The Delhi high court has held that political parties cannot consider election symbols as their 'exclusive property' and the right to use a symbol can be lost if a party's performance is dismal.
The high court's observation came while dismissing an appeal by Samata Party challenging a single judge's order which had rejected its plea against allotment of 'flaming torch' election symbol to the Uddhav Thackeray faction of the Shiv Sena.
The appellant party claimed that the 'flaming torch' symbol belonged to it and that it had contested elections on it.
A bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad also referred to a previous verdict of the Supreme Court in Subramanian Swamy vs Election Commission of India case and said the judgment further stated 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 parties concerned cannot consider the symbol as its exclusive property. The Election Symbols (Reservation And Allotment) Order, 1968 makes it very clear that the right to use the symbol can be lost with the dismal performance of the party,' the bench said in its order.
It said even though Samata Party members were permitted to use the flaming torch symbol, the symbol has become a free symbol with the party having been de-recognised in 2004 and it was within the domain of the Election Commission to allot the same to any other party.
'No fault can be found with the communication-cum-order dated October 10, 2022 issued by the Election Commission of India allotting the symbol of 'flaming torch' to 'Shiv Sena (Uddhav Balasaheb Thackeray)' and the Order dated October 19, 2022, passed by the single judge...,' it said.
The bench said a reserved symbol is the one which is reserved for a recognised political party for exclusive allotment to contesting candidates fielded by that party and Samata Party was de-recognised as a state party in 2004.
Earlier in October, the single judge had dismissed the petition saying that in the absence of any right demonstrable before the court, the petitioner cannot seek a mandamus for quashing the EC's order and that the party has not demonstrated any right over the symbol. It had noted that the party was de-recognised in 2004.
The petitioner, in its appeal, said that the single judge had dismissed its plea on the very first date of hearing without issuing notice to the EC, Shiv Sena and Maharashtra Chief Minister Eknath Shinde.
The petitioner has assailed the October 10 order of EC on the grounds that 'flaming torch' was a "reserved" symbol and could not have been given to Shiv Sena (Uddhav Balasaheb Thackeray) without first issuing a notification that it had been made a "free" symbol.
In its plea, the petitioner stated it was formed in 1994 by George Fernandes and Nitish Kumar as an 'offshoot of the Janata Dal' and was given the 'flaming torch' symbol by the EC.
The plea stated that the petitioner was 'striving to revive itself and is going to contest the upcoming elections and people have recognised the petitioner party from its symbol for more than four decades and now great prejudice would be caused to the petitioner party if the same symbol is allotted to some other party'.
The Election Commission had defended the allotment and said there was no requirement under the law to issue any notification, as claimed by the petitioner, before passing the allotment order.
While dealing with the dispute between the rival factions of the Shiv Sena, the EC had on October 10 issued a communication allotting the flaming torch symbol to the Uddhav Thackeray faction for the time being.
It had said the symbol was not in the list of free symbols and was an 'erstwhile reserved symbol' of the now derecognised Samata Party but it has decided to allot the same on a request to declare it a free symbol.
Eknath Shinde, the current Maharashtra chief minister and the leader of the rival Shiv Sena faction, had raised a banner of revolt against Thackeray earlier this year, accusing him of entering into an 'unnatural alliance' with the Congress and the Nationalist Congress Party.
Over 40 of the Shiv Sena's 55 MLAs had supported Shinde, forcing the resignation of Thackeray from the post of Maharashtra Chief Minister.
Following Thackeray's resignation, Shinde became the chief minister with the support of the BJP.
Twelve of the 18 Lok Sabha members of the Shiv Sena also came out in support of Shinde, who later claimed to be the leader of the original Shiv Sena.
The Andheri East bypoll, in which polling was held on November 3, is the first after Shinde and the BJP unseated the MVA from power and formed a coalition government.
Thackeray has also approached the Delhi High Court seeking quashing of the order of the EC freezing party name - Shiv Sena and its election symbol 'bow and arrow' and the plea has been dismissed.
