Political Parties Can't Consider Election Symbol 'Exclusive Property', Right To Use Can Be Lost With Dismal Performance: Delhi High Court

The Delhi High Court has said that the political parties cannot consider the election symbol as their "exclusive property."

A division bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad observed that the Election Symbols (Reservation And Allotment) Order, 1968 makes it very clear that the right to use an election symbol can be lost with the dismal performance of the party.

The bench also reiterated the Supreme Court's findings in Subramanian Swamy v. Election Commission of India wherein it was observed that "…. a symbol is not a tangible thing nor does it generate any wealth. It is only the insignia which is associated with the particular political party so as to help the millions of illiterate voters to properly exercise their right to franchise in favour of the candidate of their choice belonging to a particular party."

The observations were made while dismissing an appeal filed by Samata Party challenging a single judge order which last month rejected its plea against allotment of flaming torch symbol to Uddhav Thackeray's Shiv Sena by Election Commission of India (ECI) for the Andheri East bypoll in Maharashtra.

While the appeal was dismissed on November 3, a detailed order was made available only yesterday.

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.

While dismissing the appeal, the division bench said that even though members of Samata Party were permitted to use 'flaming torch' symbol, however, having been de-recognized in 2004, the symbol become a free symbol and thus, it was within the domain of ECI to allot it to any other party.

"No fault can be found with the communication-cum-order dated 10th October, 2022 issued by the Election Commission of India allotting the symbol of 'flaming torch' to 'Shiv Sena (Uddhav Balasaheb Thackeray)' and the Order dated 19.10.2022, passed by the learned Single Judge in W.P.(C) 14830/2022 affirming the said Order," the bench said.

It was Samata Party's case that since the symbol was a reserved symbol even on the date of the impugned decision of ECI, a notification was necessary before declaring the symbol to be a "free symbol" and allotting it to another party.

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

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 Shinde, for the official recognition is finally decided.

Thereafter, on October 10, Thackeray's first choice of "Trishul" symbol 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.

Title: Samata Party v. ECI & Ors

Citation: 2022 LiveLaw (Del) 1036