DESIYA MURPOKKU DRAVIDA KAZHAGAM & ANR. v. THE ELECTION COMMISSION OF INDIA

A Commission or any other body. However, the Election Commission, from its very inception, duly took note of the existence of the political parties in this country for the purpose of discharging its constitutional obligation of the conduct of elections to Parliament and the Legislatures of various States B apart from the elections to the Office of the President and the Vice President.

7Copy pinpoint7. On 30-07-1957, the Election Commission held a Conference, where 7 well established political parties, then organised on All India basis, participated. Whether a system of pictorial symbols is to be adopted to make the task of the voters easy for identifying the party I candidate they choose to vote and a distinctive symbol should be allotted to each of the political parties, was one of the items discussed in the said Conference, having regard to the large scale illiteracy of the voters. A consensus was arrived at in the abovementioned Conference to adopt such a system. "Symbolism is a primitive but effective way of communicating ideas. The use of emblem or flag to symbolise some system, idea, institution or personalisation is a short cut from mind to mind". E

8Copy pinpoint8. The first general elections ever held in the Republic of India were in the year 1952. It may not be out of place to mention that in the said election the symbol allotted to a contesting political party's candidate was marked on a F separate box in each of the polling station. Goes without saying that there were as many ballot boxes in each of the polling stations as there were contesting candidates with reference to each of the constituencies. The system of maintaining separate ballot boxes for each of the names of contesting candidates G disappeared in due course of time. A system of a 'ballot paper' with multiple names of the contesting candidates with the candidate's election symbol indicated against each of the contesting candidates came to be adopted. With the advancement of technology, even the abovementioned system was discarded in favour of Electronic Voting Machine (EVM), H but the practice of using the pictorial symbol still continues.

DESIYA MURPOKKU DRAVIDA KAZHAGAM v. ELECTION1121 COMMISSION OF INDIA (J. CHELAMESWAR, J.]

9Copy pinpoint9. The purpose behind the adoption of the system of A pictorial symbol was considered by this Court in Shri Sadiq Ali and anr. v. The Election Commission Of India, New Delhi and Ors. (1972) 4 sec 664, as under:

"....... It may be pertinent to find out the reasons which led 8 to the introduction of symbols. It is well known that overwhelming majority of the electorate are illiterate. It was realised that in view of the handicap of illiteracy, it might not be possible for the illiterate voters to cast their votes in favour of the candidate of their choice unless there was some pictorial representation on the ballot paper itself whereby such voters might identify the candidate of their choice. Symbols were accordingly brought into use. Symbols or emblems are not a peculiar feature of the election law of India. In some countries, details in the form of letters of alphabet or numbers are added against the name of each candidate while in others, resort is made to symbols or emblems. The object is to ensure that the process of election is a genuine and fair as possible and that no elector should suffer from any handicap in casting his vote in favour of a candidate of his choice." E

And also, at para 9 in Kanhiya Lal Omar v. R.K. Trivedi and Ors (1985) 4 SCC 628, it is held as under:

"............... India is a country which consists of millions of voters. Although they are quite conscious of their duties politically, unfortunately, a larger percentage of them are still illiterate. Hence there is need for using symbols to denote the candidates who contest elections so that the illiterate voter may cast his vote in secrecy in favour of the candidate of his choice by identifying him with the help of the symbol printed on the ballot paper against his name."

10Copy pinpoint10. In the Conference dated 30-07-1957, referred to earlier, there was a general agreement among all the participants on various items; relevant in the context is that; "the H

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A same symbol would be used throughout India for all candidates of a party, both for parliamentary and assembly elections" 2 . As a consequence of the consensus arrived at the said Conference, the Election Commission gave "recognition" to fourteen political parties as National I Multi State parties and B allotted to each of them a specific symbol. Such a recognition was accorded in exercise of the general power of superintendence conferred on the Election Commission under Article 324 3 r/w 5(1 )4 of the Conduct of Election Rules, 1961.

2. see How India votes Elections Laws, Practice and Procedure, by V.S. Ramadevi and S.K. Mendiratta page 551.

3. Article 324. Superintendence, direction and control of elections to be vested in an Election Commission:- D (1) The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and elections to the offices of President and Vice President held under this Constitution shall be vested in a Commission (referred to in this Constitution as the Election Commission) (2) .... . E (3) .... . (4) ... .. (5) Subject to the provisions of any law made by Parliament, the conditions of service and tenure of office of the Election Commissioners and the Regional Commissioners shall be such as the President may by rule determine; Provided that the Chief Election Commissioner shall not be removed from F his office except in like manner and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment: Provided further that any other Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner. (6) The President, or the Governor of a .State, shall, when so requested by the G Election Commission, make available to the Election Commission or to a Regional Commissioner such staff as may be necessary for the discharge of the functions conferred on the Election Commission by clause (1).

4. Rule5(1 ): 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 candidates at elections in parliamentary or assembly H constituencies and the restrictions to which their choice shall be subject.

DESIYA MURPOKKU DRAVIDA KAZHAGAM v. ELECTION1123 COMMISSION OF INDIA [J. CHELAMESWAR, J.]

11Copy pinpoint11. After the first General Elections, the Election A Commission decided to withdraw recognition of those political parties whose poll performance was poor. Parties, which polled a minimum of 3 per cent of the votes at the first General Elections, were allowed to retain their recognition and the recognition accorded earlier to the other parties was withdrawn. B The said percentage was raised to 4 after the third General Elections in 1962. The situation continued the same till 1967. What happened thereafter can be conveniently explained by extracting a passage from the 'How India Votes Election Laws, Practice and Procedure', by V.S. Ramadevi and S.K. c Mendiratta:

"After the fourth general elections in 1967, the Election Commission considered it more desirable to codify the provisions relating to recognition of political parties and all matters connected therewith at one place, so that all concerned and interested may be fully aware of the prescribed requirements and may regulate their functioning accordingly. Further, the Commission considered it appropriate and desirable that there should also be provision for registration of political parties and that such registration should be made a condition precedent for recognition of any party for the purposes of the election law.

Accordingly, the Commission promulgated on 31 August 1968, an Order called the Election Symbols (Reservation F and Allotment) Order 1968, which is still in force. The Order made detailed provisions for registration of parties, their recognition and all matters connected therewith, together with the provisions for specification, reservation, choice and allotment of symbols at elections. Paragraph 18 of that G Order vests in the Election Commission all residuary powers to remove any difficulty arising in the implementation of that Order or to deal with a situation for which no provision. or insufficient provision is made in that Order." H

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12Copy pinpoint12. The Symbols Order, 1968, was made by the Election Commission, purportedly, in exercise of the power conferred on it by Article 324 of the Constitution r/w Rules 5 and 10 of the Conduct of Elections Rules, 1961, initially. Pursuant to the introduction of Section 29A in the R.P. Act, 1951, the Election B Commission purports to draw authority from the said Section also. Para 4 of the said Order postulates the allotment of a symbol to each contesting candidate at every contested election of a given constituency. Under para 5, symbols are classified into two groups; reserved and free. Para 5 reads as follows: c "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 recognised D 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." E Emphasis supplied

It can be seen from the above that certain symbols are reserved exclusively for the allotment to the candidates set up by a recognised political party. Para 65 of the said Order empowers the Election Commission·to classify the political parties as either recognised political parties or unrecognised political parties. It further stipulates that a recognised political party can either be a National Party or a State Party.

13Copy pinpoint13. Paras 6A and 68 of the said Order stipulate the conditions, which are required to be fulfilled by any political party, if it is to be classified as a recognised political party. In

5. Rule 6: For the purposes of this Order and for such other purposes as the Commission may specify an and when necessity therefor arises, political parties are either recognised political parties or unrecognised political parties.

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COMMISSION OF INDIA [J. CHELAMESWAR, J.)

the case of a State Party, para 6A stipulates the conditions, which are required to be fulfilled I satisfied, while para 68 stipulates the conditions for a National Party. Broadly speaking, in either case (National Party and State Party), the requirement is, participation in one general election either to the Parliament or to the corresponding State Legislature, before seeking recognition, and procuring there at a certain minimum percentage of validly po!!ed votes and also securing a minimum number of seats, specified therein. Such conditions stipulated under paras 6A and 68 varied from time to time.

14Copy pinpoint14. All the petitioners are aggrieved by the Symbols Order, c 1968 as it stood amended up to May 2005. Since, these parties are, admittedly, unrecognised political parties, they did not have a reserved symbol for exclusive allotment to the candidates setup by those parties at elections. It is also not out of place to mention that during the pendency of these petitions, D the said Order came to be amended again by Notification date 16-09-2011.

15Copy pinpoint15. The conditions, which are required to be satisfied for a political party to be classified as a recognised political party E (State), thereby entitling it for the exclusive allotment of a common symbol to all its candidates at any election (under the Symbol Order, 1968, as it stood amended up to 2005), are contained in para 6A of the said Order, which came to be substituted for the original para6A by a Notification dated 14- F 05-2005.

"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 fo!!owing conditions is fulfilled: G

(i) At the last general election to the Legislative Assembly of the State, the candidates set up by the party have secured not Jess than six percent of the total valid votes polled in the State; and, in addition, the party has returned H

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A 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 B 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 c 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 the People D 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."

From the above it can be seen that to secure recognition, a E political party must satisfy the following conditions:

(1) that it must have contested one general election to the Legislative Assembly of the concerned State and the candidates setup by the party must have secured cumulatively not less than 6 % of the total valid votes polled in the State and also must have returned, at least, two Members to the Legislative Assembly at such an election;

(2) in the alternative, the party must have contested the election to the Lok Sabha from that State and the candidates setup by the party must have cumulatively secured not less than 6% of the total valid votes polled in the State, apart from returning, at least, one Member to the Lok Sabha; H

DESIYA MURPOKKU DRAVIDA KAZHAGAM v. ELECTION 1127

COMMISSION OF INDIA [J. CHELAMESWAR, J.]

(3) a third alternative condition, which if fulfilled would A entitle the party for recognition, is that the party must have contested the general election to the Legislative Assembly and won, at least, 3% of the total number of seats or 3 seats, whichever is higher; B (4) in the alternative, the party must have contested the election to the Lok Sabha and returned, at least, one Member to the House of the People for every 25 Members allotted to that State. c

16Copy pinpoint16. Since, none of the political parties before us satisfied any one of the abovementioned conditions, they were not classified as recognised political parties, thereby, they were unable to secure a common symbol for all their candidates at any election. Hence, the present batch of petitions. D

17Copy pinpoint17. The advantages that accrue to any political party by virtue of it being classified as a recognised political party are:

1. reservation of a symbol for the exclusive allotment to all the candidates setup by such party at any election; E

2. the candidates set up by such party are entitled to the supply of such number of copies of the "electoral roll" and "such other material" as may be prescribed, free of cost (see Sections 78A and 788 of the R.P. Act); and

3. allocation of equitable sharing of time on the cable F television network and other electronic media, by the Election Commission (Section 39A of the RP.Act.)

18Copy pinpoint18. Para 6C 6 of the Symbols Order, stipulates that a

6. SC. Conditions for continued recognition as a National or State party.- G If a political party is recognized as a State party under paragraph 6A, or a National party under paragraph 68, the question whether it shall continue to be so recognized after any subsequent general election to the House of the People or, as the case may be, to the Legislative Assembly of the State concerned, shall be dependent upon the fulfilment by it of the conditions specified in the said paragraphs on the results of that general election. H

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A recognised political party shall continue to enjoy that status for every succeeding general election and in the interregnum between two general elections only if it fulfils the conditions specified under para 6A or 68, (depending upon whether it is a National party or a State Party) in every successive general election. After each succeeding general election, obviously, an 8 assessment is made by the Election Commission whether such status of each of the political parties should continue or not. On such assessment, if it is found that a recognised political party failed to satisfy the conditions requisite for the continued recognition, such party would be derecognised. Though by virtue of para 10A, the effect of de-recognition, insofar it pertains to the exclusive use and allotment of the election symbol, which had been originally allotted to such party, stands postponed by certain period, but the other advantages, which are incidental to the status of a recognised political party, would be denied immediately on de-recognition.

19Copy pinpoint19. The substance of the abovementioned provisions of the allotment of Symbols Order is that, no political party is entitled for allotment or use of an election symbol permanently. E The allotment of an exclusive election symbol is available to a political party only so long as it is recognised by the Election Commission. Securing the recognition and its continuance depends upon the performance of the political party at every succeeding general election. Therefore, newly formed political parties are not entitled, as a matter of right, for the exclusive allotment of a common election symbol for the benefit of all the candidates set up by them at any election. Such candidates are required to choose one of the free symbols notified by the Election Commission. Allotment of a free symbol to the candidate depends upon the various factors, such as, the existence of a prior claim, etc., the details of which are not necessary for the purpose of this case. Therefore, all the candidates set up by a political party need not get the same symbol at a general election.

DESIYA MURPOKKU DRAVIDA KAZHAGAM v. ELECTION1129 COMMISSION OF INDIA [J. CHELAMESWAR, J.)

20Copy pinpoint20. Even in the case of an existing political party, which A was recognised at some anterior point of time, but lost the recognition in view of its inadequate performance at any general election or in the case of a political party, which contested a general election, but failed to satisfy the requisite standards of performance stipulated in the Symbols Order, a B common symbol would not be available for the exclusive use of such party's candidates at any subsequent election beyond a period specified in para 1OA.

21Copy pinpoint21. It is the abovementioned non-availability of a common symbol for the exclusive use of the candidates of political parties, which have not gained or continue to enjoy the status of a recognised political party, is the bone of contention in these petitions.

22Copy pinpoint22. It is submitted that the Symbols Order, insofar as it provides for the recognition and de-recognition of a registered political party, is; (i) arbitrary and violative of the Article 14 of the Constitution of India; it creates an artificial classification between recognised and unrecognised political parties without any rational nexus to the object sought to be achieved; and (ii) E violative of the fundamental rights guaranteed under Article 19(1)(a) & (c); to the members of the political party; and (iii) violative of the constitutional right of the members of the political party to participate in the electoral process by virtue of their being voters. F

23Copy pinpoint23. Elaborating the abovementioned grounds of attack, various submissions are made by the learned counsel appearing for the petitioners and the same are extensively incorporated in the Judgment of my learned brother Altamas Kabir, J. I, therefore, see no reason to repeat the same except G to briefly note the submissions made by the learned counsel for the Election Commission.

24Copy pinpoint24. It is the stand of the Election Commission that the rules of de-recognition or non-recognition of the political parties by H

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A the Election Commission are designed to prevent "insignificant political parties from gaining recognition". A political party, which failed to secure a minimum stipulated percentage of validly polled votes at a general election and return a minimum stipulated number of members to the Legislature, has no right B to claim either recognition or a permanent symbol. It is also submitted by Ms. Meenakshi Arora, that recognition of a political party by the Election Commission under the provisions of the Symbols Order not only enables the political party for the reservation and exclusive use of an electoral symbol in favour c of its candidates at any election, but also confers certain other advantages contemplated under Section 78A and 788 of the R.P. Act (which has been taken note of, earlier). Therefore, unrestricted and unregulated recognition of political parties would be an additional burden on the exchequer. The learned counsel, relying on N.P.Ponnuswamy v Returning Officer, 0 Namakka/ Constituency, 1952 SCR 218 and Jyothi Basu v. Debi Gosa/ (1982) 1 SCC 691, argued that all the electoral rights are creation of statutes and there is no common law right or a fundamental right vested in a political party or a candidate set up by a political party to contest an election. Equally, there E is no fundamental right either in favour of the political party or its members to seek the allotment of a permanent electoral symbol in favour of a political party irrespective of its following, which is to be judged, according to the learned counsel, solely based on its performance in a general election. The Election F Commission being charged with the responsibility, by the Constitution, of conducting the elections in this country, is constitutionally authorised 7 to take all measures for appropriately regulating each step of the electoral process in ensuring a free and fair electoral process, which is essential G for preserving the democratic structure established under the Constitution of the Republic of India.

25Copy pinpoint25. The learned counsel for the Election Commission further submitted that the question whether a political party once

H 7. (1985) 4 SCC 628 = Kanhiya Lal Omar v. R.K. Trivedi.

DESIYA MURPOKKU DRAVIDA KAZHAGAM v. ELECTION 1131

COMMISSION OF INDIA [J. CHELAMESWAR, J.]

recognised should retain its reserved symbol permanently fell for the consideration of this Court earlier in Subramanian Swamy v. Election Commission of India, (2008) 14 SCC 318, and the submission was refuted by this Court and, therefore, the same is no more res integra and cannot be reopened again.

26Copy pinpoint26. I am of the opinion that this batch of petitions raise basic issues of far-reaching consequences in the functioning of the democracy - which we the people of India have "solemnly resolved to constitute":

"No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined." - 376 US 1 Wesberry v. Sandors. D 'Electoral rights' subsume such distinct concerns as the citizen's right, the territorial constituencies' ability to choose a representative in the legislature - a political party's opportunity to gain access to power and a candidate's chance of securing a place in the legislature to voice the desires and aspirations of the community. They spring from a common root - the electoral process, which is source and product of the constitutional scheme of establishing a democratic republic.

27Copy pinpoint27. Before I examine the various submissions and the larger question involved in the petitions, one preliminary issue is required to be settled, i.e., in view of the earlier decision of this Court in Subramanian Swamy (supra), whether is it permissible for the petitioners to raise these various questions, which they are seeking to raise in this batch of petitions and right for this Court to examine the same ? G

28Copy pinpoint28. It is held by this Court in Golaknath v. State of Punjab (1967) 2 SCR 762, relying upon Superintendent & Legal Remembrancer State of West Bengal v. Corporation of Calcutta (1967) 2 SCR 170 and Bengal Immunity Company H

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A Limited v. State of Bihar (1955) 2 SCR 603, that there is "nothing in the constitution that prevented the Supreme Court from departing from the previous decisions of its own if it was satisfied of its error and of its harmful effect on the general interest of the public". If a principle laid down by this Court is 8 demonstrably inconsistent with the scheme of the Constitution, it becomes the duty of this Court to correct the wrong principle laid down. It is also the duty of this Court to correct itself as early as possible in the matters of the interpretation of the Constitution, "as perpetuation of a mistake will be harmful to C public interest". Therefore, in my opinion, the various legal issues raised by the petitioners are required to be examined.

29Copy pinpoint29. In Mohinder Singh Gill and anr. v. The Chief Election Commissioner, New Delhi and ors. (1978) 1 SCC 405, speaking for the Court, Justice Iyer· opined: D "23. Democracy is government by the people. It is a continual participative operation, not a cataclysmic, periodic exercise. The little man, in his multitude, marking his vote at the poll does a social audit of his Parliament E plus political choice of this proxy. Although the full flower of participative Government rarely.blossoms, the minimum credential of popular Government is appeal to the people after every term for a renewal of confidence. So we have adult franchise and general elections as constitutional compulsions. "The right of election is the very essence of F the constitution" (Junius). It needs little argument to hold that the heart of the Parliamentary system is free and fair elections periodically held, based on adult franchise, although social and economic democracy may demand much more." G

30Copy pinpoint30. Though this Court held that adult franchise and general elections are constitutional compulsions, it did not elaborate and explain the basis of such statement. The statement is less rhetoric and more legal than what it might sound for the following H

DESIYA MURPOKKU DRAVIDA KAZHAGAM v. ELECTION1133 COMMISSION OF INDIA [J. CHELAMESVvAR, J.]

reasons. Article 3268 , declares that the elections to the House A of the People and the Legislative Assembly of every State shall be on the basis of adult suffrage. Articles 81 (1 )(a) 9 and 83, cumulatively command that, 530 members of the House of the People (Lok Sabha) are required to be "chosen by direct election from the territorial constituencies in the State". Article B 81 (2)(b) 10 mandates that each State shall be divided into territorial constituencies in the manner specified therein, whereas Article 83(2)11 mandates that the duration of the House of the People shall be no longer than 5 years. The expiry of the period of 5 years .reckoned from the date of the first meeting c shall operate for dissolution of the House. These provisions cumulatively command a periodical election to the House of the People based on adult suffrage. Similarly, Articles 168, 170

8. Article 326. Elections to the House of the People and to the Legislative D Assemblies of States to be on the basis of adult suffrage: The elections to the House of the People and to the Legislative Assembly of every State shall be on the basis of adult suffrage; that is to say, every person who is a citizen of India and who is not less than eighteen years of age on such date as may be fixed in that behalf by or under any law made by the appropriate Legislature on the ground of non residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election.

9. Article 81(1)(a): not more than five hundred and thirty members chosen by direct election from territorial constituencies in the States, and

10. Article 81(2)(b) each State shall be divided into territorial constituencies in such manner that the ratio between the population of each constituency and number of seats allotted to it is, so far as practicable, the same throughout the State: Provided that the provisions of sub clause (a) of this clause shall not be applicable for the purpose of allotment of seats in the House of the People to any State so long as the population of that State does not exceed is millions.

11. Article 83(2) The House of the People, unless sooner dissolved, shall continue for five years from the date appointed for its first meeting and no longer and the expiration of the said period of five years shall operate as a dissolution of the House: Provided that the said period may, while a Proclamation of Emergency is in operation, be extended by Parliament by law for a period not exceeding one year at a time and not extending in any case beyond a period of six months after the Proclamation has ceased to operate. H

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A and 172 cumulatively command a periodical election based on adult suffrage tb the Legislative Assembly of a State.

31Copy pinpoint31. To ensure the conduct of periodic elections to these various legislative bodies, the Election Commission is established by the Constitution. It is endowed with such powers 8 necessary to enable the same to function as an independent constitutional entity to discharge the constitutional obligations entrusted to it untrammelled by the authority of the Executive 12 . This entire scheme of a representative democracy enshrined in the Constitution is for the purpose of achieving the C constitutional goal of establishing a "Democratic Republic" adumbrated in the preamble to the Constitution. It is in this background, this Court held in Mohinder Singh Gill and anr. (supra), "that the heart of the Parliamentary system is free and fair elections periodically held based on adult franchise". D

32Copy pinpoint32. It was held in Mohinder Singh Gill and anr. (supra):

"The most valuable right in a democratic polity is the 'little man's' little pencil-marking, accenting and dissenting, called his vote .............. Likewise, the little man's right, E in a representative system of Government to rise to Prime Ministership or Presidentship by use of the right to be candidate cannot be wished away by calling it of no civil moment. If civics mean anything to self-governing citizenry, if participatory democracy is not to be scuttled by law. F .......... The straightaway conclusion is that every Indian has a right to elect and be elected and this is constitutional as distinguished from a common law right and is entitled to cognizance by Courts, subject to statutory regulations." G The little man's rig~t in this country to become a member of any one of the Houses created by the Constitution metaphorically described by Justice Iyer as a right to 'rise to Prime

H 12. Article 324 : see foot note 1.

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COMMISSION OF INDIA [J. CHELAMESWAR, J.]

Ministership or Presidentship', emanates out of a necessary implication from the express language and scheme of the Constitution. It is already noticed that predominant majority of the seats in the House of the People and in Legislative Assembly of a State are required to be filled up by 'direct election' from the 'territorial constituencies'. Such members are required to be "chosen" in such manner as Parliament may by law provide 13 • Such Process of choosing, by direct election - the members of the House of the People or the Legislative Assembly - is described by this Court in Mohinder Singh Gill and anr. (supra}, as the citizens right to elect or get elected. c

33Copy pinpoint33. The right to elect flows from the language of Articles 81 and 170 r/w Articles 325 and 326. Article 326 mandates that the election to the Lok Sabha and legislative Assemblies shall be on the basis of ADULT SUFFRAGE, i.e., every citizen, who is of 18 years of age and is not otherwise disqualified either under the Constitution or Law on the ground specified in the Article SHALL BE entitled to be registered as a voter. Article 325 14 mandates that there shall be one general electoral roll for every territorial constituency. It further declares that no person shall be ineligible for inclusion in such electoral roll on E

13. Article 81(1) Subject to the provisions of Article 331 the House of the People shall consist of- (a) not more than five hundred and thirty members chosen by direct election from territorial constituencies in the State, and (b) not more than twenty members to represent the Union territories, chosen in such manner as parliament may by law provide. G

14. Article 325: .......... There shall be one general electoral roll for every territorial constituency for election to either House of Parliament or to the House or either House of the Legislature of a State and no person shall be ineligible for inclusion in any such roll or claim to be included in any special electoral roll for any such constitutency on grounds only of religion, race, caste, sex ma~~bm. H

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A the grounds only of religion, race, caste, sex, etc. Articles 81 15 and 17016 mandate that the members of the Lok Sabha and Legislative Assembly are required to be CHOSEN BY DIRECT ELECTION from the territorial constituencies in the States. The Sates are mandated to be divided into territorial constituencies s under Articles 81(2)(b) and 170(2). 17 The cumulative effect of all the abovementioned provisions is that the Lok Sabha and the Legislative Assemblies are to consist of members, who are to be elected by all the citizens, who are of 18 years of age

15. Article 81: Composition of the House of the People- C (1) Subject to the provisions of Article 331 the House of the People shall consist of (a) not more than fiver hundred and thirty members chosen by direct election from territorial constituencies in the States, and (b) ....... . D (2) For the purposes of sub clause (a) of clause (1 ):- (a) there shall be allotted to each State a number of seats in the House of the People in such manner that the ratio between that number and the population of the State is, so far as practicable, the same for all States; and (b) each State shall be divided into territorial constituencies in such manner that the ratio between the population of each contituency and number of seats allotted to it is, so far as practicable, the same throughout the State: Provided that the provisions of sub clause (a) of this clause shall not be applicable for the purpose of allotment of seats in the House of the People to any State so long as the population of that State does not exceed six millions.

16. Article 170(1): Subject to the provisions of Article 333, the Legislative F Assembly of each State shall consist of not more than five hundred, and not less than sixty, members chosen by direct election from territorial constituencies in the State.

17. Article 170(2): For the purpose of clause (1 ), each State shall be divided into territorial constituencies in such manner that the ratio between the population of each constituency and the number of seats allotted to it shall, G so far as practicable, be the same throughout the State. Explanation: In this clause, the expression 'population' means the population as ascertained at the last preceding cenus of which the relevant figures have been published: Provided that the reference in this Explanation to the last preceding cenus of which the relevant figure have been published shall, until the relevant figures for the first cenus taken after the year 2026 H have been published, be construed as a reference to the 2001 census.

DESIYA MURPOKKU DRAVIDA KAZHAGAM v. ELECTION1137 COMMISSION OF INDIA [J. CHELAMESWAR, J.]

and are not otherwise disqualified, by a valid law, to be voters. A Thus, a Constitutional right is created in all citizens, who are 18 years of age to choose (participate in the electoral process) the members of the Lok Sabha or the Legislative Assemblies. Such a right can be restricted by the appropriate Legislature only on four grounds specified under Article 326. B

34Copy pinpoint34. Coming to the question of the right to get elected I being CHOSEN either to the Lok Sabha or to the Legislative Assembly of a State, Articles 84 18 and 17319 stipulate the requisite qualifications for a person to be either a member of the Lok Sabha or the Legislature of a State. These two Articles are couched in negative language stipulating, essentially, that, to be chosen as a member of any of the Legislative Bodies envisaged under the Constitution, a person must be a citizen of India and must be of the qualifying age i.e., 25 years in the case of Lok Sabha or the Legislative Assembly and 30 years in the case of Rajya Sabha or the Legislative Council, as the case may be. Apart from that, these Articles also prescribe that

18. Article 84: A person shall not be qualified to be chosen to fill a seat in Parliament unless he; E (a) is a citizen of !ndia, and makes and subscribes before some person authorised in that behalf by the Election Commission an oath or affirmation according to the form set out for the purpose in the Third Schedule; (b) is, in the case of a seat in the Council of States, not less than thrity years of age and, in the case of a seat in the House of the People, not less than twenty five years of age; and F (c) possession such other qualifications as may be prescribed in that behalf by or under any law made by Parliament.

19. Article 173. A person shall not be qualified to be chosen to fill a seat in the Legislature of a State unless, he; [(a) is a citizen of India, and makes and subscribes before some person authorised in that behalf by the Election Commission an oath or affirmation G according to the form set out for the purpose in the Thrid Schedule;] (b) is, in the case of a seat in the Legislative Assembly, not less than twenty- five years of age and, in the case of a seat in the Legislative Council, not less than thirty years of age; and (c) possesses such other qualification as may be prescribed in that behalf by or under any law made by Parliament. H

1138 SUPREME COURT REPORTS [2012] 3 S.C.R.

A any person aspiring to be a member of any one of the Legislative Bodies, created by the Constitution, is required to make and subscribe an Oath set out in the Third Schedule in the Constitution. Articles 10220 and 191 21 prescribe the various contingencies in which a person would become disqualified to B

20. Article 102 : Disqualifications for membership- (1) A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament; (a) if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by C law not to disqualify its holder; (b) if he is of unsound mind and stands so declared by a competent court; (c) if he is an undischarged insolvent; (d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgement of allegiance or adherence to a foreign State; D (e) if he is so disqualifed by or under any law made by Parliament. Explanation : For the purposes of this clause a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State by reasons only that he is a Minister either for the Union or for !;uch State (2) A person shall be disqualifed for being a member of either House of E Parliament if he is so disqualified under the Tenth Schedule.

21. Article 191. (1) A person shall be disqualified, for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State- (a) if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office F declared by the Legislature of the State by law not to disqualify its holder; (b) if he is unsound mind and stands so declared by a competent court; (c) if he is an undischarged insolvent; (d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherence to a foreign State; (e) if he is so disqualified by or under any law made by Parliament. G 1[Explanation.-For the purposes of this clause], a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State specified in the First Schedule by reason only that he is a Minister either for the Union or for such State. 2[(2) A person shall be disqualified for being a member of the Legislative Assembly or Legislative Council of a State if he is so disqualified under the Tenth Schedule.]

DESIYA MURPOKKU DRAVIDA KAZHAGAM v. ELECTION1139 COMMISSION OF INDIA [J. CHELAMESWAR, J.)

be a member of any one of the Legislative Bodies, such as, holding of a public office or owing allegiance or adherence to a foreign State, etc.

35Copy pinpoint35. It may be noted that the Constitution confers a right on every citizen, who is of the age of 18 years, to be a voter. But, every voter is not entitled to be a member of the Legislature. A B higher age requirement is prescribed to be a member of the Legislature, as explained above.

36Copy pinpoint36. In my opinion, therefore, subject to the fulfilment of the various conditions stipulated in the Constitution or by an C appropriate law made in that behalf, every citizen of this country has a Constitutional right both to elect and also be elected to any one of the Legislative Bodies created by the Constitution - the "straight conclusion" of the Mohinder Singh Gill's case (supra), "that every Indian has a right to elect and be elected - o subject to statutory regulations", which rights can be curtailed only by a law made by the appropriate legislation that too on grounds specified under Article 326 only.

37Copy pinpoint37. At this stage, it is necessary to deal with the submission made by Ms. Meenakshi Arora, that in view of the E decisions of this Court in N.P.Ponnuswamy and Jyothi Basu (supra), both the right to vote and the right to contest an election for the ConstituVonally crated Legislative Bodies, is purely statutory. Relevant paras of the said two Judgments, insofar as they are relied upon by the learned counsel, read as follows: F

N.P.Ponnuswamy (supra)

"28. The points which emerge from this decision may be stated as follows : - G (1) The right to vote or stand as a candidate for election is not a civil right but is a creature of statute or special law and must be subject to the limitations imposed by it. " H

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A Jyothi Basu (supra)

"The nature of the right to elect, the right to be elected and the right to dispute an election and the scheme of the Constitutional and statutory provisions in relation to these rights have been explained by the Court in N.P. B Ponnuswami v. Returning Officer, Namakkal Constituency & Ors., (1) and Jagan Nath v. Jaswant Singh.(2) We proceed to state what we have gleaned from what has been said, so much as necessary for this case.

c A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation."

The limited question before this Court in those two cases revolved around the nature of the legal right to raise an election dispute. In the first of the abovementioned cases, the question was whether a challenge, under Article 226 of the Constitution, to the rejection of the nomination of Ponnuswami at an election to the Legislative Assembly is permissible in view of the specific prohibition contained under Article 329(b) 22 of the F Constitution. In the second of the abovementioned cases, the question was, who are the persons, who could be arrayed as parties to an election petition. In both the cases, this Court was dealing with the nature of the election disputes, the forum before which such dispute could be raised and the procedure that is required to be followed in such disputes. The question as to

22. Article 329 (b): No election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature.

DESIYA MURPOKKU DRAVIDA KAZHAGAM v. ELECTION1141 COMMISSION OF INDIA [J. CHELAMESWAR, J.]

the nature and scope of the right to vote or contest at any election to the Legislative Bodies created by the Constitution did not arise in these cases. With due respect to their Lordships, I am of the opinion that both the statements (extracted above) are overbroad statements made without a complete analysis of the scheme of the Constitution regarding the process of election to the Legislative Bodies adopted in subsequent decisions as a complete statement of law. A classical example of the half truth of one generation becoming the whole truth of the next generation. My conclusion is fully supported by People's Union for Civil Liberties (PUCL) and c anr. v. Union of India and anr. (2003) 4 sec 399:

" However, case after case starting from Ponnuswami case characterized it as a statutory ........................... . With great reverence to the eminent Judges, I would like to clarify that the right to vote, if not a fundamental right, is certainly a constitutional right. The right originates from the Constitution and in accordance with the constitutional mandate contained in Article 326, the right has been shaped by the statute, namely the RP Act. That, in my understanding, is the correct legal position as regards the nature of the right to vote in elections to the House of the People and Legislative Assemblies. It is not very accurate to describe it as a statutory right, pure and simple."

(Para 96 of P.V.Reddi, J) F

38Copy pinpoint38. The next question is what is the role of a political party in the electoral process of a representative democracy. Whether the formation, existence and continuance of a political party are - activities, which are not prohibited by law and permitted as a matter of legislative grace or is there any G constitutional or fundamental right in these activities.

39Copy pinpoint39. "Political parties are indispensable to any democratic system and play the most crucial role in the electoral process H

1142 SUPREME COURT REPORTS [2012] 3 S.C.R.

A in setting up candidates and conducting election campaigns" 23 . The legal and constitutional position of political parties varies from country to country. In most countries, the political parties do not have any express constitutional or statutory recognition, except Germany, whose Constitution guarantees the legitimacy B of the political parties and their right to exist, subject to the condition that they accept the principles of the democratic governance. Coming to the United Kingdom, the existence of political parties is a long established constitutional fact and their contribution to the growth of a healthy parliamentary democracy c is a matter of the British constitutional history though political parties are not part of the Constitution of England 24 • In the United States, the "right of individuals to associate for the advancement of political beliefs and the right of the qualified voters .... to cast their votes effectively"25 are considered as the most precious freedoms and protected by the First and the Fourteenth 0 Amendments. The Indian Constitution made no reference to political parties prior to the 52nd Amendment made in 1985 by which the Tenth Schedule was inserted in the Constitution. The Tenth Schedule recognises the existence of political parties E in this country and the practice of political parties setting up candidates for election to either of the Houses of Parliament or State legislature. However, the Election Commission recognised, from the inception, the existence of political parties and the practice of political parties setting up candidates at elections to any one of the Houses created by the Constitution. F

40Copy pinpoint40. A political party is nothing but an association of individuals pursuing certain shared beliefs. Article 19(1)(c) confers a fundamental right on all citizens to form associations

G 23. See Justice M.N. Venkatachaliah National Commission to review the working of the Constitution Report.

24. Political parties are not part of our Constitution, but no part of our Constitution can ignore ther existence Governments, Parliaments and Local Authorities could hardly work without them-Lord Hailsham-The Dilemma of Democracy (page 37).

H 25. William vs. Rhodes - 393 US 23 (1968)

DESIYA MURPOKKU DRAVIDA KAZHAGAM v. ELECTION1143 COMMISSION OF !NOIA [J. CHELAMESWAR, J.]

or associate with organisations of their choice. Article 19(1 )(a) A confers a fundamental right on the citizens of the freedom of speech and expression. The amplitude of the right takes within its sweep, the right to believe and propagate ideas whether they are cultural, political or personal. Discussion and debate of ideas is a part of free speech. This Court in Romesh Thapper B v. State of Madras, AIR 1950 SC 124 as under:

" .......... without free political discussion no public education, so essential for the proper functioning of the processes of popular government, is possible." c Therefore, all the citizens have a fundamental right to associate for the advancement of political beliefs and opinions held by them and can either form or join a political party of their choice. Political parties are, no doubt, not citizens, but their members are generally citizens. Therefore, any restriction imposed on D . political parties would directly affect the fundamental rights of its members.

41Copy pinpoint41. It is argued that political parties, which do not qualify for recognition by the Election Commission by virtue of the E stipulations in the Symbols Order suffer a disadvantage in the electoral process. The Symbols order cripples the ability of the unrecognised political parties and the candidates set up by such parties from effectively communicating with the electorate in order to garner their votes. Therefore, the Symbols Order imposes restriction on the citizens fundamental rights under F Article 19(1)(c) and (a) to associate with a political party and propagate the political ideas subscribed to by the party on par with the recognised political parties, which are able to secure the allotment of a reserved symbol. The disadvantage imposed by the Symbols Order on political parties with limited following, G at a given point of time, certainly is a law falling within the description of 'class legislation' and violative of Article 14 of the Constitution of India.

42Copy pinpoint42. If the purpose of adopting the system of pictorial H

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A symbols is to enable the voter to identify "the candidate of his choice" 26 , and "the symbol of each political party, with passage of time, acquired a great value becatJse of the bulk of the electorate associated the political party at the time of elections with its symbols" 27 . It does not require any further logic or authority to say that denying the reservation of a common symbol for the use of a political party on the ground that the Election Commission is not willing to 'recognise' such a political party, for whatever reasons, certainly renders the party disadvantaged. The Symbols Order, insofar as it provides for the allotment of a symbol for the exclusive use only of a recognised political party's candidates, in my opinion, certainly creates a disadvantage to the political parties, which have not been able to secure recognition from the Election Commission apart from creating two classes of political parties. The citizens right to. form or join a political party for the advancement of 0 political goals mean little if such a party is subjected·to a disadvantage, in the matter of contesting elections. Therefore, the two questions raised;

(i) whether the Symbols Order satisfies the test of being a E reasonable restriction designed to achieve any of the purposes specified under Article 19(2) and (4); and

(ii) the question whether such a classification satisfies the twin tests of being a reasonable classification, which has F a nexus to the object sought to be achieved by such classification,

are required to be examined to decide the constitutionality of the Symbols Order.

43Copy pinpoint43. I do not propose to examine the 1st question though I am of the opinion that the said question requires an exhaustive examination in an appropriate case, as, in my opinion, the

26. Shri Sadiq Ali (Supra) para 21.

H 27. Shri Sadiq Ali (Supra) para 21.

DESIYA MURPOKKU DRAVIDA KAZHAGAM v. ELECTION1145 COMMISSION OF INDIA [J. CHELAMESWAR, J.)

Symbols Order certainly violates the prohibition contained under A Article 14, in view of the settled principle of law that this Court would not normally embark upon the examination of issues in the field of Constitutional Law unless it is absolutely necessary.

44Copy pinpoint44. To establish the disadvantages imposed by the 8 Symbols Order on the unrecognised political parties, it is necessary to analyse the nature of authority of the Election Commission either to recognise or not to recognise a political party. It is also necessary to examine whether, either the Constitution or any Law compels the Election Commission to recognise or not to recognise or derecognise a political party and what are the benefits or burdens, which flow from the recognition or non-recognition of a political party.

45Copy pinpoint45. As already noticed, except for the Tenth Schedule, which is a relatively recent addition to the Constitution, no other provision of the Constitution, expressly refers to the political parties either recognised or unrecognised. The R.P. Act, as it was originally enacted, also did not make any reference to a political party. The expression "political party" was first introduced in the R.P. Act in the year 1989 by the amending E Act No.1 of 1989. Section 2 (f) was inserted, which provides for the definition of the expression "political party". Simultaneously, by the same amending Act, Part - IV A was introduced into the Act, which dealt with the registration of political parties with the Election Commission and the F advantages flowing from such registration. The expression "recognised political party" was first introduced in the Act by Act No.21 of 1996, in the proviso to Section 33 and Sub- section (2) of Section 38. Later, such an expression was employed in Secticn 39A and in the second explanation to Sub- G Section (1) of Section 77, Section 78A and Section 788, which occur under Part-VA of the Act by the amending Act No.46 of

2003. The explanation to Section 788(2), defines the expression "unrecognised political party" for the limited purposes mentioned therein and it reads as follows: H

1146 SUPREME COURT REPORTS [2012] 3 S.C.R.

A "Explanation-For the purposes of section 39A, this Chapter and clause (hh) of sub-section (2) of section 169, the expression "recognised political party", has the meaning assigned to it in the Election Symbols (Reservation and Allotment) Order, 1968]." B None of the provisions referred to in the explanation deal with the allotment of a reserved symbol. Thus, there is a statutory compulsion (post 1996) on the part of the Election Commission to recognise or not to recognise a political party a5 it is only on the basis of the recognition by the Election C Commission, the rights or obligations created under the abovementioned provisions come into play. There is still no constitutional compulsion in that regard.

46Copy pinpoint46. Though, post-1996, the R.P. Act, 1951, obligates the D Election Commission to confer recognition on some political parties for certain purposes, the Act does not stipulate the criteria on the basis of which such recognition is to be accorded. It simply borrowed the definition of the expression 'recognised political party' from the Symbols Order, thereby E leaving it to the discretion of the Election Commission to recognise or not to recognise a political party on such terms. and conditions, which the Election Commission deems fit. But, there is nothing either in R.P. Act, or any other law, which obligates the Election Commission to accord recognition to a F political party on the basis of its performance at an election. In other words, it is not legally obligatory for the Election Commission to choose the criteria of performance a~ an election for the purpose of according or refusing to accord recognition to a political party. It so happened that such a G criterion was chosen by the Election Commission well before the R.P. Act obliged the Election Commission to undertake the exercise and the Parliament while amending the R.P. Act simply took note of the existing practice of the Election Commission. Even today, there is nothing in the law, which H prevents the Election Commission from changing the criteria

DESIYA MURPOKKU DRAVIDA KAZHAGAM v. ELECTION 114 7 COMMISSION OF INDIA (J. CHELAMESWAR, J.]

for conferring recognition on a political party. A

47Copy pinpoint47. It would be profitable to understand the genesis and evolution of the criterion of - poll performance - for evaluating its constitutionality in the context of the allotment of symbols. Pursuant to the 30th July 1957 Conference (referred to earlier) B held by the Election Commission, "the Election Commission gave adhoc recognition on various dates between 2nd August 1951 to 7th September 1951", to fourteen parties as National or Multi-State parties and allotted symbols to them. "In addition to the above parties .............. , 59 other parties were recognised as State parties and allotted various symbols, as C far as possible, inconformity with their choice. The recognition of these State parties was left ................ to the Chief Electoral Officer of the States concerned". In this context, it is stated in "How India Votes Election Laws, Practice and Procedure, by V. S. Ramadevi (supra), as follows: D

"It may be significant to note here that there was no provision either in any Act or the rules for the recognition of political parties. All the orders granting recognition to t!ie aforementioned parties either as national or state parties were issued by the Election Commission in exercise of its powers under art 324 and r 5 of the Representation of the People (Conduct of Elections and Election Petitions) Rules 1951. The said r 5 merely provided that the Election Commission shall publish a list of symbols and may add to or vary that list as it may like, but there was no mention about the political parties in this rule."

48Copy pinpoint48. Essentially, the entire exercise was undertaken by the Election Commission to collect the data regarding the number of organisations claiming to be the political parties, who were likely to contest the elections either to the State Legislature or to the Parliament, in order to enable the Election Commission to discharge its constitutional obligations, under Article 324, of conducting elections to the various Legislative Bodies created H

1148 SUPREME COURT REPORTS [2012] 3 S.C.R.

A under the Constitution. As it is recorded by the former Chief Election Commissioner in 'How India Votes Election Laws, Practice and Procedure' (supra); "all those parties were allotted various symbols as far as possible inconformity with their choice." To start with, the exercise was never meant to regulate the right of various political parties to set up candidates at elections or choose a common electoral symbol for the benefit of the candidates set up by such parties. The purpose was only to eliminate the possibility of more than one political party claiming or using the same symbol resulting in friction between the parties and confusion in the minds of the voters. Such an arrangement became necessary because of the consensus of the Conference to have pictorial symbols for the meaningful exercise of the voting rights of the electors.

49Copy pinpoint49. It was in the year 1968, eventually, the Election D Commission thought of formalising the existing practice by creating a formal legal instrument of the entire exercise of the recognition of a political party. It is at that juncture, the exercise, which initially commenced as a facilitator of the constitutional obligation of the Election Commission to conduct the election, metamorphosised into an authority I power of the Election Commission to accord recognition or to refuse recognition with the attendant consequence of allotment and reservation of symbols in favour of the political parties, which are electorally more fortunate and denial of the same to the less fortunate political parties at a given point of time.

50Copy pinpoint50. The result is the creation of the Symbols Order, 1968, where, for the first time, the Election Commission conferred on itself the authority to recognise or refuse to recognise or derecognise political parties, which did not demonstrate that they have some minimum political following and legislative presence.

51Copy pinpoint51. Till 1996, gaining recognition from the Election Commission did not confer any advantage on a political party H

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other than securing the reservation of a symbol commonly for all the candidates set up by such a party at any election. Political parties could still set up, then and now also, candidates at any election irrespective of the fact whether they are recognised by the Election Commission or not. It is only much later (1996), certain legal rights and obligations came to emanate from the factum of recognition or lack of it, such as, the requirement of subscription of a larger number of proposers for a candidate set up by an unrecognised political party (See Section 33 of the R.P. Act.) and the requirement of postponing the poll only on the death of a candidate set up by a recognised political party (Section 52). It may be mentioned herein that Section 52, prior to its amendment in 1996, did not draw any distinction between a candidate set up by a recognised political party or otherwise. Death of a candidate, duly nominated at an election even as an independent, entailed countermanding of the poll. 0

52Copy pinpoint52. Notwithstanding all these changes, the constitutional right of a qualified citizen to contest an election to any one of the Legislative Bodies created by the Constitution, whether supported by a political party or not, be it a recognised or unrecognised political party, has never been curtailed by the E Legislature so far. All that a qualified voter requires to contest an election under the scheme of the R.P. Act, 1951, is to secure the support of, at least, one more elector to propose his name as a candidate if a recognised political party is willing to sponsor such a candidate, failing which, the requirement (post F 1996 amendment) is, to secure the support of ten qualified voters to sign the nomination paper. The only other requirement is to make a deposit of certain amount specified under Section 34 of the Act, which amount varies depending upon whether the candidate is contesting the election of Lok Sabha or the G Legislative Assembly.

53Copy pinpoint53. Once a qualified voter decides to contest an election under the provisions of the R.P. Act, 1951, whether such a voter is sponsored by a political party or not, whether such a political H

1150 SUPREME COURT REPORTS (2012] 3 S.C.R.

A party is recognised by the Election Commission or not. there is no way under the law, as it exists today, to prevent him from contesting. Also the Election Commission is bound to allot a pictorial symbols to each such candidate. It is admitted unanimously by the learned counsel appearing that there have been elections, where hundreds of candidates contested an election from certain constituencies and the Election Commission did allot som!;! symbol or the other to each of those candidates.

54Copy pinpoint54. All political parties form one class. All of them have the same goal of propagating their respective political ideas though the ideas themselves may differ. The endeavour of all the political parties is to capture the State power in order to implement their respective policies, professedly, for the benefit of the society in general. In the process of such a political activity, some party, at a given point of time, successfully convinces a majority of the voters that the entrustment of the State power to that political party would be more beneficial to the society at large. It becomes victorious, while the other parties, which fail to successfully convince the majority of the voters about the wholesomeness of their ideas, loose the elections, sometimes even miserably. But, that does not mean that such parties, which fail to convince the voters about the wholesomeness of their political ideology, would be condemned forever by the electorate. Examples in our country and elsewhere are not lacking that political parties, which failed miserably both in terms of percentage of the votes secured by them, as well as the number of seats secured in the Legislature, at a given election, dramatically improving their performance in some subsequent election and capture power with thundering majority. It is said that "democracy envisages rule by successive temporary majorities". Such transient success or failure cannot be the basis to determine the constitutional rights of the candidates or members of such political parties. The enjoyment of the fundamental rights guaranteed by the H Constitution cannot be made dependent upon the popularity of

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a person or an idea held by the person. If it were to be A otherwise, it would be the very antithesis of liberty and freedom. The constitutional guarantees are meant to protect the unpopular, the minorities and their rights. Denying the benefit of a symbol to the candidates of a political party, whose performance does not meet the standards set up by the Election B Commission, would disable such political party from effectively contesting the election, thereby, negating the right of an association to effectively pursue its political briefs.

55Copy pinpoint55. Coming to the question, whether the classification created in the Symbols Order can satisfy the requirements of the mandate of Article 14, the argument of the learned counsel for the Election Commission is that, political parties, which do not command even a minimum vote-share and fail to secure a minimum prescribed legislative presence prescribed by the Election Commission, at a given election, form a distinct class in contradistinction to political parties, which satisfy the prescriptions of the Election Commission, regarding the eligibility for being classified as recognised political parties. The learned counsel further submitted that such classification is made for the purpose of avoiding insignificant political parties from permanently securing a symbol for the use of its candidates at elections. An- interesting submission is made that a large number of political parties without the minimal voter support are in the electoral field and granting recognition to such parties and reserving a symbol in favour of such parties would create unnecessary confusion in the minds of the voters. Therefore, avoidance of such a confusion in the minds of the voters, is the purpose sought to be achieved by the classification in question. G

56Copy pinpoint56. Before I examine the tenability of the submission made by the Election Commission, I think it necessary to recapitulate the foundation of the doctrine of reasonable classification. In Budhan Choudhry v. State of Bihar, (1955) 1 SCR 1045, a Constitution Bench of 7 Judges of this Court, after a thorough H

1152 SUPREME COURT REPORTS [2012] 3 S.C.R.

A analysis of 7 earlier judgments of this eourt, explained the doctrine of reasonable classification under Article 14 and held as under:

"............... It is now well established that while article 14 forbids class legislation, it does not forbid reasonable B classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together c from others left out of the group, and (ii) that the differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases, namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration ........ ".

Therefore, it can be seen from the above that it is not sufficient for a law to survive the challenge under Article 14 to demonstrate that the law makes a classification based on intelligible differentia between two groups of persons or things. It must also be established that such differentia have a rational relation to the object sought to be achieved by such classification.

57Copy pinpoint57. Examined in the light of the above test, the object sought to be achieved by the Election Commission by the Symbols Order is to avoid the confusion in the minds of the voters at the time of voting. Such a result is said to be achieved by the Election Commission by denying recognition to the political party with insignificant following, thereby, denying them the benefit of the reservation of an exclusive symbol to its candidates.

58Copy pinpoint58. I have no option, but to reject the submission made by

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the Election Commission for the reason that by simply denying A the recognition to a political party with insignificant voter- support, I do not understand, how the perceived voter confusion could be avoided. There is nothing either in the Constitution or in the R.P. Act, 1951 or any other law, which prohibits an unrecognised political party from setting up candidates at an s election. The legal position is the same with regard to even independent candidates. Therefore, notwithstanding the refusal of recognition by the Election Commission, unrecognised or derecognised political parties or independent candidates without any party support can still contest the election. c Candidates set up by an unregistered political party can also contest an election as registration under Section 29A of the R.P. Act is not mandatory for a political party, except that registration begets certain advantages specified in the R.P. Act, 1951 to a political party. The Election Commission is 0 bound to allot a symbol to any of the candidates belonging to any one of the abovementioned categories. I am, therefore, of the opinion that there is no rational nexus between the classification of recognised and unrecognised political parties and the professed purpose sought to be achieved by such classification. On the other hand, it is likely to preserve the political status quo.

59Copy pinpoint59. Coming to the decision of this Court in Subramanian Swamy (supra), the challenge in the case was only to para 10A of the Symbols Order, which was introduced by an amendment of 2000 in the Symbols Order on the ground that it was violative of Article 14 of the Constitution. It was argued on behalf of the Election Commission "that the symbol was integrally and inextricably connected with the concept of recognition of the party and since the appellant had never challenged and indeed could not so challenge the de-recognition of Janata Party, there was no question of it being allowed to insist on a reserved symbol which was the prerogative only of the recognised political party". Though this Court took note of the fact that, "for good long 17 years there was no concept of recognised political H

1154 SUPREME COURT REPORTS [2012] 3 · S.C.R.

A party as till then there was no Symbols Order", came to the conclusion that the submission of the Election Commission is acceptable. It was held at para 15:

" .............. the respondent is undoubtedly correct in arguing that concept of recognition is inextricably B 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 would have a right for a reserved symbol. Thus, in our opinion, it is perfectly in consonance c with the democratic principles. A party which remains only in the records can never be equated and given the status of a recognised political party in the democratic set up. We have, therefore, no hesitation in rejecting the argument of Dr. Swamy that in providing the symbols and reserving them for the recognised political parties alone amounted to an undemocratic act."

In my opinion, this Court, failed to appreciate that in a "democratic set up", while the majorities rule, minorities are entitled to protection. Otherwise, the mandate of Article 14 would be meaningless. If democracies are all about only numbers, Hitler was a great democrat. The status of majority or minority, even an insignificant minority, could only be transient. Further, the question as to what is the legitimate purpose sought to be achieved by the classification under the Symbols Order, was not considered.

60Copy pinpoint60. For all the abovementioned reasons, I would hold that the Symbols Order, insofar as it denies the reservation of a symbol for the exclusive allotment of the candidates set up by G a political party with "insignificant poll performance", is violative of Article 14 of the Constitution of India.

R.P. Writ Petitions dismissed.