# CASE DETAILS UNION TERRITORY OF LADAKH & ORS v. JAMMU AND KASHMIR NATIONAL CONFERENCE & ANR

- **Citation:** 2023 INSC 804
- **Court:** Supreme Court of India
- **Decided:** 2023-09-06
- **Case number:** Civil Appeal No. 5707 of 2023
- **Bench:** Vikram Nath, Ahsanuddin Amanullah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/case-details-union-territory-of-ladakh-ors-v-jammu-and-kashmir-national-36591
- **Pages:** 36

## Headnote

Issue for consideration: High Court whether justifi ed in dismissing the
appeal fi led by appellants and upholding the interim order of Single Judge
directing them to notify the symbol allotted to Respondent no.1 (R1) and
allow the candidates set up by it to contest in the then-upcoming General
Elections of the Ladakh Autonomous Hill Development Council, Kargil on
the reserved election symbol (plough) already allotted to it.
Election Symbols (Reservation and Allotment) Order, 1968 -
Paragraphs 9, 10, 10(A), 12 - Denial of the Plough symbol to respondent
no.1 - Impropriety:
Held: R1 was before the concerned authorities, well in time, by
impugning the Notifi cation dtd. 26.07.2023 which denied it the Plough
symbol - Appellants sitting on the representation of R1, went ahead and
notifi ed the elections on 02/05.08.2023 - R1's request for allotment of the
Plough symbol was bonafi de, legitimate and just, because 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 J&K and the creation
of two new Union Territories, the Union Territory of J&K and the Union
Territory of Ladakh, though the ECI had not notifi ed 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 - Also, there was no confl ict
with any other stakeholder as the Plough symbol was 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
68
69
UNION TERRITORY OF LADAKH v. JAMMU AND
KASHMIR NATIONAL CONFERENCE
such symbol being granted to R1 - In the absence of anything contrary in any
rule framed for conduct of the elections in question, relating to allotment of
symbols, the provisions of the 1968 Order can be relied upon as a guideline
to exercise of executive power of like nature - On a harmonious reading
of Paragraphs 9, 10, 10(A) and 12, under the terms of the 1968 Order, the
request of R1 is not bereft of justifi cation - In view of the 1968 Order, the
appellants' discretion was not unbridled, rather, it was guided by the 1968
Order - R1 is entitled to the exclusive allotment of the Plough symbol for
candidates proposed to be put up by it - Orders of the High Court were in
aid of the electoral process, no fault therewith - Entire election process set
aside - Fresh Notifi cation be issued - Appeal dismissed with costs - Ladakh
Autonomous Hill Development Councils Act, 1997 - ss.12, 13 - Constitution
of India - Article 226 - Election Laws. [Paras 21, 23, 27-30, 37, 40 and 44]
Constitution of India - Powers of Supreme Court and High Courts,
part of Basic Structure:
Held: Powers of Supreme Court and the High Courts vested under
the Constitution cannot be abridged, excluded or taken away, being part of
the Basic Structure of the Constitution. [Para 16]
Alternative remedy - No bar for exercise of writ jurisdiction -
Ladakh Autonomous Hill Devel-opment Councils Act, 1997 - s.13:
Held: The availability of alternative effi cacious remedy is no bar to
the exercise of high prerogative writ jurisdiction - s.13, 1997 Act does not,
and cannot, impede a Constitutional Court from proceeding further - High
Court was not precluded from issuing a direction of the nature issued by
it, more so when such direction does not violate any statutory provision -
Constitution of India - Election Laws. [Para 16]
Practice and Procedure - Inter-departmental communications -
Reliance upon:
Held: Inter-departmental communications are in the process of
consideration for appropriate decision and cannot be relied upon as a basis
to claim any right - In the present case, it was rightly contended that the
Legal Opinion by the Law Department remains internal advice, and advice
alone, and the same would not create/confer any right in favour of R1 -
El

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[2023] 12 S.C.R. 68 : 2023 INSC 804
CASE DETAILS
UNION TERRITORY OF LADAKH & ORS.
v.
JAMMU AND KASHMIR NATIONAL CONFERENCE & ANR.
(Civil Appeal No. 5707 of 2023)
SEPTEMBER 06, 2023
[VIKRAM NATH AND AHSANUDDIN AMANULLAH, JJ.]
HEADNOTES
Issue for consideration: High Court whether justifi ed in dismissing the
appeal fi led by appellants and upholding the interim order of Single Judge
directing them to notify the symbol allotted to Respondent no.1 (R1) and
allow the candidates set up by it to contest in the then-upcoming General
Elections of the Ladakh Autonomous Hill Development Council, Kargil on
the reserved election symbol (plough) already allotted to it.
Election Symbols (Reservation and Allotment) Order, 1968 -
Paragraphs 9, 10, 10(A), 12 - Denial of the Plough symbol to respondent
no.1 - Impropriety:
Held: R1 was before the concerned authorities, well in time, by
impugning the Notifi cation dtd. 26.07.2023 which denied it the Plough
symbol - Appellants sitting on the representation of R1, went ahead and
notifi ed the elections on 02/05.08.2023 - R1's request for allotment of the
Plough symbol was bonafi de, legitimate and just, because 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 J&K and the creation
of two new Union Territories, the Union Territory of J&K and the Union
Territory of Ladakh, though the ECI had not notifi ed 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 - Also, there was no confl ict
with any other stakeholder as the Plough symbol was 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
68
69
UNION TERRITORY OF LADAKH v. JAMMU AND
KASHMIR NATIONAL CONFERENCE
such symbol being granted to R1 - In the absence of anything contrary in any
rule framed for conduct of the elections in question, relating to allotment of
symbols, the provisions of the 1968 Order can be relied upon as a guideline
to exercise of executive power of like nature - On a harmonious reading
of Paragraphs 9, 10, 10(A) and 12, under the terms of the 1968 Order, the
request of R1 is not bereft of justifi cation - In view of the 1968 Order, the
appellants' discretion was not unbridled, rather, it was guided by the 1968
Order - R1 is entitled to the exclusive allotment of the Plough symbol for
candidates proposed to be put up by it - Orders of the High Court were in
aid of the electoral process, no fault therewith - Entire election process set
aside - Fresh Notifi cation be issued - Appeal dismissed with costs - Ladakh
Autonomous Hill Development Councils Act, 1997 - ss.12, 13 - Constitution
of India - Article 226 - Election Laws. [Paras 21, 23, 27-30, 37, 40 and 44]
Constitution of India - Powers of Supreme Court and High Courts,
part of Basic Structure:
Held: Powers of Supreme Court and the High Courts vested under
the Constitution cannot be abridged, excluded or taken away, being part of
the Basic Structure of the Constitution. [Para 16]
Alternative remedy - No bar for exercise of writ jurisdiction -
Ladakh Autonomous Hill Devel-opment Councils Act, 1997 - s.13:
Held: The availability of alternative effi cacious remedy is no bar to
the exercise of high prerogative writ jurisdiction - s.13, 1997 Act does not,
and cannot, impede a Constitutional Court from proceeding further - High
Court was not precluded from issuing a direction of the nature issued by
it, more so when such direction does not violate any statutory provision -
Constitution of India - Election Laws. [Para 16]
Practice and Procedure - Inter-departmental communications -
Reliance upon:
Held: Inter-departmental communications are in the process of
consideration for appropriate decision and cannot be relied upon as a basis
to claim any right - In the present case, it was rightly contended that the
Legal Opinion by the Law Department remains internal advice, and advice
alone, and the same would not create/confer any right in favour of R1 -
Elections - Administrative Law. [Para 17]
SUPREME COURT REPORTS
[2023] 12 S.C.R.
70
Constitution of India - Article 226 - Power to direct for actions,
in rare and exceptional situation, not mentioned in the provisions
concerned - Discussed.
Elections - Election authority, to be independent of any
extraneous infl uence:
Held: Elections to any offi ce/body are required to be free, fair and
transparent - Elections lie at the core of democracy - The authority
entrusted by law to conduct such elections is to be completely independent of any extraneous infl uence/consideration - In the present
case, the Union Territory of Ladakh not only denied R1 the Plough
symbol, but even upon timely intervention by the Single Judge, left no
stone unturned not only to resist but also frustrate a cause simply by
effl ux of time. [Para 22]
Elections - Power of Supreme court to bring back status quo
ante:
Held: Plea of the Appellants that no relief be granted to R1 due
to the election process having reached the penultimate stage, rejected
- Having chosen to not comply with successive orders of the High
Court which were passed well in time, such as not to stall/delay the
notifi ed election schedule, the Appellants cannot be permitted to plead
that interference by Supreme Court at this late juncture should not
be forthcoming - No litigant should have even an iota of doubt or
misimpression that just because of systemic delay or the matter not
being taken up by the Courts resulting in effl ux of time the cause would
be defeated, and the Court would be rendered helpless to ensure justice
to the party concerned - This Court can even turn the clock back, if the
situation warrants such dire measures - Powers of this Court, if need
be, to even restore status quo ante are not in the realm of any doubt, as
held in Nabam Rebia and Bamang Felix v. Deputy Speaker, Aurnachal
Pradesh Legislative Assembly reported as [2016] 6 SCR 1 - Though,
Nabam Rebia has been referred to a Larger Bench in Subhash Desai v.
Principal Secretary, Governor of Maharashtra however, the questions
referred to the Larger Bench do not detract from the aforesaid power and
furthermore, mere reference to a larger Bench does not unsettle declared
71
UNION TERRITORY OF LADAKH v. JAMMU AND
KASHMIR NATIONAL CONFERENCE
law - Constitution of India - Practice and Procedure - Reference to larger
Bench does not unsettle declared law. [Paras 31 and 32]
Practice and Procedure - High Courts not deciding cases on
the ground that the leading judgment of Supreme Court on subject
concerned is either referred to a larger Bench or a review petition
relating thereto is pending - High Courts refusing deference to
judgments as a later Coordinate Bench has doubted its correctness
- Law laid down:
Held: High Courts will proceed to decide matters on the basis of the
law as it stands - It is not open, unless specifi cally directed by Supreme
Court, to await an outcome of a reference or a review petition, as the case
may be - It is also not open to a High Court to refuse to follow a judgment
by stating that it has been doubted by a later Coordinate Bench - Further,
in any case, when faced with confl icting judgments by Benches of equal
strength of Supreme Court, it is the earlier one which is to be followed by
the High Courts - Judicial Discipline. [Para 35]
Judgments/Orders - Interpretation of:
Held: By way of certain pronouncements, principles relating to
elections to Parliament, State Assemblies and Municipalities have been
extended to other arenas as well - However, interpretation of judgments
is always to be made with due regard to the facts and circumstances of the
peculiar case concerned - In the present case, having looked at Articles
243-O, 243ZG and 329 it is concluded that no bar hit the High Court, even
on principle - Elections - Constitution of India - Articles 243-O, 243ZG
and 329. [Para 36]
Elections - Election process started - Interference by
Constitutional Courts:
Held: The self-imposed restraint by the Courts as a general
principle in election matters, to the extent that once a notification
is issued and the election process starts, the Constitutional Courts,
under normal circumstances are loath to interfere, is not a contentious
issue - But where issues crop up, indicating unjust executive action
or an attempt to disturb a level-playing field between candidates
and/or political parties with no justifiable or intelligible basis, the
SUPREME COURT REPORTS
[2023] 12 S.C.R.
72
Constitutional Courts are required, nay they are duty-bound, to step
in - Constitution of India. [Para 37]
Elections - Authorities concerned using their powers relating
to elections arbitrarily - Misconceived notion that eventually, after
elections are over and when such decisions/actions are challenged, by
sheer passage of time, irreversible consequences would have occurred,
and no substantive relief could be fashioned - Taken note of:
Held: Such conduct by authorities 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. [Para 39]
Elections - Importance of symbol in an electoral system, especially
one allotted to a political party - Discussed.
LIST OF CITATIONS AND OTHER REFERENCES
His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala,
(1973) 4 SCC 225 : [1973] Suppl. SCR 1; Indira Nehru Gandhi v. Raj
Narain, 1975 Supp SCC 1 : [1976] SCR 347; Minerva Mills Ltd. v. Union
of India, (1980) 3 SCC 625 : [1981] 1 SCR 206; L Chandra Kumar v. Union
of India, (1997) 3 SCC 261 : [1997] 2 SCR 1186; Kalpana Mehta v. Union
of India, (2018) 7 SCC 1 : [2018] 4 SCR 1; Rojer Mathew v. South Indian
Bank Limited, (2020) 6 SCC 1 : [2019] 16 SCR 1; Nabam Rebia and Bamang
Felix v. Deputy Speaker, Aurnachal Pradesh Legislative Assembly, (2016)
8 SCC 1 : [2016] 6 SCR 1 - followed.
State of Uttar Pradesh v. Mohammad Nooh, 1958 SCR 595; Madhya
Pradesh State Agro Industries Development Corporation Ltd. v. Jahan Khan,
(2007) 10 SCC 88 : [2007] 9 SCR 715; Maharashtra Chess Association v.
Union of India, (2020) 13 SCC 285 : [2019] 10 SCR 304; Radha Krishan
Industries v. State of Himachal Pradesh, (2021) 6 SCC 771; Godrej Sara
Lee Ltd. v. Excise and Taxation Offi cer-cum-Assessing Authority, 2023 SCC
Online SC 95; Mahadeo v. Sovan Devi, 2022 SCC online SC 1118; High
Court of Tripura v. Tirtha Sarathi Mukherjee, (2019) 16 SCC 663 : [2019] 2
SCR 692; Aish Mohammad v. State of Haryana, 2023 SCC Online SC 736;
Harbhajan Singh v. State of Punjab, (2009) 13 SCC 608 : [2009] 11 SCR
73
1015; Ashok Sadarangani v. Union of India, (2012) 11 SCC 321 : [2012]
3 SCR 826; National Insurance Company Limited v. Pranay Sethi, (2017)
16 SCC 680 : [2017] 13 SCR 100; Shri Sadiq Ali v. Election Commission
of India, New Delhi, (1972) 4 SCC; All Party Hill Leaders' Conference,
Shillong v. Captain W A Sangma, (1977) 4 SCC 161 : [1978] 1 SCR 393;
Edapaddi K Palaniswami v. TTV Dhinakaran, (2019) 18 SCC 219 : [2019]
3 SCR 200 - relied on.
Subhash Desai v. Principal Secretary, Governor of Maharashtra,
2023 SCC Online SC 607; State of Haryana v. G.D. Goenka Tourism
Corporation Limited (2018) 3 SCC 585; N P Ponnuswami v. Return-ing
Offi cer, Namakkal Constituency, 1952 SCR 218; Durga Shankar Mehta v.
Thakur Raghuraj Singh, (1955) 1 SCR 267; Hari Vishnu Kamath v. Syed
Ahmad Ishaue, (1955) 1 SCR 1104; Narayan Bhaskar Khare (Dr) v. Election
Commission of India, 1957 SCR 1081; Mohinder Singh Gill v. Chief Election
Commissioner, (1978) 1 SCC 405 : [1978] 2 SCR 272; Lakshmi Charan
Sen v. A K M Hassan Uzzaman, (1985) 4 SCC 689 : [1985] 1 Suppl. SCR
493; Indrajit Barua v. Election Commission of India, (1985) 4 SCC 722 :
[1985] 3 Suppl. SCR 225; Election Commission of India v. Shivaji, (1988)
1 SCC 277 : [1988] 1 SCR 878; Digvijay Mote v. Union of India, (1993) 4
SCC 175 : [1993] 1 Suppl. SCR 553; Boddula Krishnaiah v. State Election
Commissioner, Andhra Pradesh, (1996) 3 SCC 416 : [1996] 3 SCR 687;
Anugrah Narain Singh v. State of Uttar Pradesh, (1996) 6 SCC 303 : [1996]
5 Suppl. SCR 719; Election Commission of India v. Ashok Kumar, (2000)
8 SCC 216 : [2000] 3 Suppl. SCR 34; Kishansing Tomar v. Municipal
Corporation, Ahmedabad, (2006) 8 SCC 352 : [2006] 7 Suppl. SCR 45; West
Bengal State Election Commission v. Communist Party of India (Marxist),
(2018) 18 SCC 141; Dravida Munnetra Kazhagam v. State of Tamil Nadu,
(2020) 6 SCC 548 : [2019] 14 SCR 704; Laxmibai v. Collector, (2020) 12
SCC 186 : [2020] 2 SCR 880; State of Goa v. Fouziya Imtiaz Shaikh, (2021)
8 SCC 401 - referred to.
OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
CIVIL APPELLATE JURISDICTION: Civil Appeal No.5707 of 2023
From the Judgment and Order dated 14.08.2023 of the High Court of
Jammu & Kashmir and Ladakh at Srinagar in LPA No.151 of 2023.
UNION TERRITORY OF LADAKH v. JAMMU AND
KASHMIR NATIONAL CONFERENCE
SUPREME COURT REPORTS
[2023] 12 S.C.R.
74
A1 : Union Territory of Ladakh through its Chief Secretary
A2: Chief Election offi cer, UT of Ladakh
A3: District Election Offi cer (Kargil)
A4: Administrative Secretary, Election Department, UT of Ladakh
R1: Jammu and Kashmir National Conference, through its General
Secretary
R2 : Election Commission of India
Appearances:
Tushar Mehta, Solicitor General, K.M. Nataraj, A.S.G., Piyush
Beriwal, Rajat Nair, Shailesh Madiyal, Siddharth Dharmadhikari, Vinayak
Sharma, Dr. Arun Kumar Yadav, Shreekant Neelappa Terdal, Advs. for the
Appellants.
S.D. Sanjay, Sr. Adv., Shariq J Reyaz, Syed Ahmed Saud, Daanish
Ahmed Syed, Mohd. Parvez Dabas, Uzmi Jameel Husain, Aqib Baig, Mohd.
Shahib, M/s. Shakil Ahmad Syed, Akshat Agrawal, Akshay Amritanshu,
Advs. for the Respondents.
JUDGMENT / ORDER OF THE SUPREME COURT
JUDGMENT
AHSANUDDIN AMANULLAH, J.
 Heard learned counsel for the parties.
2. Leave granted.
3. The present appeal is directed against the Judgment and Order dated
14.08.2023 (hereinafter referred to as the "Impugned Judgment") rendered
by a learned Division Bench of the High Court of Jammu & Kashmir and
Ladakh at Srinagar (hereinafter referred to as the "High Court") dismissing
Letters Patent Appeal No.151 of 2023 fi led by the Appellants and upholding
the interim order of a learned Single Judge dated 09.08.2023 in Writ Petition
(Civil) No.1933 of 2023.
75
BRIEF FACTS:
4. The controversy involved in this lis is the non-allocation of the
Plough symbol to the writ petitioner, the Jammu and Kashmir National
Conference/Respondent No.1 herein (hereinafter referred to as "R1") for its
candidates to contest the then-upcoming General Elections of the Ladakh
Autonomous Hill Development Council, Kargil (hereinafter referred to as
the "LAHDC"). 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 reads 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 offi ce 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."
5. Aggrieved, the Appellants 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.
SUBMISSION BY THE APPELLANTS:
6. Mr. K. M. Nataraj, learned Additional Solicitor General (hereinafter
referred to as the "ASG") for the Appellants submitted that the learned
Single Judge and the learned Division Bench of the High Court have
issued directions contrary to law. It was submitted that both orders have
been passed on an erroneous assumption that the provisions of Election
Symbols (Reservation and Allotment) Order, 1968 (hereinafter referred
to as the "1968 Order"), would be applicable in elections to the LAHDC.
Learned ASG canvassed that this is not the correct legal position as the
LAHDC election is being conducted by the Election Authority of the Union
Territory of Ladakh constituted under Rule 5 of The Ladakh Autonomous
Hill Development Councils (Election) Rules, 1995 (hereinafter referred to
as the "1995 Rules"). It was contended that the Election Commission of
UNION TERRITORY OF LADAKH v. JAMMU AND KASHMIR
NATIONAL CONFERENCE [AHSANUDDIN AMANULLAH, J.]
SUPREME COURT REPORTS
[2023] 12 S.C.R.
76
India (hereinafter referred to as the "ECI") is empowered to hold elections
to the Parliamentary and State Assembly constituencies and for the present
LAHDC elections, the ECI does not exercise any authority. Thus, the learned
ASG submitted that any reference to the provisions of the 1968 Order is
misplaced.
7. Learned ASG, further, contended that Paragraphs No. 9, 10 and
10(A) of the 1968 Order speak of restrictions on the allotment of symbols
reserved for State Parties in States where such parties are not recognized;
concession to candidates set up by a State Party at elections in other States or
Union Territories, and; concession to candidates set up by an un-recognized
party which was earlier recognized as a National or State Party, respectively.
Thus, it was his categoric stand that such concession can be only for the
purposes of Parliamentary and State Assembly elections, and not for the
election in question.
8. Learned ASG submitted that the reference by the ECI in its
communication dated 18.07.2023 to R1, that it can avail the concession
under Paragraph 10 of the 1968 Order can neither confer any right on R1,
nor compel the Election Authority of the Union Territory of Ladakh to
allow the prayer of R1, as made in the Writ Petition before the High Court.
With regard to the opinion of the Law Department of the Appellant No.1,
as quoted in the communication of the District Election Offi cer (District
Magistrate), Kargil in his communication dated 12.07.2023 to the Chief
Electoral Offi cer, Union Territory of Ladakh, the same at best was only
advisory but not binding as it is for the Election Authority of the Union
Territory of Ladakh to independently consider such request.
9. He submitted that none of the candidates, who have fi lled up and
submitted their nomination forms, have either sought the Plough symbol
or indicated in the relevant column that they were candidates of R1 and on
this score alone, at this stage, R1 was not entitled to any indulgence by this
Court.
77
10. He summed up his arguments by stating that, as of now1, the process
of elections had already been set in motion. Learned ASG pointed out that
fi ling of the nomination forms had begun from 16.08.2023 and reached
the penultimate stage since the last date of withdrawal of nominations
(26.08.2023) had already elapsed. It was stated that now only polling
remained to be held on 10.09.2023 and in this view of the matter, this Court
may set aside the Impugned Order.
SUBMISSIONS BY RESPONDENT NO.1:
11. Learned counsel for R1 submitted that the orders of the learned
Single Judge dated 09.08.2023 and the learned Division Bench dated
14.08.2023 are self-speaking and have dealt in detail with the contentions of
the Appellants and the same have been negated on cogent legal and factual
grounds. It was submitted that there should not have been, in the fi rst place,
any issue with the Appellants in granting the Plough symbol for the reason
that R1 is the incumbent ruling party in the LAHDC, and was entitled to the
Plough symbol, since the same was neither part of the list of free symbols
nor allotted to any other National or State Party, so recognized, either by
the ECI or by the Election Authority for the Union Territory of Ladakh. It
was submitted that a completely partisan and arbitrary approach had been
adopted by the Appellants in denying their preferred symbol (Plough) for
oblique reasons to deny a level-playing fi eld between candidates. It was
further submitted that the Plough symbol was well-known to the electorate
since decades as being exclusively associated with R1, the denial of the same
is clearly intended to cause unjustifi ed prejudice. It was stated that undue
advantage would accrue to the remaining candidates/parties contesting the
LAHDC elections.
12. He urged the Court to take note of the fact that despite the learned
Single Judge having passed directions well before the commencement of
even the fi ling of nominations, upheld by the learned Division Bench, which
1
This Court's order dated 01.09.2023 is quoted for ready reference:

'Application for impleadment is rejected.

Heard learned counsel for the parties.

Judgment reserved.

List the matter for pronouncement on 06.09.2023.'
UNION TERRITORY OF LADAKH v. JAMMU AND KASHMIR
NATIONAL CONFERENCE [AHSANUDDIN AMANULLAH, J.]
SUPREME COURT REPORTS
[2023] 12 S.C.R.
78
again, was before the starting of the nomination process, and despite there
being a contempt case pending before the learned Single Judge, which was
adjourned on prayer made by the Appellants, citing the pendency of the
present appeal, the Appellants had not complied with the orders of the High
Court. In this backdrop, submitted learned counsel, to take a stand before
this Court that now due to effl ux of time, no relief can be granted to R1,
was clear dishonest conduct. It was submitted that this Court would not let
a just cause be defeated only because of delay occasioned by the other side
and the Appellants cannot take the advantage of such delay caused by them
to the detriment of R1's bonafi de, legitimate and genuine claim.
13. Learned counsel submitted that allotment of symbols by the
Appellants to the National Parties and free symbols shown in the Notifi cation
for the present elections clearly shows that the same are in conformity
with the 1968 Order. Thus, he submitted, the Appellants are precluded
from blowing hot and cold that they cannot and should not be permitted to
selectively, as per their whims and fancies, decide as to which provisions
under the 1968 Order would be applicable and which provisions would not.
It was submitted that a harmonious reading of Paragraphs 9, 10, 10(A) as
also 12 of the 1968 Order would indicate beyond doubt that in the absence
of anything to the contrary, the Appellants were required to be guided by
the 1968 Order in toto, which was also the indication in the letter written
by the ECI to R1 and the same view was taken by the Law Department in
its Legal Opinion to the Appellants.
ANALYSIS, REASONING AND CONCLUSION:
14. The relevant Paragraphs of the 1968 Order, attention to which was
drawn by the learned ASG and the learned counsel for R1, are set out below:
"9. Restriction on the allotment of Symbols reserved for State
parties in States where such parties are not recognised.- A symbol
reserved for a State party in any State-
(a) shall not be included in the list of free symbols for any other
State or Union territory, and
(b) shall not be reserved for any other party which subsequently
becomes eligible, on fulfi lment of the conditions specifi ed in paragraph
6, for recognition as a State party in any other State:
79
Provided that nothing contained in clause (b) shall apply in
relation to a political party, for which the Commission has, immediately
before the commencement of the Election Symbols (Reservation and
Allotment) (Amendment) Order, 1997, already reserved the same
symbol which it has also reserved for some oth-er State party or parties
in any other State or States.
10. Concessions to candidates set up by a State party at elections
in other States or Union territories.- If a political party, which is
recognised as a State party in some State or States, sets up a candidate
at an election in a constituency in any other State in which it is not a
recognised State party, then such candidate may, to the exclusion of all
other candidates in the constituency, be allotted the symbol reserved
for that party in the State or States in which it is a recognised State
Party, notwithstanding that such symbol is not specifi ed in the list of
free symbols for such other State or Union territory, on the fulfi lment
of each of the following conditions, namely:-
(a) that an application is made to the Commission by the said
party for exclusive allotment of that symbol to the candidate set up
by it, not later than the third day after the publication in the Offi cial
Gazette of the notifi cation calling the election;
(b) that the said candidate has made a declaration in his
nomination paper that he has been set up by that party at the election
and that the party has also fulfi lled the requirements of clauses (b),
(c), (d) and (e) of paragraph 13 read with paragraph 13A in respect
of such candidate; and
(c) that in the opinion of the Commission there is no reasonable
ground for refusing the application for such allotment: Provided that
nothing contained in this paragraph shall apply to a candidate set up
by a State party at an election in any constituency in a State in which
that party is not a State Party and where the same symbol is already
reserved for some other State Party in that State.
10A. Concession to candidates set up by an unrecognized party
which was earlier recognized as a National or State party.- If a
political party, which is un-recognized at present but was a recognized
UNION TERRITORY OF LADAKH v. JAMMU AND KASHMIR
NATIONAL CONFERENCE [AHSANUDDIN AMANULLAH, J.]
SUPREME COURT REPORTS
[2023] 12 S.C.R.
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National or State party in any State or Union territory not earlier
than six years from the date of notifi cation of the election, sets up
a candidate at an election in a constituency in any State or Un-ion
territory, whether such party was earlier recognized in that State or
Union territory or not, then such candidate may, to the exclusion of all
other candidates in the constituency, be allotted the symbol reserved
earlier for that party when it was a recognized National or State party,
notwithstanding that such symbol is not specifi ed in the list of free
symbols for such State or Union territory, on the fulfi llment of each
of the following conditions, namely:--
(a) that an application is made to the Commission by the said
party for the exclusive allotment of that symbol to the candidate set up
by it, not later than the third day after the publication in the Offi cial
Gazette of the notifi cation calling the election;
(b) that the said candidate has made a declaration in his
nomination paper that he has been set up by that party at the election
and that the party has also fulfi lled the requirements of clauses (b),
(c), (d) and (e) of paragraph 13 read with paragraph 13A in respect
of such candidate; and
(c) that in the opinion of the Commission there is no reasonable
ground for refusing the application for such allotment:
Provided that nothing contained in this paragraph shall apply to
a candidate set up by the said party at an election in any constituency
in a State or Union territory where the same symbol is already reserved
for some other National or State party in that State or Union Territory.
xxx
12. Choice of symbols by other candidates and allotment
thereof.-(1) Any candidate at an election in a constituency in any
State or Union territory, other than-
(a) a candidate set up by a National Party; or
(b) a candidate set up by a political party which is a State Party
in that State; or
81
(c) a candidate referred to in paragraph 10 or paragraph 10A;
shall choose, and shall be allotted, in accordance with the provisions
hereafter set out in this paragraph, one of the symbols specifi ed as
free symbols for that State or Union territory by notifi cation under
paragraph 17.
(2) Where any free symbol has been chosen by only one candidate
at such election, the returning offi cer shall allot that symbol to that
candidate and to no one else.
(3) Where the same free symbol has been chosen by several
candidates at such election, then-
(a) if of those several candidates, only one is a candidate
set up by an unrecognised political party and all the rest are
independent candidates, the returning offi cer shall allot that free
symbol to the candidate set up by the unrecognised political party,
and to no one else; and, if, those several candidates, two or more
are set up by diff erent unrecognised political parties and the rest
are independent candidates, the returning offi cer shall decide by
lot to which of the two or more candidates set up by the diff erent
unrecognised political parties that free symbol shall be allotted,
and allot that free symbol to the candidate on whom the lot falls,
and to no one else:
Provided that where of the two or more such candidates set up
by such diff erent unrecognized political parties, only one is, or was,
immediately before such election, a sitting member of the House of the
People, or, as the case may be, of the Legislative Assembly (irrespective
of the fact as to whether he was allotted that free symbol or any other
symbol at the previous election when he was chosen as such member),
the returning offi cer shall allot that free symbol to that candidate, and
to no one else;
(b) if, of those several candidates, no one is set up by any
unrecognised political party and all the independent candidates, but
one of the independent candidates is, or was, immediately before such
election a sitting member of the House of the People, or, as the case
may be, of the legislative Assembly, and was allot-ted that free symbol
UNION TERRITORY OF LADAKH v. JAMMU AND KASHMIR
NATIONAL CONFERENCE [AHSANUDDIN AMANULLAH, J.]
SUPREME COURT REPORTS
[2023] 12 S.C.R.
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at the previous election when he was chosen as such member, the
Returning Offi cer shall allot that free symbol to that candidate, and
to no one else; and
(c) if, of those several candidates, being all independent
candidates, no one is, or was, a sitting member as aforesaid, the
returning offi cer shall decide by lot to which of those independent
candidates that free symbol shall be allotted, and allot that free
symbol to the candidates on whom the lot falls, and to no one else."
15. Sections 12 and 13 of the Ladakh Autonomous Hill
Development Councils Act, 19972 (hereinafter referred to as the
"1997 Act") read as under:
"12. Disputes regarding elections. - (1) No election shall be
called in question except by an election petition presented in such
manner as may be prescribed and before such authority as may be
appointed by Government, from time to time, by notifi cation in the
Government Gazette:
Provided that no person below the rank of a District Judge
shall be appoint-ed for the purpose of this section.
(2) No election shall be called in question except on any one
or more of the following grounds, namely: -
(a) that on the date of his election the returned candidate was
not qualifi ed or was disqualifi ed, to be chosen to fi ll the seat in the
Council;
(b) that a corrupt practice has been committed by a returned
candidate or his election agent or by any other person with the
consent of the returned candidate or his election agent.
Explanation: - For the purposes of this section "corrupt
practice" shall mean any of the corrupt practices specifi ed in section
132 of the Jammu and Kashmir Representation of the People Act,
1957;
2
This repealed The Ladakh Autonomous Hill Development Councils Act, 1995
(President's Act No.1 of 1995).
83
(c) that any nomination has been improperly rejected;
(d) that the result of the election in so far as it concerns the
returned candidate has been materially aff ected-
(i) by any improper acceptance of any nomination; or
(ii) by any corrupt practice committed in the interest of the returned
candidate by an agent other than his election agent; or
(iii) by the improper reception, refusal or rejection of any vote; or
(iv) by the reception of any vote which is void; or
(v) by any non-compliance with provisions of this Act or of any rules
or orders made thereunder.
(3) At the conclusion of the trial of an election petition the
authority appoint-ed under sub-section (1) shall make an order-
(a) dismissing the election petition; or
(b) declaring the election of all or any of the returned candidates
to be void; or
(c) declaring the election of all or any of the returned candidates
to be void and the petitioner or any other candidates to have been
duly elected.
(4) If a petitioner in addition to calling in question the election of
a returned candidate makes a declaration that he himself or any other
candidate has been duly elected and the authority under sub-section
(1) is of opinion that-
(a) in fact the petitioner or such other candidate has received
the majority of valid votes; or
(b) but for the votes obtained by the returned candidate by corrupt
practice the petitioner or such other candidate would have obtained
the majority of the valid votes,
the authority as aforesaid shall, after declaring the election of
the returned candidate to be void declare the petitioner or such other
candidate, as the case may be, to have been duly elected.
UNION TERRITORY OF LADAKH v. JAMMU AND KASHMIR
NATIONAL CONFERENCE [AHSANUDDIN AMANULLAH, J.]
SUPREME COURT REPORTS
[2023] 12 S.C.R.
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13. Procedure for election disputes. - The procedure provided
in the Code of Civil Procedure, Samvat 1977 in regard to suits shall
be followed by the authori-ty appointed under section 12 as far as it
can be made applicable in the trial and disposal of an election petition
under this Act."
16. 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. Reference
need only be made to decisions in His Holiness Kesavananda Bharati
Sripadagalvaru v State of Kerala, (1973) 4 SCC 225; Indira Nehru
Gandhi v Raj Narain, 1975 Supp SCC 1; Minerva Mills Ltd. v Union of
India, (1980) 3 SCC 625; L Chandra Kumar v Union of India, (1997) 3
SCC 261 and more recently, to Kalpana Mehta v Union of India, (2018)
7 SCC 1 and Rojer Mathew v South Indian Bank Limited, (2020) 6 SCC
1, all of which were rendered by a Bench of 5 or more learned Judges.
Section 12 of the 1997 Act need not detain us. Insofar as Section 13 of the
1997 Act is concerned, it is by now too well-settled that the availability of
alternative effi cacious remedy is no bar to the exercise of high prerogative
writ jurisdiction, in the light of various decisions, including but not limited
to, State of Uttar Pradesh v Mohammad Nooh, 1958 SCR 595; Madhya
Pradesh State Agro Industries Development Corporation Ltd. v Jahan
Khan, (2007) 10 SCC 88; Maharashtra Chess Association v Union of
India, (2020) 13 SCC 285. Even on the anvil of Radha Krishan Industries
v State of Himachal Pradesh, (2021) 6 SCC 771, Section 13 of the 1997
Act does not, and cannot, impede a Constitutional Court from proceeding
further. We do not wish to multiply established authorities on the point but
would add the very recent Godrej Sara Lee Ltd. v Excise and Taxation
Offi cer-cum-Assessing Authority, 2023 SCC OnLine SC 95 to the list
enumerated above.
17. At the threshold, it is noted that the ECI deals with the conduct of
elections to the Parliament, the State Legislative Assemblies and the State
Legislative Councils. The Union Territory of Ladakh does not currently have
a Legislative Assembly. The last election to the Parliamentary constituency
was held in the year 2019. That said, fi rst things fi rst. The Legal Opinion
by the Law Department remains internal advice, and advice alone, and as
85
such, the learned ASG was correct in contending that the same would not
create/confer any right in favour of R1. In Mahadeo v Sovan Devi, 2022
SCC OnLine SC 1118 (where one of us, Vikram Nath, J. was part of the
coram), the Court, after considering various case-laws, held that "It is
well settled that inter-departmental communications are in the process of
consideration for appropriate decision and cannot be relied upon as a basis
to claim any right. ..."
18. In Kalpana Mehta (supra), Hon. Dipak Misra, C.J.I., with whom
4 learned Judges concurred, stated:
"40. While focussing on the exercise of the power of judicial
review, it has to be borne in mind that the source of authority is the
Constitution of India. The Court has the adjudicating authority to
scrutinise the limits of the power and transgression of such limits.
The nature and scope of judicial review has been succinctly stated in
Union of India v. Raghubir Singh [Union of India v. Raghub-ir Singh,
(1989) 2 SCC 754] by R.S. Pathak, C.J. thus : (SCC p. 766, para 7)
"7. ... The range of judicial review recognised in the superior
judiciary of India is perhaps the widest and the most extensive known
to the world of law. ... With this impressive expanse of judicial power,
it is only right that the superior courts in India should be conscious of
the enormous responsibility which rest on them. This is specially true
of the Supreme Court, for as the highest Court in the entire judicial
system the law declared by it is, by Article 141 of the Constitution,
binding on all courts within the territory of India."
And again: (SCC p. 767, para 11)
"11. Legal compulsions cannot be limited by existing legal
propositions, be-cause there will always be, beyond the frontiers of the
existing law, new areas inviting judicial scrutiny and judicial choicemaking which could well aff ect the validity of existing legal dogma.
The search for solutions responsive to a changed social era involves
a search not only among competing propositions of law, or competing
versions of a legal proposition, or the modalities of an inde-terminacy
such as "fairness" or "reasonableness", but also among propositions
from outside the ruling law, corresponding to the empirical knowledge
UNION TERRITORY OF LADAKH v. JAMMU AND KASHMIR
NATIONAL CONFERENCE [AHSANUDDIN AMANULLAH, J.]
SUPREME COURT REPORTS
[2023] 12 S.C.R.
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or ac-cepted values of present time and place, relevant to the dispensing
of justice within the new parameters."
The aforesaid two passages lay immense responsibility on
the Court pertain-ing to the exercise of the power keeping in view
the accepted values of the pre-sent. An organic instrument requires
the Court to draw strength from the spirit of the Constitution. The
propelling element of the Constitution commands the reali-sation of
the values. The aspiring dynamism of the interpretative process also
expects the same.
41.This Court has the constitutional power and the authority
to interpret the constitutional provisions as well as the statutory
provisions. The conferment of the power of judicial review has a great
sanctity as the constitutional court has the power to declare any law as
unconstitutional if there is lack of competence of the legislature keeping
in view the fi eld of legislation as provided in the Constitution or if a
provision contravenes or runs counter to any of the fundamental rights
or any constitutional provision or if a provision is manifestly arbitrary.
42. When we speak about judicial review, it is also necessary
to be alive to the concept of judicial restraint. The duty of judicial
review which the Constitution has bestowed upon the judiciary is not
unfettered; it comes within the conception of judicial restraint.