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REPORTABLE
IN THE SUPREME COURT OF INDIA
EXTRAORDINARY ORIGINAL JURISDICTION
WRIT PETITION (C) No.532 of 2008
DESIYA MURPOKKU DRAVIDA KAZHAGAM & ANR. PETITIONERS
VS.
THE ELECTION COMMISSION OF INDIA RESPONDENT
WITH
WRIT PETITION (C) NOS.315 OF 2009, 422 OF 2009, 426
OF 2009, 444 OF 2009, 454 OF 2009, 463 OF 2009, 447
OF 2009 & 132 OF 2009, SPECIAL LEAVE PETITION (C)
NOS.23494 OF 2009 & 7379-7380 OF 2009 AND WRIT
PETITION (C) NOS.111 OF 2011, 117 OF 2011, 125 OF
2011, 124 OF 2011 & 128 OF 2011
J U D G M E N T
ALTAMAS KABIR, J.Page 2
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1. Writ Petition (Civil) No.532 of 2008 was filed
by Desiya Murpokku Dravida Kazhagam and Colonel
Edwin Jesudoss (Retd.), challenging the
constitutional validity of the amendment of the
Election Symbols (Reservation and Allotment) Order,
1968, hereinafter referred to as the “Election
Symbols Order, 1968”, vide Notification
No.O.N.56/2000/Jud-III dated 1
st
December, 2000,
substituting Clause 6 with 6A(i) and (ii) and
Clause 6B therein. The same was taken up for final
hearing along with several other Writ Petitions on
account of the common issue involved therein. The
common grievance in all these writ petitions is
with regard to the amendment which mandates that in
order to be recognized as a State party in the
State, it would have to secure not less than 6% of
the total valid votes polled in the State and
should also have returned at least 2 members to the
Legislative Assembly of the State. Page 3
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2. The grievance of the Desiya Murpokku Dravida
Kazhagam is that it had been refused recognition as
a State party by the Election Commission of India,
although, it secured 8.33% of the valid votes in
the Assembly elections. It is the further
grievance of the Petitioners that in view of the
amendment made to Clause 6 of the Election Symbols
Order, 1968, it had been denied recognition on
account of the cumulative effect of the requirement
that a political party would not only have to
secure not less than 6% of the total valid votes
polled, but it had also to return at least 2
members to the Legislative Assembly of the State.
It is the Petitioners’ case that despite having
secured a larger percentage of the votes than was
required, it was denied recognition, since it had
failed to return 2 members to the Legislative
Assembly.Page 4
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3. In order to appreciate the case made out by the
writ petitioners, it would be apposite at this
stage to look into the background in which the
Election Symbols Order, 1968, came to be
pronounced.
4. After the commencement of the Constitution on
26
th
January, 1950, the Election Commission was
constituted under Article 324 of the Constitution.
On 30
th
July, 1951, the Commission held a conference
in New Delhi with 7 established political parties
organised on an all-India basis and discussed the
possibilities of allotting a distinctive symbol to
each one of them all over India. During the
deliberations, the participants generally agreed
that the same symbols would be used throughout
India for all candidates of a party, both for
parliamentary and assembly elections. What also
fell for discussion was whether where among severalPage 5
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constituencies one of the seats was reserved for
Scheduled Castes or Scheduled Tribes, the
candidates belonging to a party would be allotted
the party’s symbol. The said discussions led to ad
hoc recognition being given by the Election
Commission to several parties as national or multistate parties and allotted to them the symbols as
were shown against their names.
5. Drawing inspiration from the first General
Elections conducted by the Election Commission in
1951-52, the Election Commission decided to
withdraw recognition from such parties whose poll
performance was far below the standards to merit
further recognition. However, giving due
recognition to the fact that some of the parties
were new and were not fully organised before the
elections, the Commission fixed 3% of the valid
votes polled in the elections as the minimumPage 6
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standard for grant of recognition. In the case of
national parties, such percentage was calculated
with reference to the votes polled in regard to
elections to the House of the People, while in the
case of State parties, the votes polled in the
elections to the State Legislative Assemblies were
the factors to be considered. On account of the
standards laid down, only 4 political parties
remained eligible for recognition as national
parties, namely, (1) Indian National Congress; (2)
All India Bharatiya Jan Sangh; (3) Communist Party
of India; and (4) Praja Socialist Party, and all
other parties lost their recognition. Standards for
maintaining such recognition continued to be
applied by the Election Commission in the Second
and Third General Elections held in 1957 and 1962
respectively, but after the Third General Elections
the minimum standard was raised by the Commission
from 3 to 4%. The same formula was also used byPage 7
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the Election Commission after the Fourth General
Elections in 1967.
6. After the Fourth General Elections were held in
1967, the Election Commission decided to streamline
the provisions and procedure so long followed
relating to recognition of political parties in the
conduct of elections. The Commission was of the
view that the provisions relating to recognition of
political parties and their functioning, was
required to be codified and provision was also
required to be made for registration of political
parties as a pre-condition for recognition.
Accordingly, by virtue of powers conferred on it by
Article 324 of the Constitution, read with Section
29A of the Representation of the People Act, 1951
and Rules 5 and 10 of the Conduct of Election
Rules, 1961 and other powers vested in it, the
Election Commission of India made and promulgatedPage 8
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the Elections Symbols (Reservation and Allotment)
Order, 1968, which is at the core of the issues
being heard in these matters.
7. As the Preamble of the aforesaid Order states,
the same was promulgated to provide for
specification, reservation, choice and allotment of
symbols at elections in Parliamentary and Assembly
Constituencies; for the recommendation of the
political parties in relation thereto and for
matters connected therewith. It was also
promulgated in the interest of purity of elections
to the House of the People and the Legislative
Assembly of every State and in the interest of the
conduct of such elections in a fair and effective
manner. After the Election Symbols Order was
promulgated, some of its provisions were challenged
on the ground of their constitutional validity.
One of the questions raised was whether under thePage 9
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aforesaid Order, the Election Commission could have
vested itself with the powers contained in Clause
15 thereof, reserving to itself powers to settle
issues in relation to splinter groups or rival
sections of recognized political party, each of
whom claimed to be the original party. The
decision of the Commission was made binding on all
the rival sections and groups. The said question
fell for the decision of this Court in the case of
Shri Sadiq Ali & Anr. Vs. Election Commission of
India, New Delhi & Ors. [(1972) 4 SCC 664] and it
was held by a Three-Judge Bench of this Court that
Clause 15 was intended to effectuate and subserve
the main purposes and objects of the Symbols Order.
It was observed that the Clause was designed to
ensure that because of a dispute having arisen in a
political party between two or more groups, the
entire scheme of the Election Symbols Order
relating to the allotment of a symbol reserved forPage 10
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the political party, was not frustrated. This
Court took note of the fact that the Election
Commission had been clothed with plenary powers by
Rules 5 and 10 of the Conduct of Election Rules,
1961, in the matter of allotment of Symbols, the
validity whereof had not been challenged. This
Court, therefore, came to the conclusion that the
fact that the power to settle such disputes had
been vested in the Commission could not constitute
a valid ground for assailing the vires of the said
clause. Since the said decision has also been
referred to by the learned counsel for the parties
in extenso, we will revert back to the same at a
later stage in this judgment.
8. The same view was also expressed by this Court
in All Party Hill Leaders ’ Conference, Shillong Vs.
Captain W.A. Sangma & Ors.[(1977) 4 SCC 161] and in
Roop Lal Sathi Vs. Nachhattar Singh Gill [(1982) 3Page 11
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SCC 487], wherein while dealing with the provisions
of Clause 13 of the Symbols Order, this Court held
that the dispute relating to the procedure for
setting up of candidates could be the subject
matter of an Election Petition under Section 100(1)
(d)(iv) of the Representation of the People Act,
1951.
9. The authority of the Election Commission under
the Election Symbols Order, 1968, as a whole was
also challenged before this Court in Kanhiya Lal
Omar Vs. R.K. Trivedi & Ors. [(1985) 4 SCC 628],
wherein it was urged on behalf of the Petitioner
that the said Order, being legislative in
character, could not have been issued by the
Election Commission, which was not entrusted by law
with power to issue such an Order regarding the
specification, reservation, choice and allotment of
symbols that might be chosen by the candidatesPage 12
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during elections in the Parliamentary and Assembly
Constituencies. It was also urged that Article 324
of the Constitution which vests the power of
superintendence, direction and control of all
elections to Parliament and to the Legislative
Assemblies, in the Commission, could not be
construed as conferring power on the Commission to
issue the Symbols Order. Rejecting the said
contention, this Court held that the expression
“election” in Article 324 of the Constitution is
used in a wide sense so as to include the entire
process of election which consists of several
stages, some of which had an important bearing on
the result of the process and that every norm which
laid down a Code of Conduct could not possibly be
elevated to the status of legislation or even
delegated legislation. It was emphasized that
there are certain authorities or persons who may be
the source of rules of conduct and who at the samePage 13
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time could not be equated with authorities or
persons who are entitled to make law in the strict
sense.
10. As has been indicated hereinbefore, the
Petitioner political party, Desiya Murpokku Dravida
Kazhagam, hereinafter referred to as “DMDK” was
refused recognition as a State Party by the
Election Commission of India, despite having
secured 8.33% of the valid votes on account of the
fact that by virtue of the amendment to the
Election Symbols Order in 2000, in order to obtain
recognition, DMDK was required to secure not less
than 6% of the total valid votes polled in the
State and must have returned at least two members
to the Legislative Assembly of the State.
11. Appearing for the Writ Petitioners, Mr. K.K.
Venugopal, learned Senior Advocate, submitted that
the condition for a political party to bePage 14
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recognized as a State Party was originally
prescribed in Clause 6 of the Election Symbols
Order, 1968, which provides as follows:-
“6(2). A political party shall be
treated as a recognized political party in
a State, if and only if either the
conditions specified in clause (A) are, or
the condition specified in clause (B) is,
fulfilled by that party and not otherwise,
that is to say –
(A) that such party -
(a) has been engaged in political
activity for a continuous period of
five years; and
(b) has, at the general election in that
State to the House of the People, or,
as the case may be, to the
Legislative Assembly, for the time
being in existence and functioning,
returned – either (i) at least one
member to the House of the People for
every twenty-five members of that
House or any fraction of that number
elected from the State;
Or (ii) at least one member to the
Legislative Assembly of that State for
every thirty members of that Assembly or
any fraction of that number;Page 15
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(B) that the total number of valid votes
polled by all the contesting candidates
set up by such party at the general
election in the State to the House of the
People, or, as the case may be, to the
Legislative Assembly, for the time being
in existence and functioning (excluding
the valid votes of each such contesting
candidate in a constituency as has not
been elected and has not polled at least
one-twelfth of the total number of valid
votes polled by all the contesting
candidates in that constituency), is not
less than four per cent of the total
number of valid votes polled by all the
contesting candidates at such general
election in the State (including the valid
votes of those contesting candidates who
have forfeited their deposits).”
12. Mr. Venugopal submitted that the said
conditions remained in force from 1968 to 1997 when
the conditions stipulated in Clause 6(2)(B) for
recognition of a political party as a State Party
were amended by the Election Commission of India
vide its Notification No.56/97 Jud III dated
15.12.1997, which provided as follows :-
“6(2). A political party shall be
treated as a recognized political party inPage 16
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a State, if and only if either the
conditions specified in clause (A) are, or
the condition specified in clause (B) is,
fulfilled by that party and not otherwise,
that is to say –
(A) that such party -
(a) has been engaged in political activity
for a continuous period of five years; and
(b) has, at the general election in that
State to the House of the People, or, as
the case may be, to the Legislative
Assembly, for the time being in existence
and functioning, returned –
either (i) at least one member to the
House of the People for every twenty-five
members of that House or any fraction of
that number elected from the State;
Or (ii) at least one member to the
Legislative Assembly of that State for
every thirty members of that Assembly or
any fraction of that number;
(B) that the total number of valid votes
polled by all the contesting candidates
set up by such party at the general
election in the State to the House of the
People, or, as the case may be, to the
Legislative Assembly, is not less than six
per cent of the total number of valid
votes polled by all the contesting
candidates at such general election in the
State. Page 17
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2(A) Notwithstanding anything contained in
clause (B) of the sub-paragraph (2), a
political party shall be treated as a
recognized political party in a State, if
at the general election to the House of
the People or as the case may be, to the
Legislative Assembly of the State, in
existence and functioning at the
commencement of the Election Symbol
(Reservation and Allotment) (Amendment)
Order, 1997, the total number of valid
votes polled by all the contesting
candidates setup by such party (but
excluding the valid votes of each such
candidate in a constituency as has not
been elected and has not polled at least
one-twelfth of the total valid votes
polled by all the contesting candidates in
that constituency), is not less than 4% of
the total number of valid votes polled by
all the contesting candidates at such
general election in that State (including
the valid votes of those contesting
candidates who have forfeited their
deposits).”
13. By virtue of the aforesaid Notification, the
minimum percentage of votes to be obtained by a
political party for recognition as a State Party
was increased from 4% to 6%, but the other criteria
regarding the number of seats or percentage ofPage 18
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votes was maintained. The said conditions relating
to the recognition of a political party as a State
Party solely on the basis of the percentage of
votes held by its candidates, was again amended in
2007 by the Election Commission of India vide its
Notification No.56/2000/Jud-III dated 1.12.2000,
where the criteria was altered in the manner
following :-
“6B. Conditions for recognition as a State
party – a political party, other than a
National party, shall be treated as a
recognized State party in a State or
States, if, and only if, -
Either (A) (i) the candidates set up by
it, at the last general election to the
House of People, or to the Legislative
Assembly of the State concerned, have
secured not less than six per cent of the
total valid votes polled in that State at
that general election; AND
(ii) In addition, it has returned at
least two members to the Legislative
Assembly of the State at the last general
election to that Assembly;
or (B) it wins at least three per cent of
the total number of seats in thePage 19
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Legislative Assembly of the State, (any
fraction exceeding one-half being counted
as one), or at least three seats in the
Assembly, whichever is more, at the
aforesaid general election.”
14. It was submitted that the DMDK was constituted
as a political party on 14.9.2005 and was
registered with the Election Commission of India
under Section 29A of the Representation of the
People Act, 1951, hereinafter referred to as “the
1951 Act”, and contested the General Elections in
2006 for the Tamil Nadu Legislative Assembly in 232
out of 234 constituencies, just after 8 months of
its formation. Being an unrecognized party, the
candidates were allotted the “Naqara” symbol in 224
constituencies, whereas in six constituencies its
candidates were given the “Bell” symbol and the
“Ring” symbol in 2 constituencies. Mr. Venugopal
submitted that in the said elections all the
candidates of the DMDK secured 8.33% of the total
number of valid votes in comparison to the firstPage 20
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and second political parties, which obtained 31.44%
and 30.92% respectively of the votes. Apart from
the above, the President of the Party, Mr.
Vijayakanth, won the Assembly Election from the
Virudhachalam Assembly Constituency, thereby
returning one candidate to the Tamil Nadu
Legislative Assembly, in addition to having polled
8.33% of the total valid votes.
15. Mr. Venugopal submitted that the criteria laid
down by the Election Commission of India for
recognition of a political party as a State Party,
whereby a State Party had to secure not less than
6% of the total valid votes polled in the State in
the General Elections and in addition it had to
return at least two members in the said State
election, was an erroneous methodology for granting
recognition to a political party as a State Party,
since in a given General Election, it was notPage 21
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always the political party which had secured the
highest number of votes, that had won the General
Elections in the State. That in the 13
th
Assembly
General Elections in 2006, held in Tamil Nadu, the
DMK having polled 8,728,716 votes won 96 seats,
whereas the AIADMK, having polled 10,768,559 votes,
won only 61 seats i.e. despite having polled more
than one crore votes over the votes polled by DMK,
the AIDMK got only 61 seats as against the DMK’s 96
seats. Similarly, in the 9
th
Lok Sabha General
Elections held in 1989 in Tamil Nadu, the DMK
having polled 70,38,849 votes did not win a single
seat, whereas the AIADMK, having polled almost half
of the number of votes, viz. 45,18,649, won all the
Lok Sabha seats from Tamil Nadu. Similarly, in the
10
th
Lok Sabha General Elections held in 1991 and
the 14
th
Lok Sabha General Elections held in 2004,
the AIADMK in 1991 and the DMK in 2004 won all the
seats for the Lok Sabha, despite having polledPage 22
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lesser number of votes than the rival group. In
view of the aforesaid facts and figures, Mr.
Venugopal submitted that the criteria adopted by
the Election Commission of India for grant of
recognition to political parties in a State as a
State party was not a correct index for determining
grant of such recognition.
16. Mr. Venugopal submitted that the recognition of
a political party entitles it to the right of
exclusive reservation and use of an electoral
symbol, as otherwise there was bound to be
confusion in the minds of the voters if different
symbols were allotted to different candidates
belonging to the same political party. Learned
counsel submitted that the classification of
parties into recognized and unrecognized parties on
the basis of the seats won during an election and
the percentage of votes polled, is unreasonable andPage 23
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arbitrary, having no nexus with the purpose sought
to be achieved. Mr. Venugopal submitted that yet
another disadvantage suffered by unrecognized
parties under the Election Symbols Order, 1968, is
that in subsequent elections, it does not enjoy any
priority with regard to symbols and more often than
not, symbols which it had used in the earlier
election when given to other candidates, resulted
in benefit to such candidate to the disadvantage of
the party concerned.
17. Mr. Venugopal also contended that paragraph
6(B) of the Election Symbols Order, 1968, was
causing hardship to political parties as it imposes
two conditions clubbed with other conditions which
were highly anomalous and was, therefore, liable to
be struck down.
18. Mr. Manoj Goel, learned Advocate, who appeared
for the Petitioners in SLP(C)No. 23494 of 2009 andPage 24
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Writ Petition (C) No.426 of 2009, reiterated the
submissions made by Mr. Venugopal and submitted
that by denying the unrecognized political parties
a common election symbol to its candidates, an
attempt was being made by the Election Commission
of India, to suppress the growth of such parties.
It was submitted that parties that did not have a
common electoral symbol have a disadvantage in
relation to other unrecognized political parties,
since party candidates and even the political
parties were known by common citizens by their
symbols. It was urged that a political party like
the Bhartiya Janata Party was known by its “Lotus”
symbol, while the Bahujan Samaj Party was known by
its “Elephant” symbol. Similarly, other parties
were also entitled to be recognized by their
electoral symbols, which otherwise resulted in
hostile discrimination. It was urged that in order
to provide a level playing field for allPage 25
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candidates, it was necessary to associate each
party with a common electoral symbol, which would
eliminate any confusion in the mind of the voter as
to who or which party he or she was voting for.
19. Mr. Goel submitted that in Union of India Vs.
Association for Democratic Reforms & Anr. [(2002) 5
SCC 294], it was laid down without any ambiguity
that the voter has a right to know the antecedents
of the candidates based on interpretation of
Article 19(1)(a) of the Constitution, which
provides that freedom of speech and expression
includes the fundamental right to know the relevant
antecedents of the candidates contesting the
elections. It was also submitted that the said
decision was reiterated in the decision rendered by
this Court in People’s Union for Civil Liberties
(PUCL) & Anr. Vs. Union of India & Anr. [(2003) 4
SCC 399]. Page 26
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20. Mr. Goel then urged that questions similar to
those, which have arisen in this case, also arose
for consideration before a Constitution Bench in
Kuldip Nayar & Ors. Vs. Union of India & Ors.
[(2006) 7 SCC 1], wherein, while considering
various aspects of election laws, the Constitution
Bench reiterated the submissions made in People’s
Union for Civil Liberties (supra), wherein it was
stated that it was required to be understood that
democracy based on adult franchise, is part of the
basic structure of the Constitution. There could,
therefore, be no doubt that democracy is a basic
feature of the Constitution of India and democratic
form of Government depends on a free and fair
election system. The Constitution Bench also
recorded the contention of the writ petitioners
that free and fair election is a constitutional
right of the voter, which includes the right that aPage 27
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voter shall be able to cast his vote according to
his choice, free will and without fear.
21. Reference was also made to a decision of a
Bench of six Judges of this Court in Kharak Singh
Vs. State of U.P. & Ors. [AIR 1963 SC 1295], in
which the freedom of movement and life and personal
liberty, as provided under Article 19(1)(d) and
Article 21, ensuring a citizen’s free right to move
and travel while protecting his life and liberty,
fell for consideration. It was held that any
restriction on such activity would result in
denying a citizen the fundamental rights guaranteed
to him under Part III of the Constitution.
22. Learned counsel submitted that the Election
Symbols Order, 1968, did not have any statutory
force and was in the nature of general directions
issued by the Election Commission to regulate the
mode of allotment of symbols to contestingPage 28
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candidates. He urged that the said Order was only
a compilation of general directions, and not being
law, is violative of Articles 19(1)(a) and 19(2) of
the Constitution and was, therefore,
unconstitutional and void.
23. Mr. Goel also referred to the decisions of this
Court in Kanhiya Lal Omar Vs. R.K. Trivedi & Ors.
[(1985) 4 SCC 628] and Sakal Paper (P) Ltd. & Ors.
Vs. Union of India [(1962) 3 SCR 842, wherein the
provisions of the Election Symbols Order, 1968,
were under consideration. In the first case, this
Court held that the power of superintendence,
direction and control vested in the Election
Commission under Article 324(1) of the
Constitution, include all powers necessary for the
smooth conduct of elections. Reliance was placed
on the earlier decision of this Court in Shri Sadiq
Ali & Anr. Vs. Election Commission of India, NewPage 29
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Delhi & Ors. [(1972) 4 SCC 664] in holding that
recommendation of political parties by virtue of
Election Symbols Order, 1968, was not
unconstitutional and the powers under the said
Order were derived not only from the Conduct of
Election Rules, 1961, but also from Article 324 of
the Constitution. In the latter case, this Court
was considering the right to freedom of speech as
guaranteed under Article 19(1)(g) of the
Constitution and the question which fell for
consideration was whether an order which violated
Article 19(1)(a) included the freedom of the Press
and for propagating his ideas a citizen has the
right to publish them, to manage them and to
circulate them, either by word of mouth or by
writing. It was also held that the State could not
make a law which directly restricted one guaranteed
freedom for securing the better enjoyment of
another freedom. Mr. Goel urged that by denying toPage 30
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a political party a common symbol, the right to
propagate its ideas would amount to interference
with the fundamental right of freedom of speech as
guaranteed under the aforesaid Article. Mr. Goel
urged that since a large chunk of the eligible
voters of the country were illiterate, they needed
some form of communication which would help them to
connect with the political party and the ideas
which it propagated.
24. Mr. Goel also referred to two judgments of the
U.S. Courts, namely,
(a) James L. Buckley Vs. Francis R. Valeo [424
US 1 (1976); and
(b) Texas Vs. Gregory Lee Johnson [491 US 397
(1989)];
which were decisions relating to the protection of
a citizen under the First Amendment. Mr. Goel
submitted that democracy is not just aboutPage 31
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political expression of the majority, but also the
right of political minorities, however small, to
express themselves. It was urged that the voices
of the political minorities could not be stifled
under the weight of hugely imbalanced provisions
relating to freedom of speech and expression. Mr.
Goel submitted that the quantity, width and spread,
effectiveness and efficacy and mobilization of
people and resources could not be made dependent on
the percentage of votes polled and the number of
seats won during an election, but the right to
freedom of political speech and expression and its
communication and propagation must be held to be
available to all, irrespective of whether they
could get even a single vote or a single seat.
25. Mr. Sanjay Hedge, appearing for the Writ
Petitioner in Writ Petition No.125 of 2011, India
Jana Nayaka Katchi, formed in April, 2010, urgedPage 32
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that the criterion sought to be introduced by the
amendment of paragraphs 6(A) and 6(B) of the
Election Symbols Order, 1968, was wholly arbitrary,
as it sought to discriminate between parties which
had a long existence as against those which have
been formed only in recent times. Mr. Hegde
submitted that it was highly arbitrary and
unreasonable to pit candidates from a newly formed
party without a common symbol against parties which
were recognized by their Symbols by the common
electorate. Mr. Hegde submitted that the rationale
behind the decision not to allot any common symbol
to the candidates of the parties which had recently
come into existence gave an unfair advantage to
parties which were already established and would
prevent a newly-formed party from making any impact
on the voters. Mr. Hegde submitted that the Writ
Petitioner Party had been formed by an educationist
and had in its very first election, secured 1% ofPage 33
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the valid votes polled, which only went to show
that given the proper opportunities, parties, such
as the Writ Petitioner party, would be able to make
a larger impact on the electorate if it could set
up candidates who could be identified with the
party by means of a common symbol. Mr. Hegde
submitted that the symbol in the context of an
illiterate electorate is absolutely necessary for a
free and fair election and equating established
parties with newly-formed parties is a disadvantage
to the newly formed party, was contrary to Article
14 and was, therefore, liable to be struck down.
26. Col. Edwin Jesudass, appearing for the Writ
Petitioner, All India NR Congress in Writ Petition
No.124 of 2011, urged that having fulfilled the
criteria, the party has been duly recognized and
was, therefore, entitled to the allotment of a
permanent election symbol. Echoing the submissionsPage 34
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made by Mr. Venugopal, Mr. Goel and Mr. Hegde, Col.
Jesudass, who appeared in person, urged that the
conditions under the notification issued by the
Election Commission on 16.9.2011 were unreasonable
and there was no justification for increasing the
percentage of votes for qualifying as a State Party
from 4% to 6%.
27. In reply to the submissions made on behalf of
the Writ Petitioners, Ms. Meenakshi Arora, learned
Advocate, appearing for the Election Commission of
India, submitted that Section 29-A contained in
Part 4A of the Representation of the People Act,
1951, provided a complete procedure as to the
manner in which political parties were to be
registered. Part V of the Act deals with conduct
of elections, which includes nomination of
candidates, their Election Agents and the general
procedure to be followed during the elections. ThePage 35
35
remaining Chapters of Part V deal with the conduct
of elections while Part VA deals with free supply
of certain material to candidates of recognized
political parties. Ms. Arora urged that similar
provisions regarding recognized political parties
and registered political parties are also to be
found under the Conduct of Election Rules framed
under Section 169 of the 1951 Act. Referring to
the Conduct of Election Rules, 1961, Ms. Arora
referred to Rule 5 which makes provision for
allotment of symbols for elections in Parliamentary
and Assembly Constituencies. Learned counsel urged
that the said Rules empowered the Election
Commission to specify the symbols that may be
chosen by candidates at elections in Parliamentary
or Assembly Constituencies. Learned counsel
referred to Rule 10 which relates to the
preparation of list of contesting candidates. It
was submitted that under the aforesaid Rules, thePage 36
36
Election Commission was fully competent in law not
only to allot symbols, but also to determine the
right of a recognized political party to an
election symbol, as was initially held in Sadiq
Ali’s case (supra) and also in the case of Kanhiya
Lal Omar (supra). Ms. Arora submitted that, in
fact, in the case of Kanhiya Lal Omar (supra), this
Court observed that the Commission has been clothed
with plenary powers by the Conduct of Election
Rules and the Commission could not be disabled from
exercising effectively the plenary powers vested in
it in the matter of allotment of symbols and for
issuing directions in connection therewith. It was
also held that it was plainly essential that the
Commission should have the power to settle a
dispute, in case claim for the allotment of the
symbol of a political party was made by two rival
claimants. In such a case, the machinery for
resolving such disputes was contained in paragraphsPage 37
37
13 and 15 of the Elections Symbols Order, 1968. It
was re-emphasised that the Commission is an
authority created by the Constitution and according
to Article 324, the superintendence, direction and
control of the electoral rolls for and the conduct
of elections to Parliament and to the Legislature
of every State and of elections to the offices of
President and Vice-President was vested in the
Commission. Ms. Arora submitted that it was no
longer available to the Petitioners to contend that
the Election Commission was not competent to decide
questions relating to the allotment of symbols to
political parties and candidates at the time of
elections, since its powers had been vested in it
under Article 324 of the Constitution itself.
28. In this regard, Ms. Arora also referred to the
recent decision of this Court in Subramanian Swamy
Vs. Election Commission of India [(2008) 14 SCCPage 38
38
318], in which the validity of the Election Symbols
Order, 1968, was upheld and it was also held that
though the matter of symbol is extremely sensitive
for a political party, it should be or remain to be
firstly a political party since Section 29-A of the
Representation of People Act, 1951, clearly shows
that a political party must have a certain amount
of following as one could not imagine a political
party without substantial following.
29. Ms. Arora urged that in Rama Kant Pandey Vs.
Union of India [(1993) 2 SCC 438], while holding
that creation of distinction between candidates of
recognized parties and other candidates, though
alleged to be artificial, inconsistent with the
spirit of election law, discriminatory, giving
important and special treatment to party system in
democracy, was quite proper and that political
parties constitute a class from other candidatesPage 39
39
and hence Articles 14, 19 and 21 were not violated
in the facts of the case. It was also observed
that the right to vote or to stand as a candidate
and contest an election is not a fundamental right
or even civil right, but a purely statutory right,
as is the right to be elected. It was also urged
that even the right to dispute an application was a
statutory right emerging from the Representation of
the People Act, 1951. According to Ms. Arora,
outside the Statute, there is no right to elect, no
right to be elected and no right to dispute an
election. It was submitted that these rights were
the creation of a Statute and were, therefore,
subject to statutory limitations, as no fundamental
right was involved.
30. Ms. Arora submitted that the Election Symbols
Order, 1968, concerns registered parties,
recognised and non-recognised parties andPage 40
40
independent candidates. Learned counsel urged that
paragraph 2(h) of the Election Symbols Order, 1968,
defines “political party” to be an association of a
body of individual citizens of India, registered
with the Commission as a political party under
Section 29-A of the Representation of the People
Act, 1951, which as mentioned herein earlier, deals
with registration of association of bodies as
political parties with the Election Commission.
Ms. Arora submitted that since the provisions of
paragraph 6A, 6B and 6C of the Election Symbols
Order, 1968, have been held to be valid, they could
not be departed from and the political party would,
therefore, be bound by whatever amendments that may
have been brought to the Election Symbols Order,
1968. Ms. Arora urged that although freedom of
expression was a fundamental right within the
meaning of Article 19(1)(a) of the Constitution,
the right to vote was a statutory right which couldPage 41
41
not be questioned by way of a Writ Petition so long
as said right remained in the statute book.
31. The submissions made on behalf of the writ
petitioners regarding the constitutional validity
of the Election Symbols Order, 1968, and the power
of the Election Commission to settle issues
relating to claims of splinter groups to be the
original party, had fallen for the decision of this
Court about forty years ago in Sadiq Ali’s case,
when this Court had occasion to observe that the
Election Commission had been clothed with plenary
power by Rules 5 and 10 of the Conduct of Election
Rules, 1961, in the matter of conducting of
elections, which included the power to allot
symbols to candidates during elections. The
challenge to the vires of the Symbols Order, 1968,
was, accordingly, repelled. Page 42
42
32. The view in Sadiq Ali’s case has since been
followed in the All Party Hill Leaders ’ Conference
case (supra), Roop Lal Sathi’s case (supra),
Kanhiya Lal Omar’s case (supra) and as recently as
in Subramanian Swamy’s case (supra), to which
reference has been made in the earlier part of this
judgment, where the provisions of Article 324 of
the Constitution vesting the superintendence,
direction and control of elections, were considered
in detail and it was, inter alia, held that in
addition to Rules 5 and 10 of the Conduct of
Election Rules, 1961, the powers vested in the
Election Commission could be traced to Article 324
of the Constitution.
33. The evolution of the law relating to the
criteria for a political party to be recognized as
a State Party clearly indicates that the Election
Commission, in its wisdom, was of the view that inPage 43
43
order to be recognized as a political party, such
party should have achieved a certain bench-mark in
State politics. Nothing new has been brought out
in the submissions made on behalf of the writ
petitioners which could make us take a different
view from what has been decided earlier. Mr.
Venugopal’s submissions regarding political parties
winning a larger number of seats while polling a
lesser percentage of the votes, sounds attractive,
but has to be discarded. Mr. Venugopal’s
submissions are in relation to the poll performance
of the larger parties within a State where even a
vote swing of 2 to 5 per cent could cause a huge
difference in the seats won by a political party.
A three or four-cornered contest could lead to a
splitting of the majority of the votes so that a
candidate with a minority share of the votes polled
could emerge victorious. The Election Commission
has set down a bench-mark which is notPage 44
44
unreasonable. In order to gain recognition as a
political party, a party has to prove itself and to
establish its credibility as a serious player in
the political arena of the State. Once it succeeds
in doing so, it will become entitled to all the
benefits of recognition, including the allotment of
a common symbol.
34. There cannot be any difference of opinion that,
as was laid down in Union of India Vs. Association
for Democratic Reforms (supra), a voter has the
right to know the antecedents of the candidates, a
view which was later reiterated by this Court in
People’s Union for Civil Liberties (supra), but
such right has to be balanced with the ground
realities of conducting a State-wide poll. The
Election Commission has kept the said balance in
mind while setting the bench-marks to be achieved
by a political party in order to be recognized as aPage 45
45
State Party and become eligible to be given a
common election symbol. We do not see any variance
between the views expressed by the Constitution
Bench in the PUCL case and the amendments effected
by the Election Commission to the Election Symbols
Order, 1968, by its Notification dated 1
st
December,
2000.
35. The writ petitions and the Special Leave
Petitions must, therefore, fail and are dismissed.
36. There will be no order as to costs.
………………………………………………………J.
(ALTAMAS KABIR)
………………………………………………………J.
(SURINDER SINGH NIJJAR)
New Delhi
Dated: 18.04.2012
Page 46
REPORTABLE
IN THE SUPREME COUR OF INDIA
EXTRAORDINARY ORIGINAL JURISDICTION
WRIT PETITION (C) NO.532 OF 2008
DESIYA MURPOKKU DRAVIDA KAZHAGAM & ANR. ….PETITIONERS
Vs.
THE ELECTION COMMISSION OF INDIA. ….RESPONDENTS
WITH
WRIT PETITION (C) NOS.315 OF 2009, 422 OF 2009, 426 OF 2009,
444 OF 2009, 454 OF 2009, 463 OF 2009, 447 OF 2009 & 132 OF
2009, SPECIAL LEAVE PETITION (C) NOS.23494 OF 2009 & 7379-
7380 OF 2009 AND WRIT PETITION (C) NOS.111 OF 2011, 117 OF
2011, 125 OF 2011, 124 OF 2011 & 128 OF 2011
J U D G M E N T
Chelameswar, J.
I have had the advantage of the opinion of my
learned brother Altamas Kabir, J. I regret my inability to
agree with the same.Page 47
2. All these petitions filed either under Article 32 or
under Article 136 raise certain common and substantial
questions of law as to the interpretation of the
Constitution. The lis, essentially, is between the Election
Commission of India, a creature of the Constitution under
Article 324, on the one hand and various bodies claiming to
be political parties and some of their functionaries, on the
other hand. The essence of the dispute is whether a
political party is entitled for the allotment of an election
symbol on a permanent basis irrespective of its
participation and performance judged by the vote share it
commanded at any election. Some of the petitioner parties
had contested some election, either General or By-Election,
by the time they filed these petitions and had been in
existence for some time, while the others came into
existence just before the commencement of this litigation.
All of them are political parties registered under Section
29A1 of the Representation of the People Act, 1951( for
short ‘the R.P. Act’), but none of them is a “recognisedPage 48
political party”, under the provisions of the Election
Symbols (Reservation and Allotment) Order, 1968, (henceforth
referred to as ‘the Symbols Order’).
3. To examine the issues arising out of this batch of
petitions, the facts pertaining to W.P.No.532 of 2008 and
S.L.P.No.7379 – 7380 of 2009 arising out of an interim order
passed by the Andhra Pradesh High Court in W.P.No.3212 of
2009, shall be taken as representative facts. The first of
the abovementioned two cases represents the case of a
political party, which was registered with the Election
Commission on 24-01-2006 and contested 232 assembly
constituencies out of a total of 234 in the general
elections to the Legislative Assembly of Tamil Nadu held in
the year 2006. It secured 8.337 total number of valid votes
and returned one Member to the Legislative Assembly, whereas
the political party in the second of the abovementioned
cases, was registered with the Election Commission on 22-12-
2006 and contested a couple of by-elections to the
Legislative Assembly of Andhra Pradesh. Both thePage 49
abovementioned political parties restricted, for the time
being, their political activity to one State each, i.e.,
Tamil Nadu and Andhra Pradesh, respectively.
4. Section 29A of the R.P. Act, 1951, provides for the
registration of the political parties with the Election
Commission. It was inserted in the R.P. Act, 1951 in the
year 1989. From the language of Section 29A it appears that
registration with the Election Commission is not mandatory
for a political party, but optional for those political
parties, which intend to avail the benefits of Part IV of
the said Act of which Section 29A is also a part. The
expression “political party” is defined under Section 2(f)
of the R.P. Act, to mean “an association or a body of
individual citizens of India registered under Section 29A”.
The definition, was inserted by an amendment to the R.P.Act,
in the year 1989.
5. Until 1985, the Constitution of India made no
reference to political parties. It was by the Fifty Second
Amendment to the Constitution, Tenth Schedule was added toPage 50
the Constitution, where the expression “political party”
occurs. Judicial note can be taken of the fact that as a
matter of practice, most of the political parties are
registered under some law dealing with the registration of
Societies. They are not bodies corporate, they are only
associations consisting of shifting masses of people.
6. Even as on the date of the coming into force of the
Constitution, there were numerous political parties claiming
to be either National Parties or State Parties. Neither the
Constitution nor the R.P. Act, or any other Statute
obligates a political party to seek recognition either by
the Election Commission or any other body. However, the
Election Commission, from its very inception, duly took note
of the existence of the political parties in this country
for the purpose of discharging its constitutional obligation
of the conduct of elections to Parliament and the
Legislatures of various States apart from the elections to
the Office of the President and the Vice President. Page 51
7. On 30-07-1957, the Election Commission held a
Conference, where 7 well established political parties, then
organised on All India basis, participated. Whether a
system of pictorial symbols is to be adopted to make the
task of the voters easy for identifying the party /
candidate they choose to vote and a distinctive symbol
should be allotted to each of the political parties, was one
of the items discussed in the said Conference, having regard
to the large scale illiteracy of the voters. A consensus
was arrived at in the abovementioned Conference to adopt
such a system. “Symbolism is a primitive but effective way
of communicating ideas. The use of emblem or flag to
symbolise some system, idea, institution or personalisation
is a short cut from mind to mind”.
8. The first general elections ever held in the
Republic of India were in the year 1952. It may not be out
of place to mention that in the said election the symbol
allotted to a contesting political party’s candidate was
marked on a separate box in each of the polling station.Page 52
Goes without saying that there were as many ballot boxes in
each of the polling stations as there were contesting
candidates with reference to each of the constituencies.
The system of maintaining separate ballot boxes for each of
the names of contesting candidates disappeared in due course
of time. A system of a ‘ballot paper’ with multiple names
of the contesting candidates with the candidate’s election
symbol indicated against each of the contesting candidates
came to be adopted. With the advancement of technology,
even the abovementioned system was discarded in favour of
Electronic Voting Machine (EVM), but the practice of using
the pictorial symbol still continues.
9. The purpose behind the adoption of the system of
pictorial symbol was considered by this Court in Shri Sadiq
Ali and anr. v The Election Commission Of India, New Delhi
and Ors. (1972) 4 SCC 664, as under:
“……. It may be pertinent to find out the reasons
which led to the introduction of symbols. It is
well known that 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 theirPage 53
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. In some countries, details in the
form of letters of alphabet or numbers are added
against the name of each candidate while in others,
resort is made to symbols or emblems. The object
is to ensure that the process of election is a
genuine and fair as possible and that no elector
should suffer from any handicap in casting his vote
in favour of a candidate of his choice.”
And also, at para 9 in Kanhiya Lal Omar v R.K.Trivedi and
Ors (1985) 4 SCC 628, it is held as under:
“…………… India is a country which consists of
millions of voters. Although they are quite
conscious of their duties politically,
unfortunately, a larger percentage of them are
still illiterate. Hence there is need for using
symbols to denote the candidates who contest
elections so that the illiterate voter may cast his
vote in secrecy in favour of the candidate of his
choice by identifying him with the help of the
symbol printed on the ballot paper against his
name.”
10. In the Conference dated 30-07-1957, referred to
earlier, there was a general agreement among all the
participants on various items; relevant in the context isPage 54
that; “the same symbol would be used throughout India for
all candidates of a party, both for parliamentary and
assembly elections”2. As a consequence of the consensus
arrived at the said Conference, the Election Commission gave
“recognition” to fourteen political parties as National /
Multi State parties and allotted to each of them a specific
symbol. Such a recognition was accorded in exercise of the
general power of superintendence conferred on the Election
Commission under Article 3243 r/w 5(1)4 of the Conduct of
Election Rules, 1961.
11. After the first General Elections, the Election
Commission decided to withdraw recognition of those
political parties whose poll performance was poor. Parties,
which polled a minimum of 3 per cent of the votes at the
first General Elections, were allowed to retain their
recognition and the recognition accorded earlier to the
other parties was withdrawn. The said percentage was
raised to 4 after the third General Elections in 1962. The
situation continued the same till 1967. What happenedPage 55
thereafter can be conveniently explained by extracting a
passage from the ‘How India Votes Election Laws, Practice
and Procedure’, by V.S. Ramadevi and S.K. Mendiratta:
“ After the fourth general elections in 1967, the
Election Commission considered it more desirable to
codify the provisions relating to recognition of
political parties and all matters connected
therewith at one place, so that all concerned and
interested may be fully aware of the prescribed
requirements and may regulate their functioning
accordingly. Further, the Commission considered it
appropriate and desirable that there should also be
provision for registration of political parties and
that such registration should be made a condition
precedent for recognition of any party for the
purposes of the election law.
Accordingly, the Commission promulgated on 31
August 1968, an Order called the Election Symbols
(Reservation and Allotment) Order 1968, which is
still in force. The Order made detailed provisions
for registration of parties, their recognition and
all matters connected therewith, together with the
provisions for specification, reservation, choice
and allotment of symbols at elections. Paragraph
18 of that Order vests in the Election Commission
all residuary powers to remove any difficulty
arising in the implementation of that Order or to
deal with a situation for which no provision or
insufficient provision is made in that Order.”
12. The Symbols Order, 1968, was made by the Election
Commission, purportedly, in exercise of the power conferredPage 56
on it by Article 324 of the Constitution r/w Rules 5 and 10
of the Conduct of Elections Rules, 1961, initially.
Pursuant to the introduction of Section 29A in the R.P. Act,
1951, the Election Commission purports to draw authority
from the said Section also. Para 4 of the said Order
postulates the allotment of a symbol to each contesting
candidate at every contested election of a given
constituency. Under para 5, symbols are classified into two
groups; reserved and free. Para 5 reads as follows:
“5. Classification of symbols – (1) For the purpose
of this Order symbols are either reserved or free.
(2) Save as otherwise provided in this Order, a
reserved symbol is a symbol which is reserved for a
recognised political party for exclusive allotment
to contesting candidates set up by that party.
(3) A free symbol is a symbol other than a reserved
symbol.”
Emphasis supplied
It can be seen from the above that certain symbols are
reserved exclusively for the allotment to the candidates set
up by a recognised political party. Para 65 of the saidPage 57
Order empowers the Election Commission to classify the
political parties as either recognised political parties or
unrecognised political parties. It further stipulates that
a recognised political party can either be a National Party
or a State Party.
13. Paras 6A and 6B of the said Order stipulate the
conditions, which are required to be fulfilled by any
political party, if it is to be classified as a recognised
political party. In the case of a State Party, para 6A
stipulates the conditions, which are required to be
fulfilled / satisfied, while para 6B stipulates the
conditions for a National Party. Broadly speaking, in
either case (National Party and State Party), the
requirement is, participation in one general election either
to the Parliament or to the corresponding State Legislature,
before seeking recognition, and procuring there at a certain
minimum percentage of validly polled votes and also securing
a minimum number of seats, specified therein. SuchPage 58
conditions stipulated under paras 6A and 6B varied from time
to time.
14. All the petitioners are aggrieved by the Symbols
Order, 1968 as it stood amended up to May 2005. Since,
these parties are, admittedly, unrecognised political
parties, they did not have a reserved symbol for exclusive
allotment to the candidates setup by those parties at
elections. It is also not out of place to mention that
during the pendency of these petitions, the said Order came
to be amended again by Notification date 16-09-2011.
15. The conditions, which are required to be satisfied
for a political party to be classified as a recognised
political party (State), thereby entitling it for the
exclusive allotment of a common symbol to all its candidates
at any election (under the Symbol Order, 1968, as it stood
amended up to 2005), are contained in para 6A of the said
Order, which came to be substituted for the original para6A
by a Notification dated 14-05-2005.
“6A. Conditions for recognition as a State Party –
A political party shall be eligible for recognitionPage 59
as a State party in a State, if and only if any of
the following conditions is fulfilled:
(i)At the last general election to the Legislative
Assembly of the State, the candidates set up by the
party have secured not less than six percent of the
total valid votes polled in the State; and, in
addition, the party has returned at least two
members to the Legislative Assembly of that State
at such general election; or
(ii)At the last general election to the House of
the People from that State, the candidates set up
by the party have secured not less than six percent
of the total valid votes polled in the State; and,
in addition, the party has returned at least one
member to the House of the People from that State
at such general election; or
(iii)At the last general election to the
Legislative Assembly of the State, the party has
won at least three percent of the total number of
seats in the Legislative Assembly, (any fraction
exceeding half being counted as one), or at least
three seats in the Assembly, whichever is more; or
(iv)At the last general election to the House of
the People from the State, the party has returned
at least one member to the House of the People for
every 25 members or any fraction thereof allotted
to that State.”
From the above it can be seen that to secure recognition, a
political party must satisfy the following conditions:Page 60
(1)that it must have contested one general election to the
Legislative Assembly of the concerned State and the
candidates setup by the party must have secured cumulatively
not less than 6 % of the total valid votes polled in the
State and also must have returned, at least, two Members to
the Legislative Assembly at such an election;
(2)in the alternative, the party must have contested the
election to the Lok Sabha from that State and the candidates
setup by the party must have cumulatively secured not less
than 6% of the total valid votes polled in the State, apart
from returning, at least, one Member to the Lok Sabha;
(3)a third alternative condition, which if fulfilled would
entitle the party for recognition, is that the party must
have contested the general election to the Legislative
Assembly and won, at least, 3% of the total number of seats
or 3 seats, whichever is higher;
(4)in the alternative, the party must have contested the
election to the Lok Sabha and returned, at least, one Member
to the House of the People for every 25 Members allotted to
that State.
16. Since, none of the political parties before us
satisfied any one of the abovementioned conditions, they
were not classified as recognised political parties,
thereby, they were unable to secure a common symbol for all
their candidates at any election. Hence, the present batch
of petitions.Page 61
17. The advantages that accrue to any political party by
virtue of it being classified as a recognised political
party are:
1. reservation of a symbol for the exclusive
allotment to all the candidates setup by such party
at any election;
2. the candidates set up by such party are entitled
to the supply of such number of copies of the
“electoral roll” and ”such other material” as may
be prescribed, free of cost (see Sections 78A and
78B of the R.P. Act); and
3. allocation of equitable sharing of time on the
cable television network and other electronic
media, by the Election Commission (Section 39A of
the R.P. Act.)
18. Para 6C of the Symbols Order, stipulates that a
recognised political party shall continue to enjoy that
status for every succeeding general election and in the
interregnum between two general elections only if it fulfils
the conditions specified under para 6A or 6B, (depending
upon whether it is a National party or a State Party) in
every successive general election. After each succeeding
general election, obviously, an assessment is made by thePage 62
Election Commission whether such status of each of the
political parties should continue or not. On such
assessment, if it is found that a recognised political party
failed to satisfy the conditions requisite for the continued
recognition, such party would be derecognised. Though by
virtue of para 10A, the effect of de-recognition, insofar it
pertains to the exclusive use and allotment of the election
symbol, which had been originally allotted to such party,
stands postponed by certain period, but the other
advantages, which are incidental to the status of a
recognised political party, would be denied immediately on
de-recognition.
19. The substance of the abovementioned provisions of
the allotment of Symbols Order is that, no political party
is entitled for allotment or use of an election symbol
permanently. The allotment of an exclusive election symbol
is available to a political party only so long as it is
recognised by the Election Commission. Securing the
recognition and its continuance depends upon the performancePage 63
of the political party at every succeeding general election.
Therefore, newly formed political parties are not entitled,
as a matter of right, for the exclusive allotment of a
common election symbol for the benefit of all the candidates
set up by them at any election. Such candidates are
required to choose one of the free symbols notified by the
Election Commission. Allotment of a free symbol to the
candidate depends upon the various factors, such as, the
existence of a prior claim, etc., the details of which are
not necessary for the purpose of this case. Therefore, all
the candidates set up by a political party need not get the
same symbol at a general election.
20. Even in the case of an existing political party,
which was recognised at some anterior point of time, but
lost the recognition in view of its inadequate performance
at any general election or in the case of a political party,
which contested a general election, but failed to satisfy
the requisite standards of performance stipulated in the
Symbols Order, a common symbol would not be available forPage 64
the exclusive use of such party’s candidates at any
subsequent election beyond a period specified in para 10A.
21. It is the abovementioned non-availability of a
common symbol for the exclusive use of the candidates of
political parties, which have not gained or continue to
enjoy the status of a recognised political party, is the
bone of contention in these petitions.
22. It is submitted that the Symbols Order, insofar as
it provides for the recognition and de-recognition of a
registered political party, is; (i) arbitrary and violative
of the Article 14 of the Constitution of India; it creates
an artificial classification between recognised and
unrecognised political parties without any rational nexus to
the object sought to be achieved; and (ii) violative of the
fundamental rights guaranteed under Article 19(1)(a) & (c);
to the members of the political party; and (iii) violative
of the constitutional right of the members of the political
party to participate in the electoral process by virtue of
their being voters. Page 65
23. Elaborating the abovementioned grounds of attack,
various submissions are made by the learned counsel
appearing for the petitioners and the same are extensively
incorporated in the Judgment of my learned brother Altamas
Kabir, J. I, therefore, see no reason to repeat the same
except to briefly note the submissions made by the learned
counsel for the Election Commission.
24. It is the stand of the Election Commission that the
rules of de-recognition or non-recognition of the political
parties by the Election Commission are designed to prevent
“insignificant political parties from gaining recognition”.
A political party, which failed to secure a minimum
stipulated percentage of validly polled votes at a general
election and return a minimum stipulated number of members
to the Legislature, has no right to claim either recognition
or a permanent symbol. It is also submitted by Ms.
Meenakshi Arora, that recognition of a political party by
the Election Commission under the provisions of the Symbols
Order not only enables the political party for thePage 66
reservation and exclusive use of an electoral symbol in
favour of its candidates at any election, but also confers
certain other advantages contemplated under Section 78A and
78B of the R.P. Act (which has been taken note of, earlier).
Therefore, unrestricted and unregulated recognition of
political parties would be an additional burden on the
exchequer. The learned counsel, relying on N.P.Ponnuswamy v
Returning Officer, Namakkal Constituency, 1952 SCR 218 and
Jyothi Basu v. Debi Gosal (1982) 1 SCC 691, argued that all
the electoral rights are creation of statutes and there is
no common law right or a fundamental right vested in a
political party or a candidate set up by a political party
to contest an election. Equally, there is no fundamental
right either in favour of the political party or its members
to seek the allotment of a permanent electoral symbol in
favour of a political party irrespective of its following,
which is to be judged, according to the learned counsel,
solely based on its performance in a general election. The
Election Commission being charged with the responsibility,Page 67
by the Constitution, of conducting the elections in this
country, is constitutionally authorised7 to take all
measures for appropriately regulating each step of the
electoral process in ensuring a free and fair electoral
process, which is essential for preserving the democratic
structure established under the Constitution of the Republic
of India.
25. The learned counsel for the Election Commission
further submitted that the question whether a political
party once recognised should retain its reserved symbol
permanently fell for the consideration of this Court earlier
in Subramanian Swamy v. Election Commission of India, (2008)
14 SCC 318, and the submission was refuted by this Court
and, therefore, the same is no more res integra and cannot
be reopened again.
26. I am of the opinion that this batch of petitions
raise basic issues of far-reaching consequences in the
functioning of the democracy – which we the people of India
have “solemnly resolved to constitute”:Page 68
“No right is more precious in a free country than
that of having a voice in the election of those who
make the laws under which, as good citizens, we
must live. Other rights, even the most basic, are
illusory if the right to vote is undermined.” – 376
US 1 Wesberry v. Sandors.
‘Electoral rights’ subsume such distinct concerns as the
citizen’s right, the territorial constituencies’ ability to
choose a representative in the legislature - a political
party’s opportunity to gain access to power and a
candidate’s chance of securing a place in the legislature to
voice the desires and aspirations of the community. They
spring from a common root – the electoral process, which is
source and product of the constitutional scheme of
establishing a democratic republic.
27. Before I examine the various submissions and the
larger question involved in the petitions, one preliminary
issue is required to be settled, i.e., in view of the
earlier decision of this Court in Subramanian Swamy (supra),
whether is it permissible for the petitioners to raise these
various questions, which they are seeking to raise in thisPage 69
batch of petitions and right for this Court to examine the
same ?
28. It is held by this Court in Golaknath v. State of
Punjab (1967) 2 SCR 762, relying upon Superintendent & Legal
Remembrancer State of West Bengal v. Corporation of Calcutta
(1967) 2 SCR 170 and Bengal Immunity Company Limited v.
State of Bihar (1955) 2 SCR 603, that there is “nothing in
the constitution that prevented the Supreme Court from
departing from the previous decisions of its own if it was
satisfied of its error and of its harmful effect on the
general interest of the public”. If a principle laid down
by this Court is demonstrably inconsistent with the scheme
of the Constitution, it becomes the duty of this Court to
correct the wrong principle laid down. It is also the duty
of this Court to correct itself as early as possible in the
matters of the interpretation of the Constitution, “as
perpetuation of a mistake will be harmful to public
interest”. Therefore, in my opinion, the various legalPage 70
issues raised by the petitioners are required to be
examined.
29. In Mohinder Singh Gill and anr. v The Chief Election
Commissioner, New Delhi and ors. (1978) 1 SCC 405, speaking
for the Court, Justice Iyer opined:
“23. Democracy is government by the people. It is a
continual participative operation, not a
cataclysmic, periodic exercise. The little man, in
his multitude, marking his vote at the poll does a
social audit of his Parliament plus political
choice of this proxy. Although the full flower of
participative Government rarely blossoms, the
minimum credential of popular Government is appeal
to the people after every term for a renewal of
confidence. So we have adult franchise and general
elections as constitutional compulsions. “The right
of election is the very essence of the
constitution” (Junius). It needs little argument to
hold that the heart of the Parliamentary system is
free and fair elections periodically held, based on
adult franchise, although social and economic
democracy may demand much more.”
30. Though this Court held that adult franchise and
general elections are constitutional compulsions, it did not
elaborate and explain the basis of such statement. The
statement is less rhetoric and more legal than what it might
sound for the following reasons. Article 326, declares thatPage 71
the elections to the House of the People and the Legislative
Assembly of every State shall be on the basis of adult
suffrage. Articles 81(1)(a) and 83, cumulatively command
that, 530 members of the House of the People (Lok Sabha) are
required to be “chosen by direct election from the
territorial constituencies in the State”. Article 81(2)(b)
mandates that each State shall be divided into territorial
constituencies in the manner specified therein, whereas
Article 83(2) mandates that the duration of the House of the
People shall be no longer than 5 years. The expiry of the
period of 5 years reckoned from the date of the first
meeting shall operate for dissolution of the House. These
provisions cumulatively command a periodical election to the
House of the People based on adult suffrage. Similarly,
Articles 168, 170 and 172 cumulatively command a periodical
election based on adult suffrage to the Legislative Assembly
of a State.
31. To ensure the conduct of periodic elections to these
various legislative bodies, the Election Commission isPage 72
established by the Constitution. It is endowed with such
powers necessary to enable the same to function as an
independent constitutional entity to discharge the
constitutional obligations entrusted to it untrammelled by
the authority of the Executive12. This entire scheme of a
representative democracy enshrined in the Constitution is
for the purpose of achieving the constitutional goal of
establishing a “Democratic Republic” adumbrated in the
preamble to the Constitution. It is in this background,
this Court held in Mohinder Singh Gill and anr. (supra),
“that the heart of the Parliamentary system is free and fair
elections periodically held based on adult franchise”.
32. It was held in Mohinder Singh Gill and anr. (supra):
“The most valuable right in a democratic polity is
the ‘little man’s’ little pencil-marking, accenting
and dissenting, called his vote. …………. Likewise,
the little man’s right, in a representative system
of Government to rise to Prime Ministership or
Presidentship by use of the right to be candidate
cannot be wished away by calling it of no civil
moment. If civics mean anything to self-governing
citizenry, if participatory democracy is not to be
scuttled by law. ………. The straightaway conclusion
is that every Indian has a right to elect and be
elected and this is constitutional as distinguishedPage 73
from a common law right and is entitled to
cognizance by Courts, subject to statutory
regulations.”
The little man’s right in this country to become a member of
any one of the Houses created by the Constitution
metaphorically described by Justice Iyer as a right to ‘rise
to Prime Ministership or Presidentship’, emanates out of a
necessary implication from the express language and scheme
of the Constitution. It is already noticed that predominant
majority of the seats in the House of the People and in
Legislative Assembly of a State are required to be filled up
by ‘direct election’ from the ‘territorial constituencies’.
Such members are required to be “chosen” in such manner as
Parliament may by law provide13. Such Process of choosing,
by direct election - the members of the House of the People
or the Legislative Assembly - is described by this Court in
Mohinder Singh Gill and anr. (supra), as the citizens right
to elect or get elected.
33. The right to elect flows from the language of
Articles 81 and 170 r/w Articles 325 and 326. Article 326Page 74
mandates that the election to the Lok Sabha and legislative
Assemblies shall be on the basis of ADULT SUFFRAGE, i.e.,
every citizen, who is of 18 years of age and is not
otherwise disqualified either under the Constitution or Law
on the ground specified in the Article SHALL BE entitled to
be registered as a voter. Article 32514 mandates that there
shall be one general electoral roll for every territorial
constituency. It further declares that no person shall be
ineligible for inclusion in such electoral roll on the
grounds only of religion, race, caste, sex, etc. Articles
8115 and 17016 mandate that the members of the Lok Sabha and
Legislative Assembly are required to be CHOSEN BY DIRECT
ELECTION from the territorial constituencies in the States.
The Sates are mandated to be divided into territorial
constituencies under Articles 81(2)(b) and 170(2)17. The
cumulative effect of all the abovementioned provisions is
that the Lok Sabha and the Legislative Assemblies are to
consist of members, who are to be elected by all the
citizens, who are of 18 years of age and are not otherwisePage 75
disqualified, by a valid law, to be voters. Thus, a
Constitutional right is created in all citizens, who are 18
years of age to choose (participate in the electoral
process) the members of the Lok Sabha or the Legislative
Assemblies. Such a right can be restricted by the
appropriate Legislature only on four grounds specified under
Article 326.
34. Coming to the question of the right to get elected /
being CHOSEN either to the Lok Sabha or to the Legislative
Assembly of a State, Articles 8418 and 17319 stipulate the
requisite qualifications for a person to be either a member
of the Lok Sabha or the Legislature of a State. These two
Articles are couched in negative language stipulating,
essentially, that, to be chosen as a member of any of the
Legislative Bodies envisaged under the Constitution, a
person must be a citizen of India and must be of the
qualifying age i.e., 25 years in the case of Lok Sabha or
the Legislative Assembly and 30 years in the case of Rajya
Sabha or the Legislative Council, as the case may be. ApartPage 76
from that, these Articles also prescribe that any person
aspiring to be a member of any one of the Legislative
Bodies, created by the Constitution, is required to make and
subscribe an Oath set out in the Third Schedule in the
Constitution. Articles 10220 and 19121 prescribe the
various contingencies in which a person would become
disqualified to be a member of any one of the Legislative
Bodies, such as, holding of a public office or owing
allegiance or adherence to a foreign State, etc.
35. It may be noted that the Constitution confers a
right on every citizen, who is of the age of 18 years, to be
a voter. But, every voter is not entitled to be a member of
the Legislature. A higher age requirement is prescribed to
be a member of the Legislature, as explained above.
36. In my opinion, therefore, subject to the fulfilment
of the various conditions stipulated in the Constitution or
by an appropriate law made in that behalf, every citizen of
this country has a Constitutional right both to elect and
also be elected to any one of the Legislative Bodies createdPage 77
by the Constitution – the “straight conclusion” of the
Mohinder Singh Gill’s case (supra), “that every Indian has a
right to elect and be elected – subject to statutory
regulations”, which rights can be curtailed only by a law
made by the appropriate legislation that too on grounds
specified under Article 326 only.
37. At this stage, it is necessary to deal with the
submission made by Ms. Meenakshi Arora, that in view of the
decisions of this Court in N.P.Ponnuswamy and Jyothi Basu
(supra), both the right to vote and the right to contest an
election for the Constitutionally crated Legislative Bodies,
is purely statutory. Relevant paras of the said two
Judgments, insofar as they are relied upon by the learned
counsel, read as follows:
N.P.Ponnuswamy (supra)
“28. The points which emerge from this decision may
be stated as follows :--
(1) The right to vote or stand as a candidate for
election is not a civil right but is a creature of
statute or special law and must be subject to the
limitations imposed by it. …………..”Page 78
Jyothi Basu (supra)
“The nature of the right to elect, the right to be
elected and the right to dispute an election and
the scheme of the Constitutional and statutory
provisions in relation to these rights have been
explained by the Court in N.P. Ponnuswami v.
Returning Officer, Namakkal Constituency & Ors.,(1)
and Jagan Nath v. Jaswant Singh.(2) We proceed to
state what we have gleaned from what has been said,
so much as necessary for this case.
A right to elect, fundamental though it is to
democracy, is, anomalously enough, neither a
fundamental right nor a Common Law Right. It is
pure and simple, a statutory right. So is the right
to be elected. So is the right to dispute an
election. Outside of statute, there is no right to
elect, no right to be elected and no right to
dispute an election. Statutory creations they are,
and therefore, subject to statutory limitation.”
The limited question before this Court in those two cases
revolved around the nature of the legal right to raise an
election dispute. In the first of the abovementioned cases,
the question was whether a challenge, under Article 226 of
the Constitution, to the rejection of the nomination of
Ponnuswami at an election to the Legislative Assembly is
permissible in view of the specific prohibition containedPage 79
under Article 329(b)22 of the Constitution. In the second of
the abovementioned cases, the question was, who are the
persons, who could be arrayed as parties to an election
petition. In both the cases, this Court was dealing with
the nature of the election disputes, the forum before which
such dispute could be raised and the procedure that is
required to be followed in such disputes. The question
whether the right to vote or contest at any election to the
Legislative Bodies created by the Constitution did not arise
in these cases. With due respect to their Lordships, I am
of the opinion that both the statements (extracted above)
are overbroad statements made without a complete analysis of
the scheme of the Constitution regarding the process of
election to the Legislative Bodies adopted in subsequent
decisions as a complete movement of law. A classical
example of the half truth of one generation becoming the
whole truth of the next generation. My conclusion is fully
supported by People’s Union for Civil Liberties (PUCL) and
anr. v. Union of India and anr. (2003) 4 SCC 399:Page 80
“ However, case after case starting from Ponnuswami
case characterized it as a statutory. ………………………
With great reverence to the eminent Judges, I would
like to clarify that the right to vote, if not a
fundamental right, is certainly a constitutional
right. The right originates from the Constitution
and in accordance with the constitutional mandate
contained in Article 326, the right has been shaped
by the statute, namely the RP Act. That, in my
understanding, is the correct legal position as
regards the nature of the right to vote in
elections to the House of the People and
Legislative Assemblies. It is not very accurate to
describe it as a statutory right, pure and simple.”
(Para 96 of P.V. Reddi, J)
38. The next question is what is the role of a political
party in the electoral process of a representative
democracy. Whether the formation, existence and continuance
of a political party are - activities, which are not
prohibited by law and permitted as a matter of legislative
grace or is there any constitutional or fundamental right in
these activities.
39. “Political parties are indispensable to any
democratic system and play the most crucial role in the
electoral process in setting up candidates and conductingPage 81
election campaigns”23. The legal and constitutional
position of political parties varies from country to
country. In most countries, the political parties do not
have any express constitutional or statutory recognition,
except Germany, whose Constitution guarantees the legitimacy
of the political parties and their right to exist, subject
to the condition that they accept the principles of the
democratic governance. Coming to the United Kingdom, the
existence of political parties is a long established
constitutional fact and their contribution to the growth of
a healthy parliamentary democracy is a matter of the British
constitutional history though political parties are not part
of the Constitution of England24. In the United States, the
“right of individuals to associate for the advancement of
political beliefs and the right of the qualified voters ….
to cast their votes effectively”25 are considered as the
most precious freedoms and protected by the First and the
Fourteenth Amendments. The Indian Constitution made no
reference to political parties prior to the 52nd AmendmentPage 82
made in 1985 by which the Tenth Schedule was inserted in the
Constitution. The Tenth Schedule recognises the existence
of political parties in this country and the practice of
political parties setting up candidates for election to
either of the Houses of Parliament or State Legislature.
However, the Election Commission recognised, from the
inception, the existence of political parties and the
practice of political parties setting up candidates at
elections to any one of the Houses created by the
Constitution.
40. A political party is nothing but an association of
individuals pursuing certain shared beliefs. Article 19(1)
(c) confers a fundamental right on all citizens to form
associations or associate with organisations of their
choice. Article 19(1)(a) confers a fundamental right on the
citizens of the freedom of speech and expression. The
amplitude of the right takes within its sweep, the right to
believe and propagate ideas whether they are cultural,
political or personal. Discussion and debate of ideas is aPage 83
part of free speech. This Court in Romesh Thapper v. State
of Madras, AIR 1950 SC 124 as under:
“……….without free political discussion no public
education, so essential for the proper functioning
of the processes of popular government, is
possible.”
Therefore, all the citizens have a fundamental right to
associate for the advancement of political beliefs and
opinions held by them and can either form or join a
political party of their choice. Political parties are, no
doubt, not citizens, but their members are generally
citizens. Therefore, any restriction imposed on political
parties would directly affect the fundamental rights of its
members.
41. It is argued that political parties, which do not
qualify for recognition by the Election Commission by virtue
of the stipulations in the Symbols Order suffer a
disadvantage in the electoral process. The Symbols order
cripples the ability of the unrecognised political parties
and the candidates set up by such parties from effectivelyPage 84
communicating with the electorate in order to garner their
votes. Therefore, the Symbols Order imposes restriction on
the citizens fundamental rights under Article 19(1)(c) and
(a) to associate with a political party and propagate the
political ideas subscribed to by the party on par with the
recognised political parties, which are able to secure the
allotment of a reserved symbol. The disadvantage imposed by
the Symbols Order on political parties with limited
following, at a given point of time, certainly is a law
falling within the description of ‘class legislation’ and
violative of Article 14 of the Constitution of India.
42. If the purpose of adopting the system of pictorial
symbols is to enable the voter to identify “the candidate of
his choice”26, and “the symbol of each political party, with
passage of time, acquired a great value because of the bulk
of the electorate associated the political party at the time
of elections with its symbols”27. It does not require any
further logic or authority to say that denying the
reservation of a common symbol for the use of a politicalPage 85
party on the ground that the Election Commission is not
willing to ‘recognise’ such a political party, for whatever
reasons, certainly renders the party disadvantaged. The
Symbols Order, insofar as it provides for the allotment of a
symbol for the exclusive use only of a recognised political
party’s candidates, in my opinion, certainly creates a
disadvantage to the political parties, which have not been
able to secure recognition from the Election Commission
apart from creating two classes of political parties. The
citizens right to form or join a political party for the
advancement of political goals mean little if such a party
is subjected to a disadvantage, in the matter of contesting
elections. Therefore, the two questions raised;
(i) whether the Symbols Order satisfies the test of
being a reasonable restriction designed to achieve
any of the purposes specified under Article 19(2)
and (4); and
(ii) the question whether such a classification
satisfies the twin tests of being a reasonable
classification, which has a nexus to the object
sought to be achieved by such classification,Page 86
are required to be examined to decide the constitutionality
of the Symbols Order.
43. I do not propose to examine the 1st question though
I am of the opinion that the said question requires an
exhaustive examination in an appropriate case, as, in my
opinion, the Symbols Order certainly violates the
prohibition contained under Article 14, in view of the
settled principle of law that this Court would not normally
embark upon the examination of issues in the field of
Constitutional Law unless it is absolutely necessary.
44. To establish the disadvantages imposed by the
Symbols Order on the unrecognised political parties, it is
necessary to analyse the nature of authority of the Election
Commission either to recognise or not to recognise a
political party. It is also necessary to examine whether,
either the Constitution or any Law compels the Election
Commission to recognise or not to recognise or derecognise a
political party and what are the benefits or burdens, whichPage 87
flow from the recognition or non-recognition of a political
party.
45. As already noticed, except for the Tenth Schedule,
which is a relatively recent addition to the Constitution,
no other provision of the Constitution, expressly refers to
the political parties either recognised or unrecognised.
The R.P. Act, as it was originally enacted, also did not
make any reference to a political party. The expression
“political party” was first introduced in the R.P. Act in
the year 1989 by the amending Act No.1 of 1989. Section 2
(f) was inserted, which provides for the definition of the
expression “political party”. Simultaneously, by the same
amending Act, Part – IV A was introduced into the Act, which
dealt with the registration of political parties with the
Election Commission and the advantages flowing from such
registration. The expression “recognised political party”
was first introduced in the Act by Act No.21 of 1996, in the
proviso to Section 33 and Sub-Section (2) of Section 38.
Later, such an expression was employed in Section 39A and inPage 88
the second explanation to Sub-Section (1) of Section 77,
Section 78A and Section 78B, which occur under Part–VA of
the Act by the amending Act No.46 of 2003. The explanation
to Section 78B(2), defines the expression “unrecognised
political party” for the limited purposes mentioned therein
and it reads as follows:
“Explanation—For the purposes of section 39A, this
Chapter and clause (hh) of sub-section (2) of
section 169, the expression “recognised political
party”, has the meaning assigned to it in the
Election Symbols (Reservation and Allotment) Order,
1968].”
None of the provisions referred to in the explanation deal
with the allotment of a reserved symbol. Thus, there is a
statutory compulsion (post 1996) on the part of the Election
Commission to recognise or not to recognise a political
party as it is only on the basis of the recognition by the
Election Commission, the rights or obligations created under
the abovementioned provisions come into play. There is
still no constitutional compulsion in that regard. Page 89
46. Though, post-1996, the R.P. Act, 1951, obligates the
Election Commission to confer recognition on some political
parties for certain purposes, the Act does not stipulate the
criteria on the basis of which such recognition is to be
accorded. It simply borrowed the definition of the
expression ‘recognised political party’ from the Symbols
Order, thereby leaving it to the discretion of the Election
Commission to recognise or not to recognise a political
party on such terms and conditions, which the Election
Commission deems fit. But, there is nothing either in R.P.
Act, or any other law, which obligates the Election
Commission to accord recognition to a political party on the
basis of its performance at an election. In other words, it
is not legally obligatory for the Election Commission to
choose the criteria of performance at an election for the
purpose of according or refusing to accord recognition to a
political party. It so happened that such a criterion was
chosen by the Election Commission well before the R.P. Act
obliged the Election Commission to undertake the exercisePage 90
and the Parliament while amending the R.P. Act simply took
note of the existing practice of the Election Commission.
Even today, there is nothing in the law, which prevents the
Election Commission from changing the criteria for
conferring recognition on a political party.
47. It would be profitable to understand the genesis and
evolution of the criterion of – poll performance – for
evaluating its constitutionality in the context of the
allotment of symbols. Pursuant to the 30th July 1957
Conference (referred to earlier) held by the Election
Commission, “the Election Commission gave adhoc recognition
on various dates between 2nd August 1951 to 7th September
1951”, to fourteen parties as National or Multi-State
parties and allotted symbols to them. “In addition to the
above parties………….., 59 other parties were recognised as
State parties and allotted various symbols, as far as
possible, inconformity with their choice. The recognition
of these State parties was left ……………. to the Chief
Electoral Officer of the States concerned”. In thisPage 91
context, it is stated in “How India Votes Election Laws,
Practice and Procedure, by V.S. Ramadevi (supra), as
follows:
“It may be significant to note here that there was
no provision either in any Act or the rules for the
recognition of political parties. All the orders
granting recognition to the aforementioned parties
either as national or state parties were issued by
the Election Commission in exercise of its powers
under art 324 and r 5 of the Representation of the
People (Conduct of Elections and Election
Petitions) Rules 1951. The said r 5 merely
provided that the Election Commission shall publish
a list of symbols and may add to or vary that list
as it may like, but there was no mention about the
political parties in this rule.”
48. Essentially, the entire exercise was undertaken by
the Election Commission to collect the data regarding the
number of organisations claiming to be the political
parties, who were likely to contest the elections either to
the State Legislature or to the Parliament, in order to
enable the Election Commission to discharge its
constitutional obligations, under Article 324, of conducting
elections to the various Legislative Bodies created under
the Constitution. As it is recorded by the former ChiefPage 92
Election Commissioner in ‘How India Votes Election Laws,
Practice and Procedure’ (supra); “all those parties were
allotted various symbols as far as possible inconformity
with their choice.” To start with, the exercise was never
meant to regulate the right of various political parties to
set up candidates at elections or choose a common electoral
symbol for the benefit of the candidates set up by such
parties. The purpose was only to eliminate the possibility
of more than one political party claiming or using the same
symbol resulting in friction between the parties and
confusion in the minds of the voters. Such an arrangement
became necessary because of the consensus of the Conference
to have pictorial symbols for the meaningful exercise of the
voting rights of the electors.
49. It was in the year 1968, eventually, the Election
Commission thought of formalising the existing practice by
creating a formal legal instrument of the entire exercise of
the recognition of a political party. It is at that
juncture, the exercise, which initially commenced as aPage 93
facilitator of the constitutional obligation of the Election
Commission to conduct the election, metamorphosised into an
authority / power of the Election Commission to accord
recognition or to refuse recognition with the attendant
consequence of allotment and reservation of symbols in
favour of the political parties, which are electorally more
fortunate and denial of the same to the less fortunate
political parties at a given point of time.
50. The result is the creation of the Symbols Order,
1968, where, for the first time, the Election Commission
conferred on itself the authority to recognise or refuse to
recognise or derecognise political parties, which did not
demonstrate that they have some minimum political following
and legislative presence.
51. Till 1996, gaining recognition from the Election
Commission did not confer any advantage on a political party
other than securing the reservation of a symbol commonly for
all the candidates set up by such a party at any election.
Political parties could still set up, then and now also,Page 94
candidates at any election irrespective of the fact whether
they are recognised by the Election Commission or not. It
is only much later (1996), certain legal rights and
obligations came to emanate from the factum of recognition
or lack of it, such as, the requirement of subscription of a
larger number of proposers for a candidate set up by an
unrecognised political party (See Section 33 of the R.P.
Act.) and the requirement of postponing the poll only on the
death of a candidate set up by a recognised political party
(Section 52). It may be mentioned herein that Section 52,
prior to its amendment in 1996, did not draw any distinction
between a candidate set up by a recognised political party
or otherwise. Death of a candidate, duly nominated at an
election even as an independent, entailed countermanding of
the poll.
52. Notwithstanding all these changes, the
constitutional right of a qualified citizen to contest an
election to any one of the Legislative Bodies created by the
Constitution, whether supported by a political party or not,Page 95
be it a recognised or unrecognised political party, has
never been curtailed by the Legislature so far. All that a
qualified voter requires to contest an election under the
scheme of the R.P. Act, 1951, is to secure the support of,
at least, one more elector to propose his name as a
candidate if a recognised political party is willing to
sponsor such a candidate, failing which, the requirement
(post 1996 amendment) is, to secure the support of ten
qualified voters to sign the nomination paper. The only
other requirement is to make a deposit of certain amount
specified under Section 34 of the Act, which amount varies
depending upon whether the candidate is contesting the
election of Lok Sabha or the Legislative Assembly.
53. Once a qualified voter decides to contest an
election under the provisions of the R.P. Act, 1951, whether
such a voter is sponsored by a political party or not,
whether such a political party is recognised by the Election
Commission or not, there is no way under the law, as it
exists today, to prevent him from contesting. Also thePage 96
Election Commission is bound to allot a pictorial symbols to
each such candidate. It is admitted unanimously by the
learned counsel appearing that there have been elections,
where hundreds of candidates contested an election from
certain constituencies and the Election Commission did allot
some symbol or the other to each of those candidates.
54. All political parties form one class. All of them
have the same goal of propagating their respective political
ideas though the ideas themselves may defer. The endeavour
of all the political parties is to capture the State power
in order to implement their respective policies,
professedly, for the benefit of the society in general. In
the process of such a political activity, some party, at a
given point of time, successfully convinces a majority of
the voters that the entrustment of the State power to that
political party would be more beneficial to the society at
large. It becomes victorious, while the other parties,
which fail to successfully convince the majority of the
voters about the wholesomeness of their ideas, loose thePage 97
elections, sometimes even miserably. But, that does not
mean that such parties, which fail to convince the voters
about the wholesomeness of their political ideology, would
be condemned forever by the electorate. Examples in our
country and elsewhere are not lacking that political
parties, which failed miserably both in terms of percentage
of the votes secured by them, as well as the number of seats
secured in the Legislature, at a given election,
dramatically improving their performance in some subsequent
election and capture power with thundering majority. It is
said that “democracy envisages rule by successive temporary
majorities”. Such transient success or failure cannot be
the basis to determine the constitutional rights of the
candidates or members of such political parties. The
enjoyment of the fundamental rights guaranteed by the
Constitution cannot be made dependent upon the popularity of
a person or an idea held by the person. If it were to be
otherwise, it would be the very antithesis of liberty and
freedom. The constitutional guarantees are meant to protectPage 98
the unpopular, the minorities and their rights. Denying the
benefit of a symbol to the candidates of a political party,
whose performance does not meet the standards set up by the
Election Commission, would disable such political party from
effectively contesting the election, thereby, negating the
right of an association to effectively pursue its political
briefs.
55. Coming to the question, whether the classification
created in the Symbols Order can satisfy the requirements of
the mandate of Article 14, the argument of the learned
counsel for the Election Commission is that, political
parties, which do not command even a minimum vote-share and
fail to secure a minimum prescribed legislative presence
prescribed by the Election Commission, at a given election,
form a distinct class in contradistinction to political
parties, which satisfy the prescriptions of the Election
Commission, regarding the eligibility for being classified
as recognised political parties. The learned counsel
further submitted that such classification is made for thePage 99
purpose of avoiding insignificant political parties from
permanently securing a symbol for the use of its candidates
at elections. An interesting submission is made that a
large number of political parties without the minimal voter
support are in the electoral field and granting recognition
to such parties and reserving a symbol in favour of such
parties would create unnecessary confusion in the minds of
the voters. Therefore, avoidance of such a confusion in the
minds of the voters, is the purpose sought to be achieved by
the classification in question.
56. Before I examine the tenability of the submission
made by the Election Commission, I think it necessary to
recapitulate the foundation of the doctrine of reasonable
classification. In Budhan Choudhry v. State of Bihar,
(1955) 1 SCR 1045, a Constitution Bench of 7 Judges of this
Court, after a thorough analysis of 7 earlier judgments of
this Court, explained the doctrine of reasonable
classification under Article 14 and held as under:
“…………… It is now well established that while
article 14 forbids class legislation, it does notPage 100
forbid reasonable classification for the purposes
of legislation. In order, however, to pass the
test of permissible classification two conditions
must be fulfilled, namely, (i) that the
classification must be founded on an intelligible
differentia which distinguishes persons or things
that are grouped together from others left out of
the group, and (ii) that the differentia must have
a rational relation to the object sought to be
achieved by the statute in question. The
classification may be founded on different bases,
namely, geographical, or according to objects or
occupations or the like. What is necessary is that
there must be a nexus between the basis of
classification and the object of the Act under
consideration……..”.
Therefore, it can be seen from the above that it is not
sufficient for a law to survive the challenge under Article
14 to demonstrate that the law makes a classification based
on intelligible differentia between two groups of persons or
things. It must also be established that such differentia
have a rational relation to the object sought to be achieved
by such classification.
57. Examined in the light of the above test, the object
sought to be achieved by the Election Commission by the
Symbols Order is to avoid the confusion in the minds of thePage 101
voters at the time of voting. Such a result is said to be
achieved by the Election Commission by denying recognition
to the political party with insignificant following,
thereby, denying them the benefit of the reservation of an
exclusive symbol to its candidates.
58. I have no option, but to reject the submission made
by the Election Commission for the reason that by simply
denying the recognition to a political party with
insignificant voter-support, I do not understand, how the
perceived voter confusion could be avoided. There is
nothing either in the Constitution or in the R.P. Act, 1951
or any other law, which prohibits an unrecognised political
party from setting up candidates at an election. The legal
position is the same with regard to even independent
candidates. Therefore, notwithstanding the refusal of
recognition by the Election Commission, unrecognised or
derecognised political parties or independent candidates
without any party support can still contest the election.
Candidates set up by an unregistered political party canPage 102
also contest an election as registration under Section 29A
of the R.P. Act is not mandatory for a political party,
except that registration begets certain advantages specified
in the R.P. Act, 1951 to a political party. The Election
Commission is bound to allot a symbol to any of the
candidates belonging to any one of the abovementioned
categories. I am, therefore, of the opinion that there is
no rational nexus between the classification of recognised
and unrecognised political parties and the professed purpose
sought to be achieved by such classification. On the other
hand, it is likely to preserve the political status quo.
59. Coming to the decision of this Court in Subramanian
Swamy (supra), the challenge in the case was only to para
10A of the Symbols Order, which was introduced by an
amendment of 2000 in the Symbols Order on the ground that it
was violative of Article 14 of the Constitution. It was
argued on behalf of the Election Commission “that the symbol
was integrally and inextricably connected with the concept
of recognition of the party and since the appellant hadPage 103
never challenged and indeed could not so challenge the derecognition of Janata Party, there was no question of it
being allowed to insist on a reserved symbol which was the
prerogative only of the recognised political party”. Though
this Court took note of the fact that, “for good long 17
years there was no concept of recognised political party as
till then there was no Symbols Order”, came to the
conclusion that the submission of the Election Commission is
acceptable. It was held at para 15:
“………….. the respondent is undoubtedly correct in
arguing that concept of recognition is inextricably
connected with the concept of symbol of that party.
It is but natural that a party must have a
following and it is only a political party having
substantial following in terms of Clauses 6A, 6B
and 6C would have a right for a reserved symbol.
Thus, in our opinion, it is perfectly in consonance
with the democratic principles. A party which
remains only in the records can never be equated
and given the status of a recognised political
party in the democratic set up. We have,
therefore, no hesitation in rejecting the argument
of Dr. Swamy that in providing the symbols and
reserving them for the recognised political parties
alone amounted to an undemocratic act.” Page 104
In my opinion, this Court, failed to appreciate that in a
“democratic set up”, while the majorities rule, minorities
are entitled to protection. Otherwise, the mandate of
Article 14 would be meaningless. If democracies are all
about only numbers, Hitler was a great democrat. The status
of majority or minority, even an insignificant minority,
could only be transient. Further, the question as to what
is the legitimate purpose sought to be achieved by the
classification under the Symbols Order, was not considered.
60. For all the abovementioned reasons, I would hold
that the Symbols Order, insofar as it denies the reservation
of a symbol for the exclusive allotment of the candidates
set up by a political party with “insignificant poll
performance”, is violative of Article 14 of the Constitution
of India.
………………………………….J.
( J. CHELAMESWAR )
New Delhi;
April 18, 2012.
