Savvy Thakur
Published on: 19 October 2022 at 21:55 IST
On Wednesday, the Delhi High Court rejected the Samata Party’s appeal against the Election Commission of India’s decision to give Uddhav Thackeray’s Shiv Sena the flaming torch symbol for the next Maharashtra Assembly by-election in Andheri East.
The Samata was founded in 1994, and on October 24th, 1994, it gained recognition. Despite running in the Lok Sabha General Elections in 2009 and 2014, the party lost both times. The 2004 de-recognition of the party meant that it had exhausted its rights over the “flaming torch” symbol.
The single bench led by Justice Sanjeev Narula after hearing the party’s plea against the ECI decision, said that the petitioner party here has not able to prove its right over the symbol ‘flaming torch’.
The Court dismissed the application of petitioner stating that, “… in absence of any right demonstrable before this court, the petitioner cannot seek a mandamus for quashing of the impugned communication,”
The counsel representing the Samata Party argued that as the party had already contested 2014 elections under the said symbol, it was necessary for the ECI to issue notice before declaring the ‘flaming torch’ symbol as a free symbol and also allotting the same to any other party or candidate.
Further, it was submitted that the party addressed this matter with the ECI, but there was no response from the other side.
The counsel of ECI brought the court’s attention to the statutory provision under Clause 10A of the Election Symbols (Reservation and Allotment) Order, 1968, which provides for concession to candidates set up by an unrecognised party which was earlier recognised as a National or State party.
It was submitted that plain reading of the provisions does not disclose any concessional benefit to the Samata Party in the year 2022.
The counsel further contended that the Samata Party was not entitled to receive notice from the ECI.
The bench after hearing both sides said that, “Since the petitioner lost its status of a recognized party in 2004, the right, if any, on the symbol in question would have lapsed after expiry of six years in terms or clause 10A of the Election Symbol Order,”
The court also said that, “In such circumstances, the petitioner does not have any right over the symbol in question. If in the year 2004 the petitioner did contest election, that claim does not give a right in its favour in respect of the symbol in question.”
Samata Party expressed its discontent with the ECI order, which after rejecting the first two choices given by Thackeray-led group the name Shiv Sena (Uddhav Balasaheb Thackeray) and permitted it to use the “flaming torch symbol,” in a petition submitted through party president Uday Mandal.
On October 8, this year, until the dispute between Thackeray and Eknath Shinde, who is currently the CM of Maharashtra, for the official recognition is finally resolved, the ECI had instructed both Thackeray and Eknath Shinde groups to refrain from using the official name Shiv Sena for their rival factions and the symbol “bow and arrow.”
Uddhav then submitted fresh applications for allotment of party name and symbol. Then on October 10, the first option on ‘Trishul’ was discarded by the ECI stating that it violates Section 10(B)(A)(iv) of the Election Symbols (Reservation and Allotment) Order, 1968 and that the symbol is also Shinde group’s first choice.
Then the second choice of Uddhav led party was “Rising Sun” which was again declined as it was already party symbol of the ‘Dravida Munnetra Kazhagam’, a recognized political party in the state of Tamil Nadu and Union Territory of Puducherry.
The “flaming torch” symbol was granted by the ECI, who noted that it “is not in the list of free symbols” and was formerly used by a party that was de-recognized in 2004. However, ECI decided to make it a free symbol in response to a request made by Uddhav’s group.
Relatedly, Thackeray had already filed a suit with the Delhi High Court challenging the ECI’s decision to put the Shiv Sena’s bow and arrow party symbol on hold. Despite the fact that Thackeray had requested the allocation of a symbol of his selection and a guideline that his options be not limited to the list of free symbols notified under the Symbols Order in his alternative prayer before the court, the ECI eventually allotted the “Flaming Torch” symbol to his faction.
However, there is still a need to see how the plea proceedings develops.