Allahabad High Court dismisses PIL challenging ECI recognition of BJP, Congress as national parties

The Allahabad High Court on Thursday dismissed a PIL challenging the order of recognition given to the Bharatiya Janata Party (BJP) and the Indian National Congress (INC) as national parties by the Election Commission of India (ECI).

The Division Bench of Justice Devendra Kumar Upadhyay and Justice Saroj Yadav passed this order while hearing a PIL filed by Sheshmani Nath Tripathi.

These proceedings under Article 226 of the Constitution of India have ostensibly been instituted in public interest challenging an ECI order issued on September 19, 1989, whereby it has been observed that the BJP shall be recognized as a national party, for which symbol “Lotus” shall be reserved for it.

Similar prayer has been made challenging another order dated September 23, 1989 issued by the Election Commission, whereby it has been observed that Indian National Congress shall be a National Party for which symbol “Hand” shall be reserved.

The Court observed that though this petition has purportedly been filed in “public interest”, however, from the pleadings available on record, it can very well be inferred that the petitioner has attempted to espouse a personal cause as well.

The Court noted that the petitioner is a primary member of Samajwadi Party in Uttar Prades, which is a registered political party under section 29A of the Representation of People Act, 1951 and plea of discrimination in issuance of Letters of Registration under section 29A of the Act has been raised by stating that paragraph 3 in the impugned orders dated 19th September, 1989 and 23rd September, 1989 issued by the Election Commission in respect of two political parties, namely, BJP and INC, it has been provided that these parties shall be national parties and their election symbols shall also be reserved, however, similar provision is missing in the registration letter issued in respect of Samajwadi Party on 21st May, 1993.

The letters of registration issued by the Election Commission way back in the year 1989 are now being challenged after a lapse of about 32 years offering an explanation that in case of violation of fundamental rights conferred on the citizenry of this country in part III of the Constitution of India, delay is not material. Further explanation which has been sought to be given is that the impugned letters of registration have been challenged as the petitioner received reply to a query made by him under the Right to Information Act from the Election Commission by its letter dated May 12, 2021 enclosing therewith the letters of registration in response to his application dated April 15, 2021. The said reply, it has been stated, was received by the petitioner on October 27, 2021. The explanation offered for such inordinate delay in instituting the petition though is not satisfactory.

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The Court entertained the petition and proceeded to decide the same as an important issue has been raised in the petition pertaining to scope and ambit of section 29A of the Act and also the powers and jurisdiction of Election Commission under Article 324 of the Constitution of India.

It has been argued by the petitioner that the letters of registration dated 19th September, 1989 and 23rd September, 1989 have been issued by the Election Commission in exercise of its power vested in it under section 29A of the Act which clearly does not empower the Election Commission either to declare a political party as a National Party or to reserve its election symbol.

Drawing attention of the Court to the language used in section 29A of the Act, it has been submitted by the petitioner that the said provision empowers the Election Commission only to decide either to register an association or a body as a political party or not so to register it on consideration of the particulars and other relevant factors as required by the said section.

It has, thus, been urged that as per the scheme envisaged in section 29A of the Act, an association or a body of individuals is required to make an application for its registration as a political party giving particulars/information required under subsections 2, 3, 4 and 5 of section 29-A of the Act and the Election Commission after receiving the particulars/information, is mandated to consider the same and take a decision either to register the applicant as a political party or not to register it.

The petitioner further submitted that section 29-A of the Act does not in its ambit encompass the powers of recognizing a political party as a National Party or a State Party or to reserve the Election Symbol for such a political party.

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It has further been argued that the stipulation contained of the letters of registration dated 19th September, 1989 and 23rd September, 1989 is not available in the letters of registration issued by the Election Commission in respect of other political parties, such as Samajwadi Party, Rashtriya Rashtrawadi Party, Bahujan Samajwadi Party and Vikas Party.

It has, thus, been argued that the impugned stipulation in the letters of registration of two parties is missing in the letters of registration issued under section 29A of the Act in respect of other political parties, which is violative of Article 14 of the Constitution of India.

Tripathi has also submitted that it is not only that under section 29A of the Act the Election Commission is not allowed to allot symbols and grant recognition but also that there is no other authority available to the Election Commission to grant recognition or grant symbol to any political party. Reference in this regard has been made by the petitioner to the Election Symbols Order, 1968 who has stated that if a field is already covered by the statutory provisions, the Election Commission has to act within its bounds as circumscribed by the said statute and even Article 324 of the Constitution of India does not permit the Election Commission to travel beyond the scope of section 29A of the Act.

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On the other hand, Vijay Vikram Singh, counsel representing the Election Commission, has stated that the petition does not espouse the cause of any public interest and that the petition has been filed as Public Interest Litigation only as a camouflage for serving personal interest.

He has also argued that a delay of about 32 years in filing this petition has not been explained. On the merit, counsel representing the Election Commission has submitted that the letters of registration dated 19th September, 1989 and 23rd September, 1989 does not suffer from any illegality and as a matter of fact, the same are only a communication of the fact that these political parties were National Parties and that their symbols were reserved.

His submission, thus, is that recognition of a political party as a National Party or a State Party and reservation of symbols are the matters related to control of elections as such the Election Commission is fully empowered to issue Allotment Order, 1968 and that the letters of registration are referable to the said Order, 1968.

Submission made by the petitioner based on the ground that the letters of registration is violative of Article 14 of the Constitution of India  is rejected by the court for the reason that it has not been pleaded as to whether the other political parties in respect of whom the letters of registration have been issued (including Samajwadi Party to which the petitioner belongs to) were recognized as National/State Party or their elections symbols were reserved or by virtue of nonexistence of similar clause in their letters of registration, the parties concerned have been de-recognized and their election symbols have been de-reserved.

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The petitioner has also submitted that in absence of any statutory powers vested in the Election Commission of India in the field covered by the Act, the power to recognize a political party and to reserve the election symbol could not have been exercised by the Election Commission is also rejected by the court for the reason that the recognition of a political party as a National Party or a State Party and reservation of election symbol are the functions which are exercised by the Election Commission under the provisions of Election Symbols (Reservation and Allotment) Order, 1968, as amended from time to time.

Thus, the argument of the petitioner that the Election Commission does not have any authority to recognize a political party or to reserve an election symbol also fails, the court said while dismissing the petition.