Supreme Court sets aside the Election of Ladakh Autonomous Hill Development Council, Kargil - Plough Symbol to be allotted to the National Conference

 

A Case Note on Union Territory of Ladakh & Ors. v. Jammu and Kashmir National Conference & Anr., 2023 INSC 804

 

Facts

 

1. The Election Commission of India (ECI) had recognized National Conference as a State Party only for the Union Territory of Jammu and Kashmir.

 

2. Jammu and Kashmir National Conference/Respondent No.1 (National Conference) applied for seeking recognition as a State Party in Union Territory of Ladakh and allocation of the ‘Plough’ symbol for its candidates to contest all elections in the Union Territory of Ladakh (UT of Ladakh). This representation was made to Chief Election Officer, UT of Ladakh (CEO).

 

3. The CEO of UT of Ladakh forwarded this representation to District Election Officer, Kargil (DEO, Kargil) for comments. The DEO Kargil advised the CEO of UT of Ladakh to approach the ECI.

 

4. The National Conference had also approached the ECI that had opined that it does not allocate any symbol for any Local Body Elections as there is no legislative assembly in the UT of Ladakh and the same falls within the domain of the State/Local Election Authorities. Thus, National Conference could not be recognized in the UT of Ladakh. However, it was noted that since National Conference is a recognized party in the UT of J&K, it could avail concession under the Election Symbols (Reservation and Allotment) Order, 1968 (1968 Order).

 

5. Meanwhile, the General Elections of the Ladakh Autonomous Hill Development Council, Kargil (LAHDC) that fell within the Union Territory of Ladakh, were announced.

 

6. Thereafter the National Conference made another representation to CEO of UT of Ladakh that was forwarded to DEO, Kargil. The DEO, Kargil commented by attaching an opinion of Law Department, UT of Ladakh that was in favour of National Conference. However, no formal order was passed in this regard by CEO of UT of Ladakh.

 

7. Later, a Notification was issued by the UT of Ladakh that provided for reserved and free symbols that excluded NC’s claim.

 

8. Aghast by the same, the National Conference approached the High Court seeking the writ of mandamus to notify the Plough Symbol as its reserved symbol for elections to LAHDC.

 

9. During the pendency of the Petition, the Election Department of Union Territory of Ladakh notified the schedule of LAHDC Elections.

 

10. During the pendency of the Petition, the Election Department of Union Territory of Ladakh notified the schedule of LAHDC Elections.

 

11. After that, the High Court passed an Interim Order stating that the National Conference should approach the Election Authorities and the said Authorities shall notify the symbol allotted to the National Conference and allow its candidates to contest on the Plough Symbol already allotted to the party.

 

12. The UT of Ladakh and Election Authorities approached the Division Bench of the High Court against this Interim Order that dismissed the Appeal.

 

13. The matter came up before the Supreme Court.

 

Basically, the factual matrix indicates that without deciding some of the Representations preferred by the National Conference, the Election Authorities went on with the initiation of electoral process for LAHDC.

 

Arguments by the UT of Ladakh and Election Authorities

 

1. LAHDC elections are being conducted by the UT of Ladakh constituted under LAHDC Election Rules of 1995, and the ECI is empowered to hold elections to the Parliamentary and State Assemblies only. For LAHDC, the ECI does not have any authority.

 

2. The concession under the 1968 Order can only be granted for the purposes of Parliamentary and State Assembly Elections.

 

3. The opinion of the Law Department of UT of Ladakh is at best advisory and not binding on the Electoral Authorities of UT of Ladakh.

 

4. No candidate has the Plough Symbol or has indicated that it is a candidate of NC, in the Nomination Form.

 

5. The process of LAHDC Elections has been set in motion. Only the polling remains on 10.09.2023.

 

Arguments by National Conference (NC)

 

1. NC is the incumbent ruling party in LAHDC and was entitled to Plough Symbol.

 

2. Plough Symbol is well-known to the Electorate and denial of the same would cause unjustified prejudice to NC.

 

3. Despite a Contempt Case pending, the Election Authorities have not complied with the orders of the High Court.

 

4. Appellants cannot approbate and reprobate by saying that one part of the 1968 Order would be applicable and the other would not be. Rule 10 provides that concession to candidates set up by a State Party at elections in other states or Union Territories may be given.

 

View of the Supreme Court

 

1. Opinion of the Law Department of UT of Ladakh is not binding.

 

2. The earlier stand of the Electoral Authorities of UT of Ladakh is that ECI is the competent body to allot symbols. The reason for the change of this stance is not obvious. It seems a clear case of Approbating and Reprobating stance.

 

3. Even if the Election Authorities can take independent decisions without being influenced by ECI, then also, the discretion to be exercised by them must be done in a reasonable, equitable and lawful manner, without causing prejudice to other stakeholders.

 

4. “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.”

 

5. The request of NC bona fide and legitimate because it is already a recognized State Party having been allotted the Plough Symbol.

 

6. There is no conflict with other stakeholders as such symbol has not been allotted to any other national or state party.

 

7. It cannot be said that the ECI does not have jurisdiction under the 1968 Order.

 

8. Even if the electoral process has commenced, the court cannot turn a blind eye to the fact that the NC approached the authorities and the court within time and despite, orders passed by the High Court, there has been non-compliance of the same.

 

9. “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.”

 

10. In case of unjust executive action, the Constitutional Courts are bound to step in.

 

11. “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.”

 

12. The candidates could not have filled the Nomination with Plough Symbol as the identity of NC as a political party was eclipsed, right before the elections to the LAHDC, where it was the incumbent party in power.

 

13. “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 develop a sense of honour, glory and patriotic pride for a flag of one's country, similarly great fervour and emotions are generated for a symbol representing a political party. This is particularly so in a parliamentary democracy which is conducted 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.”

 

Held by the Court

 

1. The entire election process of LAHDC was set aside and the Court directed for issuance of a fresh notification. 

2. The NC was declared entitled to the exclusive allotment of the Plough Symbol in this regard. 

3. Cost of Rs. 1 Lakh was imposed on the Appellants.