CHANDIGARH (The Stellar News): Recently, the General Elections to 46 Municipalities (18 Municipal Councils and 28 Municipal Committees) in Haryana were announced by the State Election Commission (SEC). The process of filing of nominations began on May 30 which would continue till June 4. The scrutiny would be on June 6 while the last date of withdrawal of candidature is June 7 and on the same day itself, the concerned Returning Officers (R.O.s) would allot the symbols to all those candidates who finally remain in the election fray. The Polling would be held on June 19 while the counting on June 22.
Meanwhile, amongst the prominent political parties in the State, the ruling BJP, which earlier declared to contest such elections on its party symbol in 18 Municipal Councils separately from its alliance partner JJP (Jannayak Janta Party), has now decided that both would contest jointly however a leeway has been given to their district units in respect of Municipal Committees. On the other hand, the Congress is not contesting elections on its symbol while AAP (Aam Aadmi Party) and INLD ( Indian National Lok Dal) would fight above polls on their respective symbols.
Be that as it may, it might appear highly surprising but an Advocate at Punjab and Haryana High Court, Hemant Kumar unequivocally asserts that legally, i.e. as per provisions of Haryana Municipal Act, 1973 as well as Haryana Municipal Election Rules, 1978, the Municipal elections in the State cannot be conducted on the basis of symbols of political parties i.e. by allotment of party symbols.
Hemant, who even sent a legal notice to SEC, Haryana in February this year against conduct of Municipal Elections on party symbols, told that albeit during polls, symbols can be allotted to contesting candidates by the concerned Returning Officer (R.O.s) from the list of Free Symbols as notified by SEC from time to time but as far as reserved symbols of political parties are concerned like Lotus of BJP, Hand of Cong, Key of JJP, Spectacles of INLD, Broom of AAP, the same cannot be allotted since there is no provision in current State Municipal Law and Rules for facilitating the same.
Now the question which arises is that when allotment of party symbols in Municipal Elections is not legally permissible in Haryana, then how has the same been happening till date more precisely since the last three decades ?
The Advocate asserts that the same is being done on the basis of Election Symbols (Reservation and Allotment) Order which is issued and/or updated by SEC from time to time usually before each General Elections and which not only defines political parties including mention of Recognized National/State Parties for whom respective Election Symbols are reserved by Election Commission of India (ECI).
But the moot but significant legal point is that such Order is not in consonance with either Haryana Municipal Act, 1973 or Municipal Election Rules, 1978 which govern all Municipal Committees/Councils (including conduct of Elections therein) in the State since there is no provision for conduct of Municipal Elections on basis of party symbols of political parties neither in the above referred Law no in the Election Rules.
On 21 March, the SEC in response to legal notice sent by Hemant replied that although it possesses adequate power in this regard by quoting Article 243 ZA of Constitution of India along with Section 3A of Haryana Municipal Act, 1973. Also it mentioned Rule 18(1) and Rule 29(1) of Haryana Municipal Election Rules, 1978 which deal with Notification of Symbols and Assignment of Symbols to Candidates.
However the SEC also wrote in view of repeated requests sent by Hemant, on February 29, it has forwarded a proposal to the State Government in this regard i.e. for suitable amendment in Municipal Act along with Election Rules pertaining to inclusion of the definition of political party as well as Anti-Defection provisions therein. Thereafter, the Urban Local Bodies Department of Haryana Government on April 20 responded that it has considered the matter (proposal of SEC) and it has been decided that no change in law is required.
Hence, it becomes clear that notwithstanding the State Government declining to amend the State Municipal Law for facilitation of Civic/Municipal Elections on the basis of party symbols of political parties, the SEC is still conducting the election on such a basis.
As far as assertion of powers by SEC is concerned to do so, Hemant counters that although under Article 243 ZA (1) of Indian Constitution, the superintendence, direct and control of conduct of elections to Municipalities vests in SEC but it is subjected to provision(s) made by State Legislature in this regard under Article 243 ZA (2).
Also there is no mention of political party/party symbols in Section 3A of Haryana Municipal Act, 1973 as asserted by SEC.
Next as far as Rule 18(1) and Rule 29(1) of Haryana Municipal Election Rules, 1978 is concerned, the Advocate avers that neither of the above Rules uses the term political party/party symbols.
Hence, as per current Law and Rules, the SEC can only allot symbols to contesting candidates from list of Free Symbols as notified by SEC from time to time but it cannot allot symbols of any political party including that of National/State Recognized Political Party like BJP, Congress, JJP, INLD and AAP.
Also, Hemant raises serious concern that without provision of Anti-Defection in Municipal Law, the elections on basis of party symbols of political parties is meaningless since after declaration of election results, any or every elected representative on a political party ticket/symbol would have liberty to defect/migrate to any other political party with impunity i.e. without fear of losing membership. The Election Symbols Allotment Order as issued by SEC, can’t curb such sort of defections as it has got no statutory sanctity.
Earlier last year, the neighbouring Himachal Pradesh amended its Municipal Corporation Act, 1994 to make provision for elections of MCs in the State on party symbols of political parties as well as by prescribing provisions for Anti-Defection after which General Elections to four MCs in the State viz. Dharamshala, Palampur, Mandi and Solan were possible on party symbols of political parties like BJP, Congress etc.
If the same was possible only on the basis of Elections Symbols Allotment Order issued by SEC, as is being done in case of Haryana, then SEC of Himachal Pradesh should also have simply issued similar sort of Order and there would have been no need of enacting Amendment in the HPMC Act, 1994 by State Assembly in March last year.
MUNICIPAL POLLS IN HARYANA CAN’T BE LEGALLY HELD ON SYMBOLS OF POLITICAL PARTIES HOWEVER STATE ELECTION COMMISSION CONDUCTING SO SINCE YEARS
STATE MUNICIPAL LAW & ELECTION RULES ARE NOT HAVING EVEN MENTION OF THE TERM “POLITICAL PARTY” MUCH LESS THAN PROVISION FOR POLLS ON PARTY SYMBOLS
EARLIER THIS YEAR, STATE GOVT ALSO REJECTED PROPOSAL FOR AMENDMENT IN MUNICIPAL LAW FOR FACILITATION ELECTIONS ON BASIS OF POLITICAL PARTIES
IN 2021, SAME WAS POSSIBLE IN HIMACHAL PRADESH ONLY AFTER AMENDMENT IN MUNICIPAL LAW BY STATE ASSEMBLY
CHANDIGARH – Recently, the General Elections to 46 Municipalities ( 18 Municipal Councils and 28 Municipal Committees) in Haryana were announced by the State Election Commission (SEC). The process of filing of nominations began on May 30 which would continue till June 4. The scrutiny would be on June 6 while the last date of withdrawal of candidature is June 7 and on the same day itself, the concerned Returning Officers (R.O.s) would allot the symbols to all those candidates who finally remain in the election fray. The Polling would be held on June 19 while the counting on June 22.
Meanwhile, amongst the prominent political parties in the State, the ruling BJP, which earlier declared to contest such elections on its party symbol in 18 Municipal Councils separately from its alliance partner JJP (Jannayak Janta Party), has now decided that both would contest jointly however a leeway has been given to their district units in respect of Municipal Committees. On the other hand, the Congress is not contesting elections on its symbol while AAP (Aam Aadmi Party) and INLD ( Indian National Lok Dal) would fight above polls on their respective symbols. Be that as it may, it might appear highly surprising but an Advocate at Punjab and Haryana High Court, Hemant Kumar unequivocally asserts that legally, i.e. as per provisions of Haryana Municipal Act, 1973 as well as Haryana Municipal Election Rules, 1978, the Municipal elections in the State cannot be conducted on the basis of symbols of political parties i.e. by allotment of party symbols.
Hemant, who even sent a legal notice to SEC, Haryana in February this year against conduct of Municipal Elections on party symbols, told that albeit during polls, symbols can be allotted to contesting candidates by the concerned Returning Officer (R.O.s) from the list of Free Symbols as notified by SEC from time to time but as far as reserved symbols of political parties are concerned like Lotus of BJP, Hand of Cong, Key of JJP, Spectacles of INLD, Broom of AAP, the same cannot be allotted since there is no provision in current State Municipal Law and Rules for facilitating the same. Now the question which arises is that when allotment of party symbols in Municipal Elections is not legally permissible in Haryana, then how has the same been happening till date more precisely since the last three decades ? The Advocate asserts that the same is being done on the basis of Election Symbols (Reservation and Allotment) Order which is issued and/or updated by SEC from time to time usually before each General Elections and which not only defines political parties including mention of Recognized National/State Parties for whom respective Election Symbols are reserved by Election Commission of India (ECI).
But the moot but significant legal point is that such Order is not in consonance with either Haryana Municipal Act, 1973 or Municipal Election Rules, 1978 which govern all Municipal Committees/Councils (including conduct of Elections therein) in the State since there is no provision for conduct of Municipal Elections on basis of party symbols of political parties neither in the above referred Law no in the Election Rules. On 21 March, the SEC in response to legal notice sent by Hemant replied that although it possesses adequate power in this regard by quoting Article 243 ZA of Constitution of India along with Section 3A of Haryana Municipal Act, 1973. Also it mentioned Rule 18(1) and Rule 29(1) of Haryana Municipal Election Rules, 1978 which deal with Notification of Symbols and Assignment of Symbols to Candidates.
However the SEC also wrote in view of repeated requests sent by Hemant, on February 29, it has forwarded a proposal to the State Government in this regard i.e. for suitable amendment in Municipal Act along with Election Rules pertaining to inclusion of the definition of political party as well as Anti-Defection provisions therein. Thereafter, the Urban Local Bodies Department of Haryana Government on April 20 responded that it has considered the matter (proposal of SEC) and it has been decided that no change in law is required. Hence, it becomes clear that notwithstanding the State Government declining to amend the State Municipal Law for facilitation of Civic/Municipal Elections on the basis of party symbols of political parties, the SEC is still conducting the election on such a basis. As far as assertion of powers by SEC is concerned to do so, Hemant counters that although under Article 243 ZA (1) of Indian Constitution, the superintendence, direct and control of conduct of elections to Municipalities vests in SEC but it is subjected to provision(s) made by State Legislature in this regard under Article 243 ZA (2).
Also there is no mention of political party/party symbols in Section 3A of Haryana Municipal Act, 1973 as asserted by SEC. Next as far as Rule 18(1) and Rule 29(1) of Haryana Municipal Election Rules, 1978 is concerned, the Advocate avers that neither of the above Rules uses the term political party/party symbols. Hence, as per current Law and Rules, the SEC can only allot symbols to contesting candidates from list of Free Symbols as notified by SEC from time to time but it cannot allot symbols of any political party including that of National/State Recognized Political Party like BJP, Congress, JJP, INLD and AAP. Also, Hemant raises serious concern that without provision of Anti-Defection in Municipal Law, the elections on basis of party symbols of political parties is meaningless since after declaration of election results, any or every elected representative on a political party ticket/symbol would have liberty to defect/migrate to any other political party with impunity i.e. without fear of losing membership. The Election Symbols Allotment Order as issued by SEC, can’t curb such sort of defections as it has got no statutory sanctity.
Earlier last year, the neighbouring Himachal Pradesh amended its Municipal Corporation Act, 1994 to make provision for elections of MCs in the State on party symbols of political parties as well as by prescribing provisions for Anti-Defection after which General Elections to four MCs in the State viz. Dharamshala, Palampur, Mandi and Solan were possible on party symbols of political parties like BJP, Congress etc. If the same was possible only on the basis of Elections Symbols Allotment Order issued by SEC, as is being done in case of Haryana, then SEC of Himachal Pradesh should also have simply issued similar sort of Order and there would have been no need of enacting Amendment in the HPMC Act, 1994 by State Assembly in March last year.
