ORDER, 1968 Paras 6A & 6B – ELECTION SYMBOLS – GRANT OF – Petitioner, an unrecognized registered party sought for allotment of common symbol – Election Commission refused to allot exclusive common symbol as the petitioner was not a recognised party – conditions in Paras 6A and 6B to be satisfied – Petitioner, having not satisfied the conditions is not entitled for exclusive symbol – rejection of request by Election Commission valid and lawful.
Held:
In view of paras 6 and 7 of the Symbols Order, 1968, the election symbols reserved only for those political parties which after registration fight a general election and become eligible for recognition as National or State parties, on the basis of their poll performance as prescribed in the Symbols Order. The registered unrecognised political parties get only a preference in the matter of allotment of unreserved symbols to their candidates over the other independent candidates and such allotment is made by the returning officer at the time of election in respective constituencies. Therefore, the unrecognised party by the Election Commission has no right to insist on the allotment of a particular symbol either to the party to the candidates sponsored by it.
Writ Petition dismissed.
ORDER
H.L. Dattu, J.
1. “Kannada Nadu Party” represented by its President Sri Rathnapal A. Shetti is the petitioner before this Court. In this petition filed under Articles 226 and 227 of the Constitution, petitioner seeks a writ of certiorari, to quash the impugned communication of the Election Commission of India to the petitioner bearing No. 56/54/ 2003/J.S.III/1376 dated 20-1-2004, wherein the Commission has rejected the request of the petitioner for allotment of common symbols for its candidates in the ensuing elections to the House of the People and Legislative Assembly of the State of Karnataka.
2. On an application filed by the petitioner under Section 29-A of the Representation of the People Act, 1951, (‘Act 1951’ for short) for its registration as a political party, the Election Commission of India has registered the petitioner — “Kannada Nadu Party” as a political party for the purpose of the Act, 1951. The intimation of registration issued by the Election Commission to the petitioner vide its communication dated 16-9-2003 is as under :
“GRAM: ELECCOM
NEW DELHI FAX 3713412
SECRETARIAT OF THE
ELECTION COMMISSION OF INDIA
NO. 56/54/2003-J.S.III
DATED 16-9-2003.
NIRVACHAN SADAN
ASHOKA ROAD.
NEW DELHI-110
TO
THE PRESIDENT
KANNADA NAADU PARTY,
GIRIRAJ ANNEXE,
CIRCUIT HOUSE ROAD,
HUBLI 580 029,
KARNATAKA
Subject:– “Kannada Naadu Party” –Registration under Section 29A of the Representation of the People Act, 1951, as a Political Party — matters regarding.
Sir,
I am directed to state that the Election Commission of India, after having considered your application, dated nil for registration of “Kannada Naadu Party” as a political party and the documents produced in support of the statements/averments made/ contained in the said application and the submissions made by authorised representatives of the party before the Commission on 15-9-2003 in respect of the said application, has registered the “Kannada Naadu Party” as a political party under Section 29A of the Representation of the People Act, 1951 on and with effect from 15-9-2003.
2. As provided in Sub-section (9) of Section 29A of the Representation of the People Act, 1951, the party shall communicate to the Commission without delay any change in its name, head office, office-bearers, address or in any other material matters.
3. It may be noted that the registration will not entitle the party to the reservation of any exclusive symbol for it. However, the candidates duly set up by the party at an election will be entitled to benefits of preference over independent candidates under paragraph 12 of the Election Symbols (Reservation and Allotment) Order, 1968.
Yours faithfully,
Sd/-
(A. K. MAJUMDAR)
SECRETARY
No. 56/54/2003-J.S.III/
Dated 16th September, 2003.
Copy to the Chief Electoral Officers/State Election Commissioner of all States and Union Territories.
Sd/-
(A. K. MAJUMDAR)
SECRETARY”
3. After its registration as a political party, petitioner by its request letter dated 9-1-2004 has made a request to the Election Commission, to allot common symbols for the candidates contesting in the ensuing elections to the House of the People and Assembly elections during the year 2004. In response to the request so made, the Election Commission, relying on the provisions of the Election Symbols (Reservation and Allotment) Order, 1968′ (‘Symbols Order’ for short), by its communication bearing No. 56/54/2003/J.S.III/1376 dated 20-1-2004 has informed the petitioner that their request for allotment of common symbols cannot be considered for the reasons stated therein. The communication of the Election Commission requires to be noticed and therefore, it is extracted and it is as under :
“ELECTION COMMISSION OF INDIA
NIRVACHAN SADAN,
ASHOKA ROAD, NEW DELHI.
No. 56/54/2003/J.S.III/1376
Dated 20-1-2004
To
The President,
Kannada Naadu Party,
Giriraj Annexe, Circuit House Road,
Hubli 580 029.
Karnataka.
Subject:– Registered unrecognised political parties — Request for reservation/exclusive allotment of an election symbol — Regarding.
Sir,
I am directed to refer to your letter dated 7-1-2004 on the subject cited, and to state that the election symbols are reserved for exclusive allotment to only those parties that have been recognised by the Election Commission either as National Parties or State Parties under the provisions of paras 6A and 6B of the Elections Symbols (Reservation and Allotment) Order, 1968.
Your party is a registered unrecognised political party and, therefore, is not entitled for either reservation or exclusive allotment of any election symbol.
The candidates set up by registered unrecognised political parties shall have to choose one of the symbol included in the list of free symbols. Allotment of symbol in such cases is done by the Returning Officer of the constituency in accordance with the provisions of the Symbols Order, 1968 referred to above. The candidates set up by your party will however be given preference over independent candidates at the time of allotment of symbols.
The Commission has not approved the request for amendment of the provision of the symbols order.
Yours faithfully,
Sd/-
(K. F. WILFRED)
UNDER SECRETARY.”
4. The communication so issued by the Election Commission is the subject-matter of this writ petition before this Court. While considering the issues raised in this petition, I intend to keep in my view, that the allotment of symbols to candidates forms part of, and is one of the important stages in the electoral process and the bar against the interference by Courts in electoral matters under Article 329(b) of the Constitution of India.
5. Sri Anant Mandagi, learned Counsel appearing for the petitioner would contend that there is no provision in the Symbols Order, 1968, for allotment of exclusive symbols to any registered political party, but at the same time, there is no prohibition for the Election Commission to exercise its power to allot common symbol to the candidates of the petitioner’s political party, in view of para 18 of the Symbols Order, 1968. It is further contended that while taking the decision that the petitioner is ineligible for a common symbol has proceeded on a wrong assumption that the Symbols Order does not authorise the Election Commission to allot a common symbol to a party, which is not recognised by the Commission either as a National or a State party and thereby has committed a grave error while taking a decision on the application filed by the petitioner, for the reason, it has ignored the fact that Article 324 of the Constitution operates in all areas left unoccupied in legislation and dehors the provisions of Symbols Order, 1968, it has sufficient powers to allot common symbol to the candidates set up by the petitioner’s political party for the forthcoming elections to the House of the People and State Assembly Elections. Lastly, the learned Counsel would submit that the Election Commission despite rejecting the prayer of the parties for recognising them as National or State Party, has given them limited concession for contesting in the general elections on a common symbol. The same concession is not extended to the petitioner and therefore the decision of the Commission is arbitrary. In aid of this submission, the learned Counsel relies upon certain observations made by the Election Commission on a petition filed by West Bengal Trinamool Congress for its recognition as a State Party in West Bengal dated 30-12-1997 and also the observations made by the Apex Court in the case of All Party Hill Leaders Conference, Shillong v. Captain W. A. Sangma. , and in particular to para 29 of the judgment. Before I proceed further, at this stage, let me notice and extract the observations made by the Apex Court in the said case. It is as under;
“29. For the purpose of holding elections, allotment of symbol will find a prime place in a country where illiteracy is still very high. It has been found from experience that symbol as a device for casting votes in favour of a candidate of one’s choice has proved an. invaluable aid. Apart from this, just as people develop a sense of honour, glory and patriotic pride for a flag of one’s country, similarly great fervour and emotions are generated for a symbol representing a political party. This is particularly so in a parliamentary democracy which is conducted on party lines. People after a time identify themselves with the symbol and the flag. These are great unifying insignia which cannot all of a sudden be effaced.”
6. To decide the legal issue canvassed by the learned Counsel for petitioner, first, let me notice the reasons assigned by the Election Commission for rejecting the request made by the petitioner for allotment of common symbol. According to them, though the petitioner has been registered as a political party, as envisaged under Section 29-A of the Representation of the People Act, 1951, they have not yet recognised the petitioner either as a National Party or State Party under the provisions of paras 6-A and G-B of the Symbols Order, and therefore, they are not entitled for either reservation or exclusive allotment of any election symbol. Therefore, the reliance of the Election Commission for rejecting the request of the petitioner is primarily based on the language employed in the Symbols Order. Therefore, those provisions requires to be noticed and they are as under :
“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 political party shall be treated as recognised 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 last general election in that State to the House of the People, or, as the case may be, to the Legislative Assembly of the State, 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 that 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 last general election in the State to the House of the People, or as one case may be, to the Legislative Assembly of the State, 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.”
7. Political parties are required to register themselves with the Election Commission under Section 29-A of Representation of the People Act.
8. Prior to promulgation of the Symbols Order, there was no provision either in the Act or the Rules for recognition of political parties. All the orders granting recognition to the parties either as National or State Parties were issued by the Election Commission in exercise of its powers under Article 324 of the Constitution read with Rule 5 of the Representation of the People (Conduct of Elections and Election Petitions) Rules, 1951.
Rule 5 of the Rules merely provided that the Election Commission shall publish a list of symbols and may add to or vary that list as it may like but there was no mention about the political parties.
9. 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. The Election Commission also considered it appropriate and desirable that there should also be a provision for registration of political parties and that such registration should be made condition precedent for recognition of any party for the purposes of Election Law. Accordingly, Election Commission, promulgated on 31st August 1968 an order called The Election Symbols (Reservation and Allotment) Order, 1968, which provides for registration of the parties, their recognition and all matters connected therewith, together with the provisions for specification, reservation, choice and allotment of symbols at the elections.
Para 2(h) of the Order defines ‘political party’ to mean an association or body of individual citizens of India registered with the Commission as a political party under Section 29-A of the Representation of the People Act, 1951.
Para 4 of the Order provides for allotment of Symbols. The said provision authorises the Election Commission to allot separate Symbols in every contested elections to a contesting candidate in accordance with the provisions of Symbols Order and different symbols shall be allotted to different contesting candidates at an election in the same constituency.
Para 5 of the Order, provides for classification of symbols and for the purpose of the Order, the Symbols are either reserved or free. 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.
Para 6 of the Order provides for classification of political parties. This para authorises the Election Commission to recognise political parties either as recognised political parties or unrecognised political parties.
Sub-para (2) of para 6 provides the criteria for recognition of a political party as a recognised political party in a State, if and only if either of the criteria specified in Clause (A) are, or the condition specified in Clause (B) is fulfilled by that party and not otherwise. Number of conditions are specified under Clauses (A) and (B) and a political party is obliged to fulfil those conditions without any exception for it to be recognised as a registered political party. One of the conditions is that after its registration as a political party, the party must have engaged in political activity for a continuous period of five years and contested any general election.
Para 7 of the Order provides for categorisation of political parties.
Para 18 of that Order vests in the Election Commission all residuary powers to remove any difficulty arising in the implementation of that Order or to deal with a situation for which no provision or sufficient provision is made in that Order.
10. The validity or otherwise of the Symbols Order came up for consideration before the Apex Court in the case of All Party Hill Leaders Conference v. Captain W.A. Sangma, , and in that, the Apex Court as pleased to observe that the Symbols Order is a compendium of directions of the Election Commission in the shape of general provisions to meet various kinds of situations appertaining to elections with reference to symbols. The Supreme Court traced the power to issue such order by the Election Commission to Article 324 of the Constitution.
11. The constitutional validity of the Symbols Order once again came up for consideration before the Apex Court in the case of Kanhiyalal Omar v. R.K. Trivedi, . The Apex Court while upholding the constitutional validity of the Symbols Order was pleased to state that even if any part of Symbols Order could not be traced to Rule 5 and Rule 10 of the 1961 Rules, it can be easily traced to the reservoir of power under Article 324(1) of the Constitution which empowers the Commission to issue all directions necessary for the purpose of conducting smooth, free and fair elections.
12. Now the question for consideration is whether petitioner merely because it has registered itself as a political party is entitled for reservation and allotment of an exclusive symbol for it? And whether the Election Commission is justified in rejecting the request of the petitioner registered as a political party but not yet recognised either as a National or a State party for reservation of an exclusive symbol for it under the provisions of Symbols Order?
13. Facts are not in dispute. The petitioner has registered itself as a political party as required under Section 29A of the Represervation of the People Act, 1951. It has not yet firstly, engaged in political activity for a continuous period of five years and secondly, not yet participated in any Assembly or Lok Sabha elections after its formation and registration and therefore its poll performance is still unknown.
14. In view of paras 6 and 7 of the Symbols Order, 1968, the election symbols reserved only for those political parties which after registration fight a general election and become eligible for recognition as National or State parties, on the basis of their poll performance as prescribed in the Symbols Order. The registered unrecognised political parties get only a preference in the matter of allotment of unreserved symbols to their candidates over the other independent candidates and such allotment is made by the returning officer at the time of elections in respective constituencies. Therefore, the unrecognised party by the Election Commission has no right to insist on the allotment of a particular symbol either to the party or the candidates sponsored by it. Therefore, both the questions, which I have raised for my consideration and decision, requires to be answered in the negative and against the petitioner.
15. However, Sri. Anant Mandagi, learned counsel for petitioner would contend, that though the Election Commission had not recognised the West Bengal Trinamool Congress as a recognised political party but still had allotted an exclusive symbol to the party, while considering its request for its recognition as a state party in West Bengal and reservation of an exclusive symbol for it under the provisions of Symbols Order, 1968 and that treatment/ concession is not given to the petitioner and therefore, the decision making process of the Election Commission is arbitrary and discriminatory and therefore, interfere with the impugned communication is required to be made by this Court in exercise of its powers under Article 226 of the Constitution.
16. In my view, after going through the order made by the Election Commission in West Bengal Trinamool Congress dated 30-12-1997, the fact situation in the said case is totally different from the facts and circumstances pleaded in the present case. In fact, in the said case, the Election Commission, keeping view paras 6 and 7 of the Symbols Order and also the policy decision it had taken earlier observes that the request of West Bengal Trinamool Congress as a State party in West Bengal cannot be maintained and sustained and therefore, rejects the request made in the application. However, taking into consideration the standing of the political party and its poll performance in the Assembly and other municipal elections held earlier, had granted limited concession of contesting the general elections for the Lok Sabha on a common symbol in West Bengal. Even while giving this limited concession it has elaborately discussed the provisions of the symbols order and then observes, that, in order to seek recognition as a State party and for reservation of an exclusive symbol for it, the party/parties under the provisions of paras 6 and 7 of the Symbols Order are obliged to contest in any general election after their formation and registration. However grants a limited concession of contesting the election under a particular symbol, keeping in view its earlier decisions in the case of Rashtriya Janata Dal and All India Janata Party. There again it observes as under :
“7. In the above referred cases of Rashtriya Janata Dal and All India Rashtriya Janata Party, though the Commission rejected the prayer of those parties for grant of recognition as National or State party, the Commission, nevertheless, considered sympathetically their alternative prayer to allow them to have a common symbol on the basis of which they may contest the coming general election to the House of the People. The Commission observed that those parties had a substantial following, which consisted of a large number of sitting and former MPs and MLAs, who, but for the technical objection that they had not contested elections on the ticket of those very parties, answered the test laid down in the Symbols Order for recognition under paras 6 and 7 of the Symbols Order. Having regard to all material considerations and peculiar facts and circumstances of those cases, and particularly the fact that the general election to constitute the 12th Lok Sabha is on the anvil and that the Commission has, in the past, in respect of certain political groups, not applied the provisions of para 6(2} and 6(3) of the Symbols Order with full vigour and given them recognition, the Commission felt that it would not be fair, at this juncture, to make a total and compete departure from the past, and leave those parties to fight ensuing elections on different symbols on different constituencies. Therefore, the Commission, despite the rejection of the prayer of those parties for recognition as a National or State party, has given them the limited concession of contesting forthcoming general election to the House of the People (for constituting the 12th Lok Sabha) on a common symbol.”
The Election Commission further observes; –
“11. For the removal of doubt, the Commission would also like to clarify that the above directions are being issued by the Commission, in exercise of its plenary powers of superintendence, direction and control, inter alia, of all elections to Parliament and State Legislature conferred on it by Article 324 of the Constitution read with para 18 of the Symbols Order. That para expressly empowers the Commission to issue instructions and directions, inter alia, for the removal of any doubt or difficulty which may arise in relation to the implementation of any provisions of that Order and in relation to any matter with respect to the allotment of symbols for which that Order makes no provision or makes insufficient provision and provision is in the opinion of the Commission necessary for smooth and orderly conduct of elections. The Symbols Order has been held by the Supreme Court as a compendium of the Commission’s instructions and directions. (Sadiq Ali v. Election Commission, ).”
17. In view of the above, as I have already observed that the decision of the Election Commission in West Bengal Trinamool Congress case decided by the Election Commission on 30-12-1997 would not come to the aid of the petitioner.
18. In conclusion, in view of the specific provision of paras 6 and 7 of the Symbols Order, the constitutional validity of which has been upheld by the Apex Court, a party or parties seeking the status of recognised party under Symbols Order and to take benefit under the said order, the condition precedent which requires to be fulfilled by the party is that the party must have engaged in political activity for a continuous period of five years and contested any general election after its formation and registration.
Since in the present case the petitioner has not participated in any general election after its formation and registration, the petitioner is not entitled to the relief sought in the writ petition.
19. Accordingly, the following;
ORDER
I. Petition in rejected without reference to the respondents. Ordered accordingly.