Point of law: It is the political parties which sponsor candidates, that are in a position to incur large election expenses which often run into astronomical figures. We do not consider that preferring political parties for exclusion from the sweep of monetary limits on election expenses is so unreasonable or arbitrary as to justify the preference being struck down upon that ground

JUDGMENT :

Rajan Roy, Saurabh Lavania, JJ.

Heard Ms. Shraddha Tripathi, petitioner who is a practicing Advocate of this Court, in person, Shri O P Srivastava, learned Senior Counsel appearing for the Election Commission of India i.e. opposite party no. 1 herein. None has appeared for opposite parties no. 2 to 7.

This is a petition in public interest. The relief clause of the petition reads as under:-

(1.) To issue writ of Mandamus, directing the respondent no. 1, the Election Commission of India to order/directions to all the recognized political parties to immediately stop and restrain from using the Reserved Election Symbols themselves (In the Party name) as their Party Trade-Mark, and for the 'Purpose and Period' beyond the 'Contested Election'.

(2.) To issue writ/order or direction in the nature of Mandamus to the respondent no. 1 to strictly allow the use and operation of reserved symbols only the 'contesting candidates' set-up by 'Recognized Political Parties' in the notified elections.

(3.) Such other writs, order or direction as this Hon'ble Court may feel just and proper in the interest of justice and instant circumstance to achieve the goal of 'Free and Fair' elections as per law.

2. In nutshell, the argument of the petitioner appearing in person is, firstly, that the Election Commission of India does not have any authority to allot symbols to a recognized political party while not allotting the same to an unrecognized political party. Secondly, the allotment of symbols is only to a contesting candidate as mentioned in Paragraph 4 and 5 of the Election Symbols (Reservation and Allotment) Order, 1968 (herein after referred as Order, 1968) and Rule 10(4) of the Conduct of Election Rules, 1961 (herein after referred as Rules, 1961), as such, allotment of such symbols, even if in the garb of reserving it, to recognized political parties much prior to the stage is reached under Section 38 of the Representation of Peoples Act, 1951 (hereinafter referred as Act, 1951) when a candidate becomes a contesting candidate, is illegal, without jurisdiction and also discriminatory viz-a-viz the candidates of an unrecognized political party and also independent candidates to whom the symbols allotted to them are informed barely couple of days prior to the date of election, meaning thereby, on account of this arbitrary and illegal action, on one hand, the recognized (National and State) parties steal a march over the unrecognized political parties and independent candidates as they have benefit of the symbol reserved/allotted for them much earlier, which they continue to use irrespective of the fact whether an election is taking place or not or is to take place or not, whereas the candidates setup by an unrecognized political party and independent candidates do not have this benefit. This according to her, is detrimental to the cause of electoral democracy.

3. Thirdly, she contended that the powers under Article 324 can only be exercised in terms of the Act, 1951, the Rules, 1961 and the Order, 1968, not otherwise. The so called plenary powers available to the Election Commission of India under Article 324 cannot be stretched to act whimsical, arbitrary, in a discriminatory manner or to take decisions not within the domain of the Election Commission of India. In this regard, she placed reliance upon a decision of Supreme Court of India reported in AIR 1984 SC 921, A.C. Jose Vs. Sivan Pillai and others. In the said case while in some polling booths, votes were allowed to be cast by the Election Commission of India by use of ballot papers, in other polling booths they were directed to be cast through machines. In this context, the Supreme Court of India opined that if relevant Acts and Rules governing the conduct of elections cover a particular field then it is not open to the Election Commission of India to violate the same. In this very context, powers of the Election Commission of India under Article 324 were considered. The Supreme Court c