The Allahabad High Court while dismissing an election petition said that a political person is more conscious of his public image which is not an incorrect approach since a socially and politically active person who engaged with people of his area always wants to carry a good public image and good fan following. A political person is normally image conscious since it always carries with him.

A Single Bench of Justice Saurabh Shyam Shamshery passed this order while hearing an Election Petition filed by Rajender Kumar.

The issue raised before the Court is, whether due to efflux of time the election petition, which is arising out of a dispute of General Election-2014, when not only tenure of that Lok Sabha was already over in 2019 but tenure of present Lok Sabha is about to be over in 2024, i.e within few months, has become infructuous or if survives, it would only for an academic purpose?

The Election Petitioner-Rajender Kumar, an active member of a National Political Party (Bharatiya Janta Party) for last few decades, was set up as a candidate from 04-Bijnor Parliamentary Constituency of District Bijnor, Uttar Pradesh for Parliamentary Election of 2014.

He accordingly submitted his Nomination Form alongwith party symbol accompanied by Form A and Form B in accordance with provisions of Election Symbols (Reservation and Allotment) Order, 1968.

The Court noted that,

It appears that Returned Candidate was later on set up as a candidate for above referred Parliamentary Constituency and he also submitted Nomination Form alongwith all requisite documents.

The Election-Petitioner filed objections to the Nomination Form submitted by the Returned Candidate being set up by the same National Political Party. However, the Returning Officer vide order dated 24th March, 2014 rejected objections of Election-Petitioner and Nomination Form of Returned Candidate was accepted.

Rest is history, since Respondent-Kunwar Bhartendra Singh, was declared a Returned Candidate by defeating his nearest rival by more than 2.5 lacs votes and he in capacity of Member of Parliament from 04-Bijnor Parliamentary Constituency, has participated in proceedings of Parliament as well as undertaken other responsibilities as and when entrusted upon him.

Tenure of 16th Lok Sabha came to an end in 2019 and thereafter fresh election was conducted and respondent has again participated as a candidate of said National Political Party, however, this time he lost. It is also not in dispute that the tenure of the current Lok Sabha (17th Lok Sabha) is likely to conclude within a few months.

During arguments the Court has interacted with Election-Petitioner and Returned Candidate and found that there are no personal grudges between them, rather they have supported each other during their political career. The Election-Petitioner or his family members were also supported as and when they were set up for any other election by the same National Political Party and they are still good political friends.

The Election-Petitioner is mainly aggrieved that his Nomination Form submitted being a duly set up candidate by said National Political Party was erroneously rejected by the Returning Officer as well as there was no reason for National Political Party to set up respondent/Returned Candidate as it’s candidate when he was already set up as candidate and this act has dented his public image, not only in his political constituency but otherwise also.

In the election petition the relief sought by Election-Petitioner was to declare the result of Returned Candidate to be null and void and set aside the order dated 24.03.2014 whereby objections filed by petitioner were rejected and Nomination Form of Returned Candidate was accepted. No consequential relief was sought, i.e, for fresh election.

The Court further noted that,

Aforesaid reasons given by Returning Officer were only based on subsequent Form B submitted by Returned Candidate. Similarly the objections filed on behalf of Election-Petitioner which was rejected by Returning Officer on the same day, i.e, 24.03.2014 though referred that Returning Officer is barred from accepting any other form of communication regarding rescinding of notice as valid, except from notice in Form B submitted by prescribed time and for that he has placed reliance on Compendium of Instructions and as such affidavit sworn by authorised person of the party in favour of revised candidate has limited legal standing from the point of nominations.

Returning Officer further held that it cannot be denied that still it holds evidentiary value to support the contents of revised Form B submitted by Returned Candidate, i.e, the respondent herein, on the day of nomination, particularly in the face of doubts being expressed by the objectors on the genuineness of the revised Form B. Returning Officer further held that he cannot ignore the evidentiary value of the said affidavit, in summary inquiry, particularly, to prima facie prove the genuineness of revised Form B submitted by Returned Candidate and thus he accepted the Nomination Form of revised candidate.

The above referred reasoning does not contain any element of fraud or forgery in submitting Nomination Form by the Election-Petitioner being set up as a candidate by said National Political Party. The Returning Officer has given more evidentiary value to the affidavit as well as revised Form B submitted by the Returned Candidate that his form was also genuine.

Counsel for Election-Petitioner has argued that legal consequences would fall if this election petition is allowed but in my considered opinion this argument has no legal basis and for that I have carefully perused Section 125A of Representation of People Act, 1951 which prescribes penalty for filing false affidavits.

The Court observed that,

“In this regard a brief reference of the election petition would be relevant to the extent that the contents thereof do not effectively alleged that it was a case of false affidavit rather a case was set up that to issue a subsequent Form B was beyond power, therefore, according to my considered view no legal consequence would fall on Returned Candidate under Section 125A of Act, 1951 if this election petition is allowed.

I have also carefully perused Article 104 of the Constitution, which provides a penalty for sitting and voting before making oath or affirmation under Article 99 or when not qualified or when disqualified. However, according to my considered opinion the facts of the case do not fall under the said provision since Returned Candidate has subscribed an oath or affirmation to set up or set out under third schedule after duly elected in election and there was no allegation that election was not conducted properly. The only dispute was whether the Nomination Form of Election Petitioner was rejected wrongly or not and the Nomination Form of Returned Candidate was rightly accepted or not as evident from issues framed in this election petition on 13.04.2022. Subsequent proceedings or process of election have not been disputed. Therefore, no legal consequence would fall on the ground even if this election petition is allowed.

It appears that Election-Petitioner is carrying an impression that since his Nomination Form was rejected by Returning Officer, it amounts to be a dent on his public image that he has undertaken something illegal or there was something fishy in his Nomination Form. However, as referred above, from the bare perusal of order passed by the Returning Officer, the impression does not appear to be true. Therefore, the impression of Election-Petitioner is baseless which is also supported and evident by subsequent events, when both parties have admitted that said National Political Party has still confidence in Election Petitioner and his family members and party has set up his family members in other elections as its candidate.

The Court said that it is an old saying that in a political life, there are no permanent enemies or friends. Both Election-Petitioner and Returned Candidate have declared themselves to be dedicated workers of the said National Political Party and it also appears that this election petition was filed only to clear a cloud of doubt which might have been created by rejection of Nomination Form of Election-Petitioner. As referred above, this was only a misconception of the Election-Petitioner.

With aforesaid observations, the Court dismissed the election petition.

The Allahabad High Court on Thursday dismissed a PIL challenging the order of recognition given to the Bharatiya Janata Party (BJP) and the Indian National Congress (INC) as national parties by the Election Commission of India (ECI).

The Division Bench of Justice Devendra Kumar Upadhyay and Justice Saroj Yadav passed this order while hearing a PIL filed by Sheshmani Nath Tripathi.

These proceedings under Article 226 of the Constitution of India have ostensibly been instituted in public interest challenging an ECI order issued on September 19, 1989, whereby it has been observed that the BJP shall be recognized as a national party, for which symbol “Lotus” shall be reserved for it.

Similar prayer has been made challenging another order dated September 23, 1989 issued by the Election Commission, whereby it has been observed that Indian National Congress shall be a National Party for which symbol “Hand” shall be reserved.

The Court observed that though this petition has purportedly been filed in “public interest”, however, from the pleadings available on record, it can very well be inferred that the petitioner has attempted to espouse a personal cause as well.

The Court noted that the petitioner is a primary member of Samajwadi Party in Uttar Prades, which is a registered political party under section 29A of the Representation of People Act, 1951 and plea of discrimination in issuance of Letters of Registration under section 29A of the Act has been raised by stating that paragraph 3 in the impugned orders dated 19th September, 1989 and 23rd September, 1989 issued by the Election Commission in respect of two political parties, namely, BJP and INC, it has been provided that these parties shall be national parties and their election symbols shall also be reserved, however, similar provision is missing in the registration letter issued in respect of Samajwadi Party on 21st May, 1993.

The letters of registration issued by the Election Commission way back in the year 1989 are now being challenged after a lapse of about 32 years offering an explanation that in case of violation of fundamental rights conferred on the citizenry of this country in part III of the Constitution of India, delay is not material. Further explanation which has been sought to be given is that the impugned letters of registration have been challenged as the petitioner received reply to a query made by him under the Right to Information Act from the Election Commission by its letter dated May 12, 2021 enclosing therewith the letters of registration in response to his application dated April 15, 2021. The said reply, it has been stated, was received by the petitioner on October 27, 2021. The explanation offered for such inordinate delay in instituting the petition though is not satisfactory.

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The Court entertained the petition and proceeded to decide the same as an important issue has been raised in the petition pertaining to scope and ambit of section 29A of the Act and also the powers and jurisdiction of Election Commission under Article 324 of the Constitution of India.

It has been argued by the petitioner that the letters of registration dated 19th September, 1989 and 23rd September, 1989 have been issued by the Election Commission in exercise of its power vested in it under section 29A of the Act which clearly does not empower the Election Commission either to declare a political party as a National Party or to reserve its election symbol.

Drawing attention of the Court to the language used in section 29A of the Act, it has been submitted by the petitioner that the said provision empowers the Election Commission only to decide either to register an association or a body as a political party or not so to register it on consideration of the particulars and other relevant factors as required by the said section.

It has, thus, been urged that as per the scheme envisaged in section 29A of the Act, an association or a body of individuals is required to make an application for its registration as a political party giving particulars/information required under subsections 2, 3, 4 and 5 of section 29-A of the Act and the Election Commission after receiving the particulars/information, is mandated to consider the same and take a decision either to register the applicant as a political party or not to register it.

The petitioner further submitted that section 29-A of the Act does not in its ambit encompass the powers of recognizing a political party as a National Party or a State Party or to reserve the Election Symbol for such a political party.

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It has further been argued that the stipulation contained of the letters of registration dated 19th September, 1989 and 23rd September, 1989 is not available in the letters of registration issued by the Election Commission in respect of other political parties, such as Samajwadi Party, Rashtriya Rashtrawadi Party, Bahujan Samajwadi Party and Vikas Party.

It has, thus, been argued that the impugned stipulation in the letters of registration of two parties is missing in the letters of registration issued under section 29A of the Act in respect of other political parties, which is violative of Article 14 of the Constitution of India.

Tripathi has also submitted that it is not only that under section 29A of the Act the Election Commission is not allowed to allot symbols and grant recognition but also that there is no other authority available to the Election Commission to grant recognition or grant symbol to any political party. Reference in this regard has been made by the petitioner to the Election Symbols Order, 1968 who has stated that if a field is already covered by the statutory provisions, the Election Commission has to act within its bounds as circumscribed by the said statute and even Article 324 of the Constitution of India does not permit the Election Commission to travel beyond the scope of section 29A of the Act.

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On the other hand, Vijay Vikram Singh, counsel representing the Election Commission, has stated that the petition does not espouse the cause of any public interest and that the petition has been filed as Public Interest Litigation only as a camouflage for serving personal interest.

He has also argued that a delay of about 32 years in filing this petition has not been explained. On the merit, counsel representing the Election Commission has submitted that the letters of registration dated 19th September, 1989 and 23rd September, 1989 does not suffer from any illegality and as a matter of fact, the same are only a communication of the fact that these political parties were National Parties and that their symbols were reserved.

His submission, thus, is that recognition of a political party as a National Party or a State Party and reservation of symbols are the matters related to control of elections as such the Election Commission is fully empowered to issue Allotment Order, 1968 and that the letters of registration are referable to the said Order, 1968.

Submission made by the petitioner based on the ground that the letters of registration is violative of Article 14 of the Constitution of India  is rejected by the court for the reason that it has not been pleaded as to whether the other political parties in respect of whom the letters of registration have been issued (including Samajwadi Party to which the petitioner belongs to) were recognized as National/State Party or their elections symbols were reserved or by virtue of nonexistence of similar clause in their letters of registration, the parties concerned have been de-recognized and their election symbols have been de-reserved.

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The petitioner has also submitted that in absence of any statutory powers vested in the Election Commission of India in the field covered by the Act, the power to recognize a political party and to reserve the election symbol could not have been exercised by the Election Commission is also rejected by the court for the reason that the recognition of a political party as a National Party or a State Party and reservation of election symbol are the functions which are exercised by the Election Commission under the provisions of Election Symbols (Reservation and Allotment) Order, 1968, as amended from time to time.

Thus, the argument of the petitioner that the Election Commission does not have any authority to recognize a political party or to reserve an election symbol also fails, the court said while dismissing the petition.