Milan Gupta v. State Election Commission

RAJIV SAHAI ENDLAW, J MARCH 18, 2016

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*IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 18th March, 2016 + W.P.(C) 8523/2011 MILAN GUPTA ..... Petitioner Through: Petitioner in person. Versus STATE ELECTION COMMISSION & ANR. ..... Respondents Through: Ms. Meenakshi Midha and Mr. Siddhartha Nagpal and Ms. Jyoti Nagpal, Advs. for R-1. Mr. P.R. Chopra, Adv. for ECI. CORAM:- HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This petition was filed seeking (i) mandamus to the then sole respondent State Election Commission (SEC), National Capital Territory (NCT) of Delhi to allot a free symbol with immediate effect to the petitioner for contesting the Municipal Corporation of Delhi (MCD) elections in 2012; (ii) declaration that election symbol opted for by more than one independent candidate shall be allotted to the candidate who has already contested the previous election on that election symbol from that same ward; and, (iii) direction to the respondent SEC to, make such amendments in the Delhi Election Symbols (Reservation and Allotment) Order, 2007 as may be necessary for registration of political parties that intend to contest ward elections to MCD. 2. This petition came up first before this Court on 5th December, 2011 when it was felt that the Election Commission of India (ECI) is a necessary party for examination of the issues raised in the petition. Accordingly, ECI was impleaded as respondent no.2 and notice of the petition issued. 3. Counter affidavit has been filed only by the respondent no.1 SEC; the counsel for the respondent no.2 ECI stated that no reply is required to be filed. 4. Since the petitioner was appearing in person, Mr. Aly Mirza, Advocate was appointed as an Amicus Curiae and though he appeared for some dates but has neither filed any written submissions as directed nor appeared when arguments were heard on 20th July, 2015 and judgment reserved. 5. It was the case of the petitioner (i) that he intended to contest the ward elections to MCD due in the year 2012 as an independent candidate; (ii) that all the political parties had already begun to prepare for the said elections and the political parties as the BJP and the Congress had already begun to display their election symbols in ward areas and had begun to put up posters with election symbols at various places in Municipal wards; (iii) it is a bare minimum requirement of even the best political candidates to have an electoral symbol; without spreading and campaigning with such an election symbol, not even the best candidates holding affection of the voters can ever win an election because the ballot papers do not hold his name but have his election symbol; (iv) that the petitioner was utterly handicapped to campaign without an election symbol; (v) though the petitioner had represented to the respondent no.1 SEC in this regard but to no avail; (vi) that the petitioner is not desirous of a reserved symbol like the National Political Parties; the petitioner merely wants a symbol from the list of free symbols which are not part of the reserved symbols; (vii) the conduct of SEC of not allotting even a free symbol to the petitioner while at the same time allowing the large political parties to campaign with their reserved symbols is discriminatory; (viii) as per para 4(e)(iii) of the Delhi Election Symbols (Reservation and Allotment) Order, 2007 (Election Symbols Order 2007) upon more than one independent candidates choosing the same election symbol, the Returning Officer is to decide the allotment by a draw of lots; (ix) this drawing of lots compels even further expenditure for an independent candidate who is contesting the elections for the second time in a subsequent election in the same ward; in the same ward, where people have already begun to recognise such candidate with an election symbol in the previous election, the people have to be re-told that the candidate"s election symbol has changed, requiring wasteful expenditure to be incurred and again placing large National Parties, having r