IMPORTANT POINT
The court established that the Election Symbols Order is integral to the electoral process and violations must be addressed through election petitions, not writs.

JUDGMENT :

G. Narendar, J.

Heard the learned counsel for the appellants, learned counsel for Election Commission of India and the other counsel for the private respondents.

2. The genesis of the dispute can be traced to an order of the Election Commission of India whereby a direction granted by this Court to consider the representation by one of the parties to the proceedings has been acted upon and pursuant to which the Election Commission of India proceeded to freeze the symbol allotted to one of the appellants.

3. The case of the appellants is that the symbol was allotted to them by the returning officer and thereafter, on representation by the rival political party, the Election Commission of India has taken up the action that was impugned before the learned Single Judge. The learned Single Judge has not been inclined to entertain the writ petition on the ground that the same is not maintainable in view of the specific bar under Article 329(b) of the Constitution of India. In the meanwhile, as postal ballots had already been taken up for counting, this Bench deemed it fit not to interfere with the process and thereafter, the election process was concluded. The matter was heard by this Bench on multiple dates and on 05.08.2024, this Court passed the following order :

“Heard the learned counsels for the appellants and the learned Senior Counsel representing the Election Commission of India.

The learned Senior Counsel appearing for the Election Commission of India would submit that the complaint against the exercise of power by the E.C.I., under the Election Symbols Order, 1968, would constitute an issue that can be dealt with, by the Election Tribunal, in exercise of the jurisdiction vested in it under Section 100(1)(d)(iv) of the Act and that the same has been interpreted by the Hon’ble Apex Court in the case of Roop Lal Sathi Vs. Nachhattar Singh Gill, (1982) 3 SCC 487 and take the Court to paragraph Nos.17 and 19 wherein the Hon’ble Apex Court has observed as under :

“17. In our judgment, the High Court was clearly in error in holding that the Symbols Order was not an order made under the Act and therefore, the change of allotment of symbols by the Returning Officer in compliance with the directions issued by the Election Commission, even if it was in breach of paragraph 13 thereof, did not amount to non-compliance with the provisions of the Constitution, or the Act, or any rules or orders made under the Act and therefore the matter fell outside the ambit of Section 100 (1) (d) (iv) of the Act. It is however urged by learned counsel for the respondent that the Symbols Order was not an order made under the Act. Emphasis is laid on the words ‘under the Act’ occurring in Section 100(1)(d)(iv) of the Act. We are afraid; the argument is too tenuous to be accepted. The Symbols Order was issued by the Election Commission under Article 324 of the Constitution in exercise of its undoubted powers of superintendence, direction and control of the conduct of all elections to Parliament and legislature of every State. It is also relatable to Rules 5 and 10 of the Conduct of Elections Rules framed by the Central Government in exercise of their powers under Section 169 of the Act. Rule 4 of the Conduct of Elections Rules provides that every nomination paper presented under Section 33 of the Act shall be in Forms 2-A to 2-E, as may be appropriate. Forms 2-A and 2-B require the candidate to choose symbol. Under Rule 5 (1) the Election Commission by notification may specify the symbols that may be chosen by candidates at elections to Parliamentary and Assembly constituencies. Under Rule 10 (4) the Returning Officer shall consider the choice of symbols expressed by contesting candidates and “subject to any general or special direction issued by the Election Commission” allot different symbols to different candidates. The allotment of symbols by the Returning Officer is final under sub-rule (5) of Rule 10 except where it is inconsistent with any dir