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Details Parent Category: [LINK=/state/up.html]उत्तर प्रदेश[/LINK] Category: [LINK=/state/up/lucknow.html]लखनऊ[/LINK] Created on Wednesday, 24 July 2013 01:50 Written by B4M
कल इलाहाबाद हाई कोर्ट की लखनऊ बेंच में विभिन्न मान्यताप्राप्त राजनैतिक दलों के चुनाव चिन्हों को चुनौती देते हुए एक याचिका दायर की गयी. सामाजिक कार्यकर्ता डॉ नूतन ठाकुर द्वारा दायर याचिका में कहा गया है कि भारत निर्वाचन आयोग केंद्रीय और राज्य स्तरीय मान्यताप्राप्त दलों को निर्वाचन प्रतीक आरक्षण और आवंटन आदेश 1968 के अनुसार स्थायी चुनाव चिन्ह आवंटित करता है जो निर्वाचन नियमावली 1961 के नियम 5 और 10 के विरुद्ध है क्योंकि इन नियमों के अनुसार चुनाव चिन्ह चुनाव घोषित होने के बाद ही निर्वाचन अधिकारी द्वारा दिये जाने चाहिए जबकि चुनाव आयोग कुछ दलों को स्थायी रूप से चुनाव चिन्ह दे देता है.
ठाकुर के अनुसार आयोग का यह कृत्य कुछ राजनैतिक दलों के प्रत्याशियों को अनुचित बढ़त और लाभ देता है और बराबरी के सिद्धांत के खिलाफ है. साथ ही याचिका के अनुसार कई सारे चुनाव चिन्ह जन प्रतिनिधित्व अधिनियम 1951 की धारा के खिलाफ हैं जो कहता है कि मतदान केन्द्र के सौ मीटर में कोई चुनाव सम्बंधित चिन्ह नहीं होने चाहिए जबकि हाथ का पंजा, घडी, किताब, पंखा, कुर्सी, टेबल सहित दर्जनों ऐसे चुनाव चिन्ह हैं जो मतदान केन्द्र पर ही मौजूद रहते हैं. अतः ठाकुर ने स्थायी पार्टी चिन्हों और अवैध चुनाव चिन्हों को रद्द करने की मांग की है.
Dr Nutan Thakur, aged about 40 years, w/o Sri Amitabh Thakur r/o 5/426, Viram Khand, Gomti Nagar, Lucknow-------- Petitioner
Versus
Election Commission of India, Nirvachan Sadan, Ashoka Road, New Delhi-110001 ------ Respondent
Writ Petition under Article 226 of the Constitution of India
To,
The Hon'ble Chief Justice and His other Hon'ble companion Judges of the aforesaid Court:
The humble petition of the above named petitioner most respectfully begs to submit as under:
That by means of this petition, the petitioner is invoking the extra ordinary jurisdiction of this Hon'ble Court vested with it through Article 226 of the Constitution to file this Writ Petition with a prayer to kindly quash the various impugned provisions of law framed by the Respondent, Election Commission of India (ECI, for short) in the Election Symbols (Reservation and Allotment) Order 1968 (Symbols Order, for short) (presented in Annexure No 1) particularly as regards allocation of Symbols as being against, contrary and/or beyond the Article 324 of the Constitution of India, various provisions of law as enshrined in the Representation of People's Act 1951 ( RP Act 1951, for short) and the Conduct of Elections Rules 1960 (Election Rules, for short) and also to kindly quash the Notification No.56/2001/Jud-III dated 03/04/2001 (Annexure No 2) passed by the ECI as being contrary to the law of the land.
The petitioner declares that she has not filed any other Writ petition before the Hon'ble Supreme Court and this Hon'ble Court either at Allahabad or its Lucknow bench pertaining to the subject matter and/ or for the relief prayed for in the instant writ petition. It is further declared that in respect of the same subject, no caveat notice has been received by the petitioner.
That the petitioner is a social activist and presently also a member of the Aam Aadmi Party and this Petition is being submitted in her capacity both as a social activist and a law-abiding citizen and as a political activist who is an affected party in this matter because the improper and illegal act done by the respondent through enactment of various provisions of law in the Symbols Order adversely affects her not only as an awakened citizen but also as a political person who finds herself in a position of disadvantage vis-a-vis various candidates belonging to so-called recognized political parties who are given permanent Symbols by the ECI which they use even during the elections and thus get a massive and extremely huge advantage compared to others, including the petitioner, not belonging to such recognized political parties who get their election Symbols barely a few days before the conduct of the election and thus are placed in a blatantly disadvantageous position. The worst thing is that this Symbols Order has been enacted by the ECI in gross violation to the various legal provisions prescribed in Article 324 of the Constitution, the RP Act, 1951 and the Election Rules and is thus improper, illegal and bad in the eyes of law. Hence, the petitioner, an affected party, who is getting placed in a disadvantageous position as a prospective candidate in the coming Lok Sabha elections and/or other elections of Lok Sabha and Vidhan Sabha in the days to come, challenges the illegal and improper Orders prescribed in the Symbols Order, passed against the dictates of the Constitution of India and various Statues, which denies genuine and truthful level-playing field by getting it distorted in favour of the so-called recognized political parties. The petitioner also presents this petition to save the country from the phenomenon where the political parties have become such huge entities of vested interests strangle-holding the political and democratic fabric of the Nation where instead of the individuals votes are being garnered and fetched in the name of Party Symbols thus relegating individual worth into the background and making Party Symbols an artificial mammoth creation overpowering everything else in the Indian democratic setup.
That an Order called the Election Symbols (Reservation and Allotment) Order, 1968 (Symbols Order, for short) was made by the Election Commission of India (ECI, for short) which allegedly is "an order to provide for specification, reservation, choice and allotment of Symbols at elections in Parliamentary and Assembly Constituencies, for the recognition of political parties in relation thereto and for matters connected therewith. A copy of the impugned provisions/Paragraphs along with certain other Paragraphs of this Symbols Order is being attached as Annexure No 1.
That it begins by saying-"whereas, the superintendence, direction and control of all elections to Parliament and to the Legislature of every State are vested by the Constitution of India in the Election Commission of India. AND WHEREAS, it is necessary and expedient to provide in the interest of purity of elections to the House of the People and the Legislative Assembly of every State and in the interest of the conduct of such elections in a fair and efficient manner, for the specification, reservation, choice and allotment of Symbols for the recognition of political parties in relation thereto and for matters connected therewith. NOW, THEREFORE, in exercise of the powers conferred by article 324 of the Constitution read with section 29A of the Representation of the People Act, 1951 (43 of 1951) and rules 5 and 10 of the Conduct of Elections Rules, 1961, and all other powers enabling it in this behalf, the Election Commission of India hereby makes the following Order."
That since the Symbols Order was made in exercise of the powers conferred by article 324 of the Constitution read with section 29A of the Representation of the People Act, 1951 (43 of 1951) and rules 5 and 10 of the Conduct of Elections Rules, 1961, hence it would be pertinent to first have a look at what exactly these constitutional and legal provisions say
That Article 324 titled "Superintendence, direction and control of elections to be vested in an Election Commission" says at Clause 1- "The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice President held under this Constitution shall be vested in a Commission (referred to in this Constitution as the Election Commission)"
That section 29A in Part IVA (Registration of political parties) of the RP Act, 1951 inserted by Act 1 of 1989, s. 6 (w.e.f. 15-6-1989) titled "Registration with the Election Commission of associations and bodies as political parties" provides the procedure for registration of political parties.
That at sub section (1) of section 29A it says-"Any association or body of individual citizens of India calling itself a political party and intending to avail itself of the provisions of this Part shall make an application to the Election Commission for its registration as a political party for the purposes of this Act."
That sub section (3), (4) and (5) of section 29A provide for the information and way in which the application for registration of political parties has to be done.
That as per sub-section (6) of section 29A, the Commission may call for such other particulars as it may deem fit from the association or body and as per sub-section (7) After considering all the particulars as aforesaid in its possession and any other necessary and relevant factors and after giving the representatives of the association or body reasonable opportunity of being heard, the Commission shall decide either to register the association or body as a political party for the purposes of this Part, or not so to register it; and the Commission shall communicate its decision to the association or body: Provided that no association or body shall be registered as a political party under this sub—section unless the memorandum or rules and regulations of such association or body conform to the provisions of sub—section (5).
That as per sub section (8) of section 29A, the decision of the Commission shall be final.
That Rule 5 of the Election Rules titled "Symbols for elections in parliamentary and assembly constituencies." says—"(1) The Election Commission shall, by notification in the Gazette of India, and in the Official Gazette of each State, specify the Symbols that may be chosen by candidates at elections in parliamentary or assembly constituencies and the restrictions to which their choice shall be subject. (2) Subject to any general or special direction issued by the Election Commission either under sub-rule (4) or sub-rule (5) of rule 10, where at any such election, more nomination papers than one are delivered by or on behalf of a candidate, the declaration as to Symbols made in the nomination paper first delivered, and no other declaration as to Symbols, shall be taken into consideration under rule 10 even if that nomination paper has been rejected."
That Rule 10, Sub rule 1 of the Election Rules titled "Preparation of list of contesting candidates" says—"The list of contesting candidates referred to in subsection (1) of section 38 shall be in Form 7A or Form 7B as may be appropriate and shall contain the particulars set out therein and shall be prepared in such language or languages as the Election Commission may direct.
That Rule 10, Sub rule 4 of the Election Rules says- "At an election in a parliamentary or assembly constituency, where a poll becomes necessary, the returning officer shall consider the choice of Symbols expressed by the contesting candidates in their nomination papers and shall, subject to any general or special direction issued in this behalf by the Election Commission,— (a) allot a different Symbols to each contesting candidate in conformity, as far as practicable, with his choice; and (b) if more contesting candidates than one have indicated their preference for the same Symbols decide by lot to which of such candidates the Symbols will be allotted.
That Rule 10, Sub rule 5 of the Election Rules says-"The allotment by the returning officer of any Symbols to a candidate shall be final except where it is inconsistent with any directions issued by the Election Commission in this behalf in which case the Election Commission may revise the allotment in such manner as it thinks fit" while as per sub rule 6-"Every candidate or his election agent shall forthwith be informed of the Symbols allotted to the candidate and be supplied with a specimen thereof by the returning officer."
That a reading of all the above relevant Constitutional and legal provisions make it very clear that the superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and State legislature vest in the ECI. The ECI has also been empowered under section 29A of the RP Act, 1951 to call for such other particulars as it may deem fit from the association or body desirous of registration as a political party and after considering all the relevant factors to register it as a political party or to refuse registration, a decision which shall be final. Similarly, Rule 5 of the Election Rules state that the ECI shall, by notification in the Gazette of India, and in the Official Gazette of each State, specify the Symbols that may be chosen by candidates at elections in parliamentary or assembly constituencies and the restrictions to which their choice shall be subject. As per Rule 10, where a poll becomes necessary for Lok Sabha or Vidhan Sabha, the returning officer shall consider the choice of Symbols expressed by the contesting candidates in their nomination papers and shall, subject to any general or special direction issued in this behalf by the ECI— (a) allot a different Symbols to each contesting candidate in conformity, as far as practicable, with his choice; and (b) if more contesting candidates than one have indicated their preference for the same Symbols decide by lot to which of such candidates the Symbols will be allotted. This allotment of Symbols by the returning officer shall be final except where it is inconsistent with any directions issued by the ECI where the ECI may revise the allotment in such manner as it thinks fit". Finally, every candidate or his election agent shall forthwith be informed of the Symbols allotted to the candidate and be supplied with a specimen thereof by the returning officer.
That it is under the powers and provisions expressed in the above mentioned Constitutional and statutory provisions that the ECI allegedly formulated the Symbols Order but it is being prayed that the ECI went much beyond its mandate, power and authority while framing these Orders with the result that many of the provisions of this Order were directly inconsistent with the provisions stated in Article 324, section 29A of the RP Act 1951 and Rules 5 and 10 of the Election Rules.
That the impugned Para 5, 8, 9, 10, 10A, 11, 12 and 17 of the Election Conduct Rules along with certain other relevant provisions have been presented in Annexure No 1 to this Writ Petition.
That to begin with, Paragraph 4 of these Orders titled "Allotment of Symbols" says.—"In every contested election a Symbols shall be allotted to a contesting candidate in accordance with the provisions of this Order and different Symbols shall be allotted to different contesting candidates at an election in the same constituency."
That but Paragraph 5 says-"Classification of Symbols.—(1) For the purpose of this Order Symbols are either reserved or free. (2) Save as otherwise provided in this Order, a reserved Symbols is a Symbols which is reserved for a recognised political party for exclusive allotment to contesting candidates set up by that party. (3) A free Symbols is a Symbols other than a reserved Symbols"
That Paragraph 6 says-"Classification of political parties.—(1) For the purposes of this Order and for such other purposes as the Commission may specify as and when necessity therefore arises, political parties are either recognised political parties or unrecognised political parties. (2) A recognised political party shall either be a National party or a State party" and Paragraph 6A is about conditions for recognition as a National party while Paragraph 6B is regarding conditions for recognition as a State party
That Paragraph 8 is as regards choice of Symbols by candidates of National and State parties and allotment thereof while Paragraph 9 is about restriction on the allotment of Symbols reserved for State parties in States where such parties are not recognised, Paragraph 10 is about concessions to candidates set up by a State party at elections in other States or Union territories and Paragraph 10A is as regards concession to candidates set up by an unrecognised party which was earlier recognised as a National or State party.
That Para 11 of the Symbols Order is about restrictions on the choice and allotment of symbols allotted under paragraph 10 or paragraph 10A
That it is only after all this that comes Paragraph 12 regarding choice of Symbols by other candidates and allotment thereof, other than— (a) a candidate set up by a National Party; or (b) a candidate set up by a political party which is a State Party in that State; or (c) a candidate referred to in paragraph 10 or paragraph 10A;
That Paragraph 13 is as regards when a candidate shall be deemed to be set up by a political party
That Paragraph 17 says- " Notification containing lists of political parties and Symbols.—(1) The Commission shall be one or more notifications in the Gazette of India publish lists specifying— (a) the National parties and the Symbols respectively reserved for them; (b) the State parties, the State or States in which they are State parties and the Symbols respectively reserved for them in such State or States; (c) the unrecognized political parties and the addresses of their headquarters registered with the Commission; (d) the free Symbols for each State and Union territory. (2) Every such list shall, as far as possible, be kept up-to-date."
That through Notification No.56/2001/Jud-III Dated 03/04/2001, in pursuance of paragraph 17 of the Symbols Order and in supersession of previous notification dated 30/07/1999, the ECI specified, - (a) In Table I, the National Parties and the Symbols respectively reserved for them; (b) In Table II, the State parties, the State or States in which they are State parties and the Symbols respectively reserved for them in such State or States; (c) In Table III, the registered-unrecognized political parties and postal address of their Headquarter; and (d) In Table IV, the free Symbols. A copy of the first page of this Notification is being attached as Annexure No 2.
That there are so many blatantly illegal provisions in the above mentioned provisions of the Symbols Order that the petitioner would present in the following Para.
That to begin with, Rule 5 of the Election Rules only states that the ECI shall, by notification in the Gazette of India, and in the Official Gazette of each State, specify the Symbols that may be chosen by candidates at elections in parliamentary or assembly constituencies and the restrictions to which their choice shall be subject.
That what it means is that the ECI needs to notify in the appropriate Gazettes all the Symbols that may be chosen by candidates "at elections".
That what it also means is that
the Symbols are there only for the elections and not perennial in nature.
these Symbols to be used in the elections are to be given to the candidates, as chosen by them and not to the political parties.
there are not to be two or more varieties of Symbols as has been completely erroneously done by the ECI but there has to be a list of Symbols that may be chosen by candidates "at elections in parliamentary or assembly constituencies."
That again as per Rule 10 of the Election Rules, where a poll becomes necessary for Lok Sabha or Vidhan Sabha, the returning officer shall consider the choice of Symbols expressed by the contesting candidates in their nomination papers and shall allot a different Symbol to each contesting candidate in conformity, as far as practicable, with his choice. This Rule also presents the methodology for allotment of Symbols if more contesting candidates than one have indicated same preference.
That what it means is that the Symbols shall be allotted to the "contesting candidates" only by the "Returning Officer" and none else who shall also intimate the candidate or his agent about the allotted Symbols.
That unlike these provisions of the Election Conduct Rules, what the Symbols Order has done is that while at Paragraph 4 , it agrees that "in every contested election a Symbols shall be allotted to a contesting candidate in accordance with the provisions of this Order and different Symbols shall be allotted to different contesting candidates at an election in the same constituency", in subsequent Paragraphs it completely deviates from the provisions of Rules 5 and 10 of the Election Conduct Rules to come up with the concept of what are generally called "Party Symbols." Thus in Paragraph, it artificially and against the provisions of the Election Conduct Rules, classifies the Symbols into reserved or free, so that while the free Symbols are allotted only at the time of election as mandated and prescribed in the Election Conduct Rules, the reserved Symbols are allotted on a permanent basis.
That this allotment of "reserved Symbols" which are relatively permanent in nature is blatantly against the provision of Rule 5 of the Election Conduct Rules which talks of allotment of Symbols only during the elections. Thus the Rules under which the ECI allegedly framed the Symbols Order talks of "Symbols that may be chosen by candidates at elections in parliamentary or assembly constituencies", here the ECI has come up with Symbols which are relatively permanent and standing in nature and exist before and after the elections as well. Hence, to a Candidate who belongs to one of these so-called "political parties" as defined in section 29A of the RP Act 1951, who get allegedly recognized through some defined process under this Symbols Order, need not get a Symbols during the elections but he comes in the elections already equipped with the Symbols. This candidate belonging to this so-called "recognized political party" at National or State level gets a Symbols much-much before the elections and not during the elections as Rule 5 of the Election Conduct Rules state and envisage.
That it also needs to be seen that while Rule 5 empowers the ECI to grant Symbols only to the "candidates", the ECI goes beyond the mandate and contrary to the mandate in Rule 5, it grants Symbols to the political parties.
That it needs to be seen that both Rule 5 and Rule 10 of the Election Conduct Rules talk only of Symbols being granted to the "candidate" for and during the elections and not to the "political party" even during such period when there are no elections. Yet, directly against these Rules, the ECI frames an Order which-
grants Symbols to "political party" while Rules ask it to grant Symbols to "candidates"
grants Symbols of semi-perennial nature while the Rules ask it to grant Symbols only for and during the elections
That the third thing that needs to be seen is that while the Rule 10 states that the election Symbols shall be granted by the "Returning Officer" who is appointed only during the elections, the ECI illegally usurped this power by granting "party Symbols", which it arbitrarily, artificially and illegally equates as the "election Symbols" for those so-called recognized parties at their end and not by the Returning Officer.
That thus against Rule 10 of the Election Conduct Rules, the Symbols Order grants the power of grant of Symbols to the ECI which is illegal as being against the Rule 10.
That it may also kindly be noted that again while Rule 10 asks the Returning Officer to intimate the "candidates" about the election Symbols, here arbitrarily, artificially and illegally the ECI usurps this power as well and after grant of so-called "party Symbols" (improperly equated with and treated as permanent election Symbols), it also intimates these political parties of their semi-permanent election Symbols.
That though Rule 10 of the Election Conduct Rules talks of "subject to any general or special direction issued" by ECI but no such general or specific direction can go beyond or contrary to the mandate provided in these Rules itself. Thus, such general or specific directions cannot change the rule that Symbols are to be granted only during the elections by the Returning Officer, are to be granted on the choice of the candidates as per certain procedures and are to be intimated to the candidate or their agent by the Returning Officer, as is being done presently through this illegal Symbols Order.
That it is really sad that while making these kinds of Symbols classifications, the ECI has also conveniently and illegally forgotten section 130 of the RP Act, 1951-"Prohibition of canvassing in or near polling station.—(1) No person shall, on the date or dates on which a poll is taken at any polling station, commit any of the following acts within the polling station or in any public or private place within a distance of one hundred metres of the polling station, namely:— (a) canvassing for votes ; or (b) soliciting the vote of any elector; or (c) persuading any elector not to vote for any particular candidate; or (d) persuading any elector not to vote at the election ; or (e) exhibiting any notice or sign (other than an official notice) relating to the election. (2) Any person who contravenes the provisions of sub-section (1) shall be punishable with fine which may extend to two hundred and fifty rupees. (3) An offence punishable under this section shall be cognizable.
That thus section 130 of RP Act 1951 prohibits exhibiting any notice or sign relating to election within a distance of one hundred metres of the polling station, yet the ECI through Notification No.56/2001/Jud-III Dated 04/04/2001, allegedly in pursuance of paragraph 17 of the Symbols Order and in supersession of its previous notification dated 30/07/1999, specified, - (a) In Table I, the National Parties and the Symbols respectively reserved for them; (b) In Table II, the State parties, the State or States in which they are State parties and the Symbols respectively reserved for them in such State or States; (c) In Table III, the registered-unrecognized political parties and postal address of their Headquarter; and (d) In Table IV, the free Symbols, where among so-called National Parties, at S No 5 Indian National Congress has Hand as Symbols and at S No 6 Nationalist Congress Party has Clock. .
That among State recognized Parties at Table II of this Notification, there are in Assam- Autonomous State Demand Committee with Boy & Girl as Symbols, in Goa- United Goans Democratic Party with Two leaves, in Haryana- Indian National Lok Dal with Spectacles, in Himachal Pradesh Himachal Vikas Congress with Telephone, in Kerala Congress (M) with Two leaves, in Mizoram- Mizoram People's Conference with Electric Bulb, in Tamil Nadur All India Anna Dravida Munnetra Kazhagam with Two leaves and in Sikkim- Sikkim Democratic Front with Umbrella as Party Symbols
That in Table IV of this Notification termed "List of free Symbols", there are at S No 2. Almirah, 7. Basket, 10. Battery Torch, 13. Black Board, 14. Book, 16. Brick, 17. Bridge, 18. Brief Case, 29. Ceiling Fan, 30. Chair, 31. Coat, 35. Cup & Saucer, 36. Dao, 39. Electric Pole, 40. Envelope, 44. Gas Cylinder, 45. Gas Stove, 46. Glass Tumbler, 47. Hand Pump, 50. Hat, 54. Jug, 55. Kettle, 57. Lady Purse, 59. Lock and Key, 61. Neck Tie, 64. Ring, 71. Spoon, 72. Stool, 73. Table, 74. Table Lamp and 79. Walking Stick
That as can be easily seen each of the above mentioned Symbols (so-called party or free Symbols) are almost universally and regularly present within the 100 meter distance of the polling booth.
That this provision of prohibition of exhibiting any notice or sign relating to election within a distance of one hundred metres of the polling station is not through some ECI notification or some routine order, but is part of the Statute of this Nation presented at section 130 of RP Act 1951.
That it can be easily seen that the ECI has no right or authority to deliberately and intentionally act contrary to a statutory provision because the ECI is as much bound by the law of this land as any other authority.
That it is a settled principle of law in India that no Act (statute) can be contrary to the provisions of the Constitution of India, no Rules can be made under delegated legislation against the Statutes framed by the legislature, no Regulations, Orders etc can go against the Rules framed and no Government Orders etc can be against the Regulations, Orders etc. This hierarchy of laws is so well accepted that there would be no two opinions about the same.
That only recently the Hon'ble Justice P. Sathasivam and Hon'ble Justice Ranjan Gogoi of the Hon'ble Supreme Court through their order dated 05/07/2013 in S. Subramaniam Balaji Versus The Government of Tamil Nadu & Ors. (CIVIL APPEAL NO. 5130 OF 2013- Arising out of SLP (C) No. 21455 of 2008 of 78) had, while acknowledging the law-making power of the ECI, said almost the same thing-". However, the Election Commission, in order to ensure level playing field between the contesting parties and candidates in elections and also in order to see that the purity of the election process does not get vitiated, as in past been issuing instructions under the Model Code of Conduct. The fountainhead of the powers under which the commission issues these orders is Article 324 of the Constitution, which mandates the commission to hold free and fair elections. It is equally imperative to acknowledge that the Election Commission cannot issue such orders if the subject matter of the order of commission is covered by a legislative measure."
That it is really disturbing that in this present case, the ECI went beyond the mandate provided to it and thus apparently stating that the Order was being formed in exercise of the powers conferred by Article 324 of the Constitution read with section 29A of the Representation of the People Act, 1951 (43 of 1951) and rules 5 and 10 of the Conduct of Elections Rules, 1961, the ECI not only went much beyond what these legal provisions state but often propounded laws in direct contravention and contradiction of the laws stated in the above sources of law.
That this act of the ECI has clearly disturbed and distorted the level-playing field, apparently so much cherished by the ECI and touted by it, in favour of the recognized Party candidates vs other candidates in a manner that has helped in creating monopolized electoral market for the so-called political parties who take advantage of their permanent symbols provided against the provisions of law and thereby put the other non-recognized party candidates into clear-cut and distinct disadvantage, thereby adversely affecting the democratic process of the Nation
That it is this contravention of the legal status by the Respondent that is being challenged through this Writ Petition.
That there is nothing wrong in the ECI declaring/providing Symbols to the political parties based on certain criteria but these "party Symbols" cannot be the "election Symbols" of the candidates of these political parties. The election Symbols have to come only in the way prescribed in Rules 5 and 10 of the Election Conduct Rules "during the elections to the candidates by the Returning officers." These election Symbols cannot be perennial or semi-permanent Symbols as wrongly envisaged and implemented by ECI through its Symbols Order.
That thus any "Party Symbols", for whatever purposes they might be used, has to be different from the election Symbols of the candidates which has to be granted to one and all through the procedure prescribed in Rules 5 and 10 of the Election Rules and not through a contrary subordinate legislature (Symbols order by the ECI) and thus if the ECI still wants to grant Symbols to the political parties, it be kindly directed to make these :party Symbols" different from the election Symbols to be granted through the above Rules
That as is quite obvious, the grant of party Symbols and its use as election Symbols, as is being currently done, clearly distorts the level-playing field and needs to be stopped immediately as being against the provisions of law
That thus in the interest of justice, for the sake of stopping the blatant violation of the law of the land enshrined in the RP Act 1951, Election Rules 1960 and various other laws framed in this country as regards free and fair elections so as to provide a real level-playing field for the Candidates, in this matter of wide public importance and public concern, the petitioner, an affected party in this matter as one who considers herself a future contestant in the Lok Sabha or Vidhan Sabha elections but would definitely be in an extremely disadvantageous position because of the current trend of circumventing the law of the land by the ECI in artificially and improperly devising semi-permanent "Party symbols" for those candidates who belong to various recognized State and National political parties against the provisions of law vis-a-vis short-lived "free symbols" for all other candidates granted only at the time od declaration of election and filing of election papers, approaches before this Hon'ble Court, being left with no other option than to approach it with this Petition to ask for certain prayers because of the reasons being stated among the Grounds as enumerated below.
That the petitioner's photograph and Identity proof in the form of Passport has been enclosed along with.
GROUNDS
Because ECI says that it formed the Symbols Order of 1968 apparently under powers conferred by article 324 of the Constitution read with section 29A of the Representation of the People Act, 1951 (43 of 1951) and rules 5 and 10 of the Conduct of Elections Rules, 1961, and all other powers enabling it in this behalf, the Election Commission of India hereby makes the following Order
Because yet, in reality the Symbols Order goes against the mandate and provisions of Rule 5 and Rule 10 of the Election Conduct Rules in many ways
Because while Rule 5 says that the ECI shall specify the Symbols that may be chosen by candidates at elections in parliamentary or assembly constituencies, ECI Symbols Order provides certain Party symbols that are granted much earlier than the concerned elections and are almost permanent in nature
Because while Rule 5 says that these Symbols to be used in the elections are to be given to the candidates, as chosen by them and not to the political parties, ECI grants many symbols to the political parties, who in turn grant their symbols to the candidates, thus directly deviating from the provisions of Rule 5
Because as per Rule 10 of the Election Rules, Symbols shall be allotted to the "contesting candidates" only by the "Returning Officer" and none else who shall also intimate the candidate or his agent about the allotted Symbols, but the Symbols Order completely deviates from the provisions of Rules 5 and 10 of the Election Conduct Rules to come up with the concept of what are generally called "Party Symbols." Thus in Paragraph, it artificially and against the provisions of the Election Conduct Rules, classifies the Symbols into reserved or free, so that while the free Symbols are allotted only at the time of election as mandated and prescribed in the Election Conduct Rules, the reserved Symbols are allotted on a permanent basis
Because there are not to be two or more varieties of Symbols as has been completely erroneously done by the ECI but there has to be a list of Symbols that may be chosen by candidates "at elections in parliamentary or assembly constituencies
Because this allotment of "reserved Symbols" which are relatively permanent in nature is blatantly against the provision of Rule 5 of the Election Conduct Rules which talks of allotment of Symbols only during the elections
Because while the Rule 10 states that the election Symbols shall be granted by the "Returning Officer" who is appointed only during the elections, the ECI illegally usurped this power by granting "party Symbols" at their end and not by the Returning Officer
Because while section 130 of RP Act 1951 prohibits exhibiting any notice or sign relating to election within a distance of one hundred metres of the polling station, yet the ECI through Notification No.56/2001/Jud-III Dated 03/04/2001, allegedly in pursuance of paragraph 17 of the Symbols Order specified many symbols including for Indian National Congress Hand, Nationalist Congress Party Clock at Table II of this Notification, in Assam- Autonomous State Demand Committee with Boy & Girl as Symbols, in Goa- United Goans Democratic Party with Two leaves, in Haryana- Indian National Lok Dal with Spectacles, in Himachal Pradesh Himachal Vikas Congress with Telephone, in Kerala Congress (M) with Two leaves, in Mizoram- Mizoram People's Conference with Electric Bulb, in Tamil Nadu All India Anna Dravida Munnetra Kazhagam with Two leaves and in Sikkim- Sikkim Democratic Front with Umbrella as Party Symbols and in Table IV (List of free Symbols) at S No 2. Almirah, 7. Basket, 10. Battery Torch, 13. Black Board, 14. Book, 16. Brick, 17. Bridge, 18. Brief Case, 29. Ceiling Fan, 30. Chair, 31. Coat, 35. Cup & Saucer, 36. Dao, 39. Electric Pole, 40. Envelope, 44. Gas Cylinder, 45. Gas Stove, 46. Glass Tumbler, 47. Hand Pump, 50. Hat, 54. Jug, 55. Kettle, 57. Lady Purse, 59. Lock and Key, 61. Neck Tie, 64. Ring, 71. Spoon, 72. Stool, 73. Table, 74. Table Lamp and 79. Walking Stick, all of which are almost certainly bound to be present within the 100 metres periphery of the polling station
Because the entire process distorts and disturbs the level-playing field in elections and creates an artificial and improper monopolistic electoral market for the so-called recognized political parties, thus having an adverse effect on the democratic fabric of the Nation
PRAYER
Wherefore, it is most respectfully prayed that this Hon'ble Court may be pleased to-
to kindly issue a writ of certiorari thereby quashing Paragraphs 5, 8, 9, 10, 10A, 11, 12 and 17 of the Election Symbols (Reservation and Allotment) Order 1968 (presented in Annexure No 1) as being in contravention and opposition to the provisions of section 130 of the Representation of People's Act 1951 and Rules 5 and 10 of the Conduct of Elections Rules 1960.
to kindly issue a writ of certiorari thereby quashing Notification No.56/2001/Jud-III Dated 03/04/2001 passed in pursuance of paragraph 17 of the Election Symbols (Reservation and Allotment) Order, 1968 (Annexure No 1) as being in contravention and opposition to the provisions of section 130 of the Representation of People's Act 1951 and Rules 5 and 10 of the Conduct of Elections Rules 1960
to pass any other order or directions which this Hon'ble Court may deems fit and proper in the facts and circumstance of the present case.
Lucknow Asok Pande
Dated- 17/07/2013 Counsel for Petitioner # 94154-65438
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