Supreme Court of India
EDAPADDI K. PALANISWAMIversusDHINAKARAN & ORS.
- Citation
- [2019] 3 S.C.R. 200
- Decided
- 7 February 2019
- Disposal
- Disposed off
- Bench
- A M KHANWILKAR
Holding
The Supreme Court vacated its earlier order restraining the Election Commission and directed it to process the application of T.T.V. Dhinakaran and V.K. Sasikala in accordance with the High Court's interim order, with stipulated timelines.
Summary
The Supreme Court considered a miscellaneous application filed by T.T.V. Dhinakaran (respondent No.1) seeking directions to use a common symbol and name for his faction in upcoming elections, while a writ petition challenging the Election Commission's (ECI) decision on the AIADMK party split remained pending before the Delhi High Court. Earlier, the Court had kept the High Court's interim order—allowing the faction to use a symbol— in abeyance and barred the ECI from acting, but the bye‑election was later rescinded. The Court held that the liberty granted in its earlier order permitted the application to be entertained despite the disposal of the Special Leave Petition. It further affirmed that the High Court had jurisdiction to grant interim directions under the Symbols Order when the dispute was sub‑judice, and that the ECI’s plenary powers under paragraph 18 could be exercised similarly. Consequently, the Court vacated its prior direction restraining the ECI, directing the Commission to process the application of Dhinakaran and V.K. Sasikala in accordance with the High Court’s interim order, with specific timelines. The application was disposed of without costs.
Issues considered
- Whether the Supreme Court can entertain the miscellaneous application despite the earlier disposal of the Special Leave Petition and the order keeping the High Court's interim order in abeyance.
- Whether the High Court possessed jurisdiction to grant interim directions for allocation of a common symbol to a faction of a recognized party while the dispute was sub‑judice before the Election Commission.
- Whether the Election Commission can be restrained from pronouncing its order under paragraph 18 of the Symbols Order, 1968, when the dispute is pending.
- Whether a splinter faction must first register under Section 29A of the Representation of the People Act, 1951, before seeking a common symbol.
- Whether the Supreme Court should vacate its earlier direction and direct the Election Commission to act on the application of the faction.
Legislation cited
- Election Symbols (Reservation and Allotment) Order, 1968s. paragraph 12, s. paragraph 13, s. paragraph 15, s. paragraph 18
- Representation of the People Act, 1951s. 29A
Subjects
Election lawPolitical party symbolElection Commission of IndiaInterim reliefSplit partyRepresentation of the People ActSymbols Order 1968Sub judiceHigh Court interim orderSpecial Leave Petition
Judgment
200 [2019]REPORTS
SUPREME COURT 3 S.C.R. 200 [2019] 3 S.C.R.
A EDAPADDI K. PALANISWAMI
v.
T.T.V. DHINAKARAN & ORS.
(M.A. No. 31)
B in
(Special Leave Petition (Civil) No. 7258 of 2018)
FEBRUARY 07, 2019
[A. M. KHANWILKAR AND AJAY RASTOGI, JJ.]
C
Election Laws – Use of name/symbol of political party, when
each faction of registered recognised State political party claimed
to be real party and such a dispute is sub judice before the High
Court – In the instant case, Election Commission of India (ECI) had
accepted the claim of respondent Nos.4 to 6 and the SLP petitioner-
D EKP that the group led by respondent No.4-EM was entitled to use
the name of the original registered and recognized state political
party and rejected the claim of respondent No.1 and respondent
No.3-VKS that the group led by VKS was the real group and was
entitled to use name and symbol of the party AIADMK – Writ petition
filed by respondent No.1 before the High Court to assail the decision
E of the ECI – The said writ petition is still pending – Meanwhile, as
elections in the State of Tamil Nadu were announced, respondent
No.1 and the group of which he was a member moved an interim
application before the High Court in the pending writ petition for
permission to use a suitable name for carrying out its political
F activities – High Court allowed the same by order dated 9th March,
2018 – Aggrieved by the said decision, the SLP petitioner-EKP
espousing the cause of the group led by EM, filed SLP – When the
SLP, along with connected cases, was taken up for hearing on 28th
March, 2018, amongst others, it was pointed out to the Court that
the impending elections to the local bodies were countermanded
G and as a result, the basis for instituting the interim application by
respondent No.1 did not exist – In that view of the matter, the interim
order passed by the High Court was kept in abeyance with the
directions that the ECI shall not pronounce its order and granted
liberty to the parties to approach this court in case of any notification
H
200
EDAPADDI K. PALANISWAMI v. T.T.V. DHINAKARAN 201
for an election – Accordingly the SLP was disposed of – Respondent A
No.1 filed the instant Application asserting that the bye-election
was notified by the ECI on 31st December, 2018 and the date of
polling was fixed for 28 th January, 2019 – SLP petitioner and
respondent Nos.4 to 6, as well as respondent No.2, raised a
preliminary objection about the maintainability of this application
B
– Held: Respondent No.1 had no other option but to present the
instant application because of the publication of the election
schedule by the ECI, in light of the liberty given by this Court by
order dated 28th March, 2018 – As liberty was given to the parties
even though the SLPs were ostensibly disposed of, not entertaining
this application, only because the order dated 28 th March, 2018 C
records that SLPs are disposed of, would be completely trivializing
the spirit of the liberty given to the parties by this Court in the
peculiar fact situation – Respondent No.1 cannot be directed to go
back to the High Court for the relief claimed in this application
because similar relief was already considered by the Single Judge
D
of the High Court on 9 th March, 2018 in favour of the group
represented by the applicant – The directions given by the Single
Judge in the said order had not been independently challenged by
the ECI by filing SLP before this Court – Besides, it may not be
appropriate for the Division Bench to re-visit the matters in issue
dealt with in the judgment and interim order passed by the Single E
Judge dated 9th March, 2018, which was kept in abeyance by this
Court – No merit in the preliminary objection raised by the SLP
petitioner, respondent Nos.4 to 6 and respondent No.2.
Election Laws – Whether a faction represented by respondent
no.1-TTVD and VKS which claims to be the real party having support F
of majority of the members at the time of initiation of the dispute
before the ECI and that claim was still pending consideration before
the High Court ought to be compelled to first register itself as a
political party and after following the process of obtaining
recognition could only then set up its claim for allotment of a reserved
symbol and use of name – Held: During the pendency of the writ G
petition, as elections in the State of Tamil Nadu were announced
and respondent No.1 and the group of which he was a member,
wanted to contest the elections, they moved an interim application
before the High Court in the pending writ petition – High Court
H
202 SUPREME COURT REPORTS [2019] 3 S.C.R.
A deemed it appropriate to issue directions to allot common symbol to
the faction represented by respondent no.1 in different constituencies
where they would nominate candidates to contest in ensuing elections
– High Court was conscious of the fact that ordinarily common
symbol can be allotted only to registered recognized political party
and if the ECI could do so in exercise of its plenary powers when
B
the dispute is pending before it, there could be no impediment for
the writ court to pass appropriate directions especially when no
real prejudice would be caused to any other party and the claim
regarding which faction is the real party has still not attained finality
and that would ensure a level playing field in the political sphere
C for the concerned factions – High Court was right in holding that if
ECI considers itself competent to pass interim directions for ensuring
level playing field to both the factions during the adjudication of
the dispute pending before it, there is no reason why, on the same
logic the High Court, being a court of equity, is not competent to do
so when the final decision of the ECI was still pending challenge
D
before it – Representation of the People Act, 1951 – s.29A –
Constitution of India – Art.226.
Election Laws – Powers of Election Commission (ECI) – ECI
has plenary powers and could exercise the same to ensure free and
fair elections – Clause 18 of the Symbols Order predicates the facet
E of such plenary power to be exercised by the ECI – Symbols Order,
1968.
Election Laws – Allocation of common symbols to two faction
when the dispute under the Symbol Order is still pending before the
Election Commission (ECI) – Interim directions regarding allocation
F by the ECI – Permissibility – Held: Once the dispute had been finally
decided by the ECI, the question of invoking powers under
paragraph 18 by it (ECI) would not arise – However, if the dispute
is pending enquiry before ECI or the final decision of the ECI is
sub judice in the proceedings before the constitutional court,
G providing for an equitable arrangement in the interests of free and
fair elections and to provide equal level playing field to all
concerned, would be a just and fair arrangement.
Election Laws – Whether there was any impediment for the
writ court (High Court) to pass appropriate interim direction while
H the validity of the decision of the Election Commission (ECI) is sub
EDAPADDI K. PALANISWAMI v. T.T.V. DHINAKARAN 203
judice before it – Held: High Court was right in holding that for A
doing justice and protecting the interests of all concerned and to
uphold the democratic principles, including for ensuring free and
fair elections, it would be just and proper to continue the interim
arrangement as was directed by the ECI regarding allotment of a
common symbol to the political group represented by respondent
B
no.1 especially when such relief would not cause any prejudice to
any other person or party nor impinge upon the powers of the ECI
– Symbols Order, 1968.
Representation of the People Act, 1951 – s.29A – Allotment
of a common symbol – If the political group is not registered under
s.29A of the 1951 Act and is not recognized as per the provisions of C
Symbols Order, 1968, it may not be entitled to claim allotment of a
common symbol which is reserved for a registered and recognized
State/National political party – Paragraphs 9 to 11 would apply to
such registered and recognized political party which provide for an
option of a reserved symbol – For any other candidate or candidate D
belonging to unregistered or unrecognized party, his claim would
be dealt with under paragraph 12 of the Symbol Order, 1968 – The
closest provision is paragraph 15 of the Symbol Order, which deals
with the powers of the ECI in relation to splinter groups or rival
factions of the political party – But once that dispute is answered
by the ECI and that decision attains finality, the splinter group will E
have no other option but to register itself as a political party and
only after fulfillment of the requirements specified in paragraphs
6A to 6C of the Symbols Order, 1968, as applicable, may be given
recognition as a National or State political party – In the instant
case, the decision of the ECI is sub judice before the High Court F
and the claim of the group or faction of being the original registered
recognized State political party represented by respondent No.1, is
subject to the outcome thereof – Until such time, there is no just
reason as to why the interim arrangement such as ordered by the
ECI in terms of the interim order dated 22 nd March, 2017, as
applicable to the group represented by respondent No.1, ought not G
to continue – The direction issued in terms of order dated 28th March,
2018, to keep the interim order of the High Court dated 9th March,
2018, in abeyance and consequently to restrain the ECI from
pronouncing its order on the application preferred by the political
H
204 SUPREME COURT REPORTS [2019] 3 S.C.R.
A group represented by respondent No.1 needs to be vacated –
However, considering the fact that the hearing on the writ petition
before the Division Bench of the High Court has almost reached at
the final stage, it is deemed appropriate to mould the reliefs in the
following terms: (a) If the writ petition is not finally disposed of by
the Division Bench of the High Court within four weeks from today,
B
the ECI shall process the application of the group represented by
respondent No.1 in terms of the directions given by the High Court
by interim order dated 9 th March, 2018 and issue appropriate
directions within two weeks therefrom (i.e. four weeks plus two
weeks, from today) – (b) In the event, before the expiry of the stated
C period, the ECI intends to issue any Press Note or Notification for
announcing the bye-elections in respect of the vacant Assembly
Constituencies in the State of Tamil Nadu or Parliamentary Elections
for 2019, as the case may be, it shall pass appropriate directions in
compliance with the interim order of the High Court dated 9th March,
2018, within one week from the date of release of such Press Note
D
or Notification and in any case, before the date notified for filing
of the nominations, whichever is earlier – Symbols Order, 1968.
Jyoti Basu and Ors. v. Debi Ghosal and Ors. (1982) 1
SCC 691 : [1982] 3 SCR 318; Shri Sadiq Ali and Anr.
v. The Election Commission of India, New Delhi and
E Ors. (1972) 4 SCC 664 : [1972] 2 SCR 318; Kanhiya
Lal Omar v. R.K. Trivedi and Ors. (1985) 4 SCC 628:
[1985] 3 Suppl. SCR 1 – relied on.
Desiya Murpokku Dravida Kazhagam and Anr. v.
Election Commission of India (2011) 4 SCC 224 : [2011]
F 3 SCR 920 – distinguished.
Madeva Upendra Sinai and Ors. v. Union of India and
Ors. (1975) 3 SCC 765 : [1975] 2 SCR 640; Desiya
Murpokku Dravida Kazhagam and Anr. v. Election
Commission of India (2012) 7 SCC 340 : [2012] 3 SCR
G 1084 – referred to.
Case Law Reference
[2011] 3 SCR 920 distinguished Para 17
[1982] 3 SCR 318 relied on Para 20
H
EDAPADDI K. PALANISWAMI v. T.T.V. DHINAKARAN 205
[1975] 2 SCR 640 referred to Para 25 A
[2012] 3 SCR 1084 referred to Para 29
[1972] 2 SCR 318 relied on Para 35
[1985] 3 Suppl. SCR 1 relied on Para 36
CIVIL APPELLATE JURISDICTION: M. A. No. 31 of 2019 in B
Special Leave Petition (Civil) No. 7258 of 2018.
From the Judgment and Order dated 09.03.2018 of the High Court
of Delhi at New Delhi in C.M. No. 2994 of 2018 in W.P. (C) No. 10728
of 2017.
C
Kapil Sibal, Ashok Desai, Dr. Abhishek Manu Singhvi, Mrs.
Meenakshi Arora, C. S. Vaidyanathan, K.V. Vishwanathan, Guru Krishna
Kumar, Sr. Advs., Gowtham Kumar, Ms. Palak Mahajan, Ms. Diksha
Rai, Amit Anand Tiwari, Vivek Singh, N. Raja Senthoor Pandian, Amit
Bhandari, Swastik Dalai, Harshal Gupta, Ms. Anusha Natrajan, Ms.
Devyani Gupta, Mrs. Mary Mitzy, Sreenivasan, Praveen Samadhanam, D
Mohit Paul, Shashwat Singh, Anirudh Bakhru, Balaji Srinivasan, Siddhant
Kohli, Ms. Pallavi Sengupta, Ms. Garima Jain, Ms. Lakshmi Rao, Ram
Shankar, Harish Shankar Vaidyanathan, Babu Murugavel, Prakash Kumar
Gandhi, Amit Sharma, Dipesh Sinha, Ms. Pallavi Barua, Ms. Ayiala Imti,
Advs. for the appearing parties.
E
The Order of the Court was delivered by
A. M. KHANWILKAR, J. 1. This application for directions
has been filed by respondent No.1 – T.T.V. Dhinakaran (for short,
“TTVD”), in the disposed of special leave petition in view of the liberty
granted by this Court in terms of the order dated 28th March, 2018. F
2. The captioned special leave petition was filed against the
judgment and order dated 9th March, 2018 passed by the Single Judge of
the High Court of Delhi at New Delhi in C.M. No.2994/2018 in Writ
Petition (Civil) No.10728 of 2017. That writ petition has been filed by
respondent No.1 - TTVD to assail the decision of the Election G
Commission of India (for short, “ECI”) dated 23rd November, 2017 -
whereby ECI had accepted the claim of respondent Nos.4 to 6 (namely,
E. Madhusudhanan, O. Pannerselvam and Thiru. Semmalai) and the
SLP petitioner -Edapaddi K. Palaniswami (for short, “EKP”) that the
group led by respondent No.4 - E. Madhusudhanan (for short, “EM”)
H
206 SUPREME COURT REPORTS [2019] 3 S.C.R.
A was entitled to use the name of the original registered and recognized
state political party in the State of Tamil Nadu and Puducherry, namely,
“All India Anna Dravida Munnetra Kazhagam” (for short “AIADMK”)
and its reserved symbol “Two Leaves”; and rejected the claim of
respondent No.1 – TTVD and respondent No.3 – V.K. Sasikala (for
short, “VKS”) that the group led by VKS was the real group and was
B
entitled to the use of name and symbol of the party AIADMK. The writ
petition challenging the said decision of ECI on diverse grounds is still
pending before the Delhi High Court.
3. During the pendency of the writ petition, as elections in the
State of Tamil Nadu were announced and respondent No.1 and the group
C of which he was a member, wanted to contest the elections, they moved
an interim application before the High Court, being C.M. No.2994/2018
in the pending writ petition and prayed for the following reliefs:
“PRAYER
D In view of the aforesaid it is most respectfully prayed that this
Hon’ble Court may kindly be pleased to:
a. Issue a direction to the respondents to permit the group led by
the petitioner and the Respondent No.6 to use a suitable name
for carrying out its political activities, during the pendency of
E the present Writ Petition;
b. Issue a direction to the respondents, permitting/allocating the
group led by the Petitioner herein and the Respondent No.6 to
use the symbol of “Pressure Cooker” for the purpose of Local
Bodies Elections likely to be held in April 2018 or any other
F election, during the pendency of the present Writ Petitions.
c. Pass such further order(s) as it may deem fit and facts and
circumstances of the case.”
4. The said application was contested by the SLP petitioner,
respondent Nos.4 to 6 and respondent No.2 in particular. The learned
G Single Judge who heard the said application was pleased to allow the
same by a detailed judgment and order dated 9th March, 2018. The
operative part of the said judgment reads thus:
“56. For all the aforementioned reasons, I find considerable merit
in the prayer made by the Petitioner and the Application deserves
H
EDAPADDI K. PALANISWAMI v. T.T.V. DHINAKARAN 207
[A. M. KHANWILKAR, J.]
to be allowed. However, keeping in view the nature of the relief A
sought in the Application, while upholding the Petitioner’s right to
seek the use of a common name and symbol by way of an interim
arrangement during the pendency of the Writ Petition, I deem it
appropriate to direct the Respondent No.1/ECI, which has the
necessary expertise to deal with allotment of symbols, to pass an
B
appropriate order permitting the Petitioner and his group of persons
to use a common symbol (preferably “Pressure Cooker” as used
by the Petitioner during the last election for the R.K. Nagar
constituency) and also permit them to use the name of their choice,
after giving them an appropriate hearing.
57. The needful shall be done within three weeks. Needless to C
say the aforesaid directions are being passed without prejudice to
the rights and contentions of the parties in the main petition.
58. The Application is allowed in the above terms, with no order
as to costs.”
D
5. Aggrieved by the said decision, the SLP petitioner EKP
(respondent No.5 in the writ petition) espousing the cause of the group
led by EM, filed a special leave petition in this Court, being SLP(C)
No.7258 of 2018. When the said special leave petition, along with
connected cases, was taken up for hearing on 28th March, 2018, amongst
others, it was pointed out to the Court that the impending elections to the E
local bodies were countermanded and as a result, the basis for instituting
the interim application by respondent No.1 before the High Court did not
exist. In that view of the matter, this Court proceeded to pass the following
order:
“O R D E R F
Heard Mr. Mukul Rohatgi, Mr. C.S. Vaidyanathan, Mr. K.V.
Vishwanathan and Mr. Guru Krishna Kumar, learned senior
counsel appearing for the petitioners and Mr. Ashok Desai, Ms.
Meenakshi Arora and Mr. Amarendra Sharan, learned senior
counsel for the respondents. G
Having heard learned counsel for the parties, we are inclined to
pass the following directions:-
(i) The counter affidavit filed by the present petitioners before
the High Court shall be taken on record and as accepted by
H
208 SUPREME COURT REPORTS [2019] 3 S.C.R.
A learned counsel for the petitioners, no further opportunity shall
be granted for filing a counter affidavit.
(ii) Rejoinder affidavit, if any, be filed by the respondents within
two weeks hence.
(iii) The learned Acting Chief Justice of the High Court is
B requested to constitute an appropriate Division Bench, so that
they can decide the lis in question.
(iv) The Division Bench so constituted is requested to dispose
of the main matter by the end of April, 2018, as this matter
requires immediate attention.
C
(v) The interim order passed by the learned Single Judge
on 9.3.2018 shall remain in abeyance.
(vi) As we have kept the order in abeyance, the Election
Commission shall not pronounce its order.
D (vii) In case there is any notification for an election, liberty
is granted to the parties to approach this Court.
The special leave petitions are accordingly disposed of. Pending
interlocutory applications, if any, shall also stand disposed of.”
(emphasis supplied)
E
6. As aforesaid, taking cue from the liberty granted to the parties
to approach this Court in the event of issuance of any new notification
for election, respondent No.1 has filed the present Miscellaneous
Application on 2nd January, 2019, asserting that the bye-election to fill up
the vacant Assembly Constituency of 168-Thiruvarur has been notified
F by the ECI on 31st December, 2018 and the date of polling has been
fixed for 28th January, 2019. The relief claimed in the present application
reads thus:
“PRAYER
G It is, therefore, most respectfully prayed that in view of the above
submissions and the facts and circumstances of the case, this
Hon’ble Court may be pleased to –
a. Direct the Election Commission of India (Respondent No.2) to
pass an appropriate order permitting the Applicant and his group
to use a common symbol (preferably “Pressure Cooker” as
H
EDAPADDI K. PALANISWAMI v. T.T.V. DHINAKARAN 209
[A. M. KHANWILKAR, J.]
was allotted to the Applicant during the last bye-election for A
the R.K. Nagar constituency) and also permit them to use the
name of their choice in the any upcoming elections during the
pendency of the Writ Petition (c) No.10728/2017 before the
High Court of Delhi at New Delhi.
b. Pass such other and further order or orders as may be deemed B
just and proper by this Hon’ble Court on the facts and in the
circumstances of the case and in the interest of justice.”
7. The SLP petitioner and respondent Nos.4 to 6, as well as
respondent No.2, have raised a preliminary objection about the
maintainability of this application. According to them, the special leave C
petition having been disposed of, this Court has become functus officio
and ought not to pass any positive direction, much less as sought by
respondent No.1 in the present application. It is also pointed out that the
notification issued by the ECI has now been rescinded on 6th January,
2019 and there is no imminent election. It was then contended that
respondent No.1, if so advised, may approach the High Court for D
appropriate directions.
8. We must first answer this preliminary objection. On a plain
reading of the order passed by this Court on 28th March, 2018, to which
one of us (A.M. Khanwilkar, J) was a party, it is crystal clear that this
Court did not examine the merit of the judgment under appeal at all. It E
merely issued directions whilst keeping the interim order passed by the
Single Judge of the High Court in abeyance and relegated the parties
before the High Court for an expeditious hearing of the writ petition by
the Division Bench, with a sanguine hope that the same would be disposed
of before any fresh notification is issued by the Election Commission for F
conduct of election or bye-election to the vacant Assembly Constituency/
local bodies in the State. Indeed, the Division Bench of the High Court
proceeded with the hearing of the writ petition in right earnest from 20th
April, 2018, but it is common ground that the arguments of the parties
are still incomplete despite the matter having been posted and heard on
different dates. We do not wish to dissect the explanation offered by the G
counsel on both sides regarding the reasons for pendency of the writ
petition. The fact remains that the writ petition is still pending before the
Division Bench of the High Court for its final decision and we assume it
to be so due to unavoidable circumstances. Resultantly, the applicant
(respondent No.1) has had no other option but to rush to this Court by H
210 SUPREME COURT REPORTS [2019] 3 S.C.R.
A presenting the instant application because of the publication of the election
schedule by the Election Commission, in light of the liberty given by this
Court vide order dated 28th March, 2018.
9. Notably, this Court has neither adverted to the merits of the
impugned interim order of the Single Judge of the High Court nor has it
B set aside or upheld the same. This Court, instead, merely issued directions
to facilitate early disposal of the main writ petition before any fresh
election programme is announced by the ECI. With that hope, this Court
had kept the interim order of the High Court in abeyance and directed
the Election Commission not to pronounce any order or proceed in
furtherance of the same. It was so directed because there was no
C immediate urgency for passing any order as the election process, which
was earlier announced, stood countermanded. The effect of the order
of this Court, therefore, is to allow the parties to once again approach
this Court in reference to the disposed of SLPs, if the situation so warrants.
As this liberty has been given to the parties even though the SLPs have
D been ostensibly disposed of, not entertaining this application, only because
the order dated 28th March, 2018 records that the special leave petitions
are disposed of, would be completely trivializing the spirit of the liberty
given to the parties by this Court in the peculiar fact situation.
10. The fact that the writ petition is still pending before the Division
E Bench of the Delhi High Court would certainly be no impediment for the
parties to approach this Court in light of the liberty granted to them in
terms of our order dated 28th March, 2018. In the peculiar fact situation
of this case, we cannot direct respondent No.1 - applicant to go back to
the High Court for the relief claimed in this application because similar
relief was already considered by the Single Judge of the High Court vide
F judgment and order dated 9th March, 2018 in favour of the group
represented by the applicant. Notably, the directions given by the learned
Single Judge in the said order had not been independently challenged by
the Election Commission by filing SLP before this Court. Besides, it may
not be appropriate for the Division Bench to re-visit the matters in issue
G dealt with in the judgment and interim order passed by the learned Single
Judge dated 9th March, 2018, which has been kept in abeyance by this
Court. Even if the Division Bench was to consider the relief as claimed
in the instant application, it could do so only within the parameters of
review jurisdiction or modification of the order already passed by the
Single Judge of the same High Court. For, the writ petition has been
H
EDAPADDI K. PALANISWAMI v. T.T.V. DHINAKARAN 211
[A. M. KHANWILKAR, J.]
transferred to the Division Bench for hearing due to the directions given A
by this Court vide order dated 28th March, 2018. The Division Bench,
thus, cannot sit in appeal over the impugned judgment merely because
the transferred writ petition is now being heard by a two-Judge Bench.
Suffice it to observe that we do not find merit in the preliminary objection
raised by the SLP petitioner, respondent Nos.4 to 6 and respondent No.2.
B
11. It was then pointed out that the bye-election to fill the vacant
Assembly Constituency of 168-Thiruvarur has been rescinded vide
Notification dated 6th January, 2019. Further, the ECI was not likely to
issue any new notification in the immediate future. Even so, we deem it
appropriate to examine the relief claimed in the present application
because we have spent invaluable judicial time in hearing both sides and C
moreso because we find force in the submission of respondent No.1 -
applicant that even though the earlier press note has been rescinded by
the ECI, however, in view of the statutory requirements and in discharge
of the constitutional obligation and the statement made before the Madras
High Court in some other proceedings, it will have to notify the bye- D
election(s) to the vacant Assembly Constituencies in the State of Tamil
Nadu, which would be more than one and besides that, Parliamentary
elections are very much in the offing. Therefore, we proceed to answer
the issues on merit canvassed before us and we must do so in view of
the liberty given to the parties in terms of the order dated 28th March,
2018. E
12. It was also urged that respondent No.1 has not made out any
prima facie case warranting interference with the final order passed by
the ECI dated 23rd November, 2017. This submission, in our opinion,
deserves to be stated only to be rejected. It is not in dispute that the writ
petition has been admitted by the High Court which obviously means F
that prima facie case was made out by respondent No.1 (writ petitioner).
Additionally, the hearing of the writ petition has progressed on several
dates since 20th April, 2018 before the Division Bench, which itself pre-
supposes that formidable issues have been raised by the writ petitioner,
requiring serious consideration by the High Court. G
13. Before we advert to the rival submissions on the merits of the
issue arising from the judgment of the High Court dated 9th March, 2018,
it would be apposite to highlight the basis on which the learned Single
Judge of the High Court gave relief to the writ petitioner (respondent
No.1 - applicant). The judgment of the learned Single Judge of the High H
212 SUPREME COURT REPORTS [2019] 3 S.C.R.
A Court is very exhaustive and adverts to all the relevant provisions and
the reported and un-reported decisions relied upon by both sides. Having
considered the same, the High Court proceeded to opine that none of
the decisions cited at the Bar actually dealt with the question that arises
for consideration in the present case. The question in the present case is
not whether an unregistered and unrecognized group can seek allotment
B
of a reserved symbol under the Election Symbols (Reservation and
Allotment) Order, 1968. However, the real question is whether a faction,
represented by respondent No.1 – TTVD and VKS which claims to be
the real party having support of majority of the members at the time of
initiation of the dispute before the Election Commission, and that claim
C was still pending consideration before the High Court, ought to be
compelled to first register itself as a political party and after following
the process of obtaining recognition could only then set up its claim for
allotment of a reserved symbol and use of name.
14. The High Court, taking cue from the interim order dated 22nd
D March, 2017, passed by the Election Commission during the pendency
of the subject dispute before it, observed that if such arrangement
could be directed by the Election Commission when the dispute was still
pending before it, there should be no impediment for the writ Court,
which is also a court of equity, to issue similar or appropriate order
during the pendency of the writ petition before it, considering the fact
E that the decision of the Election Commission was still subject matter of
challenge. The High Court also drew analogy from the decision of the
Election Commission vide order dated 19th December, 1997 in Rashtriya
Janata Dal’s application for its recognition as a National Party and decision
dated 27th March, 2009 of this Court in Desiya Murpokku Dravida
F Kazhagam and Anr. Vs. Election Commission of India, bearing WP(C)
No.532/2008 and order dated 27th April, 2009 in Viduthalai Chiruthaigal
Katchi Vs. Election Commission of India, bearing WP(C) No.177/2009,
wherein direction was issued to the Election Commission of India to
allot common symbols to the registered unrecognized political parties as
an interim measure for the ensuing elections. The High Court also noticed
G that although at the time of institution of the dispute before the Election
Commission, the support received by the rival factions from the legislative
wing of AIADMK was that - 12 out of 134 MLAs of the AIADMK
supported the faction led by respondent No.5 – OP while 122 MLAs
and 37 out of 50 MPs of AIADMK supported the faction represented
H
EDAPADDI K. PALANISWAMI v. T.T.V. DHINAKARAN 213
[A. M. KHANWILKAR, J.]
by respondent No.1 – TTVD. But by the time the dispute was decided A
by the ECI, admittedly, respondent No.1’s faction still enjoyed the support
of 6 MPs and 20 MLAs and other party members as noticed by the
Election Commission. The High Court further noted that ECI in exercise
of its plenary powers had granted relief during the pendency of the dispute
to the faction represented by respondent No.1 – TTVD in the interest of
B
free and fair elections and healthy growth of democracy and keeping in
mind past instances, such as the case of Rashtriya Janata Dal. On that
basis, the High Court deemed it appropriate to issue directions to allot
common symbol to the faction represented by respondent No.1 – TTVD
in different constituencies where they would nominate candidates to
contest in the ensuing elections. Notably, the High Court was conscious C
of the fact that ordinarily, common symbol can be allotted only to registered
recognized political party. The Court finally observed that if the Election
Commission of India could do so in exercise of its plenary powers when
the dispute is pending before it, there could be no impediment for the
writ court to pass appropriate directions, especially when no real prejudice
D
would be caused to any other party and the claim regarding which faction
is the real party has still not attained finality. That would ensure a level
playing field in the political sphere for the concerned factions.
15. According to the SLP petitioner, respondent Nos.4-6 and
respondent No.2, there is no provision in the Symbols Order to allot a
common symbol to a group that is not even registered as a political E
party. The power of the Election Commission to issue instructions and
directions in terms of paragraph 18 cannot be invoked in the fact situation
of the present case and moreso because the Commission has already
decided the dispute between the two factions vide order dated 23rd
November, 2017. As the dispute has been finally decided by the F
Commission, the question of passing equitable order which would be in
the teeth of the Symbols Order cannot be countenanced. It is urged that
the benefits of being a registered political party and/or registered
recognized political party are well defined and upon registration and
recognition, the parties have to follow certain norms and discipline. The
political outfit such as represented by respondent No.1 would enjoy all G
the benefits of a registered recognized party without discharging
corresponding obligations and liabilities in that regard. Further, granting
any relief to respondent No.1 would result in more such outfits insisting
for similar relief of allotment of a common symbol without complying
H
214 SUPREME COURT REPORTS [2019] 3 S.C.R.
A with the statutory requirements and would set a bad precedent, besides
entailing in rendering the provisions of the Symbols Order redundant.
Further, the proceedings before the High Court not being a statutory
appeal, cannot be treated as continuation of the proceedings of the
Election Commission so as to continue the interim arrangement directed
by the Election Commission vide order dated 22nd March, 2017. Moreover,
B
respondent No.1 cannot insist for a particular name or symbol and if that
request is acceded to, it would create enormous confusion amongst the
voters, impinging upon the conduct of free and fair elections.
16. Thus, the principal argument of the SLP petitioner(s), respondent
Nos.4-6 and respondent No.2, is that issuing direction as sought by
C respondent No.1, would result in directing the ECI to do something
contrary to the provisions contained in the Election Symbols (Reservation
and Allotment) Order, 1968. This argument, in our opinion, has been
rightly negatived by the High Court on the logic that if ECI considers
itself competent to pass interim directions for ensuring level playing field
D to both the factions during the adjudication of the dispute pending before
it, there is no reason why, on the same logic the High Court, being a
court of equity, is not competent to do so when the final decision of the
ECI was still pending challenge before it. We also agree with the High
Court that the reported and unreported decisions pressed into service by
the SLP petitioner and the contesting respondents, dealt with cases where
E the political party was already registered but not recognized. Similarly,
the policy propounded by the Election Commission in Rashtriya Janata
Dal, decided on 19th December, 1997, would govern cases in which a
final decision is already taken by the Election Commission on the
application of the concerned political group for recognition as a National/
F State Party, which was formed as a result of a split in the recognized
National or State party. In such cases, it has been decided that the ECI
would not straightaway recognize the split faction merely on the ground
that it is a break-away or a splinter group of such registered recognized
party and such group enjoyed the support of the MPs or MLAs. Whereas,
the new party must get itself registered under Section 29A of the
G Representation of the People Act, 1951, (for short “1951 Act”) contest
general election on its own manifesto, policies and programmes and obtain
a mandate from its electorate for its recognition in terms of paragraphs
6 and 7 of the Symbols Order. Indeed, that dispensation may have to be
followed by respondent No.1, if his challenge to the decision of the Election
H
EDAPADDI K. PALANISWAMI v. T.T.V. DHINAKARAN 215
[A. M. KHANWILKAR, J.]
Commission is finally rejected and/or answered against the group A
represented by him. Until such time, respondent No.1 – writ petitioner
could legitimately pursue his claim before the High Court/Supreme Court
that his group represents the real political party (AIADMK) which was
earlier registered and recognized.
17. Reliance was placed on the decision of Desiya Murpokku B
Dravida Kazhagam and Anr. Vs. Election Commission of India1 to
contend that even though initially this Court granted interim relief to the
writ petitioner, it eventually realized that granting such interim relief had
resulted in avoidable confusion and made it unworkable for the ECI for
the smooth conduct of the elections. In paragraphs 27 to 29 of the judgment
this Court observed thus: C
“27. When the interim arrangements were made on 27-3-2009,
the registered unrecognised political parties before the Court were
only three in number, whereas presently many others have joined
the bandwagon. What we are required to consider at this stage is
whether despite the above, any prejudice would be caused to any D
of the stakeholders in the election process, if such prayer was
allowed. It would certainly be to the advantage of the registered
unrecognised political parties if they were able to put up candidates
on a common symbol. On the other hand, if all registered
unrecognised political parties were to be provided with a common E
symbol, prima facie, it would render the provisions of the Election
Symbols Order, 1968, completely unworkable and destroy the very
object it seeks to achieve.
28. Having regard to the aforesaid two possibilities, we are not
inclined to make any interim arrangement similar to that made on F
an earlier occasion. The earlier interim arrangement was possible
on account of the lesser number of parties, but in the present
circumstances, the same will not be workable in view of the number
of candidates who are likely to contest the elections and are
required to be provided with free symbols in each constituency.
G
29. However, while we are not inclined to make any interim
arrangement regarding the allotment of election symbols for the
forthcoming General Assembly Elections, we make it clear that
this is only a tentative view, which shall not, in any way, affect the
final outcome of the pending writ petitions and special leave
1
(2011) 4 SCC 224 H
216 SUPREME COURT REPORTS [2019] 3 S.C.R.
A petitions. We also make it clear that this order will not prevent the
Election Commission from considering any representation that may
be made by the political parties and from accommodating their
prayer for a common symbol, to the extent practically possible.”
18. Notably, this was a case where the registered unrecognized
B political party had sought relief regarding allotment of a common symbol
for the candidates to be nominated by the party during the ensuing
elections. Suffice it to observe that it was not a case where each faction
of the registered recognized State political party claimed to be the real
party and such a dispute was sub judice before the High Court, as is
the fact situation in the present case. The fact that the writ petition
C cannot be stricto sensu considered as continuation of proceedings of
the Election Commission, nevertheless it is open to the High Court to set
aside the final decision of the Election Commission and including to pass
appropriate interim directions during the pendency of writ petition before
it.
D 19. Be that as it may, in the present case, when the matter was
pending before the Election Commission, it had passed interim order to
ensure level playing field to both the factions of AIADMK. The relevant
extract of the order dated 22nd March, 2017 reads thus:
“10. The Commission, at the outset of the hearing itself, had told
E all the parties that it would not go into the question of the
appointment of respondent No.1 as General Secretary of the party,
and that the present hearing would be confined only to the question
of allotment of the reserved symbol of the party to its candidate at
the current bye-election from 11-Dr. Radhakrishnan Nagar
F Assembly Constituency, for which the nominations would close
by 03.00 pm tomorrow (23rd March, 2017). Thus, for the time
being, the Commission is concerned only with the limited aspect
of use of the said symbol ‘Two Leaves’ reserved for the party in
the said bye-election from 11-Dr. Radhakrishnan Nagar assembly
constituency.
G
11. From the foregoing, it would be apparent that the examination
and analysis of voluminous documents and huge number of
affidavits filed by both the groups in support of their respective
claims would require considerable time as both the groups have
pointed out several discrepancies and legal infirmities in those
H individual affidavits. A deeper examination and more closer look
EDAPADDI K. PALANISWAMI v. T.T.V. DHINAKARAN 217
[A. M. KHANWILKAR, J.]
would also be required to the various provisions of the party A
constitution on which both the groups relied to buttress their
submissions on factual and legal basis. No one would grudge the
fact that it is almost humanly impossible to study all the aforesaid
records running into more than 20,000 pages and to analyze the
oral submissions made by the learned counsels for more than six
B
hours continuously, and then come to a definite finding or conclusion
on the disputed questions of facts and law. After the close of the
hearing at about 05.00 p.m. today, any hasty decision in a matter
of a few hours before the commencement of the nominations
process at 11.00 a.m. tomorrow (23rd March, 2017) may lend to
an erroneous conclusion or finding prejudicially affecting the rights C
and interests of either or both the groups. Furthermore, the learned
counsel for the petitioners have also orally submitted that they
have collected and are in the process of collecting more individual
affidavits from the members of the party at various organizational
layers and wings of the party for the submission whereof they
D
require some more time. It would not be fair in the interest of
equity, justice and fair play – in action to deny them the opportunity
of doing the needful in the matter, as prayed for.
12. Having regard to the above facts and circumstances and the
practical difficulties in evaluating and adjudicating upon the huge
evidence running into more than 20,000 pages adduced by both E
the parties – that too filed late in the evening yesterday (21st March,
2017) – and the oral submissions made by their learned senior
counsels, the Commission is not in a position to give any final
decision at the present juncture in the short time available mentioned
above. Consequently, the Commission is left with no other F
option in these compelling circumstances but to make an
interim order which may be fair to both the contending
groups in order to place both the rival groups on even keel
to protect their rights and interests and going by the past
precedents in such cases, the Commission hereby makes
the following interim order, purely for the purposes of the G
current bye-election from 11-Dr. Radhakrishnan Nagar
assembly constituency in Tamil Nadu, pending the final
determination of the dispute raised by the petitioners in
their petition dated 16th March, 2017 in terms of para 15 of
the Symbols Order:- H
218 SUPREME COURT REPORTS [2019] 3 S.C.R.
A (a) Neither of the two groups led by the petitioners 9Shri
E. Madhusudhanan, Shri O Panneerselvam and Shri S.
Semmalai) and the respondents (Smt. V.K. Sasikala and Shri
TTV Dhinakaran) shall be permitted to use the name of
the party ‘All India Amma Dravidn Munnetra Kazhagam’
simplicitor;
B
(b) Neither of the aforesaid two groups shall also be
permitted to use the symbol ‘Two Leaves’, reserved for
‘All India Anna Dravida Munnetra Kazhagam’;
(c) Both the groups shall be known by such names as they
C may choose for their respective groups, showing, if they so
desire, linkage with their parent party ‘All India Anna
Dravida Munnetra Kazhagam’, and
(d) Both the groups shall also be allotted such different
symbols as they may choose from the list of free symbols
D notified by the Election Commission for the purposes of
the current bye-election from 11-Dr. Radhakrishnan Nagar
assembly constituency in Tamil Nadu.
Accordingly, both the groups are hereby directed to
furnish latest by 10.00 a.m. tomorrow (23rd March, 2017):
E (i) the names of their groups by which they may be
recognized by Commission; and
(ii) the symbols which may be allotted to the candidates set
up, if any, by the respective groups. They may indicate the
names of three free symbols in the order of their preference,
F anyone of which may be allotted to their candidates by the
Commission.
13. Further, the both the above referred groups are allowed a
further and the final opportunity of adducing all such documents
and affidavits on which they propose to rely on their respective
G claims, latest by 17th April, 2017 (Monday). They may also take
notice that the matter will be further heard by the Commission on
a date to be intimated later.
ORDERED ACCORDINGLY”
(emphasis supplied)
H
EDAPADDI K. PALANISWAMI v. T.T.V. DHINAKARAN 219
[A. M. KHANWILKAR, J.]
20. Indeed, allotment of an election symbol cannot be claimed as A
a fundamental right as much as contesting election is not, as observed in
Jyoti Basu and Ors. Vs. Debi Ghosal and Ors.2. It is a statutory
right. It is also well settled that the Election Commission has plenary
powers and could exercise the same to ensure free and fair elections.
Clause 18 of the Symbols Order predicates the facet of such plenary
B
power to be exercised by the Election Commission. Clause 18 reads
thus:
“18. Power of Commission to issue instructions and directions.
The Commission, may issue instructions and directions-
(a) for the clarification of any of the provisions of this Order. C
(b) for the removal of any difficulty which may arise in relation to
the implementation of any such provisions; and
(c) in relation to any matter with respect to the reservation and
allotment of symbols and recognition of political parties, for which
this Order makes no provision or makes insufficient provision, D
and provision is in the opinion of the Commission necessary for
the smooth and orderly conduct of elections.”
21. The Election Commission in the past has exercised plenary
powers under paragraph 18 for issuing interim directions regarding
allocation of common symbols to the two factions, when the dispute E
under the Symbols Order was still pending before it. It was argued that
the Election Commission cannot do so once it had finally decided the
dispute. There is no difficulty in agreeing with the proposition that once
the dispute had been finally decided by the ECI, the question of invoking
powers under paragraph 18 by it (ECI) would not arise. However, if the F
dispute is pending enquiry before ECI or the final decision of the ECI is
sub judice in the proceedings before the constitutional court, providing
for an equitable arrangement in the interests of free and fair elections
and to provide equal level playing field to all concerned, would be a just
and fair arrangement.
G
22. Assuming that the provisions of the Symbols Order do not
predicate the nature of directions that may have to be issued by the ECI,
nothing prevents the ECI to exercise its expansive and plenitude of
plenary powers under Article 324 of the Constitution of India to deal
with the situation such as the present one for ensuring conduct of free
2
1982 (1) SCC 691 H
220 SUPREME COURT REPORTS [2019] 3 S.C.R.
A and fair elections. That would be moreso when the dispute between the
two factions is still sub judice. Indubitably, exercise of power by the
ECI pursuant to the interim directions of the writ court would be its
constitutional obligation.
23. We find force in the argument of respondent No.1 (applicant)
B that in the event the group to which he belongs gets itself registered as a
political party, that step will be fraught with several difficulties. First,
recognition does not follow registration. For that, the political party will
have to fulfill all the requirements specified in the Symbols Order. That
will be a long drawn process. Second, without recognition the registered
political party cannot get a common election symbol. Third, it may not be
C just and fair to ask the splinter group to give up its claim of a real political
party until the dispute is finally settled by the court of competent
jurisdiction, which would be the consequence of seeking registration.
Fourth, the elected representatives who are members of the group, may
have to face the risk of incurring disqualification because of giving certain
D declarations whilst applying for registration of a new political party.
Resultantly, an interim arrangement which would be just and fair and not
cause any prejudice, whatsoever, to the other group which has been
presently recognized by the ECI as the real political party, namely,
AIADMK, is imperative.
E 24. To buttress the argument that the ECI has wide powers to
provide for an equitable arrangement for ensuring free and fair elections,
reliance is placed on the interim order passed by the Election Commission
dated 17th January, 2000, in the case of Janata Dal (United), permitting
the two groups of the National Party to use separate names and symbols,
which reads thus:
F
“Interim Order of the Election Commission of India dated
17th January, 2000
The Commission has also considered the second prayer of the
Janata Dal (United) to permit it to use the name of Janata Dal
G (United) at the ensuing General Election to the Bihar Legislative
Assembly. The Commission has already announced, on 8th January,
2000, the programme for General Election to the Bihar Legislative
Assembly, alongwith the General Elections to the legislative
Assemblies of Haryana, Orissa and Manipur and several Bye-
elections to the House of the People and Legislative Assemblies
H of certain other States. According to the time table for these
EDAPADDI K. PALANISWAMI v. T.T.V. DHINAKARAN 221
[A. M. KHANWILKAR, J.]
General Elections, the first set of notifications in relation to elections A
from 108 Assembly Constituencies in Bihar and 28 Assembly
Constituencies in Manipur are scheduled to issue by the Governors
of the States concerned on 17th January, 2000. With the issue of
these notifications, the process of nomination of candidates by all
parties will commence on that very day and will end on 24th
B
January, 2000. On 24th January itself, the second phase of elections
in Bihar from another 108 Assembly Constituencies as well as
elections from 70 Assembly Constituencies in Orissa and bye-
elections from two Parliamentary and 30 Assembly Constituencies
in various States will also commence. If the Commission takes
any decision finally in the present matter after taking into C
consideration the written submissions which may be filed by the
parties on 18th January, 2000, that decision may be rendered too
close to the last date for making nominations for the first phase of
elections in Bihar and Manipur and the commencement of the
second phase of elections in that State as well as the elections in
D
other States commencing on 24th January, 2000. This will not only
put the parties concerned but also the election authorities down
the line in all the concerned States in a state of confusion and
chaos. In the circumstances, the Commission is of the
considered view that, in the interest of free and fair elections
and equity and fair-play in action, the interim arrangement E
which was made by the interim order dated 7th August, 1999
in the present case should continue till its final disposal.
Therefore, the second prayer of the Janta Dal (United) to
allow to use its name Janata Dal (United) for the purposes
of the ensuing General Elections is also hereby granted.
F
8. Accordingly, it is hereby directed that, until further
orders-
(i) The groups of the Janta Dal led by Shri H.D. Deve Gowda
shall continue to be recognized as a National party, and the
symbol “Kisan Driving Tractor” shall continue to be G
reserved for it;
(ii) The group of the Janta Dal led by Shri Sharad Yadav
shall continue to be recognized as a National Party, and the
symbol “Arrow” shall continue to be reserved for it.”
(emphasis supplied) H
222 SUPREME COURT REPORTS [2019] 3 S.C.R.
A 25. The contesting respondents, however, have placed reliance
on the decision of this Court in Madeva Upendra Sinai and Ors. Vs.
Union of India and Ors.3, which had dealt with the purport of regulation
in the Taxation Law (exceeding to Union Territories) Order, 1970.
Drawing analogy therefrom, it is urged that the powers of the Election
Commission under paragraph 18 cannot be exercised in a manner that
B
would do violence to the primary statutory scheme in relation to allotment
of symbols. The moot question is: when the Election Commission is
competent to pass appropriate directions by invoking paragraph 18 of
the Symbols Order and/or Article 324 of the Constitution during the
pendency of dispute before it, can there be any impediment for the writ
C court to pass appropriate interim directions while the validity of the decision
of the Election Commission is sub judice before it. Indubitably, the High
Court has ample jurisdiction to not only stay the operation of the decision
of the Election Commission but in a given situation also continue the
arrangement provided in terms of the interim order passed by the ECI,
which ECI itself had directed during the pendency of the dispute before
D
it.
26. Be that as it may, in this case the respondent No.1 – writ
petitioner is not praying for the larger relief of stay of the operation of
the final decision of the ECI which would directly affect the group
represented by SLP petitioners, but is content with a direction to the
E Election Commission to continue the interim relief given to his group in
terms of its order dated 22nd March, 2017. We have no hesitation in
agreeing with the High Court that for doing justice and protecting the
interests of all concerned and to uphold the democratic principles,
including for ensuring free and fair elections, it would be just and proper
F to continue the interim arrangement as was directed by the ECI regarding
allotment of a common symbol to the political group represented by
respondent No.1, especially when such relief would not cause any
prejudice to any other person or party nor impinge upon the powers of
the Election Commission.
G 27. Notably, in the case of Kerala Congress (Anti-merger
Group), the Election Commission had permitted the anti-merger group
to use the names and reserved symbols vide communication dated 25th
March, 2011, File No.56/04/2010, which reads thus:
3
(1975) 3 SCC 765 (paragraphs 36-40)
H
EDAPADDI K. PALANISWAMI v. T.T.V. DHINAKARAN 223
[A. M. KHANWILKAR, J.]
“SECRETARIAT OF THE A
ELECTION COMMISSION OF INDIA
Nirvachan Sadan, Ashoka Road, New Delhi-110001.
File No.56/04/2010 Dated:25th March, 2011
To
The Chief Electoral Officer, B
Kerala,
Thiruvanantapuram.
Subject: Allotment of Common Symbol for the General Election
to the Legislative Assembly of Kerala, 2011-regarding.
C
Madam,
I am directed to refer to the letter dated 25.03.2011 on the subject
cited received from the Chairman of Kerala Congress (Anti-
merger Group) and to state that the Commission has decided in
terms of it’s Order dated 24.03.2011, to allot symbol ‘Ceiling Fan’
to ‘Kerala Congress (Anti-merger Group)’ as a reserved symbol D
for the on going General Election to the Legislative Assembly of
Kerala, 2011.
2. All the Returning Officers may be directed to allot the above
symbol exclusively to the candidates set up by Kerala Congress
(Anti-merger Group) on fulfillment of the provisions of para 13 of E
the Election Symbols (Reservation & Allotment) Order, 1968
relating to setting up of candidates by the party and also ensure
that the said symbol is not allotted to any other candidates.
Yours faithfully,
Sd/- F
Pramod Kumar Sharma
(Under Secretary)”
28. Even in the case of Uttarakhand Kranti Dal, separate names
and symbols came to be allotted by the Election Commission to two
groups vide communication No.56/17/2011/PPS-II/Vol.IV, dated 31st G
December, 2011 which reads thus:
“ELECTION COMMISSION OF INDIA
Nirvachan Sadan, Ashoka Road, New Delhi-110001
56/17/2011/PPS-II/Vol.IV Dated:31st December, 2011
H
224 SUPREME COURT REPORTS [2019] 3 S.C.R.
A To
The Chief Electoral Officer,
Uttarakhand,
Dehradun.
Subject: Allotment of names of the two groups of Uttarakhand
B Kranti Dal and allotment of symbols to them for the General
Election to the Legislative assembly of Uttarakhand - regarding.
Sir,
In pursuance of the Commission’s Order dated 27.12.2011, the
two groups of Uttarakhand Kranti Dal led by Sh. Trivendra Singh
C Pawar and Sh. Diwakar Bhatt have submitted applications
regarding the name and symbol for their respective Parties. The
Commission has approved “Uttarakhand Kranti Dal(P)” as the
name of the party led by Sh. Trivendra Singh Pawar and has
allotted the symbol ‘Cup and Saucer’ as the reserved symbol for
D the said party for the current General Election to the Legislative
Assembly of Uttarakhand, 2012.
2. Further, the Commission has also approved “Jantantrik
Uttarakhand Kranti Dal” as the name of the party led by Sh.
Diwakar Bhatt and has allotted the symbol ‘Kite’ as its reserved
symbol for the current General Election to the Legislative
E Assembly of Uttarakhand, 2012.
3. This may be communicated to all election officials in the State.
All the Returning Officers may be directed to allot the symbol
referred to above exclusively to the candidates set up by the above
said parties on fulfillment of the provisions of para 13 of the Election
F Symbol (Reservation & Allotment) Order, 1968 relating to setting
up of candidates by the party and also ensure that the said symbol
is not allowed to any other candidates.
4. The lists of office bearers submitted by Uttarakhand Kranti
Dal(P) and Jantantrik Uttarakhand Kranti Dal are enclosed.
G 5. Copy of this letter may be delivered to the two Parties
immediately.
Yours faithfully,
(PRAMOD KUMAR SHARMA)
UNDER SECRETARY”
H
EDAPADDI K. PALANISWAMI v. T.T.V. DHINAKARAN 225
[A. M. KHANWILKAR, J.]
29. In the case of Desiya Murpokku Dravida Kazhagam and A
Anr. Vs. Election Commission of India, in Writ Petition (Civil) No.
532 of 2008, dated 27th March, 2009, by way of interim arrangement
this Court had initially issued directions to the Election Commission of
India which read thus:
“ORDER B
W.P.(C) No.532/2008,W.P.No(C) No.132/2009 and SLP(C)
Nos.7379-80/2009
W.P.(C) No.532/2008 is filed by a registered unrecognized political
party mainly situated in Tamil Nadu and W.P. No (C) No.132/
2009 is filed by another registered unrecognized political party C
situated mainly in Andhra Pradesh whereas special leave petitions
are filed against the order passed by the division bench of the
High Court of Andhra Pradesh. In all these matters the petitioners
in writ petitions and respondents in the special leave petitions made
an interim prayer. In the State of Andhra Pradesh and the State D
of Tamil Nadu General Elections have already been notified and
in the State of Andhra Pradesh there are elections for Lok Sabha
as well as assembly constituencies and in the State of Tamil Nadu
there are General Elections only for Lok Sabha. By the impugned
order, it has been directed that all registered unrecognized parties
shall be allotted a free symbols for the ensuing elections. E
The “Political Party” has been defined in the Election Symbols
(Reservation and Allotment) Order, 1968, para 2 (h) as an
association or body of individual citizens with the Commission as
a political party under Section 29A of the Representation of the
People Act, 1951. There are national parties, state parties and F
registered unrecognized parties and the symbols are allotted under
the Election Symbols (Reservation and Allotment) Order, 1968.
The national parties as well as state parties have their own common
symbols, whereas the registered unrecognized parties are given
free symbols. Choice of symbols by other candidates and allotment G
are governed as per para 12 of the Election Symbols (Reservation
and Allotment) Order, 1968.
The three political parties who have appeared before us through
their senior counsel are Desiya Murpokku Dravida Kazhagam
(DMDK) party, Praja Rajyam Party and Lok Satta Party and
H
226 SUPREME COURT REPORTS [2019] 3 S.C.R.
A they contended that they would fill candidates in all the 292
assembly constituencies and 42 constituencies of Lok Sabha seats
in Andhra Pradesh and 39 constituencies for Lok Sabha seats in
Tamil Nadu and one Lok Sabha seat in Pondicherry. It is brought
to our notice that these three political parties be given a common
symbol each. While DMDK preferred the symbol of ’Nagara’
B
which is at Sl.no.41 in the list of free symbols, whereas Praja
Rajyam Party preferred the symbol of ’Railway Engine’ which is
at Sl.no.43 in the list of free symbols and the Lok Satta Party
preferred the symbol of ’Whistle’ which is at Sl.no.59 in the list of
free symbols.
C The order passed by the High Court of Andhra Pradesh dated
25.3.2009 is stayed to the extent that the Election Commission
has been directed to give a common symbol to all the candidates
to be filled up by all registered unrecognized parties. Further the
Election Commission may give a common symbol, as indicated
D earlier, to DMDK, Praja Rajyam Party and Lok Satta Party subject
to the general conditions given in paragraph 12 of the Order, 1968,
especially –
‘12(b) if, of those several candidates, no one is set up by any
recognized political party and all are independent candidates,
E but one of the independent candidates is, or was, immediately
before such election a sitting member of the House of the
People, or, as the case may be, of the Legislative Assembly,
and was allotted that free symbol at the previous election when
he was chosen as such member, the Returning Officer shall
allot that free symbol to that candidate, and to no one else.’
F
The candidates to be filled up by these political parties shall submit
prescribed form duly authorised by a particular party. It is made
clear that these three political parties are not entitled to get any
preferential treatment in respect of this symbol and no equity will
be given in future when allotment of regular symbol arise for
G consideration before the Election Commission. This is only an
interim arrangement.
This order is confined to only these three parties.”
As aforesaid, this interim relief was not continued by the subsequent
order (extracted in paragraph 17 above). Further, the said writ petitions
H
EDAPADDI K. PALANISWAMI v. T.T.V. DHINAKARAN 227
[A. M. KHANWILKAR, J.]
and the SLPs were then heard together and finally dismissed on 18th A
April, 2012, 4 upholding the amendments effected by the Election
Commission to the Election Symbols (Reservation and Allotment) Order,
1968, by its Notification dated 1st December, 2000, substituting paragraph
6 thereof with paragraph 6A(i) and (ii) and paragraph 6B.
30. Similarly, in the case of Viduthalai Chiruthaigal Katchi Vs. B
Election Commission of India, in Writ Petition (Civil) No.177 of 2009
vide order dated 27th April, 2009, this Court had issued directions to the
Election Commission for allotting symbol which read thus:
“ORDER
The petition has been filed by Viduthalai Chiruthaigal Katchi, a C
registered unrecognized political party in the State of Tamil Nadu.
It is sponsoring its candidates for Chidambaram and Villupuram
Parliamentary constituencies and the candidates have also
submitted their nomination papers for the same. The petitioner
prays that the party may be given a common election symbol of D
’Star’ in these two Parliamentary Constituencies. The prayer is
opposed by learned counsel appearing for the Election Commission
and it is submitted that the symbol ’Star’ is a reserved symbol of
Mizo National Front, which is a political party in the State of
Mizoram. The petitioner’s counsel states that the Mizo National
Front is not contesting in the Tamil Nadu elections and it is not E
sponsoring any candidates in the State of Tamil Nadu.
In view of the ensuing elections, the petitioner Viduthalai
Chiruthaigal Katchi may be given the symbol ’Star’ for its
candidates at Chidambaram and Villupuram constituencies. It is
made clear that this allotment of symbol will not give any additional F
rights or equities in favour of the petitioner- political party when
the question of allotment of symbol arises. This is purely for the
purpose of the ensuing parliamentary election only. However, if
any other political party or persons seek the symbol ’Star’, the
Election Commission may allot such symbol to any political party/ G
candidate.
The petitioner would be at liberty to communicate this order
telegraphically.
The writ petition is disposed of accordingly.”
4
(2012) 7 SCC 340 H
228 SUPREME COURT REPORTS [2019] 3 S.C.R.
A 31. In the case of Indian National Congress5, after deciding the
dispute between the rival groups in proceeding ascribable to paragraph
15 of the Symbols Order, the splinter group was recognized by the ECI
as a National party and consequently, directions were issued in exercise
of powers under paragraph 18 of the Symbols Order. The same reads
thus:
B
“Accordingly, I hold and decide under paragraph 15 of the Election
Symbols (Reservation and Allotment) Order, 1968, that for the
purposes of that Order, the group led by Shri jagjivan Ram is the
Indian National Congress for which the symbol “Two Buyllocks
with Yoke On” has been reserved.
C
As the group led by Shri Nijalingappa has sufficient number of
members in the House of the People and in the various State
Legislative Assemblies and as that group satisfies and fulfils the
conditions precedent to the recognitioin of a party as National
Party, in exercise of the powers conferred upon the Election
D Commission by paragraph 18 of the Election Symbols (Reservation
and Allotment) Order, 1968, and all other powers enabling it in
that behalf, I hold and decide that the group led by Shri Nijalingappa
should also be recognized as a National party throughout the whole
of India and, necessary instructions and directions will be issued
E to all the concerned election officers in the States and Union
territories of India and a notification will be issued under paragraph
17 of the Election Symbols (Reservation and Allotment) Order,
1968, as soon as that group approaches the Commission for the
reservation of a symbol for it as a National party with a name
which should be at least in some way different from the name
F “India National Congress.”
32. In the case of Shri N. Chandra Babu Naidu Vs. Smt.
Lakshmi Parvati, the Election Commission of India vide order dated
12th March, 1996, however, while considering Issue No.2 answered
the same in the following words:
G
“ISSUE 2: IF ANY ONE OF THE GROUPS IS RECOGNISED
AS THE REAL TELUGU DESAM PARTY’, WHAT IS THE
POSITION OF THE OTHER GROUP? IS IT ENTITLED TO
ANY RELEF?
5
Election Law Reports, Vol. 47 (1974)
H
EDAPADDI K. PALANISWAMI v. T.T.V. DHINAKARAN 229
[A. M. KHANWILKAR, J.]
Now that in accordance with the tests laid down by Supreme A
Court in adjudicating disputes between rival groups of political
parties, and therefore taking into account the majority of members
of the legislative wing and orgnisational wing, this Commission
has held the group led by Shri N. Chandrababu Naidu, as the real
Telugu Desam Party, if, as a consequence of this order, the
B
respondent group led by Mrs. Lakshmi Parvati decides to form a
separate party and seeks its registration under section 29A of the
Representation of the People Act, 1951, the Commission would
be prepared to grant it not only registration under the said Act but
also recognition as a State Party in the State of Andhra Pradesh.
Such a relief would be subject to the group completing the C
formalities of applying to the Commission for Registration as a
political party under section 29-A of the Representation of the
People Act, 1951. They should also furnish positive evidence of
their strength to the Commission, and also documents in relation
to the votes polled by its members in the last General Election to
D
the State Assembly held in 1994 to claim allotment of a reserved
symbol. According such a relief is not only in conformity with the
principles of fair play, justice and equity, but also in line with the
past practice and precedents of the Commission in such cases.
ORDERED ACCORDINGLY”
E
Needless to observe that this was the final decision of the Election
Commission of India and not a case where the order of the Election
Commission was challenged before the High Court and that challenge
was still pending.
33. Indeed, if the political group is not registered under Section F
29A of the 1951 Act and is not recognized as per the provisions of Symbols
Order, 1968, it may not be entitled to claim allotment of a common symbol
which is reserved for a registered and recognized State/National political
party. That is the quintessence. Paragraphs 9 to 11 would apply to such
registered and recognized political party which provide for an option of a
reserved symbol. For any other candidate or candidate belonging to G
unregistered or unrecognized party, his claim would be dealt with under
paragraph 12 of the Symbol Order, 1968. The closest provision is
paragraph 15 of the Symbol Order, which deals with the powers of the
Election Commission in relation to splinter groups or rival factions of the
political party. But once that dispute is answered by the Election H
230 SUPREME COURT REPORTS [2019] 3 S.C.R.
A Commission and that decision attains finality, the splinter group will have
no other option but to register itself as a political party and only after
fulfillment of the requirements specified in paragraphs 6A to 6C of the
Symbols Order, 1968, as applicable, may be given recognition as a National
or State political party.
B 34. In the present case, the decision of the Election Commission
is sub judice before the High Court and the claim of the group or faction
of being the original registered recognized State political party represented
by respondent No.1 (writ petitioner), will be subject to the outcome
thereof. Until such time, there is no just reason as to why the interim
arrangement such as ordered by the Election Commission in terms of
C the interim order dated 22nd March, 2017, as applicable to the group
represented by respondent No.1, ought not to continue.
35. We say so because the efficacy of having a common symbol
for a political group has been underscored in Shri Sadiq Ali and Anr.
Vs. The Election Commission of India, New Delhi and Ors.6 In
D paragraph 21 of the said judgment, this Court observed thus:
“21. xxx xxx xxx It is well known that
overwhelming majority of the electorate are illiterate. It
was realised that in view of the handicap of illiteracy, it might
not be possible for the illiterate voters to cast their votes
E in favour of the candidate of their choice unless there was
some pictorial representation on the ballot paper itself
whereby such voters might identify the candidate of their
choice. Symbols were accordingly brought into use. Symbols
or emblems are not a peculiar feature of the election law of
F India. xxx xxx xxx The object is to ensure that the process
of election is as genuine and fair as possible and that no
elector should suffer from any handicap in casting his vote
in favour of a candidate of his choice. Although the purpose
which accounts for the origin of symbols was of a limited
character, the symbol of each political party with the passage
G of time acquired a great value because the bulk of the
electorate associated the political party at the time of
elections with its symbol. xxx xxx”
(emphasis supplied)
6
H (1972) 4 SCC 664
EDAPADDI K. PALANISWAMI v. T.T.V. DHINAKARAN 231
[A. M. KHANWILKAR, J.]
And again in paragraphs 40 & 41 it is observed thus: A
“40. xxx xxx xxx It would,
therefore, follow that Commission has been clothed with
plenary powers by the abovementioned Rules in the matter
of allotment of symbols. xxx xxx
If the Commission is not to be disabled from exercising B
effectively the plenary powers vested in it in the matter of
allotment of symbols and for issuing directions in connection
therewith, it is plainly essential that the Commission should
have the power to settle a dispute in case claim for the
allotment of the symbol of a political party is made by two C
rival claimants. xxx xxx Para 15 is intended to effectuate
and subserve the main purposes and objects of the Symbols
Order. The paragraph is designed to ensure that because
of a dispute having arisen in a political party between two
or more groups, the entire scheme of the Symbols Order
relating to the allotment of a symbol reserved for the D
political party is not set at naught. xxx xxx The
Commission is an authority created by the Constitution and
according to Article 324, the superintendence, direction and control
of the electoral rolls for and the conduct of elections to Parliament
and to the Legislature of every State and of elections to the office E
of President and Vice-President shall be vested in the Commission.
The fact that the power of resolving a dispute between two rival
groups for allotment of symbol of a political party has been vested
in such a high authority would raise a presumption, though
rebuttable, and provide a guarantee, though not absolute but to a
considerable extent, that the power would not be misused but F
would be exercised in a fair and reasonable manner.
41. xxx xxx xxx Article 324 as mentioned above provides
that superintendence, direction and control of elections shall
be vested in Election Commission. xxx “
G
(emphasis supplied)
36. This decision has been followed in Kanhiya Lal Omar Vs.
R.K. Trivedi and Ors.7 and in paragraph 10 thereof, the Court observed
thus:
7
(1985) 4 SCC 628
H
232 SUPREME COURT REPORTS [2019] 3 S.C.R.
A “10. It is true that till recently the Constitution did not expressly
refer to the existence of political parties. But their existence is
implicit in the nature of democratic form of Government which
our country has adopted. The use of a symbol, be it a donkey
or an elephant, does give rise to a unifying effect amongst
the people with a common political and economic
B
programme and ultimately helps in the establishment of a
Westminster type of democracy which we have adopted with
a Cabinet responsible to the elected representatives of the
people who constitute the Lower House. The political parties
have to be there if the present system of Government should
C succeed and the chasm dividing the political parties should be so
profound that a change of administration would in fact be a
revolution disguised under a constitutional procedure. It is no doubt
a paradox that while the country as a whole yields to no other in
its corporate sense of unity and continuity, the working parts of its
political system are so organised on party basis — in other words,
D
“on systematized differences and unresolved conflicts”. That is
the essence of our system and it facilitates the setting up of a
Government by the majority. Although till recently the Constitution
had not expressly referred to the existence of political parties, by
the amendments made to it by the Constitution (Fifty-second
E Amendment) Act, 1985 there is now a clear recognition of the
political parties by the Constitution. The Tenth Schedule to the
Constitution which is added by the above Amending Act
acknowledges the existence of political parties and sets out the
circumstances when a member of Parliament or of the State
Legislature would be deemed to have defected from his political
F
party and would thereby be disqualified for being a member of
the House concerned. Hence it is difficult to say that the reference
to recognition, registration etc. of political parties by the Symbols
Order is unauthorised and against the political system adopted by
our country.”
G (emphasis supplied)
37. After having examined all aspects of the matter, we are of the
considered opinion that the direction issued in terms of order dated 28th
March, 2018, to keep the interim order of the learned Single Judge of the
High Court dated 9th March, 2018, in abeyance and consequently to
H
EDAPADDI K. PALANISWAMI v. T.T.V. DHINAKARAN 233
[A. M. KHANWILKAR, J.]
restrain the Election Commission from pronouncing its order on the A
application preferred by the political group represented by respondent
No.1 (writ petitioner), needs to be vacated. In other words, the Election
Commission shall process the application preferred by the political group
represented by respondent No.1 - TTVD (writ petitioner) and respondent
No.3 – VKS in terms of the interim order of the High Court dated 9th
B
March, 2018 and take it to its logical conclusion expeditiously.
38. However, considering the fact that the hearing on the writ
petition before the Division Bench of the High Court has almost reached
at the final stage, we deem it appropriate to mould the reliefs in the
following terms:
C
(a) If the writ petition is not finally disposed of by the Division
Bench of the High Court within four weeks from today, the Election
Commission of India shall process the application of the group
represented by respondent No.1 (writ petitioner) in terms of the
directions given by the High Court vide interim order dated 9th
March, 2018 and issue appropriate directions within two weeks D
therefrom (i.e. four weeks plus two weeks, from today).
(b) In the event, before the expiry of the stated period, the Election
Commission intends to issue any Press Note or Notification for
announcing the bye-elections in respect of the vacant Assembly
Constituencies in the State of Tamil Nadu or Parliamentary E
Elections for 2019, as the case may be, it shall pass appropriate
directions in compliance with the interim order of the High Court
dated 9th March, 2018, within one week from the date of release
of such Press Note or Notification and in any case, before the
date notified for filing of the nominations, whichever is earlier. F
38. Miscellaneous Application is disposed of in the above terms.
No costs.
Devika Gujral MA disposed of.
G
H
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