ASHOK PANDE Vs. ELECTION COMMISSION OF INDIA

JUDGEMENT

(1.) This writ petition, in the form of public interest litigation, has been made by two practicing advocates of this High Court, who appeared in person. They have prayed that the Election Symbols (Reservation and Allotment) Order, 1968 (hereinafter referred to as the "Order, 1968") be declared ultra vires to the extent it categorizes reserve symbols and free symbols, and in further to direct the Election Commission of India to treat the contesting candidates of registered political parties and other political parties equally and to cancel the allotment of symbols to the political parties. The real issue before us in this writ petition is as to whether there is any scope open for the Election Commission of India to reserve the symbol for any recognized political party and if it is so, whether it tantamounts to discrimination with other political parties,- for whom symbols have not been reserved. The reservation of symbol means a political party is getting opportunity to make its propaganda with its symbol throughout the area, which facility is not available to the political parties, whose symbols have not been reserved.

(2.) The petitioners contended before us that National political parties, State political parties and other political parties have been treated differently. However, in this regard, we want to hold and say that this differentiation is made on the basis of the people's representation. That representative capacity is to be adjudged by the Election Commission. The Election Commission within it's wide power of superintendence, direction and control as well as conduct of all elections is empowered to know the category of a political party and its strength of representation to recognize the symbol. Moreover, a system was adopted by the political parties and the same continued for a considerable period. Therefore, the Order, 1968 cannot be said to be ultra vires in the year 2010, so far as categorization of reserve symbols and free symbols are concerned.

(3.) learned Counsel appearing on behalf of the Election Commission of India has placed before us a judgment of the Supreme Court in Kanhaiya Lal Omar v. R.K. Trivedi and Ors., 1986 AIR(SC) 111, from which we have got the complete answer. Paragraph 16 of the said judgment is quoted hereunder: