Category Archives: Elections

The National Flower

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It doesn’t seem too unreasonable at first glance to say that a national symbol should not be used by a political party for political gain. That is essentially what Shaheen Parvez has been saying for some five years now. However, on March 16, 2009, the Supreme Court dismissed a Special Leave Petition she filed on the issue.

It was contended in the SLP that the lotus which is the BJP’s symbol cannot be used by the party because such use would be against the Emblems and Names (Prevention of Improper Use) Act. This is the statute which prevents such symbols as the Ashoka Chakra (and a whole host of others) from being used in a number of ways such as in the names of commercial establishments.

This SLP which sought the cancellation of the lotus symbol allotted to the BJP was made against a December 2008 Delhi High Court Order and was dismissed at the admission stage itself by a Bench of the Supreme Court comprising Chief Justice K G Balakrishnan, Justice Sirpurkar and Justice Sathashivam.

The petitioner said that she wrote letters to the Election Commission in 2004 and 2005 asking for the cancellation of the symbol but the Commission turned her down saying that the symbol had been reserved by the BJP for some twenty-five years prior to which it had been used by independents. It was after this that the petitioner approached the Delhi High Court. After failing there too, she approached the Supreme Court.

The apex Court, however, did nothing at all towards preventing the party from using the symbol.

Reference: The Hindu; March 17, 2009

Election Malpractice Allegations ‘Cock and Bull Story’

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“The election petition is a serious matter and it cannot be treated lightly or in fanciful manner nor is it given to a person who uses this as a handle for vexatious purpose,” said a Bench of the Supreme Court in a case in which the allegations made in the election petition appeared to the Court to be totally a cock and bull story.

The case was that of Sudarsha Avasthi v. Shiv Pal Singh decided by Justices A K Mathus and Altamas Kabir on May 16, 2008. In this case, a voter, Sudarsha Avasthi challenged the election of Shivpal Singh to the UP Legislative Council from the Lucknow Division Graduate’s Constituency saying that Singh had indulged in corrupt practices.

Avasthi filed an election petition praying for a declaration that Shiv Pal Singh’s election to the Uttar Pradesh Legislative Council to be declared void. An application was also filed under Order VI Rule 16 read with Order VII Rule 11 of the Code of Civil Procedure praying for the dismissal of the election petition.

As per Section 83 of the Representation of the People Act, 1951, it is the duty of the person who files the election petition and levels the allegation of corrupt practice, he has to disclose the material facts on which he relies and that should set forth the full particulars of a corrupt practice that the petitioner alleges including the full statement as far as possible disclosing the names of the parties alleged to have committed such corrupt practice and the date and place of commission of each such practice and the same shall be filed by the petitioner and verified in the manner as laid down in the Code of Civil Procedure. Apart from this, he has to file an affidavit in prescribed form in support of the allegation of such corrupt practice and he should disclose the particulars thereof. If he wants to rely on any document then it should be annexed to the petition signed by the petitioner and verified in the same manner as the petition. Section 123 of the Act deals with corrupt practices.

What shall be corrupt practices have been enumerated in Section 123 of the Act, like; bribery which has been defined that any gift, offer or promise by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any gratification, to any person whomsoever, with the object, directly or indirectly of including a person to stand or not to stand as, or to withdraw or not to withdraw from being a candidate at an election or an elector to vote or refrain from voting at an election, or as a reward to a person for having so stood or not stood, or for having withdrawn or not having withdrawn his candidature; or an elector for having voted or refrained from voting.

Therefore, the detailed particulars are required to be given that how a person is being bribed by various modes.

All these particulars have to be given in the manner provided in Section 83 of the Act.

With reference to various cases,* the Supreme Court noted that the election petition should contain the allegation of bribery in a concise manner with material particulars.

It then held that the material particulars disclosed in this case were not sufficient.

* Cases

i) AIR 1982 SC 1559; Roop Lal Sathi v. Machhattar Singh
ii) (1991) 3 SCC 375; F.A.Sapa & Ors. v. Singora & Ors.
iii) (1999) 4 SCC 274; T.M.Jacob v. C.Poulose & Ors.
iv) (2004) 11 SCC 196; Sardar Harcharan Singh Brar v. Sukh Darshan Singh & Ors.
v) (2005) 13 SCC 511; Harkirat Singh v. Amrinder Singh

(This article is an edited extract of the judgment.)