DESIYA MURPOKKU DRAVIDA KAZHAGAM AND ANR.versusTHE ELECTION COMMISSION OF INDIA

                           (2011] 3 S.C.R. 920

A      DESIYA MURPOKKU DRAVIDA KAZHAGAM AND ANR.
                                    V.
               THE ELECTION COMMISSION OF INDIA
                 (Writ Petition (C) No. 532 of 2008)
                            MARCH 16, 2011
B
           [ALTAMAS KABIR AND CYRIAC JOSEPH, JJ.]

          Election Symbols (Reservation and allotment) Order,
      1968:
c
          Object of its enactment J Discussed.
            Paragraphs 6A(i), (ii), 6B(A)(ii), 9(a), 9(b), 1OA, 11,
       12(1)(c) and 13(3)(a)- Validity of, challenged- Writ petitions
      and special leave petitions - Registered unrecognized
D     political parties seeking direction to the Election Commission
      of India to allot common election symbols to their candidates
      in the ensuing elections to State legislative assembly -
      Elections process already set into motion in the State of Tamil
      Nadu - Held: An interim arrangement was made on 27th
E     March, 2009. - At that time, registered unrecognized political
      parties before the Court were only three in numbers -
      Although it would be to the advantage of the registered
      unrecognized political parties if they are able to put up
      candidates on a common symbol, however, in the light of
F     present situation when number of candidates who are likely
      to contest the elections and are required to be provided with
      free symbols in each constituency has increased, if all
      unrecognized registered political parties are provided with a
      common symbol, it would render the provisions of the Order
G     completely unworkable and destroy the very object it seeks
      to achieve - In view of the said two possibilities, no interim
      arrangement made regarding the allotment of election
      symbols for the forthcoming General Assembly Elections -
      This would, however, not effect the final outcome of the
1-1                                 920
  DESIYA MURPOKKU DRAVlDA KAZHAGAM v. THE 921
          ELECTION COMMN. OF INDIA
  pending writ petitions and special leave petitions - Petitions A
  liste.d for final disposal - Constitution of India, 1950 - Article
  324 - Representation of the People Act, 1951 - s.29A -
  Conduct of Election Rules, ·161 - rr.5, 10- Notification no.561
  2000/JUD-lll dated 1.12.2000.
                                                                     B
         Words and phrases: Expression 'recognized political
· party, 'free symbol' and 'reserved symbol' - Meaning of, in the
  context of Election symbols (Reservation and allotment)
  Order, 1968.

    CIVIL ORIGINAL JURISDICTION : Under Article 32 of the C
 Constitution of India.

      Writ Petition (Civil) No. 532 of 2008.
                              WITH
                                                                    D
 W.P. (C) Nos. 132, 315, 422, 426, 444, 447, 454 and 463 of
 2009, SLP (C) Nos. 23494 & 7379-80 of 2009 and W.P. (C)
 Nos. 111 & 117 of 2011
     K.K. Venugopal, Mukul Rohatagi, Rajiv Dutta, Jaideep E
 Gupta, Ashok Desai, Col. Edwin Jesudass, Rukhsana
 Choudhary, S. ~avi Shankar, Hari Shankar K.R. Nedumaran,
                                      1
 Pranav Kumar, Harinder Mohan Singh, Shuvodeep Roy, Rajiv
 Shankar Dvivedi, Ankur Mittal, Anil Kumar Mishra, Vijaya
 Bhaskar, V.P. Sengottuvel, Vikas Singh Jangra, S. Ravi F
 Shankar, S. Yamunah Nachiar, R. Sharath, Satish Galla, N.R.
 Raman, Kumar Dushyant Singh, Anil Hooda, Sanjay Sharma,
 Padmakar Tripathi, Manoj Goel, Naushad Ahmad Khan, V.
 Elanchezhiyan, Subuhi Khan, Aftab Ali Khan, Pravin Satale,
 Sanjay R. Hegde, Abhishek Malviya, K.R. Joshi, Ramesh Babu
 M.R., Meenakshi Arora, S.K. Mendiratta, Poli Kataki, Vijay G
 Kumar, Vishwajit Singh, Ramehs N. Keswani, Ram Lal Roy,
 Lawyer's Knit & Co., Venkateswara Rao Anumolu, Jogy Scaria
 and Keswani & Co., for the appearing parties.
                                                                    H
    922      SUPREME COURT REPORTS                   [2011] 3 S.C.R.


A         The Order of the Court was delivered by

                               ORDER

         ALTAMAS KABIR, J. 1. The common challenge in these
    eleven Writ Petitions and three Special Leave Petitions is to
B   the provisions of Paragraph 6A(i) & (ii), Paragraph 6B(A)(ii),
    Paragraph 9(a) and (b), Paragraphs 1OA, 11, 12(1)(c) and
    Paragraph 12(3)(a) of the Election Symbols (Reservation and
    Allotment) Order, 1968, as amended from time to time.
    However, on account of paucity of time in the light of the election
C   process being set into motion in the State of Tamil Nadu, we
    decided to focus our attention to the possibility of making a
    temporary arrangement till the Writ Petitions and the Special
    Leave Petitions could be decided finally.

D        2. Article 324 of the Constitution of India vests the
    superintendence, direction and control of the preparation of the
    electoral rolls for and the conduct of elections in the Election
    Commission. Since we shall be referring to the said provision
    hereinafter, the same is extracted hereinbelow :
E         "324. Superintendence, direction and control of elections
          to be vested in an Election Commission

          (1) The superintendence, direction and control of the
          preparation of the electoral rolls for, and the conduct of,
F         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"

         3. Section 29A of the Representation of the People Act,
G   1951, which comes under Part IVA thereof, provides for the
    registration of associations and bodies as political parties with
    the Election Commission. Since the same will also have an
    impact on what is indicated hereinbelow, the provisions of
    Section 29A(1) are extracted below :
H
DESIYA MURPOKKU DRAVIDA KAZHAGAM v. THE 923
ELECTION COMMN. OF INDIA [ALTAMAS KABIR, J.]

    "29A. Registration with the Election Commission of A
    associations and bodies as political parties. - (1) 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 a political party  s
    for the purposes of this Act."

     4. Since the facts in all these matters are more or less
similar, we are treating W.P.(C)No.532 of 2008, filed by Desiya
Murpokku Dravida Kazhagam, as the lead case in this group
of matters. Incidentally, it may be indicated that SLP(C) C
Nos. 7379-80 of 2009 have .been filed by the Election
Commission of India for quashing of the order of the High Court
of Andhra Pradesh directing the Election Commission to
consider allotment of a common symbol to the Lok SattaParty
and other similarly situated unrecognized registered political D
parties. Similarly, W.P.(C)No.463 of '2009 and
SLP(C)No.23494 of 2009 have been filed by certain registered
unrecognized political parties for a direction upon the Election
Commission oflndia to allot common election symbols to their
candidates in the ensuing elections to the State Legislative E
Assembly. One of the States in question is the State of Tamil
Nadu, in respect whereof Writ Petition (C) No.532 of 2008 has
been filed by Desiya Murpokku Dravida Kazhagam, hereinafter
referred to as "DMDK", & Anr. We have been informed that the
date for notifying the election programme in the State of lamil F
Nadu has been fixed as 16th April, 2011 and the filing of
nomination papers for the election is said to be scheduled
between 19th and 26th April, 2011. All other subsequent steps
are to be taken thereafter.
                                                                   G
     5. Appearing in support of the Writ Petition, Mr. K.K.
Venugopal, learned Senior Advocate, submitted that the
Petitioner No.1 is a registered unrecognized political party and
the Petitioner No.2 is a registered voter in the State of Tamil
                                                                   H
    924      SUPREME COURT REPORTS                    [2011) 3 S.C.R.


A · .Nadu. It was submitted that the DMDK contested 232 out of
     234 constituencies in the 2006 Assembly Elections in the State
     of Tamil Nadu, which were the first elections which the party had
    contested within 8 months of its formation, and, although, it was
     an unrecognized political party, all its candidates were allotted
B the "Nagara" symbol in 224 out of 232 constituencies. In respect
     of the remaining 8 constituencies, the party candidates were
     allotted the "Beil" symbol in 6 constituencies and the "Ring"
     symbol in the remaining 2 constituencies. Mr. Venugopal
     submitted that the party had secured approximately 8.33% of
c the total valid votes polled in the State of Tamil Nadu, and it
     ultimately emerged as the third largest party in the State in terms
     of votes secured, without any electoral alliance with any other
     party or formation. Mr. Venugopal also submitted that the
     President of the Petitioner Party, Shri Vijaya Kant, contested
0 the election from the Virudhachalam Assembly under the
     "Nagara" symbol and won the seat by a margin of 13,797 votes.
     Learned counsel submitted that despite the large number of
     votes that had been cast in its favour during the Assembly
     Elections, the DMDK Party was able to win only one seat in
E the Assembly Elections and that is the Virudhachalam
    Assembly Constituency mentioned hereinabove.
       6. Mr. Venugopal also submitted that it was the grievance
  of the Petitioner Party that inspite of its reasonable performance
  in the State Assembly elections, its prayer for recognition as a
F State Party had been denied by the Election Commission of
  India in view of Paragraph 68 of the Election Symbols
  (Reservation and Allotment) Order, 1968, hereinafter referred
  to as the "Election Symbols Order, 1968".
G      7. In order to appreciate the submissions advanced by Mr.
  Venugopal, it is necessary to refer to some of the relevant
  provisions of the Election Symbols Order, 1968. The said Order
  was made by the Election Commission of India in exercise of
  the powers conferred on it by Article 324 of the Constitution
H read with Section 29A of the Representation of the People Act,
DESIYA MURPOKKU DRAVIDA KAZHAGAM v. THE 925
ELECTION COMMN. OF INDIA [ALTAMAS KABIR, J.] .

1951, hereinafter referred to as the "1951 Act", and Rules 5 A
and 10 of the Conduct of Election Rules, 1961, hereinafter
referred to as the "1961 Rules". The said Order was
promulgated in order to provide for specification, reservation,
choice and allotment of symbols at elections in Parliamentary
and Assembly constituencies, for the recognition of political 8
parties in relation thereto and for matters connected therewith.
Paragraph 4 of the Order provides for allotment of symbols and
stipulates that in every contested election a symbol has to be
allotted to a contesting candidate in accordance with the
provisions of the Order and different symbols are to be allotted C
to different contesting candidates at an election in the same
constituency.
      8. Paragraph 5 of the aforesaid Order provides for the
classification of symbols and divides symbols into two
                                                                     0
categories, namely, "reserved" and "free". It indicates that 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, whereas a free symbol is a symbol other
than a reserved symbol. At this point, it may also be indicated
that the Election Symbols Order, 1968, underwent certain             E
changes in 2000 and 2005. Prior to its amendment, Paragraph
6, as it stood when the Order was promulgated in 1968, inter
alia, provides that for the classification of symbols, political
parties were to be categorized either as "recognized" political
parties or "unrecognized" political parties and that a political     F
party would be listed as a recognized political party in a State,
if and only if either of the conditions specified in Clause (A) or
the conditions in Clause (8) were fulfilled by that party and not
otherwise. Clause (A) makes it imperative that such a political
party wot•ld have had to be engaged in political activity for a      G
continuous .,ariod of five years; and had at the General Election
in that State to the House of the People or to the Legislative
Assembly, for the time being in existence and functioning,
returned at least one member to the House of the People for
every 25 members of that House or any fr"ction of that number        H
    926      SUPREME COURT REPORTS                    [2011) 3 S.C.R.


A   of that State; or at least one member to the Legislative
    Assembly of that State for every 30 members of that Assembly
    or any fraction of that number. Paragraph 6 was subsequently
    expanded into Paragraphs 6, 6A, 68 and 6C by Notification
    No.56 dated 1st December, 2000. Paragraph 6A was again
B   revised on 14th May, 2005, and set down certain conditions
    for recognition of a political party as a State Party. Paragraph
    6A, as amended in 2005, provides as follows :

          "6A. Conditions for recognition as a State Party - A
          political party shall be eligible for recognition as a State
c         party in a State, if, and only if, any of the following
          conditions is fulfilled:

          (i) At the last general election to the Legislative Assembly
          of the State, the candidates set up by the party "' ... ve
D         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
E
          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
F
          (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
G         three seats in the Assembly, whichever is more; or
          (iv) At the last general election to the House of the People
          from the 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."
H
' DESIYA MURPOKKU DRAVIDA KAZHAGAM v. THE 927
 ELECTION COMMN. OF INDIA [ALTAMAS KABIR, J.]
                                                              •
     As has been indicated hereinabove, the major challenge       A
in these Special Leave Petitions and Writ Petitions is to the
validity of this provision.

     19. Paragraphs 6A and 68 set out conditions for the
recognition of a registered unrecognized party as a National
                                                               8
Party and a State Party and Paragraph 6C deals with
conditions _for continued recognition as a National or State
Party. The outcome of the Election Symbols Order, 1968, is
that certain norms have been laid down in order to minimize
the number -of parties contesting an election since many
persons forming themselves into a political party tend to take C
advantage of the other liberal provisions of the Order.

      20. Mr. Venugopal urged that even prior to the Notificatiort
of 1st December, 2000, certain other amendments had been
effected to the Election Symbols Order, 1968, in 1997 and D
1999, whereby Paragraphs 10 and 10A were substituted. For
instance, certain concessions are provided 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 E
party, then such candidate may, to the exclusion of other
candidates of the constituency, be allotted the symbol reserved
for that party in that State or States, in which it is recognized
as a State Party, notwithstanding that such symbol is not
specified in the list of "free" symbols for such other State or F
Union Territory, upon fulfillment of further conditions, namely,


           "(a) that an application is made to the Commission
    hv the said party for exclusive allotment of that symbol to
    the ~andidate set up by it, not later than the third day after G
    the pui.JH,.~tion in the Official Gazette of the notification
    calling the election;

    (b) that the said candidate has made a declaration in his
    nomination paper that he has bee" ~et up by that party at     H
    928       SUPREME COURT REPORTS                 [2011] 3 S.C.R.


A         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;
          and
          (c) that in the opinion of the Commission there is no
8
          reasonable ground for refusing the application for such
          allotment.

          Provided that nothing contained in this paragraph shall
          apply to a candidate set up by a State Party at an election
c         in any constituency in a State in which that party is not a
          State Party and where the same symbol is already
          reserved for some other State Party in that State."
       21. Paragraph 1OA makes similar concessions in respect
0 of candidates set up by an unrecognized party which was
  earlier recognized as a National or State Party. Mr, Venugopal
  submitted that Paragraph 6A, as amended, was highly arbitrary
  and negatively impacted upon the functioning and development
  of a multi-party democracy. Learned counsel submitted that the
E right to cast a vote allows a voter to make an intelligent choice,
  but unfortunately he is often unable to identify the political party
  to which a candidate belongs in addition to identifying a
  candidate. According to Mr. Venugopal, it is the percentage of
  the votes obtained at the previous elections which alone should
  be the criteria for recognition of a State Political Party and not
F the number of seats such party wins. Mr. Venugopal showed
  us several instances where even with a lower percentage of
  votes than other parties, a political party has come to power
  and has formed the Government. Mr. Venugopal urged that
  rather than the number of seats won, the number of votes polled
G by a· State Political Party should really be the yardstick for
  recognition of a State Political Party.
      22. It was submitted that the interim arrangement which
  had been made by the order dated 27th March, 2009, could
H be continued for the present General Elections as well.
  DESIYA MURPOKKU DRAVIDA KAZHAGAM v. THE 929
  ELECTION COMMN. OF INDIA [ALTAMAS KABIR, J.]

        23. Adopting Mr. Venugopal"s submissions, Mr. Mukul             A
. Rohtagi, learned Senior Advocate, appearing for the Writ
  Petitioner, Kongunadu Munnetra Kazhagam, in Writ Petition (C}
  No.315 of 2009, contended that ln the 2009 Parliamentary
  Elections the party had contested 12 out of 39 Parliamentary
  seats and "Gas Cylinder" as a symbol was allotted to all twelve       B
  candidates. In fact, the identity of candidates set up by the party
  came to be r:--:• •ated with the "Gas Cylinder" symbol and not
  as a free symbol, so much so that candidates who were
  provided with "Gas Cylinder" as an election symbol in other
  constituencies where the party had not put up any candidate,          c
  benefitted and had polled a large number of votes which they
  had never expected to get.

      24. All the other learned counsel appearing for the other
Writ Petitioners and Special Leave Petitioners, while adopting
Mr. Venugopal's submissions; in one voice urged that the                D
candidates to be put up by them as registered but unrecognised
political parties may be provided with a common symbol in the
constituencies in which they contest and such symbol may not
be made available to other candidates as a free symbol. It was
urged, as had been urged by Mr. Rohtagi, that after an election,        E
voters come to associate the candidate of a party with the
symbol under which he had fought the earlier election.

       25. In reply, it was contended by Mr. Ashok Desai, learned
 Senior Advocate, appearing for the Election Commission that            F
 there were only a limited number of election symbols available
.as free symbols to the Election Commission and if all the
 registered unrecognized parties were to be accommodated by
 an interim arrangement in direct contrast to the Election
 Symbols Order, 1968, framed by the Election Commission, it             G
 would really amount to achieving something by an interim order
 which it could not achieve under the existing laws. Mr. Desai
 submitted that in its wisdom, the Election Commission had
 made certain Orders which, in its view, would contain the vice
 of fragmentation of seats leading to ultimate uncertainty in the       H
    930      SUPREME COURT REPORTS .                 [2011] 3 S.C.R.

A House. Mr. Desai contended that a great deal of thought and
  deliberation had gone into the making_ of the amendments in
  2000 and 2005 in the Election Symbols Order, 1968, which
  ought not to be diluted for the purpose of making an interim
  arrangement as had been done earlier.
B
        26. As we have indicated hereinbefore, the major challenge
  in these Writ Petitions and the Special Leave Petitions is to
  the validity of paragraph 6A of the Election Symbols Order,
  1968, as it exists today. Keeping the same in mind, we have
C looked into the un-amended as well as the amended provisions
  of the Election Symbols Order, 1968. As on date, paragraph
  6B as notified under Notification No.56/2000/JUD-lll dated 1st
  December, 2000, for the purpose of recognition of a State Party
  is in force and it provides that in order to be recognized as a
  State Party, a Political Party, other than a National Party, shall
D be treated as a recognized State Party in a State or States, if
  and only if, either the candidates set up by it at the last General
  Elections to the House of People or to the Legislative
  Assembly of the State concerned had secured not less than six
  per cent of the total valid votes polled in that State at the General
E Elections and in addition, it has returned at least two members
  to the Legislative Assembly at the State in the last General
  Elections tci that Assembly. Of course, the said notification is
  the subject matter of challenge in the present proceedings and
  is in existence by way of delegated legislation. If interim
F arrangement made earlier is to be continued it would be directly
  in violation of the said provisions. Such an arrangement cannot
  be made unless the operation of the impugned provision is
  stayed. At this stage we are not inclined to stay the impugned
  provision.             •
G
         27. When the interim arrangements were made on 27th
 · March, 2009, the registered unrecognized political parties
    before the Court were only three in number, whereas presently
    many others have joined the bandwagon. What we are required
H · to consider at this stage is whether despite the· above, any
 DES.IYA MURPOKKU DRAVIDA KAZHAGAM v. THE 931
 ELECTION COMMN. OF INDIA [ALTAMAS KABIR, J.]

  prejudice would be caused to any of the stakeholders in the        A
  election procass, if such prayer was allowed. It would certainly
  be to the advantage of the registered unrecognized political
: parties if they were able to put up candidates on a common
  symbol. On the other hand, if all registered unrecognized
  political. parties were to be provided with a common symbol,       B
  prima facie, it would render the provisions of the Election
  Symi:-~ 1 ~ Order, 1968, completely unworkable and destroy the
  very object it seeks to achieve ..

      28. Having regard to the aforesaid two possibilities, we
 are not inclined to make any interim arrangementsimilar to that     C
 made on an earlier occasion. The earlier interim arrangement
 was possible on account of the lesser number of parties, but
 in the present circumstances, the same will not be workable in
 view of the number of candidates who are likely to contest the
 elections and are required to be provided wi.th free symbols in     D
 each constituency.

       29. However, while we are not inclined to make any interim
 arrangement rGgarding the allotment of election symbols for the
 forthcoming General Assembly Elections, we make it clear that       E
             a
 this is only tentative view, which shall not, in any way, affect
 the final outcome ofthe pending Writ Petitions and Special
 Leave Petitions. We also make it clear that this order will not
 prevent the Election. Commission from considering any
 representati9:i that may be made by the political parties and       F
 from accommodating their prayer for a common symbol, to the
·extent practically possible.

     30. Let these eleven Writ PetiUons and three Special
 Leave Petitions be listed for final disposal ori 3rd May, 2011.
                                                                     G
 D.G.                                          Matter adjourned.