Desiya Murpokku Dravida Kazhagam & Anr. Vs. The Election Commission of India
[Extraordinary Original Jurisdiction Writ Petition (C) No.532 of 20081]
[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.
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 1st December, 2000, substituting Clause 6 with 6A(i) and (ii) and Clause 6 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 members to the Legislative Assembly of the State.
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 least2 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 2members to the Legislative Assembly.
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 26th January, 1950, the Election Commission was constituted under Article 324 of the Constitution. On 30th July, 1951, the Commission held a conference in New Delhi with 7established political parties organised on an all-India basis and discussed the possibilities of allotting a distinctive symbol to each one of them allover 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 several 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 multi-state 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 withdrawer cognition 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 organized before the elections, the Commission fixed 3% of the valid votes polled in the elections as the minimum 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,
a. Indian National Congress;
b. All India Bharatiya Jan Sangh;
c. Communist Party of India; and
d. 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 1962respectively, but after the Third General Elections the minimum standard was raised by the Commission from 3 to 4%.
The same formula was also used by 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 5and 10 of the Conduct of Election Rules, 1961 and other powers vested init, the Election Commission of India made and promulgated 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 formatters 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 the 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 sub serve 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 for 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 10of 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 thisjudgment.
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 SCC161] and in Roop Lal Sathi Vs. Nachhattar Singh Gill [(1982) 3 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 candidates 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 same 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 be 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;
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 dated15.12.1997, which provided 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;
(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. 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 of 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 NotificationNo.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 the 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, here in after referred to as the 1951 Act, and contested the General Elections in 2006for 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, where as 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 first 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, there by 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 not always the political party which had secured the highest number of votes, that had won the General Elections in the State.
That in the 13th Assembly General Elections in2006, held in Tamil Nadu, the DMK having polled 8,728,716 votes won 96seats, whereas the AIADMK, having polled 10,768,559 votes, won only 61seats 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 DMKs 96 seats. Similarly, in the 9th 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 the10th Lok Sabha General Elections held in 1991 and the 14th Lok SabhaGeneral Elections held in 2004, the AIADMK in 1991 and the DMK in 2004 won all the seats for the Lok Sabha, despite having polled 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 and 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 and 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 all 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 Peoples Union for Civil Liberties (PUCL) & Anr. Vs. Union of India & Anr. [(2003) 4 SCC 399].
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 Peoples 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 a 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 citizens 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 contesting 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 controlvested 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, New 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 to apolitical 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 about 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 PetitionNo.125 of 2011, India Jana Nayaka Katchi, formed in April, 2010, urged 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 its ought 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% of 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 struckdown.
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 submissions 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 Vof 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. The 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 urgedthat 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, the 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 Alis 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 paragraphs 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 SCC 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 apolitical 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 substantialfollowing.
29. Ms. Arora urged that in Rama Kant Pandey Vs. Union of India [(1993) 2SCC 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 candidates 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 and 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 apolitical 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, 6 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 could 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 Alis 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.
32. The view in Sadiq Alis case has since been followed in the All Party Hill Leaders Conference case (supra), Roop Lal Sathi’s case (supra),Kanhiya Lal Omars case (supra) and as recently as in Subramanian Swamys 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 in 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. Venugopals submissions are in relation to the poll performance of the larger parties within a State where even a vote swing of2 to 5 per cent could cause a huge difference in the seats won by apolitical party. A three or four-cornered contest could lead to as plitting 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 not 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 Peoples 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 a 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 1st 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
Desiya Murpokku Dravida Kazhagam & Anr. Vs. The Election Commission of India.
[Reportable in the Supreme Court of India Extraordinary Original Jurisdiction writ Petition (C) No.532 of 2008]
[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]
[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.
1. I have had the advantage of the opinion of my learned brotherAltamas Kabir, J. I regret my inability to agree with the same.
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 Article324, 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 recognized 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 2009arising out of an interim order passed by the Andhra Pradesh High Court inW.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 the 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 to 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 a reregistered under some law dealing with the registration of Societies. The yare 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.
7. On 30-07-1957, the Election Commission held a Conference, where 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. 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 candidates 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, asunder: &. 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 their 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 SCC628, 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, therewas a general agreement among all the participants on various items; relevant in the context is that; the same symbol would be used through out India for all candidates of a party, both for parliamentary and assemblyelections 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 happened 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
