The main legal point established in the judgment is that the Election Commission of India does not have the power to withdraw or freeze an election symbol once allotted and/or reserved for a recognized political party, and the need for ECI to issue guidelines to prevent misuse of public funds and official position by political parties in power.

RAJIV SAHAI ENDLAW

1. The petition (a) impugns the order dated 11th October, 2010 of Election Commission of India (ECI) of dismissal as not maintainable of the application preferred by petitioner seeking freezing of the symbol Elephant as the reserved symbol of the respondent Bahujan Samaj Party (BSP), a Recognised National Party within the meaning of Clauses 6 and 6A of the Election Symbols (Reservation and Allotment) Order 1968, (Symbols Order); and, (b) seeks a mandamus to the ECI to cancel or freeze the reserved election symbol Elephant of the respondent BSP.

2. Notice of the petition was issued and a reply has been filed on behalf of the respondent BSP and to which a rejoinder has been filed by the petitioner. Vide order dated 16th July, 2012 ECI which was earlier impleaded as respondent No.1, was deleted from array of parties but its counsel requested to remain present.

3. When the matter was called on 25th February, 2016, the senior counsel for the respondent BSP stated that the order of ECI under challenge in this petition came to be passed in pursuance to an order of the Supreme Court in a petition filed by some other person and which petition is still pending before the Supreme Court and the said order of ECI has been placed before the Supreme Court for further consideration in that proceedings; he thus contended that the hearing of this petition be deferred till the decision of the Supreme Court.

4. It was however enquired from the senior counsel for the respondent BSP as to why in the last over five years for which this petition had been pending, the respondent BSP did not have this petition transferred to the Supreme Court or seek a clarification in this respect from the Supreme Court, particularly when it was informed that in the last five years the petition in the Supreme Court had been taken up on several occasions.

5. Per contra, the contention of the counsel for the petitioner was that though the impugned order of ECI, besides on the application of the petitioner is also on the applications of others but the petitioner herein is not a party in the proceedings before the Supreme Court and the relief claimed by the petitioner is also materially different from the relief claimed in the proceeding before the Supreme Court.

6. In this view of the matter, option was given to the senior counsel for the respondent BSP that this petition would be adjourned for a period of one month to enable the respondent BSP to seek directions from the Supreme Court. However the senior counsel for the respondent BSP did not press the objection taken earlier and accordingly the counsels were heard and judgment reserved.

7. It is the case of the petitioner (i) that the petitioner vide its application dated 25th June, 2009 to ECI drew attention to the recent trend, of erecting at public places and at State expense, statues of political functionaries and symbols linked to the ruling party – the statues entailing a monumental waste of public resources were built to last till the end of time; this practice has assumed gargantuan proportions in the State of Uttar Pradesh, where statues of incumbent Chief Minister and other members of the respondent BSP and its election symbol Elephant were sprouting from countless memorials, public squares and parks;

(ii) that such display has the effect of disturbing the level playing field vis-a-vis the political functionaries and candidates of other parties; reliance in this regard is placed on ECI‘s circulars No.437/6/INST/2008-CC&BE dated 28th March, 2009 and 1st April, 2009 prohibiting display in government buildings and premises of photographs and images of the political functionaries who have deep influence on the minds of electors and many of whom are still active in public life and may even be contesting the current general elections;

(iii) that besides the petitioner, Shri Ravi Kant and Shri Sukumar, Advocates and one Shri Atul Kumar Singh had also filed similar applications before ECI and