# Shraddha Tripathi v. The Election Commission of India & Ors

- **Citation:** (2021) 1 ILRA 595
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-11
- **Case number:** Misc. Bench No. 12092 of 2016
- **Bench:** Rajan Roy, Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shraddha-tripathi-v-the-election-commission-of-india-ors-46783
- **Pages:** 18

## Headnote

A.S.G.,
Arpit
Kumar,
Asit
Kumar
Chaturvedi, O.P. Srivastava

(A)
Civil
Law
-
Election
Symbols
(Reservation and Allotment) Orders, 1968
- The Conduct of Election Rules, 1961:
Rule 10(4) - Representation of Peoples
Act,
1951:
Section
38
Election
-
Reservation and Allotment of Symbols - -
The Constitution of India: Article 324, 14-
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. 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 part is not confined to any
particular election but is good for all time 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. (Para 43, 46)

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withdrawn under Paragraph 16A of the Order,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,

## Text

_Characters 0–39,979 of 62,174. This is a partial read: ask again with offset=39979 for what follows._

1 All. Shraddha Tripathi Vs. The Election Commission of India & Ors.
595
any such notice or entertain objections to
the intended marriage and proceed with the
solemnization of the marriage. It goes
without saying that it shall be open for the
Marriage Officer, while solemnizing any
marriage under the Act of 1954, to verify
the identification, age and valid consent of
the parties or otherwise their competence to
marry under the said Act. In case he has
any doubt, it shall be open for him to ask
for appropriate details/proof as per the facts
of the case.

48. Since the matter relates to
protection of fundamental rights of large
number of persons, the Senior Registrar of
this Court shall ensure that a copy of this
order is communicated to the Chief
Secretary of the State of U.P. who shall
forthwith communicate the same to all the
Marriage Officers of the State and other
concerned authorities as expeditiously as
possible.

49. With the aforesaid, the present
writ petition stands disposed of.
----------
(2021)01ILR A595
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 11.01.2021

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE SAURABH LAVANIA, J.

Misc. Bench No. 12092 of 2016

Shraddha Tripathi ...Petitioner
Versus
The Election Commission of India & Ors.
 ...Respondents

Counsel for the Petitioner:
Shraddha Tripathi (In Per.)

Counsel for the Respondents:
A.S.G.,
Arpit
Kumar,
Asit
Kumar
Chaturvedi, O.P. Srivastava

(A)
Civil
Law
-
Election
Symbols
(Reservation and Allotment) Orders, 1968
- The Conduct of Election Rules, 1961:
Rule 10(4) - Representation of Peoples
Act,
1951:
Section
38
Election
-
Reservation and Allotment of Symbols - -
The Constitution of India: Article 324, 14-
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. 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 part is not confined to any
particular election but is good for all time 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. (Para 43, 46)

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. (Para 54)

The Court is of the considered view that the
symbol is reserved for a recognized political
party because of their special status 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 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
596 INDIAN LAW REPORTS ALLAHABAD SERIES
themselves with the symbols based on their
agenda and ideology. (Para 56)

Writ Petition Rejected. (E-8)

List of Cases cited :-

1. A.C. Jose Vs Sivan Pillai & ors. AIR 1984 SC
921

2. All Party Hill Leaders' Conference, Shillong
Vs Captain W.A. Sangma & ors. AIR 1977 SC
2155

3. Kanhiya Lal Omar Vs R.K. Trivedi & ors.
AIR 1986 SC 111

4.
Subramanian
Swami
Vs
Election
Commission of India thru its Secy. (2008) 14
SCC 318

5. Rama Kant Pandey Vs U.O.I. AIR 1993 SC
1766

6. St. of M.P. Vs Bharat Heavy Electricals
(1997) 7 SCC 1

(Delivered by Hon'ble Rajan Roy, J. &
Hon'ble Saurabh Lavania, J.)

1. 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.

2. 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 TradeMark, 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.

3. 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
1 All. Shraddha Tripathi Vs. The Election Commission of India & Ors.
597
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.

4. 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.

5. 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.

6. 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
598 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

7. 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;.

8.

In
response,
the
petitioner
submitted that none of the case laws cited
1 All. Shraddha Tripathi Vs. The Election Commission of India & Ors.
599
by the Counsel for the opposite party apply
to the case at hand.

9. 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.

10. 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.

11. 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.

12. 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 Subsection 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.

13. 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
600 INDIAN LAW REPORTS ALLAHABAD SERIES
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. Subsection 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 Subsection 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.

14. 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
1 All. Shraddha Tripathi Vs. The Election Commission of India & Ors.
601
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.

15. 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.

16. 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 Subsection (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.

17. 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
602 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

18. 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.

19. 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.

20. 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.

21. 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.

22. Paragraph 6 of the Order, 1968 is
as under:-

[6. Classification of political parties -
(1) For the purposes of this Order and for
1 All. Shraddha Tripathi Vs. The Election Commission of India & Ors.
603
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."]

23. Paragraph 6 classifies political
parties as recognized political parties or
unrecognized
political
parties.
Subparagraph 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.

24. 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.}"

25. 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
604 INDIAN LAW REPORTS ALLAHABAD SERIES
a recognized political party especially in
the matter of symbols.

26. 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.]"

27. 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.

28. 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.

29. 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
1 All. Shraddha Tripathi Vs. The Election Commission of India & Ors.
605
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.

30. 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.

31. 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.

32. 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.

33. 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.

34. 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.

35.

Paragraph
11
deals
with
restrictions on the choice and allotment of
symbols allotted under Paragraph 10 or
Paragraph 10A.

36. Paragraph 12 deals with choice of
symbols by other candidates and allotment
thereof.

37. Paragraph 13 deals with the
subject as to when candidate shall be
deemed to be set up by a political party.
606 INDIAN LAW REPORTS ALLAHABAD SERIES

38. 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.

39. 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.]"

40. 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.