Full Judgment Text
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
M.A. NO.31 IN
SPECIAL LEAVE PETITION (CIVIL) NO.7258 OF 2018
Edapaddi K. Palaniswami …Petitioner(s)
:Versus:
T.T.V. Dhinakaran & Ors. …Respondent(s)
O R D E R
A.M. Khanwilkar, J.
1. This application for directions has been filed by
respondent No.1 – T.T.V. Dhinakaran (for short, “ TTVD ”), in
the disposed of special leave petition in view of the liberty
th
granted by this Court in terms of the order dated 28 March,
2018.
Signature Not Verified
Digitally signed by
DEEPAK SINGH
Date: 2019.02.07
13:28:43 IST
Reason:
The captioned special leave petition was filed against the
2.
th
judgment and order dated 9 March, 2018 passed by the
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Single Judge of the High Court of Delhi at New Delhi in C.M.
No.2994/2018 in Writ Petition (Civil) No.10728 of 2017. That
writ petition has been filed by respondent No.1 TTVD to
assail the decision of the Election Commission of India (for
rd
short, “ ECI ”) dated 23 November, 2017 whereby ECI had
accepted the claim of respondent Nos.4 to 6 (namely, E.
Madhusudhanan, O. Pannerselvam and Thiru. Semmalai) and
the SLP petitioner Edapaddi K. Palaniswami (for short, “ EKP ”)
that the group led by respondent No.4 E. Madhusudhanan
(for short, “ EM ”) was entitled to use the name of the original
registered and recognized state political party in the State of
Tamil Nadu and Puducherry, namely, “All India Anna Dravida
Munnetra Kazhagam” (for short “ AIADMK ”) and its reserved
symbol “Two Leaves”; and rejected the claim of respondent
No.1 – TTVD and respondent No.3 – V.K. Sasikala (for short,
“ VKS ”) that the group led by VKS was the real group and was
entitled to the use of name and symbol of the party AIADMK.
The writ petition challenging the said decision of ECI on
diverse grounds is still pending before the Delhi High Court.
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During the pendency of the writ petition, as elections in
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the State of Tamil Nadu were announced and respondent No.1
and the group of which he was a member, wanted to contest
the elections, they moved an interim application before the
High Court, being C.M. No.2994/2018 in the pending writ
petition and prayed for the following reliefs:
“PRAYER
In view of the aforesaid it is most respectfully prayed that
this Hon’ble Court may kindly be pleased to:
a. Issue a direction to the respondents to permit the group led
by the petitioner and the Respondent No.6 to use a suitable
name for carrying out its political activities, during the
pendency of the present Writ Petition;
b. Issue a direction to the respondents, permitting/allocating
the group led by the Petitioner herein and the Respondent
No.6 to use the symbol of “Pressure Cooker” for the purpose
of Local Bodies Elections likely to be held in April 2018 or
any other election, during the pendency of the present Writ
Petitions.
c. Pass such further order(s) as it may deem fit and facts and
circumstances of the case.”
4. The said application was contested by the SLP petitioner,
respondent Nos.4 to 6 and respondent No.2 in particular. The
learned Single Judge who heard the said application was
pleased to allow the same by a detailed judgment and order
4
th
dated 9 March, 2018. The operative part of the said judgment
reads thus:
“56. For all the aforementioned reasons, I find considerable
merit in the prayer made by the Petitioner and the
Application deserves to be allowed. However, keeping in view
the nature of the relief sought in the Application, while
’
upholding the Petitioner s right to seek the use of a common
name and symbol by way of an interim arrangement during
the pendency of the Writ Petition, I deem it appropriate to
direct the Respondent No.1/ECI, which has the necessary
expertise to deal with allotment of symbols, to pass an
appropriate order permitting the Petitioner and his group of
persons to use a common symbol (preferably “Pressure
Cooker” as used by the Petitioner during the last election for
the R.K. Nagar constituency) and also permit them to use
the name of their choice, after giving them an appropriate
hearing.
57. The needful shall be done within three weeks. Needless
to say the aforesaid directions are being passed without
prejudice to the rights and contentions of the parties in the
main petition.
58. The Application is allowed in the above terms, with no
order as to costs.”
5. Aggrieved by the said decision, the SLP petitioner EKP
(respondent No.5 in the writ petition) espousing the cause of
the group led by EM, filed a special leave petition in this
Court, being SLP(C) No.7258 of 2018. When the said special
leave petition, along with connected cases, was taken up for
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th
hearing on 28 March, 2018, amongst others, it was pointed
out to the Court that the impending elections to the local
bodies were countermanded and as a result, the basis for
instituting the interim application by respondent No.1 before
the High Court did not exist. In that view of the matter, this
Court proceeded to pass the following order:
“ O R D E R
Heard Mr. Mukul Rohatgi, Mr. C.S. Vaidyanathan, Mr. K.V.
Vishwanathan and Mr. Guru Krishna Kumar, learned senior
counsel appearing for the petitioners and Mr. Ashok Desai,
Ms. Meenakshi Arora and Mr. Amarendra Sharan, learned
senior counsel for the respondents.
Having heard learned counsel for the parties, we are inclined
to pass the following directions:
(i) The counter affidavit filed by the present petitioners
before the High Court shall be taken on record and as
accepted by learned counsel for the petitioners, no
further opportunity shall be granted for filing a counter
affidavit.
(ii) Rejoinder affidavit, if any, be filed by the respondents
within two weeks hence.
(iii) The learned Acting Chief Justice of the High Court is
requested to constitute an appropriate Division Bench,
so that they can decide the lis in question.
(iv) The Division Bench so constituted is requested to
dispose of the main matter by the end of April, 2018, as
this matter requires immediate attention.
(v) The interim order passed by the learned Single
Judge on 9.3.2018 shall remain in abeyance.
(vi) As we have kept the order in abeyance, the
Election Commission shall not pronounce its order.
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(vii) In case there is any notification for an election,
liberty is granted to the parties to approach this
Court.
The special leave petitions are accordingly disposed of.
Pending interlocutory applications, if any, shall also stand
disposed of.”
(emphasis supplied)
As aforesaid, taking cue from the liberty granted to the
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parties to approach this Court in the event of issuance of any
new notification for election, respondent No.1 has filed the
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present Miscellaneous Application on 2 January, 2019,
asserting that the byeelection to fill up the vacant Assembly
Constituency of 168Thiruvarur has been notified by the ECI
st
on 31 December, 2018 and the date of polling has been fixed
th
for 28 January, 2019. The relief claimed in the present
application reads thus:
“PRAYER
It is, therefore, most respectfully prayed that in view of the
above submissions and the facts and circumstances of the
case, this Hon’ble Court may be pleased to –
a. Direct the Election Commission of India (Respondent No.2)
to pass an appropriate order permitting the Applicant and
his group to use a common symbol (preferably “Pressure
Cooker” as was allotted to the Applicant during the last bye
election for the R.K. Nagar constituency) and also permit
them to use the name of their choice in the any upcoming
elections during the pendency of the Writ Petition (c)
No.10728/2017 before the High Court of Delhi at New Delhi.
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b. Pass such other and further order or orders as may be
deemed just and proper by this Hon’ble Court on the facts
and in the circumstances of the case and in the interest of
justice.”
7. The SLP petitioner and respondent Nos.4 to 6, as well as
respondent No.2, have raised a preliminary objection about
the maintainability of this application. According to them, the
special leave petition having been disposed of, this Court has
become functus officio and ought not to pass any positive
direction, much less as sought by respondent No.1 in the
present application. It is also pointed out that the notification
th
issued by the ECI has now been rescinded on 6 January,
2019 and there is no imminent election. It was then contended
that respondent No.1, if so advised, may approach the High
Court for appropriate directions.
8. We must first answer this preliminary objection. On a
th
plain reading of the order passed by this Court on 28 March,
2018, to which one of us (A.M. Khanwilkar, J) was a party, it
is crystal clear that this Court did not examine the merit of the
judgment under appeal at all. It merely issued directions
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whilst keeping the interim order passed by the Single Judge of
the High Court in abeyance and relegated the parties before
the High Court for an expeditious hearing of the writ petition
by the Division Bench, with a sanguine hope that the same
would be disposed of before any fresh notification is issued by
the Election Commission for conduct of election or bye
election to the vacant Assembly Constituency/local bodies in
the State. Indeed, the Division Bench of the High Court
proceeded with the hearing of the writ petition in right earnest
th
from 20 April, 2018, but it is common ground that the
arguments of the parties are still incomplete despite the
matter having been posted and heard on different dates. We do
not wish to dissect the explanation offered by the counsel on
both sides regarding the reasons for pendency of the writ
petition. The fact remains that the writ petition is still pending
before the Division Bench of the High Court for its final
decision and we assume it to be so due to unavoidable
circumstances. Resultantly, the applicant (respondent No.1)
has had no other option but to rush to this Court by
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presenting the instant application because of the publication
of the election schedule by the Election Commission, in light of
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the liberty given by this Court vide order dated 28 March,
2018.
Notably, this Court has neither adverted to the merits of
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the impugned interim order of the Single Judge of the High
Court nor has it set aside or upheld the same. This Court,
instead, merely issued directions to facilitate early disposal of
the main writ petition before any fresh election programme is
announced by the ECI. With that hope, this Court had kept
the interim order of the High Court in abeyance and directed
the Election Commission not to pronounce any order or
proceed in furtherance of the same. It was so directed because
there was no immediate urgency for passing any order as the
election process, which was earlier announced, stood
countermanded. The effect of the order of this Court, therefore,
is to allow the parties to once again approach this Court in
reference to the disposed of SLPs, if the situation so warrants.
As this liberty has been given to the parties even though the
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SLPs have been ostensibly disposed of, not entertaining this
th
application, only because the order dated 28 March, 2018
records that the special leave petitions are disposed of, would
be completely trivializing the spirit of the liberty given to the
parties by this Court in the peculiar fact situation.
10. The fact that the writ petition is still pending before the
Division Bench of the Delhi High Court would certainly be no
impediment for the parties to approach this Court in light of
th
the liberty granted to them in terms of our order dated 28
March, 2018. In the peculiar fact situation of this case, we
cannot direct respondent No.1 applicant to go back to the
High Court for the relief claimed in this application because
similar relief was already considered by the Single Judge of the
th
High Court vide judgment and order dated 9 March, 2018 in
favour of the group represented by the applicant. Notably, the
directions given by the learned Single Judge in the said order
had not been independently challenged by the Election
Commission by filing SLP before this Court. Besides, it may
not be appropriate for the Division Bench to revisit the
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matters in issue dealt with in the judgment and interim order
th
passed by the learned Single Judge dated 9 March, 2018,
which has been kept in abeyance by this Court. Even if the
Division Bench was to consider the relief as claimed in the
instant application, it could do so only within the parameters
of review jurisdiction or modification of the order already
passed by the Single Judge of the same High Court. For, the
writ petition has been transferred to the Division Bench for
hearing due to the directions given by this Court vide order
th
dated 28 March, 2018. The Division Bench, thus, cannot sit
in appeal over the impugned judgment merely because the
transferred writ petition is now being heard by a twoJudge
Bench. Suffice it to observe that we do not find merit in the
preliminary objection raised by the SLP petitioner, respondent
Nos.4 to 6 and respondent No.2.
11. It was then pointed out that the byeelection to fill the
vacant Assembly Constituency of 168Thiruvarur has been
th
rescinded vide Notification dated 6 January, 2019. Further,
the ECI was not likely to issue any new notification in the
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immediate future. Even so, we deem it appropriate to examine
the relief claimed in the present application because we have
spent invaluable judicial time in hearing both sides and
moreso because we find force in the submission of respondent
No.1 applicant that even though the earlier press note has
been rescinded by the ECI, however, in view of the statutory
requirements and in discharge of the constitutional obligation
and the statement made before the Madras High Court in
some other proceedings, it will have to notify the bye
election(s) to the vacant Assembly Constituencies in the State
of Tamil Nadu, which would be more than one and besides
that, Parliamentary elections are very much in the offing.
Therefore, we proceed to answer the issues on merit canvassed
before us and we must do so in view of the liberty given to the
th
parties in terms of the order dated 28 March, 2018.
12. It was also urged that respondent No.1 has not made out
any prima facie case warranting interference with the final
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order passed by the ECI dated 23 November, 2017. This
submission, in our opinion, deserves to be stated only to be
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rejected. It is not in dispute that the writ petition has been
admitted by the High Court which obviously means that prima
facie case was made out by respondent No.1 (writ petitioner).
Additionally, the hearing of the writ petition has progressed
th
on several dates since 20 April, 2018 before the Division
Bench, which itself presupposes that formidable issues have
been raised by the writ petitioner, requiring serious
consideration by the High Court.
13. Before we advert to the rival submissions on the merits
of the issue arising from the judgment of the High Court dated
th
9 March, 2018, it would be apposite to highlight the basis on
which the learned Single Judge of the High Court gave relief to
the writ petitioner (respondent No.1 applicant). The judgment
of the learned Single Judge of the High Court is very
exhaustive and adverts to all the relevant provisions and the
reported and unreported decisions relied upon by both sides.
Having considered the same, the High Court proceeded to
opine that none of the decisions cited at the Bar actually dealt
with the question that arises for consideration in the present
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case. The question in the present case is not whether an
unregistered and unrecognized group can seek allotment of a
reserved symbol under the Election Symbols (Reservation and
Allotment) Order, 1968. However, the real question is whether
a faction, represented by respondent No.1 – TTVD and VKS
which claims to be the real party having support of majority
of the members at the time of initiation of the dispute before
the Election Commission, and that claim was still pending
consideration before the High Court, ought to be compelled to
first register itself as a political party and after following the
process of obtaining recognition could only then set up its
claim for allotment of a reserved symbol and use of name.
14. The High Court, taking cue from the interim order dated
nd
22 March, 2017, passed by the Election Commission during
the pendency of the subject dispute before it, observed that if
such arrangement could be directed by the Election
Commission when the dispute was still pending before it, there
should be no impediment for the writ Court, which is also a
court of equity, to issue similar or appropriate order during
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the pendency of the writ petition before it, considering the fact
that the decision of the Election Commission was still subject
matter of challenge. The High Court also drew analogy from
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the decision of the Election Commission vide order dated 19
December, 1997 in Rashtriya Janata Dal’s application for its
th
recognition as a National Party and decision dated 27 March,
2009 of this Court in Desiya Murpokku Dravida Kazhagam
and Anr. Vs. Election Commission of India, bearing WP(C)
th
No.532/2008 and order dated 27 April, 2009 in Viduthalai
Chiruthaigal Katchi Vs. Election Commission of India, bearing
WP(C) No.177/2009, wherein direction was issued to the
Election Commission of India to allot common symbols to the
registered unrecognized political parties as an interim
measure for the ensuing elections. The High Court also
noticed that although at the time of institution of the dispute
before the Election Commission, the support received by the
rival factions from the legislative wing of AIADMK was that
12 out of 134 MLAs of the AIADMK supported the faction led
by respondent No.5 – OP while 122 MLAs and 37 out of 50
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MPs of AIADMK supported the faction represented by
respondent No.1 – TTVD. But by the time the dispute was
decided by the ECI, admittedly, respondent No.1’s faction still
enjoyed the support of 6 MPs and 20 MLAs and other party
members as noticed by the Election Commission. The High
Court further noted that ECI in exercise of its plenary powers
had granted relief during the pendency of the dispute to the
faction represented by respondent No.1 – TTVD in the interest
of free and fair elections and healthy growth of democracy and
keeping in mind past instances, such as the case of Rashtriya
Janata Dal. On that basis, the High Court deemed it
appropriate to issue directions to allot common symbol to the
faction represented by respondent No.1 – TTVD in different
constituencies where they would nominate candidates to
contest in the ensuing elections. Notably, the High Court was
conscious of the fact that ordinarily, common symbol can be
allotted only to registered recognized political party. The Court
finally observed that if the Election Commission of India could
do so in exercise of its plenary powers when the dispute is
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pending before it, there could be no impediment for the writ
court to pass appropriate directions, especially when no real
prejudice would be caused to any other party and the claim
regarding which faction is the real party has still not attained
finality. That would ensure a level playing field in the political
sphere for the concerned factions.
15. According to the SLP petitioner, respondent Nos.46 and
respondent No.2, there is no provision in the Symbols Order to
allot a common symbol to a group that is not even registered
as a political party. The power of the Election Commission to
issue instructions and directions in terms of paragraph 18
cannot be invoked in the fact situation of the present case and
moreso because the Commission has already decided the
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dispute between the two factions vide order dated 23
November, 2017. As the dispute has been finally decided by
the Commission, the question of passing equitable order which
would be in the teeth of the Symbols Order cannot be
countenanced. It is urged that the benefits of being a
registered political party and/or registered recognized political
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party are well defined and upon registration and recognition,
the parties have to follow certain norms and discipline. The
political outfit such as represented by respondent No.1 would
enjoy all the benefits of a registered recognized party without
discharging corresponding obligations and liabilities in that
regard. Further, granting any relief to respondent No.1 would
result in more such outfits insisting for similar relief of
allotment of a common symbol without complying with the
statutory requirements and would set a bad precedent,
besides entailing in rendering the provisions of the Symbols
Order redundant. Further, the proceedings before the High
Court not being a statutory appeal, cannot be treated as
continuation of the proceedings of the Election Commission so
as to continue the interim arrangement directed by the
nd
Election Commission vide order dated 22 March, 2017.
Moreover, respondent No.1 cannot insist for a particular name
or symbol and if that request is acceded to, it would create
enormous confusion amongst the voters, impinging upon the
conduct of free and fair elections.
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16. Thus, the principal argument of the SLP petitioner(s),
respondent Nos.46 and respondent No.2, is that issuing
direction as sought by respondent No.1, would result in
directing the ECI to do something contrary to the provisions
contained in the Election Symbols (Reservation and Allotment)
Order, 1968. This argument, in our opinion, has been rightly
negatived by the High Court on the logic that if ECI considers
itself competent to pass interim directions for ensuring level
playing field to both the factions during the adjudication of the
dispute pending before it, there is no reason why, on the same
logic the High Court, being a court of equity, is not competent
to do so when the final decision of the ECI was still pending
challenge before it. We also agree with the High Court that the
reported and unreported decisions pressed into service by the
SLP petitioner and the contesting respondents, dealt with
cases where the political party was already registered but not
recognized. Similarly, the policy propounded by the Election
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Commission in Rashtriya Janata Dal, decided on 19
December, 1997, would govern cases in which a final decision
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is already taken by the Election Commission on the
application of the concerned political group for recognition as
a National/State Party, which was formed as a result of a split
in the recognized National or State party. In such cases, it has
been decided that the ECI would not straightaway recognize
the split faction merely on the ground that it is a breakaway
or a splinter group of such registered recognized party and
such group enjoyed the support of the MPs or MLAs. Whereas,
the new party must get itself registered under Section 29A of
the Representation of the People Act, 1951, (for short “
1951
Act ”) contest general election on its own manifesto, policies
and programmes and obtain a mandate from its electorate for
its recognition in terms of paragraphs 6 and 7 of the Symbols
Order. Indeed, that dispensation may have to be followed by
respondent No.1, if his challenge to the decision of the
Election Commission is finally rejected and/or answered
against the group represented by him. Until such time,
respondent No.1 – writ petitioner could legitimately pursue his
claim before the High Court/Supreme Court that his group
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represents the real political party (AIADMK) which was earlier
registered and recognized.
17. Reliance was placed on the decision of Desiya
Murpokku Dravida Kazhagam and Anr. Vs. Election
1
Commission of India to contend that even though initially
this Court granted interim relief to the writ petitioner, it
eventually realized that granting such interim relief had
resulted in avoidable confusion and made it unworkable for
the ECI for the smooth conduct of the elections. In
paragraphs 27 to 29 of the judgment this Court observed thus:
“27. When the interim arrangements were made on 273
2009, the registered unrecognised political parties before the
Court were only three in number, whereas presently many
others have joined the bandwagon. What we are required to
consider at this stage is whether despite the above, any
prejudice would be caused to any of the stakeholders in the
election process, if such prayer was allowed. It would
certainly be to the advantage of the registered unrecognised
political parties if they were able to put up candidates on a
common symbol. On the other hand, if all registered
unrecognised political parties were to be provided with a
common symbol, prima facie, it would render the provisions
of the Election Symbols Order, 1968, completely unworkable
and destroy the very object it seeks to achieve.
28. Having regard to the aforesaid two possibilities, we are
not inclined to make any interim arrangement similar to that
made on an earlier occasion. The earlier interim
arrangement was possible on account of the lesser number
1
(2011) 4 SCC 224
22
of parties, but in the present circumstances, the same will
not be workable in view of the number of candidates who are
likely to contest the elections and are required to be provided
with free symbols in each constituency.
29. However, while we are not inclined to make any interim
arrangement regarding the allotment of election symbols for
the forthcoming General Assembly Elections, we make it
clear that this is only a tentative view, which shall not, in
any way, affect the final outcome of the pending writ
petitions and special leave petitions. We also make it clear
that this order will not prevent the Election Commission
from considering any representation that may be made by
the political parties and from accommodating their prayer for
a common symbol, to the extent practically possible.”
18. Notably, this was a case where the registered
unrecognized political party had sought relief regarding
allotment of a common symbol for the candidates to be
nominated by the party during the ensuing elections. Suffice it
to observe that it was not a case where each faction of the
registered recognized State political party claimed to be the
real party and such a dispute was sub judice before the High
Court, as is the fact situation in the present case. The fact
that the writ petition cannot be stricto sensu considered as
continuation of proceedings of the Election Commission,
nevertheless it is open to the High Court to set aside the final
decision of the Election Commission and including to pass
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appropriate interim directions during the pendency of writ
petition before it.
19. Be that as it may, in the present case, when the matter
was pending before the Election Commission, it had passed
interim order to ensure level playing field to both the factions
nd
of AIADMK. The relevant extract of the order dated 22 March,
2017 reads thus:
“10. The Commission, at the outset of the hearing itself, had
told all the parties that it would not go into the question of
the appointment of respondent No.1 as General Secretary of
the party, and that the present hearing would be confined
only to the question of allotment of the reserved symbol of
the party to its candidate at the current byeelection from
11Dr. Radhakrishnan Nagar Assembly Constituency, for
which the nominations would close by 03.00 pm tomorrow
rd
(23 March, 2017). Thus, for the time being, the Commission
is concerned only with the limited aspect of use of the said
symbol ‘Two Leaves’ reserved for the party in the said bye
election from 11Dr. Radhakrishnan Nagar assembly
constituency.
11. From the foregoing, it would be apparent that the
examination and analysis of voluminous documents and
huge number of affidavits filed by both the groups in support
of their respective claims would require considerable time as
both the groups have pointed out several discrepancies and
legal infirmities in those individual affidavits. A deeper
examination and more closer look would also be required to
the various provisions of the party constitution on which
both the groups relied to buttress their submissions on
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factual and legal basis. No one would grudge the fact that it
is almost humanly impossible to study all the aforesaid
records running into more than 20,000 pages and to analyze
the oral submissions made by the learned counsels for more
than six hours continuously, and then come to a definite
finding or conclusion on the disputed questions of facts and
law. After the close of the hearing at about 05.00 p.m. today,
any hasty decision in a matter of a few hours before the
commencement of the nominations process at 11.00 a.m.
rd
tomorrow (23 March, 2017) may lend to an erroneous
conclusion or finding prejudicially affecting the rights and
interests of either or both the groups. Furthermore, the
learned counsel for the petitioners have also orally submitted
that they have collected and are in the process of collecting
more individual affidavits from the members of the party at
various organizational layers and wings of the party for the
submission whereof they require some more time. It would
not be fair in the interest of equity, justice and fair play – in
action to deny them the opportunity of doing the needful in
the matter, as prayed for.
12. Having regard to the above facts and circumstances and
the practical difficulties in evaluating and adjudicating upon
the huge evidence running into more than 20,000 pages
adduced by both the parties – that too filed late in the
st
evening yesterday (21 March, 2017) – and the oral
submissions made by their learned senior counsels, the
Commission is not in a position to give any final decision at
the present juncture in the short time available mentioned
above. Consequently, the Commission is left with no
other option in these compelling circumstances but to
make an interim order which may be fair to both the
contending groups in order to place both the rival groups
on even keel to protect their rights and interests and
going by the past precedents in such cases, the
Commission hereby makes the following interim order,
purely for the purposes of the current byeelection from
11Dr. Radhakrishnan Nagar assembly constituency in
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Tamil Nadu, pending the final determination of the
dispute raised by the petitioners in their petition dated
th
16 March, 2017 in terms of para 15 of the Symbols
Order:
(a) Neither of the two groups led by the petitioners 9Shri
E. Madhusudhanan, Shri O Panneerselvam and Shri S.
Semmalai) and the respondents (Smt. V.K. Sasikala and
Shri TTV Dhinakaran) shall be permitted to use the name
of the party ‘All India Amma Dravidn Munnetra
Kazhagam’ simplicitor;
(b) Neither of the aforesaid two groups shall also be
permitted to use the symbol ‘Two Leaves’, reserved for
‘All India Anna Dravida Munnetra Kazhagam’;
(c) Both the groups shall be known by such names as
they may choose for their respective groups, showing, if
they so desire, linkage with their parent party ‘All India
Anna Dravida Munnetra Kazhagam’, and
(d) Both the groups shall also be allotted such different
symbols as they may choose from the list of free symbols
notified by the Election Commission for the purposes of
the current byeelection from 11Dr. Radhakrishnan
Nagar assembly constituency in Tamil Nadu.
Accordingly, both the groups are hereby directed to
rd
furnish latest by 10.00 a.m. tomorrow (23 March,
2017):
(i) the names of their groups by which they may be
recognized by Commission; and
(ii) the symbols which may be allotted to the
candidates set up, if any, by the respective groups. They
may indicate the names of three free symbols in the
order of their preference, anyone of which may be
allotted to their candidates by the Commission.
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13. Further, the both the above referred groups are allowed a
further and the final opportunity of adducing all such
documents and affidavits on which they propose to rely on
th
their respective claims, latest by 17 April, 2017 (Monday).
They may also take notice that the matter will be further
heard by the Commission on a date to be intimated later.
ORDERED ACCORDINGLY”
(emphasis supplied)
20. Indeed, allotment of an election symbol cannot be
claimed as a fundamental right as much as contesting election
is not, as observed in
Jyoti Basu and Ors. Vs. Debi Ghosal
2
and Ors. . It is a statutory right. It is also well settled that the
Election Commission has plenary powers and could exercise
the same to ensure free and fair elections. Clause 18 of the
Symbols Order predicates the facet of such plenary power to
be exercised by the Election Commission. Clause 18 reads
thus:
“18. Power of Commission to issue instructions and
directions. The Commission, may issue instructions and
directions
(a) for the clarification of any of the provisions of this
Order.
(b) for the removal of any difficulty which may arise in
relation to the implementation of any such provisions; and
(c) in relation to any matter with respect to the
reservation and allotment of symbols and recognition of
2
1982 (1) SCC 691
27
political parties, for which this Order makes no provision or
makes insufficient provision, and provision is in the opinion
of the Commission necessary for the smooth and orderly
conduct of elections.”
21. The Election Commission in the past has exercised
plenary powers under paragraph 18 for issuing interim
directions regarding allocation of common symbols to the two
factions, when the dispute under the Symbols Order was still
pending before it. It was argued that the Election Commission
cannot do so once it had finally decided the dispute. There is
no difficulty in agreeing with the proposition that once the
dispute had been finally decided by the ECI, the question of
invoking powers under paragraph 18 by it (ECI) would not
arise. However, if the dispute is pending enquiry before ECI or
the final decision of the ECI is in the proceedings
sub judice
before the constitutional court, providing for an equitable
arrangement in the interests of free and fair elections and to
provide equal level playing field to all concerned, would be a
just and fair arrangement.
22. Assuming that the provisions of the Symbols Order do
not predicate the nature of directions that may have to be
28
issued by the ECI, nothing prevents the ECI to exercise its
expansive and plenitude of plenary powers under Article 324
of the Constitution of India to deal with the situation such as
the present one for ensuring conduct of free and fair elections.
That would be moreso when the dispute between the two
factions is still sub judice . Indubitably, exercise of power by
the ECI pursuant to the interim directions of the writ court
would be its constitutional obligation.
23. We find force in the argument of respondent No.1
(applicant) that in the event the group to which he belongs
gets itself registered as a political party, that step will be
fraught with several difficulties. First, recognition does not
follow registration. For that, the political party will have to
fulfill all the requirements specified in the Symbols Order.
That will be a long drawn process. Second, without recognition
the registered political party cannot get a common election
symbol. Third, it may not be just and fair to ask the splinter
group to give up its claim of a real political party until the
dispute is finally settled by the court of competent jurisdiction,
29
which would be the consequence of seeking registration.
Fourth, the elected representatives who are members of the
group, may have to face the risk of incurring disqualification
because of giving certain declarations whilst applying for
registration of a new political party. Resultantly, an interim
arrangement which would be just and fair and not cause any
prejudice, whatsoever, to the other group which has been
presently recognized by the ECI as the real political party,
namely, AIADMK, is imperative.
24. To buttress the argument that the ECI has wide powers
to provide for an equitable arrangement for ensuring free and
fair elections, reliance is placed on the interim order passed
th
by the Election Commission dated 17 January, 2000, in the
case of permitting the two groups of the
Janata Dal (United) ,
National Party to use separate names and symbols, which
reads thus:
“ Interim Order of the Election Commission of India
th
dated 17 January, 2000
The Commission has also considered the second
prayer of the Janata Dal (United) to permit it to use the
name of Janata Dal (United) at the ensuing General Election
to the Bihar Legislative Assembly. The Commission has
th
already announced, on 8 January, 2000, the programme
30
for General Election to the Bihar Legislative Assembly,
alongwith the General Elections to the legislative Assemblies
of Haryana, Orissa and Manipur and several Byeelections to
the House of the People and Legislative Assemblies of certain
other States. According to the time table for these General
Elections, the first set of notifications in relation to elections
from 108 Assembly Constituencies in Bihar and 28
Assembly Constituencies in Manipur are scheduled to issue
th
by the Governors of the States concerned on 17 January,
2000. With the issue of these notifications, the process of
nomination of candidates by all parties will commence on
th th
that very day and will end on 24 January, 2000. On 24
January itself, the second phase of elections in Bihar from
another 108 Assembly Constituencies as well as elections
from 70 Assembly Constituencies in Orissa and byeelections
from two Parliamentary and 30 Assembly Constituencies in
various States will also commence. If the Commission takes
any decision finally in the present matter after taking into
consideration the written submissions which may be filed by
th
the parties on 18 January, 2000, that decision may be
rendered too close to the last date for making nominations
for the first phase of elections in Bihar and Manipur and the
commencement of the second phase of elections in that State
th
as well as the elections in other States commencing on 24
January, 2000. This will not only put the parties concerned
but also the election authorities down the line in all the
concerned States in a state of confusion and chaos.
In the
circumstances, the Commission is of the considered
view that, in the interest of free and fair elections and
equity and fairplay in action, the interim arrangement
th
which was made by the interim order dated 7 August,
1999 in the present case should continue till its final
disposal. Therefore, the second prayer of the Janta Dal
(United) to allow to use its name Janata Dal (United) for
the purposes of the ensuing General Elections is also
hereby granted.
8. Accordingly, it is hereby directed that, until
further orders
(i) The groups of the Janta Dal led by Shri H.D. Deve
Gowda shall continue to be recognized as a National
party, and the symbol “Kisan Driving Tractor” shall
continue to be reserved for it;
31
(ii) The group of the Janta Dal led by Shri Sharad
Yadav shall continue to be recognized as a National
Party, and the symbol “Arrow” shall continue to be
reserved for it. ”
(emphasis supplied)
25. The contesting respondents, however, have placed
reliance on the decision of this Court in Madeva Upendra
3
, which had
Sinai and Ors. Vs. Union of India and Ors.
dealt with the purport of regulation in the Taxation Law
(exceeding to Union Territories) Order, 1970. Drawing analogy
therefrom, it is urged that the powers of the Election
Commission under paragraph 18 cannot be exercised in a
manner that would do violence to the primary statutory
scheme in relation to allotment of symbols. The moot question
is: when the Election Commission is competent to pass
appropriate directions by invoking paragraph 18 of the
Symbols Order and/or Article 324 of the Constitution during
the pendency of dispute before it, can there be any
impediment for the writ court to pass appropriate interim
directions while the validity of the decision of the Election
Commission is sub judice before it. Indubitably, the High
3
(1975) 3 SCC 765 (paragraphs 3640)
32
Court has ample jurisdiction to not only stay the operation of
the decision of the Election Commission but in a given
situation also continue the arrangement provided in terms of
the interim order passed by the ECI, which ECI itself had
directed during the pendency of the dispute before it.
26. Be that as it may, in this case the respondent No.1 – writ
petitioner is not praying for the larger relief of stay of the
operation of the final decision of the ECI which would directly
affect the group represented by SLP petitioners, but is content
with a direction to the Election Commission to continue the
interim relief given to his group in terms of its order dated
nd
22 March, 2017. We have no hesitation in agreeing with the
High Court that for doing justice and protecting the interests
of all concerned and to uphold the democratic principles,
including for ensuring free and fair elections, it would be just
and proper to continue the interim arrangement as was
directed by the ECI regarding allotment of a common symbol
to the political group represented by respondent No.1,
especially when such relief would not cause any prejudice to
33
any other person or party nor impinge upon the powers of the
Election Commission.
27. Notably, in the case of Kerala Congress (Antimerger
, the Election Commission had permitted the anti
Group)
merger group to use the names and reserved symbols vide
th
communication dated 25 March, 2011, File No.56/04/2010,
which reads thus:
“SECRETARIAT OF THE
ELECTION COMMISSION OF INDIA
Nirvachan Sadan, Ashoka Road, New Delhi110001.
th
File No.56/04/2010 Dated:25 March, 2011
To
The Chief Electoral Officer,
Kerala,
Thiruvanantapuram.
Subject: Allotment of Common Symbol for the General
Election to the Legislative Assembly of Kerala, 2011
regarding.
Madam,
I am directed to refer to the letter dated 25.03.2011 on the
subject cited received from the Chairman of Kerala Congress
(Antimerger Group) and to state that the Commission has
decided in terms of it’s Order dated 24.03.2011, to allot
symbol ‘Ceiling Fan’ to ‘Kerala Congress (Antimerger Group)’
as a reserved symbol for the on going General Election to the
Legislative Assembly of Kerala, 2011.
2. All the Returning Officers may be directed to allot the
above symbol exclusively to the candidates set up by Kerala
Congress (Antimerger Group) on fulfillment of the provisions
of para 13 of the Election Symbols (Reservation & Allotment)
Order, 1968 relating to setting up of candidates by the party
and also ensure that the said symbol is not allotted to any
other candidates.
34
Yours faithfully,
Sd/
Pramod Kumar Sharma
(Under Secretary)”
28. Even in the case of Uttarakhand Kranti Dal , separate
names and symbols came to be allotted by the Election
Commission to two groups vide communication
st
No.56/17/2011/PPSII/Vol.IV, dated 31 December, 2011
which reads thus:
“ELECTION COMMISSION OF INDIA
Nirvachan Sadan, Ashoka Road, New Delhi110001
st
56/17/2011/PPSII/Vol.IV Dated:31 December, 2011
To
The Chief Electoral Officer,
Uttarakhand,
Dehradun.
Subject: Allotment of names of the two groups of
Uttarakhand Kranti Dal and allotment of symbols to them
for the General Election to the Legislative assembly of
Uttarakhand regarding.
Sir,
In pursuance of the Commission’s Order dated 27.12.2011,
the two groups of Uttarakhand Kranti Dal led by Sh.
Trivendra Singh Pawar and Sh. Diwakar Bhatt have
submitted applications regarding the name and symbol for
their respective Parties. The Commission has approved
“Uttarakhand Kranti Dal(P)” as the name of the party led by
Sh. Trivendra Singh Pawar and has allotted the symbol ‘Cup
and Saucer’ as the reserved symbol for the said party for the
35
current General Election to the Legislative Assembly of
Uttarakhand, 2012.
2. Further, the Commission has also approved
“Jantantrik Uttarakhand Kranti Dal” as the name of the
party led by Sh. Diwakar Bhatt and has allotted the symbol
‘Kite’ as its reserved symbol for the current General Election
to the Legislative Assembly of Uttarakhand, 2012.
3. This may be communicated to all election officials in
the State. All the Returning Officers may be directed to allot
the symbol referred to above exclusively to the candidates set
up by the above said parties on fulfillment of the provisions
of para 13 of the Election Symbol (Reservation & Allotment)
Order, 1968 relating to setting up of candidates by the party
and also ensure that the said symbol is not allowed to any
other candidates.
4. The lists of office bearers submitted by Uttarakhand
Kranti Dal(P) and Jantantrik Uttarakhand Kranti Dal are
enclosed.
5. Copy of this letter may be delivered to the two Parties
immediately.
Yours faithfully,
(PRAMOD KUMAR SHARMA)
UNDER SECRETARY”
In the case of
29. Desiya Murpokku Dravida Kazhagam
and Anr. Vs. Election Commission of India, in Writ Petition
th
(Civil) No. 532 of 2008, dated 27 March, 2009, by way of
interim arrangement this Court had initially issued directions
to the Election Commission of India which read thus:
“ORDER
W.P.(C) No.532/2008,W.P.No(C) No.132/2009 and
SLP(C) Nos.737980/2009
36
W.P.(C) No.532/2008 is filed by a registered unrecognized
political party mainly situated in Tamil Nadu and W.P. No (C)
No.132/2009 is filed by another registered unrecognized
political party situated mainly in Andhra Pradesh whereas
special leave petitions are filed against the order passed by
the division bench of the High Court of Andhra Pradesh. In
all these matters the petitioners in writ petitions and
respondents in the special leave petitions made an interim
prayer. In the State of Andhra Pradesh and the State of
Tamil Nadu General Elections have already been notified and
in the State of Andhra Pradesh there are elections for Lok
Sabha as well as assembly constituencies and in the State of
Tamil Nadu there are General Elections only for Lok Sabha.
By the impugned order, it has been directed that all
registered unrecognized parties shall be allotted a free
symbols for the ensuing elections.
The "Political Party" has been defined in the Election
Symbols (Reservation and Allotment) Order, 1968, para 2 (h)
as an association or body of individual citizens with the
Commission as a political party under Section 29A of the
Representation of the People Act, 1951. There are national
parties, state parties and registered unrecognized parties
and the symbols are allotted under the Election Symbols
(Reservation and Allotment) Order, 1968. The national
parties as well as state parties have their own common
symbols, whereas the registered unrecognized parties are
given free symbols. Choice of symbols by other candidates
and allotment are governed as per para 12 of the Election
Symbols (Reservation and Allotment) Order, 1968.
The three political parties who have appeared before us
through their senior counsel are Desiya Murpokku Dravida
Kazhagam (DMDK) party, Praja Rajyam Party and Lok Satta
Party and they contended that they would fill candidates in
all the 292 assembly constituencies and 42 constituencies of
Lok Sabha seats in Andhra Pradesh and 39 constituencies
for Lok Sabha seats in Tamil Nadu and one Lok Sabha seat
in Pondicherry. It is brought to our notice that these three
political parties be given a common symbol each. While
DMDK preferred the symbol of ’Nagara’ which is at Sl.no.41
in the list of free symbols, whereas Praja Rajyam Party
preferred the symbol of ’Railway Engine’ which is at Sl.no.43
in the list of free symbols and the Lok Satta Party preferred
37
the symbol of ’Whistle’ which is at Sl.no.59 in the list of free
symbols.
The order passed by the High Court of Andhra Pradesh dated
25.3.2009 is stayed to the extent that the Election
Commission has been directed to give a common symbol to
all the candidates to be filled up by all registered
unrecognized parties. Further the Election Commission may
give a common symbol, as indicated earlier, to DMDK, Praja
Rajyam Party and Lok Satta Party subject to the general
conditions given in paragraph 12 of the Order, 1968,
especially –
‘12(b) if, of those several candidates, no one is set up by
any recognized political party and all are independent
candidates, but one of the independent candidates is, or
was, immediately before such election a sitting member
of the House of the People, or, as the case may be, of the
Legislative Assembly, and was allotted that free symbol
at the previous election when he was chosen as such
member, the Returning Officer shall allot that free
symbol to that candidate, and to no one else.’
The candidates to be filled up by these political parties shall
submit prescribed form duly authorised by a particular
party. It is made clear that these three political parties are
not entitled to get any preferential treatment in respect of
this symbol and no equity will be given in future when
allotment of regular symbol arise for consideration before the
Election Commission. This is only an interim arrangement.
This order is confined to only these three parties.”
As aforesaid, this interim relief was not continued by the
subsequent order (extracted in paragraph 17 above). Further,
the said writ petitions and the SLPs were then heard together
th 4
and finally dismissed on 18 April, 2012, upholding the
amendments effected by the Election Commission to the
4
(2012) 7 SCC 340
38
Election Symbols (Reservation and Allotment) Order, 1968, by
st
its Notification dated 1 December, 2000, substituting
paragraph 6 thereof with paragraph 6A(i) and (ii) and
paragraph 6B.
Similarly, in the case of
30. Viduthalai Chiruthaigal
Katchi Vs. Election Commission of India , in Writ Petition
th
(Civil) No.177 of 2009 vide order dated 27 April, 2009, this
Court had issued directions to the Election Commission for
allotting symbol which read thus:
“ORDER
The petition has been filed by Viduthalai Chiruthaigal
Katchi, a registered unrecognized political party in the State
of Tamil Nadu. It is sponsoring its candidates for
Chidambaram and Villupuram Parliamentary constituencies
and the candidates have also submitted their nomination
papers for the same. The petitioner prays that the party may
be given a common election symbol of ’Star’ in these two
Parliamentary Constituencies. The prayer is opposed by
learned counsel appearing for the Election Commission and
it is submitted that the symbol ’Star’ is a reserved symbol of
Mizo National Front, which is a political party in the State of
Mizoram. The petitioner’s counsel states that the Mizo
National Front is not contesting in the Tamil Nadu elections
and it is not sponsoring any candidates in the State of Tamil
Nadu.
In view of the ensuing elections, the petitioner Viduthalai
Chiruthaigal Katchi may be given the symbol ’Star’ for its
candidates at Chidambaram and Villupuram constituencies.
It is made clear that this allotment of symbol will not give
any additional rights or equities in favour of the petitioner
political party when the question of allotment of symbol
39
arises. This is purely for the purpose of the ensuing
parliamentary election only. However, if any other political
party or persons seek the symbol ’Star’, the Election
Commission may allot such symbol to any political
party/candidate.
The petitioner would be at liberty to communicate this order
telegraphically.
The writ petition is disposed of accordingly.”
5
31. In the case of , after deciding
Indian National Congress
the dispute between the rival groups in proceeding ascribable
to paragraph 15 of the Symbols Order, the splinter group was
recognized by the ECI as a National party and consequently,
directions were issued in exercise of powers under paragraph
18 of the Symbols Order. The same reads thus:
Accordingly, I hold and decide under paragraph 15 of the
“
Election Symbols (Reservation and Allotment) Order, 1968,
that for the purposes of that Order, the group led by Shri
jagjivan Ram is the Indian National Congress for which the
symbol “Two Buyllocks with Yoke On” has been reserved.
As the group led by Shri Nijalingappa has sufficient number
of members in the House of the People and in the various
State Legislative Assemblies and as that group satisfies and
fulfils the conditions precedent to the recognitioin of a party
as National Party, in exercise of the powers conferred upon
the Election Commission by paragraph 18 of the Election
Symbols (Reservation and Allotment) Order, 1968, and all
other powers enabling it in that behalf, I hold and decide
that the group led by Shri Nijalingappa should also be
recognized as a National party throughout the whole of India
and, necessary instructions and directions will be issued to
all the concerned election officers in the States and Union
territories of India and a notification will be issued under
paragraph 17 of the Election Symbols (Reservation and
5
Election Law Reports, Vol. 47 (1974)
40
Allotment) Order, 1968, as soon as that group approaches
the Commission for the reservation of a symbol for it as a
National party with a name which should be at least in some
way different from the name “India National Congress. ”
In the case of
32. Shri N. Chandra Babu Naidu Vs. Smt.
Lakshmi Parvati , the Election Commission of India vide order
th
dated 12 March, 1996, however, while considering Issue No.2
answered the same in the following words:
“ISSUE 2: IF ANY ONE OF THE GROUPS IS RECOGNISED
AS THE REAL TELUGU DESAM PARTY’, WHAT IS THE
POSITION OF THE OTHER GROUP? IS IT ENTITLED TO ANY
RELEF?
Now that in accordance with the tests laid down by Supreme
Court in adjudicating disputes between rival groups of
political parties, and therefore taking into account the
majority of members of the legislative wing and orgnisational
wing, this Commission has held the group led by Shri N.
Chandrababu Naidu, as the real Telugu Desam Party, if, as a
consequence of this order, the respondent group led by Mrs.
Lakshmi Parvati decides to form a separate party and seeks
its registration under section 29A of the Representation of
the People Act, 1951, the Commission would be prepared to
grant it not only registration under the said Act but also
recognition as a State Party in the State of Andhra Pradesh.
Such a relief would be subject to the group completing the
formalities of applying to the Commission for Registration as
a political party under section 29A of the Representation of
the People Act, 1951. They should also furnish positive
evidence of their strength to the Commission, and also
documents in relation to the votes polled by its members in
the last General Election to the State Assembly held in 1994
to claim allotment of a reserved symbol. According such a
relief is not only in conformity with the principles of fair play,
justice and equity, but also in line with the past practice and
precedents of the Commission in such cases.
ORDERED ACCORDINGLY”
41
Needless to observe that this was the final decision of the
Election Commission of India and not a case where the order
of the Election Commission was challenged before the High
Court and that challenge was still pending.
33. Indeed, if the political group is not registered under
Section 29A of the 1951 Act and is not recognized as per the
provisions of Symbols Order, 1968, it may not be entitled to
claim allotment of a common symbol which is reserved for a
registered and recognized State/National political party. That
is the quintessence. Paragraphs 9 to 11 would apply to such
registered and recognized political party which provide for an
option of a reserved symbol. For any other candidate or
candidate belonging to unregistered or unrecognized party, his
claim would be dealt with under paragraph 12 of the Symbol
Order, 1968. The closest provision is paragraph 15 of the
Symbol Order, which deals with the powers of the Election
Commission in relation to splinter groups or rival factions of
the political party. But once that dispute is answered by the
Election Commission and that decision attains finality, the
42
splinter group will have no other option but to register itself as
a political party and only after fulfillment of the requirements
specified in paragraphs 6A to 6C of the Symbols Order, 1968,
as applicable, may be given recognition as a National or State
political party.
34. In the present case, the decision of the Election
Commission is sub judice before the High Court and the claim
of the group or faction of being the original registered
recognized State political party represented by respondent
No.1 (writ petitioner), will be subject to the outcome thereof.
Until such time, there is no just reason as to why the interim
arrangement such as ordered by the Election Commission in
nd
terms of the interim order dated 22 March, 2017, as
applicable to the group represented by respondent No.1, ought
not to continue.
35. We say so because the efficacy of having a common
symbol for a political group has been underscored in
Shri
Sadiq Ali and Anr. Vs. The Election Commission of India,
43
6
New Delhi and Ors. In paragraph 21 of the said judgment,
this Court observed thus:
“21. xxx xxx xxx 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 the election law of India. xxx xxx xxx 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. Although the purpose which
accounts for the origin of symbols was of a limited
character, the symbol of each political party with the
passage of time acquired a great value because the bulk
of the electorate associated the political party at the
time of elections with its symbol. xxx xxx”
(emphasis supplied)
And again in paragraphs 40 & 41 it is observed thus:
“40. xxx xxx xxx It would, therefore,
follow that Commission has been clothed with plenary
powers by the abovementioned Rules in the matter of
xxx xxx
allotment of symbols.
If the Commission is not to be disabled from exercising
effectively the plenary powers vested in it in the matter
of allotment of symbols and for issuing directions in
connection therewith, it is plainly essential that the
Commission should have the power to settle a dispute
in case claim for the allotment of the symbol of a
xxx xxx
political party is made by two rival claimants.
Para 15 is intended to effectuate and subserve the main
6
(1972) 4 SCC 664
44
purposes and objects of the Symbols Order. The
paragraph is designed to ensure that because of a
dispute having arisen in a political party between two or
more groups, the entire scheme of the Symbols Order
relating to the allotment of a symbol reserved for the
political party is not set at naught. xxx xxx 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 VicePresident 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.
41. xxx xxx xxx Article 324 as mentioned above
provides that superintendence, direction and control of
xxx ”
elections shall be vested in Election Commission.
(emphasis supplied)
36. This decision has been followed in Kanhiya Lal Omar
7
and in paragraph 10 thereof, the
Vs. R.K. Trivedi and Ors.
Court observed thus:
“10. It is true that till recently the Constitution did not
expressly refer to the existence of political parties. But their
existence is implicit in the nature of democratic form of
Government which our country has adopted.
The use of a
symbol, be it a donkey or an elephant, does give rise to a
unifying effect amongst the people with a common
political and economic programme and ultimately helps
in the establishment of a Westminster type of democracy
which we have adopted with a Cabinet responsible to the
7
(1985) 4 SCC 628
45
elected representatives of the people who constitute the
The political parties have to be there if the
Lower House.
present system of Government should succeed and the
chasm dividing the political parties should be so profound
that a change of administration would in fact be a revolution
disguised under a constitutional procedure. It is no doubt a
paradox that while the country as a whole yields to no other
in its corporate sense of unity and continuity, the working
parts of its political system are so organised on party basis
— in other words, “on systematized differences and
unresolved conflicts”. That is the essence of our system and
it facilitates the setting up of a Government by the majority.
Although till recently the Constitution had not expressly
referred to the existence of political parties, by the
amendments made to it by the Constitution (Fiftysecond
Amendment) Act, 1985 there is now a clear recognition of the
political parties by the Constitution. The Tenth Schedule to
the Constitution which is added by the above Amending Act
acknowledges the existence of political parties and sets out
the circumstances when a member of Parliament or of the
State Legislature would be deemed to have defected from his
political party and would thereby be disqualified for being a
member of the House concerned. Hence it is difficult to say
that the reference to recognition, registration etc. of political
parties by the Symbols Order is unauthorised and against
the political system adopted by our country.”
(emphasis supplied)
After having examined all aspects of the matter, we are of
37.
the considered opinion that the direction issued in terms of
th
order dated 28 March, 2018, to keep the interim order of the
th
learned Single Judge of the High Court dated 9 March, 2018,
in abeyance and consequently to restrain the Election
Commission from pronouncing its order on the application
46
preferred by the political group represented by respondent
No.1 (writ petitioner), needs to be vacated. In other words, the
Election Commission shall process the application preferred
by the political group represented by respondent No.1 TTVD
(writ petitioner) and respondent No.3 – VKS in terms of the
th
interim order of the High Court dated 9 March, 2018 and
take it to its logical conclusion expeditiously.
38. However, considering the fact that the hearing on the writ
petition before the Division Bench of the High Court has
almost reached at the final stage, we deem it appropriate to
mould the reliefs in the following terms:
(a) If the writ petition is not finally disposed of by the
Division Bench of the High Court within four weeks from
today, the Election Commission of India shall process the
application of the group represented by respondent No.1
(writ petitioner) in terms of the directions given by the
th
High Court vide interim order dated 9 March, 2018 and
issue appropriate directions within two weeks therefrom
(i.e. four weeks plus two weeks, from today).
47
(b) In the event, before the expiry of the stated period, the
Election Commission intends to issue any Press Note or
Notification for announcing the byeelections in respect of
the vacant Assembly Constituencies in the State of Tamil
Nadu or Parliamentary Elections for 2019, as the case
may be, it shall pass appropriate directions in
compliance with the interim order of the High Court
th
dated 9 March, 2018, within one week from the date of
release of such Press Note or Notification and in any
case, before the date notified for filing of the nominations,
whichever is earlier.
39. Miscellaneous Application is disposed of in the above
terms. No costs.
................................J
(A.M. Khanwilkar)
................................J
(Ajay Rastogi)
New Delhi.
February 7, 2019.
48
ITEM NO.1501 COURT NO.11 SECTION XIV
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
M.A. No. 31 of 2019 in SLP (C) No. 7258/2018
(Arising out of impugned final judgment and order dated 28-03-2018 in
SLP(C) No. No. 7258/2018 passed by the Supreme Court Of India)
EDAPPADI K. PALANISWAMI Petitioner(s)
VERSUS
T.T.V. DHINAKARAN & ORS. Respondent(s)
(HEARD BY HON'BLE A.M. KHANWILKAR AND HON'BLE AJAY RASTOGI ,JJ. )
Date : 07-02-2019 This Misc. Application was called on for
pronouncement of order today.
CORAM :
HON'BLE MR. JUSTICE A.M. KHANWILKAR
HON'BLE MR. JUSTICE AJAY RASTOGI
For Petitioner(s)
Ms. Diksha Rai, AOR
For Respondent(s)
Mr. C.S.Vaidyanathan, Sr. Adv.
Mr. K.V. Vishwanathan, Sr. Adv.
Mr.Guru Krishna Kumar, Sr. Adv.
Mr.Balaji Srinivasan, AOR
Mr. Siddhant Kohli, Adv.
Ms. Pallavi Sengupta, Adv.
Ms. Garima Jain, Adv.
Mr. Ravi Raghunath, Adv.
Ms. Lakshmi Rao, Adv.
Ms. Vaishnavi Subrahmanyam, Adv.
Mr. Arunava Mukherjee, Adv.
Mr. Mayank Kshirsagar, Adv.
Ms. Pratiksha Mishra, Adv.
Mr. Ram Shankar, Adv.
Mr. Harish Shankar Vaidyanathan, Adv.
Mr. Babu Murugavel, Adv.
Mr. Prakash Kumar Gandhi, Adv.
Ms. Shruti Govil, Adv.
Mr. Vivek Singh, AOR
49
Mr. Amit Sharma, Adv.
Mr. Dipesh Sinha, Adv.
Ms. Ayiala Imti, Adv.
Mr. Amit Anand Tiwari, Adv.
Mr. Vivek Singh, Adv.
Ms. Niraja Senthor Pandian, Adv.
Mr. Amit Bhandari, Adv.
Mr. P. Praveen Samadhanam, Adv.
Mr. M. Srinivasan, Adv.
UPON hearing the counsel the Court made the following
O R D E R
Hon’ble Mr. Justice A.M. Khanwilkar pronounced the Order of the
Bench comprising His Lordship and Hon’ble Mr. Justice Ajay Rastogi.
This Misc. Application is disposed of in terms of the signed
reportable judgment.
(DEEPAK SINGH) (VIDYA NEGI)
COURT MASTER (SH) COURT MASTER (NSH)
[Signed reportable Order is placed on the file]
50