Flaming torch a free symbol, EC can allot it to any other party: Delhi HC dismisses Samata Party’s appeal

The HC in its November 3 judgment observed that Samata Party was de-recognised as a State Party in 2004. The party had contended that since the candidates of the Party contested elections in the year 2014 under the symbol of ‘flaming torch’, the said symbol cannot be allotted to any other party. The HC referred to a 2008 judgment of the Supreme Court in Subramanian Swamy v ECI and reiterated 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 judgment states.

The division bench thereafter observed that even though the members of Samata Party were permitted to use the symbol of ‘flaming torch’, due to the derecognition of the party in 2004, the symbol (flaming torch) had become a free symbol and it was within the domain of ECI to allot the same to any other Party.

Dismissing the appeal the bench held, “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…”

The appeal states that the single judge dismissed its plea on the very first date of hearing and without issuing notice to the respondents — the Election Commission, Shiv Sena through Uddhav Thackeray) and Maharashtra Chief Minister Eknath Shinde.

On October 19, the single judge had dismissed the party’s plea, observing that the affinity to a symbol cannot exist in a void and after the party had been derecognised in 2004, “there was no question of it being allowed to insist on a reserved symbol”.

The single judge held that after the derecognition as per para 10-A of the Symbols Order, its right on the symbol in question, if any, lapsed with the expiry of six years therefrom.

“In absence of any demonstrable right in law, the petitioner cannot seek mandamus for quashing the impugned communication,” the single judge had held. On the issue of notification by the EC declaring the “flaming torch” a free symbol, the single judge had held that the party was unable to point out any para to that effect under the Symbols Order on this issue.

Samata Party was founded in 1994 by former Defence Minister late George Fernandes and Nitish Kumar (incumbent Bihar CM) as an offshoot of the Janata Dal. Uday Mandal is the current president of the party. Election Commission of India in October 1994 had granted registration of the party and allotted the “flaming torch” symbol to it.

The party had argued before the single judge that since it had contested polls on the symbol in 2014, it was incumbent upon the EC to issue a notification before making “flaming torch” a free symbol and allotting it to any other party.

The single judge had held that even if its candidates did contest the elections under the same symbol in 2014, it does not lend any semblance of a legal right in its favour in respect of the symbol in question, after lapse of six years. He further observed that the party had admitted that its candidates contested under a different symbol in the 2021 elections.

On October 8, the EC had asked Shiv Sena’s warring Uddhav Thackeray and Eknath Shinde factions not to use the “bow and arrow” symbol till the dispute is resolved. On October 10, the EC allotted “flaming torch” as the poll symbol to the Thackeray camp. Samata Party had challenged this decision before the single judge.