Election symbols not exclusive property of political parties, can be lost with dismal electoral performance: Delhi High Court

The Delhi High Court recently held that political parties cannot consider the election symbols given to them as their exclusive property, and that the right to use the symbol can be lost if they lose elections. [Samata Party Through Shri Uday Kr Mandal Its President v. Election Commission of India and Others]..A Division Bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad cited the Supreme Court’s decision in Subramanian Swamy vs. Election Commission of India and said 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 Court held..The Court dismissed an appeal by Samata Party against the order of a single-judge rejecting its plea challenging the Election Commission of India’s decision to award the flaming torch symbol to Uddhav Thackeray's Shiv Sena faction..Samata Party was initially formed in 1994 by former Defence and Railway Minister George Fernandes and Bihar Chief Minister Nitish Kumar. It is now led by Uday Mandal.The party was an offshoot of the Janata Dal and largely merged with the Janata Dal (United) in 2003. However, some of the leaders continued with the Samata Party name and symbol. It was finally derecognised by the Election Commission in 2004 and lost the symbol..The flaming torch symbol was assigned to Thackeray's faction by the Election Commission earlier this month. His party will be contesting the Andheri East by-elections on the same symbol..Samata Party moved the Delhi High Court last month arguing that even though it was derecognised in 2004, the symbol was allotted to the party for the general elections held in 2014.However, single-judge Justice Sanjeev Narula dismissed the plea, holding that the party had failed to prove any demonstrable right over the symbol in question since it lost its status as a 'recognised party' in the year 2004..After considering the arguments, the Division Bench noted that even though the members of the Samata Party were permitted to use the symbol of 'flaming torch', as the party was de-recognized in the year 2004, it had become a 'free symbol'.It was, therefore, within the domain of the Election Commission of India to allot the same to any other party, the Court said.“No fault can be found with the communication-cum-order dated 10th October, 2022 issued by the Election Commission of India allotting the symbol of ‘flaming torch’ to “Shiv Sena (Uddhav Balasaheb Thackeray)” and the Order dated 19.10.2022, passed by the learned Single Judge in W.P.(C) 14830/2022 affirming the said Order,” the Court concluded..Advocates Bibhuti Bhusan Mishra, Shweta Priya, Shivalika, Kamlesh Kumar Mishra, Shubham Chauhan and Kailash Jha appeared for Samata Party.The respondents were represented by Advocates Sidhant Kumar, Manyaa Chandok and Vidhi Udhay Shankar..[Read Order]