R.S. Chauhan ORDER
R.S. Chauhan, J.
1. The petitioner, the Bhararatiya Janata Party, is aggrieved by the notice dated 16.08.2015 issued by the Office of the Election Officer/Assistant Election Officer whereby, the Election Officer has directed the party for "closing of the party symbol and for vacating of the office flag on 21.08.2015 and 22.08.2015 respectively".
2. The brief facts of the case are that the petitioner had established their Head Quarters in 2011, at No. 48. Temple Street, 11th Cross, Malleshwaram, Bengaluru. Since it is the State Head Quarter of a political party, it has not only adorned the building with the symbol of the party, but also has a party flag hoisted on a pole in front of the building.
3. The election for the Bruhat Bengaluru Mahanagara Palike (for short 'BBMP') is scheduled to be held on 22.08.2015. Since according to Section 46 of the Karnataka Municipal Corporations Act, 1976 (for short 'the Act') and according to the Model Code of Conduct, it is not permissible for the political parties to carry out 'prachar' within hundred meters of the polling booth and since the Head Quarter building of the petitioners fall within hundred meters of polling booth, therefore, on 14.08.2015 the petitioners had filed a representation before the Chief Election Commissioner, requesting that the polling booth at the Kodandaramapuram Government School, Malleswaram should be shifted. However, instead of shifting the polling booth from the said Government School, by notice dated 16.08.2015, the Election Officer has directed the petitioners to remove their party symbol, and to remove the party flag from the petitioner's building on 21.8.2015 and 22.8.2015. Hence, this petition before this court.
4. Mr. Vivek S. Reddy, the learned Senior Counsel for petitioners, has raised following contentions before this court:--
"Firstly, according to Section 46 of the Act, no person shall commit certain acts within the polling station or in any public or private place within a distance of one hundred meters of the polling station-one of the prohibited acts is "exhibiting any notice or sign (other than an official notice) relating to the election". In case the prohibition is violated by any person, according to Sub-clause (2), of section 46 of the Act, the person is punishable with fine which may extend to Two Hundred and Fifty rupees. According to the learned Senior Counsel since Section 46 of the Act is a penal provision, the acts that are prohibited have to be interpreted in a very narrow sense. For, a penal provision has to be interpreted strictly and not liberally.
Secondly, both the title of the heading of Section 46 of the Act and the Model Code of Conduct use the word 'canvassing'. According to the learned Senior Counsel 'canvassing' would mean, and would be limited to only, oral persuasion by a person of a potential voters. Therefore, it does not include a display, or visual image, or symbol of the party or the flag of the party. Therefore, the learned Election Officer is not justified in issuing the notice dated 16.08.2015.
Thirdly, relying on the case of Subramanian Swamy v. Election Commission of India [MANU/SC/4126/2008 : (2008) 14 SCC 318], the learned counsel has vehemently contended that the flag of a political party symbolises the party itself. It has an emotional bonding with the people at large. Therefore, the emotional bonding and the identity of the political party cannot be done away even for a day.
Fourthly, the Head Quarters have existed since 2011. Even in the past elections, no such notice was ever issued by the Election Officer directing the party to remove its party symbol and its party flag. Therefore, the impugned notice is unjustified.
Fifthly, through the impugned notice, the Election Commissioner is trying to distort the emotional bonding between the potential voter and the party. Therefore, the action of the Election Commission is arbitrary, unjust and unfair.
Sixthly, instead of moving the polling booth as requested by the party, it is the party Head Quarters which has been asked to remove its party symbol and party flag. Therefore, the notice is highly unreasonable.
Lastly, the word 'sign' used in Section 46 has to be read in connection with the words 'relating to the election'. Since the party has been using its party symbol and party flag for a number of years, it does not relate to the present election. Therefore, it cannot be asked to remove the same."
5. On the other hand, the learned counsel for respondents, Mr. K.N. Phanindra, has submitted the following pleas:--
"Firstly, Section 46 of the Act has a certain purpose for its very existence. Since in a democracy, endeavor is to ensure free and fair election, Section 46 of the Act imposes certain restrictions. It debars doing of certain acts which include exhibition of any sign relating to the election. According to the learned counsel, the word 'sign' would have to be interpreted beyond meaning 'canvassing' which would include oral communication. According to the learned counsel, the word 'sign' is a genus and would include any representations, visuals symbols, images. Therefore, in order to ensure that there is no undue influence on the mind of a voter, Section 46 of the Act has purposefully used the word of wider connotation while using the word 'sign.' Even in the Model Code of Conduct, the word used in the Kannada language is 'prachar'. According to the learned counsel, 'prachar' can be done either through oral communication, or through visual images or 'signs'. Such a 'sign' would also include the party's symbol and party's flag.
Secondly, since the polling station namely Government School has been used for large number of years in the past, since the voters list clearly indicates the polling station, according to the learned counsel, it would be too late in the day to shift the polling station. According to him, the very representation made by the petitioner was a week prior to the holding of elections to BBMP. In such a short time, it is almost impossible for the Election Commission to shift the polling station. Therefore, considering the scope and ambit of Section 46 of the Act, and considering the ambit and scope of Model Code of Conduct, the Election Officer was justified in issuing the impugned notice.
Thirdly, it is precisely because a flag of a political party has an "emotional bonding", that the party flag needs to be removed from within 100 meters of the polling booth. The removal of the flag of the political party is not meant to cause any embarrassment or insult to the political party. This is merely a means to ensure free and fair election which is the foundation of a dynamic democracy. Therefore, according to the learned counsel, it is unjust to claim that the Election Officer is trying to distort the emotional bondage between the voters and the party.
Fourthly, that even if in the past, no direction was issued by the Commissioner to remove the political parties symbol and flag, there is no estoppel against a statute. Therefore, Section 46 of the Act would have to be implemented both in letter and spirit. The impugned notice is merely addressed to implement Section 46 of the Act both in its letter and spirit.
Lastly, that removal of a flag or symbol of a party should be seen as merely a reasonable restriction to ensure fair election. Therefore, the political party, which claims to uphold the rule of law and claims to strengthen the democratic process, should not object for removal of the flag."
6. Heard the learned counsel for parties, perused the impugned notice, and considered the case law cited at the Bar.
7. Section 46 of the Act is as under:--
''46. 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 voter; or
(c) persuading any voter not to vote for any particular candidate;
or
(d) persuading any voter not to vote at 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 sub-section (1) shall, on conviction, be punished with fine which may extend to two hundred and fifty rupees.
(3) An offence punishable under this section shall be cognizable"
8. A bare perusal of the provision clearly reveals that the heading of the section clearly uses the words 'canvassing in or near polling stations'. In ordinary parlance, the word 'canvassing' would imply an attempt to persuade a person through oral means or through communication. However, the fact that Section 46(1)(e) of the Act, further prohibits any exhibition of notice or sign relating to the election, the word 'canvassing' has to be interpreted in a broader scope to include 'sign' as well. Therefore, the heading of the Section, although it uses the word 'canvassing', would have to be interpreted in a wider scope than what is meant normally in the English language.
9. The learned counsel for petitioner has vehemently contended that the word 'sign' does not include party's symbol, and party's flag. To say the least, the said argument is rather misplaced. The word 'sign' is a genus. It would included any visual representation. Therefore, the party's symbol, which is nothing but an visual image of the party or a party's flag, which too is a visual representation of identity of political party, would per se have to be included in the word 'sign'. Since the word 'sign' is a genus, specific species like symbol or image or flag would be per se be included in the genus. The legislation in its wisdom has purposely used the word 'sign' instead of using the narrow words like 'symbol', or 'image'. Therefore, the word 'sign' would include both the image associated with the political parties, namely the party's symbol and the flag of the political party.
10. Although, the learned counsel for petitioners has pleaded that a penal provision has to be incorporated strictly, but, the fact remains that the word 'sign' - a word of wide amplitude is used. The word has to be given its total scope and ambit. The word 'sign' cannot be reduced to as excluding the images of the political party and its flag. If the word 'sign' were to be so interpreted, a narrow interpretation would go against plain and grammatical meaning of the word. Merely because a penal provision has to be strictly interpreted, does not mean that a word of wide connotations should be truncated by judicial interpretation. Such an interpretation would be violative of Golden Rule of Interpretation which imposes a duty on the court to go by the plain and grammatical meaning of a word. Therefore, the contention raised by the learned counsel that an image or symbol of a political party and its flag cannot be included in the word 'sign' is unaccepted.
11. The learned counsel for petitioners has further contended that the word 'sign' has to be read in relation to the words 'relating to election'. According to him, political symbol of the party and its flag has nothing to do with the election which is presently being held. According to the learned counsel, both the symbol of a political party, and its flag is eternal. It merely identifies the political party but it is not "related to the election." Even this argument is rather curious. A political party invariably fights the elections. The political party has a symbol and flag so as to identify itself both to the literate and illiterate voters. In the process of holding an election, canvassing of an election, both the symbol of a political party and its flag is used by the candidate. Therefore, automatically, the symbol of the political party and its flag are being used "in relation to the election" which is presently being held.
12. The observations made by the Hon'ble Supreme Court in the case of Subramanian Swamy (supra) that the flag of a political party creates emotional bond between the supporter of the political party, and the party itself cannot be doubted. But, it is precisely to control the influence of a Flag on the decision of a voter due to the emotional bonding that Section 46 of the Act requires that the exhibition of a 'sign' is prohibited within one hundred meters of the polling station.
13. Section 46 of the Act tries to get rid of the mischief where voters can either be solicited, or intimidated, or influenced unconsciously by any means. The very purpose of Section 46 of the Act is to ensure free and fair election. In order to ensure that no unconscious influence is exhorted on the mind of the voter that Section 46 of the Act requires that any 'sign' relating to the election should not be exhibited within hundred meters of the polling station. In fact, Section 46 of the Act tries to create a neutral atmosphere for the voter to make up his/her mind to which party he/she wishes to vote. Section 46 of the Act, therefore, prohibits the disturbance of neutral atmosphere as the voter proceeds towards the polling station.
14. Mr. Phanindra, learned counsel for the State Election Commission is justified in claiming that the poll booth is well-known to the people of the locality. Therefore, at the last legs of the election campaigning, poll station cannot be transferred overnight. Thus, the Election Commissioner is justified in not moving the polling station from the Government School to any other location.
15. In the light of the discussions made above, and especially considering the ambit and scope of Section 46, the impugned notice cannot be interpreted as an act of political vendetta, or highhandedness by the party in power, or even as a measure to hurt the sentiment of a political party whose party symbol and flag is required to be removed. Therefore, the learned counsel is unjustified in claiming that the sentiments of the persons who are the supporters of a political party namely, Bharatiya Janata Party would be hurt if the flag is removed for a day. The ultimate goal of holding elections is to strengthen the democratic process and to upheld the Rule of Law. Even those who support the political party have to first dedicate themselves to strengthening the democratic process in the country and in upholding the Rule of Law. After all, history is a witness to the raise and fall of many political parties. But, this country cannot afford the fall of the democratic process. Section 46 of the Act is merely an attempt to ensure that democracy thrives and progresses in this country. Since the impugned notice is in consonance of Section 46 of the Act, and adheres to the requirement of Model Code of Conduct, this court does not find any illegality in the impugned notice.
16. For the reasons stated above, the petition is devoid of merits. It is hereby dismissed.
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