Dr. Subramanian Swamy vs Election Commission Of India on 4 October, 2007

Delhi High Court
Dr. Subramanian Swamy vs Election Commission Of India on 4 October, 2007
Equivalent citations: AIR 2008 Delhi 19
Author: M Sharma
Bench: M Sharma, S Khanna


Mukundakam Sharma, C.J.

1. The present writ petition is filed by Dr.Subramanian Swamy, who claims himself to be the President of Janata Party.

2. By filing the said petition, the petitioner has challenged the constitutional validity of paragraph 10A of the Election Symbols (Reservation and Allotment) Order, 1968. Another prayer which is incorporated in the writ petition is that the aforesaid para 10A should be re-drafted in line with requirement of Article 14 of the Constitution of India. One of the contentions that were raised was that the Janata Party, although is not a recognised political party today, cannot be deprived of the exclusive use of its election symbol known as ‘Chakra Haldhar’, which was a reserved symbol of Janata Party when it was functioning as a recognised national political party.

3. It is an admitted position that the said Janata Party lost its status as a national party due to its inability to get requisite percentage of votes and seats in the Legislature in the general elections of 1996. De-recognition of the Janata Party as a national party is not under challenge. The petitioner has also not challenged the criteria fixed by the Election Commission. In fact Janata Party has ceased to be a recognised party both at the national level and at the state level. An order was passed on 27th September, 2000 by the Election Commission of India whereby Janata Party ceased to be a recognised as a state political party, consequent upon which it has also lost the right to the exclusive use of the aforesaid symbol of ‘Chakra Haldhar’. The writ petition was subsequently amended and an amended writ petition was filed, which was taken on record after allowing the prayer for amendment. In the said amended writ petition also the Constitutional validity of paragraph 10A of the Election Symbols (Reservation and Allotment) Order, 1968 is the principal issue, which is raised and is required to be decided by us in the light of the submissions made by Dr.Subramanian Swamy, who appeared in person and the submission of the learned Counsel appearing for the Election Commission of India.

4. In order to appreciate the pleas raised, it is necessary to extract below the provisions of para 10A of Election Symbols (Reservation and Allotment) Order, 1968.

10A. Concession to candidates set up by an unrecognised party which was earlier recognised as a National or State party – If a political party, which is unrecognised at present but was a recognised National or State party in any State or Union territory not earlier than six years from the date of notification of the election, sets up a candidate at an election in a constituency in any State or Union territory, whether such party was earlier recognised in that State or Union Territory or not, then such candidate may, to the exclusion of all other candidates in the constituency, be allotted the symbol reserved earlier for that party when it was a recognised National or State party, notwithstanding that such symbol is not specified in the list of free symbols for such State or Union Territory, on the fulfillment of each of the following conditions, namely:

(a) that an application is made to the Commission by the said party for the 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;

(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 fulfillled 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 the said party at an election in any constituency in a State or Union territory where the same symbol is already reserved for some other National or State party in that State or Union Territory.

5. It was submitted that a political party even if it is de-recognised by the Election Commission cannot be deprived the use of its symbol, which it was using when it was a recognised political party. Plea taken was that the Election Commission cannot deny exclusiveness of a symbol to a party, which, because of its long user, becomes associated with a party, soon after designating it as an unrecognised party, as it violates the provisions of Article 14 of the Constitution of India. Dr.Swamy fairly stated before the court during the course of his arguments that he has no intention to challenge the withdrawal of the recognition granted to the Janata Party by the Election Commission under the Election Symbols (Reservation and Allotment) Order, 1968, but his only grievance is that the Election Commission of India could not have denied to the Janata Party the exclusive use of the symbol of ‘Chakra Haldhar’, which by long use is identified with the Janata Party particularly in view of the fact that the same would amount to placing the party of the petitioner in parity with all un- recognised parties. It was submitted that the un-recognised parties which have all along been un-recognised cannot be put at par with the Janata Party as the said party stands altogether on a different footing by virtue of the fact that it was in the past a recognised party for a very long term, but subsequently due to turn of events has become an un-recognised party.

6. We are, therefore, required to consider the aforesaid pleas taken before us. A close look at the provisions of para 10A of the Order would indicate that the said provision was incorporated by amendment to the Order effective from 1st December, 2000. By the aforesaid amendment / inclusion of paragraph 10A certain concession in the matter of allotment of the earlier reserved symbols to the candidates put up by the de-recognised parties has been granted. The aforesaid concession, as it appears from the provision, has been granted for a period for six years from the date of de-recognition of the party. The rationale for granting the aforesaid concession is giving some breathing time to the political party to regain its status as a recognised party by showing better performance in the elections held during the next six years period.

7. Consequent upon the said amendment, the Janata Party enjoyed the benefit for six years, which came to an end effective from 29th June, 2006. It also transpires from the records available with us that pursuant to the order of this Court passed on 19th September, 2006, the petitioner approached the Election Commission on 20th September, 2006 requesting for a direction to allot symbol of ‘Chakra Haldhar’ to the candidates of the Janata Party in terms of paragraph 10A of the Election Symbols (Reservation and Allotment) Order, 1968 till the disposal of the present writ petition. The Election Commission considered the aforesaid prayer of the petitioner and on such consideration issued a letter on 28th September, 2006, whereunder the following order was passed:

The Commission has considered the request made by you. Paragraph 10A was introduced in the Symbols Order by an amendment in December, 2000, to avoid a situation where a recognised political party, on its de-recognition, suddenly loses the right to use the symbol. In fact, you yourself had made a similar submission for such a concession, in connection with the proceedings regarding withdrawal of recognition of the Janata Party in September, 2000. By virtue of the provisions of Paragraph 10A, a party which loses recognition is eligible to use its earlier reserved symbol at elections for a further period of six years from the date of withdrawal of recognition. Thus, a party gets sufficient time to contest elections on its earlier symbol and, if during the period of six years, it comes up with the required poll performance for recognition, the party will be granted recognition again, and with it the allotment of its reserved symbol. The Janata Party has been availing of the concession to use the symbol Chakra-Haldar during the past six years since losing the recognition, but, has not secured the requisite percentage of votes or number of seats for recognition, at any election during this period. The Commission considers that protection of the symbol for six years is sufficient and reasonable opportunity for the parties to contest elections and regain the recognition. Even after expiry of the six year period, as long as a party continues to exist as a registered party, the opportunity to contest elections and get recognition is always available to the party, the only difference being that, in such a situation, the candidates of the party will have to contest on a free symbol as any other registered unrecognised party.

8. There is no dispute that when Janata Party was recognised as a national party, it fulfillled all the conditions prescribed in para 6(2) and 7(1) of the Election Symbols (Reservation and Allotment) Order, 1968. Subsequently, however, it lost the recognition as a national party, which action is, however, not under challenge in this writ petition. As of now, admittedly the petitioner’s party does not satisfy and fulfill the conditions prescribed in paragraphs 6(2) and 7(1) for being recognised as a national party.

9. Therefore, the question that arises for our consideration is as to whether and if at all a party, which is de-recognised can still claim to have an exclusive symbol for itself which is right of a recognised national party. Can the petitioner claim that an unrecognised national party for last six years should be treated at par with a recognised party in respect of the election symbol.

10. The petitioner in person tried to equate the symbol of a political party with that of a trade mark. The said equation, in our considered opinion, is not valid and proper. A symbol cannot be identified with a trade mark of a political party, for the two concepts, namely, the concept of a symbol and a trade mark stand on two different footings altogether. The said comparison in our considered opinion is a mistake and cannot be accepted.

11. In the case of Janata Dal (Samajwadi) v. Election Commission of India , the Supreme Court has stated thus:

5. There is no dispute that when the appellant was recognised as a national party on 16-4-1991 it fulfillled the conditions prescribed in paragraphs 6(2) and 7(1) of the Symbols Order. It is also an admitted position that when the show cause notice was given by the Election Commission to the appellant as to why it should not be derecognised as a national party on the basis of the election results of the Legislative Assemblies in the States mentioned above in the months of April-June, 1991, the appellant did not fulfill the conditions prescribed in paragraphs 6(2) and 7(1) for being recognised as a national party. As such the question which is to be answered is as to whether once a political is recognised as a national party having fulfillled conditions prescribed for the same in the Symbols Order can it be derecognised as a national party under the provisions of the same Symbols Order?

6. It is true that there is no specific provision under the Symbols Order vesting power in the Election Commission after having recognised a political party as a national party to declare that such political party has ceased to be a national party, not being entitled to the exclusive use of the symbol allotted to it. But at the same time, it cannot be conceived that a political party having been recognised as a national party or State party as the case may be on having fulfillled the conditions prescribed in paragraph 6(2) shall continue as such in perpetuity although it has forfeited the right to be recognised as a national party or a State party. In paragraph 2(2) of the said Symbols Order it has been specifically provided that the General Clauses Act, 1897 shall as far as may be applicable in relation to the interpretation of the said order as it applies in relation to the interpretation of a Central Act. Section 21 of the General Clauses Act provides that where by any Central Act or Regulation, a power to issue notifications, orders, rules, or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction, and conditions if any to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued. As paragraph 2(2) of the order in clear and unambiguous term makes provisions of the General Clauses Act applicable to the Symbols Order, it need not be impressed that provisions of Section 21 of the General Clauses Act, also become applicable vesting power in the Election Commission which had issued the aforesaid order dated 16-4-1991 recognising the appellant as a national party to rescind the said order as appellant in the elections to the Legislative Assemblies of the States mentioned above ceased to fulfill the conditions prescribed in paragraph 6(2) of the Order read with para 7(1) thereof.

12. In our considered opinion, the aforesaid paragraphs are practically the answer to the issues raised by the petitioner herein. The symbol system is a creation of Election Commission of India and no political party has absolute right to have a symbol of its own choice. There is no dispute in respect of the fact that under the law only a candidate has a right to have a symbol. Therefore, a symbol depicts a political party to which the candidate belongs. There are two kinds of such symbols, one is a reserved symbol and the other is a free symbol. Reserved symbols are meant for the recognised political parties, who have the right to exclusive use of such symbols. Free symbols are available for use in the election by the candidates belonging to un-recognised parties or independent candidates. Rules 5(1) and 10(4) of the Conduct of Election Rules make provision that every candidate at an election shall be allotted a different symbol subject to such restrictions as the Commission may specify. In pursuance of the aforesaid provisions and in exercise of its plenary powers of superintendence, direction and control of elections, to Parliament and State Legislatures under Article 324 of the Constitution of India, the Election Commission of India has promulgated the aforesaid Order called the Election Symbols (Reservation and Allotment) Order, 1968. The said order provides for registration of political parties with the Election Commission of India and also provides the provisions for recognition of such registered political parties as recognised national and state parties. The said Order also provides and lays down the provision and the conditions on fulfillment whereof the parties could be recognised as national and state parties. The criteria for according recognition as a national or state political parties is the poll performance of the parties at the general election to the Lok Sabha and the State Legislative Assemblies in terms of votes polled by their candidates and the seats won by them. Under the aforesaid Order symbols are reserved only for recognised national and state parties. The other parties, who are not recognised national or state parties or have lost their recognition, as the case may be, because they have failed to secure the minimum percentage of votes or have failed to acquire minimum number of seats which are the pre-conditions for acquiring and securing a recognition, such parties do not have any reserved symbol of their own and they are allowed certain preferences over the independent candidates in the allotment of free symbols.

13. As stated hereinbefore, the Janata Party, although at one point of time was a recognised national party, lost the status subsequently as it could not fulfill the conditions of para 6A and 6B after the general elections in October, 1999 and, therefore, it ceased to be a recognised national or state party in September, 2000 upon the Order passed by the Election Commission of India on 27th September, 2000. However, it was given the benefit of the aforesaid amendment of paragraph 10A for a period of six years and on expiry of the aforesaid six years, it lost the concession. Therefore, it is established from the aforesaid fact that the writ petitioner enjoyed the benefit of paragraph 10A for a period of six years and on expiry of the said period, this petition is filed for declaring that the provisions of paragraph 10A are ultra vires to the Constitution of India and invalid.

14. We are unable to accept the contention of Dr.Swamy that paragraph 10A is in any manner arbitrary or unreasonable, or that the same is not in line with Article 14 of the Constitution of India. The aforesaid provision of paragraph 10A is equally applicable to all candidates set up in an election by parties un- recognised and de-recognised and six years have passed from the date of such de- recognition. The power of de-recognising a political party given to the Election Commission of India was upheld in the matter of Janata Dal (Samajwadi) v. Election Commission of India (supra).

15. The petitioner having availed of the benefit of paragraph 10A for a period of six years, now challenges the legality of the same immediately after the end of the period of six years, which has come to an end only on 26th September, 2006. The artificial classification, which is sought to be brought in by the petitioner that the Janata Party cannot be grouped with un-recognised registered parties, who have never been recognised, as such cannot be accepted as any further classification of un-recognised parties will itself be arbitrary and discriminatory. Paragraph 10A, in our opinion, gives sufficiently a long period for a political party to regain its status and recognition as a recognised party through its performance in the general elections during the aforesaid six years period. If some party is unable to do the same, we do not see as to how a political party which has been de-recognised and is now unrecognised can have a better claim than any other unrecognised party, which remains to be unrecognised throughout due to its performance. In our considered opinion, they should be treated equally and there should be no further classification amongst the said unrecognised political parties. Allowing a political party to retain its reserved symbol on a permanent basis without reference to its poll performance at the election would be discriminatory in relation to other registered unrecognised parties. If that is done, the same would lead to a situation where a political party would still retain a particular symbol even if it is declared unrecognised and reduced to a non-entity in the matter of poll performance and mandate of the electors. The same would also lead to an anomalous situation and would definitely be unfair to other registered unrecognised parties, who might have performed better and got better mandate of the electors in terms of number of votes polled and seats won at election as compared to the Janata Party. In Kangshari Haldar v. State of W.B. the Supreme Court held as under:

The result of these decisions appears to be this: In considering the validity of the impugned statute on the ground that it violates Article 14 it would first be necessary to ascertain the policy underlying the statute and the object intended to be achieved by it. In this process the preamble to the Act and its material provisions can and must be considered. Having thus ascertained the policy and the object of the Act the court should apply the dual test in examining its validity: Is the classification rational and based on intelligible differentia; and has the basis of differentiation any rational nexus with its avowed policy and object? If both these tests are satisfied the statute must be held to be valid and in such a case the consideration as to whether the same result could not have been better achieved by adopting a different classification would be foreign to the scope of the judicial enquiry.

16. The same view was also upheld by the Supreme Court in State of Bihar v. Sachidanand Kishore Prasad Sinha and also followed in Saraswat Coop. Bank Ltd. v. State of Maharashtra

17. The contentions raised by the petitioner are found to be without any merit and are rejected. The writ petition also consequently stands dismissed.

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