Pradeep Kant, J.@mdashThis petition in the nature of public interest litigation has been filed by an Advocate who prays for freezing the symbols like Hand, Sun, Star, Clock, Lantern, Inkpot and Pen, Bulb, Chair, Table Stool, Book, Candles, Envelop, Umbrella, Hand Pump, Spectacles, Almirah, Black Board, Briefcase, Ceiling Fan, Cup and Sucer, Cot, Spoon, GlassTumbler, Kettle, Jug, Lock and Key, Necktie, Coat, Hat Bangles, Rings and Lady''s Purse being in violation of the provisions of Section 130 of the Representation of the People Act, 1950.
2. The argument is that these symbols cannot be allowed in view of Section 130 of the Representation of the People Act, 1950 (hereinafter referred to as the Act). Section 130 of the Act prohibits canvassing within the polling station or in any public or private place within a distance of hundred metres of the polling station. Section 130 of the Act is being quoted below:
" 130. Prohibition of canvassing in or near polling stations.(1) No person shall, on the date or dates on which a poll is taken at any polling station, commit any of the following acts within the polling station or in any public or private place within a distance of one hundred metres of the polling station, namely:
(a) canvassing for votes; or
(b) soliciting the vote of any elector; or
(c) persuading any elector not to vote for any particular candidate; or
(d) persuading any elector not to vote the election; or
(e) exhibiting any notice or sign (other than an official notice) relating to the election.
(2)Any person who contravenes the provisions of subsection (1) shall be punishable within fine which may extend to two hundred and fifty rupees.
(3)An offence punishable under this section shall be cognizable.
3. The petitioner had earlier made a representation to the Election Commission of India raising his grievance against the allotment of symbol ''Hand'' and to ban the flag of Indian National Congress. The said representation has been rejected by the Election commission of India vide order dated 26.4.2007. The order says that just because ''Hand'' is a part of human body, it is not sufficient enough reason to object to it as an election symbol and that the symbol of ''Hand'' has been reserved for the last almost three decades. While rejecting the representation, the Election Commission of India also observed that there are several other election symbols which represent articles of daily use found in or around the polling stations, such as ceiling fan, table chair, stool, clock, inkpot and pen, cup and saucer, lock and key etc. The Commission further observed that if any symbol is misused inside the polling station for soliciting votes, there are provisions for taking action.
4. As regards the flag of the Indian National Congress, the attention was drawn to the order dated 8th April 2004 passed by the Supreme Court, in S.L.P. (C ) No. 6195 of 2004 in re: B.R. Krishna Bhatt vs Union of India and others.
5. It appears that after receipt of the said order, the petitioner made another representation dated 22.1.2009. This time he included all those symbols which were mentioned in the aforesaid order and gave certain other symbols which according to him cannot be allotted, in view of section 130 of the Act, 1950.
6. Sri Ashok Pandey, who appears in person, vehemently urged that these symbols are necessarily found in or around the polling booth within the prohibited distance and therefore, the same be freezed.
7. Sri O.P. Srivastava, learned counsel appearing on behalf of Election Commission of India submitted that symbols are allotted keeping in mind that the electors namely; the voters do recognize them and they are commonly known objects. He further submitted that a large number of symbols are required to be allotted in the election and therefore, care is taken that only such symbols are allotted which are commonly known object and of course, they must be so much in number that they are sufficient for every individual or political party who intends to contest the election either on the ticket of National Party or State party or independently.
8. The learned counsel for the Election Commission also gave an example that in the first general election, ''railway engine'' was given as free symbol but that was objected and it was represented to the Commission that the rural population in some remote undeveloped areas had never seen a railway engine and so it was not included in the list of approved symbols for the second general elections.
9. The allotment of symbols is governed by the provisions of Election Symbols (Reservation and Allotment) Order, 1968 and mainly it is the domain of Election Commission of India to allot symbols and unless the symbol so allotted is such which could not have been allotted for any valid and good reason, the Court could hardly interfere in the domain. In the case of a National party, if a candidate is set up by the said party, such a candidate will have no option but will have to choose and shall be allotted the symbol of National party and no other symbol. So far free symbols are concerned, it is the discretion of the Election commission of India to allot the same in accordance with the rules.
10. Section 130 of the Act, 1950 prohibits canvassing in or near polling station. It does not relate to the allotment of symbols as to in what manner the symbols should be allotted and what symbol should to allotted to which party or individual. It is a penal provision providing that in case any person who contravenes the provision of Section130(1) shall be punishable with imprisonment which may extend to three months or with fine of Rs.250/ or with both. The offence under Section 130 would be made, if any person on the date of polling at any polling station, commits any of the following act within the polling station or in any public or private place within a distance of one hundred metres of the polling station, namely; (a) canvasses for vote, (b) solicit the vote of any elector,(c) persuades any elector not to vote for any particular candidate, (d) persuades any elector not to vote at the election; and (e) exhibits any notice or sign (other than an official notice), relating to the election.
11. The aforesaid provision prohibits any sort of canvassing for vote or soliciting the vote of any elector or persuading any elector not to vote for any particular candidate or persuading any elector not to vote at the election or exhibiting any notice or sign (other than an official notice) relating to election, the offence, thus, would be made out, in case any election symbol is used for the aforesaid action, which has been prohibited in section 130. Unless such exhibition is made, it does not constitute any offence under Section130 of the Act, 1950. That being so, the Election Commission has rightly observed in its order dated 26th April 2007 that if any symbol is misused, there are provisions to deal with such offences.
12. Section 130 of the Act, 1950 cannot be attracted unless the action is covered by the provisions contained therein, therefore, it cannot be a ground for issuing a direction by this Court for freezing of any symbol. Rule 5 of the Conduct of Elections Rules, 1961 says that the Election Commission shall, by notification in the Gazette of India, and in the Official Gazette of each State, specify the symbols that may be chosen by candidates at elections in Parliamentary or Assembly constituencies and the restrictions to which their choice shall be subjected.
13. It need not be reiterated that it is the responsibility, and obligation of the Election Commission to ensure that symbols are not misused and that the symbols are allotted, keeping in mind the relevant rules, the guidelines, if any, and that such a symbol allotment, does not runs contrary to the scheme of the Act and the relevant rules.
14. We, thus do not find any ground to interfere in the writ petition. It is hereby dismissed.
