A. Pasayat, Actg. C.J.
1. Alleging that by allotment of symbol i.e. 'Conch' to Biju Janata Dal, a recognised State party, there has been violation of various provisions of the Representation of the People Act, 1951 (in short 'the Act') and the Election Symbols (Reservation and Allotment) Order, 1968 (in short 'the Order'), this writ petition has been filed.
2. The undisputed factual position is as follows:--
Petitioner claims to be the President of one unrecognised State Political Party, namely, 'Jagannath Dal', By notification dated 16-1-1995 (vide Annexure-1) of the State of Orissa which was published in the Orissa Gazette Extraordinary dated 16-1-1995, certain symbols were allotted to unrecognised political party/independent candidate, and the said notification reads as follows:---
HOME (ELECTION) DEPARTMENT
NOTIFICATION
The 16th January, 1995
No. 1530-IE(E) - 16/95-Elec. - The following notification published by the Election Commission of India in Gazette of India Extraordinary Part-11, Section 3(III) is hereby republished for general information.
A.S. SARANGI
Chief Election Officer and
Special Secretary to Government
ELECTION COMMISSION OF INDIA
Nirvachan Sadar,
Ashoka Road,
New Delhi.
Dated 10th January.
1995 20 Pausa, 1916 (Saka)
NOTICIATION
No. 56/95(2) - In pursuance of Clause (d) of Sub-para (1) and Sub-para (2) of Paragraph 17 of the Election Symbols (Reservation and Allotment) Order, 1968, the Election Commission hereby makes the following amendment of its notification 16/92 dated the 7th January, 1993 published as O.N. 2(E), dated the 8th January, 1993 in the Gagette of India, Extraordinary, Part II, Section 3(iii) and as amended from time to time, namely:--
In TABLE IV appended to the said notification against the name of the State '18, Orissa' under column I, the following entries shall be inserted under column 2:--
'27. Bell
28. Bucket
29. Comb
30. Conch
31. Flute
32. Ring
33. Rising Sun
34. Saw
35. Two leaves'
As is evident from the notification, same was issued in pursuance of Clause (d) of Sub-para (1) and Sub-para (2) of paragraph 17 of the Order. Petitioner had earlier filed O.J.C. No. 1119 of 1998 which was disposed of with direction to Election Commission of India to deal with representation filed by the petitioner vide Annexure, the objection regarding allotment of symbol to Biju Janata Dal has not been accepted.
3. Petitioner's case is that once symbol was notified to be available to candidates of unrecognised political party and independent candidates, it was not permissible to allot the symbol to Biju Janata Dal. It is stated that once it is notified that the symbol is meant for independent candidates/unrecognised party candidates, it was not permissible to allot to a recognised party.
Learned counsel for the State submitted that there is no embargo as contended by the petitioner on allotment as done, It has not been shown what prejudice has been caused.
4. The order has been framed under Article 324 of the Constitution of India, 1950 (in short, 'the Constitution') read with Section 29A of the Act and Rules 5 and 10 of the Conduct of Election Rules, 1961 (in short'the Rules') by the Election Commission of India. The relevant S.O. 2959 dated 31-8-1968 shows that the purpose of making the Order was to provide in the interest of purity of elections to the Mouse of People and Legislative Assembly of every Slate and in the interest of the conduct of such election in a fair and efficient manner for the specification, reservation, choice and allotment of symbols for the recognition of political par-tics in relation thereto and for the matters connected therewith. Clause 8 deals with choice of symbols by candidates of National and State parties and allotment thereof. Paragraph 17 deals with Notification containing lists of political parties and symbols. It is therefore clear that there are certain reserved symbols, and some unreserved ones. The petitioner makes the grievance that once the symbol was notified to be unreserved, it was not open to transfer the same to reserved category. It is to be seen that the symbols vary from State to State. There is restriction on the choice and allotment of symbols allotted under paragraph 10, as is evident from paragraph 11. Paragraph 5 deals with classification of symbols. The reserved symbol is a symbol which is reserved for a recognised political party for exclusive allotment to contesting candidates. Admittedly the symbol 'Conch' was allotted to independent candidates or those of unrecognised parties. Therefore, it was not a reserved symbol and was a free symbol. Nothing has been brought to our notice in the provisions which prohibit allotment of a symbol once used as free symbol and its inclusion in the list of reserved symbols. Additionally there is no prohibition on the symbol once allotted to an independent candidate being allotted to another independent candidate or candidate of unrecognised party. Large number of symbols as contained in the Order goes to show that unless the symbol is reserved for a political party, there is freedom in allotment of free symbol to any candidate or non-recognised party. As aforesaid, the Order has been framed under Section 29A of the Act. Rule 10 of the Rules specifically shows that Election Commission shall allot different symbol to each contesting candidate in conformity, as far as practicable, with his choice and in fact if there are more contesting candidates then once have indicated their preference for the same symbol decide by lot to which of such candidates the symbol shall be allotted. Theallotment by the Returning Officer of any symbol 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.
5. Taking into the account the illiteracy of large number of voters in the country, symbols are considered necessary in order to enable them to exercise their right to franchise through a secret ballot. Symbols helps in identification of the contesting candidates. Symbols are reserved for political parties which are provided to National party, regional party, recognised party and unrecognised party.
6. As has been observed by the Apex Court in Kanhiya Lal Omar v. R.K. Trivedi, AIR 1986 SC 111, the whole position can be summed up as follows:--
(a) The power to make the provisions contained in the Election Symbols Order is traceable to the rules framed by the Central Government under Section 169.
(b) Any part or provision of the Election Symbols Order which cannot be traced to the relevant rules, the power to make the same can be traced to the 'reservoir of power' under Article 324(1) which unmistakably empowers the Commission to issue all directions necessary for the purpose of conducting smooth, free and fair elections. Reconciling the plenary powers of the Commission under Article 324(1) with the powers of the legislature given under Articles 327 and 328, it can be reasonably said that the Commission itself being a donee of plenary powers under Article 324(1) of the Constitution in connection with the conduct of elections referred to therein is subject of course to any legislation made under Articles 327 and 328 read with entry 72 in list-I and entry 37 in list II of the Seventh Schedule of the Constitution and the rules made thereunder.
(c) For the purpose of efficient conduct of election, it is immaterial whether the power of the Commission to issue directions in the form of Election Symbols Order either indirectly under the relevant rules or directly under the provisions of Article 324(1) is a legislative activity or not. The power of imposing restrictions on the choice of symbols is not a legislative power and is an executive power as was held in Saishnu Kumar Singhv. Ram Bilas Sinha, (1953) 3 ELR 60 ET directions issued by the Election Commission for the allotment of symbols to political parties, old and new, are not discriminatory and they do not violate Article 14 of the Constitution. In Samyukta Socialist Party v. Election Commission, AIR 1967 SC 898, It was held that no political party can claim as of right the allotment of a particular symbol. Under Rule 10(4) of the Rules, the Returning Officer shall consider the choice of symbols expressed by contesting candidates and subject to any general or special direction issued by the Election Commission allotting different symbols to different candidates. The violation of Sub-rule (5) of Rule 10 per se will not invalidate the election. The election petitioner has also to prove that the result of the election, insofar as it concerned the returned candidate, was materially affected. (See Lata Devi v. Haru Rajwar, AIR 1990 SC 19).
7. It has to be noted additionally that Article 324 of the Constitution and Rule 5 of the Rules confer powers on the Election Commission to adjudicate disputes regarding recognition of political parties and allotment of election symbol. Any political party or any person intending to contest elections may question the allotment of election symbol or recognition of a party as political party.
8. Above being the position, the petitioner has not made out a case for interference.
9. The writ petition accordingly fails. There shall be no order as to cost.
P.K. Patra, J.
10. I agree.