TMI Blog2023 (9) TMI 1407X X X X Extracts X X X X X X X X Extracts X X X X ..... ory of Ladakh), it was a recognized State Party having been allotted the Plough symbol. Upon bifurcation of the erstwhile State of Jammu and Kashmir and the creation of two new Union Territories, namely the Union Territory of Jammu and Kashmir and the Union Territory of Ladakh, though the ECI had not notified R1 as a State Party for the Union Territory of Ladakh, it cannot be simpliciter that R1 was not entitled for the allotment of plough symbol to it, in the factual background. What is also clear is that the Appellants are attempting to approbate and reprobate, which this Court will not countenance. In the present case, there is no conflict with any other stakeholder for the reason that the Plough symbol is neither a symbol exclusively allotted to any National or State Party nor one of the symbols shown in the list of free symbols. Thus, there was and is no impediment in such symbol being granted to R1. This is also fortified in the factual setting of the Plough symbol being the reserved symbol for R1 in the erstwhile State of Jammu and Kashmir and even for the Union Territory of Jammu and Kashmir, as it now exists, where the same symbol stands allotted to it. The entire el ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the respondents 1 to 3 5, for notifying the reserved symbol (plough) already allotted to it and respondents 1 to 3 5 shall notify the symbol allotted to petitioner-party in terms of Paragraphs 10 and 10(A) of Election Symbols (Reservation and Allotment) Order, 1968, and allow the candidates set up by the petitioner-party to contest on the reserved election symbol (plough) already allotted to the party. 5. Aggrieved, the Appellants moved the learned Division Bench of the High Court by preferring an appeal, which after hearing was dismissed vide Impugned Judgment on 14.08.2023. SUBMISSION BY THE APPELLANTS: 6. Mr. K. M. Nataraj, learned Additional Solicitor General (hereinafter referred to as the ASG ) for the Appellants submitted that the learned Single Judge and the learned Division Bench of the High Court have issued directions contrary to law. It was submitted that both orders have been passed on an erroneous assumption that the provisions of Election Symbols (Reservation and Allotment) Order, 1968 (hereinafter referred to as the 1968 Order ), would be applicable in elections to the LAHDC. Learned ASG canvassed that this is not the correct legal positio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9.2023 is quoted for ready reference : Application for impleadment is rejected. Heard learned counsel for the parties. Judgment reserved. List the matter for pronouncement on 06.09.2023 the process of elections had already been set in motion. Learned ASG pointed out that filing of the nomination forms had begun from 16.08.2023 and reached the penultimate stage since the last date of withdrawal of nominations (26.08.2023) had already elapsed. It was stated that now only polling remained to be held on 10.09.2023 and in this view of the matter, this Court may set aside the Impugned Order. SUBMISSIONS BY RESPONDENT NO.1: 11. Learned counsel for R1 submitted that the orders of the learned Single Judge dated 09.08.2023 and the learned Division Bench dated 14.08.2023 are selfspeaking and have dealt in detail with the contentions of the Appellants and the same have been negated on cogent legal and factual grounds. It was submitted that there should not have been, in the first place, any issue with the Appellants in granting the Plough symbol for the reason that R1 is the incumbent ruling party in the LAHDC, and was entitled to the Plough symbol, sinc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts were required to be guided by the 1968 Order in toto, which was also the indication in the letter written by the ECI to R1 and the same view was taken by the Law Department in its Legal Opinion to the Appellants. ANALYSIS, REASONING AND CONCLUSION: 14. The relevant Paragraphs of the 1968 Order, attention to which was drawn by the learned ASG and the learned counsel for R1, are set out below: 9. Restriction on the allotment of Symbols reserved for State parties in States where such parties are not recognised. A symbol reserved for a State party in any State (a) shall not be included in the list of free symbols for any other State or Union territory, and (b) shall not be reserved for any other party which subsequently becomes eligible, on fulfilment of the conditions specified in paragraph 6, for recognition as a State party in any other State: Provided that nothing contained in clause (b) shall apply in relation to a political party, for which the Commission has, immediately before the commencement of the Election Symbols (Reservation and Allotment) (Amendment) Order, 1997, already reserved the same symbol which it has also reserved for some ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State party, notwithstanding that such symbol is not specified in the list of free symbols for such State or Union territory, on the fulfillment of each of the following conditions, namely: (a) that an application is made to the Commission by the said party for the exclusive allotment of that symbol to the candidate set up by it, not later than the third day after the publication in the Official Gazette of the notification calling the election; (b) that the said candidate has made a declaration in his nomination paper that he has been set up by that party at the election and that the party has also fulfilled the requirements of clauses (b), (c), (d) and (e) of paragraph 13 read with paragraph 13A in respect of such candidate; and (c) that in the opinion of the Commission there is no reasonable ground for refusing the application for such allotment: Provided that nothing contained in this paragraph shall apply to a candidate set up by the said party at an election in any constituency in a State or Union territory where the same symbol is already reserved for some other National or State party in that State or Union Territory. xxx 12. Choice of symbo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ol 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; and (c) if, of those several candidates, being all independent candidates, no one is, or was, a sitting member as aforesaid, the returning officer shall decide by lot to which of those independent candidates that free symbol shall be allotted, and allot that free symbol to the candidates on whom the lot falls, and to no one else. 15. Sections 12 and 13 of the Ladakh Autonomous Hill Development Councils Act, 1997 This repealed The Ladakh Autonomous Hill Development Councils Act, 1995 (President s Act No.1 of 1995). (hereinafter referred to as the 1997 Act ) read as under: 12. Disputes regarding elections. (1) No election shall be called in question except by an election petition presented in such manner as may be prescribed and before such authority as may be appointed by Government, from time to time, by notification in the Government Gazette: Provided that no person below the rank of a District Judge shall be appointed for the purpose of this section. (2) No election shall be called in question exce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provided in the Code of Civil Procedure, Samvat 1977 in regard to suits shall be followed by the authority appointed under section 12 as far as it can be made applicable in the trial and disposal of an election petition under this Act. 16. It requires no reiteration that the powers of this Court and the High Courts vested under the Constitution cannot be abridged, excluded or taken away, being part of the Basic Structure of our Constitution. Reference need only be made to decisions in His Holiness Kesavananda Bharati Sripadagalvaru v State of Kerala, (1973) 4 SCC 225; Indira Nehru Gandhi v Raj Narain, 1975 Supp SCC 1; Minerva Mills Ltd. v Union of India, (1980) 3 SCC 625; L Chandra Kumar v Union of India, (1997) 3 SCC 261 and more recently, to Kalpana Mehta v Union of India, (2018) 7 SCC 1 and Rojer Mathew v South Indian Bank Limited, (2020) 6 SCC 1, all of which were rendered by a Bench of 5 or more learned Judges. Section 12 of the 1997 Act need not detain us. Insofar as Section 13 of the 1997 Act is concerned, it is by now too well-settled that the availability of alternative efficacious remedy is no bar to the exercise of high prerogative writ jurisdiction, in the lig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it is only right that the superior courts in India should be conscious of the enormous responsibility which rest on them. This is specially true of the Supreme Court, for as the highest Court in the entire judicial system the law declared by it is, by Article 141 of the Constitution, binding on all courts within the territory of India. And again: (SCC p. 767, para 11) 11. Legal compulsions cannot be limited by existing legal propositions, because there will always be, beyond the frontiers of the existing law, new areas inviting judicial scrutiny and judicial choice-making which could well affect the validity of existing legal dogma. The search for solutions responsive to a changed social era involves a search not only among competing propositions of law, or competing versions of a legal proposition, or the modalities of an indeterminacy such as fairness or reasonableness , but also among propositions from outside the ruling law, corresponding to the empirical knowledge or accepted values of present time and place, relevant to the dispensing of justice within the new parameters . The aforesaid two passages lay immense responsibility on the Court pertainin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder our constitutional scheme, Parliament and Legislative Assemblies exercise sovereign power to enact law and no outside power or authority can issue a direction to enact a particular kind of legislation. While so holding, the Court referred to the decision in Supreme Court Employees' Welfare Assn. v. Union of India [Supreme Court Employees' Welfare Assn. v. Union of India, (1989) 4 SCC 187 : 1989 SCC (L S) 569] wherein it was held that no court can direct a legislature to enact a particular law and similarly when an executive authority exercises a legislative power by way of a subordinate legislation pursuant to the delegated authority of a legislature, such executive authority cannot be asked to enact a law which it has been empowered to do under the delegated authority. 44.Recently, in Census Commr. v. R. Krishnamurthy [Census Commr. v. R. Krishnamurthy, (2015) 2 SCC 796 : (2015) 1 SCC (L S) 589] , the Court, after referring to Premium Granites v. State of T.N. [Premium Granites v. State of T.N., (1994) 2 SCC 691] , M.P. Oil Extraction v. State of M.P. [M.P. Oil Extraction v. State of M.P., (1997) 7 SCC 592] , State of M.P. v. Narmada Bachao Andolan [State of M.P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and vigour so that the fundamental rights do not suffer. When we say so, it may not be understood that while interpreting fundamental rights, the constitutional courts should altogether depart from the doctrine of precedents but it is the obligation of the constitutional courts to act as sentinel on the qui vive to ardently guard the fundamental rights of individuals bestowed upon by the Constitution. The duty of this Court, in this context, has been aptly described in K.S. Srinivasan v. Union of India [K.S. Srinivasan v. Union of India, AIR 1958 SC 419] wherein it was stated : (AIR p. 433, para 50) 50. All I can see is a man who has been wronged and I can see a plain way out. I would take it . 47. Such an approach applies with more zeal in case of Article 32 of the Constitution which has been described by Dr B.R. Ambedkar as the very soul of the Constitution the very heart of it the most important Article . Article 32 enjoys special status and, therefore, it is incumbent upon this Court, in matters under Article 32, to adopt a progressive attitude. This would be in consonance with the duty of this Court under the Constitution, that is, to secure the inalien ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Tripura (supra), in Aish Mohammad v State of Haryana, 2023 SCC OnLine SC 736, we held: 24. Moreover, the learned Civil Judge (Junior Division) found no ground to interfere with the adverse remarks yet granted liberty to the appellant to move for expunction thereof. The learned Civil Court erred in assuming that it had the power to do so, in the absence of any such provision in the Punjab Police Rules, 1934. There may be cases where a High Court under Articles 226 or 227 of the Constitution of India or this Court in exercise of its constitutional powers may specifically direct for fresh consideration of a representation, even in the absence of specific provisions. In High Court of Tripura v. Tirtha Sarathi Mukherjee, (2019) 16 SCC 663, the question that arose was whether, in the absence of a statutory provision, a writ petitioner could seek reevaluation of examination answer scripts? Answering, this Court held: 20. The question however arises whether even if there is no legal right to demand re-valuation as of right could there arise circumstances which leave the Court in any doubt at all. A grave injustice may be occasioned to a writ applicant in certain circums ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the State Election Commission concerned. The ECI stated that as there is no Legislative Assembly in the Union Territory of Ladakh and the 1968 Order does not provide for recognition to parties in a Union Territory without a Legislative Assembly, R1 could not be recognised in the Union Territory of Ladakh. However, it was further noted that as R1 is a recognized State Party in the Union Territory of Jammu and Kashmir with its reserved symbol being the Plough, it could avail concession under Paragraph 10 Already extracted supra of the 1968 Order. 24. On 15.05.2023, the ECI updated its Notification dated 23.09.2021 specifying the names of recognised National and State Parties and the list of free symbols where R1 was again recognised as a State Party, though for the Union Territory of Jammu and Kashmir only. On 31.05.2023, R1 made a representation to the Appellant No.2 seeking recognition as a State Party and for the allotment of the Plough symbol to it for all elections in the Union Territory of Ladakh. Appellant No.2 forwarded the said representation to Appellant No.3 for comments. On 07.06.2023, Appellant No.3 advised Appellant No.2 to approach the ECI. On 08.06.2023, R1 sought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R1 as a State Party for the Union Territory of Ladakh, it cannot be simpliciter that R1 was not entitled for the allotment of plough symbol to it, in the factual background. What is also clear is that the Appellants are attempting to approbate and reprobate, which this Court will not countenance. 29. In the present case, there is no conflict with any other stakeholder for the reason that the Plough symbol is neither a symbol exclusively allotted to any National or State Party nor one of the symbols shown in the list of free symbols. Thus, there was and is no impediment in such symbol being granted to R1. This is also fortified in the factual setting of the Plough symbol being the reserved symbol for R1 in the erstwhile State of Jammu and Kashmir and even for the Union Territory of Jammu and Kashmir, as it now exists, where the same symbol stands allotted to it. 30. The contention of the learned ASG for the Appellants that the Plough symbol cannot be allotted, neither has been supported by any reason nor any legal impediment to such grant has been shown. In the absence of anything contrary in any rule framed for conduct of the elections in question, relating to allotment of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed law. In Harbhajan Singh v State of Punjab, (2009) 13 SCC 608, a 2-Judge Bench said: 15. Even if what is contended by the learned counsel is correct, it is not for us to go into the said question at this stage; herein cross-examination of the witnesses had taken place. The Court had taken into consideration the materials available to it for the purpose of arriving at a satisfaction that a case for exercise of jurisdiction under Section 319 of the Code was made out. Only because the correctness of a portion of the judgment in Mohd. Shafi [(2007) 14 SCC 544 : (2009) 1 SCC (Cri) 889 : (2007) 4 SCR 1023 : (2007) 5 Scale 611] has been doubted by another Bench, the same would not mean that we should wait for the decision of the larger Bench, particularly when the same instead of assisting the appellants runs counter to their contention . (emphasis supplied) 33. In Ashok Sadarangani v Union of India, (2012) 11 SCC 321 , another 2-Judge Bench indicated: 29. As was indicated in Harbhajan Singh case [Harbhajan Singh v. State of Punjab, (2009) 13 SCC 608: (2010) 1 SCC (Cri) 1135], the pendency of a reference to a larger Bench, does not mean that all other proceedings i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utcome of a reference or a review petition, as the case may be. It is also not open to a High Court to refuse to follow a judgment by stating that it has been doubted by a later Coordinate Bench. In any case, when faced with conflicting judgments by Benches of equal strength of this Court, it is the earlier one which is to be followed by the High Courts, as held by a 5-Judge Bench in National Insurance Company Limited v Pranay Sethi, (2017) 16 SCC 680 See Paragraphs 27 and 28 in the report on this point. The High Courts, of course, will do so with careful regard to the facts and circumstances of the case before it. 36. We are conscious that, by way of certain pronouncements, some of which are alluded to in this judgment, the Court extended principles relating to elections to Parliament, State Assemblies and Municipalities to other arenas as well. Indicatively, the interpretation of judgments is always to be made with due regard to the facts and circumstances of the peculiar case concerned Sanjay Dubey v State of Madhya Pradesh, 2023 INSC 519 @ Paragraph 18. We have looked at Articles 243-O, 243ZG and 329 of the Constitution, and conclude that no bar hit the High Court, even on p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otification is issued and the election process starts, the Constitutional Courts, under normal circumstances are loath to interfere, is not a contentious issue. But where issues crop up, indicating unjust executive action or an attempt to disturb a level-playing field between candidates and/or political parties with no justifiable or intelligible basis, the Constitutional Courts are required, nay they are duty-bound, to step in. The reason that the Courts have usually maintained a hands-off approach is with the sole salutary objective of ensuring that the elections, which are a manifestation of the will of the people, are taken to their logical conclusion, without delay or dilution thereof. In the context of providing appropriate succour to the aggrieved litigant at the appropriate time B S Hari Commandant v Union of India, 2023 SCC OnLine SC 413 @ Paragraph 50, the learned Single Judge acted rightly. In all fairness, we must note that the learned ASG, during the course of arguments, did not contest the power per se of the High Court to issue the directions it did, except that the same amounted to denying the Appellants their discretion. As stated hereinbefore, we are satisfied tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... representing R1 had filed his/her nomination form, by the last date notified, is inapposite, inasmuch as in the position existing, no candidate/representative affiliated with R1 could have filled up the form as the Plough symbol was neither a reserved symbol nor a free symbol, and thus, could not have been opted for by any candidate when filing the nomination form. The serious consequence was that R1 s identity as a political party was eclipsed, right before the election to the LAHDC, where it was the incumbent party in power. 42. This Court has previously bestowed consideration on the importance of the symbol in an electoral system, especially one allotted to a political party. Taking note of the 3-Judge Bench decision in Shri Sadiq Ali v Election Commission of India, New Delhi, (1972) 4 SCC 664, another Bench of 3 learned Judges in All Party Hill Leaders Conference, Shillong v Captain W A Sangma, (1977) 4 SCC 161 put it thus: 29. For the purpose of holding elections, allotment of symbol will find a prime place in a country where illiteracy is still very high. It has been found from experience that symbol as a device for casting votes in favour of a candidate of one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbols. 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 political party is made by two rival claimants. Para 15 is intended to effectuate and subserve the main 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 . The Commission is an authority created by the Constitution and according to Article 324, the superintendence, direction and control of the electoral rolls for and the conduct of elections to Parliament and to the Legislature of every State and of elections to the office of President and Vice-President shall be vested in the Commission. The fact that the power of resolving a dispute between two rival groups for allotment of symbol of a political party ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) (emphasis supplied by us via bolding) 44. For reasons aforesaid, the entire election process, initiated pursuant to Notification dated 02.08.2023 issued by the Administration of Union Territory of Ladakh, Election Department, UT Secretariat, Ladakh, under S.O.53 published vide No.Secy/Election/2023/290-301 dated 05.08.2023 stands set aside. A fresh Notification shall be issued within seven days from today for elections to constitute the 5 th Ladakh Autonomous Hill Development Council, Kargil. R1 is declared entitled to the exclusive allotment of the Plough symbol for candidates proposed to be put up by it. 45. Accordingly, this appeal stands dismissed with costs of Rs.1,00,000/- (Rupees One Lakh) to be deposited in the Supreme Court Advocates on Record Welfare Fund. The same be done within two ..... X X X X Extracts X X X X X X X X Extracts X X X X
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