Judgment:
Amar Saran, J.
We have heard learned counsel for the petitioner, Shri Shambhu Chopra, learned counsel for respondent No. 1, the Chief Election Commissioner and Shri Ravi Kant, learned Senior Advocate for the proposed intervenor, the Bahujan Samaj Party (for short, 'the BSP') and Sri. M.S. Pipersenia, learned Standing Counsel for the State of U.P.
It may be noted that earlier the petitioner had filed a petition in public interest, which was allowed to be withdrawn by a Bench of this Court consisting of Hon'ble the Chief Justice Rafat Alam and Justice Ranvijay Singh on 11.1.2012, after passing the following order:
"Learned counsel for the petitioner when faced with the objection raised by the other side that this petition is not in conformity with the Rules of the Court as the petitioner has not disclosed his credentials and other details as required under the Allahabad High Court (Amendment) Rules, 2010, sought leave of this Court to withdraw this petition with the liberty to file another petition with proper pleading and prayers.
Prayer is allowed.
This petition is, accordingly, dismissed as withdrawn with the above liberty."
For meeting the objections raised in the earlier order of this Court dated 11.1.2012 that the petitioner has not disclosed his credentials and other details as required under the Allahabad High Court Amendment Rules, 2010, the petitioner in the present petition mentions that he is a graduate from the Kanpur University and at present residing at Allahabad and is living out of the income from his parental properties. He has no political ambitions and is not concerned with any political party. He also claims not to be interested in any kind of publicity in the matter.
The present petition has been filed substantially on the same grounds as the previous petition that the petitioner is a religious minded person, who professes the Hindu faith and that the order of the Election Commission dated 8.1.2012 by which the statues of "elephants" were directed to be covered for the entire election period to the U.P. Legislative Assembly in U.P. is an infringement of his religious faith and violative of his fundamental right guaranteed under Article 25 of the Constitution of India. The "elephant" is one of the seven divine forms of the godhead, and that it is impermissible to cover the statue for the entire electoral period. The statue could only be covered, if at all, when the God rests and that too after pronouncing some "mantras," which have been annexed to the petition.
He further submits that in paragraphs 42 and 43 of the Election Commission's order dated 11.10.2010 the Commission refused to grant the relief of withdrawing the party symbol "Elephant" of the BSP after observing that "on the facts available to the Commission and records adduced by the parties, the Commission is not in a position to gauge the impact of the above statues, and the extent of such impact, on the minds of the electors." Hence it ought not to have issued the further direction in paragraph 44 of the order that at the time of elections, the Commission would take appropriate steps to see that the statues of Ms Mayawati and the BSP's symbol 'elephant' do not disturb the level playing field and give undue advantage to the BSP vis-a vis other political parties, which was the basis of the impugned order of the Election Commission dated 8.1.2012 directing that the statues of the 'elephants' and Ms Mayawati erected at public places which had been constructed on government expense, be covered, during the current general elections to the Uttar Pradesh Legislative Assembly.
It was also contended by the petitioner that if the 'elephant' symbol deserved to be covered, then the cycles and hands which are symbols of other parties should also be covered.
Shri Ravi Kant, Senior Advocate, learned Counsel for the Bahujan Samaj Party (for short "the BSP"), whom we agreed to hear on behalf of the BSP (which had prayed for being impleaded in the petitioner's earlier petition also which was dismissed as withdrawn), as he claimed that the BSP and not the petitioner, would have cause to be aggrieved by the order of the Election Commission and that a frivolous petition had been filed by the petitioner, probably at the instance of some interested political group, so that on dismissal on the ground that by use of the symbol, the party tried to secure votes by pandering to religious sentiments, which is a corrupt practice according to section 123(3) of the Representation of People's Act, 1951, the BSP would run the risk of losing its symbol on this account. He further submitted that the petitioner had still not established his credentials for filing this petition. His mere claim that he was a graduate and a Hindu, who lives off the income from parental properties, does not provide him with sufficient credentials for filing this petition to espouse the public cause in which he has earlier shown little interest.
We find some substance in Shri Ravi Kant's last contention that the petitioner has still not been able to prove his credentials for filing this writ petition, simply because he claims to be a graduate Hindu living off his parental properties. He could not show any locus standi for espousing this cause, nor could he show how and when he has espoused such causes in the past, and is not simply a publicity seeker.
It is noteworthy that on the basis of the decision in State of Uttaranchal Vs. Balwant Singh Chaufal and others, (2010)3 SCC 402, the High Court introduced the amended sub-rule 3-A in Rule 1 of Chapter XXII which lays down that the petitioner filing a public interest litigation should precisely and specifically state in the affidavit his credentials, the public cause he is seeking to espouse, that he has no personal or private interest in the matter, there is no authoritative pronouncement by the Supreme Court and the High Courts on the questions raised and that the result of the public interest litigation would not lead to any undue gain to himself or any one associated with him or any undue loss to anybody or the State.
Summing up the directions in paragraph 181 in Balwant Singh Chaufal's case (supra) it was specifically observed as follows in sub-paras 3, 5 and 7, which are material for giving a decision on the maintainability of the present petition:
"(3) The Courts should be prima facie satisfied by the credentials of the petitioner before entertaining a PIL.
(5)The Courts should be fully satisfied that substantial public interest in involved before entertaining a PIL.
7) The Courts should before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public harm or public injury. The Court should also ensure that there is no personal gain, private motive or oblique motive behind filing the public interest litigation."
If in exercise of its powers of its wide powers of superintendence for ensuring the purity of the electoral process under Article 324 and a level playing field for all candidates the Election Commission has issued the impugned order dated 8.1.12 directing that the statues of Ms. Mayawati and the "elephants" erected on government expense be covered, it could not be said that the important criteria, in paragraph 181 (5) in Balwant Singh Chaufal's case (supra) that "The Courts should be fully satisfied that substantial public interest in involved before entertaining a PIL" was at all disclosed by the petitioner for filing the writ petition. Rather as explained by the Election Commission in its impugned order dated 8.1.12 the public interest would be better served in keeping the statues covered during election times, than in keeping the same uncovered so that a level playing field for all contesting parties could be ensured.
The petitioner's contention that his fundamental right to practice the Hindu faith is violated by the Election Commission's order dated is also bereft of any substance.
Article 25(1) of the Constitution on which the petitioner bases his contention that his fundamental right to profess and practise his faith has been infringed, reads as follows:
"25 (1) Subject to public order, morality and health and to the other provisions of this part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion."
A perusal of Article 25(1) shows that the provision itself permits putting restrictions on the rights of a person to profess or practice a religion, on the grounds of public order, morality, health or the other provisions of Part III of the Constitution.
If in order to ensure that candidates from various political parties who were contesting the elections get a level playing field the statues of the elephant and Ms. Mayawati built on public expense are directed to be covered by the Election Commission during election time, it could only be considered to be an act for furthering public order and morality, and this restriction would also be consistent with the right to equality mentioned in Part III, and thus the direction would fall within the acceptable limitations which may be imposed on the fundamental right to freedom of religion.
In Acharya Maharajshri Narendra Prasadji Anand Prasadji Maharaj v State of Gujarat, AIR 1974 SC 2098, the Supreme Court has upheld the right of the State to bring out a law in exercise of powers under Article 31(2), to compulsorily acquire property belonging to a religious institution for agrarian reform. It was held in the said case, that "no rights in an organized society can be absolute. Enjoyment of one's rights must be also consistent with the enjoyment of rights also by others." Further it was held that
"..... A particular fundamental right cannot exist in isolation in a water tight compartment. One fundamental right of a person may have to co-exist in harmony with the exercise of another fundamental right by others and also with reasonable and valid exercise of power by the State in the light of the Directive Principles in the interests of social welfare as a whole. The Court's duty is to strike a balance between competing claims of different interests."
In Church of God (Full Gospel) in India v K.K.R.M.C. Welfare Association, AIR 2000 SC 2773 it was held that the use of loudspeakers by a particular community at the time of prayers is subject to the provisions of the Environment (Protection) Act, 1986. No religion preaches that prayers are to be performed through loudspeakers. Any such practice should not affect the rights of others. The provision of Article 25 is subject to the provisions of Article 19(1)(a) of the Constitution, and on a true and proper construction of the provision of Article 25(1), read with Article 19(1)(a) of the Constitution, it cannot be said that a citizen should be coerced to hear any thing which he does not like or which he does not require.
Furthermore there is no material for indicating that the public or any particular section of the the public were looking at the statues erected on the parks at Lucknow, Noida and Gautam Budh Nagar as religious symbols, which they were actually worshiping. Thus the erection of the statues by the State government there could be considered a purely secular activity. Hence any direction to cover the same by the Commission could not be said to be an interference with the essential or integral part of the faith or practices of the followers of the Hindu faith.
In Smt. Indira Nehru Gandhi Vs. Raj Narain, AIR 1975 SC 2299, using of a cow and calf as an electoral symbol by the Congress (R) party was not held to be a corrupt practice within the meaning of section 123(3) of the Representation of People Act, 1951. It was observed in the said decision as under:
"A cow is not a religious symbol. The use of pictures of this excellent and useful animal is so frequently made today for commercial purposes other than religious that the representation of a cow and calf cannot except in some special and purely religious contexts be held to have a religious significance."
A fortiori the said principal will apply to the present case as well, as we see images of "elephants" are widely prevalent. It is also commercially useful. The domesticated elephant is useful for uprooting trees or carrying logs of wood etc., or for help penetrating dense jungles by animal safaris. In earlier times the elephant was also put to warlike use during battles. Now its survival is being threatened by destruction of its habitats. We see images of the elephant in magazines depicting efforts to save the animal from extinction. If the cow was considered a commercially useful animal in Indira Nehru Gandhi v Raj Narain and of religious significance only in a purely religious context, this observation would apply with greater force in the case of the elephant which is normally not worshipped, except in some purely religious contexts, usually as Lord Ganesha, who has an Elephant's head (trunk) and a human body, and in normal course the images or statues of "elephants" do not have any religious significance. The proviso to Section 123(3) of the Representation of People's Act, 1951, (which declares use of religion to appeal to voters to be a corrupt practice) and which was noted in Indira Nehru Gandhi v Raj Narain (supra) itself makes an exception by providing "that no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purposes of this clause." The existence of this provision and its approval by the Apex Court in Indira Nehru Gandhi v Raj Narain's case should also allay Sri Ravi Kant's apprehensions that if the 'elephant' symbol is given religious significance, the BSP could run the risk of losing the symbol on that account.
So far as the petitioner's contention that in paragraphs 42 and 43 of the Election Commission's order dated 11.10.2010 as the Commission has observed "that on the facts available to the Commission and records adduced by the parties, the Commission is not in a position to gauge the impact of the above statues, and the extent of such impact, on the minds of the electors," hence the Election Commission ought not to have directed covering up the statues of the elephants during elections, the said argument does not commend itself to us. The above quoted observation was made in the context of the Commission's refusal to accept the contention of the petitioners before it to withdraw the BSP's election symbol 'elephant.' In the order the Commission had also noted that "it was in the dark" as the State government, inspite of a specific request to it had refused to furnish details regarding the number of statues and the expenses incurred on their construction. To us it appears that it may have been in the context of a long term perspective, when the notification for holding the election had not even been issued that the Commission has held that it was not in a position to adjudge the impact of the statues on the minds of the voter. The Commission has also given other good reasons for declining the request of the petitioners to withdraw the symbol given to the BSP by holding that even if the statues had been erected by public funds and not by the party, but as the State government has the specific sanction of the State legislature, which has passed valid Appropriation Acts, the Commission could therefore not go into the question of expenditures having been incurred for installing the statues. Reliance was also placed on Ram Jawaya Kapoor Vs State of Punjab, [1955(2) SCR 555 and Bhim Singh v Union of India, 2010(5) SCC 538 that the actions of the government can only be assailed when the act is unconstitutional and not when only the expenditure is unwise. Hence it was observed that it was not for the Commission to go into "the question whether the BSP has misused its position as the ruling party in getting the Ms Mayawati and 'elephant' installed with public funds, during the non-election period." Further the Commission would be bound by any orders that the High Court or Supreme Court which were already seized of the matter would pass in the petitions before them. Another reason for declining the request for freezing symbol was that the BSP being a recognized national political party being a recognized national political party had been assigned the symbol "elephant" in all States other than Assam under the Elections Symbols (Reservation and Allotment) Order, 1968 (for short the 'Symbols Order'). The grant and recognition of symbols is based on paragraphs 6A, 6B and 16 A of the Symbols order, that the party polls the required number of votes as required under the said paragraphs, and does not commit any breaches of the Model Code of Conduct laid down by the Election Commission. The Commission observed that it was nobody's case that the party's poll performance did not measure up to the required standards. It was also observed that there was no clear evidence before it that the BSP had violated the Model Code of conduct. Moreover the order observed that before withdrawal of a party's symbol, "the Commission has to carefully weigh the implications which such withdrawal of symbol may have and cause confusion in the minds of millions of electors, apart from members, supporters and workers of the party, across the country, who identify the party with the symbol 'elephant,' on account of the actions of one of the State Governments."
It was in this background that the Election Commission refused to freeze the party's symbol on a permanent basis by its order dated 11.10.11. However the direction in exercise of powers under Article 324 to cover the statues of 'elephants' and of the incumbent Chief Minister erected at government expense after the election notification has been issued and the dates for the elections announced has to be understood in the background that at that stage there is a compelling obligation on the Election Commission in ensure the conduct of free and fair elections and the purity of the electoral process and that no no party gets any undue advantage over other contestants.
It may be noted that in the impugned order of the Election Commission dated 8.1.2012 it was further observed that the petition filed before the Election Commission in the year 2009 praying inter alia for freezing of the symbol "elephant" allotted to the Bahujan Samaj Party, on the ground that the statues of elephants and the statues of MS. Mayawati, put up at the expense of the government in various public places in different parts of the State jeopardized the concept of free and fair elections. The Commission further held that at the time of elections, it would, no doubt, take appropriate steps and measures to see that the statues of Ms. Mayawati and the BSP's symbol 'elephant' do not disturb the level playing field and give undue advantage to BSP vis--vis other political parties.
It is noteworthy that neither the petitioner nor the BSP itself has chosen to specifically assail the part of the direction in its order dated 11.10.2011 which was to the following effect: "However, at the time of elections, the Commission would, no doubt, take appropriate steps and measures to see that the statues of Ms. Mayawati and BSP's symbol 'elephant' do not disturb the level playing field and give undue advantage to BSP vis-avis other political parties."
The direction to keep the statues of Ms Mayawati and the 'elephants' covered in the impugned order dated 8.1.2012 appears to be a direct consequence of the aforesaid observation in the earlier order dated 11.10.10.
Significantly, the order dated 11.10.2010 was challenged before the Supreme Court in Writ Petition (Civil) No. 266 of 2009 (Ravi Kant and another Vs. State of UP and others), but the Supreme Court had also not stayed that part of the order, which provided that the Commission would take appropriate steps and measures to see that the statues of Ms. Mayawati and BSP's symbol 'elephant' do not disturb the level playing field and give undue advantage to BSP vis-a-vis other political parties at the time of elections.
The Supreme Court had observed in its order dated 13.12.2010 in Writ Petition (Civil) No. 266 of 2009 that the subject matter of the writ petition under Article 32 of the Constitution of India overlaps with the pending petition before the Allahabad High Court. The writ petition was directed to remain pending in the Supreme Court, but it was made clear that pendency of the writ petition in the Supreme Court would not pre-empt the Allahabad High Court from deciding the matter at the earliest.
Learned counsel for the Election Commission points out that the High Court has also not stayed any part of the order dated 11.10.2010 passed by the Election Commission.
It was further observed that at the time of general elections to the House of the People in 2009, the Commission had issued instructions dated 28.3.2009 to the effect that no photographs of the Prime Minister, Chief Minister, Ministers and other political functionaries should be displayed in any government/public building. The Commission had also clarified in its subsequent circular dated 1.4.2009 that the underlying intention of the instructions in the letter of the 28th of March, 2009 was that the images of political functionaries, who have deep influence on the minds of the electors and many of whom are still active in public life should not be displayed in government buildings and premises as that would have the effect of disturbing the level playing field vis-a-vis the political functionaries of other parties and candidates. It was made clear that while the photographs of Prime Minister, Chief Ministers, Ministers and other political functionaries should not be displayed, the instructions did not apply with regard to the images of national leaders, poets and prominent historical personalities of the past, the President of India and the Governors.
The Commission, after taking all the aspects of the matter into consideration and considering the need to ensure a level playing field for all political parties and candidates in the interest of free and fair elections, was directing that each and every statue of elephant and each and every statue of Ms. Mayawati, erected in public places in the State of Uttar Pradesh at government expense should be suitably covered so as to ensure that these statues do not influence the minds of the electors, by providing undue advantage to the ruling party and disturbing the level playing field during the current general elections to the Uttar Pradesh Legislative Assembly. The expense for covering the statues were to be borne by the local authorities under whose jurisdiction the various statues had been erected. The whole work of veiling the statues was to be completed by 5.00 PM on 11.1.2012.
Another fallacious argument was raised by the petitioner to the effect that cycles should be banned or that hands or other objects be covered which constitute election symbols of one or the other party or contestant. It may be mentioned that the Election Commission assigns symbols of common objects to contestants so that the voters (especially where they are illiterate) have a clear idea of the party or candidate that they wish to support. What the Election Commission has sought to do by the impugned order is only to ensure that the other candidates have a level playing field and that there is no undue projection at public expense by creating greater than life size statues of political functionaries or symbols of the party. The Commission also observed that the issue as to whether the trunk of the elephant was upward or downward in the statues was not material for helping the voters decide which party they should vote for, if they were simply instructed to put their vote on the symbol 'elephant.'
We are, therefore, of the view that the challenge to the maintainability of this petition at the instance of the petitioner which has also been supported by the BSP, has substance and the petition must be dismissed on this ground, as well as on merits, for the reasons stated hereinabove.
However, so far as the other contention of Shri Ravi Kant, Senior Advocate for the proposed intervenor, BSP that this petition has been filed in a mala fide manner and that the petitioner has been set up by rival political groups, we think that Sri Ravi Kant has not been able to substantiate this submission. While we think that the petitioner may have been misguided in filing this frivolous petition on a misunderstanding of the correct legal position, we see no reason to infer that the petition has been filed at the instance of some other political group for extraneous considerations.
In view of what has been indicated herein above, we find no force in this petition. It is accordingly dismissed with costs.