Hon'ble Saurabh Lavania,J.
Heard Ms. Shraddha Tripathi, petitioner who is a practicing Advocate of this Court, in person, Shri O P Srivastava, learned Senior Counsel appearing for the Election Commission of India i.e. opposite party no. 1 herein. None has appeared for opposite parties no. 2 to 7.
This is a petition in public interest. The relief clause of the petition reads as under:-
1.) To issue writ of Mandamus, directing the respondent no. 1, the Election Commission of India to order/directions to all the recognized political parties to immediately stop and restrain from using the Reserved Election Symbols themselves (In the Party name) as their Party Trade-Mark, and for the 'Purpose and Period' beyond the 'Contested Election'.
2.) To issue writ/order or direction in the nature of Mandamus to the respondent no. 1 to strictly allow the use and operation of reserved symbols only the 'contesting candidates' set-up by 'Recognized Political Parties' in the notified elections.
3.) Such other writs, order or direction as this Hon'ble Court may feel just and proper in the interest of justice and instant circumstance to achieve the goal of 'Free and Fair' elections as per law.
In nutshell, the argument of the petitioner appearing in person is, firstly, that the Election Commission of India does not have any authority to allot symbols to a recognized political party while not allotting the same to an unrecognized political party. Secondly, the allotment of symbols is only to a contesting candidate as mentioned in Paragraph 4 and 5 of the Election Symbols (Reservation and Allotment) Order, 1968 (herein after referred as Order, 1968) and Rule 10(4) of the The Conduct of Election Rules, 1961 (herein after referred as Rules, 1961), as such, allotment of such symbols, even if in the garb of reserving it, to recognized political parties much prior to the stage is reached under Section 38 of the Representation of Peoples Act, 1951 (hereinafter referred as Act, 1951) when a candidate becomes a contesting candidate, is illegal, without jurisdiction and also discriminatory viz-a-viz the candidates of an unrecognized political party and also independent candidates to whom the symbols allotted to them are informed barely couple of days prior to the date of election, meaning thereby, on account of this arbitrary and illegal action, on one hand, the recognized (National and State) parties steal a march over the unrecognized political parties and independent candidates as they have benefit of the symbol reserved/allotted for them much earlier, which they continue to use irrespective of the fact whether an election is taking place or not or is to take place or not, whereas the candidates setup by an unrecognized political party and independent candidates do not have this benefit. This according to her, is detrimental to the cause of electoral democracy.
Thirdly, she contended that the powers under Article 324 can only be exercised in terms of the Act, 1951, the Rules, 1961 and the Order, 1968, not otherwise. The so called plenary powers available to the Election Commission of India under Article 324 cannot be stretched to act whimsical, arbitrary, in a discriminatory manner or to take decisions not within the domain of the Election Commission of India. In this regard, she placed reliance upon a decision of Supreme Court of India reported in AIR 1984 SC 921, A.C. Jose Vs. Sivan Pillai and others. In the said case while in some polling booths, votes were allowed to be cast by the Election Commission of India by use of ballot papers, in other polling booths they were directed to be cast through machines. In this context, the Supreme Court of India opined that if relevant Acts and Rules governing the conduct of elections cover a particular field then it is not open to the Election Commission of India to violate the same. In this very context, powers of the Election Commission of India under Article 324 were considered. The Supreme Court categorically held that the High Court fell into an obvious fallacy by acceptance of deposition that direction of the Commission was intended to operate in an uncovered filed. When the Act and the Rules prescribed a particular method of voting the Commission should not innovate a new method and contend that use of mechanical process was not covered by the existing law and therefore did not come in conflict with the law in the field. In this context, powers of the Election Commission of India under Article 324 were considered and it was held that the same could not be used to devise a new method of voting when the Act and the Rules prescribed the method for the same.
Fourthly, she contended that symbol is not allotted to a recognized political party but is reserved for it but the Election Commission of India has veritably proceeded on the premise as if such symbols are allotted to a recognized political party and have allowed them to use the symbol irrespective of the fact as to whether any elections are being held or are to be held in the near future, which according to her is against the provisions and scheme of the Order, 1968. She says that Paragraph 17 of the said Order, 1968 cannot be read in isolation and has to be read in the context of entire Order, 1968 and the other provisions as also the scheme contained therein which according to her lead to only one inference that the symbols are to be allotted to a contesting candidate after the election is set in motion and not prior to it. Therefore, reserving of a symbol for a recognized political party cannot be treated as allotment of symbol nor can the said political party use the symbol reserved for it when there are no elections taking place or when they have not been notified.
On being asked as to what prejudice was being caused to the public in this regard as this is a Public Interest Litigation, her contention was that this discriminates against the unrecognized, though registered, political parties and the independent candidates, as, the use of symbol by recognized political party allows them to score a march in seeking votes of the people at large as they have enough time to advertise their symbols and seek votes etc. as also seek support for themselves, whereas, unrecognized political parties and independent candidates do not have this benefit, as, no symbol is reserved for them nor are they allotted a symbol except barely a few days prior to the day of voting i.e. after they have filed their nomination. This had an adverse bearing on Democratic politics. She laid great emphasis on use of the word 'every candidate' in Rule 10 (6) of the Rules, 1961 to contend that the intent of the Order is that irrespective of the fact as to whether a candidate is of a recognized political party or an unrecognized political party or an independent candidate, he should be assigned a symbol on the same terms without any discrimination. She took us through various provisions of the Order, 1968 as also Section 29 A and 38 of the Act, 1951, Rule 5 and 10 of the Rules, 1961 to contend that the said provisions did not confer any power upon the Election Commission of India to allot a symbol to a recognized political party much prior to the onset of elections, even if in the garb of reserving it for such political parties.
Shri O.P. Srivastava, learned Senior Counsel appearing for the Election Commission of India contended that grievance of the petitioner , raised by her through a representation, was decided by the Commission on 08.07.2016 and the said order has been brought on record as Annexure No. - CA-1 to the counter affidavit, inspite of it, she has not challenged the same. He also submitted that none of the provisions of law including the provision contained in Paragraph 17 of the Order, 1968 have been challenged in these proceedings, therefore, he says that the petitioner's contention has no legs to stand especially, in view of the provisions contained in Article 324 of the Constitution of India, as also, the object and purpose which Order, 1968 seeks to achieve. He also invited attention of the Court to the order dated 08.07.2016 by which reasons for such action has been communicated to the petitioner. The said order refers to the Order, 1968. Further, it goes on to say that a party which is allotted a symbol as reserved symbol on fulfillment of the criteria prescribed in the Symbol's Order can use the symbol on regular basis as long as the party retains its recognition. There is no merit in the plea that a recognized party having a reserved symbol cannot use its symbol in the party office and on other occasions, meetings etc. outside the election period. The said order draws the attention of the petitioner to a decision of the Supreme Court of India in the case of All Party Hill Leaders' Conference, Shillong Vs. Captain W.A. Sangma and others, AIR 1977 SC 2155; The order goes on to refer to another decision of the Supreme Court of India in Kanhiya Lal Omar Vs. R.K. Trivedi and others, AIR 1986 SC 111; wherein observations have been made as to the importance of election symbols and its use by political parties. He has also placed reliance upon a decision of Supreme Court of India reported in 2008 (14) SCC 318, Subramanian Swami Vs. Election Commission of India through its Secretary in this regard. He has also referred to another decision of the Supreme Court of India rendered in the case of Rama Kant Pandey Vs. Union of India, AIR 1993 SC 1766;.
In response, the petitioner submitted that none of the case laws cited by the Counsel for the opposite party apply to the case at hand.
India is a constitutional democracy. Its democracy is based on a multi-party system. Political parties compete at the elections to form a democratically chosen Government. Elections are the pillar of any democracy. Part XV of the Constitution of India specifically deals with Elections. Article 324 contained therein refers to superintendence, direction and control of elections to be vested in an Election Commission. It goes on to state that superintendence, direction and control of the preparation of the electoral roles 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 i.e. the Election Commission of India. It is the Constitution which is the source of the power of Election Commission. Article 324 vests the Election Commission of India with the powers of superintendence, direction and control not only of preparation of electoral roles for but also the conduct of elections to Parliament and to the legislature of every State as also elections to the offices of President and Vice-President under the Constitution. Thus, the exercise of power by the Election Commission of India flows from this provision.
All wings of the Government as also various other constitutional bodies including the Election Commission of India derive their power from the Constitution of India.
Now, the Parliament of India has enacted the Representation of Peoples Act, 1951 to provide for the conduct of elections of the houses of Parliament and to the house or houses of the legislature of each State etc. of the Act, 1951.
Part IV-A of the Act, 1951 deals with registration of political parties. Section 29A refers to registration with the Election Commission of associations and bodies as political parties. As per Sub-section 1 thereof, 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 political party for the purposes of this Act. Thereafter, the provision goes on to lay down the modalities for such registration and that the decision of the Commission in this regard shall be final. Section 2 (1) (f) defines "political parties" to mean an association or a body of individual citizens of India registered with the Election Commission as a political party under Section 29A which has already been referred hereinabove.
Part V of the Act, 1951 refers to conduct of elections. Chapter 1 refers to nomination of candidates. Section 33 refers to deliverance of a nomination paper completed in the prescribed form and signed by the candidate and by elector of the constituency as proposer to the returning officer as per the terms mentioned therein. Proviso to Section 33 goes on to state that a candidate not setup by a recognized political party shall not be deemed to be duly nominated for election from a constituency unless the nomination paper is subscribed by 10 proposers being electors of the constituency, meaning thereby, apart from other things, the Act itself draws a distinction between a candidate setup by a recognized political party and one who is not so setup and prescribes different conditions regarding them even for the purposes of submission of nomination papers. Section 35 deals with notice of nominations and the time and place for their scrutiny. Section 36 deals with scrutiny of nomination papers. Sub-section 2 of Section 36 empowers the returning officer to reject the nomination papers on the grounds mentioned therein. Sub-section 8 of Section 36 provides that immediately after all the nomination papers have been scrutinized and decisions accepting or rejecting the same have been recorded, the returning officer shall prepare a list of validly nominated candidates, that is to say, candidates whose nominations have been found valid, and affix to his notice board. Section 37 speaks of withdrawal of candidates. Section 38 refers to publication of list of contesting candidates. As per Sub-section 1 of Section 38, immediately after the expiry of the period within which candidatures may withdrawn under Sub-section 1 of Section 37, the returning officer shall prepare and publish in such form and manner as may be prescribed, a list of contesting candidates, that is to say, candidates who were included in the list of validly nominated candidates and who have not withdrawn their candidature within the said period. Sub-section 2 of Section 38 is important for our purposes, as, for the purpose of listing the names under the Sub-section 1 the candidates are to be classified as (i) candidates of recognized political parties; (ii) candidates of registered political parties other than those mentioned in Clause (i); (iii) other candidates; and under Sub-section 3 the said 3 categories are to be arranged in the order specified therein. Thus candidates of recognized political parties, registered though not recognized political parties and other candidates are classified separately.
Now, we may refer to Rules, 1961 which have been made under Section 169 of the Act, 1951 by the Central Government. The nomination paper referred in the provisions of the Act, 1951 as referred hereinabove are appended to these Rules, 1961 and they are referred in Rule 4 read with Rule 2 (1) (g). Part 1 of the nomination paper (Form 2A) relates to candidates setup by recognized political parties. Part 2 relates to a candidate not setup by recognized political parties. Part 3 which is relevant contains Clause C (i) in which the candidate is required to declare that he is being setup at the election by a party giving its name which is a recognized National political party/State party in the State and that the symbol reserved for the above party be allotted to him, meaning thereby, Rule 4 of the Rules 1961 when read conjointly with Form 2A referred therein speaks of symbol being reserved for a recognized party, be it National or State, therefore, the contents of the form have to be read as Part of Rule 4. Thus, there is a reference to reserving of symbol for a recognized National or State party in the Rules itself which have been made by the Central Government. We may also refer to Clause C (ii) of the same Part 3 of Form 2A which requires a candidate not setup by a recognized political party to make a declaration that he was being setup by a party giving its name which is a registered/unrecognized political party or that he was contesting the election as an independent candidate, striking off whichever was not applicable and that the symbols he had chosen are required to be mentioned in preferential order giving 3 options. Thus, Form 2A itself draws a distinction between recognized and unrecognized political parties as also independent candidates and the symbols which they are required to choose. In the case of a candidate setup by a recognized political party, the symbol reserved for such political party is required to be mentioned whereas in the case of a candidate setup by an unrecognized political party or an independent candidate, they have to offer 3 options in preferential order for being allotted as symbols. The note to the said form clearly mentions - a "recognized political party" means a political party recognized by the Election Commission under the election symbols (reservation and allotment) Order, 1968 in the State concerned.
Now, Rule 5 of the Rules, 1961 refers to "symbols for elections in Parliamentary and Assembly constituencies". Sub-rule 1 thereof says, the Election Commission shall by notification in the Gazette of India and in the official Gazette of each State specify the symbols that may be chosen by the candidates at election in parliamentary or assembly constituencies and the restrictions to which their choice shall be subject. Now, Sub-rule 2 of Rule 5 states that subject to any general or special direction issued by the Election Commission either under Sub-rule (4) or Sub-rule (5) of Rule 10, where at any such election, more nomination papers than 1 are delivered by or on behalf of a candidate, the declaration as to symbols made in the nomination paper first delivered, and no other declaration as to symbol, shall be taken into consideration under Rule 10 even if that nomination paper has been rejected.
Now, Rule 10 of the Rules, 1961 refers to "preparation of list of contesting candidates". Sub-rule 1 speaks of the list of contesting candidates referred to in Sub-section (i) of Section 38. Sub-rule 4 says that an election in a parliamentary or assembly constituency where poll becomes necessary, the returning officer shall consider the choice of symbols expressed by the contesting candidates in their nomination papers and shall subject to any general or special direction issued in this behalf by the Election Commission allot the symbols as per Clause (a), (b) contained therein. Sub-rule 5 thereof goes on to state that allotment by the returning officer of any symbol to a candidate shall be final except where it is inconsistent with any direction issued by the Election Commission in this behalf in which case the Election Commission may revise the allotment in such manner as it thinks fit. Sub-rule 6 requires that every candidate or his election agent shall forthwith be informed of the symbol allotted to the candidate and be supplied with specimen thereof by the returning officer.
As already stated, Form 2A read conjointly with Rule 4 of the Rules, 1961 speaks of symbol being reserved for a recognized National/State party. It draws a distinction between a candidate setup by a recognized political party who would be allotted the symbol reserved for such party and a candidate of an unrecognized political party or an independent candidate who will have to opt and give 3 preferences for the symbols which they want to choose. Therefore, the provisions of Rule 5 and 10 have to be read, understood and applied conjointly with Rule 4 and Form 2A referred therein. The words choice of symbols expressed by the contesting candidates in their nomination papers referred in Sub-rule 4 of Rule 10 would include the choice of symbols expressed by a candidate setup by a recognized political party in Clause C (i) Part 3 of Form 2A and will have to be the symbol of such political party whereas such choice in the case of a candidate not setup by a recognized political party or an independent candidate will have to be the choice expressed by such candidate in Clause C (ii) of Part 3 of Form 2A. The allotment by the returning officer of any symbol to a candidate under Sub-rule 5 has to be made accordingly keeping in mind the choice of symbols as expressed in Part 3 of Form 2A as discussed hereinabove.
From what we have discussed hereinabove, it is evident that even the Rules, 1961 read with requisite "Form" appended to it speak of reservation of symbols for recognized political parties and also draw distinction between recognized and unrecognized political parties as also independent candidates for all these purposes including for the purposes of allotment of symbols, nomination etc. Now, we may come to the Order, 1968. This Order has been made by the Commission. This Order, 1968 has been made 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. It is referred to have been made in exercise of powers conferred by Article 324 of the Constitution read with Section 29A of the Act, 1951 and Rules 5 and 10 of the Rules, 1961 and all other powers enabling it in this behalf. As already stated, the Commission has been vested with veritable plenary powers under Article 324 to do all that is necessary for the conduct of smooth, fair and proper elections and as already stated the exercise of this power is subject only to any constitutional or statutory limitation which itself has to be in consonance with the Constitution. The Election Commission is a constitutional body and the enabling provision from which its power flows is contained in Article 324.
Paragraph 2(b) of the Order, 1968 defines political party on the same terms in which Section 2 (1) (f) of the Act, 1951 defines it. Paragraph 4 refers to allotment of symbols. It refers to allotment of symbol to a contesting candidate in accordance with the provisions of the said Order in every contested election. Paragraph 5 of the Order, 1968 read as under:-
"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 recognized 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.
Paragraph 5 classifies symbols for the purposes of the said Order as either reserved or free, meaning thereby, there are 2 types of symbols which are available for allotment, one, the reserved symbol which is reserved for a recognized political party and second, that which is not so reserved and which is referred as free symbol, therefore, a distinction has been made by Paragraph 5 between symbols which is in keeping with the provisions of the Act, 1951 and Rules, 1961 which also draw such distinction as already noticed hereinabove.
Paragraph 6 of the Order, 1968 is 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 therefore arises, political parties are either recognized political parties or unrecognized political parties.
(2) A recognised political party shall either be a National Party or a State Party."] Paragraph 6 classifies political parties as recognized political parties or unrecognized political parties. Sub-paragraph 2 of Paragraph 6 further provides that a recognized political party shall either be a National Party or a State Party. This distinction again is in tune with the provisions of the Act, 1951 and the Rules, 1961 as already noticed, as, therein also distinction has been made at some places as already referred earlier.
Paragraph 6A reads as under:-
"[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 lat 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 People from that 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;] or {(v) At the last general election to the House of the People from the State, or at the last general election to the Legislative Assembly of the State, the candidates set up by the Party have secured not less than eight percent of the total vlaid votes polled in the State.}"
Paragraph 6A delineates the conditions for recognition as a State party. We need not go into such conditions at length but suffice it to say that one of the conditions for recognition as a recognized State Party is that the candidates set up by such party should have secured not less than 6% of the total valid votes polled in the State and, in addition, the party must have returned at least 2 members to the Legislative Assembly of that State at such general election to the Legislative Assembly of the State. Now, there is no such condition for an unrecognized albeit registered political parties, meaning thereby, a political party though registered under Section 29A but not recognized under the Order, 1968 is not required to fulfill the aforesaid condition and other conditions mentioned in Paragraph 6A. Various other conditions are mentioned in Paragraph 6A as a mandatory prerequisite for a party to be recognized as a State party which would entitle it to certain benefits of a recognized political party especially in the matter of symbols.
Paragraph 6B reads as under:-
"6B. Conditions for recognition as a National party - A political party shall be eligible to be recognized as National Party, if, and only if, any of the following conditions is fulfilled:
(i) The candidates set up by the party, in any four or more States, 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 percent of the total valid votes polled in each of those States at that general election; and, in addition, it has returned at least four members to the House of the People at the aforesaid last general election from any State or States; or
(ii) At the last general election to the House of the People, the party has won at least two percent of the total number of seats in the House of the People, any fraction exceeding half being counted as one; and the party's candidates have been elected to that House from not less than three States; or
(iii) The party is recognized as State Party in at least four States.]"
Thus, the conditions mentioned in Paragraph 6B are a necessary prerequisite for any political party to be recognized as a National party, one of which is that the candidates setup by such party in any four or more States at the last general election to the House of the People or to the Legislative Assembly of the State concerned, must have secured not less than 6% of the total valid votes polled in each of those States at that general election; and, in addition, it must have returned at least 4 members to the House of the People at the aforesaid last general election from any State or States etc. and the party should be recognized as State Party in at least 4 States.
Now, as a logical corollary of the aforesaid provisions is that any party which does not fulfill the aforesaid conditions cannot be recognized as a National party or a State party, it will at best be a registered party and nothing more. Thus, there is valid distinction/classification based on a rational/intelligible differentia for classifying the parties as aforesaid. It being so, it is quite reasonable that the two separate categories of political parties are treated differently and if it is so done then it cannot be said that there is violation of Article 14 of the Constitution of India, even in the matter of assignment of symbols. Even at the cost of repetition, we need to reiterate that even as per the Act, 1951 and the Rules, 1961, a distinction has been made between recognized political parties and not so recognized political parties. The Order, 1968 merely continues the distinction and lays down the modalities in this regard with regard to reservation and allotment of symbols to such differently categorized political parties. An independent candidate also stands on a footing different from a recognized political party, therefore, he or she is treated differently and if it is so, as is the case even in the matter of allotment of symbols, it cannot be held to be arbitrary or unreasonable, especially for the reasons aforesaid and those which we are going to give hereinafter.
Paragraph 6C of the Order, 1968 deals with conditions for continued recognition as a National or a State party. According to it, continuance of party as a recognized National or State party is dependent upon the fulfillment by it of the conditions specified in Paragraph 6A or 6B, as the case may be, on the results of that general election.
Based upon the aforesaid classification which has a rationale, Paragraph 8 of the Symbol Order, 1968 provides that a candidate setup by a National Party or a State Party shall choose and shall be allotted the symbol reserved for that party in that State and no other symbol. Further, reserved symbol shall not be chosen or allotted to any candidate other than a candidate setup by a National Party for whom such symbol has been reserved or a candidate setup by a State Party for whom such symbol has been reserved in the State in which it is a State Party even if no candidate has been setup by such National or State Party in that constituency, obviously, because such symbol being reserved for such parties, the masses would be identifying the parties and its agenda, ideology etc. with the said symbol.
Paragraph 9 deals with restriction on the allotment of symbols reserved for State Parties in States where such parties are not recognized. It says that such symbol reserved for a State Party in any State shall not be included in the list of free symbols for any other State or Union Territory and shall not be reserved for any other State Party in any other State, subject to the proviso contained therein, which is also understandable in view of what has been stated hereinabove.
Paragraph 10 of the Order, 1968 deals with concession to candidates set up by a State party at elections in other States or Union Territories. It provides 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 State Party, then such candidate may, to the exclusion of all other candidates in the constituency, be allotted the symbol reserved for that party in the State or States in which it is recognized State Party, notwithstanding that such symbol is not specified in the list of free symbols for such other State or Union territory, subject to fulfillment of the conditions mentioned therein and subject to the proviso contained therein.
Likewise Paragraph 10A deals with concession to candidates setup by an unrecognized party which was earlier recognized as a National Party or State Party. It mentions the conditions in which such candidates may be allotted the symbol reserved earlier for that party when it was a recognized National or State Party notwithstanding that such symbol is not specified in the list of free symbols subject to fulfillment of certain conditions mentioned therein.
Paragraph 10B of the Order, 1968 deals with concession to candidates set up by registered (unrecognized) parties and to unrecognized parties which were earlier recognized parties more than 6 years back.
Paragraph 11 deals with restrictions on the choice and allotment of symbols allotted under Paragraph 10 or Paragraph 10A.
Paragraph 12 deals with choice of symbols by other candidates and allotment thereof.
Paragraph 13 deals with the subject as to when candidate shall be deemed to be set up by a political party.
Paragraph 16A deals with power of Commission to suspend or withdraw recognition of a recognized political party for its failure to observe Model Code of Conduct or follow lawful directions in instructions of the Commission.
We may now refer to Paragraph 17 of the Order, 1968 which reads as under:-
"17. Notification containing lists of political parties and symbols-
(1) The commission shall by one or more notifications in the Gazette of India publish lists specifying -
(a) the National Parties and the symbols respectively reserved for them;
(b) the State Parties, the State or States in which they are State Parties and the symbols respectively reserved for them in such State or States;
[(c) the un-recognized political parties and the addresses of their headquarters registered with the Commission;] and [(d) the free symbols for each State and Union Territory.]"
Paragraph 17 refers to notification containing lists of political parties and symbols. Clause 1 of Paragraph 17 requires the commission to publish lists by one or more notifications in the Gazette of India specifying- (a) the National parties and the symbols respectively reserved for them; (b) the State Parties, the State or States in which they are State Parties and the symbols respectively reserved for them in such State or States; (c) the un-recognized political parties and the addresses of their headquarters registered with the Commission; and (d) the free symbols for each State and Union Territory. Clause 2 says that every such list shall, as far as possible, be kept up to date.
As regards contention of the petitioner that the Election Commission of India does not have any power to allot symbols to a recognized National or State level political party or to reserve a symbol for them, firstly, we are of the view that Article 324 vests ample power on the Election Commission of India for superintendence, direction and control of elections and in this context if such reservation or allotment is made it is in furtherance of the constitutional goal contained in Part XV of the Constitution of India. The only limitation is that this exercise of power cannot violate any constitutional or statutory provision or any rule made there under. We have already noticed that there is no such violation by the Election Commission of India in issuing Order, 1968 for allotment and reservation of symbols. There is no provision in the Act, 1951 or the Rules, 1961 which prohibits the Commission from reserving or allotting symbols as has been done by the Order, 1968. In fact, the said Act, 1951 and the Rules, 1961, hint or suggest such reservation and allotment of symbols, as already noticed. Vires of the Act, 1951 or Rules, 1961 are not under challenge before us. We therefore reject this contention. In fact, the vires of Order, 1968 was put to challenge before the Supreme Court of India in the case of Kanhiya Lal Omar Vs. R.K. Trivedi and others, 1985 (4) SCC 628. The Order, 1968 was held to be intra vires the Constitution, the Act, 1951 and the Rules, 1961.
The vires of Order, 1968 having already been upheld in Kanhiya Lal Omar's case, now the scope for considering and granting the relief prayed for in this petition is very narrow.
We have perused the Order, 1968 very carefully and we find that it deals with two subjects, one is of reservation of symbols and the other is of allotment of symbols. Paragraph 5 (1) of the Order, 1968 classifies symbols into reserved or free symbols. Clause 2 of Paragraph 5 defines a reserved symbol to mean a symbol which is reserved for a recognized political party for exclusive allotment to contesting candidates set up by that party. Clause 3 of Paragraph 5 defines a free symbol to mean a symbol other than a reserved symbol. Now Paragraph 8, 9, 10 and 10A of the Order, 1968 deal with allotment of symbols to the contesting candidates but these provisions do not deal with reservation of symbols for recognized political parties. Reservation of symbols is dealt with separately in Paragraph 5 (2) and this is in tune with the provisions of the Act, 1951 and the Rules, 1961 already discussed hereinabove. Even Paragraph 17 deals with reserved symbols and free symbols separately. As already stated, there being a valid classification of political parties between recognized political parties and unrecognized political parties as also independent candidates, based on such valid classification, there exists a valid distinction for reservation and allotment of symbols to such parties.
In fact there is a distinction between reservation of symbols and their allotment. While recognized political parties, who obviously have a large voter base and have fulfilled the prerequisites for being recognized as National or State political party as mentioned in Paragraph 6A and 6B of the Order, 1968, are entitled to have a symbol reserved for them considering their importance in the democratic polity of this country. Their existence and continuance is on much firmer ground than the unrecognized political parties. A political party is recognized only when it secures a particular percentage of votes and in the case of the recognized National political party when it has won particular number of seats in a minimum number of States as prescribed in the aforesaid provisions contained in Paragraph 6B whereas in the case of unrecognized political parties or independent candidates these conditions are not fulfilled and their existence and continuance is not on equally firm ground. In the case of a candidate setup by a recognized political party it is to be mentioned in Part 3 of the nomination paper Form 2A and as a symbol is already reserved for such recognized political party as a sequitor it is that symbol alone which would be allotted to the candidate under Sub-rule 4 of the Rule 10 of the Rules, 1961 and would be informed to him and his agents under Sub-rule 5 thereof, whereas, in the case of unrecognized political party and an independent candidate, the same would be allotted and informed as per the choice exercised from the list of free symbols and not the list of reserved symbols. Therefore, there is a clear distinction in this regard based on rationale discussed earlier. Paragraph 8 to 10A of the Order, 1968 are to apply accordingly.
Much emphasis was laid by the petitioner upon the fact that the word used in Rule 10 (6) of Rules, 1961 is 'every candidate'. Rule 10 (6) is a general provision and the reason the word 'every candidate' has been used is that it includes a candidate of a recognized political party and/or unrecognized political party an independent candidate. Allotment of symbols is in respect to all such candidates whether belonging to recognized, unrecognized political party or independent candidates hence the words 'every candidate'. This provision has to be read in consonance with the other provisions of the Rules, 1961 and Act, 1951 mentioned hereinabove, especially, Rule 4 of Rule, 1961 and Form 2A and the Order, 1968.
Allotment of reserved or free symbols to candidates is made in relation to an election, however, reservation of symbols for a National party or a State party is not confined to any particular election but is good for all times as long as the said party continues to be recognized as per law. There is nothing in the Act, 1951, Rules, 1961 or the Order, 1968 that symbols can be reserved only after notification of elections, whereas, allotment of symbols takes place at the time of elections and not prior to its notification. This is how we understand the scheme of the Act, 1951, the Rules, 1961, especially, the Order, 1968 which is in consonance with the aforesaid and not contrary to it.
Further, apart from the fact that the Order, 1968 does not violate any constitutional or statutory provision as already held by the Supreme Court of India in Kanhiya Lal Omar's case, we do not find any inconvenience or hardship to the public at large by such reservation of symbols. There is a purpose behind reservation of such symbols. Apart from the fact that a political party is recognized only after fulfillment of certain conditions prescribed in law therefore it is entitled to be treated differently as it has a much larger base amongst the masses, consequently, its importance in the democratic polity hardly needs to be emphasized rather it needs to be given an impetus, we must not forget that we live in a country where even now in the 21st century in many areas, especially rural and tribal areas the masses are either not literate or not so literate or politically aware as in the western world. Even now, they recognize a political party by its symbol and vote accordingly. Symbol/flag/logo including election symbol, are simple images that are easily identifiable by the general masses. Symbols of a recognized party including the election symbols reserved/allotted under the Order of 1968, help voters to identify the party of their choice while casting vote. Symbols facilitate the public at large including the voters. They may not know the individual candidate, yet, they cast their vote based on the symbol which they recognize, therefore, this is also an aspect which has to be kept in mind. They relate the ideology being pursued by a political party and its agenda based on its symbol i.e. the symbol reserved for it. From the provisions of order of 1968 as also the Act of 1951, it is apparent that the recognized party is having some privileges including allotment of reserved symbols while contesting the elections. This privilege is not available to unrecognized party or any individual candidate. The learned Counsel for the Commission has rightly referred to the decision in the case of Capt. W.A. Sangma (Supra), paragraph 29 of which reads 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 honor, 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."
We may refer to another decision in the case of Rama Kant Pandey (Supra) wherein the Supreme Court of India repelled the argument that candidates set up by political parties should not receive any special treatment. It observed that the fact that candidates set up by political parties, constitute a class separate from other candidates has been recognized by this Court in numerous cases. These observations justify the opinion being expressed by us in this judgment. Paragraph 10 of the judgment in Rama Kant Pandey's case reads as under:-
"10. There is also no merit whatsoever in the contention that candidates set up the 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 Vs. 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 ground".
In D.M.L. Agarwal Vs. Rajiv Gandhi, (1987) Suppl. SCC 93, a Division Bench of this Court took note of and emphasized the vital role of political parties in a parliamentary form of democracy and anxiety was expressed about the growing number of independent candidates."
We may also refer to the decision of the Supreme Court in Subramanian Swamy's case wherein Paragraph 10 (A) of the Symbols Order, 1968 was challenged as being violative of Article 14. In the said case, the importance of symbol assigned to a political party was considered. Relevant extract of the said judgment is being quoted herein below:-
"12. On this backdrop we have to decide this ticklish question of the right of Janata Party to permanently retain its symbol. There can be no doubt that a symbol particularly in case of an established political party is not only having a political implication but has also an emotional angle attached to it. This is apart from the fact that in India large population of which is rural, uneducated or at time illiterate, the such electorate would naturally have a tendency to identify a party or its candidates by its symbols. It is perhaps for this reason that the political parties zealously guard their symbol.........
..........15. Learned Counsel for the respondent is undoubtedly correct in arguing that concept of recognition is inextricably connected with the concept of symbol of that party. It is but natural that a party must have a following and it is only a political party having substantial following in terms of Clauses 6A, 6B and 6C would have a right for a reserved symbol. Thus, in our opinion, it is perfecly in consonance with the democratic principles. A party which remains only in the records can never be equated and given the status of a recognized political party in the democratic set up. We have, therefore, no hesitation in rejecting the argument of Dr. Swamy that in providing the symbols and reserving them for the recognized political parties along amounted to an undemocratic act."
The above quoted decisions of the Supreme Court support the reasoning given and the opinion expressed by us in this judgment.
In the Act of 1951, Rules of 1961 and Order of 1968, there is no provision according to which reserved symbols related to particular recognized party can not be used for publicity of the ideology as also agenda of the party concerned and for campaigning. What has not been provided specifically under the Statute can not be included by judicial pronouncement. The petitioner wants us to read the words "for use only in an election" in Paragraph 5 (2) of the Order, 1968 and other provisions of law dealing with reservation of symbols for recognized parties and to restrict such use during elections. The contention of the petitioner if allowed to stand then it would amount to supplying a causus omissus and reading something in the Act, 1951, Rules, 1961 and Order, 1968 which does not exist therein.
We may in this context refer to the case of State of M.P. vs. Bharat Heavy Electricals, reported in (1997) 7 SCC 1, wherein the Hon'ble Supreme Court observed as under:-
"16."5. It is a well-settled principle in law that the court cannot read anything into a statutory provision or a stipulated condition which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent. Similar is the position for conditions stipulated in advertisements........
..........10. Two principles of construction ? one relating to casus omissus and the other in regard to reading the statute as a whole, appear to be well settled. Under the first principle a casus omissus cannot be supplied by the court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the legislature......
We do not see any reason to read words into the relevant Statutes, Rules or Order which do not appear therein and are also contrary to the scheme contained therein.
The petitioner also contended that reservation of symbols has to be for a particular period and not for all times to come. The argument is based on a misunderstanding of the legal scheme contained in the Act, 1951, the Rules, 1961 and the Symbols Order, 1968. The reservation of symbols is till such period as the political party continues to be recognized. The day it is derecognized or its recognition is withdrawn under Paragraph 16A of the Order, 1968 or any other provision which may be attracted, it will cease to have the benefit of the symbol reserved for it except in so far as is permitted under Paragraph 10A of the Order, 1968.
It is evident from Paragraph 10A that once the party is unrecognized though it may have been recognized earlier, then it is not entitled to use the symbol reserved for it except in terms of the aforesaid provision i.e. on making of an application to the Commission within 30 days after the publication in the Official Gazette of the notification calling the election, meaning thereby, not prior to it and subject to a declaration under Clause (b) thereof, as also, the opinion being formed by the Commission that there is no reasonable ground for refusing the application for such allotment, meaning thereby, not otherwise. The proviso further qualifies Paragraph 10A making it inapplicable where the same symbol is already reserved for some other National or State party in that State or Union territory. However, as long as the party is recognized and continues to be recognized in terms of Paragraph 6C, there is nothing in law to prevent it from using the symbol reserved for it.
It was also her contention that the Symbol Order, 1968 only speaks of "reservation" and not of "allotment" of symbol to recognized political parties. The Court asked her as to for what purpose the symbol is reserved for recognized political party but she could not give any satisfactory answer. We are of the considered view that the symbol is reserved for a recognized political party because of their special status as already noticed hereinabove and for their use considering their importance in the democratic polity of this country. The symbol is reserved for their exclusive use and also for allotment to their candidates exclusively as and when they setup their candidates in an election but this does not mean that the symbol reserved for them is only for their use at the time of elections. Even prior to the elections they can use it so that the masses may identify themselves with the symbols based on their agenda and ideology as has already been discussed hereinabove and as is also evident from the decisions cited and quoted earlier.
The petitioner has failed to understand the distinction between "reservation of symbols" and "allotment of symbols". Symbols are not allotted to a recognized political party prior to notification of elections but they are reserved for them. The candidates set up by them are allotted the symbols reserved for such political party after notification of elections as per law already discussed. Reservation of symbols for recognized political parties helps the cause of democracy and does not cause any public injury. There is nothing in the Constitution of India, the Act, 1951, the Rules, 1961 and the Symbols Order, 1968 that symbols cannot be reserved for a recognized political party or that the symbol reserved for them can be used only during elections or after notification of elections. In this regard, as already discussed, a recognized political party stands on a different footing than an unrecognized political party or an independent candidate and therefore has rightly been treated differently in law.
As regards contention of the petitioner that symbols should be reserved (misunderstood by the petitioner as allotment in the context of recognized political parties) for unrecognized political parties or independent candidates, the scheme of the relevant Acts, Rules and Orders referred hereinabove does not support it and in view of the valid distinction between them and the recognized political parties, we do not find it to be acceptable. As per scheme of the Act, 1951, the Rules, 1961 and especially the Symbols Order, 1968, reservation of symbols is only for recognized political parties whereas allotment of symbols is for all political parties, recognized or unrecognized and even for independent candidates.
In view of the aforesaid, the unrecognized political parties and independent candidates as they are distinct from recognized political parties and there is a valid rational criteria for such distinction, therefore, the contention of the petitioner that the Election Commission of India is acting in a discriminatory and arbitrary manner is not tenable in law. Moreover, this is Public Interest Litigation but there is nothing to show that the interest of the masses or the public at large is in any manner adversely affected by the questions raised in the petition.
For all these reasons, this Writ Petition fails and is dismissed.
.
(Saurabh Lavania, J.) (Rajan Roy, J.) Order Date :- 11.1.2021/Lokesh Kumar