No 'hat' symbol for Dhinakaran for Jaya's seat in RK Nagar bypoll, says HC

New Delhi: The Delhi High Court on Monday declined to grant any interim relief to VK Sasikala-TTV Dhinakaran faction of the AIADMK by dismissing their plea to use the 'hat' symbol in the upcoming bypoll to the RK Nagar assembly constituency.

While dismissing the interim application of Sasikala and Dhinakaran for allotment of the 'hat' symbol, Justice Indermeet Kaur directed the Returning Officer (RO) to give a finding on their plea, independent of the poll panel's November 23 order.

The Election Commission of India by its November 23 order had allotted the 'two leaves' symbol to the faction of Tamil Nadu Chief Minister E Palaniswami and O Panneerselvam and set aside its own interim order granting 'hat' symbol to the Sasikala-Dhinakaran group.

During arguments, the court was of the view that the RO may not take a decision which went against the EC's November 23 order.

The court had reserved its order after hearing arguments on behalf of the EC and the two factions of the AIADMK.

Towards the fag end of the arguments, the poll panel told the court that its RO can be directed to take a decision independent of the EC order.

Subsequently, the court said in its order, "interim application dismissed. This court is not inclined to grant any interim relief.

"The RO, however, is directed to return a finding on the petitioners' application for nomination along with their application seeking grant of 'hat' independently, dehors any observations made by EC in terms of its order of November 23," the court said in its interim order.

The court also issued notice to the Election Commission of India, O Panneerselvam, Tamil Nadu CM E Palaniswami seeking their replies to Sasikala and Dhinakaran's pleas challenging the poll panel's November 23 order allotting the 'two-leaves' symbol to the Panneerselvam-Palaniswami faction.

It sought the response of Madhusudhanan, AIADMK's candidate for the December 21 by-poll and MLA Semmalai, who are also respondents in the pleas by Sasikala and Dhinakaran.

The main petition will be heard on February 12, the court said.

During arguments, the poll panel, Palaniswami, Panneerselvam and others opposed the grant of 'hat' symbol to Sasikala-Dhinakaran group by the court, saying the RO alone had the power to do so.

They said if the Sasikala-Dhinakaran group do not get the 'hat' symbol, then some other free symbol could be granted to them by the RO.

The court did not appear to agree with the contentions, saying the RO being subordinate to the poll panel, will not go against the EC's November 23 order by which the grant of 'hat' symbol to Sasikala-Dhinakaran group was set aside.

It expressed the view that if the 'hat' symbol was not granted to the Sasikala-Dhinakaran group, then the other side may "win by default".

"Elections have to be free and fair. You (Panneerselvam- Palaniswami) should not get a vote by default," it said.

The hat symbol was given to the Sasikala-Dhinakaran group by the EC in March this year when it had frozen the use of the 'two-leaves' symbol to which the group led by Palaniswami and Panneerselvam had also laid claim.

The Palaniswami-Panneerselvam faction had at the same time been granted the 'electric pole' symbol.

However, on November 23, the poll panel had ruled in favour of Palaniswami-Panneerselvam faction by allotting the 'two-leaves' symbol to them for the upcoming by-poll.

The Palaniswami-Panneerselvam group and the poll panel argued that 'hat' was a free symbol and cannot be reserved for an individual or independent candidate.

The EC told the court that after its November 23 order, Sasikala and Dhinakaran were not part of any group but were independent candidates.

The Sasikala-Dhinakaran group, on the other hand, claimed that in March this year, they were allotted the 'hat' symbol by the EC and since then they have been campaigning under it.

They said that not granting the 'hat' symbol would prejudice their chances in the by-poll as the people of R K Nagar constituency associate them with the 'hat'.

Sasikala and Dhinakaran have in their pleas sought the quashing of the EC's November 23 order, alleging it was bad in law and needed to be set aside.

The issue has been lingering since April in the aftermath of the announcement of by-poll to Radha Krishnan Nagar Assembly constituency in Tamil Nadu following the death of AIADMK supremo J Jayalalithaa in December last year.

Sasikala and Dhinakaran's pleas have sought directions for initiating appropriate proceedings against Madhusudhanan, Palaniswami, Panneerselvam and Semmalai for their acts. They have also sought calling of records and files relating to the dispute over the symbol.

"The decision-making process of the ECI is contrary to the settled legal principles. The EC has treated fabricated and untested material as genuine which has resulted in the hearing being unfair and consequently contrary to the principle of natural justice and therefore the proceedings and the order are void," the pleas have alleged.

The order of the Commission came as a setback to deposed party leader Sasikala, who is currently serving a four-year sentence in a Bengaluru jail in a disproportionate assets case, and her nephew Dhinakaran.

Earlier, rival factions led by Sasikala and Panneerselvam had staked claim over the symbol. Palaniswami was then in the Sasikala camp. Later, a large number of legislators led by Palaniswami revolted against Sasikala and announced the merger of the two factions.

The Palaniswami-Panneerselvam camp then submitted affidavits before the EC staking claim over the party name and symbol, which was contested by the Sasikala-Dhinakaran faction.