Madras High Court
Desiya Makkal Sakthi Katchi vs The Chief Election Commissioner on 13 February, 2019
Bench: S.Manikumar, Subramonimum Prasad
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 13.02.2019
CORAM:
THE HONOURABLE MR. JUSTICE S.MANIKUMAR
AND
THE HONOURABLE MR. JUSTICE SUBRAMONIMUM PRASAD
Writ Petition No.4084 of 2019
W.M.P.No.4558 of 2019
Desiya Makkal Sakthi Katchi,
Rep., by its President,
M.L.Ravi ... Petitioner
v.
1. The Chief Election Commissioner,
Election Commission of India,
Nirvachan Sadan, Ashoka Road,
New Delhi 110 001.
2. The Secretary,
Ministry of Law & Justice,
A-Wing, Shastri Bhawan,
New Delhi 110 001. ... Respondents
Prayer: Petition filed under Article 226 of the Constitution of India praying
for the issuance of a writ of Declaration, directing the first respondent to
declare the amendment inserted Act 21 of 1996 with respect to Section 33
of the Representation of People Act pertaining to thg Proviso in Sub Section
(1) brought in by amendment vide Act 21 of 1996. Order 5 and Order 6 of
the Election Symbols (Reservation and Allotment) Order 1968 with respect to
allocation of permanent symbols to the recognized political party and
classification of Political Parties as Ultra Vires.
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For petitioner : Mr.T.Sivagnanasambandan
For 1st respondent : Mr.Niranjan Rajagopal
For 2nd Respondent : Mr.G.Rajagopalan,
Addl. Solicitor General of India,
Assisted by Mr.K.Srinivasamurthy
ORDER
(Order of the Court was made by S.MANIKUMAR, J.) The petitioner has sought for a Declaration, directing the first respondent to declare the amended inserted Act 21 of 1996 with respect to Section 33 of the Representation of People Act pertaining to Proviso in Sub Section (1). Order 5 and Order 6 of the Election Symbols (Reservation and Allotment) Order 1968 with respect to allocation of permanent symbols to the recognized political parties and classification of Political Parties, as Ultra Vires.
2. It is the case of the petitioner that under the Constitution of India, every citizen has got the right to contest in general elections to the House of Parliament and to the Legislative Assembly. A person shall not be qualified to be chosen as a representative of any state, in the council of states and House of Parliament, unless he is an elector for a Parliamentary constituency in India. Therefore, the very qualification to contest in the election is that he should be an elector in India. Likewise, the very http://www.judis.nic.in 3 qualification to the contest for the Legislative Assembly is that he should be an elector of that State.
3. The petitioner has further contended that under the Representation of People Act, Part IVA Section 29A inserted by Act 1 of 1989, with effect from 15.06.1989, any association or body of individual citizens of India calling itself a political party and intending to avail itself of the provisions of this Part shall make an application to the Election Commission for its registration as a political party for the purposes of this Act, as derived.
4. The petitioner has challenged the requirement of "Ten"
proposers for a candidate other than a recognized political party, inserted as a proviso to Sub Section (1) of Section 33 by way of an amendment, to the Representation of People Act, wherein, the Nomination Paper should be submitted in the prescribed form, signed by the candidate and by an elector of the constituency as proposer, later amended as Proviso to Sub Section (1) of Section 33 by the Act 27 of 1996, with effect from 01.08.1996, wherein it was initially as only one proposer. According to this Proviso a candidate not set up by a recognized Political Party shall not be deemed to be duly nominated for election from a constituency unless the nomination paper is http://www.judis.nic.in subscribed by ten proposers being electors of the Constituency.
45. The petitioner has further submitted that the Object of the Act is to Conduct free and fair elections, removing corrupt practices and other offences, at or in connection with such elections. In Section 3 to 5 of the said Act, the qualification of Membership to Council of States, House of People and Legislative Assembly is that the Candidate to be an elector in India, in the Parliament Constituency and Assembly constituency. Therefore, the restriction now imposed on a candidate to obtain a proposer being an elector of the constituency for a valid nomination is against Section, of 3 to 5 of the same Act, With respect to the Council of States this restriction is not imposed, therefore, there is discrimination with respect to a candidate to contest for House of People, Legislative Assembly.
6. The petitioner has contended that under Section 29A of the Act there is no different procedure for registration as Recognized and Unrecognized political parties. As per Section 29A of Representation of People Act, a registered political party should be considered equally among equals, with recognized political parties, insofar as it relates to the requirement of proposers for a candidate in the assembly or parliamentary elections. Election Commission of India has added a Proviso to sub section (1) of section 33 and there is a mismatch of electoral rolls serial numbers, signatures, address, etc., resulting in the nomination being rejected even though the Act allows any candidate from any constituency of the state can http://www.judis.nic.in contest.
57. It is the further case of the petitioner that the restriction imposed upon the unrecognized political party, by introducing the proviso by an amendment to obtain ten proposers to subscribe from the electors of the said constituency, whereas, for a recognized Political Party, one proposer is sufficient to nominate a candidate to the constituency, is discriminative and against the principles of equality enshrined in Article 14 of the Constitution of India. This discrimination would not also satisfy the reasonable classifications under Article 14 of the Constitution of India. Because of the restriction for an unrecognized Political Party, their aspiration to contest in the general elections or to bye election, is affected.
8. The petitioner has further submitted that under Article 324 Election Commission of India has framed "Election Symbols (Reservation and Allotment) Order, 1968", hereafter called as Symbols Order. An order to provide for specification, reservation, choice and allotment of symbols at elections in Parliamentary and Assembly Constituencies, for the recognition of political parties in relation thereto and for matters connected therewith.
S.O. 2959, dated the 31st August, 1968.
9. The petitioner has further submitted that the object of Election Commission of India is to conduct free and fair elections in an http://www.judis.nic.in efficient manner. This order provides for allotment of Symbols to the 6 contesting candidates. Under Order 5, the symbols classified into reserved symbol, reserved for exclusive allotment to the contesting candidates set up by a recognized political party, and free symbol, which is a symbol other than a reserved symbol. Order 6 classifies political parties into recognized and unrecognized political parties. A candidate set up by a recognized party in an election, can contest only with a symbol reserved for that political party. Candidates set up by political parties other than recognized ones and independent candidates are entitled to choose any one from free symbols.
10. It is the further case of the petitioner that for the purpose of Symbols Order, as defined in Clause (h) of Order 2, a "Political Party" means an association or body of individual citizens Of India registered with the Commission as a political party under Section 29A of the Representation of the People Act, 1951. As per Section-29A of the Representation of People Act, there is only one system of procedure to register, as a political party.
The scheme of the Symbols Order shows that it does not deal with unregistered political parties. It deals with registered political parties and sub-dividing them into recognized and unrecognized political parties. To be entitled to the benefit of allotment of symbols reserved to a recognized political party, the candidate has to be the one, set up by a recognized political party and in a manner prescribed by Order 13 of the Symbols Order. http://www.judis.nic.in The privilege enjoyed by a candidate set up by a recognized political party, 7 as spelt out by a combined reading of Section 33 of the Act with the provisions of Symbols Order, is that, his nomination paper is complete, inter alia, if proposed by an elector, (i.e., one only) of the Constituency. If the candidate is one not set up by a recognized political party, i.e., if he is a candidate set up by an unrecognized political party or be an independent candidate, his nomination paper must be subscribed by ten proposers being electors of the Constituency. Nomination paper filed by a candidate set up by an unrecognized political party or an independent candidate cannot be proposed by a single elector of the Constituency or by electors less than ten.
Prior to the amendment in the body of the Act introduced by Act No, 21 of 1996, which inserted, inter alia, the first proviso to subsection (1) of Section 33 of the Act, the expression "recognized political party" was not there.
11. The petitioner has further contended that Article 324 of the Constitution of India does not speak about political Parties. The sub division into recognized and unrecognized by Election Commission of India, is arbitrary and ultra Vires. Rule 4 of the Conduct of Election Rules, 1961, deals with Nomination Forms 2A and 2B sub dividing as Part I of one elector proposer and Part II of ten elector proposer Nomination Paper. Part II is arbitrary and against Article 14 of Constitution of India. Symbols order which divide, recognized and unrecognized, is arbitrary and ultra vires. Also the allocation of reserved symbols and free symbols is against the Principles of http://www.judis.nic.in equality enshrined under Article 14 of the Constitution of India.
812. The petitioner has further submitted that the candidate nominated by the recognized political party candidates before filing their nomination paper campaigns for the mandate, is in a advantageous position, as Symbols are reserved in advance. Statistical data of census 2001 shows that about 60% are illiterate the symbols plays major role. The recognized political parties campaign their symbols for the entire five years by various media to achieve an impact in the minds of the electors. The repetitive theory is illustrative or illusionary in effect in the minds of the electors.
Even this is visible from the disputes arisen, before the Election Commission of India for the reserved Symbols conferred on title of the Party recognized.
13. It is the further case of the petitioner that the recognized political party candidates in a constituency seek the mandate of voters before the notification issued and symbols allotted as their symbols are reserved. The recognized political party is in an advantageous position with the campaign materials than the registered Political Parties where only 14 clear days are left to campaign. In a constituency about nearly 3lakh electors are there. The area of some constituency extend more than 20kms, and it becomes an unfinished task to reach the symbol to the minds of the people within the stipulated 14days time for the unrecognized political party where their symbols are allotted only after scrutiny of their nomination. The Election Commission of India in a brotherly treatment, has spelt out http://www.judis.nic.in advantageous position to the recognized political parties.
914. The registered but unrecognized political party will get their Symbols allocated only after the withdrawal date is over as notified. This applies to Independent Candidates too. Therefore, by virtue of this classification, the recognized political party are permitted to run in the race much before the race begins. Representation of People (Amendment) Act 1996 the second proviso in Section 33 and Part IVA. Conduct of Elections under Rule 4 Form 2A Part II and Symbols Order 5 is arbitrary and ultra vires.
15. The petitioner has further submitted that the general elections is now Scheduled around May 2019, the petitioner herein, a Unrecognized Registered Political Party, has intended to contest the elections. Therefore, if the aforementioned discrimination between Registered Recognized Political Party with that of the Registered Unrecognized Political Party is allowed to continue, it would cause much hardship and prejudice. The petitioner party would not be able to contest the election with short time allocation of Symbol and calling the candidates to obtain Ten proposers in the nomination forms would be detrimental to the interest, and would harm the free and fair conduct of elections.
16. On the above pleadings, Mr.T.Sivagnanasambandan, learned counsel for the petitioner made submissions. http://www.judis.nic.in 10
17. Placing reliance on the decision in Rama Kant Pandey v. Union of India reported in 1993 (2) SCC 438, Mr.G.Rajagopalan, learned Additional Solicitor General of India, submitted that the above issue is squarely covered by a decision of the Hon'ble Supreme Court and hence, prayed for dismissal of the writ petition.
Heard the learned counsel for the parties and perused the materials available on record.
18. Before adverting to the rival contentions, let us have a cursory look at few provisions. Sections 29A to 33 of the Representation of People Act, are extracted hereunder:
"29A. Registration with the Election Commission of associations and bodies as political parties:-
(1) Any association or body of individual citizens of India calling itself a political party and intending to avail itself of the provisions of this Part shall make an application to the Election Commission for its registration as a political party for the purposes of this Act.
(2) Every such application shall be made,—
(a) if the association or body is in existence at the commencement of the Representation of the People (Amendment) Act, 1988 (1 of 1989), within sixty days next following such commencement;
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(b) if the association or body is formed after such 11 commencement, within thirty days next following the date of its formation.
(3) Every application under sub-section (1) shall be signed by the chief executive officer of the association or body (whether such chief executive officer is known as Secretary or by any other designation) and presented to the Secretary to the Commission or sent to such Secretary by registered post.
(4) Every such application shall contain the following particulars, namely:—
(a) the name of the association or body;
(b) the State in which its head office is situate;
(c) the address to which letters and other communications meant for it should be sent;
(d) the names of its president, secretary, treasurer and other office-bearers;
(e) the numerical strength of its members, and if there are categories of its members, the numerical strength in each category;
(f) whether it has any local units; if so, at what levels;
(g) whether it is represented by any member or members in either House of Parliament or of any State Legislature, if so, the number of such member or members.
(5) The application under sub-section (1) shall be accompanied by a copy of the memorandum or rules and regulations of the association or body, by whatever name called, and such memorandum or rules and regulations shall contain a specific provision that the association or body shall bear true faith and allegiance to the Constitution of India as by law http://www.judis.nic.in established, and to the principles of socialism, secularism and 12 democracy, and would uphold the sovereignty, unity and integrity of India.
(6) The Commission may call for such other particulars as it may deem fit from the association or body.
(7) After considering all the particulars as aforesaid in its possession and any other necessary and relevant factors and after giving the representatives of the association or body reasonable opportunity of being heard, the Commission shall decide either to register the association or body as a political party for the purposes of this Part, or not so to register it; and the Commission shall communicate its decision to the association or body:
Provided that no association or body shall be registered as a political party under this sub-section unless the memorandum or rules and regulations of such association or body conform to the provisions of sub-section (5).
(8) The decision of the Commission shall be final. (9) After an association or body has been registered as a political party as aforesaid, any change in its name, head office, office-bearers, address or in any other material matters shall be communicated to the Commission without delay.
29B. Political parties entitled to accept contribution.— Subject to the provisions of the Companies Act, 1956 (1 of 1956), every political party may accept any amount of contribution voluntarily offered to it by any person or company other than a Government company:
Provided that no political party shall be eligible to accept any contribution from any foreign source defined under clause http://www.judis.nic.in
(e) of section 2 of the Foreign Contribution (Regulation) Act, 13 1976 (49 of 1976).
Explanation.—For the purposes of this section and section 29C,—
(a) “company” means a company as defined in section 3;
(b) “Government company” means a company within the meaning of section 617; and
(c) “contribution” has the meaning assigned to it under section 293A, of the Companies Act, 1956 (1 of 1956) and includes any donation or subscription offered by any person to a political party; and
(d) “person” has the meaning assigned to it under clause (31) of section 2 of the Income-tax Act, 1961 (43 of 1961), but does not include Government company, local authority and every artificial juridical person wholly or partially funded by the Government.
29C. Declaration of donation received by the political parties.—(1) The treasurer of a political party or any other person authorised by the political party in this behalf shall, in each financial year, prepare a report in respect of the following, namely:—
(a) the contribution in excess of twenty thousand rupees received by such political party from any person in that financial year;
(b) the contribution in excess of twenty thousand rupees received by such political party from companies other than Government companies in that financial year.
(2) The report under sub-section (1) shall be in such form as may be prescribed.
http://www.judis.nic.in (3) The report for a financial year under sub-section (1) 14 shall be submitted by the treasurer of a political party or any other person authorised by the political party in this behalf before the due date for furnishing a return of its income of that financial year under section 139 of the Income-tax Act, 1961 (43 of 1961), to the Election Commission.
(4) Where the treasurer of any political party or any other person authorised by the political party in this behalf fails to submit a report under sub-section (3) then, notwithstanding anything contained in the Income-tax Act, 1961 (43 of 1961), such political party shall not be entitled to any tax relief under that Act.
PART V CONDUCT OF ELECTIONS CHAPTER I.—Nomination of Candidates
30. Appointment of dates for nominations, etc.— As soon as the notification calling upon a constituency to elect a member or members is issued, the Election Commission shall, by notification in the Official Gazette, appoint —
(a) the last date for making nominations, which shall be the seventh day after the date of publication of the first- mentioned notification or, if that day is a public holiday, the next succeeding day which is not a public holiday;
(b) the date for the scrutiny of nominations, which shall be the day immediately following the last date for making nominations or, if that day is a public holiday, the next succeeding day which is not a public holiday ;
(c) the last date for the withdrawal of candidatures, which shall be the second day after the date for the scrutiny of http://www.judis.nic.in nominations or, if that day is a public holiday, the next 15 succeeding day which is not a public holiday;
(d) the date or dates on which a poll shall, if necessary, be taken, which or the first of which shall be a date not earlier than the fourteenth day after the last date for the withdrawal of candidatures; and
(e) the date before which the election shall be completed.
31. Public notice of election.— On the issue of a notification under section 30, the returning officer shall give public notice of the intended election in such form and manner as may be prescribed, inviting nominations of candidates for such election and specifying the place at which the nomination papers are to be delivered.
32. Nomination of candidates for election.— Any person may be nominated as a candidate for election to fill a seat if he is qualified to be chosen to fill that seat under the provisions of the Constitution and this Act or under the provisions of the Government of Union Territories Act, 1963 (20 of 1963), as the case may be.
33. Presentation of nomination paper and requirements for a valid nomination. —(1) On or before the date appointed under clause (a) of section 30 each candidate shall, either in person or by his proposer, between the hours of eleven o'clock in the forenoon and three o'clock in the afternoon deliver to the returning officer at the place specified in this behalf in the notice issued under section 31 a nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer :
Provided that a candidate not set up by a recognised http://www.judis.nic.in political party, shall not be deemed to be duly nominated for 16 election form a constituency unless the nomination paper is subscribed by ten proposers being electors of the constituency:
Provided further that no nomination paper shall be delivered to the returning officer on a day which is a public holiday:
Provided also that in the case of a local authorities' constituency, graduates' constituency or teachers' constituency, the reference to "an elector of the constituency as proposer" shall be construed as a reference to ten per cent. of the electors of the constituency or ten such electors, whichever is less, as proposers.
(1A) Notwithstanding anything contained in sub-section (1) for election to the Legislative Assembly of Sikkim (deemed to be the Legislative Assembly of that State duly constituted under the Constitution), the nomination paper to be delivered to the returning officer shall be in such form and manner as may be prescribed :
Provided that the said nomination paper shall be subscribed by the candidate as assenting to the nomination, and
(a) in the case of a seat reserved for Sikkimese of Bhutia-
Lepcha origin, also by at least twenty electors of the constituency as proposers and twenty electors of the constituency as seconders;
(b) in the case of a seat reserved for Sanghas, also by at least twenty electors of the constituency as proposers and at least twenty electors of the constituency as seconders;
(c) in the case of a seat reserved for Sikkimese of Nepali http://www.judis.nic.in origin, by an elector of the constituency as proposer:
17Provided further that no nomination paper shall be delivered to the returning officer on a day which is a public holiday.
(2) In a constituency where any seat is reserved, a candidate shall not be deemed to be qualified to be chosen to fill that seat unless his nomination paper contains a declaration by him specifying the particular caste or tribe of which he is a member and the area in relation to which that caste or tribe is a Scheduled Caste or, as the case may be, a Scheduled Tribe of the State.
(3) Where the candidate is a person who, having held any office referred to in section 9 has been dismissed and a period of five years has not elapsed since the dismissal, such person shall not be deemed to be duly nominated as a candidate unless his nomination paper is accompanied by a certificate issued in the prescribed manner by the Election Commission to the effect that he has not been dismissed for corruption or disloyalty to the State.
(4) On the presentation of a nomination paper, the returning officer shall satisfy himself that the names and electoral roll numbers of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral rolls :
Provided that no misnomer or inaccurate description or clerical, technical or printing error in regard to the name of the candidate or his proposer or any other person, or in regard to any place, mentioned in the electoral roll or the nomination paper and no clerical, technical or printing error in regard to the http://www.judis.nic.in electoral roll numbers of any such person in the electoral roll or 18 the nomination paper, shall affect the full operation of the electoral roll or the nomination paper with respect to such person or place in any case where the description in regard to the name of the person or place is such as to be commonly understood; and the returning officer shall permit any such misnomer or inaccurate description or clerical, technical or printing error to be corrected and where necessary, direct that any such misnomer, inaccurate description, clerical, technical or printing error in the electoral roll or in the nomination paper shall be overlooked.
(5) Where the candidate is an elector of a different constituency, a copy of the electoral roll of that constituency or of the relevant part thereof or a certified copy of the relevant entries in such roll shall, unless it has been filed along with the nomination paper, be produced before the returning officer at the time of scrutiny.
(6) Nothing in this section shall prevent any candidate from being nominated by more than one nomination paper:
Provided that not more than four nomination papers shall be presented by or on behalf of any candidate or accepted by the returning officer for election in the same constituency.
(7) Notwithstanding anything contained in sub-section (6) or in any other provisions of this Act, a person shall not be nominated as a candidate for election,—
(a) in the case of a general election to the House of the People (whether or not held simultaneously from all Parliamentary constituencies), from more than two Parliamentary constituencies;
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(b) in the case of a general election to the Legislative 19 Assembly of a State (whether or not held simultaneously from all Assembly constituencies), from more than two Assembly constituencies in that State;
(c) in the case of a biennial election to the Legislative Council of a State having such Council, from more than two Council constituencies in the State;
(d) in the case of a biennial election to the Council of States for filling two or more seats allotted to a State, for filling more than two such seats;
(e) in the case of bye-elections to the House of the People from two or more Parliamentary constituencies which are held simultaneously, from more than two such Parliamentary constituencies;
(f) in the case of bye-elections to the Legislative Assembly of a State from two or more Assembly constituencies which are held simultaneously, from more than two such Assembly constituencies;
(g) in the case of bye-elections to the Council of States for filling two or more seats allotted to a State, which are held simultaneously, for filling more than two such seats;
(h) in the case of bye-elections to the Legislative Council of a State having such Council from two or more Council constituencies which are held simultaneously, from more than two such Council constituencies.
Explanation.— For the purposes of this sub-section, two or more bye-elections shall be deemed to be held simultaneously where the notification calling such bye-elections are issued by the Election Commission under section 147, section 149, section http://www.judis.nic.in 150 or, as the case may be, section 151 on the same date."
2019. In exercise of the powers conferred by article 324 of the Constitution read with section 29A of the Representation of the People Act, 1951 (43 of 1951) and rules 5 and 10 of the Conduct of Elections Rules, 1961, and all other powers enabling it in this behalf, the Election Commission of India has made the Election Symbols (Reservation and Allotment) Order, 1968, which is an order to provide for specification, reservation, choice and allotment of symbols at elections in Parliamentary and Assembly Constituencies, for the recognition of political parties in relation thereto and for matters connected therewith. The Order is exracted hereunder:
"1. Short title, extent, application and commencement.— (1) This Order may be called the Election Symbols (Reservation and Allotment) Order, 1968.
(2) It extends to the whole of India and applies in relation to election in all Parliamentary and Assembly Constituencies other than Assembly Constituencies in the State of Jammu and Kashmir.
(3) It shall come into force on the date of its publication in the Gazette of India which date is hereinafter referred to as the commencement of this Order.
2. Definitions and interpretation.— (1) In this Order, unless the context otherwise requires,—
(a) "clause" means a clause of the paragraph or sub- paragraph in which the word occurs;
(b) "Commission", means the Election Commission of India constituted under article 324 of the Constitution;
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(c) "constituency" means a parliamentary constituency or 21 an assembly constituency;
(d) "contested election" means an election in a parliamentary or an assembly constituency where a poll is taken;
(e) "election" means an election to which this Order applies;
(ee) "form" means a Form appended to this Order;
(f) "general election" means any general election held after the commencement of this Order for the purposes of constituting the House of the People or the Legislative Assembly of a State and includes a general election whereby the House of the People or the Legislative Assembly of a State in existence and functioning at such commencement, has been constituted;
(g) "paragraph" means a paragraph of this Order;
(h) "political party" means an association or body of individual citizens of India registered with the Commission as a political party under section 29A of the Representation of the People Act, 1951 (43 of 1951);
(i) "State" includes the National Capital Territory of Delhi and the Union territory of Pondicherry;
(j) "Sub-paragraph" means a sub-paragraph of the paragraph in which the word occurs;
(jj) “Union territory” means Union territory other than the National Capital Territory of Delhi and the Union territory of Pondicherry; and
(k) words and expressions used but not defined in this Order but defined in the Representation of the People Act, 1950 (43 of 1950), or the rules made thereunder or in the Representation of the People Act, 1951 (43 of 1951), or the rules http://www.judis.nic.in made thereunder shall have the meanings respectively assigned 22 to them in those Acts and rules.
(2) The General Clauses Act, 1897 (10 of 1897) shall, as far as may be, apply in relation to the interpretation of this Order as it applies in relation to the interpretation of a Central Act.
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4. Allotment of symbols.—In every contested election a symbol shall be allotted to a contesting candidate in accordance with the provisions of this Order and different symbols shall be allotted to different contesting candidates at an election in the same constituency. 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.
6. Classification of political parties.— (1) For the purposes of this Order and for such other purposes as the Commission may specify as and when necessity therefor arises, political parties are either recognised political parties or unrecognised political parties.
(2) A recognised political party shall either be a National party or a State party.
6A. Conditions for recognition as a State party.— A political party shall be eligible for recognition as a State party in a State, if, and only if, any of the following conditions is fulfilled:–– http://www.judis.nic.in
(i) At the last general election to the Legislative Assembly 23 of the State, the candidates set up by the party have secured not less than six per. Cent. of the total valid votes 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 per. Cent. 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 per. Cent. 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.
6B. Conditions for recognition as a State party.— A political party, other than a National party, shall be treated as a recognised 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 the 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 http://www.judis.nic.in members to the Legislative Assembly of the State at the last 24 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.
6C. Conditions for continued recognition as a National or State party.— If a political party is recognised as a National party under paragraph 6A, or as a State party under paragraph 6B, the question whether it shall continue to be so recognized after any subsequent general election to the House of the People or, as the case may be, to the Legislative Assembly of the State concerned, shall be dependent upon the fulfilment by it of the conditions specified in the said paragraphs on the results of that general election."
20. In Rama Kant Pandey v. Union of India reported in 1993 (2) SCC 438, constitutional validity of the Representation of the People (Amendment) Ordinance, 1992 (1 of 1992) was challenged on the grounds of violation of Articles 14, 19 and 21. Summary of the facts culled out from Rama Kant Pandey's case (cited supra), is as follows:
"By the first Ordinance, section 52 of the Representation of the People Act, 1951 (the Act) providing for countermanding elections in certain circumstances has been amended. By the second Ordinance the period of 20 days in section 30 of the Act has been reduced to 14 days. Later, when the Parliament met, http://www.judis.nic.in the amendments were incorporated by an amending Act.25
2. The provisions of section 52, as they stood before the amendment, provided for countermanding the election in either of 2 contingencies (i) if a candidate whose nomination was found valid on scrutiny under section 36 or who has not withdrawn his candidature under section 37 died and a report of his death was received before the publication of the fist of contesting candidates under section 38, (ii) if a contesting candidate died and a report of his death was received before the commencement of the poll. On countermanding the Returning Officer will have to report the fact to the Election Commission; and all proceedings with reference to the election will have to be commenced de novo in all respects as if for a new election. By the first Ordinance, the area attracting the provisions of countermanding has been narrowed down by confining the provisions only to such cases where a candidate of a retired political party dies.
3. Section 30 deals with appointment of dates for nomination, scrutiny and the holding of poll and in clause (d) it is provided that the date of poll shall not be earlier than the twentieth day after the last date for the withdrawal of candidatures. With a view to expedite the whole process the words 'twentieth day' have been substituted by the words "fourteenth day" in the said clause by the impugned Ordinace."
Arguments of the learned counsel for the petitioner therein were that, "4. Learned counsel for the petitioner has strenuously contended that the distinction made by the impugned http://www.judis.nic.in amendment between a candidate set up by a recognised 26 political party and any other candidate is artificial inconsistent with the spirit of the election law and discriminatory. The Constitution does not confer on a candidate set up by a registered political party any special right and treats all candidates similarly. It does not recognize any categorisation. It is, therefore, argued that the difference which is being introduced by the impugned amendment is contrary to the scheme of the Constitution and violative of the equality clause in Article 14. According to the learned counsel this will also infringe the guarantee under Article 19(1)(a) in respect of freedom of speech and expression.
5.Elaborating his argument, the learned counsel contended that the right to choose its representative belongs to the voters of a particular constituency, and this should not be whittled down by amendments which have a tendency to undermine this element. Lack of wisdom in giving importance to recognized political parties was emphasised by saying that such parties almost always impose their choice of candidates in their own interest and at the cost of the welfare of the constituencies. By introducing this imbalance in the Act, it is stated, the republican character of the Constitution is jeopardised. The sum and substance of the argument on behalf of the petitioner is that no distinction can be made between one candidate and another purely depending on recognition as a political party.
6.So far the second Ordinance is concerned, the objection is that the period of 14 days, substituted by the amendment, is too short and the reduction from the period of http://www.judis.nic.in 20 days is arbitrary and prejudicial to the larger interest for 27 which elections are held."
After considering the defence, the Hon'ble Supreme Court, at Paragraphs 9 and 10, held as follows:
"9.The challenge of the petitioner is directed against the differential treatment which the election law in India gives to candidates set up by political parties. The main thrust of the argument of the learned counsel is that the party system and the recognition of political parties is itself detrimental to the cause of real democracy. In any event, no additional advantage ought to have been allowed to candidates set up by political parties. This stand runs counter to the constitutional scheme adopted by the nation. It has firmly been established that the Cabinet system of Government has been envisaged by our Constitution and that the same is on the British pattern. (See Shamsher Singh v. State of Punjab [1975] 1 SCR 814 at 827). In England where democracy has prevailed for longer than in any other country in recent times, the Cabinet system of Government has been found to be most effective. In the other democratic countries also the party system has been adopted with success. It has been realised that for a strong vibrant democratic Government, it is necessary to have a parliamentary majority as well as a parliamentary minority, so that the different points of view on controversial issues are brought out and debated on the floor of the Parliament. This can be best achieved by the party system, so that the problems of the nation may be discussed, considered and resolved in a http://www.judis.nic.in constructive spirit. To abolish or ignore the party system would 28 be to permit a chorus of discordant notes to replace an organised discussion. In his book "Cabinet Government" (2nd Edition page 16) Sir Ivory Jennings has very rightly said."Party warfare is thus essential to the working of the democratic system". It is, therefore, idle to suggest that for establishing a true democratic society, the party system should be ignored. Our Constitution has clearly recognized the importance of this system, which was further emphasized by the addition of the 10th Schedule to it. The Election Symbols (Reservation and Allotment) Order is also a step in that very direction.
10. There is also no merit whatsoever in the contention that candidates set up by political parties should not receive any special treatment. The fact that candidates set up by political parties constitute a class separate from the other candidates has been recognized by this Court in numerous cases. In paragraph 14 of the judgment in the case of Dr.P.N.Thampy Terah v. Union of India [1985] Suppl. SCC 189, the Constitution Bench observed thus :-
"It is the political parties which sponsor candidates, that are in a position to incur large election expenses which often run into astronomical figures. We do not consider that preferring political parties for exclusion from the sweep of monetary limits on election expenses, is so unreasonable or arbitrary as to justify the preference being struck down upon that gournd."
Ultimately, the Hon'ble Supreme Court held that there is no discretion.
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21. In Subramanian Swamy v. Election Commissioner of India 29 reported in 2008 (14) SCC 318, the Hon'ble Supreme Court, at Paragraphs 31 to 34, held as follows:
"31. That leaves us with the last argument that the symbol amounts to a property and, therefore, a political party cannot be deprived of its property. The argument must be rejected at the outset as the symbol can never have even the traces of the concept of a property.
32. It may be that a recognised political party would have a right of exclusive use of the symbol but the Symbols Order makes it very clear that such right to use the symbol can be lost with the dismal performance of the party.
33. In Sadiq Ali v. Election Commission of India [(1972) 4 SCC 664], this Court was considering the controversy regarding the symbol “of two bullocks with a yoke on” which was claimed by two split groups of the Congress Party. The Court observed that: (SCC p. 680, para 35) “35. … The answer to this contention is that as a result of differences and dissensions, a political party may be split into two or more groups but the symbol cannot be split. It is only one of the rival sections or groups, as is held to be that political party under Para 15, which would be entitled to the use of the symbol in the elections while the other section or group would have to do without that symbol. It is not permissible in a controversy like the present to dissect the symbol and give one out of the two bullocks represented in the symbol of the Congress to one group and the other bullock to the other group. The symbol is not property to be divided http://www.judis.nic.in between co-owners. The allotment of a symbol to the 30 candidates set up by a political party is a legal right and in case of split, the Commission has been authorised to determine which of the rival groups or sections is the party which was entitled to the symbol.” The observations are more clear than necessary to repel the contention raised by Dr. Swamy.
34. A symbol is not a tangible thing nor does it generate any wealth, it is only the insignia which is associated with the particular political party so as to help the millions of illiterate voters to properly exercise their right to franchise in favour of the candidate of their choice belonging to a particular party. In the election process it is not merely the individual candidate's personality or his identity that weighs with the voters. It is undoubtedly a very relevant factor but along with it the voter also can and does vote in favour of the party. It is under such circumstances that the symbol becomes relevant and important. However, all that it provides for is the essential association that it has with a particular party. The party concerned would have a legal right to exclusively use the same but that is not, in our considered opinion, a property of the party and, therefore, the Election Commission which is required to ensure free, fair and clean elections have every right to deprive a particular party with a dismal performance of that symbol. The Election Commission puts a clamp on the right of such a political party to use the symbol rightfully. We are, therefore, not in a position to accept the argument that symbol is a property of a party and, therefore, such property cannot be taken away from that political party. The symbol may be an http://www.judis.nic.in outcome of intellectual exercise but it does not become an 31 “intellectual property” which concept has monetary implications. In case of a political party as contemplated in the Symbols Order, monetary angle is conspicuously absent."
22. Decisions quoted supra, squarely apply to the facts of this case.
Hence, the Writ Petition is dismissed. No costs. Consequently, connected Miscellaneous Petition is also closed.
(S.M.K., J.) (S.P., J.) 13.02.2019 skm To
1. The Chief Election Commissioner, Election Commission of India, Nirvachan Sadan, Ashoka Road, New Delhi 110 001.
2. The Secretary, Ministry of Law & Justice, A-Wing, Shastri Bhawan, New Delhi 110 001.
S. MANIKUMAR, J.
AND SUBRAMONIAM PRASAD, J.
http://www.judis.nic.in skm 32 W.P.No.4084 of 2019 13.02.2019 http://www.judis.nic.in