The nomination process for the Ladakh Autonomous Hill Development Council election begins today, voting scheduled for October 4
When the Ladakh Autonomous Hill Development Council (LAHDC) elections were announced, the National Conference (NC) found itself in a tricky situation. It was denied the plough—its election symbol. According to the Ladakh administration, “no state party, including the NC, is a recognised party in Ladakh”, and hence NC could not go with the plough. Thus started a long court battle.
The plough has been NC’s identity since its struggle against the Dogra rulers. In 1939, when Sheikh Abdullah, the party founder, changed the party’s name from the Muslim Conference to the All Jammu and Kashmir National Conference for inclusivity, the party, deeply influenced by communist reformers, chose a red flag with a plough in the middle in white.
Many scholars like Wasim Rahman feel the flag, designed by Pandit Prem Nath Dhar, stands for Kashmir’s fight for freedom against the Dogras and the peasants in Kashmir have had a deep connection with the plough.
The Election Commission of India (ECI) in Ladakh issued a notification on June 26, 2023 for the LAHDC elections, scheduled for September 10, 2023. It is a local self-government body in the Kargil region of Ladakh, elections for which are held every five years.
The Chief Electoral Officer of Ladakh UT denied the plough symbol to the NC. The party appealed to the Election Commission of India. The ECI stated that there is no Legislative Assembly in the Union Territory of Ladakh, and the Election Symbols (Reservation and Allotment) Order, 1968 (the 1968 Order) does not provide for the recognition of parties in a Union Territory without a Legislative Assembly.
However, the ECI said that as a recognised state party in the Union Territory of Jammu and Kashmir, with its reserved symbol being the Plough, the NC could avail a concession.
On May 15, 2023, the ECI updated its notification, specifying the names of recognised national and state parties and the list of free symbols recognising NC as a state party in J&K. On May 31, 2023, the NC made a representation to the CEO of Ladakh, seeking recognition as a state party and the allotment of the plough symbol for all elections in the Union Territory of Ladakh. The CEO forwarded the representation for comments to the district election officer in Kargil. On June 7, 2023, the district election officer advised the NC to approach the ECI.
However, six days later, on June 12, 2023, following the communication from the CEO of Ladakh, the district election officer in Kargil indicated that the NC could be recognised and provided with a reserved symbol for LAHDC elections by the administration of the Union Territory of Ladakh under the relevant rules.
No action was taken, and no order was passed.
The NC approached the High Court on July 29, 2023, challenging the July 26 notification and sought the plough as its reserved symbol for the LAHDC elections.
While the writ petition was pending, on August 5, the Election Department of the Union Territory of Ladakh notified the schedule of elections to constitute the 5th LAHDC, Kargil. On August 9, a single bench of the Jammu and Kashmir High Court passed an interim order directing the NC to approach the office of the Union Territory of Ladakh's Chief Election Officer for notifying the reserved symbol (plough) already allotted to it.
The court directed the UT Ladakh administration to notify the symbol allotted to the NC under the 1968 Order, and allow the candidates set up by the NC to contest on the plough symbol. However, the Ladakh Union Territory preferred to appeal against the order before the Division Bench of the High Court. The appeal was dismissed by the division bench on August 14, 2023.
The Ladakh administration moved to the Supreme Court. K M Nataraj, additional solicitor general (ASG), argued that the Single Judge and the Division Bench of Jammu & Kashmir and Ladakh High Court have issued directions contrary to the law. He argued that both orders have been passed on an erroneous assumption that the provisions of Order 1968 would be applicable in the LAHDC elections. The ASG argued that the ECI is empowered to hold elections to the Parliamentary and State Assembly constituencies, but it has no authority in the case of the LAHDC elections. The ASG argued that such a concession can be made only for the purposes of Parliamentary and state Assembly elections.
The ASG said as of now, the process of elections had already been set in motion, and the filing of the nomination forms had begun on August 16, reaching the final stage since the last date of withdrawal of nominations, August 26, had already passed. He argued that now only polling remained to be held on September 10, and in view of this matter, this court may set aside the order.
Shariq Riyaz, the counsel for the NC, said the NC is the ruling party in the LAHDC Kargil and was entitled to the plough symbol. Riyaz accused the Ladakh administration of a partisan and arbitrary approach in denying the plough symbol to the NC, thus denying a level-playing field to the party candidates. He said that the plough symbol was well-known to the electorate for decades as being exclusively associated with the NC and the denial of the same is clearly intended to cause unjustified prejudice. He argued that despite the single judge having passed directions before the commencement of even the filing of nominations, and the directions being upheld by the division bench, before the starting of the nomination process, the Ladakh government didn’t comply with the orders of the high court.
Justice Ahsanuddin Amanullah made several observations quoting previous judgments. “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.”
He said the SC has the constitutional power and the authority to interpret the constitutional provisions as well as the statutory provisions. Following these observations, Justice Amanullah said elections to any office, or body are required to be free, fair, and transparent. “It is surprising that the Union Territory of Ladakh not only denied the National Conference the Plough symbol but even upon timely intervention by the Single Judge, has left no stone unturned not only to resist but also frustrate a cause simply by efflux of time,” the SC observed.
Justice Amanullah said it is a matter of concern that the appellants (Union Territory of Ladakh through its Chief Secretary, Chief Election Officer, UT of Ladakh, District Election Officer (Kargil), administrative secretary, election department, UT of Ladakh), while sitting on the representation of the NC, went ahead and notified the elections.
The SC said it did not find any merit in the appeal of the Ladakh administration. “The request for the 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 recognised state party having been allotted the plough symbol.”
The SC said even after the bifurcation of the erstwhile state of Jammu and Kashmir, the NC is entitled to the allotment of the plough symbol. It said that 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 a symbol being granted to the NC. This is also fortified in the factual setting of the plough symbol being the reserved symbol for the NC 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.”
“At the cost of repetition, the Court would indicate that nothing substantive has been shown to this Court to indicate that the allotment of the Plough symbol would in any way be an infraction or go against the public interest”, it was stated.
The Court also rejected the ASG argument that no relief be granted to the NC as the election process has already reached its second last stage.
The SC said it would categorically emphasise 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 the 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.”
Taking a broader view, the court called it a misconceived notion that no substantive relief could be given in such cases after elections are over. “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 also rejected ASG’s argument that nobody representing the NC filed his or her nomination form, by the last date notified. The Court said no candidate or /representative affiliated with the NC 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 writ petitioner’s identity as a political party was eclipsed, right before the election to the LAHDC, where it was the incumbent party in power.”
The court set aside the entire election process, initiated following a notification of August 2, 2023, issued by the administration of Union Territory of Ladakh, Election Department, UT Secretariat, Ladakh. The court said a fresh notification be issued within seven days from for elections to constitute the Ladakh Autonomous Hill Development Council, Kargil. The NC is declared entitled to the exclusive allotment of the Plough symbol for candidates proposed to be put up by it.
The SC dismissed the appeal with costs of Rs one lakh to be deposited in the Supreme Court advocates on record welfare fund.
The court said for the purpose of holding elections, the allotment of symbols will find a prime place in a country where illiteracy is still very high. “It has been found from experience that symbols as a device for casting votes in favour of a candidate of one's choice have 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 effaced.”
“It is well known that the overwhelming majority of the electorate are illiterate. It was realised that in view of the handicap of 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 use of a symbol, be it a donkey or an elephant, does give rise to a unifying effect among 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.”