Exercise of Plenary powers by Election Commission: What SC ruled in TTV Dhinakaran v. E Palaniswamy

In the pressure cooker symbol dispute between the TTV Dhinakaran and E Palaniswamy factions, the Supreme Court today directed that if the Delhi High Court does not dispose of the writ petition in this regard within four weeks, the Election Commission should process the application preferred by TTV Dhinakaran group to use an election symbol and a name of choice..A Bench of Justices AM Khanwilkar and Ajay Rastogi also ordered that in the event, before the expiry of the stated period, the Election Commission intends to issue any Press Note or Notification for announcing the by-elections in respect of the vacant Assembly Constituencies in the State of Tamil Nadu or Parliamentary Elections for 2019, it shall pass appropriate directions pursuant to the order of Delhi High Court dated March 9, 2018..In the process, the Court ruled that the Election Commission can exercise plenary powers under paragraph 18 of the Symbols Order and / or Article 324 of the Constitution to pass interim directions regarding the allotment of symbols..Ever since the death of party supremo J Jayalalithaa, there has been constant infighting between various groups within the AIADMK party. Presently, there are two factions, which are up against each other and are laying claim to Jayalalithaa’s political legacy..One faction is led by Jayalalithaa’s former associate and close friend Sasikala and her nephew TTV Dhinakaran, while the other one is led by current Tamil Nadu Chief Minister E Palaniswami and Deputy CM O Panneerselvam, referred to as the OPS-EPS faction..In March 2017, the Election Commission had frozen the traditional ‘two leaves’ symbol of the party and had allotted new symbols to both the warring factions as an interim measure..Subsequently, after the groups led by OPS and EPS merged and became one faction, the Election Commission, in November the same year, recognised it as the real party and allowed it to use the ‘two leaves’ symbol..The TTV Dinakaran faction then approached the Delhi High Court by way of a writ petition against the said decision of the EC. It has claimed that it is the real AIADMK and that the order by EC was biased and given at the behest of the Centre..In December 2017, the Election Commission allotted the ‘pressure cooker’ symbol to the Dinakaran faction to contest the RK Nagar bypoll (formerly contested by Jayalalithaa), which it eventually won by a large margin..TTV camp then filed an interim application in Delhi High Court praying that they be allowed to use a suitable name for carrying out its political activities, during the pendency of the writ petition..On March 9, 2018, Justice Rekha Palli of Delhi High Court allowed the prayers and directed the EC to pass an appropriate order permitting TTV Dhinakaran faction to use a common symbol preferably the “Pressure Cooker”, and also permit them to use the name of their choice, after giving them an appropriate hearing..E Palaniswami appealed to the Supreme Court against this order of the High Court. It also prayed for allocation of ‘pressure cooker’ symbol for contesting local elections during the pendency of the writ petition..When the matter came up for hearing on March 28, it was pointed out to the Supreme Court that the impending elections to the local bodies were countermanded and as a result, the basis for instituting the interim application by EPS did not exist..In an order passed on March 28, the Supreme Court directed the Chief Justice of Delhi High Court to constitute a Division Bench to decide the dispute. It also kept in abeyance, the order passed by the single judge Bench..It also granted liberty to the parties to approach the Supreme Court in the event of issuance of any new notification for election..Subsequently, in January 2019 TTV Dhinakaran filed the present application stating that the by-election to fill up the vacant Assembly Constituency of 168-Thiruvarur has been notified by the ECI. He prayed for allotment of a symbol, preferably pressure cooker and use of a name of choice for contesting the upcoming elections..The Court considered the plenary powers of the Election Commission to pass interim orders regarding allotment of symbols. It noted that the Election Commission in the past has exercised plenary powers under paragraph 18 for issuing interim directions regarding allocation of common symbols to the two factions, when the dispute under the Symbols Order was still pending before it..Thus, if the dispute is pending enquiry before ECI or the final decision of the ECI is sub-judice in the proceedings before the constitutional court, providing for an equitable arrangement in the interests of free and fair elections, and to provide equal level playing field to all concerned, would be a just and fair arrangement, the Court held..Further, the Court also said that assuming that the provisions of the Symbols Order do not predicate the nature of directions that may have to be issued by the ECI, nothing prevents the ECI to exercise its expansive and plenitude of plenary powers under Article 324 of the Constitution of India to deal with the situation such as the present one for ensuring conduct of free and fair elections. That would be more so when the dispute between the two factions is still sub-judice, the Court ruled..Read the judgment below.