Delhi High Court Upholds 'First-Come-First-Serve' Criterion For Allotting Free Election Symbols To Unrecognised Parties

The Delhi High Court has upheld the “first-come-first-served” criteria of allotting a free symbol to an unrecognized party under the Election Symbols (Reservation and Allotment) Order, 1968.

A division bench of Acting Chief Justice Manmohan and Justice Manmeet Pritam Singh Arora dismissed the plea moved by Naam Tamilar Katchi, an unrecognized political party, challenging the vires of Explanation (iv) and Proviso 1 to Explanation (iv) of Order 10B (B) of the Election Symbols Order, which provides for the criteria in question.

As per the impugned clauses, if applications of two or more parties giving preference for the same symbol are received in the Election Commission of India (ECI) on the same date, the question of allotment of the symbol to one of such parties is to be decided by draw of lots.

It further adds that “if out of the two or more such parties giving preference for the same symbol whose applications are received on the same date, one party is such that it had been allotted the said symbol at the previous occasion in the State concerned and the other was not allotted that symbol in the previous election, then the symbol shall be allotted to the former.”

The plea further sought striking down of the allotment of “Ganna Kisan” free election symbol to another unrecognized political party for the upcoming Lok Sabha elections in the State of Tamil Nadu and Puducherry.

It was the petitioner party's case that being a registered (unrecognized) State party, it was not entitled to a reserved election symbol and that it was allotted the “Ganna Kisan” symbol for the elections held from 2019 to 2023.

It was further prayed that the phrase 'same date' appearing in the impugned Proviso should be re-phrased by the court so as to direct the ECI to consider all valid applications received within the valid window period together for the purposes of allotment of election symbol.

On the other hand, it was ECI's case that the impugned provisions were not arbitrary or unconstitutional and that the “Ganna Kisan” free symbol was allotted to the other political party as it had applied for it first.

Rejecting the plea, the court observed that admittedly, the application for allotment of the free symbol “Ganna Kisan” was filed by the other political party on December 17, 2023, at 10:01 A.M., whereas the petitioner party had filed it on January 09.

Therefore, the bench said that the allotment of a free symbol to the other party was in accordance with Explanation (iv) to Paragraph 10B (B) of the Election Symbols Order.

The court rejected the petitioner party's contention that the bench should re-phrase Proviso(s) 1 and 2 so as to replace the phrase 'same date' with appropriate words to permit equal consideration to all valid applications received by ECI within the permissible window period.

It said that such a suggestion, if accepted, would do violence to Explanation (iv) of the Election Symbols Order, adding that the Court cannot rewrite the statute.

“The scheme of Explanation (iv) and its Proviso(s) including the Proviso 1 are consistent, non-discriminatory and apply uniformly to all eligible applicants. The language of the impugned Explanation and Proviso 1 is plain and unambiguous,” the court observed.

It added that by the proposed re-phrasing, the petitioner party was seeking to retain an advantage for the registered unrecognized political parties to get continued access to a particular free symbol and indirectly convert a free symbol into a reserved symbol.

“… the Petitioner as noted above, was fully aware of the 'first' acceptance date for application as 17th December, 2023 and its significance in the scheme of Paragraph 10B (B) of the Election Symbols Order and had made use of the same to its advantage in the past. We are therefore, of the considered opinion that the allotment of the free symbol “Ganna kisan” by Respondent No. 1 in favour of Respondent No. 2 by the impugned letters is neither arbitrary nor unconstitutional,” it ruled.

Counsel for Petitioner: Ms. Haripriya Padhmanabhan, Sr. Advocate with Ms. Priya R., Mr. Manoj Kumar, Mr. Shrutanjaya Bhardwaj and Mr. Omkar Hemanth, Advocates

Counsel for Respondents: Mr. Ankit Agarwal, Standing Counsel for ECI with Mr. Ashish Shukla, Advocate for R-1/ECI

Title: NAAM TAMILAR KATCHI THROUGH ITS PRESIDENT v. ELECTION COMMISSION OF INDIA & ANR.

Citation: 2024 LiveLaw (Del) 257

Click Here To Read Order