Delhi High Court today urged the Election Commission to come out with guidelines prohibiting political parties in power from using public funds to propogate their symbol or leaders and suggested their derecognition if they failed to abide by these norms.
Justice Rajiv Sahai Endlaw's "request" to the EC came as he disposed of an NGO's plea seeking derecognition of the party symbol of Bahujan Samaj Party (BSP) for allegedly using public money, while in power, to set up statues of 'elephants' across the state.
The court noted that there was a lacuna in the election symbols law allowing a recognised political party to continue using its symbol till it was de-recognised and this lacuna, as per NGO Common Cause, was exploited by the Mayawati-led party.
The judge also noted that EC till now has not issued any express direction prohibiting recognised political parties from doing what BSP was accused of and asked the poll panel to consider coming out with the guidelines in three months.
"I, therefore, dispose of this petition with a request to EC to within a period of three months, consider issuing appropriate direction/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, so as to come in the way of conducting of free, fair and peaceful election and to safeguard the interest of the general public and the electorate in future," the court said.
The court in its 26-page judgement further said that there is "no power in ECI under Symbols Order, to withdraw/ freeze an election symbol once allotted and/or reserved for a recognised political party and the only manner in which the symbol once allotted/reserved is lost, is on loss of recognition".
Referring to the allegations against BSP, the court said since EC till now has not issued any express instruction prohibiting recognised political parties from doing what BSP was accused of, the party "should not be caught unaware and no case for proceeding against BSP for withdrawal of recognition is made out".
The court in its judgement also said that after the EC
issues the guidelines, within three months it should "consider whether the actions already done by BSP and as complained of by the petitioner (NGO) are in violation of the said guidelines and if it finds so, to give an opportunity to BSP to undo the same."
It said that if BSP does not avail of the opportunity, then EC has to "initiate proceedings under the Symbols Order for withdrawal of recognition".
The court further said that while these directions would only take care of the future, "the question of installations already made by BSP continuing to give an undue advantage" to it in future elections remains.
"I am of the view that covering thereof (statues) during the elections does not undo what they are capable of doing. The size of the said installations, visible from surrounding areas, even though covered, continue to remind the public of what lies beneath. In fact a covered installation is more of a reminder and has a higher impact capable of influencing," the judge said.
The judge also did not agree with BSP's view that the loss suffered by the party in recent elections was proof of the statues have no influence and said "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, so is the position here," the court added.
It further said 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 said.
It also disagreed with BSP's contention that most of the symbols are found commonly in day to day life and are thus incapable of influencing.
"....There is no bar to a political party propagating itself at its own cost. The issue is of doing so from public places and with use of public funds to which the political party by being in power gets access," the judge observed.
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The high court refused to accept EC's reasoning for rejecting the NGO's plea that the poll panel could not make a factual assessment of the allegations against the party because of the directions seeking information remaining uncomplied by the then state government.
"Supreme Court has held that EC is an authority created by Constitution of India and according to Article 324 has superintendence, direction and control of the conduct of elections and the fact that the power of resolving disputes has been vested in such a high authority would provide a guarantee that the power would be used in a reasonable manner.
"EC, in my view, cannot abdicate its power for such reasons," the court said.
