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Issue for consideration: High Court whether justifi ed in dismissing theappeal fi led by appellants and upholding the interim order of Single Judgedirecting them to notify the symbol allotted to Respondent no.1 (R1) andallow the candidates set up by it to contest in the then-upcoming GeneralElections of the Ladakh Autonomous Hill Development Council, Kargil onthe reserved election symbol (plough) already allotted to it.Election Symbols (Reservation and Allotment) Order, 1968 –Paragraphs 9, 10, 10(A), 12 – Denial of the Plough symbol to respondentno.1 – Impropriety:Held: R1 was before the concerned authorities, well in time, byimpugning the Notifi cation dtd. 26.07.2023 which denied it the Ploughsymbol – Appellants sitting on the representation of R1, went ahead andnotifi ed the elections on 02/05.08.2023 – R1’s request for allotment of thePlough symbol was bonafi de, legitimate and just, because in the erstwhileState of Jammu and Kashmir (which included the present Union Territoryof Ladakh), it was a recognized State Party having been allotted the Ploughsymbol – Upon bifurcation of the erstwhile State of J&K and the creationof two new Union Territories, the Union Territory of J&K and the UnionTerritory of Ladakh, though the ECI had not notifi ed R1 as a State Partyfor the Union Territory of Ladakh, it cannot be simpliciter that R1 was notentitled for the allotment of plough symbol – Also, there was no confl ictwith any other stakeholder as the Plough symbol was neither a symbolexclusively allotted to any National or State Party nor one of the symbolsshown in the list of free symbols – Thus, there was and is no impediment in such symbol being granted to R1 – In the absence of anything contrary in anyrule framed for conduct of the elections in question, relating to allotment ofsymbols, the provisions of the 1968 Order can be relied upon as a guidelineto exercise of executive power of like nature – On a harmonious readingof Paragraphs 9, 10, 10(A) and 12, under the terms of the 1968 Order, therequest of R1 is not bereft of justifi cation – In view of the 1968 Order, theappellants’ discretion was not unbridled, rather, it was guided by the 1968Order – R1 is entitled to the exclusive allotment of the Plough symbol forcandidates proposed to be put up by it – Orders of the High Court were inaid of the electoral process, no fault therewith – Entire election process setaside – Fresh Notifi cation be issued – Appeal dismissed with costs – LadakhAutonomous Hill Development Councils Act, 1997 – ss.12, 13 – Constitutionof India – Article 226 – Election Laws. [Paras 21, 23, 27-30, 37, 40 and 44]Constitution of India – Powers of Supreme Court and High Courts,part of Basic Structure:Held: Powers of Supreme Court and the High Courts vested underthe Constitution cannot be abridged, excluded or taken away, being part ofthe Basic Structure of the Constitution. [Para 16]Alternative remedy – No bar for exercise of writ jurisdiction –Ladakh Autonomous Hill Devel-opment Councils Act, 1997 – s.13:Held: The availability of alternative effi cacious remedy is no bar tothe exercise of high prerogative writ jurisdiction – s.13, 1997 Act does not,and cannot, impede a Constitutional Court from proceeding further – HighCourt was not precluded from issuing a direction of the nature issued byit, more so when such direction does not violate any statutory provision –Constitution of India – Election Laws. [Para 16]Practice and Procedure – Inter-departmental communications –Reliance upon:Held: Inter-departmental communications are in the process ofconsideration for appropriate decision and cannot be relied upon as a basisto claim any right – In the present case, it was rightly contended that theLegal Opinion by the Law Department remains internal advice, and advicealone, and the same would not create/confer any right in favour of R1 –Elections – Administrative Law. [Para 17] Constitution of India – Article 226 – Power to direct for actions,in rare and exceptional situation, not mentioned in the provisionsconcerned – Discussed.Elections – Election authority, to be independent of anyextraneous infl uence:Held: Elections to any offi ce/body are required to be free, fair andtransparent – Elections lie at the core of democracy – The authorityentrusted by law to conduct such elections is to be completely independentof any extraneous infl uence/consideration – In the presentcase, the Union Territory of Ladakh not only denied R1 the Ploughsymbol, but even upon timely intervention by the Single Judge, left nostone unturned not only to resist but also frustrate a cause simply byeffl ux of time. [Para 22]Elections – Power of Supreme court to bring back status quoante:Held: Plea of the Appellants that no relief be granted to R1 dueto the election process having reached the penultimate stage, rejected– Having chosen to not comply with successive orders of the HighCourt which were passed well in time, such as not to stall/delay thenotifi ed election schedule, the Appellants cannot be permitted to pleadthat interference by Supreme Court at this late juncture should notbe forthcoming – No litigant should have even an iota of doubt ormisimpression that just because of systemic delay or the matter notbeing taken up by the Courts resulting in effl ux of time the cause wouldbe defeated, and the Court would be rendered helpless to ensure justiceto the party concerned – This Court can even turn the clock back, if thesituation warrants such dire measures – Powers of this Court, if needbe, to even restore status quo ante are not in the realm of any doubt, asheld in Nabam Rebia and Bamang Felix v. Deputy Speaker, AurnachalPradesh Legislative Assembly reported as [2016] 6 SCR 1 – Though,Nabam Rebia has been referred to a Larger Bench in Subhash Desai v.Principal Secretary, Governor of Maharashtra however, the questionsreferred to the Larger Bench do not detract from the aforesaid power andfurthermore, mere reference to a larger Bench does not unsettle declared law – Constitution of India – Practice and Procedure – Reference to largerBench does not unsettle declared law. [Paras 31 and 32]Practice and Procedure – High Courts not deciding cases onthe ground that the leading judgment of Supreme Court on subjectconcerned is either referred to a larger Bench or a review petitionrelating thereto is pending – High Courts refusing deference tojudgments as a later Coordinate Bench has doubted its correctness– Law laid down:Held: High Courts will proceed to decide matters on the basis of thelaw as it stands – It is not open, unless specifi cally directed by SupremeCourt, to await an outcome of a reference or a review petition, as the casemay be – It is also not open to a High Court to refuse to follow a judgmentby stating that it has been doubted by a later Coordinate Bench – Further,in any case, when faced with confl icting judgments by Benches of equalstrength of Supreme Court, it is the earlier one which is to be followed bythe High Courts – Judicial Discipline. [Para 35]Judgments/Orders – Interpretation of:Held: By way of certain pronouncements, principles relating toelections to Parliament, State Assemblies and Municipalities have beenextended to other arenas as well – However, interpretation of judgmentsis always to be made with due regard to the facts and circumstances of thepeculiar case concerned – In the present case, having looked at Articles243-O, 243ZG and 329 it is concluded that no bar hit the High Court, evenon principle – Elections – Constitution of India – Articles 243-O, 243ZGand 329. [Para 36]Elections – Election process started – Interference byConstitutional Courts:Held: The self-imposed restraint by the Courts as a generalprinciple in election matters, to the extent that once a notificationis issued and the election process starts, the Constitutional Courts,under normal circumstances are loath to interfere, is not a contentiousissue – But where issues crop up, indicating unjust executive actionor an attempt to disturb a level-playing field between candidatesand/or political parties with no justifiable or intelligible basis, the Constitutional Courts are required, nay they are duty-bound, to stepin – Constitution of India. [Para 37]Elections – Authorities concerned using their powers relatingto elections arbitrarily – Misconceived notion that eventually, afterelections are over and when such decisions/actions are challenged, bysheer passage of time, irreversible consequences would have occurred,and no substantive relief could be fashioned – Taken note of:Held: Such conduct by authorities may seriously compel the Court tohave a comprehensive re-think, as to whether the self-imposed restrictionsmay need a more liberal interpretation, to ensure that justice is not only donebut also seen to be done, and done in time to nip in the bud any attemptedmisadventure. [Para 39]Elections – Importance of symbol in an electoral system, especiallyone allotted to a political party – Discussed. |
