IMPORTANT POINT
The main legal point established in the judgment is that the petitioner must satisfy the requirements under the Election Symbols (Reservation and Allotment) Order, 1968 to be entitled to a particular symbol, and the absence of a notification suggesting a symbol to be a free symbol can lead to the rejection of an application for that symbol.

JUDGMENT :

(Prayer: Petition filed under Article 226 of the Constitution of India seeking issuance of a writ of mandamus directing the respondents to upload the authorised office bearers of the petitioner in the website of the respondents and allot the “Top” symbol to Marumalarchi Dravida Munnetra Kazhagam in the State of Tamil Nadu for the ensuing General Election for the House of People, 2024 and Tamil Nadu State Legislative Assembly, 2026 based on the application dated 12.03.2024 submitted by the petitioner under para 10-B of the Election Symbols (Reservation and Allotment) Order, 1968.)

1. We have heard Mr.Ajmal Khan, learned Senior Counsel for Mr.R.Murali, learned counsel for the petitioner; and, Mr.Niranjan Rajagopalan, learned counsel for the respondents.

2. Initially, the writ petition is filed seeking direction to consider the application of the petitioner for grant of “Top” symbol.

3. We had heard the matter yesterday for some time. Yesterday, during the course of hearing, learned Senior Counsel for the appellant submitted that they would make an application/representation and the respondent Election Commission of India be directed to decide the same by 9.00 A.M. on 27.03.2024.

4. Acceding to his request, we had asked the Election Commission of India to decide the application/representation given by the petitioner for allotment of “Top” symbol by 9.00 A.M. today. The Election Commission of India decided the application/representation of the petitioner. Unfortunately, the petitioner's application/ representation came to be rejected.

5. Learned Senior Counsel for the petitioner submits that the Election Symbols (Reservation and Allotment) Order, 1968 [for brevity, “the Symbol Order, 1968”] has not been properly considered and adhered to by the respondents. According to learned Senior Counsel, the classification of symbol can only be (i) reserved symbol; and, (ii) free symbol. The symbol “Top” was the reserved symbol for the petitioner political party. The petitioner political party was unrecognized in the year 2010, however, was allotted “Top” symbol in all the elections, even in the Assembly Elections of 2020. Initially, the Election Commission of India made a query that the petitioner has failed to upload the particulars of the authorised office bearers of the petitioner political party on the website of the Election Commission of India. The same was erroneous. In September, 2023 itself the details of the office bearers were uploaded. The application/representation of the petitioner has been rejected on an erroneous ground.

6. It is further submitted that, as per Para 10B of the Symbol Order, 1968, the petitioner's application ought to have been considered. Even, as per Para 12 of the Symbol Order, 1968, the candidate can choose and shall be allotted one of the symbols specified as free symbols for that State or Union Territory by notification under Para 17. As the said symbol is not being allotted to the petitioner political party for which the same was reserved, it has to be a free symbol and, in that event, the petitioner would be entitled for allotment of the same.

7. It is further submitted that under Para 18(c) of the Symbol Order, 1968, the Election Commission of India has power to issue instructions and directions in relation to any matter with respect to the reservation and allotment of symbols and recognition of political parties, for which the Symbol Order, 1968 makes no provision or makes insufficient provision.

8. Learned Senior Counsel submits that even assuming without admitting that the petitioner political party is not entitled for “Top” symbol as the same is not free symbol, still the Election Commission of India has power to consider the same. Learned Senior Counsel relies upon the judgment of a Division Bench of the Andhra Pradesh High Court in the case of Telangana Rashtra Samithi, Hyderabad, rep. by its General Secretary v. Election Commission of India, rep. by its Secretary, New Delhi, (2004) 1 ALT 382