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2017 Supreme(Del) 1083
IN THE HIGH COURT OF DELHI AT NEW DELHI
SANJIV KHANNA & CHANDER SHEKHAR, JJ.
SWARAJ INDIA – Appellant
Versus
STATE ELECTION COMMISSION AND ANR. – Respondents
C.M No. 12977 of 2017 IN LPA 221 of 2017
Decided On : 03-04-2017
For the Appellant :Mr. Shanti Bhushan, Sr. Advocate with Mr. Prashant Bhushan, Mr. Shakti Vardhan and Mr. Kartik Seth, Advocates
For the Respondents:Mr. Sumeet Pushkarna, Standing Counsel and Siddhartha Nagpal, Advocate with Mr. Girish Pandey, Deputy Secretary Mr. Sanjoy Ghose, ASC with Mr. Rhishabh Jetley, Advocate
Headnote:
Election Symbol - Political Party Registration - Delhi Municipal Corporation Act, 1957, Article 243 and 243ZA of the Constitution - Rule 15 of the Election of Councillors Rules - The court discussed the provisions of the Delhi Municipal Corporation Act, 1957, Article 243 and 243ZA of the Constitution, and Rule 15 of the Election of Councillors Rules in the context of the appellant's request for a common election symbol for their candidates in the municipal elections in Delhi. The court considered the power of the State Election Commission and the legal effect of Rule 15, and highlighted the difference between municipal elections and national/state assembly elections conducted by the Election Commission of India.
Fact of the Case:
Swaraj India, a political party, applied for registration and requested a common election symbol for their candidates in the Delhi municipal elections. Their request was rejected, leading to a writ petition and subsequent appeal.
Finding of the Court:
The court declined to issue an interim order for the appellant to be allotted a common election symbol, citing the practical and functional problems that would hinder the conduct of free and fair elections in a smooth manner.
Issues: The primary issue was the appellant's request for a common election symbol for their candidates in the Delhi municipal elections, and the court's consideration of the legal provisions and practical implications.
Ratio Decidendi: The court's decision was based on the balance of convenience, the practical and functional problems that would arise from granting the appellant's request, and the difference between municipal elections and national/state assembly elections.
Final Decision: The court dismissed the application for an interim order to award a common election symbol to the appellant in the ensuing municipal elections, clarifying that the view expressed was tentative and would not affect the final outcome of the appeal.
SANJIV KHANNA, J.
C.M. No.12977/2017
1. The appellant, Swaraj India, who is the applicant, was formed as a political party on 2nd October, 2016 and had applied to the Election Commission of India (ECI) for registration on 14th October, 2016. The appellant was granted status of a registered unrecognized political party by the ECI on 27th February, 2017.
2. Even before grant of registration, the appellant on 14th February, 2017 had made a representation to the State Election Commission, National Capital Territory of Delhi (SEC) for allotment of a common election symbol for they proposed to nominate candidates and contest the 272 seats in the forthcoming municipal elections in Delhi. This representation was rejected by the SEC vide order dated 21st February, 2017. After registration, the appellant on 28th February, 2017 had submitted a review application which was declined by the SEC vide order dated 17th March, 2017.
3. The order dated 21st Feb., 2017 relies upon Paragraphs 3 and 4 of the "Symbols Order" dated 5th April, 2016 issued by SEC read with Rule 15 of the Delhi Municipal Corporation (Election of Councillors) Rules, 2012 (Election of Councillors Rules, for short) and Articles 243 and 243ZA of the Constitution to hold that SEC recognizes and allots a common symbol to candidates of only National and State parties recognized by the ECI and not registered unrecognized parties. The second order dated 7th March, 2017 records that ECI allots a common symbol to candidates of ' registered but not recognized parties' as a first step for recognition of such parties in State or States where they return the prescribed quantum of votes and elected candidates to the House and if such parties fulfill the requirements prescribed by the ECI. SEC was not concerned with such procedure for it does not register or recognize a political party for elections to the Municipal Corporations nor allots a symbol to a party which is registered but unrecognized with the ECI. The 'procedure' was/is prescribed by Rule 15 of the Election of Councillor Rules and the SEC cannot act over and above the existing law by relying upon 'precedents' in other States. The power to amend and modify the Election of Councillor Rules vests with the Lt. Governor.
4. The appellant thereafter filed the Writ Petition (C) No. 2409/2017 on 10th March, 2017, which was listed for admission before the single Judge on 15th March, 2017. The primary challenge was to paragraph 4 (d) of the Municipal Corporation of Delhi Election Symbols (Reservation and Allotment) Order, 2017, (Reservation and Allotment Order, for short) published on 14th March, 2017. Reservation and Allotment Order had substituted the "symbol order" dated 5th April, 2016. The appellant had also challenged the orders dated 21st February, 2017 and 7th March, 2017, rejecting the appellant’s request for grant of common election symbol for their candidates.
5. By the impugned judgment dated 29th March, 2017, the writ petition has been dismissed. LPA no. 221/2017 has been filed challenging the impugned judgment and for allowing the prayers made in the WP(C) No. 2409/2017.
6. In order to ensure that hearing is granted and no injustice is done, we had listed the matter for hearing at 2.15 p.m. on 1st April, 2017, which was not the Court working day being a Saturday.
7. A number of issues and contentions on merits have been raised, which we accept require examination and consideration. We are not deciding the Letters Patent Appeal impugning the judgment of the Single Judge dated 29th March, 2017 disposing of W.P. (C) No. 2409/2017, as issues raised mandate and require elaborate hearing and elucidation before an authoritative pronouncement is made. This was clarified at the time of hearing and that the application for stay will be decided at this stage.
8. The appellant has made the following prayers in the application
