Desiya Murpokku Dravida Kazhagam & Anr vs Election Commission Of India

3 Since we shall be referring to the said provision

hereinafter, the same is extracted hereinbelow :

"324. Superintendence, direction and

control of elections to be vested in an

Election Commission

(1) The superintendence, direction and

control of the preparation of the

electoral rolls for, and the conduct of,

all elections to Parliament and to the

Legislature of every State and of

elections to the offices of President and

Vice President held under this

Constitution shall be vested in a

Commission"

3. Section 29A of the Representation of the People

Act, 1951, which comes under Part IVA thereof,

provides for the registration of associations and

bodies as political parties with the Election

Commission. Since the same will also have an

impact on what is indicated hereinbelow, the

provisions of Section 29A(1) are extracted below :

"29A. Registration with the Election

Commission of associations and bodies as

political parties. -- (1) Any association

or body of individual citizens of India

4

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."

4. Since the facts in all these matters are more

or less similar, we are treating W.P.(C)No.532 of

2008, filed by Desiya Murpokku Dravida Kazhagam, as

the lead case in this group of matters.

Incidentally, it may be indicated that SLP(C)

Nos.7379-80 of 2009 have been filed by the Election

Commission of India for quashing of the order of

the High Court of Andhra Pradesh directing the

Election Commission to consider allotment of a

common symbol to the Lok Satta Party and other

similarly situated unrecognized registered

political parties. Similarly, W.P.(C)No.463 of

2009 and SLP(C)No.23494 of 2009 have been filed by

certain registered unrecognized political parties

for a direction upon the Election Commission of

India to allot common election symbols to their

5

candidates in the ensuing elections to the State

Legislative Assembly. One of the States in

question is the State of Tamil Nadu, in respect

whereof Writ Petition (C) No.532 of 2008 has been

filed by Desiya Murpokku Dravida Kazhagam,

hereinafter referred to as "DMDK", & Anr. We have

been informed that the date for notifying the

election programme in the State of Tamil Nadu has

been fixed as 16th April, 2011 and the filing of

nomination papers for the election is said to be

scheduled between 19th and 26th April, 2011. All

other subsequent steps are to be taken thereafter.

5. Appearing in support of the Writ Petition, Mr.

K.K. Venugopal, learned Senior Advocate, submitted

that the Petitioner No.1 is a registered

unrecognized political party and the Petitioner

No.2 is a registered voter in the State of Tamil

Nadu. It was submitted that the DMDK contested 232

out of 234 constituencies in the 2006 Assembly

6

Elections in the State of Tamil Nadu, which were

the first elections which the party had contested

within 8 months of its formation, and, although, it

was an unrecognized political party, all its

candidates were allotted the "Nagara" symbol in 224

out of 232 constituencies. In respect of the

remaining 8 constituencies, the party candidates

were allotted the "Bell" symbol in 6 constituencies

and the "Ring" symbol in the remaining 2

constituencies. Mr. Venugopal submitted that the

party had secured approximately 8.33% of the total

valid votes polled in the State of Tamil Nadu, and

it ultimately emerged as the third largest party in

the State in terms of votes secured, without any

electoral alliance with any other party or

formation. Mr. Venugopal also submitted that the

President of the Petitioner Party, Shri Vijaya

Kant, contested the election from the Virudhachalam

Assembly under the "Nagara" symbol and won the seat

by a margin of 13,797 votes. Learned counsel

7

submitted that despite the large number of votes

that had been cast in its favour during the

Assembly Elections, the DMDK Party was able to win

only one seat in the Assembly Elections and that is

the Virudhachalam Assembly Constituency mentioned

hereinabove.

6. Mr. Venugopal also submitted that it was the

grievance of the Petitioner Party that inspite of

its reasonable performance in the State Assembly

elections, its prayer for recognition as a State

Party had been denied by the Election Commission of

India in view of Paragraph 6B of the Election

Symbols (Reservation and Allotment) Order, 1968,

hereinafter referred to as the "Election Symbols

Order, 1968".

7. In order to appreciate the submissions advanced

by Mr. Venugopal, it is necessary to refer to some

of the relevant provisions of the Election Symbols

Order, 1968. The said Order was made by the

8

Election Commission of India in exercise of the

powers conferred on it by Article 324 of the

Constitution read with Section 29A of the

Representation of the People Act, 1951, hereinafter

referred to as the "1951 Act", and Rules 5 and 10

of the Conduct of Election Rules, 1961, hereinafter

referred to as the "1961 Rules". The said Order

was promulgated in 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. Paragraph 4 of the Order

provides for allotment of symbols and stipulates

that in every contested election a symbol has to be

allotted to a contesting candidate in accordance

with the provisions of the Order and different

symbols are to be allotted to different contesting

candidates at an election in the same constituency.

9 8. Paragraph 5 of the aforesaid Order provides for

the classification of symbols and divides symbols

into two categories, namely, "reserved" and "free".

It indicates that a reserved symbol is a symbol

which is reserved for a recognized political party

for exclusive allotment to contesting candidates

set up by that party, whereas a free symbol is a

symbol other than a reserved symbol. At this

point, it may also be indicated that the Election

Symbols Order, 1968, underwent certain changes in

2000 and 2005. Prior to its amendment, Paragraph

6, as it stood when the Order was promulgated in

1968, inter alia, provides that for the

classification of symbols, political parties were

to be categorized either as "recognized" political

parties or "unrecognized" political parties and

that a political party would be listed as a

recognized political party in a State, if and only

if either of the conditions specified in Clause (A)

or the conditions in Clause (B) were fulfilled by

10

that party and not otherwise. Clause (A) makes it

imperative that such a political party would have

had to be engaged in political activity for a

continuous period of five years; and had at the

General Election in that State to the House of the

People or to the Legislative Assembly, for the time

being in existence and functioning, returned at

least one member to the House of the People for

every 25 members of that House or any fraction of

that number of that State; or at least one member

to the Legislative Assembly of that State for every

30 members of that Assembly or any fraction of that

number. Paragraph 6 was subsequently expanded into

Paragraphs 6, 6A, 6B and 6C by Notification No.56

dated 1st December, 2000. Paragraph 6A was again

revised on 14th May, 2005, and set down certain

conditions for recognition of a political party as

a State Party. Paragraph 6A, as amended in 2005,

provides as follows :

11 "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:

(i) At the last general election to the

Legislative Assembly of the State, the

candidates set up by the party have

secured not less than six percent of the

total valid votes polled in the State;

and, in addition, the party has returned

at least two members to the Legislative

Assembly of that State at such general

election; or

(ii) At the last general election to the

House of the People from that State, the

candidates set up by the party have

secured not less than six percent of the

total valid votes polled in the State;

and, in addition, the party has returned

at least one member to the House of the

People from that State at such general

election; or

(iii) At the last general election to the

Legislative Assembly of the State, the

party has won at least three percent of

the total number of seats in the

Legislative Assembly, (any fraction

exceeding half being counted as one), or

at least three seats in the Assembly,

whichever is more; or

(iv) At the last general election to the

House of the People from the State, the

party has returned at least one member to

the House of the People for every 25

12

members or any fraction thereof allotted

to that State."

As has been indicated hereinabove, the major

challenge in these Special Leave Petitions and Writ

Petitions is to the validity of this provision.

19. Paragraphs 6A and 6B set out conditions for the

recognition of a registered unrecognized party as a

National Party and a State Party and Paragraph 6C

deals with conditions for continued recognition as

a National or State Party. The outcome of the

Election Symbols Order, 1968, is that certain norms

have been laid down in order to minimize the number

of parties contesting an election since many

persons forming themselves into a political party

tend to take advantage of the other liberal

provisions of the Order.

20. Mr. Venugopal urged that even prior to the

Notification of 1st December, 2000, certain other

amendments had been effected to the Election

13

Symbols Order, 1968, in 1997 and 1999, whereby

Paragraphs 10 and 10A were substituted. For

instance, certain concessions are provided that if

a political party, which is recognized as a State

Party in some State or States, sets up a candidate

at an election in a constituency in any other State

or Union Territory in which it is not a recognized

party, then such candidate may, to the exclusion of

other candidates of the constituency, be allotted

the symbol reserved for that party in that State or

States, in which it is recognized as a State Party,

notwithstanding that such symbol is not specified

in the list of "free" symbols for such other State

or Union Territory, upon fulfillment of further

conditions, namely,

"(a) that an application is made to the

Commission by the said party for exclusive

allotment of that symbol to the candidate

set up by it, not later than the third day

after the publication in the Official

Gazette of the notification calling the

election;

14 (b) that the said candidate has made a

declaration in his nomination paper that

he has been set up by that party at the

election and that the party has also

fulfilled the requirements of clauses (b),

(c), (d) and (e) of paragraph 13 read with

paragraph 13A in respect of such

candidate; and

(c) that in the opinion of the Commission

there is no reasonable ground for refusing

the application for such allotment.

Provided that nothing contained in this

paragraph shall apply to a candidate set

up by a State Party at an election in any

constituency in a State in which that

party is not a State Party and where the

same symbol is already reserved for some

other State Party in that State."

21. Paragraph 10A makes similar concessions in

respect of candidates set up by an unrecognized

party which was earlier recognized as a National or

State Party. Mr. Venugopal submitted that

Paragraph 6A, as amended, was highly arbitrary and

negatively impacted upon the functioning and

development of a multi-party democracy. Learned

counsel submitted that the right to cast a vote

allows a voter to make an intelligent choice, but

15

unfortunately he is often unable to identify the

political party to which a candidate belongs in

addition to identifying a candidate. According to

Mr. Venugopal, it is the percentage of the votes

obtained at the previous elections which alone

should be the criteria for recognition of a State

Political Party and not the number of seats such

party wins. Mr. Venugopal showed us several

instances where even with a lower percentage of

votes than other parties, a political party has

come to power and has formed the Government. Mr.

Venugopal urged that rather than the number of

seats won, the number of votes polled by a State

Political Party should really be the yardstick for

recognition of a State Political Party.

22. It was submitted that the interim arrangement

which had been made by the order dated 27th March,

2009, could be continued for the present General

Elections as well.

16 23. Adopting Mr. Venugopal's submissions, Mr. Mukul

Rohtagi, learned Senior Advocate, appearing for the

Writ Petitioner, Kongunadu Munnetra Kazhagam, in

Writ Petition (C) No.315 of 2009, contended that in

the 2009 Parliamentary Elections the party had

contested 12 out of 39 Parliamentary seats and "Gas

Cylinder" as a symbol was allotted to all twelve

candidates. In fact, the identity of candidates

set up by the party came to be equated with the

"Gas Cylinder" symbol and not as a free symbol, so

much so that candidates who were provided with "Gas

Cylinder" as an election symbol in other

constituencies where the party had not put up any

candidate, benefitted and had polled a large number

of votes which they had never expected to get.

24. All the other learned counsel appearing for the

other Writ Petitioners and Special Leave

Petitioners, while adopting Mr. Venugopal's

submissions, in one voice urged that the candidates

17

to be put up by them as registered but unrecognised

political parties may be provided with a common

symbol in the constituencies in which they contest

and such symbol may not be made available to other

candidates as a free symbol. It was urged, as had

been urged by Mr. Rohtagi, that after an election,

voters come to associate the candidate of a party

with the symbol under which he had fought the

earlier election.

25. In reply, it was contended by Mr. Ashok Desai,

learned Senior Advocate, appearing for the Election

Commission that there were only a limited number of

election symbols available as free symbols to the

Election Commission and if all the registered

unrecognized parties were to be accommodated by an

interim arrangement in direct contrast to the

Election Symbols Order, 1968, framed by the

Election Commission, it would really amount to

achieving something by an interim order which it

18

could not achieve under the existing laws. Mr.

Desai submitted that in its wisdom, the Election

Commission had made certain Orders which, in its

view, would contain the vice of fragmentation of

seats leading to ultimate uncertainty in the House.

Mr. Desai contended that a great deal of thought

and deliberation had gone into the making of the

amendments in 2000 and 2005 in the Election Symbols

Order, 1968, which ought not to be diluted for the

purpose of making an interim arrangement as had

been done earlier.

26. As we have indicated hereinbefore, the major

challenge in these Writ Petitions and the Special

Leave Petitions is to the validity of paragraph 6A

of the Election Symbols Order, 1968, as it exists

today. Keeping the same in mind, we have looked

into the un-amended as well as the amended

provisions of the Election Symbols Order, 1968. As

on date, paragraph 6B as notified under

19

Notification No.56/2000/JUD-III dated 1st December,

2000, for the purpose of recognition of a State

Party is in force and it provides that in order to

be recognized 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 the candidates set up by it at the

last General Elections to the House of People or to

the Legislative Assembly of the State concerned had

secured not less than six per cent of the total

valid votes polled in that State at the General

Elections and in addition, it has returned at least

two members to the Legislative Assembly at the

State in the last General Elections to that

Assembly. Of course, the said notification is the

subject matter of challenge in the present

proceedings and is in existence by way of delegated

legislation. If interim arrangement made earlier

is to be continued it would be directly in

violation of the said provisions. Such an

20

arrangement cannot be made unless the operation of

the impugned provision is stayed. At this stage we

are not inclined to stay the impugned provision.

27. When the interim arrangements were made on 27th

March, 2009, the registered unrecognized political

parties before the Court were only three in number,

whereas presently many others have joined the

bandwagon. What we are required to consider at this

stage is whether despite the above, any prejudice

would be caused to any of the stakeholders in the

election process, if such prayer was allowed. It

would certainly be to the advantage of the

registered unrecognized political parties if they

were able to put up candidates on a common symbol.

On the other hand, if all registered unrecognized

political parties were to be provided with a common

symbol, prima facie, it would render the provisions

of the Election Symbols Order, 1968, completely

21

unworkable and destroy the very object it seeks to

achieve.

28. Having regard to the aforesaid two

possibilities, we are not inclined to make any

interim arrangement similar to that made on an

earlier occasion. The earlier interim arrangement

was possible on account of the lesser number of

parties, but in the present circumstances, the same

will not be workable in view of the number of

candidates who are likely to contest the elections

and are required to be provided with free symbols

in each constituency.

29. However, while we are not inclined to make any

interim arrangement regarding the allotment of

election symbols for the forthcoming General

Assembly Elections, we make it clear that this is

only a tentative view, which shall not, in any way,

affect the final outcome of the pending Writ

Petitions and Special Leave Petitions. We also

22

make it clear that this order will not prevent the

Election Commission from considering any

representation that may be made by the political

parties and from accommodating their prayer for a

common symbol, to the extent practically possible.

30. Let these eleven Writ Petitions and three

Special Leave Petitions be listed for final

disposal on 3rd May, 2011.

.............................................J.

(ALTAMAS KABIR)

.............................................J.

(CYRIAC JOSEPH)

New Delhi

Dated: 16.03.2011