by the respondent No.1/SEC, declaring the schedule for
conducting the elections in all the three wards of the Municipal
Corporations of Delhi, namely, North Delhi Municipal Corporation, South
Delhi Municipal Corporation and East Delhi Municipal Corporation, to
elect councillors. The said Notification lays down the following schedule
for conducting the elections:-
“(a) Issue of notification of election 27.03.2017 (Monday)
(b) Last date of filing nominations 03.04.2017 (Monday)
(c) Date for scrutiny of nominations 05.04.2017 (Wednesday)
(d) Last date for withdrawal of candidatures 08.04.2017 (Saturday)
(e) Date of poll, if necessary 23.04.2017 (Sunday)
(f) Counting of votes for the elections 26.04.2017 (Wednesday)
(g) Completion of election by 05.05.2017 (Friday)”

6. The leitmotif of the arguments advanced by Mr. Shanti Bhushan,
learned Senior Advocate appearing for the petitioner is that non-allotment
of a common symbol to the petitioner, which is a registered unrecognized
political party, is in violation of Article 14 of the Constitution of India and
the Delhi Symbols Order, 2017 is arbitrary and discriminatory because it

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denies a level playing field to registered unrecognized political parties vis-
à-vis registered recognized political parties and therefore, Para 4(d) of the
said Order is liable to be quashed/modified being ultra vires the Statute viz,
Section 7 of the Delhi Municipal Corporation Act, 1957 (hereinafter
referred to as “DMC Act”) and the Rules made therein viz, Rule 15 of the
Delhi Municipal Corporation (Election of Councillors) Rules, 2012
(hereinafter referred to as “DMC Rules”). He submitted that as it stands,
Rule 15 is silent on the issue of granting a common symbol to a registered
unrecognized party and since it leaves the field open, it is for the
respondent No.1/SEC to fill up the vacuum to avoid any discrimination
between the two categories of parties, namely, registered recognized
political parties and registered unrecognized political parties. He contended
that having a common symbol would afford the same opportunity to a
registered unrecognized political party as is available to a registered
recognized political party for a “ unified and coordinated publicity and
campaign across all wards, lower cost of campaign etc. ”.
7. To fortify the above submission, reference was made to a Press Note
dated 17.10.2011 issued by the ECI wherein taking note of the fact that
registered unrecognized political parties were aggrieved by non-allotment
of common symbols to their candidates and they had approached the
Supreme Court raising such a grievance, ECI had on its own decided to
modify the Election Symbols (Reservation and Allotment) Order, 1968 (in
short “Symbols Order, 1968”) and had made certain additional provisions
vide Notification dated 16.09.2011, to provide for a one time concession of

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allotment of common symbols to candidates sponsored by registered
unrecognized political parties during a general election, subject to certain
stipulations contained therein.
8. Learned counsel pointed out that based on the above decision, vide
letter dated 30.07.2013, the ECI had granted a concession to the then newly
registered unrecognized political parties, Aam Aadmi Party and Rashtriya
Bahujan Hitay Party to use common symbols under the Symbols Order,
1968 and taking a cue from ECI, some other State Election Commissions
including the State Election Commissions of Kerala, West Bengal,
Haryana, Tripura and Gujarat have also allowed registered unrecognized
political parties to select one of the free symbols available, as a common
symbol for all the candidates nominated by such a party. To substantiate
the said submission, reference was made to the Kerala Symbol Order
notified on 24.06.2015, the West Bengal Symbol Order notified on
11.04.2012, the Haryana Symbol Order notified on 12.03.2014, the Tripura
Symbol Order notified on 23.01.2016 and the Gujarat Symbol Order
notified on 08.02.2012.
9. The attention of the Court was also drawn to an order dated
6.11.2015 passed by a Division Bench of the Gujarat High Court, in the
case of Jagte Raho Party vs. Gujarat State Election Commission and Ors.
(Spl. Civil Application No.18840/2015), where the petitioner therein, a
registered unrecognized political party had proposed to field its candidates
in the local body elections in the State of Gujarat and had sought allotment

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of a common symbol to all its candidates across the State. Relying on an
earlier decision on identical circumstances, the Gujarat High Court had
allowed the captioned petition, by referring to Para 10 of the Gujarat
Election Symbol Order, 2012 that lays down a detailed procedure for
allocating symbols to registered recognized parties, registered
unrecognized political parties and independent candidates and gives
preferential rights to candidates of a registered unrecognized political party
over independent candidates for purposes of allocating symbols out of the
unreserved symbols.
10. Per contra , Mr. Pushkarna, learned counsel for the respondent
No.1/SEC opposed the present petition and referred to the scheme of the
Statute relating to election laws in India. He alluded to Article 243ZA of
the Constitution of India that vests in the State Election Commission, the
superintendence, direction and control of the preparation of electoral rolls
for, and the conduct of all elections to the Municipalities and more
particularly Article 243ZA(2), that stipulates that the Legislature of a State
may, by law, make provision with respect to all matters relating to, or in
connection with, elections to the Municipalities. He submitted that for the
State of Delhi, it is Section 7 of the DMC Act that deals with elections to a
Corporation and vests all powers of superintendence, direction and control
of preparation of electoral rolls etc. in the respondent No.1/SEC. Section 31
of the DMC Act empowers the Central Government to make rules to
regulate elections of councillors and all connected matters relating to
preparation, correction, publication of electoral rolls, appointment of

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Returning Officers, nomination/withdrawal of candidates, procedure in
contested and uncontested elections, the date, time and place for the poll
and other related matters. Reposed in Sub-section (1)(k) of Section 31 are
the residuary powers in respect of any other matter relating to electoral
rolls or elections or election disputes in respect whereof the Act does not
make any provision or makes insufficient provision and empowers the
Central Government to make such rules.
11. It was contended on behalf of the respondent No.1 that unlike the
Election Commission of India, which by virtue of the plenary powers
conferred on it under Article 324 of the Constitution of India read with
Rules 5 and 10 of the Conduct of Election Rules, 1961, has notified the
Symbols Order, 1968 that is amended from time to time, respondent
No.1/SEC is governed by Section 31 of the DMC Act and Rule 15 of the
DMC Rules. The said provisions contemplate that for the purpose of
conducting elections to the Municipal Corporation of Delhi, respondent
No.1/SEC shall recognize National Parties and State Parties for the NCT of
Delhi, as recognized by the ECI, under Section 29A of the Representation
of the People Act, 1951 and the rules and procedure made therein, and they
would be permitted to adopt symbols that are reserved for them by the ECI.
12. It was argued that the privilege of reserving a particular election
symbol is only extended to those National and State parties for NCT of
Delhi that are recognized by the ECI, subject to their fulfilling certain
conditions stipulated in Rule 15 of the DMC Rules. However,

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unrecognized registered political parties like the petitioner herein and
independent candidates cannot seek parity with the former category of
parties for grant of a common symbol to them as neither the DMC Act, nor
do the DMC Rules contemplate recognition or derecognition of political
parties and the said power is vested in and exercised only by the ECI and
not the respondent No.1/SEC. Therefore, candidates nominated by
registered unrecognized political parties are treated as independent
candidates by the respondent No.1/SEC for all practical purposes including
allotment of free symbols and they are not given any preference over
independent candidates.
13. Learned counsel for the respondent No.1/SEC canvassed that even if
one proceeds on an assumption that Article 243ZA of the Constitution of
India is evocative of the plenary powers vested in the State Election
Commission and it is empowered to amend the Delhi Symbols Order,
2017, Article 243ZA(2) reposes the power of making provisions with
respect to all matters relating to or in connection with elections to the
Municipalities, in the State Legislature and the said provision does not
permit respondent No.1/SEC to exercise any such power. It was next
contended that even if it is assumed that the respondent No.1/SEC is
empowered to amend the Delhi Symbols Order, 2017, it does not intend to
do so because presently, it is satisfied with the conditions stipulated by the
ECI in the Symbols Order, 1968, which classifies political parties, lays
down the conditions for recognition of National and State level parties and

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sets out the criteria for allocating symbols to contesting candidates and
political parties.
14. Adverting to the one time concession given by the ECI that has
agreed to allot a common symbol to candidates nominated by registered
unrecognized political parties, learned counsel for the respondent
No.1/SCE contended that the said decision cannot be foisted on the State
Election Commission, which is an independent constitutional body
enjoying the same powers in terms of Article 243K and Article 23ZA(1) of
the Constitution of India, as are vested in the Election Commission of India
under Article 324 of the Constitution of India. He pointed out that as
against five State Election Commissions referred to by the petitioner, who
have issued orders for giving preference of granting a common symbol to
registered unrecognized political parties under the local statute, there are
several other State Election Commissions in the country that have elected
not to do so. Even in the exceptions shown by the petitioner, several
enactments that have been mentioned in the Notifications issued by the
concerned State Election Commissions of the five States, that empower
them to extend the preference of granting a common symbol to registered
unrecognized political parties. However, in the case of the respondent
No.1/SEC, Rule 15 of the DMC Rules does not postulate allotment of a
common symbol to registered unrecognized political parties and there are
no other statutory provisions that can be exercised by the respondent
No.1/SEC to extend them the said privilege.

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15. Learned counsel argued that even if the petitioner suggests that
modification of Para 4(d) of the Delhi Symbols Orders, 2017 is an
administrative action, there are several steps that are required to be taken
by the SEC in advance for undertaking any such modification, which
includes calling upon all National and State level political parties that are
registered and recognized by the ECI for consultation, apart from 27 parties
(registered and unregistered) that had approached the respondent No.1/SEC
recently with a request for grant of a common symbol which was turned
down just as the petitioner herein was. It was submitted that on the website
of the Election Commission of India, there is a list of 1866 registered
unrecognized parties and all the above are stakeholders who would have to
be involved in the consultative process and only thereafter, can the
respondent No.1/SEC arrive at any conclusion. Further, the ramifications
of Article 239AA of the Constitution of India that lays down special
provisions in respect of the National Capital Territory of Delhi, would also
have to be analyzed by the respondent No.1/SEC and the concurrence of
the State Government obtained before considering modification of the
Delhi Symbols Order, 2017 and laying down the quantum of concession
that can be extended to registered unrecognized political parties, for grant
of a common symbol.
16. It has further been stated on behalf of the respondent No.1/SEC that
given the fact that the MCD Elections, 2017 are imminent, it is too late in
the day for it to amend the Delhi Symbols Order, 2017 and consider
granting any concession to the petitioner herein when identical relief

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sought by 27 other applicants has already been rejected on the same
ground.
17. Disclosing the seriatim of events leading to the declaration of the
MCD Elections, 2017, learned counsel for the respondent submitted that on
18.9.2015, the Lt. Governor, GNCTD had delegated the power of
delimitation of wards in NCT of Delhi, to the respondent No.1/SEC; vide
Notification dated 1.10.2015, the powers of the respondent No.1/SEC, its
functions and procedures prescribed for Delimitation of wards in NCT of
Delhi, were defined; on 5.4.2016, the Delhi Symbols Order, 2016 was
notified by the respondent No.1/SEC; on 2.10.2016, the petitioner was
formed as a party and it had applied to the ECI on 10.10.2016, for
registration. On 13.1.2017, respondent No.1/SEC notified the Delimitation
Order, defining the boundaries and extent alongwith serial numbers of each
ward in the NCT of Delhi. On 06.2.2017, respondent No.1/SEC notified the
Reservation Order, defining the wards reserved for Scheduled Caste
candidates, women candidates etc. It was emphasized that in all this
duration, the petitioner did not take any steps to approach the court to
challenge the Delhi Symbols Order, 2017. The first representation
submitted by the petitioner for grant of a common symbol was on
14.2.2017 and the same was rejected by the respondent No.1/SEC on
21.2.2017. Instead of challenging the said decision before the Court, the
petitioner sought a review of the order dated 21.2.2017, by submitting yet
another representation on 1.3.2017, which was also declined on 7.3.2017.
Only thereafter was the present petition filed. Arguing that the Court

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should not intervene when the elections are imminent, learned counsel cited
the decision of the Supreme Court in the case of Anurag Narain Singh &
Anr. vs. State of U.P. & Anr., reported at 1996 (6) SCC 303 .
18. In rebuttal, Mr. Shanti Bhushan, learned Senior Advocate appearing
for the petitioner had reiterated his submission that if the Rules are silent,
then the respondent No.1/SEC is well empowered to fill up the vacuum by
issuing an administrative order thereby modifying Para 4 (d) the Delhi
Symbols Order, 2017 and ensuring that the petitioner is provided a level
playing field in contesting the MCD Elections, 2017, particularly when
Rule 15 of the DMC Rules leaves the field open when it comes to
registered unrecognized political parties like the petitioner herein. He
clarified that not for a moment is the petitioner claiming that the respondent
No.1/SEC is empowered to amend the DMC Rules but an administrative
order can always be issued to fill up the vacuum in Rule 15 of the DMC
Rules.
19. On 23.03.2017, in the course of arguments, learned counsel for the
petitioner had handed across the table, a letter dated 04.03.2015 addressed
by the respondent No.1/SEC to the Principal Secretary, UT Govt. of NCT
of Delhi, proposing inter alia amendments to the DMC Rules, 2012 and
enclosing with the said letter the proposed amendments sought to be
incorporated in the relevant rules. The said letter states that vide MHA
Notification No.5-O-3159 dated 09.10.1966, powers to make rules/amend
rules were delegated by the Central Government to the Lieutenant

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Governor, Govt. of NCT of Delhi, in accordance with Section 31 of the
DMC Act, 1957 as amended in 2011. The said letter further states that
some local parties have been pressing for allotment of common symbols
but there are no procedures available in the Statute in Delhi, though the
said provision exists in some other States and this aspect also needed a
relook.
20. On a copy of the aforesaid letter being furnished to the counsel for
the respondent No.1/SEC, he had objected to the manner in which the said
document was introduced, particularly when it was not made a part of the
writ petition and was being handed over without any supporting affidavit
and without clarifying the source from where the said document had been
procured. In any event, learned counsel had sought and was given time to
obtain instructions from the SEC. He had reverted back on 24.03.2017 and
had clarified that though the letter dated 04.03.2015 was addressed by the
respondent No.1/SEC to the Lieutenant Governor, Govt. of NCT of Delhi,
later on, the SEC had decided to re-examine the amendments proposed to
Rule 15. He submitted that to obtain a clearer picture, the SEC had
informed the Lieutenant Governor, Govt. of NCT of Delhi, that the issue of
amendment to Rule 15 of the DMC Rules was being deferred for it to
undertake an extensive exercise of gathering relevant information from
other State Election Commissions and various stakeholders and analyzing
the interest of the electorate before making any change in the scheme of
granting common symbols to unrecognized registered political parties and
notifying a new Symbols Order. Learned counsel had also produced the

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relevant noting file of the Department, for the perusal of the court which
was duly examined and returned.
21. This Court has perused the records, heard the arguments advanced by
learned counsels for the parties and carefully examined the decisions relied
upon by learned counsel for the respondent No.1/SEC, who took great
pains to give an overview of the entire scheme of the Statute relating to
election laws in India, in particular, the Symbols Order.
22. At the outset, the court must remain mindful of the fact that a right to
elect though fundamental to a democracy, is in reality, neither a
fundamental right nor a common law right. In the landmark case of Jyoti
Basu and Ors. vs. Debi Ghosal and Ors. reported as (1982) 1 SCC 691 ,
wherein the nature of the right to elect, right to be elected and the right to
dispute an election and the overall scheme of the constitutional and
statutory provisions in relation to the said rules explained in earlier
decisions was examined by the Supreme Court, speaking for the court,
Chinnappa Reddy, J. had summarized the view taken in the following
manner:-
“8. A right to elect, fundamental though 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. So is the right to dispute an
election. Outside of statute, there is no right to elect, no
right to be elected and no right to dispute an election.
Statutory creations they are, and therefore, subject to
statutory limitation. An election petition is not an action at
common law, nor in equity. It is a statutory proceeding to
which neither the common law nor the principles of equity

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23. On traversing through the history of elections in India, it transpires
that when the first election was conducted in the year 1951, immediately
after the country had given unto itself the Constitution of India, no Symbols
Order had been promulgated by the ECI. It was only in the year 1968 that
the Symbols Order was introduced by the ECI with a view to provide
specification, reservation and choice of allotment of symbols to several
political parties that had mushroomed by then.

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24. The concept of recognizing election symbols and the background in
which the scheme of the Symbols Order, 1968 was framed, came up for
consideration before the Supreme Court in the case of Sadiq Ali and Anr.
vs. The Election Commission of India and Ors., reported as (1972) 4 SCC
664 , wherein challenge to the vires of the Symbols Order, 1968 was
repealed. S peaking for the Court, Khanna, J. had observed as below:-
“18. It is well known that overwhelming majority of the
electorate are illiterate. It was realised that in view of the
handicap of illiteracy, it might not be possible for the
illiterate voters to cast their votes in favour of the candidate
of their choice unless there was some pictorial
representation on the ballot paper itself whereby such
voters might identify the candidate of their choice. Symbols
were accordingly brought into use . Symbols or emblems are
not a peculiar feature of election law of India. In some
countries, details in the form of letters of alphabet or numbers
are added against the name of each candidate while in others,
resort is made to symbols or emblems. The object is to ensure
that the process of election is as genuine and fair as possible
and that no elector should suffer from any handicap in
casting his vote in favour of a candidate of his choice ."
(emphasis added)

25. In the case of Roop Lal Sethi vs. Nachhattar Singh Gill reported as
(1982) 3 SCC 487 , the Supreme Court expounded that the Symbols Order,
1968 was issued by the ECI under Article 324 of the Constitution of India
in exercise of its powers of superintendence, direction and control of the
conduct of all elections to the Parliament and the Legislature of every State
and the said powers are relatable to Rules 5 and 10 of the Conduct Rules

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framed by the Central Government in exercise of their powers under
Section 169 of the RP Act. Observing that the Symbols Orders made by the
ECI are in the nature of general directions meant to regulate the mode of
allotment of symbols to the contesting candidates, it was acknowledged
that elections in our country are fought on the basis of symbols and
therefore, it is a logical corollary that the Symbols Order is an order made
under the Act and that any other view would be destructive of the very
fabric of holding Parliamentary and Assembly Constituency elections in the
country on the basis of adult suffrage.
26. In the case of Kanhiya Lal Omar vs. R.K.Trivedi and Ors. reported
as (1985) 4 SCC 628, the petitioner therein had laid a challenge to the
constitutional validity of the Symbols Order, 1968 by contending that the
same was legislative in nature and could not have been issued by the ECI
as it is not entrusted by law, the powers to issue such an order regarding
specification, reservation and allotment of symbols that may be chosen by
the candidates in the Parliamentary and Assembly elections and further,
that Article 324 of the Constitution cannot be construed as conferring such
a power on the ECI. Relying on the decision in the case of Sadiq Ali
(supra), where the powers of the ECI to recognize political parties and
decide disputes amongst them or between the splinter groups of political
parties, was upheld and so was the powers of the ECI to issue the Symbols
Order and referring to the case of Roop Lal Sethi (supra), wherein it was
held that the Symbols Order is an order made under the Act, the Supreme
Court declared that the powers of the ECI under Article 324(1) of the

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Constitution being plenary in character, can encompass all such provisions
contained in the Symbols Order, which may not be traceable to the Act or
the Rules, as it operates in areas left unoccupied by legislation and the
words, “superintendence, direction and control” as well as “conduct of all
elections” are the broadest terms, which would include the power to make
all such provisions. The view expressed by the Supreme Court in para 17 as
below, instructive:-

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27. The significance of a symbol when elections are held, was
highlighted by the Supreme Court in the case of Subramanian Swamy vs.
Election Commission of India reported as (2008) 14 SCC 318 . Paras 17 to
22 of the said judgment are apposite and are reproduced below:-

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XXX XXX XXX
19. As has been pointed out by Ms. Arora for good long 17 years
there was no concept of a recognized political party as till then
there was no Symbols Order. It came on the anvil only on
31.08.1968. The purpose of bringing in existence this Symbols
Order was to maintain the purity of elections so that elections
should be conducted in a fair and efficient manner as also for
specification, reservation, choice and allotment of symbols as
also for the recognition of political parties in relation to the
symbols. The Preamble suggests, among other things, that there
was a need to recognise the political parties for the purposes of
specification, reservation, choice and allotment of symbols. This
has probably become necessary on account of firstly, increase in
the number of parties on political stage of India as also because
of the emergence of the State parties. It must be immediately
remembered that till then the Symbols were being granted in
keeping with the tradition of a particular party having a particular
symbol but there was a complete absence of any rules on such a
sensitive aspect like symbols. Thus emergence of large number
of political parties on the national and local levels and their
interest in the elections necessitated bringing of the Symbols
Order. A new concept of a recognized political party came on
the anvil via this Symbols Order.
20. Para 5 of the Symbols Order is extremely significant and
recognized only two kinds of symbols, they being reserved
symbols and free symbols. The reserved symbols are
necessarily reserved for the exclusive allotment to the
candidates of a recognized political party whereas all other
symbols are free symbols. Para 6 is extremely important
inasmuch as it introduces for the first time, a classification of
political parties as recognized political parties and
unrecognized political parties. It must be remembered that
there are only two classifications provided by Para 6.

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21. Paras 6-A, 6-B and 6-C provide for the condition of
recognition of a political party on the national and/or State level.
We need not, at this stage, go into the intricacies of Paras 6-A, 6-
B and 6-C but suffice it to say that in order to have that status, the
said political party must be an effective political party in the
sense that it must share a particular percentage of votes in the
national or the State-level elections or it must have certain
number of elected representatives in Lok Sabha or the State
Legislatures. It is this concept which introduces that in order to
be a recognised political party, it must perform well in the
elections and thereby pass the acid test of “following”.
Therefore, unless there is a following of the nature provided
in Paras 6-A, 6-B and 6-C, the political party does not remain
a recognized political party. Once this position is clear, the
other extremely important position which has to be
considered is that a reserved symbol is available only for the
recognized parties. Thus, there is a bond created between
recognized political party and its symbol.
22. Learned counsel for the respondent is undoubtedly
correct in arguing that concept of recognition is inextricably
connected with the concept of symbol of that party. It is but
natural that a party must have a following and it is only a
political party having substantial following in terms of Paras
6-A, 6-B and 6-C would have a right for a reserved symbol .
Thus, in our opinion, it is perfectly in consonance with the
democratic principles. A party which remains only in the records
can never be equated and given the status of a recognized
political party in the democratic set up. We have, therefore, no
hesitation in rejecting the argument of Dr. Swamy that
in providing the symbols and reserving them for the
recognized political parties alone amounted to an
undemocratic act.” (emphasis added)



W.P.(C) 2409/2017 Page 22 of 45



28. In Kanhiya Lal Omar (supra), the Supreme Court had categorically
rejected the argument advanced that a symbol amounts to a property and
therefore, a political party cannot be deprived of its property. It was held
that a symbol is not a tangible property and nor does it generate any wealth.
It is only the insignia which is associated with the particular political party
so as to help millions of illiterate voters to properly exercise their right to
franchise in favour of the candidate of their choice belonging to a particular
party and all that it provides for is the essential association with a party. A
view was expressed that a symbol does not become an “intellectual
property” inasmuch as such a concept has monetary implications, which are
conspicuously absent in the case of political parties, as contemplated in the
Symbols Order. Therefore, it was concluded that the right of the ECI to put
a clamp on the use of a symbol by a political party, is unquestionable.
29. In a recent decision of the Supreme Court in the case of Desiya
Murpokku Dravida Kazhagam (DMDK) and Anr. vs. Election Commission
of India reported as (2012) 7 SCC 340, where the petitioners therein had
challenged the constitutional validity of the amendment to the Symbols
Order, 1968, whereby Para 6 was substituted by Paras 6-A(i) and (ii) para
6-B, which mandates that in order to be recognized as a State Party in the
State, it would have to secure not less than 6% of the total valid votes
polled in the State and should also have returned at least 2 members to the
Legislative Assembly of the State, the majority view was expressed by
Altamas Kabir, J, who analyzed the background in which the Symbols
Order, 1968 came to be framed and after considering the entire scheme of

W.P.(C) 2409/2017 Page 23 of 45



the Election Symbols Order in the light of the earlier judicial
pronouncements, held that evolution of the law relating to the criteria for a
political party to be recognized as a State Party clearly indicates that the
ECI, in its wisdom, was of the view that in order to be recognized as a
political party, such a party should have achieved a certain benchmark in
State politics, which was not unreasonable and that the right of a voter to
know the antecedents of a candidate has to be balanced with the ground
realities of conducting a State-wide poll. Consequently, the decision of the
ECI to amend the Symbols Order and set a benchmark to be achieved by a
political party in order to be recognized as a State Party and become
eligible to be given a common election symbol, was upheld.
30. Given the historical backdrop in which the Symbols Order, 1968 was
introduced and on a conspectus of the judicial pronouncements
documenting the entire scheme and purpose of the Election Symbols Order,
1968, there is no manner of doubt that ECI is vested with the plenary
powers of superintendence, direction and control of all elections to the
Parliament and to the Legislature of every State and the Symbols Order,
1968 is issued by the ECI in exercise of the powers conferred on it by
Article 324 of the Constitution of India read with Section 29A of the RP
Act, Rules 5 and 10 of the Conduct of Election Rules, 1961 (hereinafter
referred to as “Conduct Rules”) and all other enabling provisions.
31. Vide Notification dated 01.12.2000, Para 12 of the Symbols Order,
1968 that deals with choice of symbols by other candidates and allotment
thereof, was substituted. By a subsequent Notification issued on

W.P.(C) 2409/2017 Page 24 of 45



16.09.2011, sub-para (c) was incorporated in Para 12 and as a result
thereof, apart from the candidates set up by a National Party or by a State
Party, the candidates mentioned in Para 10, 10A and 10B were also
afforded the option of choice of symbols. In terms of Para 10B, the
candidates set up by a registered unrecognized political party at the general
election to the Legislative Assembly of a State or to the House of the
People, were given a concession of allotment of a common symbol from
the list of free symbols, subject to certain pre-conditions stipulated therein.
32. Para 12(3) of the Symbols Order, 1968 directs that where the same
free symbol has been chosen by several candidates at an election in any
State or Union Territory, then if amongst those candidates, only one is a
candidate set up by an unrecognized political party and all the rest are
independent candidates, the Returning Officer shall allot that free symbol
to the candidates set up by the unrecognized political party and to none
else. It is the aforesaid relaxation given by the ECI to candidates of
unrecognized political parties that the petitioner seeks to invoke for
pressing the relief of grant of a common symbol by the respondent
No.1/SEC to candidates nominated by it for contesting in the MCD
Elections, 2017.
33. In the aforesaid context, it is apposite to examine the source of the
powers bestowed in the respondent No.1/SEC. Article 243K which falls in
Part IX of the Constitution of India that provides for Panchayats, vests the
superintendence, direction and control of the preparation of electoral rolls
for, and the conduct of, all elections to the Panchayats, in a State Election

W.P.(C) 2409/2017 Page 25 of 45



Commission consisting of a State Election Commissioner to be appointed
by the Governor of the concerned State. Article 243ZA that falls in Part
IXA of the Constitution that provides for Municipalities, reads as below:-
“243ZA. Elections to the Municipalities – (1) The
superintendence, direction and control of the preparation of
electoral rolls for, and the conduct of, all elections to the
Municipalities shall be vested in the State Election Commission
referred to in article 243K.

(2) Subject to provisions of this Constitution, the Legislature of
a State may, by law, make provision with respect to all matters
relating to, or in connection with, elections to the
Municipalities.”

34. In the case of Kishansing Tomar vs. Municipal Corporation of the
City of Ahmedabad and Ors. reported as (2006) 8 SCC 352 , the Supreme
Court had declared in so many words that the words used in the provisions
governing the State Election Commission are in pari materia with the
provisions relating to the Election Commission of India and that the words,
“superintendence, direction and control” as well as “conduct of elections”
used in Article 324 of the Constitution have been held to be in the
“broadest of terms” by the Supreme Court in several earlier decisions
including in Special Reference No.1 of 2002, In Re. reported as (1985) 4
SCC 689 and Mohinder Singh Gill vs. Chief Election Commissioner
reported as (1978) 1 SCC 405 . They observed that the State Election
Commission, constituted under Articles 243K and empowered under
Article 243ZA, is a constitutional body and all State Governments are
required to abide by the directions issued by the State Election Commission

W.P.(C) 2409/2017 Page 26 of 45



in the same manner in which they follow the directions of the Election
Commission of India during the elections for the Parliament and the State
Legislature. It was held that in the domain of elections to the Panchayats
and the Municipal Bodies under Part IX and IX-A for the conduct of
elections to these bodies, the SEC‟s enjoy the same status as is enjoyed by
the ECI. The said view was expressed in the following words:-
“24. The words, “'superintendence, direction and control” as
well as “conduct of elections” have been held in the “broadest
of terms” by this Court in several decisions including Special
Reference No.1 of 2002, In re and Mohinder Singh Gill case
and the question is whether this is equally relevant in respect of
the powers of the State Election Commission as well.
25. From a reading of the said provisions it is clear that the
powers of the State Election Commission in respect of
conduct of elections is no less than that of the Election
Commission of India in their respective domains. These
powers are, of course, subject to the law made by
Parliament or by the State Legislatures, provided the same
do not encroach upon the plenary powers of the said
Election Commissions.

W.P.(C) 2409/2017 Page 27 of 45



35. The only difference between Article 324 of the Constitution that
vests the superintendence, direction and control of elections to the
Parliament and the Legislature of every State in the ECI and Article 243ZA
that vests the superintendence, direction and control of elections to
Panchayats and Municipal Bodies in the SEC‟s is the additional provision
incorporated in Article 243ZA(2) that empowers the Legislature of a State
to make provisions by law, with respect to all matters, relating to the
elections to the Municipalities, subject of course to the provisions of the
Constitution of India.
36. It is in this backdrop that one must examine the Delhi Symbols
Order, 2017, which is notified by the respondent No.1/SEC in exercise of
the powers conferred on it under Sections 7 and 31 of the DMC Act read
with Rule 15 of the DMC Rules. Section 7 of the DMC Act reads as
below:-
“7. Elections to a Corporation – (1) The superintendence,
direction and control of the preparation of election rolls for,
and the conduct of, all elections to a Corporation shall be
vested in the Election Commission of the National Capital
Territory of Delhi consisting of an Election Commissioner to be
appointed by the Administrator.

(2) Subject to the provisions of any law made by the Legislative
Assembly of the National Capital Territory of Delhi, the
conditions of service and tenure of office of the Election
Commissioner shall be such as the Administrator may by rules
determine:

Provided that the Election Commissioner shall not be removed
from office except in a like manner and on the like grounds as a

W.P.(C) 2409/2017 Page 28 of 45



Judge of a High Court and the conditions of service of the
Election Commissioner shall not be varied to his disadvantage
after his appointment.

(3) The Administrator shall, when so requested by the Election
Commission make available to that Commission such staff
which the Administrator considers necessary for discharge of
the functions conferred on the Election Commission by sub-
section(1).”

37. Section 31 of the DMC Act empowers the Central Government to
make rules to provide for or regulate matters relating to preparation,
revision and maintenance of electoral rolls of wards and for holding
elections of councillors and it is the said provision that has been invoked by
the respondent No.1/SEC for notifying the DMC Rules. The residuary
powers for conduct of elections finds place in Section 31(1)(k), which
reads as below:-
“31. Power to Make rules regulating the election of
councillors - (1) The Central Government may make rules to
provide for or regulate all or any of the following matters for
the purpose of preparation, revision and maintenance of
electoral rolls of wards and holding elections of councillors
under this Act, namely:-

XXX XXX XXX

(k) Any other matter relating to electoral rolls or elections or
election disputes in respect of which the Central Government
deems it necessary to make rules under this section or in
respect of which this Act makes no provision or makes
insufficient provision and provision is, in the opinion of the
Central Government necessary.”

W.P.(C) 2409/2017 Page 29 of 45




38. The Preamble of the DMC Rules declares that the said Rules have
been made in exercise of the powers conferred under Section 31 of the
DMC Act. Following is the relevant extract of the preamble and Rule 15 of
the DMC Rules:-
“ NOTIFICATION

No.F.13(76)/UD/MB/2011 - In exercise of the powers
conferred by section 31 of the Delhi Municipal Corporation
Act, 1957 (66 of 1957 read with Ministry of Home Affairs
th
Notification No.S.O. 3159 dated the 9 October, 1966 and in
supersession of The Delhi Municipal Corporation (Election of
Councillors) Rules, 1970, the Lt. Governor of the National
Capital territory of Delhi is pleased to make the Rules for
regulating the Elections of the Councillors as following,
namely:-

XXX XXX XXX

15. Symbols :- (1) For the purpose of election to a Municipal
Corporation of Delhi, the National Parties and State Parties for
the National Capital Territory of Delhi, as are recognized for
the time being by the Election Commission of India in the
National Capital Territory of Delhi, under section 29A of the
Representation of the People Act, 1951 and the rules and
procedure made thereunder, shall be recognized as such by the
Commission. The Commission shall recognize the parties and
adopt symbols subject to the following conditions, namely:-

(a) The National Parties and the State Parties recognized by the
Election Commission of India shall be recognized under the

W.P.(C) 2409/2017 Page 30 of 45



very same name by the Commission.

(b) The National Parties and the State Parties recognized by the
Election Commission of India shall use only those very symbols
which are reserved for them by the Election Commission of
India and not any other symbol, and

(c) The facsimiles of the symbols thus allowed shall not be
different from the facsimiles prescribed and recognized by the
Election Commission of India.

(2) A candidate shall be deemed to have been set up by a
political party only if the candidate has made a declaration to
that effect in the nomination paper first filed by him and duly
supported by all authorized to such effect by the party
concerned.

(3) The Commission shall also adopt free symbols as have been
notified by the Election Commission of India for the time being
in respect of elections to Lok Sabha and Legislative Assembly
for the National Capital Territory of Delhi.

(4) The Commission shall specify by notification in the official
Gazette, the symbols that may be chosen by candidates and the
restrictions to which their choice shall be subject.

(5) Where at any such election, more nomination papers than
one are delivered by or on behalf of a candidates, the
declaration as to symbols, made in the nomination paper first
delivered, and no other declaration as to symbols, shall be
taken into consideration under rule 24 even if that nomination
paper has been rejected.

(6) A failure to complete, or a defect in completing the
declaration as to symbols in a nomination paper shall not be
deemed to be a defect of a substantial character within the

W.P.(C) 2409/2017 Page 31 of 45



meaning of sub-rule (4) of rule 22.”
39. It is next deemed appropriate to refer to the Preamble of the Delhi
Symbols Order, 2017, called the “Municipal Corporation of Delhi Elections
Symbols (Reservation and Allotment) Order, 2017 that was notified by the
respondent No.1/SEC on 14.03.2017. The same is reproduced hereinbelow
for ready reference:-
“ ORDER

No.F.4(216)/OSDI/legal/SEC/2017/7887 Whereas the
superintendence, direction and control of elections of three
Municipal Corporations of Delhi viz. North Delhi, South Delhi
and East Delhi are vested in the State Election Commission of
NCT of Delhi vide Section 7 of the Delhi Municipal
Corporation Act, 1957 as amended by the Delhi Municipal
Corporation (Amendment) Act, 2011;

And whereas it is necessary to provide for the choice and
allotment of symbols to the contesting candidates sponsored by
political parties (National and State) and to the independent
candidates for election to three Municipal Corporations in the
National Capital Territory of Delhi viz. North Delhi, South
Delhi and East Delhi;

Now, therefore in exercise of the powers conferred on him
under Section 7 of the Delhi Municipal Corporation Act, 1957
(hereinafter referred to as the ‘ACT’ read with Rule 15 of the
Delhi Municipal Corporation (Election of Councillors) Rules
2012 (hereinafter referred to as ‘Rules’) and all other
provisions enabling it in this behalf and in supersession of all
its earlier Notifications, the State Election Commissioner of the
National Capital Territory of Delhi hereby makes the following
order:-


W.P.(C) 2409/2017 Page 32 of 45



XXX XXX XXX”


40. The relevant extracts of Paras 3 and 4 of the Delhi Symbols Order,
2017 are as below:-
“3 . Recognition of National State parties:

(a) The National Parties for National Capital Territory of Delhi
as recognized for the time being by the Election Commission of
India in respect of election to Lok Sabha/Legislative Assembly
in the National Capital Territory of Delhi, under section 29-A
of the Representation of the People Act, 1951 and as per
Symbol Orders of Election Commission of India vide
Notification No.56/2016/PPS-III dated the 13.12.2016 and
amended by the E.C.I. notification No.56/2017/PPS-III dated
11.1.2017 are hereby recognized as such by this Commission
for purposes of elections to the above said three Municipal
Corporations of the National Capital Territory of Delhi to be
held hereafter.

(b) The Commission hereby adopts for the National Parties
those very symbols which are reserved for these parties by the
Election Commission of India and not any other symbol.

(c) The facsimiles of the symbols reserved for the National
Parties for National Capital Territory of Delhi (in size and
shape) as prescribed for elections to Lok Sabha/Assembly in the
National Capital Territory of Delhi by the Election Commission
of India as well as those prescribed for other candidates
(independents) are adopted and prescribed as such by this
Commission for purposes of the elections to the three Municipal
Corporations of Delhi, to be held hereafter. The names of such
National Parties and symbols prescribed for them are
mentioned in Table-I of Schedule-I annexed.


W.P.(C) 2409/2017 Page 33 of 45



(d) “Aam Aadmi Party” is recognized for N.C.T. of Delhi by
the Election Commission of India as „Delhi State Party‟ and
Symbol allotted to this party is “Broom”.

(e) A list of „free symbols‟ to be chosen by other candidates
(independents) is contained in Table-III in the Schedule-I.

4. Choice of Symbol by candidates of National and State
Parties and allotment thereof:

(a) For every contested election of a Municipal Corporation
of Delhi, a symbol shall be allotted to each contesting candidate
in accordance with the provisions of the said Rules, this Order
and the instructions issued by the Commission from time to time
in this regard.

(b) A candidate set up by a National Party and Delhi State
Party at an election to a ward of Municipal Corporation of
Delhi shall choose, and shall be allotted, the symbol reserved
for that party by Election Commission of India and no other
symbol.

(c) If a candidate set up by a State Party other than Delhi
State Party (N.C.T. of Delhi) to contest election to a ward of a
Municipal Corporation of Delhi which party is not recognized
in the National Capital Territory of Delhi under the
Representation of People Act, 1951 by Election Commission of
India, intends to choose or chooses a symbol reserved for it in
the State or States in which it is a recognized as „State Party‟
(see schedule I table-II) other than Delhi State Party then such
candidate shall be allotted that symbol to the exclusion of any
other candidate and no other symbol on fulfillment of each of
the following conditions, namely:

XXX XXX XXX


W.P.(C) 2409/2017 Page 34 of 45



(d) The candidates belonging to unrecognized parties
registered by Election Commission of India shall be treated as
independent candidates for all purposes including number of
proposers required i.e. 10 proposers of the ward to which the
nomination is filed and for allotment of symbols. They shall not
be given any preference over other independent candidates in
allotment of free symbols or allotment of only one free symbol
to all its candidates in any of a Municipal Corporation of Delhi.

(e) Any candidate at an election to a ward of a Municipal
Corporation of Delhi other than a candidate set up by a
National Party, Delhi State Party or State party (other than
“Delhi State Party”) i.e. independent Candidate shall choose
and shall be allotted in accordance with the provisions
hereafter set out in this paragraph, one of the symbols specified
as „free symbols‟ as per this Order.”

41. It can be seen on a conjoint reading of all the above provisions that
the SEC has been clothed with plenary powers under the Constitution read
with the enabling provisions in matters relating to allotment of symbols and
for issuing directions in connection therewith. The Delhi Symbols Order,
2017 makes detailed provisions for the reservation, choice and allotment of
symbols and the recognition of political parties in connection therewith. It
is obligatory for the respondent No.1/SEC to specify symbols for elections
to the Municipal Corporation of Delhi under Rule 15 of the DMC Rules
framed under Section 31 of the DMC Act. For allotment of symbols to each
contesting candidate, in exercise of powers conferred on it under Section 7
of the DMC Act read with Rule 15 of the DMC Rules, the respondent
No.1/SEC has notified the Delhi Symbols Order, 2017.

W.P.(C) 2409/2017 Page 35 of 45



42. The object sought to be achieved by the respondent No.1/SEC by
notifying the Delhi Symbols Order, 2017 is to ensure that there is no
confusion in the minds of the voters and the contestants during the polls.
The Statute and the relevant rules under which the Delhi Symbols Order,
2017 has been promulgated, clearly brings out the fact that on its own, the
respondent No.1/SEC does not exercise any powers to recognize National
Parties and State Parties in the NCT of Delhi. Instead, it recognizes only
those parties that have been granted recognition by the ECI under Section
29-A of the RP Act and the related rules and procedures. As against the
Symbols Order, 1968 promulgated by the ECI, which applies in relation to
elections conducted in all Parliamentary and Assembly constituencies other
than Assembly constituencies in the State of Jammu and Kashmir, the
Delhi Symbols Order, 2017 extends to and applies to elections in all the
wards of the three Municipal Corporations of Delhi, namely, North Delhi,
South Delhi and East Delhi in the NCT of Delhi.
43. Therefore, it is well within the domain of the respondent No.1/SEC
to promulgate the Delhi Symbols Order, 2017 but as far as recognition of
parties and adoption of symbols is concerned, the respondent No.1/SEC has
elected to recognize only those National Parties and State Parties that are
recognized by the ECI and they alone are permitted to use symbols that are
reserved for them by the ECI. Rule 15 of the DMC Rules does not postulate
any such relaxation to registered unrecognized political parties. The
respondent No.1/SEC also adopts free symbols that have been notified by
the ECI in respect of elections to the Lok Sabha and the Legislative

W.P.(C) 2409/2017 Page 36 of 45



Assembly of the NCT of Delhi. No preference is given by the respondent
No.1/SEC to unrecognized political parties registered with the ECI, who
are treated at par with independent candidates for the purpose of allotment
of symbols, amongst others.
44. Having examined the extant Rules including the MCD Act and the
MCD Rules, it is manifest that the entire powers of superintendence,
direction and control in relation to elections to the Municipal Corporation
of Delhi are vested in absolute terms in the SEC, subject of course to the
provisions of the Act and Rules. Rule 15 of the DMC Rules recognizes
only those National and State parties for the purposes of elections to the
Corporation that are recognized by the ECI and the said provision confines
itself to such of the symbols that are reserved for them by the ECI. Further,
only those symbols that have been notified by the ECI as free for the time
being, in respect of elections to Lok Sabha and Legislative Assembly for
the NCT of Delhi, are adopted by the respondent No.1/SEC and notified.
45. There is nothing in the Constitution, the RP Act, the DMC Act,
DMC Rules or any other Statute, which prohibits unrecognized political
parties from setting up candidates at an election or curtails the right of
independent candidates to contest the election. Simply because the SEC
may refuse recognition to a political party cannot prevent such a party from
nominating candidates to contest the municipal elections. The benefits that
registration provides to a political party, have been spelt out in the RP Act.
One of the said benefits of recognition to a registered political party is that
a common symbol can be allotted to all the candidates nominated by it.

W.P.(C) 2409/2017 Page 37 of 45



Therefore, a newly formed political party is not entitled as a matter of right
to claim exclusive allotment of a common election symbol for the benefit
of the candidates nominated by it at the Municipal elections. Instead, its
candidates are required to choose from one of the free symbols notified by
the respondent No.1/SEC.
46. It has already been admitted on behalf of the petitioner that it does
not lay a challenge to the provisions of law, nor is it the stand of the
petitioner that the respondent No.1/SEC is empowered to amend the DMC
Rules. The seemingly innocuous plea taken by the petitioner is that because
there is a vacuum in Rule 15 of the DMC Rules, the same can be filled up
by the respondent No.1/SEC by issuing an administrative order and by
modifying Para 4(d) of the Delhi Symbols Order, 2017. The ground for
seeking modification of Para 4(d) of the Delhi Symbols Order, 2017 is that
the petitioner would then have the benefit of a unified and coordinated
publicity and campaign across all wards, which will lower the cost of
campaigning. However, the petitioner seems to forget that it does not have
any statutory backing for claiming the said relief. The plea of the petitioner
for grant of a common symbol to its candidates is premised on the alleged
violation of Article 14 of the Constitution. However, the prayer made by
the petitioner is evidently dehors the provisions of the Delhi Symbols
Order, 2017 and the DMC Act and Rules. Having observed above that the
right to elect and be elected is a statutory right and not a fundamental or
common law right, the petitioner cannot be heard to state that non-grant of
a common symbol is in violation of its fundamental rights. The right to

W.P.(C) 2409/2017 Page 38 of 45



elect and the right to contest in an election being statutory rights, they live
and breath by virtue of the life infused in them by the Statute, no more, no
less.
47. In view of the legal position and the judicial precedents cited above,
the petitioner cannot raise a grievance that it is being discriminated against
or being placed at a disadvantageous position vis-à-vis recognized
registered political parties. Merely because the ECI has elected to relax the
norms by granting a common symbol to unrecognized registered political
parties or because five other State Commissions in the country have done
so, cannot be a ground to find fault with the decision of the respondent
No.1/SEC which has declined to carve out any such classification for
unrecognized registered political parties for the purpose of contesting the
impeding MCD Elections, 2017.
48. In any event, on a perusal of the letter dated 04.03.2015 addressed by
the respondent No.1/SEC to the Government of NCT of Delhi, proposing
inter alia several amendments to the DMC Rules, it emerges that the
respondent No.1/SEC is also mulling over amending Rule 15 of the DMC
Rules. The noting file of the respondent No.1/SEC reveals that the
Commission proposes to undertake a wider consultation with all the
concerned stakeholders and examine the ramifications of taking such a
decision before making any change in the scheme of granting common
symbols to unrecognized registered political parties. The said approach of
caution and care adopted by the respondent No.1/SEC for stipulating the
quantum of concession, if any that can be given to registered unrecognized

W.P.(C) 2409/2017 Page 39 of 45



political parties for grant of a common symbol, cannot be faulted.
49. Once it is held that in the absence of a statutory right, there is no
fundamental right or a common law right that can be invoked by the
petitioner to claim a common symbol, its plea that directions be issued to
the respondent No.1/SEC to reserve a common symbol for candidates
nominated by it to contest in the MCD Elections, 2017, falls to the ground.
It is not as if the petitioner has been placed on a different footing vis-à-vis
other unrecognized registered political parties. Counsel for the respondent
No.1/SEC had handed over a list of 27 parties out of which, a large number
are duly registered, whose request on similar lines has been turned down
very recently. As the position stands today, it cannot be stated that there has
been any discrimination against the petitioner on account of declining
reservation of a common symbol for its exclusive use on the ground that it
is not a recognized political party. This time, the petitioner shall have to
enter the fray by participating in the MCD Elections as an unrecognized
registered political party and making a place for itself under the sun. Only
after proving its mettle, can it seek recognition as a registered political
party and as a corollary thereto, claim entitlement to a common symbol for
its candidates.
50. Even otherwise, this Court is of the view that it is too late in the day
to grant any such relief. Article 243-ZG of the Constitution imposes a clear
bar on interference in electoral matters by courts including by way of
entertaining petitions under Article 226. In the case of Sanjoy Sachdev vs.
Chief Election Commission and Ors. reported as ILR (2003) Delhi 529 ,

W.P.(C) 2409/2017 Page 40 of 45



where the President of a unrecognized registered political State Party in
Delhi, had sought allotment of a symbol to candidates nominated by it in
the election to the Legislative Assembly of Delhi in the year 2003 and
counsel for the respondents had raised an objection with regard to the bar
on courts to interfere in electoral matters, it was held that the expression
“ election ” used in Article 329(b) does not relate to the poll itself, but is
used in its widest term. The provisions of Article 329 that are applicable to
either House of Parliament or either House of Legislature of a State, are in
pari material to the provisions of Article 243-ZG that imposes a bar on
interference by courts in electoral matters relating to any Municipality.
51. In the case of Election Commission of India vs. Ashok Kumar and
Ors. reported as 2000 (8) SCC 216 , the Supreme Court had observed that
the courts must be very circumspect and act with caution while entertaining
any election dispute though not hit by the bar under Article 329(b), but
brought to it during the pendency of the election proceedings. The
aforesaid words of caution were considered necessary to guard against any
attempt to retard, interrupt, protract or stall the election proceedings. In the
said decision, it was held that the term “election” includes all steps and the
entire proceedings commencing from the date of notification of the
election, till the date of declaration of the result, would be covered under
the expression, “election”. There are a catena of decisions where the
Supreme Court has held that the High Court in exercise of its jurisdiction
under Article 226 of the Constitution of India, would not normally interfere
in the conduct of elections. [M.P. Ponnuswami vs. Returning Officer,

W.P.(C) 2409/2017 Page 41 of 45



Namakkal; AIR 1952 SC 64 , Mohinder Singh Gill and Anr. vs. The Chief
Election Commissioner, New Delhi; (1978) 1 SCC 405 , S.T. Muthusami
vs. K. Natarajan and Ors.; ( 1988) 1 SCC 572 , Rajalakshmi vs. Election

vs. Angadi Shekara Basappa and Ors.; (1998) 4 SCC 529, Election
Commission of India vs. Ashok Kumar and Ors.; (2000) 8 SCC 216 ,

Sadguru Janardan Swami (Moingirid Maharaj) Sahakari Dugdha Utpadak
Sanstha and Anr. vs. State of Maharashtra and Ors.; (2001) 8 SCC 509,
Avtar Singh Hit vs. Delhi Sikh Gurdwara Management Committee and
Ors.; (2006) 8 SCC 487 and Subramaniam Swami vs. Election
Commission of India; (2008) 14 SCC 216 ]. In the case of Lakshmi Charan
Sen vs. A.K.M. Hassan Uzzaman reported as (1985) 4 SCC 689 , the
Supreme Court had gone to the extent of stating that courts should not
interfere even when elections are imminent.
52. This Court finds force in the submission made on behalf of the
respondent No.1/SEC that that the members of the petitioner were well
aware of the fact that the term of the House was to expire on 30.4.2017 and
that the election process had to be set into motion by the SEC at least one
month prior thereto. Such is the unique and unparalleled beauty of the
clockwork mechanism fine tuned by the ECI at the National and State
levels and by the SECs at the Panchayat and Municipal levels that over the
years they have not failed to live upto the aspirations of the citizen for
conducting smooth, free and fair elections on time. The ECI and SECs have

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established themselves as non-partisan and robust Institutions, that provide
a strong bulwark of checks and balances for maintaining the purity of the
election process. Therefore all concerned including the petitioner herein
were au courant of the fact that the election process was imminent.
Despite the same, the petitioner did not approach the court at the earliest.
Knowing that each day‟s delay can be fatal in a case like the present one,
the petitioner waited till 10.3.2017 to file a petition, which came to be
listed before this Court only on 15.3.2017. By the said date, the respondent
No.1/SEC had set the wheels of the election process into motion and had
issued a press note dated 14.3.2017, announcing the elections.
53. As of now, the election process has commenced. By the date the
petitioner had filed the present petition, several preparatory steps for
conducting the election had already been undertaken by the respondent
No.1/SEC and vide order dated 22.03.2017, the respondent No.1/SEC has
already notified the schedule for conducting the election in all the three
wards of the Municipal Corporation of Delhi. By the time, the judgment in
the present petition shall be pronounced, the notification of the election
would have been issued by the respondent No.1/SEC on 27.03.2017. In
such circumstances, learned counsel for the respondent No.1/SEC is
justified in submitting that every day‟s delay is significant when it comes to
approaching the Court with a grievance relating to conduct of elections and
that it is very late in the day for this Court to interfere in the election
process, which is no longer imminent, but well under way.

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54. In their quest for perfecting the franchise system in the country and
discharging the onerous duty cast on them by the Constitution and the
enabling provisions, the ECI and the SECs have been inventing and
reinventing themselves and coming up with new measures to make the
process as transparent as is possible. It is in furtherance to discharging the
said duty that the respondent No.1/SEC has for the first time decided that
photographs of candidates shall appear on the ballot papers and Electronic
Voting Machines in the ensuing MCD Elections, 2017. This shall be of
great assistance to voters who can easily identify the candidate in whose
favour they propose to cast the vote. Thus, the petitioner cannot claim that
it is being put to a disadvantage vis-à-vis candidates nominated by
registered recognized political parties as even without a common symbol,
their candidates can still be identified from their photographs featuring on
the ballot papers/EVMs. Some practical difficulties were expressed on
behalf of the respondent No.1/SEC relating to providing adequate number
of EVMs at every Polling Booth and other logistics etc., which would have
arisen only if the petition would have been allowed. That not being the
position, the Court declines to delve into the above aspect.
55. In view of the aforesaid facts and circumstances, this Court rejects
the challenge laid by the petitioner to Para 4(d) of the Municipal
Corporation of Delhi Election Symbols (Reservation and Allotment) Order
2017. The orders dated 21.02.2017 and 07.03.2017 passed by the
respondent No.1/SEC, turning down its request for grant of a common

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symbol to the candidates nominated by it for the forthcoming MCD
Elections, 2017, are sustained.
56. Accordingly, the present petition is dismissed. Before parting with
the case, the Court places on record its appreciation for the able assistance
rendered by Mr. Pushkarna, learned counsel for the respondent No.1/SEC,
at a short notice. Parties are left to bear their own expenses.



(HIMA KOHLI)
JUDGE
MARCH 29, 2017
rkb/sk/ap

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