| Headnote |
Election Laws – Use of name/symbol of political party, when each faction of registered recognised State political party claimed to be real party and such a dispute is sub judice before the High Court – In the instant case, Election Commission of India (ECI) had accepted the claim of respondent Nos.4 to 6 and the SLP petitioner-EKP that the group led by respondent No.4-EM was entitled to use the name of the original registered and recognized state political party and rejected the claim of respondent No.1 and respondent No.3-VKS that the group led by VKS was the real group and was entitled to use name and symbol of the party AIADMK – Writ petition filed by respondent No.1 before the High Court to assail the decision of the ECI – The said writ petition is still pending – Meanwhile, as elections in the State of Tamil Nadu were announced, respondent No.1 and the group of which he was a member moved an interim application before the High Court in the pending writ petition for permission to use a suitable name for carrying out its political activities – High Court allowed the same by order dated 9 th March,2018 – Aggrieved by the said decision, the SLP petitioner-EKP espousing the cause of the group led by EM, filed SLP – When the SLP, along with connected cases, was taken up for hearing on 28 th 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 did not exist – In that view of the matter, the interim order passed by the High Court was kept in abeyance with the directions that the ECI shall not pronounce its order and granted liberty to the parties to approach this court in case of any notification for an election – Accordingly the SLP was disposed of – Respondent No.1 filed the instant Application asserting that the bye-election was notified by the ECI on 31 st December, 2018 and the date of polling was fixed for 28 th January, 2019 – SLP petitioner and respondent Nos.4 to 6, as well as respondent No.2, raised a preliminary objection about the maintainability of this application– Held: Respondent No.1 had no other option but to present the instant application because of the publication of the election schedule by the ECI, in light of the liberty given by this Court by order dated 28 th March, 2018 – As liberty was given to the parties even though the SLPs were ostensibly disposed of, not entertaining this application, only because the order dated 28 th March, 2018 records that SLPs are disposed of, would be completely trivializing the spirit of the liberty given to the parties by this Court in the peculiar fact situation – Respondent No.1 cannot be directed 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 High Court on 9 th March, 2018 in favour of the group represented by the applicant – The directions given by the Single Judge in the said order had not been independently challenged by the ECI by filing SLP before this Court – Besides, it may not be appropriate for the Division Bench to re-visit the matters in issue dealt with in the judgment and interim order passed by the Single Judge dated 9 th March, 2018, which was kept in abeyance by this Court – No merit in the preliminary objection raised by the SLP petitioner, respondent Nos.4 to 6 and respondent No.2.Election Laws – 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 ECI and that claim was still pending consideration before the High Court ought to be compelled to first register itself as apolitical 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 – Held: During the pendency of the writ petition, as elections in 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 in the pending writ petition – High Court deemed it appropriate to issue directions to allot common symbol to the faction represented by respondent no.1 in different constituencies where they would nominate candidates to contest in ensuing elections– High Court was conscious of the fact that ordinarily common symbol can be allotted only to registered recognized political party and if the ECI could do so in exercise of its plenary powers when the dispute is 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 and that would ensure a level playing field in the political sphere for the concerned factions – High Court was right in holding 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 – Representation of the People Act, 1951 – s.29A –Constitution of India – Art.226.Election Laws – Powers of Election Commission (ECI) – ECIhas 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 ECI – Symbols Order,1968.Election Laws – Allocation of common symbols to two faction when the dispute under the Symbol Order is still pending before the Election Commission (ECI) – Interim directions regarding allocation by the ECI – Permissibility – Held: 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 issub judice in the proceedings 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.Election Laws – Whether there was any impediment for the writ court (High Court) to pass appropriate interim direction while the validity of the decision of the Election Commission (ECI) is sub judice before it – Held: High Court was right in holding 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 any other person or party nor impinge upon the powers of the ECI– Symbols Order, 1968.Representation of the People Act, 1951 – s.29A – Allotment of a common symbol – If the political group is not registered under s.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 – 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 un recognized 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 ECI in relation to splinter groups or rivalf actions of the political party – But once that dispute is answered by the ECI and that decision attains finality, the splinter group will have no other option but to register itself as a political party and only after fulfilment 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 – In the instant case, the decision of the ECI 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, is subject to the outcome thereof – Until such time, there is no just reason as to why the interim arrangement such as ordered by theECI in terms of the interim order dated 22 nd March, 2017, as applicable to the group represented by respondent No.1, ought not to continue – The direction issued in terms of order dated 28 th March,2018, to keep the interim order of the High Court dated 9 th March,2018, in abeyance and consequently to restrain the ECI from pronouncing its order on the application preferred by the political group represented by respondent No.1 needs to be vacated –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, it is deemed 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 ECI shall process the application of the group represented by respondent No.1 in terms of the directions given by the High Court by interim order dated 9 th March, 2018 and issue appropriate directions within two weeks therefrom (i.e. four weeks plus two weeks, from today) – (b) In the event, before the expiry of the stated period, the ECI intends to issue any Press Note or Notification for announcing the bye-elections 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 dated 9 th 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 – Symbols Order, 1968. |
