Shabihul Hasnain, J. - (1.) THIS petition, by an advocate, is styled as Public Interest Litigation whereas the petitioner has prayed for quashing of the order dated 6.1.2007 issued by the Election Commission of India after summoning the same from the respondent Commission to the extent by means of which it has been decided/directed that "In all States/U.Ts. Except in the States of Assam and Sikkim where its (Bahujan Samaj Party's) candidates will have to choose another symbol from out of the list of free symbols specified by the Commission", and also for a writ in the nature of mandamus directing the opposite party, the respondent Commission to permit the BSP candidates to contest the election on the symbol allotted to it i.e. "Elephant" throughout the territory of India including the State of Assam and Sikkim and to allot some other election symbol to "Asom Gana Parishad" and "Sikkim Sangram Parishad".
(2.) A preliminary objection has been raised by the respondent counsel that this petition itself would not be maintainable as the petitioner has no locus-standi to file a writ petition for the relief claimed, he having no interest in the subject matter and for that matter he is not even a member of Bahujan Samaj Party and even if he was a member he still would not have any right to challenge the order of the Election Commission of India, he not being an aggrieved person in any manner. Further submission of the respondent counsel is that the symbol of Elephant has rightly been allotted to the Bahujan Samaj Party and the discretion exercised by the Election Commission of India, that too with the consent and agreement of the National Party, cannot be open to challenge in the present proceedings. The petitioner's contention is that the Election Symbols (Reservation and Allotment) Order, 1968 recognized and classified the political parties and the symbols have to be allotted as per the provisions given therein. Argument is that in view of Para 8(1) of the said Order, a candidate set up by a National Party at any election in any constituency in India shall choose and shall be allotted the symbol reserved for that party and no other symbol. Relying upon the said provision, it has been submitted that the allotment of any other symbol as against the symbol of Elephant in the States of Assam and Sikkim, is per-se without jurisdiction and authority and, therefore, the Bahujan Samaj Party should be allowed to contest the election only on the symbol of Elephant.
(3.) THE power of superintendence, direction and control of all elections to Parliament and to the legislature of every State is vested by the Constitution of India in the Election Commission of India. THE Election Commission of India in exercise of the powers contained in Article 324 of the Constitution read with Section 29 A of the Representation of the People's Act, 1951 (43 of 1951) and Rules 5 and 10 of the Conduct of Elections Rules, 1961 and all other powers enabling in this behalf, made the order known as "THE Election Symbols (Reservation and Allotment) Order, 1968. Clause 4 of the said order, states, that in every contested elections symbol should be allotted to a contesting candidate in accordance with the provisions of the Order and different symbols should be allotted to different contesting candidates at an election in the same constituency. Clause 5 deals with the classification of symbols and prescribes as under:- "5. CLASSIFICATION OF SYMBOLS:- (1) For the purpose of this Order symbols are either reserved or free. (2) Save as otherwise provided in this Order, a reserved symbol is a symbol which is reserved for a recognized political party for exclusive allotment to contesting candidates set up by that party. (3) A free symbol is a symbol other than a reserved symbol". The Bahujan Samaj Party which was earlier a State party was later on recognised as National Party and was allotted the symbol of Elephant. As per the argument of the respondent counsel at the time of allotment of symbol, the Bahujan Samaj Party being registered as a National Party, it was disclosed to Bahujan Samaj Party that in the State of Assam and Sikkim, the Elephant was the symbol of State party and therefore, it has to choose a different symbol for the election for those States which was agreed to by the Bahujan Samaj Party and the symbol of Elephant as aforesaid was allotted to Bahujan Samaj Party but for the aforesaid two States.;