Petition for cancellation of election symbol of Indian National Congress

30-10-2015
To
Dr. Nasim Zaidi                                                                                                  
The Chief Election Commissioner
Election Commission of India
Nirvachan Sadan, Ashoka Road, New Delhi-110001

Subject: Petition for cancellation of election symbol of Indian National Congress

Respected Sir,

1.    Petitioner is a law-abiding citizen of India and member of Supreme Court Bar Association. Besides practicing in law, petitioner is also a social worker, contributing his best to the development of the socially, economically and politically down trodden people of the country and promotes fraternity, unity and integrity. Petitioner was actively associated with RTI Movement and India Against Corruption Movement i.e. Janlokpal Movement and worked closely with many social activists including Gandhian Anna Hazare. Petitioner is one of the Founder Member of Aam Aadmi Party and had been National Council Member too. During the 2013 Delhi state election, petitioner was authorized signatory of AAP for election related matters. Petitioner is Spokesperson of BJP Delhi.



2.    Before proceeding to state the immediate facts preceding the filing of the present petition, it is necessary to state the scheme of the Constitution of India under which elections are held. The Constitution adopted by our country indicates in its preamble intention for constituting India into a Sovereign, Socialist, Secular, Democratic, Republic. In order to make India a real Sovereign, Secular, Democratic, Republic, elections are held for constituting the Parliament, State Assemblies and other local bodies by adult franchise.



3.    The Article 324 of the Constitution of India, inter-alia, provides for the constitution of Election Commission of India (Hereinafter ECI) and State Election Commissions. The duty imposed upon ECI is to ensure free and fair election based on adult franchise.



4.    In order to achieve free and fair election for constituting Parliament, State Legislature and other local bodies etc, the Parliament has enacted the Representation of People Act 1951. The ECI have the power of Civil Court under Section 146 of the RPA. Section 8 clearly defines the disqualification on conviction for offences, Section 8A provides for the disqualification on ground of corrupt practices, Section 123 defines Corrupt Practices and Section 125A provides for penalty for filing false affidavit.



 5.    Under Article 324 of the Constitution of India and the Representation of People Act 1951 (Hereinafter RPA), the ECI has been empowered to frame various rules and regulations such as Conduct of Election Rules 1961(Statutory Rules and Order), the Model Code of Conduct (Hereinafter MCC) and the Election Symbols (Reservation and Allotment) Order 1968 etc. The ECI can withdraw the election symbol and suspend recognition if necessary.



6.    The ECI allotted election symbol “A Pair of Bullocks carrying a Yoke” to Indian National Congress (Hereinafter INC). INC had successfully contested first four general elections with that symbol. After split in INC, the ECI allotted a new election symbol “Cow and Calf” to Congress (I) and “A Pair of Bullocks carrying a Yoke” to other group. Congress (I) successfully contested the fifth general election with the new symbol.



7.    After another split in Congress (I) , the ECI offered 3 symbols i.e. Elephant, Bicycle and ‘Palm of Hand’ and asked them to chose anyone and later the ECI reserved symbol of ‘Palm of Hand’ to INC which is a national party according to the classification of symbols made under Order 5 (2) of Election Symbol (Reservation & Allotment) Order 1968.



8.    In perusal of the symbols reserved for national parties (table-1), symbols reserved for the state parties (table-2), symbols reserved for registered unrecognized parties (table-3) and list of free symbols (table-4) will show that neither political parties nor independent candidates have been allotted a symbol which is part of a human body except the ‘Palm of Hand’ allotted to INC.



9.    It is relevant to state here that the ECI enforces the MCC, much before the election process commences for constituting Lok Sabha and Vidhan Sabha etc, and continues until the completion of poll. Amongst other things, the MCC, inter-alia, provides that election campaigning will stop 48 hours prior to the commencement of the polling. The relevant part of the MCC is reproduced herewith as under: “All parties and candidates shall avoid scrupulously all activities which are “corrupt practices” and offences under the election law, such as bribing of voters, intimidation of voters, impersonation of voters, canvassing within 100 meters of polling stations, holding public meetings during period of 48 hours ending with the hour fixed for the close of the polls, and the transport and conveyance of voters to and from polling station”.



10. The MCC guideline for polling day is “All political parties and candidates shall ensure that candidate’s camp shall be simple. They shall not display and posters, flags, symbols or any other propaganda material. No eatable shall be served or crowd allowed at the camps”.



 11. Even though the MCC issued by the ECI is clear regarding the cessation of election campaigning before 48 hours prior to the date fixed for polling, the election symbol ‘Palm of Hand’ allotted to the INC is such that can be misused and is in fact misused even after the election campaigning has come to an end under the MCC. Even without resorting to any kind of election campaigning by the candidate of the INC, it goes on unabated. Every time a candidate of the INC or his supporter passes through voters in public gathering, the ‘Palm of Hand’ symbol is used to solicit vote for the candidate. Not only prior to the polling even during the polling, the candidates of the INC and his supporters misuses election symbol. The agents appointed by the INC candidate who are within polling premises brazenly solicit vote by showing ‘Palm of Hand’ indicating to the voters about his choice of the candidate.



12. Petitioner himself observed the violation of the MCC by the agents of the INC candidates, who were openly indicating to the voters for their choice of the candidates for voting. After the petitioner had witnessed these brazen violations of the MCC by the candidates and supporters of INC, he had lodged oral complaint with the Presiding Officer and polling booths authorities on the date of polling itself. However, they did nothing to stop the agents from indulging in their illegal activities. The reply of the Presiding Officer was that he is helpless in the matter of “Palm of Hand” symbol, which is part of the body and cannot be detached from body. If a candidate or his agent makes any gesture with the hand, it will not be possible for him to take any action in the matter.



13. Petitioner is fully aware that a notice has been issued by the Delhi State Election Commission to Sh.Ram Babu Sharma, President of Delhi Pradesh Congress Committee on 06-04-2007 for having committed various violations of the MCC including the one that he and his supporters raised Hands with victory sign and one of his supporters raised his hand in the shape of symbol of his party. The ECI decided to close the matter on 15-05-2007 even found his explanation incomplete and not satisfactory. However, a warning “That being a senior and responsible leader of INC, Sh. Ram Babu Sharma should not do or attempt to do anything, which may be construed as violation of the MCC and direction of the ECI” was issued to him in this regard.



14. The ECI has failed to appreciate that while other symbols of items of daily and normal use, the “Palm of Hand” symbol is a part of the human body, which is inseparable from it, and while the other symbols cannot be carried inside the polling booth and can be prevented. Barring the ‘Palm of Hand’ symbol cannot be allowed to be carried inside the polling booth and / or near the polling premises and as such while other symbols cannot be misused during the period when election campaigning is prohibited but the ‘Palm of Hand’ symbol can be used and in fact being used for election campaigning during the poll.



 15. Election symbol “Palm of Hand” allotted to INC is being misused even during the period when election campaigning is prohibited under the MCC as it is part of human body and incapable of being detached from body. The INC candidates and their agents misusing election symbol “Palm of Hand” in Bihar Election for impersonation of voters during the period of 48 hours ending with the hour fixed for the close of the poll and for canvassing within 100 meters of polling station on poling day, which is clearly violation of the MCC and offence under election laws.



16. It is humbly submitted that in case the allotment of “Palm of Hand” symbol made to the INC is not cancelled, violation of the MCC will continue occurring in every election. In this circumstances the free and fair election according to law is inconceivable and therefore, the interest of Parliamentary democracy by adult franchise will be a casually.



17. It is relevant to state here that INC had successfully contested first four general elections with the election symbol “A Pair of Bullocks carrying a Yoke” and successfully contested fifth general election with election symbol “Cow and Calf”. Any of these may be re-allotted to INC. The impending assembly election is scheduled in 2016 and parliamentary election in 2019 so INC has sufficient time for advertisement of his election symbol.



On the premises set forth above, it is most respectfully prayed that Respected CEC may be please to:



1.    Cancel the election symbol ‘Palm of Hand’ allotted to Indian National Congress and allot a new election symbol to avoid further violation of the Model Code of Conduct.



2.    Issue an order, direction, or guideline, which may be found necessary to ensure free and fair election according to law of the land and for strengthening the democracy.



Thanks and Regards.                                                                              

Yours Sincerely

(Ashwini Upadhyay)