# SUBRAMANIAN SWAMY v. ELECTION COMMISSION OF !NOIA THROUGH ITS SECRETARY

- **Citation:** [2008] 13 S.C.R. 846
- **Court:** Supreme Court of India
- **Decided:** 2008-09-23
- **Case number:** ELECTION COMMISSION OF !NOIA THROUGH ITS SECRETARY (Civil Appeal No. 5803 of 2008
- **Bench:** Ashok Bhan, V. S. Sirpurkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/subramanian-swamy-v-election-commission-of-noia-through-its-secretary-23650
- **Pages:** 27

## Headnote

Election Symbols (Reservation and Allotment) Order,
c 1968 - Clauses 1 DA, 5, 6, 6A, 68 and 6C - De-recognition of
Political party as a recognized political party - Challenge to
de-mcognition set aside right upto Supreme Court - In the
meantime, by amendment of Symbols Order, Clause 10A inserted providing for retention of its symbol by a deD reorganiszed political party for six years as a grace period -
.,,
~
Provision challenged as irrational, arbitrary and undemocratic
- Election Commission as well as High Court setting aside
the challenge and upholding Clause 1 OA - On appeal, held:
The provision is not arbitrary, irrational or undemocratic - The
E
grace period of six years for retention of symbol is rational -
Reading down the provision by ignoring the limit of six years
is not permissible since the language of the provision is clear
and since such reading down will lead to absurdity in the wake
of Clauses 5 and 6 - In absence of challenge to clauses 5
and 6 also, challenge to Clause 1 OA fails - The symbol of a
F political party cannot be treated as 'intellectual property' as it
does not have the concept of monetary implications - Representation of People Act, 1951 - s. 29A- Interpretation of Statutes.
G
After de-recognition of 'Janata Party' as a recognized
political party, it lost its reserved symbol. Appellant (president of the party) approached the Election Commission
asking for continuance of the reservation of its symbol.
The order of de-recognition was also challenged before
H
846
SUBRAMANIAN SWAMY v ELECTION COM. OF !NOIA
847
). . ..J
THROUGH ITS SECRETARY
this Court by filing SLP. During the pendency thereof, ElecA
tion Symbols (Reservation and Allotment) Order, 1968 was
amended, whereby clause 10A was inserted which allowed a period of six years as a grace period to retain its
;
I
symbol, even after the party lost its status as a recognized
party. Ultimately the SLP was dismissed in limine.
B
Appellant approached Election Commission complaining against clause 1 OA and proposed the amendment
so as to enable the once recognized political parties of
national or State level to retain their reserved symbols
permanently. Election commission refused the proposal. c
Appellant filed a writ petition, challenging Clause 10A as
arbitrary. High Court dismissed the writ petition. Hence
the present appeal.
..
'(
Dismissing the appeal, the Court
0
HELD: 1. Theory of continuance and permanent reservation of a particular symbol for a particular political
party cannot stand on the ground that after passing of
the Election Symbols (Reservation and Allotment) Order,
1968, the concept of recognition of a political party and
E
the concept of a reserved symbol for that party must be
treated to have amalgamated. [Para 17] [866-E]
2. There is no irrationality or arbitrariness in providing six years time as an additional period for retaining the
F
exclusive symbol for the simple reason that within that
period there is bound to be one or more general elections
on the national level. So also, if any political party has lost
its status in the State Elections, apart from the fact that
upto the next general elections, it will not lose the said
symbol, there is bound to be another opportunity by way G
of fresh elections within six years. It is on this rationale
that the period of six years is provided. This is apart from
the fact that in case of Janata Party it continued to have
and enjoyed the status of said national or State party for
the purposes of next general elections due to the saving H
848
SUPREME COURT REPORTS
(2008] 13 S.C.R.
A clause vide clause 7. [Para 17] [866 A-C]
3. In absence of any challenge to the constitutional
validity of clauses 5 and 6, the challenge to Clause 1 OA
must necessarily fail. Reading these clauses together it
becomes very clear that firstly the reserved symbol is
8 meant only for recognized political party for its exclusive
user. Again the second inference which comes out of such
conjoint reading of two prov

## Text

_Characters 0–39,934 of 54,583. This is a partial read: ask again with offset=39934 for what follows._

[2008] 13 S.C.R. 846
~~
A
SUBRAMANIAN SWAMY
V.
ELECTION COMMISSION OF !NOIA THROUGH ITS
SECRETARY
(Civil Appeal No. 5803 of 2008)
~ .
B
SEPTEMBER 23, 2008
[ASHOK BHAN AND V. S. SIRPURKAR, JJ.]
Election Symbols (Reservation and Allotment) Order,
c 1968 - Clauses 1 DA, 5, 6, 6A, 68 and 6C - De-recognition of
Political party as a recognized political party - Challenge to
de-mcognition set aside right upto Supreme Court - In the
meantime, by amendment of Symbols Order, Clause 10A inserted providing for retention of its symbol by a deD reorganiszed political party for six years as a grace period -
.,,
~
Provision challenged as irrational, arbitrary and undemocratic
- Election Commission as well as High Court setting aside
the challenge and upholding Clause 1 OA - On appeal, held:
The provision is not arbitrary, irrational or undemocratic - The
E
grace period of six years for retention of symbol is rational -
Reading down the provision by ignoring the limit of six years
is not permissible since the language of the provision is clear
and since such reading down will lead to absurdity in the wake
of Clauses 5 and 6 - In absence of challenge to clauses 5
and 6 also, challenge to Clause 1 OA fails - The symbol of a
F political party cannot be treated as 'intellectual property' as it
does not have the concept of monetary implications - Representation of People Act, 1951 - s. 29A- Interpretation of Statutes.
G
After de-recognition of 'Janata Party' as a recognized
political party, it lost its reserved symbol. Appellant (president of the party) approached the Election Commission
asking for continuance of the reservation of its symbol.
The order of de-recognition was also challenged before
H
846
SUBRAMANIAN SWAMY v ELECTION COM. OF !NOIA
847
). . ..J
THROUGH ITS SECRETARY
this Court by filing SLP. During the pendency thereof, ElecA
tion Symbols (Reservation and Allotment) Order, 1968 was
amended, whereby clause 10A was inserted which allowed a period of six years as a grace period to retain its
;
I
symbol, even after the party lost its status as a recognized
party. Ultimately the SLP was dismissed in limine.
B
Appellant approached Election Commission complaining against clause 1 OA and proposed the amendment
so as to enable the once recognized political parties of
national or State level to retain their reserved symbols
permanently. Election commission refused the proposal. c
Appellant filed a writ petition, challenging Clause 10A as
arbitrary. High Court dismissed the writ petition. Hence
the present appeal.
..
'(
Dismissing the appeal, the Court
0
HELD: 1. Theory of continuance and permanent reservation of a particular symbol for a particular political
party cannot stand on the ground that after passing of
the Election Symbols (Reservation and Allotment) Order,
1968, the concept of recognition of a political party and
E
the concept of a reserved symbol for that party must be
treated to have amalgamated. [Para 17] [866-E]
2. There is no irrationality or arbitrariness in providing six years time as an additional period for retaining the
F
exclusive symbol for the simple reason that within that
period there is bound to be one or more general elections
on the national level. So also, if any political party has lost
its status in the State Elections, apart from the fact that
upto the next general elections, it will not lose the said
symbol, there is bound to be another opportunity by way G
of fresh elections within six years. It is on this rationale
that the period of six years is provided. This is apart from
the fact that in case of Janata Party it continued to have
and enjoyed the status of said national or State party for
the purposes of next general elections due to the saving H
848
SUPREME COURT REPORTS
(2008] 13 S.C.R.
A clause vide clause 7. [Para 17] [866 A-C]
3. In absence of any challenge to the constitutional
validity of clauses 5 and 6, the challenge to Clause 1 OA
must necessarily fail. Reading these clauses together it
becomes very clear that firstly the reserved symbol is
8 meant only for recognized political party for its exclusive
user. Again the second inference which comes out of such
conjoint reading of two provisions is that if a particular symbol is not a reserved symbol, meaning thereby that it is not
meant for a recognized political party, such symbol autoC matically become a free symbol. There is no challenge to
this concept nor is there any challenge to the constitutional
validity of Clauses 5 and 6. [Para 18] [867-A-C]
4.1 The exercise of reading down the provisions of
D Clause 10A so as to avoid the mention of six years in
Clause 10A, is not possible where the language of the
provision is clear, admits of no doubt and no situation
warrants such reading down. Such reading down and
thereby ignoring the limit of six years as provided in the
Clause would render other provisions nugatory. Since the
E language of Clause 10A is extremely clear and its plain
meaning does not, in any manner, bring out any absurd
results, the court would have to rely upon the plain meaning which is the only meaning emerging out of the plain
language of the provision. It is for this reason that the court
F was not in a position to read down the provision so as to
ignore the words "six years" in Clause 10A. Apart from that,
such reading down would lead to absurdity in the wake of
other provisions. [Paras 18 and 20] [866 D-E- 869A-B]
G
4.2 It is trite law that a statute must be read as a whole
in its context. Therefore, the provisions of Clause 10A
should be read in the light of other provisions, namely,
Clauses 5, 6, SA, 68 and 6C. If the provision is read down
ignoring the limit of six years, an absurdity would creep
H in vis-a-vis clauses 5 and 6. In that case a political party
I
~
...
...
SUBRAMANIAN SWAMY v. ELECTION COM. OF INDIA
849
THROUGH ITS SECRETARY
which is not any more a political party, would still continue to have a reserved symbol in total derogation to the
language of Clauses 5 and 6. Such a course is not permissible. Clause 10A, therefore, cannot be interpreted in
isolation. It has to be read in terms of other connected
provisions iike Clauses 5, 6, 6A, 68 and 6C and eilso the
objects on the Preamble. The conjoint reading of all this
would clearly bring out a position that Clause 1CA would
have to be read and interpreted so that it does not harm
the other provisions of statute. [Para 19) [867-EF 868-C-D)
Philips India Ltd. v. Labour Court, Madras and Ors. 1985
(3) sec 103 - relied on.
Union of India v. Elphinstone Spinning and Weaving Co.
Ltd. and Ors. 2001 (4) SCC 139 - followed .
5. Concept of recognition as provided by Clause 5
of Symbols Order 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, 68 and
6C of Symbols Order would have a right for a reserved
symbol. Thus, it is perfectly 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. Therefore, it
is not correct to contend that in providing the symbols
and reserving them for the recognized political parties
alone, amounted to an undemocratic act. [Paras 14 and
15) [865-C-E]
6. It is not possible to create a third category under
Clause 8 i.e., a party which was once a recognized party
but has lost its status as such so that it retains its old
symbol for ever and can rightfully claim it. If such a course
is accepted, then the court would have to read something
which is not there in the provisions and this includes
Clauses 5, 6 and 8 as also the impugned clause 10A. Such
A
B
c
D
E
F
G
H
850
SUPREME COURT REPORTS
[2008] 13 S.C.R.
A an exercise would amount to this Court treading dangerous path of legislature. (Para 21] [869 C-F]
7. The symbol does not a.nount to a property as the
symbol can never have even the traces of the concept of
a property.
A symbol is not a tangible thing nor does it
B generate any wealth, it is only the insignia which is associated with the partic:ular political party so as to help the
millions of illiterate voters to properly exercise their right
to franchise in favour of the candidate of their choice belonging to a particular party. In the election process, it is
C not merely the individual candidate's personality or his
identity that weighs with the voters. It is undoubtedly a
very relevant factor but along with it, the voter also can
and does vote in favour of the party. It is under such circumstances that the symbol becomes relevant and imD portant. However, all that it provides is the essential association that it has with a particular party. The concerned
party would have a legal right to exclusively use the same
but that is not, a property of the party and, therefore, the
Election Commission which is required to ensure free, fair
E and clean elections have every right to deprive a particular party with a dismal performance of that symbol. The
Election Commission puts a clamp on the right of such a
political party to use the symbol rightfully. The symbol may
be an outcome of intellectual exercise but it does not beF come an "intellectual property" which concept has monetary implications. In case of a political party as contemplated in Symbols Order, monetary angle is conspicuously
absent. [Paras 22 and 23] [870 F-H, 869-G 871 A-C]
Shri Sadiq Ali and Anr. v. The Election Commission of
G India, New Delhi and Ors. 1972 (4) SCC 664-:: referred to.
8. It is pleaded that even if Janata Party because of
its dismal performance has lost the right to use the exclusive symbol which right it enjoyed for more than 20 years,
H yet its symbol does not automatically become a free sym-
; .
'
I
SUBRAMANIAN SWAMY v. ELECTION COM. OF INDIA
851
THROUGH ITS SECRETARY
bol unless it is specifically included in the list of free symA
bols by the Election Commission, the Election Commission should freeze this symbol and this symbol should
not be given as a free symbol. This plea, since not prayed
for in the Writ Petition nor was it even argued before the
High Court, it is left open to the appellant to raise this quesB
tion before the Election Commission. [Para 24) [871 D-E]
Case Law Reference
1985 (3) sec 103
relied on.
2001 (4) sec 139
followed.
1972 (4) sec 664
referred to.
Para 19
Para 20
Para 23
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 5803
of 2008
c
From the final Judgment and Order dated 4/10/2007 of D
the High Court of Delhi at New Delhi in C.W.P. No. 548 of 2006
Dr. Roxna Swamy for the Appellant and Subramanian
Swamy-Appellant-In-Person.
Meenakshi Arora, S.K. Mendiratta and Suvrajyoti Gupta E
for the Respondents.
The Judgment of the Court was delivered by
V.S. SIRPURKAR, J. 1. Leave granted.
2. Dr.Subramanian Swamy comes up before us challengF
ing the judgment of the High Court of Delhi whereby his Writ
Petition was dismissed. The Writ Petition was filed by Dr.
Swamy in his personal capacity, though he claimed therein a
mandamus for Janata Party of which he is the President. In the
Writ Petition following prayers were made:
G
"(a) A writ of mandamus or a writ, order or direction in the
nature of mandamus to strike down paragraph 1 QA
of the Symbols Order as violative of Article 14 of the
Constitution of India;
H
852
SUPREME COURT REPORTS
[2008] 13 S.C.R.
~ ' .
A
' (b)
A writ of mandamus or a writ order or direction in the
nature of mandamus to direct the respondent to bring
the Symbols Order, notably paragraph 1 OA, in line
with the requirement of Article 14 as set out
hereinabove;
.j
;
B
(c)
A Declaration that paragraph 1 OA must be read down
as set out hereinabove, in order to meet the
requirements of Article 14;
(d)
pass such other and further order or orders as this
c
Hon'ble Court may deem fit and proper in the facts
and circumstances of the case."
It seems that the original petition came to be amended
incorporating three new paragraphs. Two paragraphs are reproduced here (other amendments are only formal):
..
D
.,.
"9A. It is to be noted that under the prevailing political
situation in India, Coalition Governments are the
order of the day ~oth at the Centre (for the last more
than 16 years) and in most States. This has resulted
E
in elections being increasingly fought by alliances of
parties, so that in such electoral alliance, each party
agrees to fight a lesser number of seats than what it
,._
would choose to fight on its own. Thus it becomes
increasingly difficult for each such party to individually
F
meet the recognition criteria laid down by the Election
Commission in the (Amended) Symbols Order,
wherein, in any event (by the introduction of paras
6A, 68 and 6C) the criteria for recognition have been
enhanced. Even very big parties ruling are presently
threatened with loss of their symbol. Such a result is
G
not in consonance with the idea that elections must
reflect the will of the people in all its variety.
98. Even as of today with still a limited right to its symbol,
.,..
"'"'
the petitioner has been prejudiced by other political
H.
parties having been allotted its reserved symbol,
i 4
SUBRAMANIAN SWAMY v. ELECTION COM. OF INDIA
853
THROUGH ITS SECRETARY [V.S. SIRPURKAR, J.]
whereby, it is the admitted position of the Election
A
Commission, that its use by such other party is liable
to cause confusion in the minds of the public while
voting at elections (See Annexure P-6), which is the
I
~
downloaded "Compendium of Instructions from the
Election Commission of India to the State Election
B
Commissions."):
(a)
In the 2002 elections to local bodies ion Andhra
. Pradesh, the Janata Party's reserved symbol
was actually allotted and utilized by another
party the Telegu Rashtra Samiti, which has c
nothing to do with and does not share the ideals
and principles of the Janata Party. The Janata
Party's objections were rejected by the order
dt. 20.06.2003 of the Andhra Pradesh Election
~
Commissioner, (appended hereto asAnnexure D
P-7) which actually held:
''The Symbol "Halder Within Wheel" has now
become popular among the people as the
symbol of TRS because of its participation in E
the elections" (emphasis supplied)"
(b)
Again in the 2003 elections to local bodies in
Kerala, the Janata Party's symbol was put on
'(
the List of Free Symbols (Annexure A-8 hereto);
and was allotted to independent candidates.
F
If this is the position, even when the Janata Parfy can
avail of the concession of Paragraph 1 QA the situation
is bound to deteriorate when the concession is no
longer available."
3. The petitioner contended in this writ petition that Janata G
Party was a recognized national political party and thus had a
· reserved symbol of Chakra Haldar. The said Janta Party lost its
status as a national party because of its poor performance in
General Elections in 1996 and by an order dated 27.9.2000 of H
~
854
SUPREME COURT REPORTS
[2008] 13 S.C.R.
A the Election Commission, it ceased to be a recognized political party. It is not disputed that the order dated 27.9.20QQ has
become final and has been upheld right upto this Court. Being
a recognized political party of a national and/or State stature it
had a reserved symbol being Chakra Haldar, i.e. a farmer carB rying Plough within a wheei. As a result of its de-recognition as
a recognized political party .it lost its right to have exclusive symbol, more particularly due to the provisions of the Election Symbols (Reservation and Allotment) Order, 1968 (hereinafter referred to as "the Symbols Order"). The said Symbols Order owes
c its existence to a Standing Order No.2959 dated 31s1 August,
1968 and is passed in exercise of powers conferred by Article
324 of the Constitution of India read with Section 29A of the
Representation of People Act, 1951 (43 of 1951) and Rules 5
and 10 of the Conduct of Elections Rules, 1961. It deals with
0 the symbols of the political parties.
4. Before this writ petition was filed, on losing the reserved
symbol, as a result of its de-recognition as a recognized political party, the appellant had approached the Election Commission insisting upon the continuance of the r~servation of the
E aforementioned symbol of Janata Party. As has already been
pointed out, after the derecognition of Janata Party as a recognized party, a Special Leave Petition being SLP (C) No.2Q8Q7
of 2QOQ was filed in this Court. In this SLP the only challenge
was to the de-recognition order dated 27.9.2QQQ. However,
F during the pendency of this SLP, on 1.12.2QQQ, by notification
No.56/2000/Jud.lll the Election Commission amended the Symbols Order and among other amendments inserted Clause 1 QA
therein. This Court dismissed the aforementioned SLP on
15.1.2001 in limine. The decision of de-recognition of Janata
G Party has, therefore, become fait-accompli.
5. The appellant thereafter approached to the Election
Commission complaining mainly against clause 1 QA in 2QQ1
(the date of this complaint is not known) as due to that provision
the symbol of Janata Party could have a limited life of six years
H only while the appellant wanted to retain that symbol perma-
..
r
t
~
SUBRAMANIAN SWAMY v. ELECTION COM. OF !NOIA
855
THROUGH ITS SECRETARY [V.S. SIRPURKAR, J.]
nently for this party. The appellant was invited by the Election A
Commission to submit his proposals in respect of the symbol
problem of de-recognised party which had earlier enjoyed th~
privilege of an exclusive symbol. There was then an unexplicaple
' )
lull for about 4 years. The appellant claims that on 26.2.2005 he
::.uggested that the Symbols Order should be amended so as
to enable the once recognized political parties of national or
§
State level to retain their reserved symbols permanently. On
14.7.2005 this proposal was refused by the Election Comrnission relying on the judgment of this Court in Janata Da(
Samajwadi v. Election Commission [AIR 1996 SC 577]. T~is
prompted the appellant to file a writ petition in the High Court c
which writ petition came to be dismissedJ necessitating.,the
present SLP.
~
6. The whole attack of the petitioner was thus directed
...
against clause 1 OA which was added by amendment of ElecD
tion Symbols (Reservation and Allotment) Order, 1968 as back
as on 1.12.2000 in the writ petition as also during the argument
before the High Court The basis of the argument before the
High Court was the vice of arbitrariness of that provision inasmuch as it allowed a period of 6 years (only) as a grace period
E
to retain its symbol which was earlier rightfully reserved for it,
even after the said party lost its status, as a recognized party
due to its dismal performance, in national or State election. The
same stance is now taken before us by Dr.Swamy having failed
to convince the High Court on that issue. In addition Dr. Swamy F
urges that a direction should issue from this Court to amend the
said clause 1 OA suitably.
7. To appreciate the contentions raised during an elaborate debate before us it would be better to consider some relevant provision of the Symbols Order, as it stands now, along
G
with the provisions of Representation of Peoples Act and Rules
thereunder and other allied provisions.
8. Under Article 324 of the Constitution, the Election Commission is empowered to frame its Regulations. Rules 5(1) and
H
856
SUPREME COURT REPORTS
[2008J 13 S.C.R.
A 10(4) of the Representation of Peoples Act, 1950 provide that
every candidate at an election shall be allotted a different symbol subject to such restriction as the Election Commission may
specify. In exercise of its plenary power of superintendence,
regulation and control of elections to Parliament and State leg-
• ·
B islatures under that Article the Election Commission has promulgated the said Symbol Order as early as in 1968. History
tells us that though the first election was held in 1951 immediately after the constitution, there was no such regulation on the
anvil. Perhaps the multiplicity of the political parties in the after
c years necessitated promulgating the Symbols Order. The Preamble of the Order should open a window for us ushering in
some light for the proper interpretation thereof.
D
E
F
G
H
"AN ORDER
to provide for specification, reservation, choice and
allotment of symbols at elections in Parliamentary and
Assembly Constituencies, for the recognition of political
parties in relation thereto and for matters connected
therewith.
S.O. 2959, dated the 31st August, 1968 - WHEREAS,
the superintendence, direction and control of all elections
to Parliament and to the Legislature of every State are
vested by the Constitution of India in the Election
Commission of India;
AND WHEREAS, it is necessary and expedient to provide,
in the interest of purity of elections to the House of the
People and the Legislative Assembly of every State and
in the interest of the conduct of such elections in a fair and
efficient manner, for the specification, reservation, choice
and allotment of symbols, for the recognition of political
parties in relation thereto and for matters connected
therewith.
NOW, THEREFORE, in exercise of powers conferred by
Article 324 of the Constitution [read with section 29A of
..
..
SUBRAMANIAN SWAMY v. ELECTION COM. OF INDIA
857
t
...
THROUGH ITS SECRETARY [V.S. SIRPURKAR, J.]
the Representation of the People Act, 1951 (43 of 1951) A
and rules 5 and 10 of Conduct of Elections Rules, 1961
and all other powers enabling it in this behalf, the Election
Commission of India hereby makes the following Order."
~ )
Seeing following provisions would 'be apposite:
B
"2(h) "political party" means an association or body of
individual citizens of India registered with the
Commission as a political party under Section 29A
of the Representation of the People Act, 1951 ;
2(2) The General Clauses Act, 1897 shall, as far as may c
be, apply in relation to the interpretation of this Order
as it applies in relation to the interpretation of a
Central Act."
'
,,
5.
Classification of Symbols (1) For the purpose of D
'f
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.
E
(3)
A free symbol is a symbol other than a reserved
symbol.
6.
Classification of Political Parties - (1) For the
purposes of this order and for such other purposes F
as the Commission may specify as and when
necessity therefore arise, political parties are either
recognized political parties or unrecognized political
parties.
(2)
A recognized political party shall either be a National G
Party or a State party.
6A. Conditions for recognition as a National party - A
political party shall be treated as a recognized
National Party, if, and only if, -
H
858
SUPREME COURT REPORTS
[2008] 13 S.C.R.
' ...
A
either (A)(i) the candidates set up it, in any four or
more States, at the last general election to the House
of People, or to the Legislative Assembly of the State
concerned, have secured not less than six percent of
the total valid votes polled in their respective States
..
<
'
B
at that general election; and (ii) 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 (B)(i) its candidates have been elected to the
c
House of the People, at the last general election to
that House, from at least two percent of the total
number of parliamentary constituencies in India, any
fraction exceeding one-half being counted as one;
and (ii) the said candidates have been elected to
D
that House from not less than three States.
1'
.,.
68. Conditions tor recognition as a State party - A
political party, other than a National party, shall be
treated as a recognized State Party in a State or
E
States, if, and only, if -
either (A)(i) the candidates set up by it, 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
F
votes polled in that State at that general election;
and (ii) in addition, it has returned at least two
members to the Legislative Assembly of the State at
the last general election to that Assembly;
or (B) it wins at least three percent of the total number
G
of seats in the Legislative Assembly of the State,
(any fraction exceeding one-half being counted as
one), or at least three seats in the Assembly,
whichever is more, at the aforesaid general election ..
H
6C. Conditions for continued recognition as a National
SUBRAMANIAN SWAMY v. ELECTION COM. OFINDIA
859
THROUGH ITS SECRETARY [V.S. SIRPURKAR, J.]
7.
or State Party - If a political party is recognized as A ·
a National party under paragraph 6A, or as a State
party under paragraph 68, the question whether it
shall continue to be so recognized after any
subsequent general election to t~e House pf the
People or, as the case may be, to the Legislative s L\
Assembly or the State concerned, shall be. dependent
upon the fulfillment by it of the conditions ~pecified in
the said paragraphs on the resuit of that general
election.
Savings and Interpretation (1) Notwithstanding
anything contained in paragraphs 6A, 68 or 6C, if
any political party stands recognized, immediately
before the commencement of the Election Symbols
(Reservation and Allotment) Amendment Ordar,
2000, either as a National party or as a State Party
in some State or States, the said party shall continue
to have and enjoy the status of such National or State
party for the purposes of the next general elections,
to be held after the commencement of the said Order,
c'
to the House of the People or, as the case may be,
E ':!
to the Legislative Assembly of the State concerned,
and its continued recognition as such National or
State party shall thereafter be dependent upon the
fulfillment by it of the conditions specified in paragraph
6A or, as the case rnay be, paragraph 68.
(2) xx
xx
xx
xx
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8.
Choice of Symbols by candidates of National and
State Parties and allotment thereof -
(1)
A candidate set up by a National Party at any election
G
in any constituency ir:i India shall choose, and shall
be allotted, the symbols reserved for that party and
no other symbol.
(2)
A candidates set up by a State Party at an election
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in any constituency in a State in which such party is
a State Party, shall choose, and shall be allotted the
symbois reserved for that party in that State and no
other symbol.
(3)
A reserved symbol shall not be chosen by, or allotted
to, any candidate in any constituency other than a
candidate set up by a National Party for whom such
symbol has been reserved or a candidate set up 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 set up by such National or
State Party in that constituency.
10A Concession to candidates set up by an
unrecognized party which was earlier recognized
as a National or State party - If a political party,
which is unrecognized at present but was a
recognized National or State party in any State or
Union Territory not earlier than six years from the
date of notification of the election, sets up a
candidate at an election in a constituency in any State
or Union territory, whether such party was earlier
recognized in that State or Union territory or not, then
such candidate may, to the exclusion of all other
candidates in the constituency, be allotted the symbol
reserved earlier for that party when it was a
recognized National or State party, notwithstanding
that such symbol is not specified in the list of free
symbols for such State or Union territory, on the
fulfillment of each of the following conditions, namely:-
( a)
that an application is made to the Commission
by the said party for the exclusive allotment of
that symbol to the candidates set up by it not
later than the third day after the publication in
the Official Gazette of the notification calling
the election;
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SUBRAMANIAN SWAMY v. ELECTION COM. OF INDIA
861
THROUGH ITS SECRETARY [VS. SIRPURKAR, J.]
(b)
that the said candidate has made a declaration A
in his nomination paper that he has been set up
by that party at the election and that the party
has also fulfilled the requirements of clauses
~
)
(b}, (c), (d) and (e) of paragraph 13 read with
paragraph 13A in respect of such candidate;
B
and
(c)
that in th9 opinion of the Commission there is
no reasonable ground for refusing the
application for such allotment:
c
Provided that nothing contained in this
paragraph shall apply to a candidate set up by
the said party at an election in any constituency
in a State or Union Territory where the same
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symbol is already reserved for some other
National or State party in that State or Union D
Territory."
9. In support of his plea Dr. Swamy firstly pointed out that
Janata Party which came in existence in the year 1977 was
once upon a time a ruling party in the Parliament and was also
E
a recognized State Party in number of States. He impressed
upon us that thereafter also it continued to be a recognized party
and had retained its symbol throughout for fairly long period of
over 20 years without any interruption and it was only in the year
2000 when it lost its recognition, it faced the threat of losing the
F
reserved symbol of Chakra and Haldar. According to Dr.Swamy,
the said symbol had gone into the psyche of the public for a
long perioq of over two decades and as such there was no jus-
~
tification in firstly depriving the Janata Party of that symbol and
secondly allowing only six years as a concession period. This, G
~
according to Dr. Swamy, was an arbitrary exercise and the said
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provision of clause ~ OA suffered from arbitrariness and, therefore, did not pass the acid test of Article 14 of the Constitution
of India. Dr.Swamy also adds that to deprive a political party of
its symbol would amount to an undemocratic act.
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10. Dr.Swamy also very earnestly urged that the symbol
was conceived after a considerable intellectual exercise and
. thus became an intellectual property which could not be taken
away by a legislation and at any rate a provision like the impugned provision and providing only six years time for its reten-
" '
B tion with the Janata party would not be justifiable. In short
Dr.Swamy contends that "once a symbol always a symbol".
11. As against this Ms.Meenakshi Arora, learned counsel
appearing on behalf of the Commission firstly supported the
High Court judgment and pointed out that the petition suffered
c from basic defects which were of vital nature. Learned counsel
, .
also took us through the historical background of Symbols Order and pointed out that the symbol was integrally and inextricably connectE!d with the concept of recognition of the party and
since the appellant had never challenged and indeed could not
• ...
D so challenge the de-recognition of Janata Party as a recognized political party, there was no question of it being allowed
to insist on a reserved symbol which was the prerogative only
of the recognized political party. She further took us through the
aforementioned provisions and pointed out that the Symbols
E Order recognize only two kinds of symbols, they being, the re-
"·
served symbols and free symbols and, therefore, once the party
had lost its reserved symbol, it could be only treated as a free
symbol available to one and all without any exclusivity attached
to it. She further points out that in effect the appellant or as the
F case may be, his party, took benefit of the provisions of clause
1 OA for more than six years and it was only when it came on the
brink of losing the reserved symbol that the appellant approached
the court and thereby the appellant was not only guilty of latches
but of impropriety also. Learned counsel took us through a few
G decisions of this Court which we shall consider in the latter part
of this judgment.
12. On this backdrop we have to decide this ticklish ques1"
tion of the right of Janata Party to permanently retain its symbol.
There can be no doubt that a symbol particularly in case of an
H established political party is not only having a political implica-
> )
SUBRAMANIAN SWAMY v. ELECTION COM. OF INDIA.
863
THROUGH ITS SECRETARY [V.S. SIRPURKAR, J.]
,
tion but has also an emotional angle attached to it. This is apart A
from the fact that in India large population of whieh 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. But the basic question is whether B
a political party can be deprived of its symbol under such scenario and would such deprivation amount to an undemocratic
step as urged by appellant. In our opinion though the matter of
symbol is extremely sensitive one for a political party, it should
be or remain to be firstly a political party.
13. A "political party'' is defined in Section 2(h) as an associ!'!tion or body of individual citizens of India registered with
c
. the Commission as a political party under Section 29A of the
Representation of People Act, 1951 (hereinafter referred to as
"RP Act, 1951 ").That Section mandates that an application has D
to be made to the Election Commission for registration of any
party who wants to avail of the provisions of Part IY,A. Th.is application must contain the information as provided under Sections 4(a) to (g) which information includes,,amongst others,
the numerical strength of its members of various categories as E
also its representatives in House of Parliament or any State
Legislature. Such application must_accompa'ny the Rules and
Regulations for its internal functioni!lg. Sub-section (7) empowers the Election Commission a discretion to register such political party or to refuse the registration: One very important asF
pect is that vide Section 298 every political party may accept
voluntary contribution, donations or subscriptions etc. So also
Section 29C provides that the political party must prepare a
report in respect of the contributions received by it and such
report shall be submitted ~o the Election Commission. TaxreJief -G
. is also provided under that Section. There is no doubt that .
Janata Party is such a registered political party under Section _
29A. The Section clearly shows that a political party must, therefore, have followings. One cannot imagine a political party without any substantial following.
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14. As has been pointed out by Ms.Arora for good long 17
years there was no concept of a recognized political party as till
then there was no Symbols Order. It came on the anvil only on
31•1 August, 1968. The purpose of bringing in existence this
Symbols Order was to maintain the purity of elections so that
elections should be conducted in a fair and efficient manner as
also for specification, reservation, choice and allotment of symbols as also for the recognition of political parties in relation to
the symbols. The Preamble suggests, among other things, that
there was a need to recognise the political parties for the purposes of specification, reservation, choice and allotment of symbols. This has probably become necessary on account of firstly
increase in the number of parties on political stage of India as
also because of the emergence of the State parties. It must be
immediately remembered that till then the Symbols were being
granted in keeping with the tradition of a particular party having
a particular symbol but there was a complete absence of any
Rules on such a sensitive aspect like symbols. This emergence
of large number of political parties on the national and local levels and their interest in the elections necessitated bringing of
the Symbols Order. A new concept of a recognized political party
came on the anvil via this Symbols Order. Clause 5 of the Symbols Order is extremely significant and recognized only two kinds
of symbols, they being reserved symbols and free symbols. The
reserved symbols are necessarily reserved for the exclusive
allotment to the candidates of a recognized political party
whereas all other symbols are free symbols. Clause 6 is extremely important inasmuch as it introduces for the first time, a
classification of political parties as recognized political parties
and unrecognized political parties. It must be remembered that
there are only two classifications provided by Clause 6. Clause
6A, 68 and 6C provide for the condition of recognition of a political party on the national and/or State level. We need not, at
this stage, go into the intricacies of clauses 6A, 68 and GC but
suffice it to say that in order to have that status, the said political
party must be an effective political party in the sense that it must
share a particular percentage of votes in the national or the State
SUBRAMANIAN SWAMY v. ELECTION COM. OF INDIA
865
THROUGH ITS SECRETARY [V.S. SIRPURKAR, J.]
level elections or it must have certain number of elected repreA
sentatives in Lok Sabha or the State Legislatures. It is this concept which introduces that in order to be a recognised political
party, it must perform well in the elections and thereby pass the
;.
)
acid test of "following". Therefore, unless there is a following of
·the nature provided in Clauses 6A, 68 and 6C, the political party B
does not remain a recognized political party. Once this position
is clear, the other extremely important position .which has to be
considered is that a reserved symbol is available only for the
recognized parties. Thus, there is a bond created between recognized political party and its symbol.
c
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
• j.
that a party must have a following and it is only a political party
....
having substantial following in terms of Clauses 6A, 68 and 6C D
would have a right for a reserved symbol. Thus, in our opinion, it
is perfectly 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 arguE
ment of Dr.Swamy that in providing the symbols and reserving
them for the recognized political parties alone amounted to an
undemocratic act.
16. This takes us to the next leg of arguments that Clause
10A suffers from arbitrariness in providing only six years of adF
ditional period to retain its symbol even after a particular political party loses its status as a recognized political party. Dr.
Swamy very fairly conceded that he has no quarrel, atleast at
this stage, against the derecognition of Janata Party as recognized political party and indeed he could not have any grudge G
since this Court has repelled the challenge to the decision taken
'I
by the Election Commission for such a derecognition. We are,
therefore, left with a limited challenge to the constitutionality of
Clause 10A.
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17. According to Dr.Swamy there was no rationale in providing only six years under clause 1 QA and he wondered as to
why the period should be limited only to six years. We do not see
any irrationality or arbitrariness in providing six years time as an
additional period for retaining the exclusive symbol for the simple
B reason that within that period there is bound to be one or more
general elections on the national level.