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Court Can Turn the Clock Back: SC's Sharp Words on Ladakh Admin Denying NC Use of Party Symbol

Asserting its power to turn the clock back, the Supreme Court came down heavily on the Ladakh Union Territory administration run by the Bharatiya Janata Party-led Union Government for denying the J&K National Conference its PloughSymbol for the upcoming local body elections in Ladakh.

This Court can…turn the clock back…even restore status quo ante…if the situation warrants such dire measures,the Supreme Court Bench of Justices Ahsanuddin Amanullah & Vikram Nath observed in a 51 - Page Judgment on Wednesday, September 06, 2023.

No litigant should have even an iota of doubt…that just because of systemic delay…and passage of time…(a) cause would be defeated and the court would be rendered helpless to ensure justice,the court said, terming the Ladakh administration's non-compliance of a Jammu and Kashmir and Ladakh (J&K) High Court Order on the issue as unprecedented.

The Ladakh administration's decision to deny the 'Plough' Symbol to the National Conference is being dubbed as a move to keep Kashmir-based mainstream parties out of any electoral process in Ladakhafter it was downgraded into a Union territory without a Legislative Assembly in 2019.

Noting that the Plough Symbol was reserved for JKNC by the Election Commission of India because of its status as a recognized State Party of the erstwhile State of Jammu and Kashmir, the Court held that;

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 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.

The controversy involved in this lis is the non-allocation of the Plough symbol to the Writ Petitioner, the Jammu & Kashmir National Conference for its candidates to contest the then-upcoming General Elections of the Ladakh Autonomous Hill Development Council, Kargil. In view of the urgency in the matter, the Learned Single Judge passed an interim Order on 09.08.2023, the operative portion whereof at Paragraph 11 read 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.

Aggrieved, the Appellants - Ladakh Administration, led by Lieutenant Governor B. D. Mishra 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.

Instead of implementing the High Court Order, the Ladakh administration filed the Special Leave Petition challenging the Judgment and Order dated 14.08.2023 passed by Learned Division Bench dismissing Letters Patent Appeal No.151 of 2023 upholding the interim Order of a Learned Single Judge dated 09.08.2023 in Writ Petition (Civil) No.1933 of 2023.

The Supreme Court came down heavily on the Ladakh Administration for notifying the LAHDC elections while sitting over the representation made by JKNC seeking the allotment of the reserved symbol. The Appellants (Ladakh Admin), while sitting on the representation of JKNC, 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", the Bench comprising Justices Vikram Nath & Ahsanuddin Amanullah noted.

Elections should be free, fair and transparent In its Judgment, the Supreme Court highlighted the fundamental principles of democracy and the necessity for impartiality and timeliness in election processes. It observed that;
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 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 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 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 of the 1968 Order.

The Supreme Court took a firm stance against the appellants who had not complied with the Orders of the High Court to allot the symbol for JKNC. It opined that;

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 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 Hon. Khehar, J. (as the learned Chief Justice then was), concurred with by the other 4 learned Judges, in {Nabam Rebia & Bamang Felix Vs Deputy Speaker, Arunachal Pradesh Legislative Assembly & Ors, (2016) 8 SCC 1} is enough on this aspect. We know full well that a 5-Judge Bench in {Subhash Desai Vs Principal Secretary, Governor of Maharashtra & Ors, 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.

The Supreme Court also highlighted the challenges faced by JKNC due to the unavailability of its recognized symbol while observing that:
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.

It further said that the authorities might have been "overconfident" that the Courts would not interfere in the election process and termed it a "misconceived notion, the relevant Para 39 thus reads as under;

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 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.

"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 Orders of the High Court, in our considered opinion, were in aid of the electoral process, and no fault can be found therewith", the Court observed. Not stopping there, the Court imposed a cost of Rupees One lakh on the UT of Ladakh.

In light of the above, the Supreme Court held that J&K NC was entitled to the Ploughsymbol and set aside the LADHC Election Notification. The Supreme Court further directed the authorities to notify the election afresh within seven days.

Written By:  Dinesh Singh Chauhan, Advocate
High Court of Judicature, J&K & Ladakh, Jammu.
Email: [email protected]; [email protected]

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