New Delhi: Constitutional courts are duty-bound to step in if there is unjust executive action or an attempt is made to disturb a level-playing field among candidates or political parties with no justifiable or intelligible basis, the Supreme Court said Wednesday.
A bench of justices Vikram Nath and Ahsanuddin Amanullah made these strong remarks while quashing Union Territory (UT) of Ladakh’s notification issued on 2 August for the elections to the Ladakh Autonomous Hill Development Council (LAHDC), Kargil.
The bench led by Justice Vikram Nath also rejected Ladakh UT’s appeal against J&K High Court’s ruling that permitted the National Conference (NC) to fight the LAHDC elections on the “plough” symbol. It did not appreciate the UT administration’s move to notify the polls without taking a decision on NC’s representation to allot it the “plough” symbol. The representation, the court noted, was submitted well in time to the Chief Election Officer of the UT.
Consequently, the court said, the NC was eclipsed right before the election to the LAHDC, where it was the incumbent party in power.
“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,” the bench noted, while dismissing the appeal.
The bench directed that a fresh notification for the elections be issued within seven days from Wednesday.
It further imposed a cost of Rs 1 lakh, which the UT administration has to deposit within two weeks with the Supreme Court Advocates on Record Welfare Fund. The UT of Ladakh had moved the SC against J&K HC’s 14 August judgment, which upheld a single-judge bench’s order of 9 August accepting the NC’s plea to let it contest the LAHDC polls under the “plough” symbol.
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Dispute over ‘plough’
The dispute over the symbol began with the Election Commission of India (ECI) updating its notification of 23 September 2021, specifying names of recognised national and state parties and the list of free symbols where the NC was recognised as a state party, though for the J&K UT.
On 31 May 2023, the party made a representation to the Ladakh UT’s Chief Election Officer (CEO), seeking its recognition and allotment of the “plough” symbol to it for all elections in Ladakh. This representation was forwarded to Kargil’s district election officer for comments. In response, the district election officer on 7 June advised the CEO to approach the ECI.
On 7 July, the NC again moved the CEO of Ladakh UT, seeking recognition as a state party in the UT of Ladakh, with the “plough” symbol. This was again forwarded to the district election officer of Kargil, whose response, incorporating the law department’s opinion, favoured the NC. However, no action was taken on this letter sent on 12 July.
Meanwhile, the NC also approached the ECI, which responded on 18 July to say that as a national poll panel, it does not allocate symbols for local body elections, which can only be done by the state election commission concerned.
However, the ECI also stated that as there is no legislative assembly in the UT of Ladakh and the 1968 Order — related to allotment of election symbols — does not provide for recognition to parties in a UT without a legislative assembly, so the NC could not be recognised in the UT of Ladakh.
But the ECI also noted that since the NC is a recognised state party in J&K UT with its reserved symbol being the “plough”, it could avail concession under paragraph 10 of the 1968 Order.
Eventually, on 26 July, the election department of UT of Ladakh notified the elections, in terms of the ECI’s 15 May notification. This was challenged by the party before the HC on 29 July 2023. And, while the petition was pending, the election department notified the schedule of the elections.
Against this backdrop, the single judge bench passed an interim order in favour of the NC, which, on an appeal, was affirmed by the double bench.
“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,” the SC bench observed Wednesday.
It was “surprised” that the UT of Ladakh not only denied the “plough” symbol, but even upon timely intervention by the learned single judge, “left no stone unturned not only to resist but also frustrate a cause simply by efflux of time.”
The court observed, “with a sense of anguish,” that the UT had invited upon itself the top court’s decision to set aside the election notification. According to it, the HC order was in aid of the electoral process.
The bench was piqued when the counsel for Ladakh UT, additional solicitor general K.M. Natarajan, informed it that the election process had already commenced and it would not be appropriate for the court to intervene at such a stage.
The court agreed with the viewpoint, but said the restraint on judicial interference is under normal circumstances. Such a “hands-off approach is with the sole salutary objective of ensuring that the elections, which are a manifestation of the will of the people, are taken to their logical conclusion, without delay or dilution thereof.”
(Edited by Smriti Sinha)
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