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REPORTABLE

IN THE SUPREME COURT OF INDIA EXTRAORDINARY ORIGINAL JURISDICTION WRIT     PETITION     (C)     No.532     of     2008   

DESIYA MURPOKKU DRAVIDA KAZHAGAM & ANR. PETITIONERS  

             VS.

THE ELECTION COMMISSION OF INDIA       RESPONDENT WITH

WRIT PETITION (C) NOS.315 OF 2009, 422 OF 2009, 426  OF 2009, 444 OF 2009, 454 OF 2009, 463 OF 2009, 447  OF 2009 & 132 OF 2009, SPECIAL LEAVE PETITION (C)  NOS.23494 OF 2009 & 7379-7380 OF 2009 AND WRIT  PETITION (C) NOS.111 OF 2011, 117 OF 2011, 125 OF  2011, 124 OF 2011 & 128 OF 2011

J     U     D     G     M     E     N     T   ALTAMAS     KABIR,     J.  

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1. Writ Petition (Civil) No.532 of 2008 was filed  

by Desiya Murpokku Dravida Kazhagam and Colonel  

Edwin Jesudoss (Retd.), challenging the  

constitutional validity of the amendment of the  

Election Symbols (Reservation and Allotment) Order,  

1968, hereinafter referred to as the “Election  

Symbols Order, 1968”, vide Notification  

No.O.N.56/2000/Jud-III dated 1st December, 2000,  

substituting Clause 6 with 6A(i) and (ii) and  

Clause 6B therein. The same was taken up for final  

hearing along with several other Writ Petitions on  

account of the common issue involved therein.  The  

common grievance in all these writ petitions is  

with regard to the amendment which mandates that in  

order to be recognized as a State party in the  

State, it would have to secure not less than 6% of  

the total valid votes polled in the State and  

should also have returned at least 2 members to the  

Legislative Assembly of the State.  

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2. The grievance of the Desiya Murpokku Dravida  

Kazhagam is that it had been refused recognition as  

a State party by the Election Commission of India,  

although, it secured 8.33% of the valid votes in  

the Assembly elections.  It is the further  

grievance of the Petitioners that in view of the  

amendment made to Clause 6 of the Election Symbols  

Order, 1968, it had been denied recognition on  

account of the cumulative effect of the requirement  

that a political party would not only have to  

secure not less than 6% of the total valid votes  

polled, but it had also to return at least 2  

members to the Legislative Assembly of the State.  

It is the Petitioners’  case that despite having  

secured a larger percentage of the votes than was  

required, it was denied recognition, since it had  

failed to return 2 members to the Legislative  

Assembly.

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3. In order to appreciate the case made out by the  

writ petitioners, it would be apposite at this  

stage to look into the background in which the  

Election Symbols Order, 1968, came to be  

pronounced.   

4. After the commencement of the Constitution on  

26th January, 1950, the Election Commission was  

constituted under Article 324 of the Constitution.  

On 30th July, 1951, the Commission held a conference  

in New Delhi with 7 established political parties  

organised on an all-India basis and discussed the  

possibilities of allotting a distinctive symbol to  

each one of them all over India.  During the  

deliberations, the participants generally agreed  

that the same symbols would be used throughout  

India for all candidates of a party, both for  

parliamentary and assembly elections.  What also  

fell for discussion was whether where among several

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constituencies one of the seats was reserved for  

Scheduled Castes or Scheduled Tribes, the  

candidates belonging to a party would be allotted  

the party’s symbol.  The said discussions led to ad  

hoc recognition being given by the Election  

Commission to several parties as national or multi-

state parties and allotted to them the symbols as  

were shown against their names.   

5. Drawing inspiration from the first General  

Elections conducted by the Election Commission in  

1951-52, the Election Commission decided to  

withdraw recognition from such parties whose poll  

performance was far below the standards to merit  

further recognition.  However, giving due  

recognition to the fact that some of the parties  

were new and were not fully organised before the  

elections, the Commission fixed 3% of the valid  

votes polled in the elections as the minimum

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standard for grant of recognition.  In the case of  

national parties, such percentage was calculated  

with reference to the votes polled in regard to  

elections to the House of the People, while in the  

case of State parties, the votes polled in the  

elections to the State Legislative Assemblies were  

the factors to be considered.  On account of the  

standards laid down, only 4 political parties  

remained eligible for recognition as national  

parties, namely, (1) Indian National Congress; (2)  

All India Bharatiya Jan Sangh; (3) Communist Party  

of India; and (4) Praja Socialist Party, and all  

other parties lost their recognition. Standards for  

maintaining such recognition continued to be  

applied by the Election Commission in the Second  

and Third General Elections held in 1957 and 1962  

respectively, but after the Third General Elections  

the minimum standard was raised by the Commission  

from 3 to 4%.  The same formula was also used by

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the Election Commission after the Fourth General  

Elections in 1967.

6. After the Fourth General Elections were held in  

1967, the Election Commission decided to streamline  

the provisions and procedure so long followed  

relating to recognition of political parties in the  

conduct of elections. The Commission was of the  

view that the provisions relating to recognition of  

political parties and their functioning, was  

required to be codified and provision was also  

required to be made for registration of political  

parties as a pre-condition for recognition.  

Accordingly, by virtue of powers conferred on it by  

Article 324 of the Constitution, read with Section  

29A of the Representation of the People Act, 1951  

and Rules 5 and 10 of the Conduct of Election  

Rules, 1961 and other powers vested in it, the  

Election Commission of India made and promulgated

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the Elections Symbols (Reservation and Allotment)  

Order, 1968, which is at the core of the issues  

being heard in these matters.    

7. As the Preamble of the aforesaid Order states,  

the same was promulgated to provide for  

specification, reservation, choice and allotment of  

symbols at elections in Parliamentary and Assembly  

Constituencies; for the recommendation of the  

political parties in relation thereto and for  

matters connected therewith. It was also  

promulgated in the interest of purity of elections  

to the House of the People and the Legislative  

Assembly of every State and in the interest of the  

conduct of such elections in a fair and effective  

manner.  After the Election Symbols Order was  

promulgated, some of its provisions were challenged  

on the ground of their constitutional validity.  

One of the questions raised was whether under the

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aforesaid Order, the Election Commission could have  

vested itself with the powers contained in Clause  

15 thereof, reserving to itself powers to settle  

issues in relation to splinter groups or rival  

sections of recognized political party, each of  

whom claimed to be the original party.  The  

decision of the Commission was made binding on all  

the rival sections and groups.  The said question  

fell for the decision of this Court in the case of  

Shri     Sadiq     Ali     &     Anr.   Vs. Election     Commission     of    

India,     New     Delhi     &     Ors.   [(1972) 4 SCC 664] and it  

was held by a Three-Judge Bench of this Court that  

Clause 15 was intended to effectuate and subserve  

the main purposes and objects of the Symbols Order.  

It was observed that the Clause was designed to  

ensure that because of a dispute having arisen in a  

political party between two or more groups, the  

entire scheme of the Election Symbols Order  

relating to the allotment of a symbol reserved for

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the political party, was not frustrated.  This  

Court took note of the fact that the Election  

Commission had been clothed with plenary powers by  

Rules 5 and 10 of the Conduct of Election Rules,  

1961, in the matter of allotment of Symbols, the  

validity whereof had not been challenged. This  

Court, therefore, came to the conclusion that the  

fact that the power to settle such disputes had  

been vested in the Commission could not constitute  

a valid ground for assailing the vires of the said  

clause. Since the said decision has also been  

referred to by the learned counsel for the parties  

in extenso, we will revert back to the same at a  

later stage in this judgment.   

8. The same view was also expressed by this Court  

in All     Party     Hill     Leaders  ’   Conference,     Shillong   Vs.  

Captain     W.A.     Sangma     &     Ors.  [(1977) 4 SCC 161] and in  

Roop     Lal     Sathi   Vs. Nachhattar     Singh     Gill   [(1982) 3

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SCC 487], wherein while dealing with the provisions  

of Clause 13 of the Symbols Order, this Court held  

that the dispute relating to the procedure for  

setting up of candidates could be the subject  

matter of an Election Petition under Section 100(1)

(d)(iv) of the Representation of the People Act,  

1951.

9. The authority of the Election Commission under  

the Election Symbols Order, 1968, as a whole was  

also challenged before this Court in Kanhiya     Lal    

Omar Vs. R.K.     Trivedi     &     Ors.   [(1985) 4 SCC 628],  

wherein it was urged on behalf of the Petitioner  

that the said Order, being legislative in  

character, could not have been issued by the  

Election Commission, which was not entrusted by law  

with power to issue such an Order regarding the  

specification, reservation, choice and allotment of  

symbols that might be chosen by the candidates

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during elections in the Parliamentary and Assembly  

Constituencies.  It was also urged that Article 324  

of the Constitution which vests the power of  

superintendence, direction and control of all  

elections to Parliament and to the Legislative  

Assemblies, in the Commission, could not be  

construed as conferring power on the Commission to  

issue the Symbols Order.  Rejecting the said  

contention, this Court held that the expression  

“election”  in Article 324 of the Constitution is  

used in a wide sense so as to include the entire  

process of election which consists of several  

stages, some of which had an important bearing on  

the result of the process and that every norm which  

laid down a Code of Conduct could not possibly be  

elevated to the status of legislation or even  

delegated legislation.  It was emphasized that  

there are certain authorities or persons who may be  

the source of rules of conduct and who at the same

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time could not be equated with authorities or  

persons who are entitled to make law in the strict  

sense.     

10. As has been indicated hereinbefore, the  

Petitioner political party, Desiya Murpokku Dravida  

Kazhagam, hereinafter referred to as “DMDK”  was  

refused recognition as a State Party by the  

Election Commission of India, despite having  

secured 8.33% of the valid votes on account of the  

fact that by virtue of the amendment to the  

Election Symbols Order in 2000, in order to obtain  

recognition, DMDK was required to secure not less  

than 6% of the total valid votes polled in the  

State and must have returned at least two members  

to the Legislative Assembly of the State.   

11. Appearing for the Writ Petitioners, Mr. K.K.  

Venugopal, learned Senior Advocate, submitted that  

the condition for a political party to be

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recognized as a State Party was originally  

prescribed in Clause 6 of the Election Symbols  

Order, 1968, which provides as follows:-

“6(2).   A political party shall be  treated as a recognized political party in  a State, if and only if either the  conditions specified in clause (A) are, or  the condition specified in clause (B) is,  fulfilled by that party and not otherwise,  that is to say –

(A) that such party -

(a) has been engaged in political  activity for a continuous period of  five years; and  

(b) has, at the general election in that  State to the House of the People, or,  as the case may be, to the  Legislative Assembly, for the time  being in existence and functioning,  returned –  either (i) at least one  member to the House of the People for  every twenty-five members of that  House or any fraction of that number  elected from the State;

Or (ii) at least one member to the  Legislative Assembly of that State for  every thirty members of that Assembly or  any fraction of that number;

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(B)  that the total number of valid votes  polled by all the contesting candidates  set up by such party at the general  election in the State to the House of the  People, or, as the case may be, to the  Legislative Assembly, for the time being  in existence and functioning (excluding  the valid votes of each such contesting  candidate in a constituency as has not  been elected and has not polled at least  one-twelfth of the total number of valid  votes polled by all the contesting  candidates in that constituency), is not  less than four per cent of the total  number of valid votes polled by all the  contesting candidates at such general  election in the State (including the valid  votes of those contesting candidates who  have forfeited their deposits).”

12. Mr. Venugopal submitted that the said  

conditions remained in force from 1968 to 1997 when  

the conditions stipulated in Clause 6(2)(B) for  

recognition of a political party as a State Party  

were amended by the Election Commission of India  

vide its Notification No.56/97 Jud III dated  

15.12.1997, which provided as follows :-

“6(2).   A political party shall be  treated as a recognized political party in

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a State, if and only if either the  conditions specified in clause (A) are, or  the condition specified in clause (B) is,  fulfilled by that party and not otherwise,  that is to say –

(A) that such party -

(a) has been engaged in political activity  for a continuous period of five years; and  

(b) has, at the general election in that  State to the House of the People, or, as  the case may be, to the Legislative  Assembly, for the time being in existence  and functioning, returned –  

either (i) at least one member to the  House of the People for every twenty-five  members of that House or any fraction of  that number elected from the State;

Or (ii) at least one member to the  Legislative Assembly of that State for  every thirty members of that Assembly or  any fraction of that number;

(B)  that the total number of valid votes  polled by all the contesting candidates  set up by such party at the general  election in the State to the House of the  People, or, as the case may be, to the  Legislative Assembly, is not less than six  per cent of the total number of valid  votes polled by all the contesting  candidates at such general election in the  State.  

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2(A)Notwithstanding anything contained in  clause (B) of the sub-paragraph (2), a  political party shall be treated as a  recognized political party in a State, if  at the general election to the House of  the People or as the case may be, to the  Legislative Assembly of the State, in  existence and functioning at the  commencement of the Election Symbol  (Reservation and Allotment) (Amendment)  Order, 1997, the total number of valid  votes polled by all the contesting  candidates setup by such party (but  excluding the valid votes of each such  candidate in a constituency as has not  been elected and has not polled at least  one-twelfth of the total valid votes  polled by all the contesting candidates in  that constituency), is not less than 4% of  the total number of valid votes polled by  all the contesting candidates at such  general election in that State (including  the valid votes of those contesting  candidates who have forfeited their  deposits).”

13. By virtue of the aforesaid Notification, the  

minimum percentage of votes to be obtained by a  

political party for recognition as a State Party  

was increased from 4% to 6%, but the other criteria  

regarding the number of seats or percentage of

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votes was maintained.  The said conditions relating  

to the recognition of a political party as a State  

Party solely on the basis of the percentage of  

votes held by its candidates, was again amended in  

2007 by the Election Commission of India vide its  

Notification No.56/2000/Jud-III dated 1.12.2000,  

where the criteria was altered in the manner  

following :-

“6B. Conditions for recognition as a State  party –  a political party, other than a  National party, shall be treated as a  recognized State party in a State or  States, if, and only if, -

Either (A) (i) the candidates set up by  it, at the last general election to the  House of People, or to the Legislative  Assembly of the State concerned, have  secured not less than six per cent of the  total valid votes polled in that State at  that general election; AND  

(ii)  In addition, it has returned at  least two members to the Legislative  Assembly of the State at the last general  election to that Assembly;  

or (B) it wins at least three per cent of  the total number of seats in the

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Legislative Assembly of the State, (any  fraction exceeding one-half being counted  as one), or at least three seats in the  Assembly, whichever is more, at the  aforesaid general election.”

14. It was submitted that the DMDK was constituted  

as a political party on 14.9.2005 and was  

registered with the Election Commission of India  

under Section 29A of the Representation of the  

People Act, 1951, hereinafter referred to as “the  

1951 Act”, and contested the General Elections in  

2006 for the Tamil Nadu Legislative Assembly in 232  

out of 234 constituencies, just after 8 months of  

its formation.  Being an unrecognized party, the  

candidates were allotted the “Naqara” symbol in 224  

constituencies, whereas in six constituencies its  

candidates were given the “Bell”  symbol and the  

“Ring”  symbol in 2 constituencies.  Mr. Venugopal  

submitted that in the said elections all the  

candidates of the DMDK secured 8.33% of the total  

number of valid votes in comparison to the first

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and second political parties, which obtained 31.44%  

and 30.92% respectively of the votes.  Apart from  

the above, the President of the Party, Mr.  

Vijayakanth, won the Assembly Election from the  

Virudhachalam Assembly Constituency, thereby  

returning one candidate to the Tamil Nadu  

Legislative Assembly, in addition to having polled  

8.33% of the total valid votes.   

15. Mr. Venugopal submitted that the criteria laid  

down by the Election Commission of India for  

recognition of a political party as a State Party,  

whereby a State Party had to secure not less than  

6% of the total valid votes polled in the State in  

the General Elections and in addition it had to  

return at least two members in the said State  

election, was an erroneous methodology for granting  

recognition to a political party as a State Party,  

since in a given General Election, it was not

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always the political party which had secured the  

highest number of votes, that had won the General  

Elections in the State.  That in the 13th Assembly  

General Elections in 2006, held in Tamil Nadu, the  

DMK having polled 8,728,716 votes won 96 seats,  

whereas the AIADMK, having polled 10,768,559 votes,  

won only 61 seats i.e. despite having polled more  

than one crore votes over the votes polled by DMK,  

the AIDMK got only 61 seats as against the DMK’s 96  

seats.  Similarly, in the 9th Lok Sabha General  

Elections held in 1989 in Tamil Nadu, the DMK  

having polled 70,38,849 votes did not win a single  

seat, whereas the AIADMK, having polled almost half  

of the number of votes, viz. 45,18,649, won all the  

Lok Sabha seats from Tamil Nadu.  Similarly, in the  

10th Lok Sabha General Elections held in 1991 and  

the 14th Lok Sabha General Elections held in 2004,  

the AIADMK in 1991 and the DMK in 2004 won all the  

seats for the Lok Sabha, despite having polled

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lesser number of votes than the rival group.  In  

view of the aforesaid facts and figures, Mr.  

Venugopal submitted that the criteria adopted by  

the Election Commission of India for grant of  

recognition to political parties in a State as a  

State party was not a correct index for determining  

grant of such recognition.

16. Mr. Venugopal submitted that the recognition of  

a political party entitles it to the right of  

exclusive reservation and use of an electoral  

symbol, as otherwise there was bound to be  

confusion in the minds of the voters if different  

symbols were allotted to different candidates  

belonging to the same political party.  Learned  

counsel submitted that the classification of  

parties into recognized and unrecognized parties on  

the basis of the seats won during an election and  

the percentage of votes polled, is unreasonable and

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arbitrary, having no nexus with the purpose sought  

to be achieved.  Mr. Venugopal submitted that yet  

another disadvantage suffered by unrecognized  

parties under the Election Symbols Order, 1968, is  

that in subsequent elections, it does not enjoy any  

priority with regard to symbols and more often than  

not, symbols which it had used in the earlier  

election when given to other candidates, resulted  

in benefit to such candidate to the disadvantage of  

the party concerned.

17. Mr. Venugopal also contended that paragraph  

6(B) of the Election Symbols Order, 1968, was  

causing hardship to political parties as it imposes  

two conditions clubbed with other conditions which  

were highly anomalous and was, therefore, liable to  

be struck down.

18. Mr. Manoj Goel, learned Advocate, who appeared  

for the Petitioners in SLP(C)No. 23494 of 2009 and

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Writ Petition (C) No.426 of 2009, reiterated the  

submissions made by Mr. Venugopal and submitted  

that by denying the unrecognized political parties  

a common election symbol to its candidates, an  

attempt was being made by the Election Commission  

of India, to suppress the growth of such parties.  

It was submitted that parties that did not have a  

common electoral symbol have a disadvantage in  

relation to other unrecognized political parties,  

since party candidates and even the political  

parties were known by common citizens by their  

symbols.  It was urged that a political party like  

the Bhartiya Janata Party was known by its “Lotus”  

symbol, while the Bahujan Samaj Party was known by  

its “Elephant”  symbol.  Similarly, other parties  

were also entitled to be recognized by their  

electoral symbols, which otherwise resulted in  

hostile discrimination.  It was urged that in order  

to provide a level playing field for all

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candidates, it was necessary to associate each  

party with a common electoral symbol, which would  

eliminate any confusion in the mind of the voter as  

to who or which party he or she was voting for.   

19. Mr. Goel submitted that in Union     of     India   Vs.  

Association     for     Democratic     Reforms     &     Anr.   [(2002) 5  

SCC 294], it was laid down without any ambiguity  

that the voter has a right to know the antecedents  

of the candidates based on interpretation of  

Article 19(1)(a) of the Constitution, which  

provides that freedom of speech and expression  

includes the fundamental right to know the relevant  

antecedents of the candidates contesting the  

elections.  It was also submitted that the said  

decision was reiterated in the decision rendered by  

this Court in People  ’  s     Union     for     Civil     Liberties    

(PUCL)     &     Anr.   Vs. Union     of     India     &     Anr.   [(2003) 4  

SCC 399].  

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20. Mr. Goel then urged that questions similar to  

those, which have arisen in this case, also arose  

for consideration before a Constitution Bench in  

Kuldip     Nayar     &     Ors.   Vs. Union     of     India     &     Ors.    

[(2006) 7 SCC 1], wherein, while considering  

various aspects of election laws, the Constitution  

Bench reiterated the submissions made in People  ’  s    

Union     for     Civil     Liberties   (supra), wherein it was  

stated that it was required to be understood that  

democracy based on adult franchise, is part of the  

basic structure of the Constitution. There could,  

therefore, be no doubt that democracy is a basic  

feature of the Constitution of India and democratic  

form of Government depends on a free and fair  

election system.  The Constitution Bench also  

recorded the contention of the writ petitioners  

that free and fair election is a constitutional  

right of the voter, which includes the right that a

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voter shall be able to cast his vote according to  

his choice, free will and without fear.

21. Reference was also made to a decision of a  

Bench of six Judges of this Court in Kharak     Singh    

Vs. State     of     U.P.     &     Ors.   [AIR 1963 SC 1295], in  

which the freedom of movement and life and personal  

liberty, as provided under Article 19(1)(d) and  

Article 21, ensuring a citizen’s free right to move  

and travel while protecting his life and liberty,  

fell for consideration. It was held that any  

restriction on such activity would result in  

denying a citizen the fundamental rights guaranteed  

to him under Part III of the Constitution.    

22. Learned counsel submitted that the Election  

Symbols Order, 1968, did not have any statutory  

force and was in the nature of general directions  

issued by the Election Commission to regulate the  

mode of allotment of symbols to contesting

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candidates.  He urged that the said Order was only  

a compilation of general directions, and not being  

law, is violative of Articles 19(1)(a) and 19(2) of  

the Constitution and was, therefore,  

unconstitutional and void.

23. Mr. Goel also referred to the decisions of this  

Court in Kanhiya     Lal     Omar   Vs. R.K.     Trivedi     &     Ors.    

[(1985) 4 SCC 628] and Sakal     Paper     (P)     Ltd.     &     Ors.    

Vs. Union     of     India   [(1962) 3 SCR 842, wherein the  

provisions of the Election Symbols Order, 1968,  

were under consideration.  In the first case, this  

Court held that the power of superintendence,  

direction and control vested in the Election  

Commission under Article 324(1) of the  

Constitution, include all powers necessary for the  

smooth conduct of elections.  Reliance was placed  

on the earlier decision of this Court in Shri     Sadiq    

Ali     &     Anr.   Vs. Election     Commission     of     India,     New   

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Delhi     &     Ors.   [(1972) 4 SCC 664] in holding that  

recommendation of political parties by virtue of  

Election Symbols Order, 1968, was not  

unconstitutional and the powers under the said  

Order were derived not only from the Conduct of  

Election Rules, 1961, but also from Article 324 of  

the Constitution.  In the latter case, this Court  

was considering the right to freedom of speech as  

guaranteed under Article 19(1)(g) of the  

Constitution and the question which fell for  

consideration was whether an order which violated  

Article 19(1)(a) included the freedom of the Press  

and for propagating his ideas a citizen has the  

right to publish them, to manage them and to  

circulate them, either by word of mouth or by  

writing.  It was also held that the State could not  

make a law which directly restricted one guaranteed  

freedom for securing the better enjoyment of  

another freedom.  Mr. Goel urged that by denying to

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a political party a common symbol, the right to  

propagate its ideas would amount to interference  

with the fundamental right of freedom of speech as  

guaranteed under the aforesaid Article.  Mr. Goel  

urged that since a large chunk of the eligible  

voters of the country were illiterate, they needed  

some form of communication which would help them to  

connect with the political party and the ideas  

which it propagated.  

24. Mr. Goel also referred to two judgments of the  

U.S. Courts, namely,  

(a) James     L.     Buckley   Vs. Francis     R.     Valeo   [424  

   US 1 (1976); and

(b) Texas Vs. Gregory     Lee     Johnson    [491 US 397

   (1989)];  

which were decisions relating to the protection of  

a citizen under the First Amendment.  Mr. Goel  

submitted that democracy is not just about

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political expression of the majority, but also the  

right of political minorities, however small, to  

express themselves.  It was urged that the voices  

of the political minorities could not be stifled  

under the weight of hugely imbalanced provisions  

relating to freedom of speech and expression.  Mr.  

Goel submitted that the quantity, width and spread,  

effectiveness and efficacy and mobilization of  

people and resources could not be made dependent on  

the percentage of votes polled and the number of  

seats won during an election, but the right to  

freedom of political speech and expression and its  

communication and propagation must be held to be  

available to all, irrespective of whether they  

could get even a single vote or a single seat.   

25. Mr. Sanjay Hedge, appearing for the Writ  

Petitioner in Writ Petition No.125 of 2011, India  

Jana Nayaka Katchi, formed in April, 2010, urged

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32

that the criterion sought to be introduced by the  

amendment of paragraphs 6(A) and 6(B) of the  

Election Symbols Order, 1968, was wholly arbitrary,  

as it sought to discriminate between parties which  

had a long existence as against those which have  

been formed only in recent times. Mr. Hegde  

submitted that it was highly arbitrary and  

unreasonable to pit candidates from a newly formed  

party without a common symbol against parties which  

were recognized by their Symbols by the common  

electorate. Mr. Hegde submitted that the rationale  

behind the decision not to allot any common symbol  

to the candidates of the parties which had recently  

come into existence gave an unfair advantage to  

parties which were already established and would  

prevent a newly-formed party from making any impact  

on the voters.  Mr. Hegde submitted that the Writ  

Petitioner Party had been formed by an educationist  

and had in its very first election, secured 1% of

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33

the valid votes polled, which only went to show  

that given the proper opportunities, parties, such  

as the Writ Petitioner party, would be able to make  

a larger impact on the electorate if it could set  

up candidates who could be identified with the  

party by means of a common symbol.  Mr. Hegde  

submitted that the symbol in the context of an  

illiterate electorate is absolutely necessary for a  

free and fair election and equating established  

parties with newly-formed parties is a disadvantage  

to the newly formed party, was contrary to Article  

14 and was, therefore, liable to be struck down.  

26.  Col. Edwin Jesudass, appearing for the Writ  

Petitioner, All India NR Congress in Writ Petition  

No.124 of 2011, urged that having fulfilled the  

criteria, the party has been duly recognized and  

was, therefore, entitled to the allotment of a  

permanent election symbol.  Echoing the submissions

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34

made by Mr. Venugopal, Mr. Goel and Mr. Hegde, Col.  

Jesudass, who appeared in person, urged that the  

conditions under the notification issued by the  

Election Commission on 16.9.2011 were unreasonable  

and there was no justification for increasing the  

percentage of votes for qualifying as a State Party  

from 4% to 6%.   

27. In reply to the submissions made on behalf of  

the Writ Petitioners, Ms. Meenakshi Arora, learned  

Advocate, appearing for the Election Commission of  

India, submitted that Section 29-A contained in  

Part 4A of the Representation of the People Act,  

1951, provided a complete procedure as to the  

manner in which political parties were to be  

registered.  Part V of the Act deals with conduct  

of elections, which includes nomination of  

candidates, their Election Agents and the general  

procedure to be followed during the elections.  The

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35

remaining Chapters of Part V deal with the conduct  

of elections while Part VA deals with free supply  

of certain material to candidates of recognized  

political parties.   Ms. Arora urged that similar  

provisions regarding recognized political parties  

and registered political parties are also to be  

found under the Conduct of Election Rules framed  

under Section 169 of the 1951 Act.   Referring to  

the Conduct of Election Rules, 1961, Ms. Arora  

referred to Rule 5 which makes provision for  

allotment of symbols for elections in Parliamentary  

and Assembly Constituencies.  Learned counsel urged  

that the said Rules empowered the Election  

Commission to specify the symbols that may be  

chosen by candidates at elections in Parliamentary  

or Assembly Constituencies. Learned counsel  

referred to Rule 10 which relates to the  

preparation of list of contesting candidates.  It  

was submitted that under the aforesaid Rules, the

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36

Election Commission was fully competent in law not  

only to allot symbols, but also to determine the  

right of a recognized political party to an  

election symbol, as was initially held in Sadiq  

Ali’s case (supra) and also in the case of Kanhiya  

Lal     Omar   (supra).  Ms. Arora submitted that, in  

fact, in the case of Kanhiya     Lal     Omar   (supra), this  

Court observed that the Commission has been clothed  

with plenary powers by the Conduct of Election  

Rules and the Commission could not be disabled from  

exercising effectively the plenary powers vested in  

it in the matter of allotment of symbols and for  

issuing directions in connection therewith.  It was  

also held that it was plainly essential that the  

Commission should have the power to settle a  

dispute, in case claim for the allotment of the  

symbol of a political party was made by two rival  

claimants. In such a case, the machinery for  

resolving such disputes was contained in paragraphs

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37

13 and 15 of the Elections Symbols Order, 1968.  It  

was re-emphasised that the Commission is an  

authority created by the Constitution and according  

to Article 324, the superintendence, direction and  

control of the electoral rolls for and the conduct  

of elections to Parliament and to the Legislature  

of every State and of elections to the offices of  

President and Vice-President was vested in the  

Commission.  Ms. Arora submitted that it was no  

longer available to the Petitioners to contend that  

the Election Commission was not competent to decide  

questions relating to the allotment of symbols to  

political parties and candidates at the time of  

elections, since its powers had been vested in it  

under Article 324 of the Constitution itself.

28. In this regard, Ms. Arora also referred to the  

recent decision of this Court in Subramanian     Swamy    

Vs. Election     Commission     of     India    [(2008) 14 SCC

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38

318], in which the validity of the Election Symbols  

Order, 1968, was upheld and it was also held that  

though the matter of symbol is extremely sensitive  

for a political party, it should be or remain to be  

firstly a political party since Section 29-A of the  

Representation of People Act, 1951, clearly shows  

that a political party must have a certain amount  

of following as one could not imagine a political  

party without substantial following.  

29. Ms. Arora urged that in Rama     Kant     Pandey   Vs.  

Union     of     India   [(1993) 2 SCC 438], while holding  

that creation of distinction between candidates of  

recognized parties and other candidates, though  

alleged to be artificial, inconsistent with the  

spirit of election law, discriminatory, giving  

important and special treatment to party system in  

democracy, was quite proper and that political  

parties constitute a class from other candidates

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39

and hence Articles 14, 19 and 21 were not violated  

in the facts of the case.  It was also observed  

that the right to vote or to stand as a candidate  

and contest an election is not a fundamental right  

or even civil right, but a purely statutory right,  

as is the right to be elected.  It was also urged  

that even the right to dispute an application was a  

statutory right emerging from the Representation of  

the People Act, 1951.  According to Ms. Arora,  

outside the Statute, there is no right to elect, no  

right to be elected and no right to dispute an  

election.  It was submitted that these rights were  

the creation of a Statute and were, therefore,  

subject to statutory limitations, as no fundamental  

right was involved.  

30. Ms. Arora submitted that the Election Symbols  

Order, 1968, concerns registered parties,  

recognised and non-recognised parties and

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independent candidates.  Learned counsel urged that  

paragraph 2(h) of the Election Symbols Order, 1968,  

defines “political party” to be an association of a  

body of individual citizens of India, registered  

with the Commission as a political party under  

Section 29-A of the Representation of the People  

Act, 1951, which as mentioned herein earlier, deals  

with registration of association of bodies as  

political parties with the Election Commission.  

Ms. Arora submitted that since the provisions of  

paragraph 6A, 6B and 6C of the Election Symbols  

Order, 1968, have been held to be valid, they could  

not be departed from and the political party would,  

therefore, be bound by whatever amendments that may  

have been brought to the Election Symbols Order,  

1968.  Ms. Arora urged that although freedom of  

expression was a fundamental right within the  

meaning of Article 19(1)(a) of the Constitution,  

the right to vote was a statutory right which could

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41

not be questioned by way of a Writ Petition so long  

as said right remained in the statute book.   

31. The submissions made on behalf of the writ  

petitioners regarding the constitutional validity  

of the Election Symbols Order, 1968, and the power  

of the Election Commission to settle issues  

relating to claims of splinter groups to be the  

original party, had fallen for the decision of this  

Court about forty years ago in Sadiq     Ali  ’s case,  

when this Court had occasion to observe that the  

Election Commission had been clothed with plenary  

power by Rules 5 and 10 of the Conduct of Election  

Rules, 1961, in the matter of conducting of  

elections, which included the power to allot  

symbols to candidates during elections.  The  

challenge to the vires of the Symbols Order, 1968,  

was, accordingly, repelled.  

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42

32. The view in Sadiq     Ali  ’s case has since been  

followed in the All     Party     Hill     Leaders  ’   Conference    

case (supra), Roop     Lal     Sathi  ’s case (supra),  

Kanhiya     Lal     Omar  ’s case (supra) and as recently as  

in Subramanian     Swamy  ’s case (supra), to which  

reference has been made in the earlier part of this  

judgment, where the provisions of Article 324 of  

the Constitution vesting the superintendence,  

direction and control of elections, were considered  

in detail and it was, inter alia, held that in  

addition to Rules 5 and 10 of the Conduct of  

Election Rules, 1961, the powers vested in the  

Election Commission could be traced to Article 324  

of the Constitution.

33. The evolution of the law relating to the  

criteria for a political party to be recognized as  

a State Party clearly indicates that the Election  

Commission, in its wisdom, was of the view that in

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43

order to be recognized as a political party, such  

party should have achieved a certain bench-mark in  

State politics.  Nothing new has been brought out  

in the submissions made on behalf of the writ  

petitioners which could make us take a different  

view from what has been decided earlier.  Mr.  

Venugopal’s submissions regarding political parties  

winning a larger number of seats while polling a  

lesser percentage of the votes, sounds attractive,  

but has to be discarded. Mr. Venugopal’s  

submissions are in relation to the poll performance  

of the larger parties within a State where even a  

vote swing of 2 to 5 per cent could cause a huge  

difference in the seats won by a political party.  

A three or four-cornered contest could lead to a  

splitting of the majority of the votes so that a  

candidate with a minority share of the votes polled  

could emerge victorious.  The Election Commission  

has set down a bench-mark which is not

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unreasonable.  In order to gain recognition as a  

political party, a party has to prove itself and to  

establish its credibility as a serious player in  

the political arena of the State.  Once it succeeds  

in doing so, it will become entitled to all the  

benefits of recognition, including the allotment of  

a common symbol.

34. There cannot be any difference of opinion that,  

as was laid down in Union     of     India   Vs. Association  

for     Democratic     Reforms   (supra), a voter has the  

right to know the antecedents of the candidates, a  

view which was later reiterated by this Court in  

People  ’  s     Union     for     Civil     Liberties   (supra), but  

such right has to be balanced with the ground  

realities of conducting a State-wide poll.  The  

Election Commission has kept the said balance in  

mind while setting the bench-marks to be achieved  

by a political party in order to be recognized as a

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State Party and become eligible to be given a  

common election symbol.  We do not see any variance  

between the views expressed by the Constitution  

Bench in the PUCL case and the amendments effected  

by the Election Commission to the Election Symbols  

Order, 1968, by its Notification dated 1st December,  

2000.

35. The writ petitions and the Special Leave  

Petitions must, therefore, fail and are dismissed.

36. There will be no order as to costs.     

………………………………………………………J.    (ALTAMAS KABIR)

………………………………………………………J.                             (SURINDER SINGH NIJJAR) New Delhi Dated: 18.04.2012                

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REPORTABLE

IN THE SUPREME COUR OF INDIA EXTRAORDINARY ORIGINAL JURISDICTION

WRIT     PETITION     (C)     NO.532     OF     2008   

DESIYA MURPOKKU DRAVIDA KAZHAGAM & ANR.    ….PETITIONERS  

Vs.

THE ELECTION COMMISSION OF INDIA.      ….RESPONDENTS

WITH WRIT PETITION (C) NOS.315 OF 2009, 422 OF 2009, 426 OF 2009,  444 OF 2009, 454 OF 2009, 463 OF 2009, 447 OF 2009 & 132 OF  2009, SPECIAL LEAVE PETITION (C) NOS.23494 OF 2009 & 7379- 7380 OF 2009 AND WRIT PETITION (C) NOS.111 OF 2011, 117 OF  2011, 125 OF 2011, 124 OF 2011 & 128 OF 2011   

J     U     D     G     M     E     N     T   Chelameswar,     J.   

I have had the advantage of the opinion of my  

learned brother Altamas Kabir, J.  I regret my inability to  

agree with the same.

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2.  All these petitions filed either under Article 32 or  

under Article 136 raise certain common and substantial  

questions of law as to the interpretation of the  

Constitution.  The lis, essentially, is between the Election  

Commission of India, a creature of the Constitution under  

Article 324, on the one hand and various bodies claiming to  

be political parties and some of their functionaries, on the  

other hand.  The essence of the dispute is whether a  

political party is entitled for the allotment of an election  

symbol on a permanent basis irrespective of its  

participation and performance judged by the vote share it  

commanded at any election.   Some of the petitioner parties  

had contested some election, either General or By-Election,  

by the time they filed these petitions and had been in  

existence for some time, while the others came into  

existence just before the commencement of this litigation.  

All of them are political parties registered under Section  

29A1 of the Representation of the People Act, 1951( for  

short ‘the R.P. Act’), but none of them is a “recognised

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political party”, under the provisions of the Election  

Symbols (Reservation and Allotment) Order, 1968, (henceforth  

referred to as ‘the Symbols Order’).   

3. To examine the issues arising out of this batch of  

petitions, the facts pertaining to W.P.No.532 of 2008 and  

S.L.P.No.7379 – 7380 of 2009 arising out of an interim order  

passed by the Andhra Pradesh High Court in W.P.No.3212 of  

2009, shall be taken as representative facts.  The first of  

the abovementioned two cases represents the case of a  

political party, which was registered with the Election  

Commission on 24-01-2006 and contested 232 assembly  

constituencies out of a total of 234 in the general  

elections to the Legislative Assembly of Tamil Nadu held in  

the year 2006.  It secured 8.337 total number of valid votes  

and returned one Member to the Legislative Assembly, whereas  

the political party in the second of the abovementioned  

cases, was registered with the Election Commission on 22-12-

2006 and contested a couple of by-elections to the  

Legislative Assembly of Andhra Pradesh.  Both the

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abovementioned political parties restricted, for the time  

being, their political activity to one State each, i.e.,  

Tamil Nadu and Andhra Pradesh, respectively.

4. Section 29A of the R.P. Act, 1951, provides for the  

registration of the political parties with the Election  

Commission. It was inserted in the R.P. Act, 1951 in the  

year 1989.  From the language of Section 29A it appears that  

registration with the Election Commission is not mandatory  

for a political party, but optional for those political  

parties, which intend to avail the benefits of Part IV of  

the said Act of which Section 29A is also a part.  The  

expression “political party”  is defined under Section 2(f)  

of the R.P. Act, to mean “an association or a body of  

individual citizens of India registered under Section 29A”.  

The definition, was inserted by an amendment to the R.P.Act,  

in the year 1989.   

5. Until 1985, the Constitution of India made no  

reference to political parties.  It was by the Fifty Second  

Amendment to the Constitution, Tenth Schedule was added to

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the Constitution, where the expression “political party”  

occurs.  Judicial note can be taken of the fact that as a  

matter of practice, most of the political parties are  

registered under some law dealing with the registration of  

Societies. They are not bodies corporate, they are only  

associations consisting of shifting masses of people.   

6. Even as on the date of the coming into force of the  

Constitution, there were numerous political parties claiming  

to be either National Parties or State Parties.  Neither the  

Constitution nor the R.P. Act, or any other Statute  

obligates a political party to seek recognition either by  

the Election 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 apart from the elections to  

the Office of the President and the Vice President.    

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7.  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 /  

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”.

8.  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 separate box in each of the polling station.

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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 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), but the practice of using  

the pictorial symbol still continues.   

9. The purpose behind the adoption of the system of  

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 SCC 664, as under:

“…….  It may be pertinent to find out the reasons  which led 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

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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.”

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.”

10. 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

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that; “the 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 /  

Multi State parties and 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 3243 r/w 5(1)4 of the Conduct of  

Election Rules, 1961.   

11. After the first General Elections, the Election  

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.   The said percentage was  

raised to 4 after the third General Elections in 1962.  The  

situation continued the same till 1967.  What happened

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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. 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 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 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.”    

12.  The Symbols Order, 1968, was made by the Election  

Commission, purportedly, in exercise of the power conferred

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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 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:

“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 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.”

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

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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.    

13. Paras 6A and 6B 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 the case of a State Party, para 6A  

stipulates the conditions, which are required to be  

fulfilled / satisfied, while para 6B 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 polled votes and also securing  

a minimum number of seats, specified therein.  Such

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conditions stipulated under paras 6A and 6B varied from time  

to time.   

14.  All the petitioners are aggrieved by the Symbols  

Order, 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, the said Order came  

to be amended again by Notification date 16-09-2011.   

15. The conditions, which are required to be satisfied  

for a political party to be classified as a recognised  

political party (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 14-05-2005.

“6A. Conditions for recognition as a State Party –  A political party shall be eligible for recognition

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as a State 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 have secured not less than six percent of the  total valid votes polled in the State; and, in  addition, the party has returned at least two  members to the Legislative Assembly of that State  at such general election; or  (ii)At the last general election to the House of  the People from that State, the candidates set up  by the party have secured not less than six percent  of the total valid votes polled in the State; and,  in addition, the party has returned at least one  member to the House of the People from that State  at such general election; or (iii)At the last general election to the  Legislative Assembly of the State, the party has  won at least three percent of the total number of  seats in the Legislative Assembly, (any fraction  exceeding half being counted as one), or at least  three seats in the Assembly, whichever is more; or (iv)At the last general election to the House of  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.”

From the above it can be seen that to secure recognition, a  

political party must satisfy the following conditions:

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(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;  

(3)a third alternative condition, which if fulfilled would  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; (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.

16. 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.

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17. 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; 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  78B of the R.P. Act); and 3. allocation of equitable sharing of time on the  cable television network and other electronic  media, by the Election Commission (Section 39A of  the R.P. Act.)

18. Para 6C of the Symbols Order, stipulates that 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 6B, (depending  

upon whether it is a National party or a State Party) in  

every successive general election.  After each succeeding  

general election, obviously, an assessment is made by the

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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.

19. 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.  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

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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.   

20. Even in the case of an existing political party,  

which 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 common symbol would not be available for

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the exclusive use of such party’s candidates at any  

subsequent election beyond a period specified in para 10A.

21. 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.      

22. 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) 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.     

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23. 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 to briefly note the submissions made by the learned  

counsel for the Election Commission.  

24. It is the stand of the Election Commission that the  

rules of de-recognition or non-recognition of the political  

parties by 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 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

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reservation and exclusive use of an electoral symbol in  

favour of its candidates at any election, but also confers  

certain other advantages contemplated under Section 78A and  

78B 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, Namakkal Constituency, 1952 SCR 218 and  

Jyothi Basu v. Debi Gosal (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 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 Commission being charged with the responsibility,

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by the Constitution, of conducting the elections in this  

country, is constitutionally authorised7 to take all  

measures for appropriately regulating each step of the  

electoral process in ensuring a free and fair electoral  

process, which is essential for preserving the democratic  

structure established under the Constitution of the Republic  

of India.   

25. The learned counsel for the Election Commission  

further submitted that the question whether a political  

party once 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.

26. 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”:

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“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.

‘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.

27. 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

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batch of petitions and right for this Court to examine the  

same ?   

28. 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 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 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 public  

interest”.  Therefore, in my opinion, the various legal

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issues raised by the petitioners are required to be  

examined.  

29. 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:

“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 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 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.”

30. 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 reasons. Article 326, declares that

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the elections to the House of the People and the Legislative  

Assembly of every State shall be on the basis of adult  

suffrage.  Articles 81(1)(a) 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 81(2)(b)  

mandates that each State shall be divided into territorial  

constituencies in the manner specified therein, whereas  

Article 83(2) 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 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 and 172 cumulatively command a periodical  

election based on adult suffrage to the Legislative Assembly  

of a State.   

31. To ensure the conduct of periodic elections to these  

various legislative bodies, the Election Commission is

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established by the Constitution.  It is endowed with such  

powers 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 Executive12.  This entire scheme of a  

representative democracy enshrined in the Constitution is  

for the purpose of achieving the 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”.

32.  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, 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.  ……….  The straightaway conclusion  is that every Indian has a right to elect and be  elected and this is constitutional as distinguished

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from a common law right and is entitled to  cognizance by Courts, subject to statutory  regulations.”

The little man’s right 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 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 provide13.  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.            

33. The right to elect flows from the language of  

Articles 81 and 170 r/w Articles 325 and 326.  Article 326

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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 32514 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 the  

grounds only of religion, race, caste, sex, etc. Articles  

8115 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 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 and are not otherwise

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disqualified, by a valid law, to be voters.  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.

34. Coming to the question of the right to get elected /  

being CHOSEN either to the Lok Sabha or to the Legislative  

Assembly of a State, Articles 8418 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

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from that, these Articles also prescribe that 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 19121 prescribe the  

various contingencies in which a person would become  

disqualified to 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.         

35. 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 higher age requirement is prescribed to  

be a member of the Legislature, as explained above.

36. In my opinion, therefore, subject to the fulfilment  

of the various conditions stipulated in the Constitution or  

by an 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

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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 –  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.   

37. At this stage, it is necessary to deal with the  

submission made by Ms. Meenakshi Arora, that in view of the  

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 Constitutionally 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:

N.P.Ponnuswamy (supra)

“28. The points which emerge from this decision may  be stated as follows :-- (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. …………..”

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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. 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.

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

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under Article 329(b)22 of the 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 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 movement 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

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Union for Civil Liberties (PUCL) and anr. v. Union of India  

and anr. (2003) 4 SCC 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)

38. 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 constitutional or fundamental right in  

these activities.

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39. “Political parties are indispensable to any  

democratic system and play the most crucial role in the  

electoral process 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  

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 is a matter of the British  

constitutional history though political parties are not part  

of the Constitution of England24.  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

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most precious freedoms and protected by the First and the  

Fourteenth 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 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.   

40. 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 or associate with organisations of their  

choice.  Article 19(1)(a) confers a fundamental right on the  

citizens of the freedom of speech and expression.  The

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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 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.”  

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 political  

parties would directly affect the fundamental rights of its  

members.   

41. It is argued that political parties, which do not  

qualify for recognition by the Election Commission by virtue  

of the stipulations in the Symbols Order suffer a

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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 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, 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.

42. If the purpose of adopting the system of pictorial  

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 because of the bulk  

of the electorate associated the political party at the time

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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 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 reasonable restriction designed to achieve  any of the purposes specified under Article 19(2)  and (4); and

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(ii) the question whether such a classification  satisfies the twin tests of being a reasonable  classification, which has 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.   

43. 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 Symbols Order certainly violates the  

prohibition contained under 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.    

44. To establish the disadvantages imposed by the  

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

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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.

45. 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 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 advantages flowing from such  

registration.  The expression “recognised political party”  

was first introduced in the Act by Act No.21 of 1996, in the

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proviso to Section 33 and Sub-Section (2) of Section 38.  

Later, such an expression was employed in Section 39A and in  

the second explanation to Sub-Section (1) of Section 77,  

Section 78A and Section 78B, which occur under Part–VA of  

the Act by the amending Act No.46 of 2003.  The explanation  

to Section 78B(2), defines the expression “unrecognised  

political party” for the limited purposes mentioned therein  

and it reads as follows:

“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].”  

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 as it is only on the basis of the recognition by the  

Election Commission, the rights or obligations created under

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the abovementioned provisions come into play.  There is  

still no constitutional compulsion in that regard.   

46. Though, post-1996, the R.P. Act, 1951, obligates the  

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 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 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 at an election for the  

purpose of according or refusing to accord recognition to a  

political party.  It so happened that such a criterion was

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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 prevents the  

Election Commission from changing the criteria for  

conferring recognition on a political party.     

47.  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) 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 far as  

possible, inconformity with their choice.  The recognition

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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:

“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 the 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.”           

48. 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

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elections to the various Legislative Bodies created 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.  

49. It was in the year 1968, eventually, the Election  

Commission thought of formalising the existing practice by  

creating a formal legal instrument of the entire exercise of

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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 / 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.         

50.  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.

51.   Till 1996, gaining recognition from the Election  

Commission did not confer any advantage on a political party  

other than securing the reservation of a symbol commonly for

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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.

52. Notwithstanding all these changes, the  

constitutional right of a qualified citizen to contest an

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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 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 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 Legislative Assembly.    

53. 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 party is recognised by the Election

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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  

some symbol or the other to each of those candidates.     

54.  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,

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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  

Constitution cannot be made dependent upon the popularity of  

a person or an idea held by the person.  If it were to be

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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 Commission, would disable such political party from  

effectively contesting the election, thereby, negating the  

right of an association to effectively pursue its political  

briefs.

55.  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

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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.

56.  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 analysis of 7 earlier judgments of

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this Court, 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 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 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.

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57. 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.   

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

by the Election Commission for the reason that by simply  

denying 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 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

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derecognised political parties or independent candidates  

without any party support can still contest the election.  

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 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.             

59. 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

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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 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  connected with the concept of symbol of that party.  It is but natural that a party must have a  following and it is only a political party having  substantial following in terms of Clauses 6A, 6B  and 6C would have a right for a reserved symbol.  Thus, in our opinion, it is perfectly in consonance  with the democratic principles.  A party which  remains only in the records can never be equated  and given the status of a 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

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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.  

60. 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 a political party with “insignificant poll  

performance”, is violative of Article 14 of the Constitution  

of India.

………………………………….J. ( J. CHELAMESWAR )

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New Delhi; April 18, 2012.