[2023] 12 S.C.R. 68 : 2023 INSC 804
UNION TERRITORY OF LADAKH & ORS.
v.
JAMMU AND KASHMIR NATIONAL CONFERENCE & ANR.
(Civil Appeal No. 5707 of 2023)
SEPTEMBER 06, 2023
[VIKRAM NATH AND AHSANUDDIN AMANULLAH*, JJ.]
Issue for consideration: High Court whether justified in dismissing
the appeal filed by appellants and upholding the interim order
of Single Judge directing them to notify the symbol allotted to
Respondent no.1 (R1) and allow the candidates set up by it to
contest in the then-upcoming General Elections of the Ladakh
Autonomous Hill Development Council, Kargil on the reserved
election symbol (plough) already allotted to it.
Election Symbols (Reservation and Allotment) Order, 1968 –
Paragraphs 9, 10, 10(A), 12 – Denial of the Plough symbol to
respondent no.1 – Impropriety:
Held: R1 was before the concerned authorities, well in time, by
impugning the Notification dtd. 26.07.2023 which denied it the
Plough symbol – Appellants sitting on the representation of R1,
went ahead and notified the elections on 02/05.08.2023 – R1’s
request for allotment of the Plough symbol was bonafide, legitimate
and just, because in the erstwhile State of Jammu and Kashmir
(which included the present Union Territory of Ladakh), it was a
recognized State Party having been allotted the Plough symbol
– Upon bifurcation of the erstwhile State of J&K and the creation
of two new Union Territories, the Union Territory of J&K and the
Union Territory of Ladakh, though the ECI had not notified R1
as a State Party for the Union Territory of Ladakh, it cannot be
simpliciter that R1 was not entitled for the allotment of plough
symbol – Also, there was no conflict with any other stakeholder
as the Plough symbol was neither a symbol exclusively allotted
to any National or State Party nor one of the symbols shown in
the list of free symbols – Thus, there was and is no impediment
in such symbol being granted to R1 – In the absence of anything
contrary in any rule framed for conduct of the elections in question,
relating to allotment of symbols, the provisions of the 1968 Order
* Author
[2023] 12 S.C.R. 69
UNION TERRITORY OF LADAKH & ORS. v.
JAMMU AND KASHMIR NATIONAL CONFERENCE & ANR.
can be relied upon as a guideline to exercise of executive power
of like nature – On a harmonious reading of Paragraphs 9, 10,
10(A) and 12, under the terms of the 1968 Order, the request of
R1 is not bereft of justification – In view of the 1968 Order, the
appellants’ discretion was not unbridled, rather, it was guided by
the 1968 Order – R1 is entitled to the exclusive allotment of the
Plough symbol for candidates proposed to be put up by it – Orders
of the High Court were in aid of the electoral process, no fault
therewith – Entire election process set aside – Fresh Notification
be issued – Appeal dismissed with costs – Ladakh Autonomous
Hill Development Councils Act, 1997 – ss.12, 13 – Constitution
of India – Article 226 – Election Laws. [Paras 21, 23, 27-30, 37,
40 and 44]
Constitution of India – Powers of Supreme Court and High
Courts, part of Basic Structure:
Held: Powers of Supreme Court and the High Courts vested under
the Constitution cannot be abridged, excluded or taken away, being
part of the Basic Structure of the Constitution. [Para 16]
Alternative remedy – No bar for exercise of writ jurisdiction
– Ladakh Autonomous Hill Devel-opment Councils Act, 1997
– s.13:
Held: The availability of alternative efficacious remedy is no bar
to the exercise of high prerogative writ jurisdiction – s.13, 1997
Act does not, and cannot, impede a Constitutional Court from
proceeding further – High Court was not precluded from issuing a
direction of the nature issued by it, more so when such direction
does not violate any statutory provision – Constitution of India –
Election Laws. [Para 16]
Practice and Procedure – Inter-departmental communications
– Reliance upon:
Held: Inter-departmental communications are in the process of
consideration for appropriate decision and cannot be relied upon
as a basis to claim any right – In the present case, it was rightly
contended that the Legal Opinion by the Law Department remains
internal advice, and advice alone, and the same would not create/
confer any right in favour of R1 – Elections – Administrative Law.
[Para 17]
70 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
Constitution of India – Article 226 – Power to direct for
actions, in rare and exceptional situation, not mentioned in
the provisions concerned – Discussed.
Elections – Election authority, to be independent of any
extraneous influence:
Held: Elections to any office/body are required to be free, fair and
transparent – Elections lie at the core of democracy – The authority
entrusted by law to conduct such elections is to be completely
in-dependent of any extraneous influence/consideration – In the
present case, the Union Territory of Ladakh not only denied R1 the
Plough symbol, but even upon timely intervention by the Single
Judge, left no stone unturned not only to resist but also frustrate
a cause simply by efflux of time. [Para 22]
Elections – Power of Supreme court to bring back status
quo ante:
Held: Plea of the Appellants that no relief be granted to R1 due
to the election process having reached the penultimate stage,
rejected – Having chosen to not comply with successive orders
of the High Court which were passed well in time, such as not to
stall/delay the notified election schedule, the Appellants cannot be
permitted to plead that interference by Supreme Court at this late
juncture should not be forthcoming – No litigant should have even
an iota of doubt or misimpression that just because of systemic
delay or the matter not being taken up by the Courts resulting in
efflux of time the cause would be defeated, and the Court would
be rendered helpless to ensure justice to the party concerned –
This Court can even turn the clock back, if the situation warrants
such dire measures – Powers of this Court, if need be, to even
restore status quo ante are not in the realm of any doubt, as held
in Nabam Rebia and Bamang Felix v. Deputy Speaker, Aurnachal
Pradesh Legislative Assembly reported as [2016] 6 SCR 1 – Though,
Nabam Rebia has been referred to a Larger Bench in Subhash
Desai v. Principal Secretary, Governor of Maharashtra however,
the questions referred to the Larger Bench do not detract from the
aforesaid power and furthermore, mere reference to a larger Bench
does not unsettle declared law – Constitution of India – Practice
and Procedure – Reference to larger Bench does not unsettle
declared law. [Paras 31 and 32]
[2023] 12 S.C.R. 71
UNION TERRITORY OF LADAKH & ORS. v.
JAMMU AND KASHMIR NATIONAL CONFERENCE & ANR.
Practice and Procedure – High Courts not deciding cases
on the ground that the leading judgment of Supreme Court
on subject concerned is either referred to a larger Bench or
a review petition relating thereto is pending – High Courts
refusing deference to judgments as a later Coordinate Bench
has doubted its correctness – Law laid down:
Held: High Courts will proceed to decide matters on the basis of
the law as it stands – It is not open, unless specifically directed by
Supreme Court, to await an outcome of a reference or a review
petition, as the case may be – It is also not open to a High Court
to refuse to follow a judgment by stating that it has been doubted
by a later Coordinate Bench – Further, in any case, when faced
with conflicting judgments by Benches of equal strength of Supreme
Court, it is the earlier one which is to be followed by the High
Courts – Judicial Discipline. [Para 35]
Judgments/Orders – Interpretation of:
Held: By way of certain pronouncements, principles relating to
elections to Parliament, State Assemblies and Municipalities have
been extended to other arenas as well – However, interpretation of
judgments is always to be made with due regard to the facts and
circumstances of the peculiar case concerned – In the present case,
having looked at Articles 243-O, 243ZG and 329 it is concluded
that no bar hit the High Court, even on principle – Elections –
Constitution of India – Articles 243-O, 243ZG and 329. [Para 36]
Elections – Election process started – Interference by
Constitutional Courts:
Held: The self-imposed restraint by the Courts as a general principle
in election matters, to the extent that once a notification is issued
and the election process starts, the Constitutional Courts, under
normal circumstances are loath to interfere, is not a contentious
issue – But where issues crop up, indicating unjust executive action
or an attempt to disturb a level-playing field between candidates
and/or political parties with no justifiable or intelligible basis, the
Constitutional Courts are required, nay they are duty-bound, to
step in – Constitution of India. [Para 37]
72 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
Elections – Authorities concerned using their powers relating
to elections arbitrarily – Misconceived notion that eventually,
after elections are over and when such decisions/actions
are challenged, by sheer passage of time, irreversible
consequences would have occurred, and no substantive relief
could be fashioned – Taken note of:
Held: Such conduct by authorities may seriously compel the Court
to have a comprehensive re-think, as to whether the self-imposed
restrictions may need a more liberal interpretation, to ensure that
justice is not only done but also seen to be done, and done in time
to nip in the bud any attempted misadventure. [Para 39]
Elections – Importance of symbol in an electoral system,
especially one allotted to a political party – Discussed.
His Holiness Kesavananda Bharati Sripadagalvaru v.
State of Kerala, (1973) 4 SCC 225 : [1973] Suppl.
SCR 1; Indira Nehru Gandhi v. Raj Narain, 1975 Supp
SCC 1 : [1976] SCR 347; Minerva Mills Ltd. v. Union of
India, (1980) 3 SCC 625 : [1981] 1 SCR 206; L Chandra
Kumar v. Union of India, (1997) 3 SCC 261 : [1997]
2 SCR 1186; Kalpana Mehta v. Union of India, (2018)
7 SCC 1 : [2018] 4 SCR 1; Rojer Mathew v. South
Indian Bank Limited, (2020) 6 SCC 1 : [2019] 16 SCR
1; Nabam Rebia and Bamang Felix v. Deputy Speaker,
Aurnachal Pradesh Legislative Assembly, (2016) 8 SCC
1 : [2016] 6 SCR 1 – followed.
State of Uttar Pradesh v. Mohammad Nooh, 1958
SCR 595; Madhya Pradesh State Agro Industries
Development Corporation Ltd. v. Jahan Khan, (2007)
10 SCC 88 : [2007] 9 SCR 715; Maharashtra Chess
Association v. Union of India, (2020) 13 SCC 285 :
[2019] 10 SCR 304; Radha Krishan Industries v. State
of Himachal Pradesh, (2021) 6 SCC 771; Godrej Sara
Lee Ltd. v. Excise and Taxation Officer-cum-Assessing
Authority, 2023 SCC Online SC 95; Mahadeo v. Sovan
Devi, 2022 SCC online SC 1118; High Court of Tripura
v. Tirtha Sarathi Mukherjee, (2019) 16 SCC 663 : [2019]
2 SCR 692; Aish Mohammad v. State of Haryana,
2023 SCC Online SC 736; Harbhajan Singh v. State
[2023] 12 S.C.R. 73
UNION TERRITORY OF LADAKH & ORS. v.
JAMMU AND KASHMIR NATIONAL CONFERENCE & ANR.
of Punjab, (2009) 13 SCC 608 : [2009] 11 SCR 1015;
Ashok Sadarangani v. Union of India, (2012) 11 SCC
321 : [2012] 3 SCR 826; National Insurance Company
Limited v. Pranay Sethi, (2017) 16 SCC 680 : [2017]
13 SCR 100; Shri Sadiq Ali v. Election Commission of
India, New Delhi, (1972) 4 SCC; All Party Hill Leaders’
Conference, Shillong v. Captain W A Sangma, (1977) 4
SCC 161 : [1978] 1 SCR 393; Edapaddi K Palaniswami
v. TTV Dhinakaran, (2019) 18 SCC 219 : [2019] 3 SCR
200 – relied on.
Subhash Desai v. Principal Secretary, Governor of
Maharashtra, 2023 SCC Online SC 607; State of
Haryana v. G.D. Goenka Tourism Corporation Limited
(2018) 3 SCC 585; N P Ponnuswami v. Return-ing
Officer, Namakkal Constituency, 1952 SCR 218; Durga
Shankar Mehta v. Thakur Raghuraj Singh, (1955) 1 SCR
267; Hari Vishnu Kamath v. Syed Ahmad Ishaue, (1955)
1 SCR 1104; Narayan Bhaskar Khare (Dr) v. Election
Commission of India, 1957 SCR 1081; Mohinder Singh
Gill v. Chief Election Commissioner, (1978) 1 SCC 405
: [1978] 2 SCR 272; Lakshmi Charan Sen v. A K M
Hassan Uzzaman, (1985) 4 SCC 689 : [1985] 1 Suppl.
SCR 493; Indrajit Barua v. Election Commission of
India, (1985) 4 SCC 722 : [1985] 3 Suppl. SCR 225;
Election Commission of India v. Shivaji, (1988) 1 SCC
277 : [1988] 1 SCR 878; Digvijay Mote v. Union of
India, (1993) 4 SCC 175 : [1993] 1 Suppl. SCR 553;
Boddula Krishnaiah v. State Election Commissioner,
Andhra Pradesh, (1996) 3 SCC 416 : [1996] 3 SCR
687; Anugrah Narain Singh v. State of Uttar Pradesh,
(1996) 6 SCC 303 : [1996] 5 Suppl. SCR 719; Election
Commission of India v. Ashok Kumar, (2000) 8 SCC
216 : [2000] 3 Suppl. SCR 34; Kishansing Tomar v.
Municipal Corporation, Ahmedabad, (2006) 8 SCC 352
: [2006] 7 Suppl. SCR 45; West Bengal State Election
Commission v. Communist Party of India (Marxist),
(2018) 18 SCC 141; Dravida Munnetra Kazhagam v.
State of Tamil Nadu, (2020) 6 SCC 548 : [2019] 14
SCR 704; Laxmibai v. Collector, (2020) 12 SCC 186
74 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
: [2020] 2 SCR 880; State of Goa v. Fouziya Imtiaz
Shaikh, (2021) 8 SCC 401 – referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal No.5707 of 2023
From the Judgment and Order dated 14.08.2023 of the High Court of
Jammu & Kashmir and Ladakh at Srinagar in LPA No.151 of 2023.
A1 : Union Territory of Ladakh through its Chief Secretary
A2: Chief Election officer, UT of Ladakh
A3: District Election Officer (Kargil)
A4: Administrative Secretary, Election Department, UT of Ladakh
R1: Jammu and Kashmir National Conference, through its General
Secretary
R2 : Election Commission of India
Tushar Mehta, Solicitor General, K.M. Nataraj, A.S.G., Piyush Beriwal,
Rajat Nair, Shailesh Madiyal, Siddharth Dharmadhikari, Vinayak
Sharma, Dr. Arun Kumar Yadav, Shreekant Neelappa Terdal, Advs.
for the Appellants.
S.D. Sanjay, Sr. Adv., Shariq J Reyaz, Syed Ahmed Saud, Daanish
Ahmed Syed, Mohd. Parvez Dabas, Uzmi Jameel Husain, Aqib Baig,
Mohd. Shahib, M/s. Shakil Ahmad Syed, Akshat Agrawal, Akshay
Amritanshu, Advs. for the Respondents.
The Judgment of the Court was delivered by
AHSANUDDIN AMANULLAH, J.
Heard learned counsel for the parties.
2. Leave granted.
3. The present appeal is directed against the Judgment and Order dated
14.08.2023 (hereinafter referred to as the “Impugned Judgment”)
rendered by a learned Division Bench of the High Court of Jammu
& Kashmir and Ladakh at Srinagar (hereinafter referred to as the
“High Court”) dismissing Letters Patent Appeal No.151 of 2023 filed
by the Appellants and upholding the interim order of a learned Single
Judge dated 09.08.2023 in Writ Petition (Civil) No.1933 of 2023.
[2023] 12 S.C.R. 75
UNION TERRITORY OF LADAKH & ORS. v.
JAMMU AND KASHMIR NATIONAL CONFERENCE & ANR.
BRIEF FACTS:
4. The controversy involved in this lis is the non-allocation of the Plough
symbol to the writ petitioner, the Jammu and Kashmir National
Conference/Respondent No.1 herein (hereinafter referred to as “R1”)
for its candidates to contest the then-upcoming General Elections of
the Ladakh Autonomous Hill Development Council, Kargil (hereinafter
referred to as the “LAHDC”). In view of the urgency in the matter,
the learned Single Judge passed an interim order on 09.08.2023,
the operative portion whereof at Paragraph 11 reads as under:
“11. Keeping in view that the upcoming General Election of Ladakh
Autonomous Hill Development Council (LAHDC) stands announced,
the petitioner-party is directed to approach the office of the
respondents 1 to 3 & 5, for notifying the reserved symbol (plough)
already allotted to it and respondents 1 to 3 & 5 shall notify the
symbol allotted to petitioner-party in terms of Paragraphs 10 and
10(A) of Election Symbols (Reservation and Allotment) Order, 1968,
and allow the candidates set up by the petitioner-party to contest on
the reserved election symbol (plough) already allotted to the party.”
5. Aggrieved, the Appellants moved the learned Division Bench of the
High Court by preferring an appeal, which after hearing was dismissed
vide Impugned Judgment on 14.08.2023.
SUBMISSION BY THE APPELLANTS:
6. Mr. K. M. Nataraj, learned Additional Solicitor General (hereinafter
referred to as the “ASG”) for the Appellants submitted that the
learned Single Judge and the learned Division Bench of the High
Court have issued directions contrary to law. It was submitted that
both orders have been passed on an erroneous assumption that
the provisions of Election Symbols (Reservation and Allotment)
Order, 1968 (hereinafter referred to as the “1968 Order”), would
be applicable in elections to the LAHDC. Learned ASG canvassed
that this is not the correct legal position as the LAHDC election is
being conducted by the Election Authority of the Union Territory of
Ladakh constituted under Rule 5 of The Ladakh Autonomous Hill
Development Councils (Election) Rules, 1995 (hereinafter referred to
as the “1995 Rules”). It was contended that the Election Commission
of India (hereinafter referred to as the “ECI”) is empowered to hold
elections to the Parliamentary and State Assembly constituencies
76 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
and for the present LAHDC elections, the ECI does not exercise
any authority. Thus, the learned ASG submitted that any reference
to the provisions of the 1968 Order is misplaced.
7. Learned ASG, further, contended that Paragraphs No. 9, 10 and
10(A) of the 1968 Order speak of restrictions on the allotment of
symbols reserved for State Parties in States where such parties are
not recognized; concession to candidates set up by a State Party
at elections in other States or Union Territories, and; concession
to candidates set up by an un-recognized party which was earlier
recognized as a National or State Party, respectively. Thus, it was his
categoric stand that such concession can be only for the purposes
of Parliamentary and State Assembly elections, and not for the
election in question.
8. Learned ASG submitted that the reference by the ECI in its
communication dated 18.07.2023 to R1, that it can avail the
concession under Paragraph 10 of the 1968 Order can neither confer
any right on R1, nor compel the Election Authority of the Union
Territory of Ladakh to allow the prayer of R1, as made in the Writ
Petition before the High Court. With regard to the opinion of the Law
Department of the Appellant No.1, as quoted in the communication
of the District Election Officer (District Magistrate), Kargil in his
communication dated 12.07.2023 to the Chief Electoral Officer,
Union Territory of Ladakh, the same at best was only advisory but
not binding as it is for the Election Authority of the Union Territory
of Ladakh to independently consider such request.
9. He submitted that none of the candidates, who have filled up and
submitted their nomination forms, have either sought the Plough
symbol or indicated in the relevant column that they were candidates
of R1 and on this score alone, at this stage, R1 was not entitled to
any indulgence by this Court.
10. He summed up his arguments by stating that, as of now1
, the process
of elections had already been set in motion. Learned ASG pointed
1 This Court’s order dated 01.09.2023 is quoted for ready reference:
‘Application for impleadment is rejected.
Heard learned counsel for the parties.
Judgment reserved.
List the matter for pronouncement on 06.09.2023.’
[2023] 12 S.C.R. 77
UNION TERRITORY OF LADAKH & ORS. v.
JAMMU AND KASHMIR NATIONAL CONFERENCE & ANR.
out that filing of the nomination forms had begun from 16.08.2023
and reached the penultimate stage since the last date of withdrawal
of nominations (26.08.2023) had already elapsed. It was stated that
now only polling remained to be held on 10.09.2023 and in this view
of the matter, this Court may set aside the Impugned Order.
SUBMISSIONS BY RESPONDENT NO.1:
11. Learned counsel for R1 submitted that the orders of the learned
Single Judge dated 09.08.2023 and the learned Division Bench
dated 14.08.2023 are self-speaking and have dealt in detail with the
contentions of the Appellants and the same have been negated on
cogent legal and factual grounds. It was submitted that there should
not have been, in the first place, any issue with the Appellants in
granting the Plough symbol for the reason that R1 is the incumbent
ruling party in the LAHDC, and was entitled to the Plough symbol,
since the same was neither part of the list of free symbols nor allotted
to any other National or State Party, so recognized, either by the ECI
or by the Election Authority for the Union Territory of Ladakh. It was
submitted that a completely partisan and arbitrary approach had been
adopted by the Appellants in denying their preferred symbol (Plough)
for oblique reasons to deny a level-playing field between candidates.
It was further submitted that the Plough symbol was well-known to
the electorate since decades as being exclusively associated with
R1, the denial of the same is clearly intended to cause unjustified
prejudice. It was stated that undue advantage would accrue to the
remaining candidates/parties contesting the LAHDC elections.
12. He urged the Court to take note of the fact that despite the learned
Single Judge having passed directions well before the commencement
of even the filing of nominations, upheld by the learned Division
Bench, which again, was before the starting of the nomination
process, and despite there being a contempt case pending before
the learned Single Judge, which was adjourned on prayer made
by the Appellants, citing the pendency of the present appeal, the
Appellants had not complied with the orders of the High Court. In
this backdrop, submitted learned counsel, to take a stand before this
Court that now due to efflux of time, no relief can be granted to R1,
was clear dishonest conduct. It was submitted that this Court would
78 [2023] 12 S.C.R.
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not let a just cause be defeated only because of delay occasioned
by the other side and the Appellants cannot take the advantage
of such delay caused by them to the detriment of R1’s bonafide,
legitimate and genuine claim.
13. Learned counsel submitted that allotment of symbols by the Appellants
to the National Parties and free symbols shown in the Notification for
the present elections clearly shows that the same are in conformity
with the 1968 Order. Thus, he submitted, the Appellants are precluded
from blowing hot and cold that they cannot and should not be permitted
to selectively, as per their whims and fancies, decide as to which
provisions under the 1968 Order would be applicable and which
provisions would not. It was submitted that a harmonious reading of
Paragraphs 9, 10, 10(A) as also 12 of the 1968 Order would indicate
beyond doubt that in the absence of anything to the contrary, the
Appellants were required to be guided by the 1968 Order in toto,
which was also the indication in the letter written by the ECI to R1
and the same view was taken by the Law Department in its Legal
Opinion to the Appellants.
ANALYSIS, REASONING AND CONCLUSION:
14. The relevant Paragraphs of the 1968 Order, attention to which was
drawn by the learned ASG and the learned counsel for R1, are set
out below:
“9. Restriction on the allotment of Symbols reserved for State
parties in States where such parties are not recognised.— A
symbol reserved for a State party in any State—
(a) shall not be included in the list of free symbols for any other
State or Union territory, and
(b) shall not be reserved for any other party which subsequently
becomes eligible, on fulfilment of the conditions specified in
paragraph 6, for recognition as a State party in any other State:
Provided that nothing contained in clause (b) shall apply in relation
to a political party, for which the Commission has, immediately
before the commencement of the Election Symbols (Reservation and
Allotment) (Amendment) Order, 1997, already reserved the same
[2023] 12 S.C.R. 79
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symbol which it has also reserved for some oth-er State party or
parties in any other State or States.
10. Concessions to candidates set up by a State party at elections
in other States or Union territories.— If a political party, which
is recognised as a State party in some State or States, sets up a
candidate at an election in a constituency in any other State in which
it is not a recognised State party, then such candidate may, to the
exclusion of all other candidates in the constituency, be allotted the
symbol reserved for that party in the State or States in which it is
a recognised State Party, notwithstanding that such symbol is not
specified in the list of free symbols for such other State or Union
territory, on the fulfilment of each of the following conditions, namely:—
(a) that an application is made to the Commission by the said party
for exclusive allotment of that symbol to the candidate set up by
it, not later than the third day after the publication in the Official
Gazette of the notification calling the election;
(b) that the said candidate has made a declaration in his nomination
paper that he has been set up by that party at the election and
that the party has also fulfilled the requirements of clauses (b),
(c), (d) and (e) of paragraph 13 read with paragraph 13A in
respect of such candidate; and
(c) that in the opinion of the Commission there is no reasonable
ground for refusing the application for such allotment: Provided
that nothing contained in this paragraph shall apply to a candidate
set up by a State party at an election in any constituency in
a State in which that party is not a State Party and where the
same symbol is already reserved for some other State Party
in that State.
10A. Concession to candidates set up by an unrecognized party
which was earlier recognized as a National or State party.– If a
political party, which is un-recognized at present but was a recognized
National or State party in any State or Union territory not earlier
than six years from the date of notification of the election, sets up
a candidate at an election in a constituency in any State or Un-ion
territory, whether such party was earlier recognized in that State or
80 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
Union territory or not, then such candidate may, to the exclusion
of all other candidates in the constituency, be allotted the symbol
reserved earlier for that party when it was a recognized National or
State party, notwithstanding that such symbol is not specified in the
list of free symbols for such State or Union territory, on the fulfillment
of each of the following conditions, namely:––
(a) that an application is made to the Commission by the said party
for the exclusive allotment of that symbol to the candidate set
up by it, not later than the third day after the publication in the
Official Gazette of the notification calling the election;
(b) that the said candidate has made a declaration in his nomination
paper that he has been set up by that party at the election and
that the party has also fulfilled the requirements of clauses (b),
(c), (d) and (e) of paragraph 13 read with paragraph 13A in
respect of such candidate; and
(c) that in the opinion of the Commission there is no reasonable
ground for refusing the application for such allotment:
Provided that nothing contained in this paragraph shall apply to a
candidate set up by the said party at an election in any constituency in
a State or Union territory where the same symbol is already reserved
for some other National or State party in that State or Union Territory.
xxx
12. Choice of symbols by other candidates and allotment
thereof.—(1) Any candidate at an election in a constituency in any
State or Union territory, other than—
(a) a candidate set up by a National Party; or
(b) a candidate set up by a political party which is a State Party
in that State; or
(c) a candidate referred to in paragraph 10 or paragraph 10A; shall
choose, and shall be allotted, in accordance with the provisions
hereafter set out in this paragraph, one of the symbols specified
as free symbols for that State or Union territory by notification
under paragraph 17.
[2023] 12 S.C.R. 81
UNION TERRITORY OF LADAKH & ORS. v.
JAMMU AND KASHMIR NATIONAL CONFERENCE & ANR.
(2) Where any free symbol has been chosen by only one candidate
at such election, the returning officer shall allot that symbol to that
candidate and to no one else.
(3) Where the same free symbol has been chosen by several
candidates at such election, then—
(a) if of those several candidates, only one is a candidate set up by
an unrecognised political party and all the rest are independent
candidates, the returning officer shall allot that free symbol to
the candidate set up by the unrecognised political party, and to
no one else; and, if, those several candidates, two or more are
set up by different unrecognised political parties and the rest
are independent candidates, the returning officer shall decide
by lot to which of the two or more candidates set up by the
different unrecognised political parties that free symbol shall be
allotted, and allot that free symbol to the candidate on whom
the lot falls, and to no one else:
Provided that where of the two or more such candidates set up by
such different unrecognized political parties, only one 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
(irrespective of the fact as to whether he was allotted that free symbol
or any other 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;
(b) if, of those several candidates, no one is set up by any
unrecognised political party and all the independent candidates,
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
allot-ted 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; and
(c) if, of those several candidates, being all independent candidates,
no one is, or was, a sitting member as aforesaid, the returning
officer shall decide by lot to which of those independent
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candidates that free symbol shall be allotted, and allot that
free symbol to the candidates on whom the lot falls, and to no
one else.”
15. Sections 12 and 13 of the Ladakh Autonomous Hill Development
Councils Act, 19972
(hereinafter referred to as the “1997 Act”) read
as under:
“12. Disputes regarding elections. – (1) No election shall be
called in question except by an election petition presented in such
manner as may be prescribed and before such authority as may be
appointed by Government, from time to time, by notification in the
Government Gazette:
Provided that no person below the rank of a District Judge shall be
appoint-ed for the purpose of this section.
(2) No election shall be called in question except on any one or more
of the following grounds, namely: –
(a) that on the date of his election the returned candidate was
not qualified or was disqualified, to be chosen to fill the seat
in the Council;
(b) that a corrupt practice has been committed by a returned
candidate or his election agent or by any other person with the
consent of the returned candidate or his election agent.
Explanation: — For the purposes of this section “corrupt practice”
shall mean any of the corrupt practices specified in section 132 of
the Jammu and Kashmir Representation of the People Act, 1957;
(c) that any nomination has been improperly rejected;
(d) that the result of the election in so far as it concerns the returned
candidate has been materially affected–
(i) by any improper acceptance of any nomination; or
(ii) by any corrupt practice committed in the interest of the
returned candidate by an agent other than his election
agent; or
2 This repealed The Ladakh Autonomous Hill Development Councils Act, 1995 (President’s Act No.1 of
1995).
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(iii) by the improper reception, refusal or rejection of any vote; or
(iv) by the reception of any vote which is void; or
(v) by any non-compliance with provisions of this Act or of
any rules or orders made thereunder.
(3) At the conclusion of the trial of an election petition the authority
appoint-ed under sub-section (1) shall make an order–
(a) dismissing the election petition; or
(b) declaring the election of all or any of the returned candidates
to be void; or
(c) declaring the election of all or any of the returned candidates
to be void and the petitioner or any other candidates to have
been duly elected.
(4) If a petitioner in addition to calling in question the election of a
returned candidate makes a declaration that he himself or any other
candidate has been duly elected and the authority under sub-section
(1) is of opinion that–
(a) in fact the petitioner or such other candidate has received the
majority of valid votes; or
(b) but for the votes obtained by the returned candidate by corrupt
practice the petitioner or such other candidate would have
obtained the majority of the valid votes,
the authority as aforesaid shall, after declaring the election of the
returned candidate to be void declare the petitioner or such other
candidate, as the case may be, to have been duly elected.
13. Procedure for election disputes. – The procedure provided in
the Code of Civil Procedure, Samvat 1977 in regard to suits shall
be followed by the authori-ty appointed under section 12 as far as
it can be made applicable in the trial and disposal of an election
petition under this Act.”
16. It requires no reiteration that the powers of this Court and the
High Courts vested under the Constitution cannot be abridged,
excluded or taken away, being part of the Basic Structure of our
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Constitution. Reference need only be made to decisions in His
Holiness Kesavananda Bharati Sripadagalvaru v State of Kerala,
(1973) 4 SCC 225; Indira Nehru Gandhi v Raj Narain, 1975 Supp
SCC 1; Minerva Mills Ltd. v Union of India, (1980) 3 SCC 625;
L Chandra Kumar v Union of India, (1997) 3 SCC 261 and more
recently, to Kalpana Mehta v Union of India, (2018) 7 SCC 1 and
Rojer Mathew v South Indian Bank Limited, (2020) 6 SCC 1, all
of which were rendered by a Bench of 5 or more learned Judges.
Section 12 of the 1997 Act need not detain us. Insofar as Section
13 of the 1997 Act is concerned, it is by now too well-settled that the
availability of alternative efficacious remedy is no bar to the exercise
of high prerogative writ jurisdiction, in the light of various decisions,
including but not limited to, State of Uttar Pradesh v Mohammad
Nooh, 1958 SCR 595; Madhya Pradesh State Agro Industries
Development Corporation Ltd. v Jahan Khan, (2007) 10 SCC
88; Maharashtra Chess Association v Union of India, (2020)
13 SCC 285. Even on the anvil of Radha Krishan Industries v
State of Himachal Pradesh, (2021) 6 SCC 771, Section 13 of the
1997 Act does not, and cannot, impede a Constitutional Court from
proceeding further. We do not wish to multiply established authorities
on the point but would add the very recent Godrej Sara Lee Ltd.
v Excise and Taxation Officer-cum-Assessing Authority, 2023
SCC OnLine SC 95 to the list enumerated above.
17. At the threshold, it is noted that the ECI deals with the conduct of
elections to the Parliament, the State Legislative Assemblies and
the State Legislative Councils. The Union Territory of Ladakh does
not currently have a Legislative Assembly. The last election to the
Parliamentary constituency was held in the year 2019. That said,
first things first. The Legal Opinion by the Law Department remains
internal advice, and advice alone, and as such, the learned ASG
was correct in contending that the same would not create/confer any
right in favour of R1. In Mahadeo v Sovan Devi, 2022 SCC OnLine
SC 1118 (where one of us, Vikram Nath, J. was part of the coram),
the Court, after considering various case-laws, held that “It is well
settled that inter-departmental communications are in the process
of consideration for appropriate decision and cannot be relied upon
as a basis to claim any right. …”
[2023] 12 S.C.R. 85
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18. In Kalpana Mehta (supra), Hon. Dipak Misra, C.J.I., with whom 4
learned Judges concurred, stated:
“40. While focussing on the exercise of the power of judicial review, it
has to be borne in mind that the source of authority is the Constitution
of India. The Court has the adjudicating authority to scrutinise the
limits of the power and transgression of such limits. The nature and
scope of judicial review has been succinctly stated in Union of India
v. Raghubir Singh [Union of India v. Raghub-ir Singh, (1989) 2 SCC
754] by R.S. Pathak, C.J. thus : (SCC p. 766, para 7)
“7. … The range of judicial review recognised in the superior judiciary
of India is perhaps the widest and the most extensive known to the
world of law. … With this impressive expanse of judicial power, it is
only right that the superior courts in India should be conscious of the
enormous responsibility which rest on them. This is specially true
of the Supreme Court, for as the highest Court in the entire judicial
system the law declared by it is, by Article 141 of the Constitution,
binding on all courts within the territory of India.”
And again: (SCC p. 767, para 11)
“11. Legal compulsions cannot be limited by existing legal propositions,
be-cause there will always be, beyond the frontiers of the existing law,
new areas inviting judicial scrutiny and judicial choice-making which
could well affect the validity of existing legal dogma. The search for
solutions responsive to a changed social era involves a search not
only among competing propositions of law, or competing versions
of a legal proposition, or the modalities of an inde-terminacy such
as “fairness” or “reasonableness”, but also among propositions from
outside the ruling law, corresponding to the empirical knowledge or
ac-cepted values of present time and place, relevant to the dispensing
of justice within the new parameters.”
The aforesaid two passages lay immense responsibility on the
Court pertain-ing to the exercise of the power keeping in view the
accepted values of the pre-sent. An organic instrument requires
the Court to draw strength from the spirit of the Constitution. The
propelling element of the Constitution commands the reali-sation
of the values. The aspiring dynamism of the interpretative process
also expects the same.
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41.This Court has the constitutional power and the authority to
interpret the constitutional provisions as well as the statutory
provisions. The conferment of the power of judicial review has a
great sanctity as the constitutional court has the power to declare
any law as unconstitutional if there is lack of competence of the
legislature keeping in view the field of legislation as provided in the
Constitution or if a provision contravenes or runs counter to any of
the fundamental rights or any constitutional provision or if a provision
is manifestly arbitrary.
42. When we speak about judicial review, it is also necessary to be
alive to the concept of judicial restraint. The duty of judicial review
which the Constitution has bestowed upon the judiciary is not
unfettered; it comes within the conception of judicial restraint. The
principle of judicial restraint requires that Judges ought to decide
cases while being within their defined limits of power. Judges are
expected to interpret any law or any provision of the Constitution as
per the limits laid down by the Constitution.
43. In S.C. Chandra v. State of Jharkhand [S.C. Chandra v. State of
Jharkhand, (2007) 8 SCC 279 : (2007) 2 SCC (L&S) 897] , it has been
ruled that the judiciary should exercise restraint and ordinarily should
not encroach into the legislative domain. In this regard, a reference
to a three-Judge Bench decision in Suresh Seth v. Indore Municipal
Corpn. [Suresh Seth v. Indore Municipal Corpn., (2005) 13 SCC 287] is
quite instructive. In the said case, a prayer was made before this Court
to issue directions for appropriate amendment in the M.P. Municipal
Corporation Act, 1956. Repelling the submission, the Court held that
it is purely a matter of policy which is for the elected representatives
of the people to decide and no directions can be issued by the Court
in this regard. The Court further observed that this Court cannot
issue directions to the legislature to make any particular kind of
enactment. In this context, the Court held that under our constitutional
scheme, Parliament and Legislative Assemblies exercise sovereign
power to enact law and no outside power or authority can issue a
direction to enact a particular kind of legislation. While so holding,
the Court referred to the decision in Supreme Court Employees’
Welfare Assn. v. Union of India [Supreme Court Employees’ Welfare
Assn. v. Union of India, (1989) 4 SCC 187 : 1989 SCC (L&S) 569]
[2023] 12 S.C.R. 87
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wherein it was held that no court can direct a legislature to enact a
particular law and similarly when an executive authority exercises a
legislative power by way of a subordinate legislation pursuant to the
delegated authority of a legislature, such executive authority cannot
be asked to enact a law which it has been empowered to do under
the delegated authority.
44. Recently, in Census Commr. v. R. Krishnamurthy [Census Commr.
v. R. Krishnamurthy, (2015) 2 SCC 796 : (2015) 1 SCC (L&S) 589] ,
the Court, after referring to Premium Granites v. State of T.N. [Premium
Granites v. State of T.N., (1994) 2 SCC 691] , M.P. Oil Extraction
v. State of M.P.[M.P. Oil Extrac-tion v. State of M.P., (1997) 7 SCC
592] , State of M.P. v. Narmada Bachao An-dolan [State of M.P. v.
Narmada Bachao Andolan, (2011) 7 SCC 639 : (2011) 3 SCC (Civ)
875] and State of Punjab v. Ram Lubhaya Bagga [State of Punjab v.
Ram Lubhaya Bagga, (1998) 4 SCC 117 : 1998 SCC (L&S) 1021] ,
held : (R. Krishnamurthy case [Census Commr. v. R. Krishnamurthy,
(2015) 2 SCC 796 : (2015) 1 SCC (L&S) 589] , SCC p. 809, para 33)
“33. From the aforesaid pronouncement of law, it is clear as noonday
that it is not within the domain of the courts to embark upon an enquiry
as to whether a particular public policy is wise and acceptable or
whether a better policy could be evolved. The court can only interfere
if the policy framed is absolutely capri-cious or not informed by
reasons or totally arbitrary and founded ipse dixit of-fending the basic
requirement of Article 14 of the Constitution. In certain mat-ters, as
often said, there can be opinions and opinions but the court is not
ex-pected to sit as an appellate authority on an opinion.”
45. At this juncture, we think it apt to clearly state that the judicial
restraint cannot and should not be such that it amounts to judicial
abdication and judicial passivism. The Judiciary cannot abdicate the
solemn duty which the Constitution has placed on its shoulders i.e. to
protect the fundamental rights of the citizens guaranteed under Part
III of the Constitution. The constitutional courts cannot sit in oblivion
when fundamental rights of individuals are at stake. Our Constitution has conceived the constitutional courts to act as defenders
against illegal in-trusion of the fundamental rights of individuals. The
Constitution, under its aegis, has armed the constitutional courts with
88 [2023] 12 S.C.R.
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wide powers which the courts should exercise, without an iota of
hesitation or apprehension, when the fundamental rights of individuals
are in jeopardy. Elucidating on the said aspect, this Court inVirendra
Singh v. State of U.P. [Virendra Singhv. State of U.P., AIR 1954 SC
447] has observed : (AIR p. 454, para 34)
“34. … We have upon us the whole armour of the Constitution and
walk from henceforth in its enlightened ways, wearing the breastplate
of its protecting pro-visions and flashing the flaming sword of its
inspiration.”
46. While interpreting fundamental rights, the constitutional courts
should remember that whenever an occasion arises, the courts have
to adopt a liberal approach with the object to infuse lively spirit and
vigour so that the fundamental rights do not suffer. When we say so,
it may not be understood that while interpreting fundamental rights,
the constitutional courts should altogether depart from the doctrine
of precedents but it is the obligation of the constitutional courts to act
as sentinel on the qui vive to ardently guard the fundamental rights
of individuals bestowed upon by the Constitution. The duty of this
Court, in this con-text, has been aptly described in K.S. Srinivasan
v. Union of India [K.S. Srinivasan v. Union of India, AIR 1958 SC
419] wherein it was stated : (AIR p. 433, para 50)
“50. … All I can see is a man who has been wronged and I can see
a plain way out. I would take it.”
47. Such an approach applies with more zeal in case of Article 32 of
the Constitution which has been described by Dr B.R. Ambedkar as
“the very soul of the Constitution — the very heart of it — the most
important Article”. Article 32 enjoys special status and, therefore, it
is incumbent upon this Court, in matters under Article 32, to adopt
a progressive attitude. This would be in consonance with the duty of
this Court under the Constitution, that is, to secure the inalienable
fundamental rights of individuals.”
(emphasis supplied)
19. The observations afore-referred are in perfect sync with what is
expected of Constitutional Courts. They are not restricted only to
Articles 32 or 226 of the Constitution but lay down a talisman of sorts.
[2023] 12 S.C.R. 89
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20. The learned ASG also submitted that the Appellants were entitled to
take an independent decision. This goes against their stand before
the learned Division Bench. If we were to agree with this, the obvious
import, then, would be that the Appellants were required to take a
decision independently. As noted in Paragraphs 5 and 11 of the
Impugned Judgment, the Appellants contended that the ECI was the
competent authority to allot symbols and not the Election Authority.
What then was the reason for the Appellants to shift stands? When
read in conjunction with the finding at Paragraph 13 of the Impugned
Judgment the Appellants’ acts leave no shred of doubt in our minds,
that circumstances forcing this Court to intercede have arisen. Let
us for a moment, however, consider that the Appellants, as now
sought to be projected, were entitled to arrive at an independent
decision. Yet, such decision could not be whimsical, arbitrary or
capricious. It would necessarily have to be: (a) in accordance with
lawful discretion; (b) reasonable, and; (c) equitable and just. The
Court would indicate that a genuine request, in the attendant facts,
could not have been turned down only on the ground that there was
no provision for the same, when such request could be acceded to
(i) without any violation of law, and; (ii) is within the jurisdictional
domain and capacity of the authority concerned, and; (iii) does not
prejudice any other stakeholder, and; (iv) does not militate against
public interest.
21. The High Court, being a Constitutional Court, is not, by any stretch
of imagination, precluded from issuing a direction of the nature
issued by it in the instant case, under Article 226 of the Constitution
of India, more so when such direction does not violate any statutory
provision. In High Court of Tripura v Tirtha Sarathi Mukherjee,
(2019) 16 SCC 663, this Court had answered, in the affirmative,
as to the power of the High Courts under Article 226 to direct for
actions, in a rare and exceptional situation, which do not find mention
in the provisions concerned. Noticing and relying upon High Court
of Tripura (supra), in Aish Mohammad v State of Haryana, 2023
SCC OnLine SC 736, we held:
“24. Moreover, the learned Civil Judge (Junior Division) found no
ground to interfere with the adverse remarks yet granted liberty to
the appellant to move for expunction thereof. The learned Civil Court
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erred in assuming that it had the power to do so, in the absence of any
such provision in the Punjab Police Rules, 1934. There may be cases
where a High Court under Articles 226 or 227 of the Constitution
of India or this Court in exercise of its constitutional powers may
specifically direct for fresh consideration of a representation, even
in the absence of specific provisions. In High Court of Tripura
v. Tirtha Sarathi Mukher-jee, (2019) 16 SCC 663, the question that
arose was whether, in the absence of a statutory provision, a writ
petitioner could seek re-evaluation of examination an-swer scripts?
Answering, this Court held:
“20. The question however arises whether even if there is no
legal right to demand re-valuation as of right could there arise
circumstances which leave the Court in any doubt at all. A
grave injustice may be occasioned to a writ applicant in
certain circumstances. The case may arise where even though
there is no provision for re-valuation it turns out that despite
giving the correct answer no marks are awarded. No doubt this
must be confined to a case where there is no dispute about
the correctness of the answer. Further, if there is any doubt,
the doubt should be resolved in favour of the examining body
rather than in favour of the candidate. The wide power under
Article 226 may continue to be available even though there
is no provision for re-valuation in a situation where a candidate
despite having giving correct answer and about which there
cannot be even the slightest manner of doubt, he is treated as
having given the wrong answer and consequently the candidate
is found disentitled to any marks.
21. Should the second circumstance be demonstrated to be
present before the writ court, can the writ court become helpless
despite the vast reservoir of power which it possesses? It is one
thing to say that the absence of provision for re-valuation will not
enable the candidate to claim the right of evaluation as a matter of
right and another to say that in no circumstances whatsoever where
there is no provision for re-valuation will the writ court exercise its
undoubted constitutional powers? We reiterate that the situation
can only be ra-re and exceptional.”
(emphasis supplied)”
(emphasis supplied by us via bolding)
[2023] 12 S.C.R. 91
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22. Elections to any office/body are required to be free, fair and
transparent. Elections lie at the core of democracy. The authority
entrusted by law to hold/conduct such elections is to be completely
independent of any extraneous influence/consideration. It is surprising
that the Union Territory of Ladakh not only denied R1 the Plough
symbol, but even upon timely intervention by the learned Single
Judge, has left no stone unturned not only to resist but also frustrate
a cause simply by efflux of time.
23. A detailed dive into the sequence of events is apposite. R1 was
before the concerned authorities, by way of representation, well in
time, and much before even the Notification dated 02/05.08.2023
was published, by impugning the Notification dated 26.07.2023 which
denied it the Plough symbol. R1 had moved the ECI, which opined,
by way of communication dated 18.07.2023 that the ECI does not
allocate any symbol for local body elections as the same falls within
the domain of the State Election Commission concerned. The ECI
stated that as there is no Legislative Assembly in the Union Territory
of Ladakh and the 1968 Order does not provide for recognition to
parties in a Union Territory without a Legislative Assembly, R1 could
not be recognised in the Union Territory of Ladakh. However, it was
further noted that as R1 is a recognized State Party in the Union
Territory of Jammu and Kashmir with its reserved symbol being the
Plough, it could avail concession under Paragraph 103
of the 1968
Order.
24. On 15.05.2023, the ECI updated its Notification dated 23.09.2021
specifying the names of recognised National and State Parties and
the list of free symbols where R1 was again recognised as a State
Party, though for the Union Territory of Jammu and Kashmir only.
On 31.05.2023, R1 made a representation to the Appellant No.2
seeking recognition as a State Party and for the allotment of the
Plough symbol to it for all elections in the Union Territory of Ladakh.
Appellant No.2 forwarded the said representation to Appellant No.3
for comments. On 07.06.2023, Appellant No.3 advised Appellant
No.2 to approach the ECI. On 08.06.2023, R1 sought recognition
3 Already extracted supra.
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as a State Party in the Union Territory of Ladakh and allotment of
the Plough symbol.
25. On 07.07.2023, R1 represented to Appellant No.2 seeking recognition
as a State Party in the Union Territory of Ladakh with the Plough
symbol. Appellant No.2 forwarded the said representation to Appellant
No.3 on 11.07.2023 and sought comments thereon. On 12.07.2023,
Appellant No.3 wrote to Appellant No.2, incorporating the opinion
of the Law Department, which was in favour of R1. Appellant No.3
indicated that R1 can be recognised and provided reserved symbol
for LAHDC elections by the Administration of Union Territory of
Ladakh under the relevant rules.
26. No action was taken and no order was passed pursuant to Appellant
No.3’s communication dated 12.07.2023 to Appellant No.2. Then,
the Election Department of the Union Territory of Ladakh issued a
Notification on 26.07.2023 notifying the list of reserved and free
symbols, in terms of the ECI’s Notification dated 15.05.2023. R1
approached the High Court on 29.07.2023 challenging the notification
dated 26.07.2023 and seeking a mandamus to notify the Plough
symbol as its reserved symbol for elections to LAHDC. The Writ
Petition being pending, on 05.08.2023, the Election Department of
the Union Territory of Ladakh notified the schedule of elections to
constitute the 5th LAHDC, Kargil. In such background, an interim
order came to be passed by the learned Single Judge and affirmed
by the learned Division Bench.
27. This Court notes, with concern, that the Appellants, while sitting on
the representation of R1, went ahead and notified the elections on
02/05.08.2023. We are unable to appreciate such conduct. This
recalcitrance to decide in time speaks volumes. Instances like these
raise serious questions.
28. Having considered the matter in extenso, the Court does not find any
merit in the present appeal. The request for allotment of the Plough
symbol by R1 was bonafide, legitimate and just, for the plain reason
that in the erstwhile State of Jammu and Kashmir (which included
the present Union Territory of Ladakh), it was a recognized State
Party having been allotted the Plough symbol. Upon bifurcation of
the erstwhile State of Jammu and Kashmir and the creation of two
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new Union Territories, namely the Union Territory of Jammu and
Kashmir and the Union Territory of Ladakh, though the ECI had
not notified R1 as a State Party for the Union Territory of Ladakh,
it cannot be simpliciter that R1 was not entitled for the allotment of
plough symbol to it, in the factual background. What is also clear
is that the Appellants are attempting to approbate and reprobate,
which this Court will not countenance.
29. In the present case, there is no conflict with any other stakeholder
for the reason that the Plough symbol is neither a symbol exclusively
allotted to any National or State Party nor one of the symbols shown
in the list of free symbols. Thus, there was and is no impediment in
such symbol being granted to R1. This is also fortified in the factual
setting of the Plough symbol being the reserved symbol for R1 in
the erstwhile State of Jammu and Kashmir and even for the Union
Territory of Jammu and Kashmir, as it now exists, where the same
symbol stands allotted to it.
30. The contention of the learned ASG for the Appellants that the Plough
symbol cannot be allotted, neither has been supported by any reason
nor any legal impediment to such grant has been shown. In the
absence of anything contrary in any rule framed for conduct of the
elections in question, relating to allotment of symbols, the provisions
of the 1968 Order can safely be relied upon, at the very least, as
a guideline to exercise of executive power of like nature. Thus, a
harmonious reading of Paragraphs 9, 10, 10(A) and 12 would clearly
indicate that under the terms of the 1968 Order, the request of R1
is not bereft of justification. At the cost of repetition, the Court would
indicate that nothing substantive has been shown to this Court to
indicate that allotment of the Plough symbol would in any way be
an infraction or go against the public interest.
31. Another major issue canvassed by the learned ASG on behalf of the
Appellants, to the effect that no relief be granted to R1 due to the
election process having reached the penultimate stage, unfortunately,
has also to be noted to be rejected. Having chosen, with eyes open,
to not comply with successive orders of the learned Single Judge
and the learned Division Bench, both of which were passed well in
time, such as not to stall/delay the notified election schedule, the
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Appellants cannot be permitted to plead that interference by us at
this late juncture should not be forthcoming.
32. The Court would categorically emphasize that no litigant should have
even an iota of doubt or an impression (rather, a misimpression) that
just because of systemic delay or the matter not being taken up by
the Courts resulting in efflux of time the cause would be defeated,
and the Court would be rendered helpless to ensure justice to the
party concerned. It would not be out of place to mention that this
Court can even turn the clock back, if the situation warrants such
dire measures. The powers of this Court, if need be, to even restore
status quo ante are not in the realm of any doubt. The relief(s) granted
in the lead opinion by Hon. Khehar, J. (as the learned Chief Justice
then was), concurred with by the other 4 learned Judges, in Nabam
Rebia and Bamang Felix v Deputy Speaker, Arunachal Pradesh
Legislative Assembly, (2016) 8 SCC 1 is enough on this aspect. We
know full well that a 5-Judge Bench in Subhash Desai v Principal
Secretary, Governor of Maharashtra, 2023 SCC OnLine SC 607
has referred Nabam Rebia (supra) to a Larger Bench. However,
the questions referred to the Larger Bench do not detract from the
power to bring back status quo ante. That apart, it is settled that
mere reference to a larger Bench does not unsettle declared law.
In Harbhajan Singh v State of Punjab, (2009) 13 SCC 608, a
2-Judge Bench said:
“15. Even if what is contended by the learned counsel is correct,
it is not for us to go into the said question at this stage; herein
cross-examination of the witnesses had taken place. The Court had
taken into consideration the materials available to it for the purpose
of arriving at a satisfaction that a case for exercise of jurisdiction
under Section 319 of the Code was made out. Only because the
correctness of a portion of the judgment in Mohd. Shafi [(2007) 14
SCC 544 : (2009) 1 SCC (Cri) 889 : (2007) 4 SCR 1023 : (2007) 5
Scale 611] has been doubted by another Bench, the same would
not mean that we should wait for the decision of the larger Bench,
particularly when the same instead of assisting the appellants runs
counter to their contention.”
(emphasis supplied)
[2023] 12 S.C.R. 95
UNION TERRITORY OF LADAKH & ORS. v.
JAMMU AND KASHMIR NATIONAL CONFERENCE & ANR.
33. In Ashok Sadarangani v Union of India, (2012) 11 SCC 321,
another 2-Judge Bench indicated:
“29. As was indicated in Harbhajan Singh case [Harbhajan Singh
v. State of Punjab, (2009) 13 SCC 608: (2010) 1 SCC (Cri) 1135],
the pendency of a reference to a larger Bench, does not mean that
all other proceedings involving the same issue would remain stayed
till a decision was rendered in the reference. The reference made in
Gian Singh case [(2010) 15 SCC 118] need not, there-fore, detain
us. Till such time as the decisions cited at the Bar are not modified
or altered in any way, they continue to hold the field.”
(emphasis supplied)
34. On the other hand, when it was thought proper that other Benches
of this Court, the High Courts and the Courts/Tribunals below stay
their hands, the same was indicated in as many words, as was the
case in State of Haryana v G D Goenka Tourism Corporation
Limited, (2018) 3 SCC 5854
:
“9. Taking all this into consideration, we are of the opinion that it
would be appropriate if in the interim and pending a final decision
on making a reference (if at all) to a larger Bench, the High Courts
be requested not to deal with any cases relating to the interpretation
of or concerning Section 24 of the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement
Act, 2013. The Secretary General will urgently communicate this order
to the Registrar General of every High Court so that our request is
complied with.
10. Insofar as the cases pending in this Court are concerned, we
request the Benches concerned dealing with similar matters to defer
the hearing until a deci-sion is rendered one way or the other on
the issue whether the matter should be referred to a larger Bench
or not. Apart from anything else, deferring the con-sideration would
avoid inconvenience to the litigating parties, whether it is the State
or individuals.”
(emphasis supplied)
4 The reference was eventually answered in Indore Development Authority v Manoharlal, (2020) 8
SCC 129.
96 [2023] 12 S.C.R.
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35. We are seeing before us judgments and orders by High Courts not
deciding cases on the ground that the leading judgment of this Court
on this subject is either referred to a larger Bench or a review petition
relating thereto is pending. We have also come across examples of
High Courts refusing deference to judgments of this Court on the
score that a later Coordinate Bench has doubted its correctness. In
this regard, we lay down the position in law. We make it absolutely
clear that the High Courts will proceed to decide matters on the basis
of the law as it stands. It is not open, unless specifically directed by
this Court, to await an outcome of a reference or a review petition,
as the case may be. It is also not open to a High Court to refuse
to follow a judgment by stating that it has been doubted by a later
Coordinate Bench. In any case, when faced with conflicting judgments
by Benches of equal strength of this Court, it is the earlier one which
is to be followed by the High Courts, as held by a 5-Judge Bench
in National Insurance Company Limited v Pranay Sethi, (2017)
16 SCC 6805
. The High Courts, of course, will do so with careful
regard to the facts and circumstances of the case before it.
36. We are conscious that, by way of certain pronouncements, some of
which are alluded to in this judgment, the Court extended principles
relating to elections to Parliament, State Assemblies and Municipalities
to other arenas as well. Indicatively, the interpretation of judgments
is always to be made with due regard to the facts and circumstances
of the peculiar case concerned6
. We have looked at Articles 243-O,
243ZG and 329 of the Constitution, and conclude that no bar hit the
High Court, even on principle. Apart from the judgments expressly
considered and dealt with, hereinbefore and hereinafter, we have
perused, out of our own volition, the decisions, inter alia, of varying
Bench-strength of this Court in N P Ponnuswami v Returning
Officer, Namakkal Constituency, 1952 SCR 2187
; Durga Shankar
Mehta v Thakur Raghuraj Singh, (1955) 1 SCR 267; Hari Vishnu
Kamath v Syed Ahmad Ishaque, (1955) 1 SCR 1104; Narayan
5 See Paragraphs 27 and 28 in the report on this point.
6 Sanjay Dubey v State of Madhya Pradesh, 2023 INSC 519 @ Paragraph 18.
7 Where the Court held that “The discussion in this passage makes it clear that the word “election” can
be and has been appropriately used with reference to the entire process which consists of several stages
and embraces many steps, some of which may have an important bearing on the result of the process.”, with
respect to Article 329(b) of the Constitution.
[2023] 12 S.C.R. 97
UNION TERRITORY OF LADAKH & ORS. v.
JAMMU AND KASHMIR NATIONAL CONFERENCE & ANR.
Bhaskar Khare (Dr) v Election Commission of India, 1957 SCR
1081; Mohinder Singh Gill v Chief Election Commissioner, (1978)
1 SCC 405; Lakshmi Charan Sen v A K M Hassan Uzzaman,
(1985) 4 SCC 689; Indrajit Barua v Election Commission of India,
(1985) 4 SCC 722; Election Commission of India v Shivaji, (1988)
1 SCC 277; Digvijay Mote v Union of India, (1993) 4 SCC 1758
; Boddula Krishnaiah v State Election Commissioner, Andhra
Pradesh, (1996) 3 SCC 416; Anugrah Narain Singh v State of
Uttar Pradesh, (1996) 6 SCC 303; Election Commission of India v
Ashok Kumar, (2000) 8 SCC 216; Kishansing Tomar v Municipal
Corporation, Ahmedabad, (2006) 8 SCC 352; West Bengal State
Election Commission v Communist Party of India (Marxist),
(2018) 18 SCC 141; Dravida Munnetra Kazhagam v State of Tamil
Nadu, (2020) 6 SCC 548; Laxmibai v Collector, (2020) 12 SCC
186, and last but not the least, State of Goa v Fouziya Imtiaz
Shaikh, (2021) 8 SCC 4019
. On scrutiny, in combination with the
timelines and facts of the matter herein, we are sure that the High
Court did not falter.
37. We would indicate that the restraint, self-imposed, by the Courts as
a general principle, laid out in some detail in some of the decisions
supra, in election matters to the extent that once a notification is
issued and the election process starts, the Constitutional Courts,
under normal circumstances are loath to interfere, is not a contentious
issue. But where issues crop up, indicating unjust executive action
or an attempt to disturb a level-playing field between candidates
and/or political parties with no justifiable or intelligible basis, the
Constitutional Courts are required, nay they are duty-bound, to step
in. The reason that the Courts have usually maintained a handsoff approach is with the sole salutary objective of ensuring that the
elections, which are a manifestation of the will of the people, are
taken to their logical conclusion, without delay or dilution thereof. In
the context of providing appropriate succour to the aggrieved litigant
8 Where, apropos Article 324 powers of the ECI, this Court held “However, it has to be stated this power
is not unbridled. Judicial review will still be permissible, over the statutory body exercising its functions affecting public law rights.”
9 Where the learned 3-Judge Bench has considered a catena of the precedents relevant to the issue(s)
before it.
98 [2023] 12 S.C.R.
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at the appropriate time10, the learned Single Judge acted rightly. In
all fairness, we must note that the learned ASG, during the course
of arguments, did not contest the power per se of the High Court to
issue the directions it did, except that the same amounted to denying
the Appellants their discretion. As stated hereinbefore, we are satisfied
that in view of the 1968 Order, the Appellants’ discretion was not
unbridled, and rather, it was guided by the 1968 Order.
38. The reasoning of the learned Single Judge, further expounded by
the learned Division Bench, leaves no doubt that the relief sought
by R1 was required to be granted and, accordingly, the same was
granted by the High Court. The stark factor which stares us in the
face is that well before and well in time, by way of the writ petition,
R1 had approached the Court of first instance (the learned Single
Judge), for the reliefs, which have been found due to them ultimately,
and upheld by the Appellate Court (the learned Division Bench). It is
the Appellants, who by virtue of sheer non-compliance of the High
Court’s orders, be it noted, without any stay, can alone be labelled
responsible for the present imbroglio. These stark facts cannot be
broadly equated with other hypothetical scenarios, wherein the facts
may warrant a completely hands-off approach.
39. This case constrains the Court to take note of the broader aspect
of the lurking danger of authorities concerned using their powers
relating to elections arbitrarily and thereafter, being complacent, rather
over-confident, that the Courts would not interfere. The misconceived
notion being that in the ultimate eventuate, after elections are over,
when such decisions/actions are challenged, by sheer passage
of time, irreversible consequences would have occurred, and no
substantive relief could be fashioned is just that – misconceived.
However, conduct by authorities as exhibited herein may seriously
compel the Court to have a comprehensive re-think, as to whether
the self-imposed restrictions may need a more liberal interpretation,
to ensure that justice is not only done but also seen to be done,
and done in time to nip in the bud any attempted misadventure. We
refrain from further comment on the Appellants, noting the pendency
of the contempt proceeding.
10 B S Hari Commandant v Union of India, 2023 SCC OnLine SC 413 @ Paragraph 50.
[2023] 12 S.C.R. 99
UNION TERRITORY OF LADAKH & ORS. v.
JAMMU AND KASHMIR NATIONAL CONFERENCE & ANR.
40. As made clear by us in the foregoing paragraphs, the situation
emanating herein is, in a manner of speaking, unprecedented. With
a sense of anguish, it would not be wrong to say that the instant
judgment has been invited upon themselves by the Appellants. The
orders of the High Court, in our considered opinion, were in aid of
the electoral process, and no fault can be found therewith.
41. The learned ASG’s submission that nobody representing R1 had
filed his/her nomination form, by the last date notified, is inapposite,
inasmuch as in the position existing, no candidate/representative
affiliated with R1 could have filled up the form as the Plough symbol
was neither a reserved symbol nor a free symbol, and thus, could
not have been opted for by any candidate when filing the nomination
form. The serious consequence was that R1’s identity as a political
party was eclipsed, right before the election to the LAHDC, where
it was the incumbent party in power.
42. This Court has previously bestowed consideration on the importance
of the symbol in an electoral system, especially one allotted to a
political party. Taking note of the 3-Judge Bench decision in Shri
Sadiq Ali v Election Commission of India, New Delhi, (1972)
4 SCC 664, another Bench of 3 learned Judges in All Party Hill
Leaders’ Conference, Shillong v Captain W A Sangma, (1977)
4 SCC 161 put it thus:
“29. For the purpose of holding elections, allotment of symbol will
find a prime place in a country where illiteracy is still very high. It has
been found from experience that symbol as a device for casting votes
in favour of a candidate of one’s choice has proved an invaluable
aid. Apart from this, just as people devel-op a sense of honour, glory
and patriotic pride for a flag of one’s country, simi-larly great fervour
and emotions are generated for a symbol representing a po-litical
party. This is particularly so in a parliamentary democracy which is
con-ducted on party lines. People after a time identify themselves
with the symbol and the flag. These are great unifying insignia which
cannot all of a sudden, be effacced.11”
(emphasis supplied)
11 Maintained as appearing in the SCC version available on SCC OnLine; should be read as ‘effaced’.
100 [2023] 12 S.C.R.
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43. Placing reliance on Shri Sadiq Ali (supra), a 2-Judge Bench summed
up as under, in Edapaddi K Palaniswami v TTV Dhinakaran,
(2019) 18 SCC 219:
“39. We say so because the efficacy of having a common symbol
for a polit-ical group has been underscored in Sadiq Ali v.
Election Commissionof India [Sadiq Ali v. Election Commission
of India, (1972) 4 SCC 664] . In para 21 of the said judgment, this
Court observed thus : (SCC pp. 674-75)
“21. … It is well known that overwhelming majority of the
electorate are il-literate. It was realised that in view of the
handicap of illiteracy, it might not be possible for the illiterate
voters to cast their votes 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 fea-ture of the
election law of India. … 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. Alt-hough the purpose which accounts
for the origin of symbols was of a limited character, the symbol
of each political party with the passage of time acquired a great
value because the bulk of the electorate associated the political
party at the time of elections with its symbol. …”
(emphasis supplied)
And again in paras 40 and 41 it is observed thus : (Sadiq Ali case
[Sadiq Ali v. Election Commission of India, (1972) 4 SCC 664] , p. 682)
“40. … It would, therefore, follow that Commission has been clothed
with plenary powers by the abovementioned Rules in the matter of
allotment of sym-bols. … If the Commission is not to be disabled
from exercising 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 rival claimants. … Para
[2023] 12 S.C.R. 101
UNION TERRITORY OF LADAKH & ORS. v.
JAMMU AND KASHMIR NATIONAL CONFERENCE & ANR.
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 political party
is not set at naught. … The Commission is an authority created by
the Constitution and according to Article 324, the superintendence,
direction and control of the elec-toral rolls for and the conduct of
elections to Parliament and to the Legislature of every State and of
elections to the office of President and Vice-President shall be vested
in the Commission. The fact that the power of resolving a dispute
be-tween two rival groups for allotment of symbol of a political party
has been vest-ed 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
would be exercised in a fair and reasonable manner.
41. … Article 324 as mentioned above provides that superintendence,
direc-tion and control of elections shall be vested in Election
Commission. …”
(emphasis supplied)
40. This decision in Sadiq Ali [Sadiq Ali v. Election Commission of
India, (1972) 4 SCC 664] has been followed in Kanhiya Lal Omar v.
R.K. Trivedi [Kanhiya Lal Omar v. R.K. Trivedi, (1985) 4 SCC 628]
and in para 10 thereof, the Court observed thus : (SCC pp. 635-36)
“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 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 succeed and the chasm dividing the political
parties should be so profound that a change of administration would
102 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
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, “on systematised 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 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 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.”
(emphasis supplied)”
(emphasis supplied by us via bolding)
44. For reasons aforesaid, the entire election process, initiated pursuant
to Notification dated 02.08.2023 issued by the Administration of Union
Territory of Ladakh, Election Department, UT Secretariat, Ladakh,
under S.O.53 published vide No.Secy/Election/2023/290-301 dated
05.08.2023 stands set aside. A fresh Notification shall be issued
within seven days from today for elections to constitute the 5th
Ladakh Autonomous Hill Development Council, Kargil. R1 is declared
entitled to the exclusive allotment of the Plough symbol for candidates
proposed to be put up by it.
45. Accordingly, this appeal stands dismissed with costs of Rs.1,00,000/-
(Rupees One Lakh) to be deposited in the Supreme Court Advocates
on Record Welfare Fund. The same be done within two weeks,
and receipt evincing proof thereof be filed with the Registry of this
Court within a week thereafter. IAs 170883/2023, 170885/2023 and
174512/2023 be treated as formally allowed.
[2023] 12 S.C.R. 103
UNION TERRITORY OF LADAKH & ORS. v.
JAMMU AND KASHMIR NATIONAL CONFERENCE & ANR.
46. Two further consequences flow:
(a) Writ Petition (Civil) No.1933 of 2023 pending at the High Court
at Srinagar is also disposed of in the above terms.
(b) CCP(S) No.340 of 2023, statedly listed next on 08.09.2023 before
the learned Single Judge, survives. The same be proceeded
with expeditiously, in accordance with law, considering the
present judgment.
Headnotes prepared by: Divya Pandey Result of the case : Appeal
dismissed.
