July 9, 2016 4:14:55 am
In what could spell trouble for Mayawati-led Bahujan Samaj Party (BSP) ahead of the Assembly elections due in Uttar Pradesh early next year, the Delhi High court Friday “requested” the Election Commission of India to issue guidelines to prevent political parties from using public places and public funds for propagating their symbols and suggested their derecognition if they failed to abide by these norms.
A bench of Justice Rajiv Sahai Endlaw made the “request to the EC” while disposing of an NGO’s plea seeking derecognition of the BSP party symbol for allegedly using public money, while in power, to set up statues of ‘elephants’ across the state.
The court asked the EC to consider issuing within three months “appropriate direction or guideline within the meaning of clause 16A(b) of the Symbols Order preventing recognised political party in power from using public places and public funds for propagating its reserve symbol and /or its leaders”. The court said it was necessary for “conducting free, fair and peaceful election” and “to safeguard the interest of the general public and the electorate in future”.
The judgment also asked the EC to issue appropriate notice to the BSP under the newly framed guidelines, giving it time to “undo” its actions, and initiate proceedings to “derecognise the party” if it was found to have violated the rules.
“Neither ECI had nor I have any doubt that if there is any truth in what the petitioner complains of, then what the respondent BSP has done is wrong. Wherever there is a wrong, there has to be remedy,” the court said.
The order came on a petition filed by the NGO Common Cause, which had sought court directions to the ECI to freeze the BSP’s symbol of “elephant” and issue it a different symbol.
The NGO had initially approached the EC in 2009 to take action against Mayawati’s party for installing statues of its symbol as well as BSP leaders, including the party supremo herself, in public places. The EC had, however, declined to issue such order, though the elephant statues installed by the BSP in various areas across UP had been covered up at the time of the election, under orders from the Supreme Court of India.
The EC, in its 2009 order, had also said that merely installing the statues did not violate the model code of conduct, and therefore it could not take any action against the BSP. The order was challenged by NGO before the Delhi high court.
In his judgment, Justice Endlaw noted that though the Election Symbols (Reservation and Allotment) Order, 1968, did not allow the EC to withdraw or freeze a symbol after it has been allotted to a political party, the clause 16 of the Symbols Order allows the poll panel to derecognise a political party for violating the model code of conduct.
Citing the Supreme Court judgments banning use of public funds for advertisement of political parties, the bench said that “what the BSP is accused of is akin to advertisements by ruling party at the cost of public exchequer in the print media, use of…government buildings / premises and use of …official machinery…already prohibited and indulging wherein could lead to withdrawal of recognition and resultant loss of symbol.”
“A constitutional functionary as ECI, upon finding a wrong or a possibility of wrong in the arena of election…cannot express helplessness owing to lack of any existing provision and has to devise ways and means to address the wrong, to maintain purity in the stream of election,” the court observed.
The bench observed that a “political party in power cannot use development activities carried out by it and which the government in any case is expected to perform, to propagate its symbol or its leaders so as to come in the way of a free and fair election”.
“The performance of a political party in governance should be allowed to speak for itself,” the court observed while dismissing the argument put forward by the BSP that it lost the 2012 elections, and the installation of the elephant statues could not have been said to have had an impact on the election process.
“A failed attempt does not wash away the wrong means adopted to succeed. Just like irrespective of the party in power coming back to power or not, its violation of the directions already issued would render it liable for withdrawal of recognition,” observed the court.
It further held that “there indeed is a need for ECI to now…consider issuing express directions in this regard so that no political party in power can exploit the same in future. There can be no doubt of the power of ECI to issue such a direction.”
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