Delhi High Court Dismisses Samata Party's Plea Against Allotment of 'Flaming Torch' To Uddhav Thackeray's Shiv Sena

The Delhi High Court on Wednesday dismissed the plea filed by Samata Party against allotment of flaming torch symbol to Uddhav Thackeray's Shiv Sena by Election Commission of India for the upcoming Andheri East Assembly bypoll in Maharashtra.

Samata Party was formed in the year 1994 and was accorded recognition on October 24, 1994. The party had participated in the 2009 and 2014 Lok Sabha General Elections but was defeated in both of them. Since the party was de-recognised back in 2004, it had lost the right over the 'flaming torch' symbol.

After hearing the party's plea against the ECI decision, Justice Sanjeev Narula said that Samata Party has failed to demonstrate any right over the symbol 'flaming torch'.

"… in absence of any right demonstrable before this court, the petitioner cannot seek a mandamus for quashing of the impugned communication," the court said while dismissing the plea.

While Samata Party contested election in 2014 under the flaming torch symbol, the 2020 election was contested under a different symbol.

During the course of hearing today, the counsel appearing for Samata Party argued that having contested the 2014 elections under the said symbol, it was incumbent on the ECI to issue a notice before making 'flaming torch' a free symbol and allotting the same to any other party or candidate.

It was also submitted that the party's representation against the decision to make it a free symbol was not responded to by the ECI.

On the other hand, the counsel appearing for ECI referred to clause 10A of Election Symbols (Reservation and Allotment) Order, 1968 which provides for concession to candidates set up by an unrecognised party which was earlier recognised as a National or State party. It was argued that even in terms of the said clause, the concession to Samata Party does not exist in the year 2022.

The counsel also argued that there was no requirement for the ECI to issue a notice to the Samata Party.

"Since the petitioner lost its status of a recognised party in 2004, the right, if any, on the symbol in question would have lapsed after expiry of six years in terms or clause 10A of the Election Symbol Order," Justice Narula said.

The court thus held, "In such circumstances, the petitioner does not have any right over the symbol in question. If in the year 2004 the petitioner did contest election, that claim does not give a right in its favour in respect of the symbol in question."

In its plea filed through party President Uday Mandal, Samata Party was aggrieved by the ECI order which allotted the name Shiv Sena (Uddhav Balasaheb Thackeray) to Thackeray led faction and permitted it to use the 'flaming torch symbol', after rejection of the first two choices.

On October 8, the ECI had directed both Thackeray and Eknath Shinde groups to not use the official name Shiv Sena for their rival factions and symbol 'bow and arrow' till the dispute between him and Eknath Shinde, who is currently the chief minister of Maharashtra, for the official recognition is finally decided.

Uddhav challenged the order and also submitted fresh applications for allotment of party name and symbol. Thereafter, on October 10, the first choice of "Trishul," was declined stating that it has religious connotations which is a violation of 10(B)(A)(iv) of the Election Symbols (Reservation and Allotment) Order, 1968 and that the symbol is also Shinde group's first choice.

The second choice of "Rising Sun" was also refused on the ground it was a reserved symbol of the 'Dravida Munnetra Kazhagam' a recognised political party in the state of Tamil Nadu and Union Territory of Puducherry.

While allotting the "flaming torch" symbol, the ECI said the same "is not in the list of free symbols" and was earlier used by a party de-recognised in 2004. However, on a request made by Uddhav's group, ECI decided to declare it as a free symbol.

In a related development, Thackeray had earlier approached the Delhi High Court against ECI's decision to freeze Shiv Sena's bow and arrow party symbol. While Thackeray in his alternative prayer before the court had sought allotment of a symbol of his choice and a direction that his options be not restricted to the list of free symbols notified under the Symbols Order, the ECI subsequently allotted 'Flaming Torch' symbol to his faction.

However, the plea has not come up for hearing yet.

Title: Samata Party v. ECI & Ors

Citation: 2022 LiveLaw (Del) 987