2023INSC804 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 5707 OF 2023

(@ SPECIAL LEAVE PETITION (CIVIL) NO.18727 OF 2023 )

UNION TERRITORY OF LADAKH & ORS. … APPELLANTS

VERSUS

JAMMU AND KASHMIR NATIONAL CONFERENCE & ANR. … RESPONDENTS

A1:Union Territory of Ladakh through its Chief Secretary

A2: Chief Election Officer, UT of Ladakh

A3: District Election Officer (Kargil)

A4: Administrative Secretary, Election Department, UT

of Ladakh

R1: Jammu and Kashmir National Conference, through its

General Secretary

R2: Election Commission of India

J U D G M E N T

AHSANUDDIN AMANULLAH, J.

Heard learned counsel for the parties.

2. Leave granted.

2

3.The present appeal is directed against the

Judgment and Order dated 14.08.2023 (hereinafter

referred to as the “Impugned Judgment”) rendered by a

learned Division Bench of the High Court of Jammu &

Kashmir and Ladakh at Srinagar (hereinafter referred to

as the “High Court”) dismissing Letters Patent Appeal

No.151 of 2023 filed by the Appellants and upholding

the interim order of a learned Single Judge dated

09.08.2023 in Writ Petition (Civil) No.1933 of 2023.

BRIEF FACTS:

4.The controversy involved in this lis is the non-

allocation of the Plough symbol to the writ petitioner,

the Jammu and Kashmir National Conference/Respondent

No.1 herein (hereinafter referred to as “R1”) for its

candidates to contest the then-upcoming General

Elections of the Ladakh Autonomous Hill Development

Council, Kargil (hereinafter referred to as the

“LAHDC”). In view of the urgency in the matter, the

learned Single Judge passed an interim order on

3

09.08.2023, the operative portion whereof at Paragraph

11 reads as under:

“11. Keeping in view that the upcoming

General Election of Ladakh Autonomous Hill

Development Council (LAHDC) stands announced,

the petitioner-party is directed to approach

the office of the respondents 1 to 3 & 5, for

notifying the reserved symbol (plough)

already allotted to it and respondents 1 to 3

& 5 shall notify the symbol allotted to

petitioner-party in terms of Paragraphs 10

and 10(A) of Election Symbols (Reservation

and Allotment) Order, 1968, and allow the

candidates set up by the petitioner-party to

contest on the reserved election symbol

(plough) already allotted to the party. ”

5.Aggrieved, the Appellants moved the learned

Division Bench of the High Court by preferring an

appeal, which after hearing was dismissed vide Impugned

Judgment on 14.08.2023.

SUBMISSION BY THE APPELLANTS :

6. Mr. K. M. Nataraj, learned Additional Solicitor

General (hereinafter referred to as the “ASG”) for the

Appellants submitted that the learned Single Judge and

the learned Division Bench of the High Court have

issued directions contrary to law. It was submitted

4

that both orders have been passed on an erroneous

assumption that the provisions of Election Symbols

(Reservation and Allotment) Order, 1968 (hereinafter

referred to as the “1968 Order”), would be applicable

in elections to the LAHDC. Learned ASG canvassed that

this is not the correct legal position as the LAHDC

election is being conducted by the Election Authority

of the Union Territory of Ladakh constituted under Rule

5 of The Ladakh Autonomous Hill Development Councils

(Election) Rules, 1995 (hereinafter referred to as the

“1995 Rules”). It was contended that the Election

Commission of India (hereinafter referred to as the

“ECI”) is empowered to hold elections to the

Parliamentary and State Assembly constituencies and for

the present LAHDC elections, the ECI does not exercise

any authority. Thus, the learned ASG submitted that any

reference to the provisions of the 1968 Order is

misplaced.

7.Learned ASG, further, contended that Paragraphs

No. 9, 10 and 10(A) of the 1968 Order speak of

restrictions on the allotment of symbols reserved for

5

State Parties in States where such parties are not

recognized; concession to candidates set up by a State

Party at elections in other States or Union

Territories, and; concession to candidates set up by an

un-recognized party which was earlier recognized as a

National or State Party, respectively. Thus, it was his

categoric stand that such concession can be only for

the purposes of Parliamentary and State Assembly

elections, and not for the election in question.

8.Learned ASG submitted that the reference by the

ECI in its communication dated 18.07.2023 to R1, that

it can avail the concession under Paragraph 10 of the

1968 Order can neither confer any right on R1, nor

compel the Election Authority of the Union Territory of

Ladakh to allow the prayer of R1, as made in the Writ

Petition before the High Court. With regard to the

opinion of the Law Department of the Appellant No.1, as

quoted in the communication of the District Election

Officer (District Magistrate), Kargil in his

communication dated 12.07.2023 to the Chief Electoral

Officer, Union Territory of Ladakh, the same at best

6

was only advisory but not binding as it is for the

Election Authority of the Union Territory of Ladakh to

independently consider such request.

9. He submitted that none of the candidates, who have

filled up and submitted their nomination forms, have

either sought the Plough symbol or indicated in the

relevant column that they were candidates of R1 and on

this score alone, at this stage, R1 was not entitled to

any indulgence by this Court.

10.He summed up his arguments by stating that, as of

now

1

, the process of elections had already been set in

motion. Learned ASG pointed out that filing of the

nomination forms had begun from 16.08.2023 and reached

the penultimate stage since the last date of withdrawal

of nominations (26.08.2023) had already elapsed. It was

stated that now only polling remained to be held on

10.09.2023 and in this view of the matter, this Court

may set aside the Impugned Order.

1

This Court’s order dated 01.09.2023 is quoted for ready reference:

‘Application for impleadment is rejected.

Heard learned counsel for the parties.

Judgment reserved.

List the matter for pronouncement on 06.09.2023.’

7

SUBMISSIONS BY RESPONDENT NO.1 :

11.Learned counsel for R1 submitted that the orders

of the learned Single Judge dated 09.08.2023 and the

learned Division Bench dated 14.08.2023 are self-

speaking and have dealt in detail with the contentions

of the Appellants and the same have been negated on

cogent legal and factual grounds. It was submitted that

there should not have been, in the first place, any

issue with the Appellants in granting the Plough symbol

for the reason that R1 is the incumbent ruling party in

the LAHDC, and was entitled to the Plough symbol, since

the same was neither part of the list of free symbols

nor allotted to any other National or State Party, so

recognized, either by the ECI or by the Election

Authority for the Union Territory of Ladakh. It was

submitted that a completely partisan and arbitrary

approach had been adopted by the Appellants in denying

their preferred symbol (Plough) for oblique reasons to

deny a level-playing field between candidates. It was

further submitted that the Plough symbol was well-known

8

to the electorate since decades as being exclusively

associated with R1, the denial of the same is clearly

intended to cause unjustified prejudice. It was stated

that undue advantage would accrue to the remaining

candidates/parties contesting the LAHDC elections.

12.He urged the Court to take note of the fact that

despite the learned Single Judge having passed

directions well before the commencement of even the

filing of nominations, upheld by the learned Division

Bench, which again, was before the starting of the

nomination process, and despite there being a contempt

case pending before the learned Single Judge, which was

adjourned on prayer made by the Appellants, citing the

pendency of the present appeal, the Appellants had not

complied with the orders of the High Court. In this

backdrop, submitted learned counsel, to take a stand

before this Court that now due to efflux of time, no

relief can be granted to R1, was clear dishonest

conduct. It was submitted that this Court would not let

a just cause be defeated only because of delay

occasioned by the other side and the Appellants cannot

9

take the advantage of such delay caused by them to the

detriment of R1’s bonafide, legitimate and genuine

claim.

13.Learned counsel submitted that allotment of

symbols by the Appellants to the National Parties and

free symbols shown in the Notification for the present

elections clearly shows that the same are in conformity

with the 1968 Order. Thus, he submitted, the Appellants

are precluded from blowing hot and cold that they

cannot and should not be permitted to selectively, as

per their whims and fancies, decide as to which

provisions under the 1968 Order would be applicable and

which provisions would not. It was submitted that a

harmonious reading of Paragraphs 9, 10, 10(A) as also

12 of the 1968 Order would indicate beyond doubt that

in the absence of anything to the contrary, the

Appellants were required to be guided by the 1968 Order

in toto, which was also the indication in the letter

written by the ECI to R1 and the same view was taken by

the Law Department in its Legal Opinion to the

Appellants.

10

ANALYSIS, REASONING AND CONCLUSION :

14.The relevant Paragraphs of the 1968 Order, attention

to which was drawn by the learned ASG and the learned

counsel for R1, are set out below:

“9. Restriction on the allotment of Symbols

reserved for State parties in States where

such parties are not recognised. — A symbol

reserved for a State party in any State—

(a) shall not be included in the list of

free symbols for any other State or Union

territory, and

(b) shall not be reserved for any other

party which subsequently becomes eligible, on

fulfilment of the conditions specified in

paragraph 6, for recognition as a State party

in any other State:

Provided that nothing contained in clause

(b) shall apply in relation to a political

party, for which the Commission has,

immediately before the commencement of the

Election Symbols (Reservation and Allotment)

(Amendment) Order, 1997, already reserved the

same symbol which it has also reserved for

some other State party or parties in any

other State or States.

10. Concessions to candidates set up by a

State party at elections in other States or

Union territories. — If a political party,

which is recognised as a State party in some

State or States, sets up a candidate at an

election in a constituency in any other State

in which it is not a recognised State party,

then such candidate may, to the exclusion of

all other candidates in the constituency, be

11

allotted the symbol reserved for that party

in the State or States in which it is a

recognised State Party, notwithstanding that

such symbol is not specified in the list of

free symbols for such other State or Union

territory, on the fulfilment of each of the

following conditions, namely:—

(a) that an application is made to the

Commission by the said party for exclusive

allotment of that symbol to the candidate set

up by it, not later than the third day after

the publication in the Official Gazette of

the notification calling the election;

(b) that the said candidate has made a

declaration in his nomination paper that he

has been set up by that party at the election

and that the party has also fulfilled the

requirements of clauses (b), (c), (d) and (e)

of paragraph 13 read with paragraph 13A in

respect of such candidate; and

(c) that in the opinion of the Commission

there is no reasonable ground for refusing

the application for such allotment: Provided

that nothing contained in this paragraph

shall apply to a candidate set up by a State

party at an election in any constituency in a

State in which that party is not a State

Party and where the same symbol is already

reserved for some other State Party in that

State.

10A. Concession to candidates set up by an

unrecognized party which was earlier

recognized as a National or State party. – If

a political party, which is unrecognized at

present but was a recognized National or

State party in any State or Union territory

not earlier than six years from the date of

notification of the election, sets up a

candidate at an election in a constituency in

any State or Union territory, whether such

12

party was earlier recognized in that State or

Union territory or not, then such candidate

may, to the exclusion of all other candidates

in the constituency, be allotted the symbol

reserved earlier for that party when it was a

recognized National or State party,

notwithstanding that such symbol is not

specified in the list of free symbols for

such State or Union territory, on the

fulfillment of each of the following

conditions, namely:––

(a) that an application is made to the

Commission by the said party for the

exclusive allotment of that symbol to the

candidate set up by it, not later than the

third day after the publication in the

Official Gazette of the notification calling

the election;

(b) that the said candidate has made a

declaration in his nomination paper that he

has been set up by that party at the election

and that the party has also fulfilled the

requirements of clauses (b), (c), (d) and (e)

of paragraph 13 read with paragraph 13A in

respect of such candidate; and

(c) that in the opinion of the Commission

there is no reasonable ground for refusing

the application for such allotment:

Provided that nothing contained in this

paragraph shall apply to a candidate set up

by the said party at an election in any

constituency in a State or Union territory

where the same symbol is already reserved for

some other National or State party in that

State or Union Territory.

xxx

12. Choice of symbols by other candidates

and allotment thereof. —(1) Any candidate at

13

an election in a constituency in any State or

Union territory, other than—

(a) a candidate set up by a National Party;

or

(b) a candidate set up by a political party

which is a State Party in that State; or

(c) a candidate referred to in paragraph 10

or paragraph 10A;

shall choose, and shall be allotted, in

accordance with the provisions hereafter set

out in this paragraph, one of the symbols

specified as free symbols for that State or

Union territory by notification under

paragraph 17.

(2) Where any free symbol has been chosen

by only one candidate at such election, the

returning officer shall allot that symbol to

that candidate and to no one else.

(3) Where the same free symbol has been

chosen by several candidates at such

election, then—

(a) if of those several candidates, only

one is a candidate set up by an unrecognised

political party and all the rest are

independent candidates, the returning officer

shall allot that free symbol to the candidate

set up by the unrecognised political party,

and to no one else; and, if, those several

candidates, two or more are set up by

different unrecognised political parties and

the rest are independent candidates, the

returning officer shall decide by lot to

which of the two or more candidates set up by

the different unrecognised political parties

that free symbol shall be allotted, and allot

that free symbol to the candidate on whom the

lot falls, and to no one else:

Provided that where of the two or more such

candidates set up by such different

14

unrecognized political parties, only one is,

or was, immediately before such election, a

sitting member of the House of the People,

or, as the case may be, of the Legislative

Assembly (irrespective of the fact as to

whether he was allotted that free symbol or

any other symbol at the previous election

when he was chosen as such member), the

returning officer shall allot that free

symbol to that candidate, and to no one else;

(b) if, of those several candidates, no one

is set up by any unrecognised political party

and all the independent candidates, but one

of the independent candidates is, or was,

immediately before such election a sitting

member of the House of the People, or, as the

case may be, of the legislative Assembly, and

was allotted that free symbol at the previous

election when he was chosen as such member,

the Returning Officer shall allot that free

symbol to that candidate, and to no one else;

and

(c) if, of those several candidates, being

all independent candidates, no one is, or

was, a sitting member as aforesaid, the

returning officer shall decide by lot to

which of those independent candidates that

free symbol shall be allotted, and allot that

free symbol to the candidates on whom the lot

falls, and to no one else. ”

15.Sections 12 and 13 of the Ladakh Autonomous Hill

Development Councils Act, 1997

2

(hereinafter referred to

as the “1997 Act”) read as under:

“12. Disputes regarding elections. – (1) No

election shall be called in question except

by an election petition presented in such

2

This repealed The Ladakh Autonomous Hill Development Councils Act, 1995 (President’s Act No.1 of 1995).

15

manner as may be prescribed and before such

authority as may be appointed by Government,

from time to time, by notification in the

Government Gazette:

Provided that no person below the rank of a

District Judge shall be appointed for the

purpose of this section.

(2) No election shall be called in question

except on any one or more of the following

grounds, namely: –

(a) that on the date of his election the

returned candidate was not qualified or was

disqualified, to be chosen to fill the seat

in the Council;

(b) that a corrupt practice has been

committed by a returned candidate or his

election agent or by any other person with

the consent of the returned candidate or his

election agent.

Explanation: — For the purposes of this

section “corrupt practice” shall mean any of

the corrupt practices specified in section

132 of the Jammu and Kashmir Representation

of the People Act, 1957;

(c) that any nomination has been improperly

rejected;

(d) that the result of the election in so

far as it concerns the returned candidate has

been materially affected–

(i) by any improper acceptance of any

nomination; or

(ii) by any corrupt practice committed in

the interest of the returned candidate by an

agent other than his election agent; or

(iii) by the improper reception, refusal or

rejection of any vote; or

16

(iv) by the reception of any vote which is

void; or

(v) by any non-compliance with provisions

of this Act or of any rules or orders made

thereunder.

(3) At the conclusion of the trial of an

election petition the authority appointed

under sub-section (1) shall make an order–

(a) dismissing the election petition; or

(b) declaring the election of all or any of

the returned candidates to be void; or

(c) declaring the election of all or any of

the returned candidates to be void and the

petitioner or any other candidates to have

been duly elected.

(4) If a petitioner in addition to calling

in question the election of a returned

candidate makes a declaration that he himself

or any other candidate has been duly elected

and the authority under sub-section (1) is of

opinion that–

(a) in fact the petitioner or such other

candidate has received the majority of valid

votes; or

(b) but for the votes obtained by the

returned candidate by corrupt practice the

petitioner or such other candidate would have

obtained the majority of the valid votes,

the authority as aforesaid shall, after

declaring the election of the returned

candidate to be void declare the petitioner

or such other candidate, as the case may be,

to have been duly elected.

13. Procedure for election disputes. – The

procedure provided in the Code of Civil

Procedure, Samvat 1977 in regard to suits

shall be followed by the authority appointed

under section 12 as far as it can be made

17

applicable in the trial and disposal of an

election petition under this Act. ”

16.It requires no reiteration that the powers of this

Court and the High Courts vested under the Constitution

cannot be abridged, excluded or taken away, being part

of the Basic Structure of our Constitution. Reference

need only be made to decisions in His Holiness

Kesavananda Bharati Sripadagalvaru v State of Kerala ,

(1973) 4 SCC 225 ; Indira Nehru Gandhi v Raj Narain ,

1975 Supp SCC 1; Minerva Mills Ltd. v Union of India ,

(1980) 3 SCC 625 ; L Chandra Kumar v Union of India ,

(1997) 3 SCC 261 and more recently, to Kalpana Mehta v

Union of India, (2018) 7 SCC 1 and Rojer Mathew v South

Indian Bank Limited , (2020) 6 SCC 1 , all of which were

rendered by a Bench of 5 or more learned Judges.

Section 12 of the 1997 Act need not detain us. Insofar

as Section 13 of the 1997 Act is concerned, it is by

now too well-settled that the availability of

alternative efficacious remedy is no bar to the

exercise of high prerogative writ jurisdiction, in the

light of various decisions, including but not limited

to, State of Uttar Pradesh v Mohammad Nooh, 1958 SCR

18

595; Madhya Pradesh State Agro Industries Development

Corporation Ltd. v Jahan Khan, (2007) 10 SCC 88 ;

Maharashtra Chess Association v Union of India, (2020)

13 SCC 285 . Even on the anvil of Radha Krishan

Industries v State of Himachal Pradesh , (2021) 6 SCC

771, Section 13 of the 1997 Act does not, and cannot,

impede a Constitutional Court from proceeding further.

We do not wish to multiply established authorities on

the point but would add the very recent Godrej Sara Lee

Ltd. v Excise and Taxation Officer-cum-Assessing

Authority, 2023 SCC OnLine SC 95 to the list enumerated

above.

17.At the threshold, it is noted that the ECI deals

with the conduct of elections to the Parliament, the

State Legislative Assemblies and the State Legislative

Councils. The Union Territory of Ladakh does not

currently have a Legislative Assembly. The last

election to the Parliamentary constituency was held in

the year 2019. That said, first things first. The Legal

Opinion by the Law Department remains internal advice,

and advice alone, and as such, the learned ASG was

19

correct in contending that the same would not

create/confer any right in favour of R1. In Mahadeo v

Sovan Devi, 2022 SCC OnLine SC 1118 (where one of us,

Vikram Nath, J. was part of the coram), the Court,

after considering various case-laws, held that " It is

well settled that inter-departmental communications are

in the process of consideration for appropriate

decision and cannot be relied upon as a basis to claim

any right. …”

18.In Kalpana Mehta (supra), Hon. Dipak Misra,

C.J.I., with whom 4 learned Judges concurred, stated:

“40. While focussing on the exercise of the

power of judicial review, it has to be borne

in mind that the source of authority is the

Constitution of India. The Court has the

adjudicating authority to scrutinise the

limits of the power and transgression of such

limits. The nature and scope of judicial

review has been succinctly stated in Union of

India v. Raghubir Singh [Union of India v.

Raghubir Singh, (1989) 2 SCC 754] by R.S.

Pathak, C.J. thus : (SCC p. 766, para 7)

“7. … The range of judicial review

recognised in the superior judiciary of India

is perhaps the widest and the most extensive

known to the world of law. … With this

impressive expanse of judicial power, it is

only right that the superior courts in India

should be conscious of the enormous

responsibility which rest on them. This is

20

specially true of the Supreme Court, for as

the highest Court in the entire judicial

system the law declared by it is, by Article

141 of the Constitution, binding on all

courts within the territory of India. ”

And again: (SCC p. 767, para 11)

“11. Legal compulsions cannot be limited by

existing legal propositions, because there

will always be, beyond the frontiers of the

existing law, new areas inviting judicial

scrutiny and judicial choice-making which

could well affect the validity of existing

legal dogma. The search for solutions

responsive to a changed social era involves a

search not only among competing propositions

of law, or competing versions of a legal

proposition, or the modalities of an

indeterminacy such as “fairness” or

“reasonableness”, but also among propositions

from outside the ruling law, corresponding to

the empirical knowledge or accepted values of

present time and place, relevant to the

dispensing of justice within the new

parameters.”

The aforesaid two passages lay immense

responsibility on the Court pertaining to the

exercise of the power keeping in view the

accepted values of the present. An organic

instrument requires the Court to draw

strength from the spirit of the Constitution.

The propelling element of the Constitution

commands the realisation of the values. The

aspiring dynamism of the interpretative

process also expects the same.

41.This Court has the constitutional power

and the authority to interpret the

constitutional provisions as well as the

statutory provisions. The conferment of the

power of judicial review has a great sanctity

as the constitutional court has the power to

21

declare any law as unconstitutional if there

is lack of competence of the legislature

keeping in view the field of legislation as

provided in the Constitution or if a

provision contravenes or runs counter to any

of the fundamental rights or any

constitutional provision or if a provision is

manifestly arbitrary.

42. When we speak about judicial review, it

is also necessary to be alive to the concept

of judicial restraint. The duty of judicial

review which the Constitution has bestowed

upon the judiciary is not unfettered; it

comes within the conception of judicial

restraint. The principle of judicial

restraint requires that Judges ought to

decide cases while being within their defined

limits of power. Judges are expected to

interpret any law or any provision of the

Constitution as per the limits laid down by

the Constitution.

43.In S.C. Chandra v. State of Jharkhand

[S.C. Chandra v. State of Jharkhand, (2007) 8

SCC 279 : (2007) 2 SCC (L&S) 897] , it has

been ruled that the judiciary should exercise

restraint and ordinarily should not encroach

into the legislative domain. In this regard,

a reference to a three-Judge Bench decision

in Suresh Seth v. Indore Municipal Corpn.

[Suresh Seth v. Indore Municipal Corpn.,

(2005) 13 SCC 287] is quite instructive. In

the said case, a prayer was made before this

Court to issue directions for appropriate

amendment in the M.P. Municipal Corporation

Act, 1956. Repelling the submission, the

Court held that it is purely a matter of

policy which is for the elected

representatives of the people to decide and

no directions can be issued by the Court in

this regard. The Court further observed that

this Court cannot issue directions to the

22

legislature to make any particular kind of

enactment. In this context, the Court held

that under our constitutional scheme,

Parliament and Legislative Assemblies

exercise sovereign power to enact law and no

outside power or authority can issue a

direction to enact a particular kind of

legislation. While so holding, the Court

referred to the decision in Supreme Court

Employees' Welfare Assn. v. Union of India

[Supreme Court Employees' Welfare Assn. v.

Union of India, (1989) 4 SCC 187 : 1989 SCC

(L&S) 569] wherein it was held that no court

can direct a legislature to enact a

particular law and similarly when an

executive authority exercises a legislative

power by way of a subordinate legislation

pursuant to the delegated authority of a

legislature, such executive authority cannot

be asked to enact a law which it has been

empowered to do under the delegated

authority.

44.Recently, in Census Commr. v. R.

Krishnamurthy [Census Commr. v. R.

Krishnamurthy, (2015) 2 SCC 796 : (2015) 1

SCC (L&S) 589] , the Court, after referring

to Premium Granites v. State of T.N. [Premium

Granites v. State of T.N., (1994) 2 SCC

691] , M.P. Oil Extraction v. State of M.P.

[M.P. Oil Extraction v. State of M.P., (1997)

7 SCC 592] , State of M.P. v. Narmada Bachao

Andolan [State of M.P. v. Narmada Bachao

Andolan, (2011) 7 SCC 639 : (2011) 3 SCC

(Civ) 875] and State of Punjab v. Ram Lubhaya

Bagga [State of Punjab v. Ram Lubhaya Bagga,

(1998) 4 SCC 117 : 1998 SCC (L&S) 1021] ,

held : (R. Krishnamurthy case [Census Commr.

v. R. Krishnamurthy, (2015) 2 SCC 796 :

(2015) 1 SCC (L&S) 589] , SCC p. 809, para

33)

23

“33. From the aforesaid pronouncement of

law, it is clear as noonday that it is not

within the domain of the courts to embark

upon an enquiry as to whether a particular

public policy is wise and acceptable or

whether a better policy could be evolved. The

court can only interfere if the policy framed

is absolutely capricious or not informed by

reasons or totally arbitrary and founded ipse

dixit offending the basic requirement of

Article 14 of the Constitution. In certain

matters, as often said, there can be opinions

and opinions but the court is not expected to

sit as an appellate authority on an opinion.”

45. At this juncture, we think it apt to

clearly state that the judicial restraint

cannot and should not be such that it amounts

to judicial abdication and judicial

passivism. The Judiciary cannot abdicate the

solemn duty which the Constitution has placed

on its shoulders i.e. to protect the

fundamental rights of the citizens guaranteed

under Part III of the Constitution. The

constitutional courts cannot sit in oblivion

when fundamental rights of individuals are at

stake. Our Constitution has conceived the

constitutional courts to act as defenders

against illegal intrusion of the fundamental

rights of individuals. The Constitution,

under its aegis, has armed the constitutional

courts with wide powers which the courts

should exercise, without an iota of

hesitation or apprehension, when the

fundamental rights of individuals are in

jeopardy. Elucidating on the said aspect,

this Court inVirendra Singh v. State of U.P.

[Virendra Singhv. State of U.P., AIR 1954 SC

447] has observed : (AIR p. 454, para 34)

“34. … We have upon us the whole armour of

the Constitution and walk from henceforth in

its enlightened ways, wearing the breastplate

24

of its protecting provisions and flashing the

flaming sword of its inspiration. ”

46. While interpreting fundamental rights,

the constitutional courts should remember

that whenever an occasion arises, the courts

have to adopt a liberal approach with the

object to infuse lively spirit and vigour so

that the fundamental rights do not suffer.

When we say so, it may not be understood that

while interpreting fundamental rights, the

constitutional courts should altogether

depart from the doctrine of precedents but it

is the obligation of the constitutional

courts to act as sentinel on the qui vive to

ardently guard the fundamental rights of

individuals bestowed upon by the

Constitution. The duty of this Court, in this

context, has been aptly described in K.S.

Srinivasan v. Union of India [K.S. Srinivasan

v. Union of India, AIR 1958 SC 419] wherein

it was stated : (AIR p. 433, para 50)

“50. … All I can see is a man who has been

wronged and I can see a plain way out. I

would take it.”

47. Such an approach applies with more zeal

in case of Article 32 of the Constitution

which has been described by Dr B.R. Ambedkar

as “the very soul of the Constitution — the

very heart of it — the most important

Article”. Article 32 enjoys special status

and, therefore, it is incumbent upon this

Court, in matters under Article 32, to adopt

a progressive attitude. This would be in

consonance with the duty of this Court under

the Constitution , that is, to secure the

inalienable fundamental rights of

individuals.”

(emphasis supplied)

25

19.The observations afore-referred are in perfect

sync with what is expected of Constitutional Courts.

They are not restricted only to Articles 32 or 226 of

the Constitution but lay down a talisman of sorts.

20.The learned ASG also submitted that the Appellants

were entitled to take an independent decision. This

goes against their stand before the learned Division

Bench. If we were to agree with this, the obvious

import, then, would be that the Appellants were

required to take a decision independently. As noted in

Paragraphs 5 and 11 of the Impugned Judgment, the

Appellants contended that the ECI was the competent

authority to allot symbols and not the Election

Authority. What then was the reason for the Appellants

to shift stands? When read in conjunction with the

finding at Paragraph 13 of the Impugned Judgment the

Appellants’ acts leave no shred of doubt in our minds,

that circumstances forcing this Court to intercede have

arisen. Let us for a moment, however, consider that the

Appellants, as now sought to be projected, were

entitled to arrive at an independent decision. Yet,

26

such decision could not be whimsical, arbitrary or

capricious. It would necessarily have to be: (a) in

accordance with lawful discretion; (b) reasonable, and;

(c) equitable and just. The Court would indicate that a

genuine request, in the attendant facts, could not have

been turned down only on the ground that there was no

provision for the same, when such request could be

acceded to (i) without any violation of law, and; (ii)

is within the jurisdictional domain and capacity of the

authority concerned, and; (iii) does not prejudice any

other stakeholder, and; (iv) does not militate against

public interest.

21.The High Court, being a Constitutional Court, is

not, by any stretch of imagination, precluded from

issuing a direction of the nature issued by it in the

instant case, under Article 226 of the Constitution of

India, more so when such direction does not violate any

statutory provision. In High Court of Tripura v Tirtha

Sarathi Mukherjee, (2019) 16 SCC 663 , this Court had

answered, in the affirmative, as to the power of the

High Courts under Article 226 to direct for actions, in

27

a rare and exceptional situation, which do not find

mention in the provisions concerned. Noticing and

relying upon High Court of Tripura (supra), in Aish

Mohammad v State of Haryana , 2023 SCC OnLine SC 736 , we

held:

“24. Moreover, the learned Civil Judge

(Junior Division) found no ground to

interfere with the adverse remarks yet

granted liberty to the appellant to move for

expunction thereof. The learned Civil Court

erred in assuming that it had the power to do

so, in the absence of any such provision in

the Punjab Police Rules, 1934. There may be

cases where a High Court under Articles 226

or 227 of the Constitution of India or this

Court in exercise of its constitutional

powers may specifically direct for fresh

consideration of a representation, even in

the absence of specific provisions . In High

Court of Tripura v. Tirtha Sarathi Mukherjee,

(2019) 16 SCC 663, the question that arose

was whether, in the absence of a statutory

provision, a writ petitioner could seek re-

evaluation of examination answer scripts?

Answering, this Court held:

“20. The question however arises

whether even if there is no legal

right to demand re-valuation as of

right could there arise circumstances

which leave the Court in any doubt at

all. A grave injustice may be

occasioned to a writ applicant in

certain circumstances. The case may

arise where even though there is no

provision for re-valuation it turns

out that despite giving the correct

answer no marks are awarded. No doubt

28

this must be confined to a case where

there is no dispute about the

correctness of the answer. Further, if

there is any doubt, the doubt should

be resolved in favour of the examining

body rather than in favour of the

candidate. The wide power under

Article 226 may continue to be

available even though there is no

provision for re-valuation in a

situation where a candidate despite

having giving correct answer and about

which there cannot be even the

slightest manner of doubt, he is

treated as having given the wrong

answer and consequently the candidate

is found disentitled to any marks.

21. Should the second circumstance be

demonstrated to be present before the writ

court, can the writ court become helpless

despite the vast reservoir of power which

it possesses? It is one thing to say that

the absence of provision for re-valuation

will not enable the candidate to claim the

right of evaluation as a matter of right

and another to say that in no circumstances

whatsoever where there is no provision for

re-valuation will the writ court exercise

its undoubted constitutional powers? We

reiterate that the situation can only be

rare and exceptional. ”

(emphasis supplied)”

(emphasis supplied by us via bolding)

22.Elections to any office/body are required to be

free, fair and transparent. Elections lie at the core

of democracy. The authority entrusted by law to

29

hold/conduct such elections is to be completely

independent of any extraneous influence/consideration.

It is surprising that the Union Territory of Ladakh not

only denied R1 the Plough symbol, but even upon timely

intervention by the learned Single Judge, has left no

stone unturned not only to resist but also frustrate a

cause simply by efflux of time.

23.A detailed dive into the sequence of events is

apposite. R1 was before the concerned authorities, by

way of representation, well in time, and much before

even the Notification dated 02/05.08.2023 was

published, by impugning the Notification dated

26.07.2023 which denied it the Plough symbol. R1 had

moved the ECI, which opined, by way of communication

dated 18.07.2023 that the ECI does not allocate any

symbol for local body elections as the same falls

within the domain of the State Election Commission

concerned. The ECI stated that as there is no

Legislative Assembly in the Union Territory of Ladakh

and the 1968 Order does not provide for recognition to

parties in a Union Territory without a Legislative

30

Assembly, R1 could not be recognised in the Union

Territory of Ladakh. However, it was further noted that

as R1 is a recognized State Party in the Union

Territory of Jammu and Kashmir with its reserved symbol

being the Plough, it could avail concession under

Paragraph 10

3

of the 1968 Order.

24.On 15.05.2023, the ECI updated its Notification

dated 23.09.2021 specifying the names of recognised

National and State Parties and the list of free symbols

where R1 was again recognised as a State Party, though

for the Union Territory of Jammu and Kashmir only. On

31.05.2023, R1 made a representation to the Appellant

No.2 seeking recognition as a State Party and for the

allotment of the Plough symbol to it for all elections in

the Union Territory of Ladakh. Appellant No.2 forwarded

the said representation to Appellant No.3 for comments.

On 07.06.2023, Appellant No.3 advised Appellant No.2 to

approach the ECI. On 08.06.2023, R1 sought recognition as

a State Party in the Union Territory of Ladakh and

allotment of the Plough symbol.

3

Already extracted supra.

31

25.On 07.07.2023, R1 represented to Appellant No.2

seeking recognition as a State Party in the Union

Territory of Ladakh with the Plough symbol. Appellant

No.2 forwarded the said representation to Appellant

No.3 on 11.07.2023 and sought comments thereon. On

12.07.2023, Appellant No.3 wrote to Appellant No.2,

incorporating the opinion of the Law Department, which

was in favour of R1. Appellant No.3 indicated that R1

can be recognised and provided reserved symbol for

LAHDC elections by the Administration of Union

Territory of Ladakh under the relevant rules.

26. No action was taken and no order was passed

pursuant to Appellant No.3’s communication dated

12.07.2023 to Appellant No.2. Then, the Election

Department of the Union Territory of Ladakh issued a

Notification on 26.07.2023 notifying the list of

reserved and free symbols, in terms of the ECI’s

Notification dated 15.05.2023. R1 approached the High

Court on 29.07.2023 challenging the notification dated

26.07.2023 and seeking a mandamus to notify the Plough

32

symbol as its reserved symbol for elections to LAHDC.

The Writ Petition being pending, on 05.08.2023, the

Election Department of the Union Territory of Ladakh

notified the schedule of elections to constitute the 5

th

LAHDC, Kargil. In such background, an interim order

came to be passed by the learned Single Judge and

affirmed by the learned Division Bench.

27.This Court notes, with concern, that the

Appellants, while sitting on the representation of R1,

went ahead and notified the elections on 02/05.08.2023.

We are unable to appreciate such conduct. This

recalcitrance to decide in time speaks volumes.

Instances like these raise serious questions.

28.Having considered the matter in extenso, the Court

does not find any merit in the present appeal. The

request for allotment of the Plough symbol by R1 was

bonafide, legitimate and just, for the plain reason

that in the erstwhile State of Jammu and Kashmir (which

included the present Union Territory of Ladakh), it was

a recognized State Party having been allotted the

33

Plough symbol. Upon bifurcation of the erstwhile State

of Jammu and Kashmir and the creation of two new Union

Territories, namely the Union Territory of Jammu and

Kashmir and the Union Territory of Ladakh, though the

ECI had not notified R1 as a State Party for the Union

Territory of Ladakh, it cannot be simpliciter that R1

was not entitled for the allotment of plough symbol to

it, in the factual background. What is also clear is

that the Appellants are attempting to approbate and

reprobate, which this Court will not countenance.

29.In the present case, there is no conflict with any

other stakeholder for the reason that the Plough symbol

is neither a symbol exclusively allotted to any

National or State Party nor one of the symbols shown in

the list of free symbols. Thus, there was and is no

impediment in such symbol being granted to R1. This is

also fortified in the factual setting of the Plough

symbol being the reserved symbol for R1 in the

erstwhile State of Jammu and Kashmir and even for the

Union Territory of Jammu and Kashmir, as it now exists,

where the same symbol stands allotted to it.

34

30.The contention of the learned ASG for the

Appellants that the Plough symbol cannot be allotted,

neither has been supported by any reason nor any legal

impediment to such grant has been shown. In the absence

of anything contrary in any rule framed for conduct of

the elections in question, relating to allotment of

symbols, the provisions of the 1968 Order can safely be

relied upon, at the very least, as a guideline to

exercise of executive power of like nature. Thus, a

harmonious reading of Paragraphs 9, 10, 10(A) and 12

would clearly indicate that under the terms of the 1968

Order, the request of R1 is not bereft of

justification. At the cost of repetition, the Court

would indicate that nothing substantive has been shown

to this Court to indicate that allotment of the Plough

symbol would in any way be an infraction or go against

the public interest.

31.Another major issue canvassed by the learned ASG

on behalf of the Appellants, to the effect that no

relief be granted to R1 due to the election process

35

having reached the penultimate stage, unfortunately,

has also to be noted to be rejected. Having chosen,

with eyes open, to not comply with successive orders of

the learned Single Judge and the learned Division

Bench, both of which were passed well in time, such as

not to stall/delay the notified election schedule, the

Appellants cannot be permitted to plead that

interference by us at this late juncture should not be

forthcoming.

32.The Court would categorically emphasize that no

litigant should have even an iota of doubt or an

impression (rather, a misimpression) that just because

of systemic delay or the matter not being taken up by

the Courts resulting in efflux of time the cause would

be defeated, and the Court would be rendered helpless

to ensure justice to the party concerned. It would not

be out of place to mention that this Court can even

turn the clock back, if the situation warrants such

dire measures. The powers of this Court, if need be, to

even restore status quo ante are not in the realm of

any doubt. The relief(s) granted in the lead opinion by

36

Hon. Khehar, J. (as the learned Chief Justice then

was), concurred with by the other 4 learned Judges, in

Nabam Rebia and Bamang Felix v Deputy Speaker,

Arunachal Pradesh Legislative Assembly , (2016) 8 SCC 1

is enough on this aspect. We know full well that a 5-

Judge Bench in Subhash Desai v Principal Secretary,

Governor of Maharashtra , 2023 SCC OnLine SC 607 has

referred Nabam Rebia (supra) to a Larger Bench.

However, the questions referred to the Larger Bench do

not detract from the power to bring back status quo

ante. That apart, it is settled that mere reference to

a larger Bench does not unsettle declared law. In

Harbhajan Singh v State of Punjab , (2009) 13 SCC 608 , a

2-Judge Bench said:

“15. Even if what is contended by the

learned counsel is correct, it is not for us

to go into the said question at this stage;

herein cross-examination of the witnesses had

taken place. The Court had taken into

consideration the materials available to it

for the purpose of arriving at a satisfaction

that a case for exercise of jurisdiction

under Section 319 of the Code was made out.

Only because the correctness of a portion of

the judgment in Mohd. Shafi [(2007) 14 SCC

544 : (2009) 1 SCC (Cri) 889 : (2007) 4 SCR

1023 : (2007) 5 Scale 611] has been doubted

by another Bench, the same would not mean

37

that we should wait for the decision of the

larger Bench, particularly when the same

instead of assisting the appellants runs

counter to their contention. ”

(emphasis supplied)

33. In Ashok Sadarangani v Union of India , (2012) 11

SCC 321, another 2-Judge Bench indicated:

“29. As was indicated in Harbhajan Singh

case [Harbhajan Singh v. State of Punjab,

(2009) 13 SCC 608: (2010) 1 SCC (Cri) 1135],

the pendency of a reference to a larger

Bench, does not mean that all other

proceedings involving the same issue would

remain stayed till a decision was rendered in

the reference. The reference made in Gian

Singh case [(2010) 15 SCC 118] need not,

therefore, detain us. Till such time as the

decisions cited at the Bar are not modified

or altered in any way, they continue to hold

the field.”

(emphasis supplied)

34. On the other hand, when it was thought proper that

other Benches of this Court, the High Courts and the

Courts/Tribunals below stay their hands, the same was

indicated in as many words, as was the case in State of

Haryana v G D Goenka Tourism Corporation Limited ,

(2018) 3 SCC 585

4

:

4

The reference was eventually answered in Indore Development Authority v Manoharlal, (2020) 8 SCC 129.

38

“9. Taking all this into consideration, we

are of the opinion that it would be

appropriate if in the interim and pending a

final decision on making a reference (if at

all) to a larger Bench, the High Courts be

requested not to deal with any cases relating

to the interpretation of or concerning

Section 24 of the Right to Fair Compensation

and Transparency in Land Acquisition,

Rehabilitation and Resettlement Act, 2013.

The Secretary General will urgently

communicate this order to the Registrar

General of every High Court so that our

request is complied with.

10. Insofar as the cases pending in this

Court are concerned, we request the Benches

concerned dealing with similar matters to

defer the hearing until a decision is

rendered one way or the other on the issue

whether the matter should be referred to a

larger Bench or not. Apart from anything

else, deferring the consideration would avoid

inconvenience to the litigating parties,

whether it is the State or individuals. ”

(emphasis supplied)

35. We are seeing before us judgments and orders by

High Courts not deciding cases on the ground that the

leading judgment of this Court on this subject is

either referred to a larger Bench or a review petition

relating thereto is pending. We have also come across

examples of High Courts refusing deference to judgments

of this Court on the score that a later Coordinate

39

Bench has doubted its correctness. In this regard, we

lay down the position in law. We make it absolutely

clear that the High Courts will proceed to decide

matters on the basis of the law as it stands. It is not

open, unless specifically directed by this Court, to

await an outcome of a reference or a review petition,

as the case may be. It is also not open to a High Court

to refuse to follow a judgment by stating that it has

been doubted by a later Coordinate Bench. In any case,

when faced with conflicting judgments by Benches of

equal strength of this Court, it is the earlier one

which is to be followed by the High Courts, as held by

a 5-Judge Bench in National Insurance Company Limited v

Pranay Sethi, (2017) 16 SCC 680

5

. The High Courts, of

course, will do so with careful regard to the facts and

circumstances of the case before it.

36.We are conscious that, by way of certain

pronouncements, some of which are alluded to in this

judgment, the Court extended principles relating to

elections to Parliament, State Assemblies and

5

See Paragraphs 27 and 28 in the report on this point.

40

Municipalities to other arenas as well. Indicatively,

the interpretation of judgments is always to be made

with due regard to the facts and circumstances of the

peculiar case concerned

6

. We have looked at Articles

243-O, 243ZG and 329 of the Constitution, and conclude

that no bar hit the High Court, even on principle.

Apart from the judgments expressly considered and dealt

with, hereinbefore and hereinafter, we have perused,

out of our own volition, the decisions, inter alia, of

varying Bench-strength of this Court in N P Ponnuswami

v Returning Officer, Namakkal Constituency , 1952 SCR

218

7

; Durga Shankar Mehta v Thakur Raghuraj Singh ,

(1955) 1 SCR 267 ; Hari Vishnu Kamath v Syed Ahmad

Ishaque, (1955) 1 SCR 1104 ; Narayan Bhaskar Khare (Dr)

v Election Commission of India , 1957 SCR 1081; Mohinder

Singh Gill v Chief Election Commissioner , (1978) 1 SCC

405; Lakshmi Charan Sen v A K M Hassan Uzzaman , (1985)

4 SCC 689; Indrajit Barua v Election Commission of

India, (1985) 4 SCC 722; Election Commission of India v

Shivaji, (1988) 1 SCC 277 ; Digvijay Mote v Union of

6

Sanjay Dubey v State of Madhya Pradesh, 2023 INSC 519 @ Paragraph 18.

7

Where the Court held that “The discussion in this passage makes it clear that the word “election” can be and has been

appropriately used with reference to the entire process which consists of several stages and embraces many steps, some of

which may have an important bearing on the result of the process.”, with respect to Article 329(b) of the Constitution.

41

India, (1993) 4 SCC 175

8

; Boddula Krishnaiah v State

Election Commissioner, Andhra Pradesh , (1996) 3 SCC

416; Anugrah Narain Singh v State of Uttar Pradesh ,

(1996) 6 SCC 303; Election Commission of India v Ashok

Kumar, (2000) 8 SCC 216 ; Kishansing Tomar v Municipal

Corporation, Ahmedabad , (2006) 8 SCC 352 ; West Bengal

State Election Commission v Communist Party of India

(Marxist), (2018) 18 SCC 141 ; Dravida Munnetra Kazhagam

v State of Tamil Nadu , (2020) 6 SCC 548 ; Laxmibai v

Collector, (2020) 12 SCC 186 , and last but not the

least, State of Goa v Fouziya Imtiaz Shaikh , (2021) 8

SCC 401

9

. On scrutiny, in combination with the timelines

and facts of the matter herein, we are sure that the

High Court did not falter.

37. We would indicate that the restraint, self-imposed,

by the Courts as a general principle, laid out in some

detail in some of the decisions supra, in election

matters to the extent that once a notification is issued

and the election process starts, the Constitutional

Courts, under normal circumstances are loath to

8

Where, apropos Article 324 powers of the ECI, this Court held “However, it has to be stated this power is not unbridled.

Judicial review will still be permissible, over the statutory body exercising its functions affecting public law rights.”

9

Where the learned 3-Judge Bench has considered a catena of the precedents relevant to the issue(s) before it.

42

interfere, is not a contentious issue. But where issues

crop up, indicating unjust executive action or an attempt

to disturb a level-playing field between candidates

and/or political parties with no justifiable or

intelligible basis, the Constitutional Courts are

required, nay they are duty-bound, to step in. The reason

that the Courts have usually maintained a hands-off

approach is with the sole salutary objective of ensuring

that the elections, which are a manifestation of the will

of the people, are taken to their logical conclusion,

without delay or dilution thereof. In the context of

providing appropriate succour to the aggrieved litigant

at the appropriate time

10

, the learned Single Judge acted

rightly. In all fairness, we must note that the learned

ASG, during the course of arguments, did not contest the

power per se of the High Court to issue the directions it

did, except that the same amounted to denying the

Appellants their discretion. As stated hereinbefore, we

are satisfied that in view of the 1968 Order, the

Appellants’ discretion was not unbridled, and rather, it

was guided by the 1968 Order.

10

B S Hari Commandant v Union of India, 2023 SCC OnLine SC 413 @ Paragraph 50.

43

38.The reasoning of the learned Single Judge, further

expounded by the learned Division Bench, leaves no

doubt that the relief sought by R1 was required to be

granted and, accordingly, the same was granted by the

High Court. The stark factor which stares us in the

face is that well before and well in time, by way of

the writ petition, R1 had approached the Court of first

instance (the learned Single Judge), for the reliefs,

which have been found due to them ultimately, and

upheld by the Appellate Court (the learned Division

Bench). It is the Appellants, who by virtue of sheer

non-compliance of the High Court’s orders, be it noted,

without any stay, can alone be labelled responsible for

the present imbroglio. These stark facts cannot be

broadly equated with other hypothetical scenarios,

wherein the facts may warrant a completely hands-off

approach.

39.This case constrains the Court to take note of the

broader aspect of the lurking danger of authorities

concerned using their powers relating to elections

44

arbitrarily and thereafter, being complacent, rather

over-confident, that the Courts would not interfere.

The misconceived notion being that in the ultimate

eventuate, after elections are over, when such

decisions/actions are challenged, by sheer passage of

time, irreversible consequences would have occurred,

and no substantive relief could be fashioned is just

that – misconceived. However, conduct by authorities as

exhibited herein may seriously compel the Court to have

a comprehensive re-think, as to whether the self-

imposed restrictions may need a more liberal

interpretation, to ensure that justice is not only done

but also seen to be done, and done in time to nip in

the bud any attempted misadventure. We refrain from

further comment on the Appellants, noting the pendency

of the contempt proceeding.

40. As made clear by us in the foregoing paragraphs,

the situation emanating herein is, in a manner of

speaking, unprecedented. With a sense of anguish, it

would not be wrong to say that the instant judgment has

been invited upon themselves by the Appellants. The

45

orders of the High Court, in our considered opinion,

were in aid of the electoral process, and no fault can

be found therewith.

41. The learned ASG’s submission that nobody

representing R1 had filed his/her nomination form, by

the last date notified, is inapposite, inasmuch as in

the position existing, no candidate/representative

affiliated with R1 could have filled up the form as the

Plough symbol was neither a reserved symbol nor a free

symbol, and thus, could not have been opted for by any

candidate when filing the nomination form. The serious

consequence was that R1’s identity as a political party

was eclipsed, right before the election to the LAHDC,

where it was the incumbent party in power.

42. This Court has previously bestowed consideration

on the importance of the symbol in an electoral system,

especially one allotted to a political party. Taking

note of the 3-Judge Bench decision in Shri Sadiq Ali v

Election Commission of India, New Delhi , (1972) 4 SCC

664, another Bench of 3 learned Judges in All Party

46

Hill Leaders’ Conference, Shillong v Captain W A

Sangma, (1977) 4 SCC 161 put it thus:

“29. For the purpose of holding elections,

allotment of symbol will find a prime place

in a country where illiteracy is still very

high. It has been found from experience that

symbol as a device for casting votes in

favour of a candidate of one's choice has

proved an invaluable aid. Apart from this,

just as people develop a sense of honour,

glory and patriotic pride for a flag of one's

country, similarly great fervour and emotions

are generated for a symbol representing a

political party. This is particularly so in a

parliamentary democracy which is conducted on

party lines. People after a time identify

themselves with the symbol and the flag.

These are great unifying insignia which

cannot all of a sudden, be effacced.

11

”

(emphasis supplied)

43. Placing reliance on Shri Sadiq Ali (supra), a 2-

Judge Bench summed up as under, in Edapaddi K

Palaniswami v TTV Dhinakaran , (2019) 18 SCC 219:

“39. We say so because the efficacy of

having a common symbol for a political group

has been underscored in Sadiq Ali v. Election

Commissionof India [Sadiq Ali v. Election

Commission of India, (1972) 4 SCC 664] . In

para 21 of the said judgment, this Court

observed thus : (SCC pp. 674-75)

“21. … It is well known that overwhelming

majority of the electorate are illiterate. It

was realised that in view of the handicap of

11

Maintained as appearing in the SCC version available on SCC OnLine; should be read as ‘effaced’.

47

illiteracy, it might not be possible for the

illiterate voters to cast their votes in

favour of the candidate of their choice

unless there was some pictorial

representation on the ballot paper itself

whereby such voters might identify the

candidate of their choice. Symbols were

accordingly brought into use. Symbols or

emblems are not a peculiar feature of the

election law of India. … The object is to

ensure that the process of election is as

genuine and fair as possible and that no

elector should suffer from any handicap in

casting his vote in favour of a candidate of

his choice. Although the purpose which

accounts for the origin of symbols was of a

limited character, the symbol of each

political party with the passage of time

acquired a great value because the bulk of

the electorate associated the political party

at the time of elections with its symbol. …”

(emphasis supplied)

And again in paras 40 and 41 it is observed

thus : (Sadiq Ali case [Sadiq Ali v. Election

Commission of India, (1972) 4 SCC 664] , p.

682)

“40. … It would, therefore, follow that

Commission has been clothed with plenary

powers by the abovementioned Rules in the

matter of allotment of symbols. … If the

Commission is not to be disabled from

exercising effectively the plenary powers

vested in it in the matter of allotment of

symbols and for issuing directions in

connection therewith, it is plainly essential

that the Commission should have the power to

settle a dispute in case claim for the

allotment of the symbol of a political party

is made by two rival claimants. … Para 15 is

intended to effectuate and subserve the main

purposes and objects of the Symbols Order.

48

The paragraph is designed to ensure that

because of a dispute having arisen in a

political party between two or more groups,

the entire scheme of the Symbols Order

relating to the allotment of a symbol

reserved for the political party is not set

at naught. … The Commission is an authority

created by the Constitution and according to

Article 324, the superintendence, direction

and control of the electoral rolls for and

the conduct of elections to Parliament and to

the Legislature of every State and of

elections to the office of President and

Vice-President shall be vested in the

Commission. The fact that the power of

resolving a dispute between two rival groups

for allotment of symbol of a political party

has been vested in such a high authority

would raise a presumption, though rebuttable,

and provide a guarantee, though not absolute

but to a considerable extent, that the power

would not be misused but would be exercised

in a fair and reasonable manner.

41. … Article 324 as mentioned above

provides that superintendence, direction and

control of elections shall be vested in

Election Commission. …”

(emphasis supplied)

40. This decision in Sadiq Ali [Sadiq Ali

v. Election Commission of India, (1972) 4 SCC

664] has been followed in Kanhiya Lal Omar v.

R.K. Trivedi [Kanhiya Lal Omar v. R.K.

Trivedi, (1985) 4 SCC 628] and in para 10

thereof, the Court observed thus : (SCC pp.

635-36)

“10. It is true that till recently the

Constitution did not expressly refer to the

existence of political parties. But their

existence is implicit in the nature of

democratic form of Government which our

country has adopted. The use of a symbol, be

49

it a donkey or an elephant, does give rise to

a unifying effect amongst the people with a

common political and economic programme and

ultimately helps in the establishment of a

Westminster type of democracy which we have

adopted with a Cabinet responsible to the

elected representatives of the people who

constitute the Lower House . The political

parties have to be there if the present

system of Government should succeed and the

chasm dividing the political parties should

be so profound that a change of

administration would in fact be a revolution

disguised under a constitutional procedure.

It is no doubt a paradox that while the

country as a whole yields to no other in its

corporate sense of unity and continuity, the

working parts of its political system are so

organised on party basis — in other words,

“on systematised differences and unresolved

conflicts”. That is the essence of our system

and it facilitates the setting up of a

Government by the majority. Although till

recently the Constitution had not expressly

referred to the existence of political

parties, by the amendments made to it by the

Constitution (Fifty-second Amendment) Act,

1985 there is now a clear recognition of the

political parties by the Constitution. The

Tenth Schedule to the Constitution which is

added by the above Amending Act acknowledges

the existence of political parties and sets

out the circumstances when a member of

Parliament or of the State Legislature would

be deemed to have defected from his political

party and would thereby be disqualified for

being a member of the House concerned. Hence

it is difficult to say that the reference to

recognition, registration, etc. of political

parties by the Symbols Order is unauthorised

and against the political system adopted by

our country.”

50

(emphasis supplied)”

(emphasis supplied by us via bolding)

44.For reasons aforesaid, the entire election

process, initiated pursuant to Notification dated

02.08.2023 issued by the Administration of Union

Territory of Ladakh, Election Department, UT

Secretariat, Ladakh, under S.O.53 published vide

No.Secy/Election/2023/290-301 dated 05.08.2023 stands

set aside. A fresh Notification shall be issued within

seven days from today for elections to constitute the

5

th

Ladakh Autonomous Hill Development Council, Kargil.

R1 is declared entitled to the exclusive allotment of

the Plough symbol for candidates proposed to be put up

by it.

45.Accordingly, this appeal stands dismissed with

costs of Rs.1,00,000/- (Rupees One Lakh) to be

deposited in the Supreme Court Advocates on Record

Welfare Fund. The same be done within two weeks, and

receipt evincing proof thereof be filed with the

Registry of this Court within a week thereafter. IAs

51

170883/2023, 170885/2023 and 174512/2023 be treated as

formally allowed.

46. Two further consequences flow:

(a) Writ Petition (Civil) No.1933 of 2023

pending at the High Court at Srinagar is also

disposed of in the above terms.

(b) CCP(S) No.340 of 2023, statedly listed next

on 08.09.2023 before the learned Single Judge,

survives. The same be proceeded with

expeditiously, in accordance with law,

considering the present judgment.

.......................J.

[VIKRAM NATH]

........................J.

[AHSANUDDIN AMANULLAH]

NEW DELHI

06

th

SEPTEMBER, 2023