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"REPORTABLE"
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO._5803________OF 2008
(Arising out of SLP (Civil) No.3010 of 2008)
Subramanian Swamy ....Appellant
Versus
Election Commission of India
Through its Secretary ....Respondent
JUDGMENT
V.S. SIRPURKAR, J.
1. Leave granted.
2. Dr.Subramanian Swamy comes up before us challenging the
judgment of the High Court of Delhi whereby his Writ Petition was
dismissed. The Writ Petition was filed by Dr. Swamy in his personal
capacity, though he claimed therein a mandamus for Janata Party of which
he is the President. In the Writ Petition following prayers were made:
"(a) A writ of mandamus or a writ, order or direction in the
nature of mandamus to strike down paragraph 10A of
the Symbols Order as violative of Article 14 of the
Constitution of India;
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(b) A writ of mandamus or a writ order or direction in the
nature of mandamus to direct the respondent to bring
the Symbols Order, notably paragraph 10A, in line with
the requirement of Article 14 as set out hereinabove;
(c) A Declaration that paragraph 10A must be read down as
set out hereinabove, in order to meet the requirements
of Article 14;
(d) pass such other and further order or orders as this
Hon'ble Court may deem fit and proper in the facts and
circumstances of the case."
It seems that the original petition came to be amended incorporating three
new paragraphs. Two paragraphs are reproduced here (other
amendments are only formal):
"9A. It is to be noted that under the prevailing political
situation in India, Coalition Governments are the order of
the day both at the Centre (for the last more than 16
years) and in most States. This has resulted in elections
being increasingly fought by alliances of parties, so that
in such electoral alliance, each party agrees to fight a
lesser number of seats than what it would choose to
fight on its own. Thus it becomes increasingly difficult
for each such party to individually meet the recognition
criteria laid down by the Election Commission in the
(Amended) Symbols Order, wherein, in any event (by
the introduction of paras 6A, 6B and 6C) the criteria for
recognition have been enhanced. Even very big parties
ruling are presently threatened with loss of their symbol.
Such a result is not in consonance with the idea that
elections must reflect the will of the people in all its
variety.
9B. Even as of today with still a limited right to its symbol, the
petitioner has been prejudiced by other political parties
having been allotted its reserved symbol, whereby, it is
the admitted position of the Election Commission, that its
use by such other party is liable to cause confusion in
the minds of the public while voting at elections (See
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Annexure P-6), which is the downloaded "Compendium
of Instructions from the Election Commission of India to
the State Election Commissions."):
(a) In the 2002 elections to local bodies ion
Andhra Pradesh, the Janata Party's reserved
symbol was actually allotted and utilized by
another party the Telegu Rashtra Samiti, which
has nothing to do with and does not share the
ideals and principles of the Janata Party. The
Janata Party's objections were rejected by the
order dt. 20.06.2003 of the Andhra Pradesh
Election Commissioner, (appended hereto as
Annexure P-7) which actually held:
"The Symbol "Halder Within Wheel" has
now become popular among the people as
the symbol of TRS because of its
participation in the elections" (emphasis
supplied)"
(b) Again in the 2003 elections to local bodies
in Kerala, the Janata Party's symbol was put on
the List of Free Symbols (Annexure A-8 hereto);
and was allotted to independent candidates.
If this is the position, even when the Janata Party can
avail of the concession of Paragraph 10A the situation is
bound to deteriorate when the concession is no longer
available."
3. The petitioner contended in this writ petition that Janata Party was a
recognized national political party and thus had a reserved symbol of
Chakra Haldar. The said Janta Party lost its status as a national party
because of its poor performance in General Elections in 1996 and by an
order dated 27.9.2000 of the Election Commission, it ceased to be a
recognized political party. It is not disputed that the order dated 27.9.2000
has become final and has been upheld right upto this Court. Being a
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recognized political party of a national and/or State stature it had a
reserved symbol being Chakra Haldar, i.e. a farmer carrying Plough within
a wheel. As a result of its de-recognition as a recognized political party it
lost its right to have exclusive symbol, more particularly due to the
provisions of the Election Symbols (Reservation and Allotment) Order,
1968 (hereinafter referred to as "the Symbols Order"). The said Symbols
Order owes its existence to a Standing Order No.2959 dated 31st August,
1968 and is passed in exercise of powers conferred by Article 324 of the
Constitution of India read with Section 29A of the Representation of People
Act, 1951 (43 of 1951) and Rules 5 and 10 of the Conduct of Elections
Rules, 1961. It deals with the symbols of the political parties.
4. Before this writ petition was filed, on losing the reserved symbol, as
a result of its de-recognition as a recognized political party, the appellant
had approached the Election Commission insisting upon the continuance
of the reservation of the aforementioned symbol of Janata Party. As has
already been pointed out, after the derecognition of Janata Party as a
recognized party, a Special Leave Petition being SLP (C) No.20807 of
2000 was filed in this Court. In this SLP the only challenge was to the de-
recognition order dated 27.9.2000. However, during the pendency of this
SLP, on 1.12.2000, by notification No.56/2000/Jud.III the Election
Commission amended the Symbols Order and among other amendments
inserted Clause 10A therein. This Court dismissed the aforementioned
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SLP on 15.1.2001 in limine. The decision of de-recognition of Janata Party
has, therefore, become fait-accompli.
5. The appellant thereafter approached to the Election Commission
complaining mainly against clause 10A in 2001 (the date of this complaint
is not known) as due to that provision the symbol of Janata Party could
have a limited life of six years only while the appellant wanted to retain that
symbol permanently for this party. The appellant was invited by the
Election Commission to submit his proposals in respect of the symbol
problem of de-recognised party which had earlier enjoyed the privilege of
an exclusive symbol. There was then an unexplicable lull for about 4 years.
The appellant claims that on 26.2.2005 he suggested that the Symbols
Order should be amended so as to enable the once recognized political
parties of national or State level to retain their reserved symbols
permanently. On 14.7.2005 this proposal was refused by the Election
Commission relying on the judgment of this Court in Janata Dal
Samajwadi v. Election Commission [AIR 1996 SC 577]. This prompted
the appellant to file a writ petition in the High Court which writ petition
came to be dismissed necessitating the present SLP.
6. The whole attack of the petitioner was thus directed against clause
10A which was added by amendment of Election Symbols (Reservation
and Allotment) Order, 1968 as back as on 1.12.2000 in the writ petition as
also during the argument before the High Court. The basis of the
argument before the High Court was the vice of arbitrariness of that
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provision inasmuch as it allowed a period of 6 years (only) as a grace
period to retain its symbol which was earlier rightfully reserved for it, even
after the said party lost its status, as a recognized party due to its dismal
performance, in national or State election. The same stance is now taken
before us by Dr.Swamy having failed to convince the High Court on that
issue. In addition Dr. Swamy urges that a direction should issue from this
Court to amend the said clause 10A suitably.
7. To appreciate the contentions raised during an elaborate debate
before us it would be better to consider some relevant provision of the
Symbols Order, as it stands now, along with the provisions of
Representation of Peoples Act and Rules thereunder and other allied
provisions.
8. Under Article 324 of the Constitution, the Election Commission is
empowered to frame its Regulations. Rules 5(1) and 10(4) of the
Representation of Peoples Act, 1950 provide that every candidate at an
election shall be allotted a different symbol subject to such restriction as
the Election Commission may specify. In exercise of its plenary power of
superintendence, regulation and control of elections to Parliament and
State legislatures under that Article the Election Commission has
promulgated the said Symbol Order as early as in 1968. History tells us
that though the first election was held in 1951 immediately after the
constitution, there was no such regulation on the anvil. Perhaps the
multiplicity of the political parties in the after years necessitated
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promulgating the Symbols Order. The Preamble of the Order should open
a window for us ushering in some light for the proper interpretation thereof.
"AN ORDER
to provide for specification, reservation, choice and allotment
of symbols at elections in Parliamentary and Assembly
Constituencies, for the recognition of political parties in relation
thereto and for matters connected therewith.
S.O. 2959, dated the 31st August, 1968 - WHEREAS, the
superintendence, direction and control of all elections to
Parliament and to the Legislature of every State are vested by
the Constitution of India in the Election Commission of India;
AND WHEREAS, it is necessary and expedient to provide, in
the interest of purity of elections to the House of the People
and the Legislative Assembly of every State and in the interest
of the conduct of such elections in a fair and efficient manner,
for the specification, reservation, choice and allotment of
symbols, for the recognition of political parties in relation
thereto and for matters connected therewith.
NOW, THEREFORE, in exercise of powers conferred by
Article 324 of the Constitution [read with section 29A of the
Representation of the People Act, 1951 (43 of 1951) and rules
5 and 10 of Conduct of Elections Rules, 1961 and all other
powers enabling it in this behalf, the Election Commission of
India hereby makes the following Order."
Seeing following provisions would be apposite:
"2(h) "political party" means an association or body of
individual citizens of India registered with the
Commission as a political party under Section 29A of
the Representation of the People Act, 1951;
2(2) The General Clauses Act, 1897 shall, as far as may be,
apply in relation to the interpretation of this Order as it
applies in relation to the interpretation of a Central Act."
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5. Classification of Symbols (1) For the purpose of this
Order Symbols are either reserved or free.
(2) Save as otherwise provided in this Order, a
reserved symbol is a symbol which is reserved for a
recognized political party for exclusive allotment to
contesting candidates set up by that party.
(3) A free symbol is a symbol other than a reserved
symbol.
6. Classification of Political Parties - (1) For the
purposes of this order and for such other purposes as
the Commission may specify as and when necessity
therefore arise, political parties are either recognized
political parties or unrecognized political parties.
(2) A recognized political party shall either be a
National Party or a State party.
6A. Conditions for recognition as a National party - A
political party shall be treated as a recognized National
Party, if, and only if, -
either (A)(i) the candidates set up it, in any four or more
States, at the last general election to the House of
People, or to the Legislative Assembly of the State
concerned, have secured not less than six percent of
the total valid votes polled in their respective States at
that general election; and (ii) in addition, it has returned
at least four members to the House of the People at the
aforesaid last general election from any State or States;
or (B)(i) its candidates have been elected to the House
of the People, at the last general election to that House,
from at least two percent of the total number of
parliamentary constituencies in India, any fraction
exceeding one-half being counted as one; and (ii) the
said candidates have been elected to that House from
not less than three States.
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 the People, or to the
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Legislative Assembly of the State concerned, have
secured not less than six percent 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 percent of the total number
of seats in the Legislative Assembly of the State, (any
fraction exceeding one-half being counted as one), or at
least three seats in the Assembly, whichever is more, at
the aforesaid general election.
6C. Conditions for continued recognition as a National
or State Party - If a political party is recognized as a
National party under paragraph 6A, or as a State party
under paragraph 6B, the question whether it shall
continue to be so recognized after any subsequent
general election to the House of the People or, as the
case may be, to the Legislative Assembly or the State
concerned, shall be dependent upon the fulfillment by it
of the conditions specified in the said paragraphs on
the result of that general election.
7. Savings and Interpretation (1) Notwithstanding
anything contained in paragraphs 6A, 6B or 6C, if any
political party stands recognized, immediately before
the commencement of the Election Symbols
(Reservation and Allotment) Amendment Order, 2000,
either as a National party or as a State Party in some
State or States, the said party shall continue to have
and enjoy the status of such National or State party for
the purposes of the next general elections, to be held
after the commencement of the said Order, to the
House of the People or, as the case may be, to the
Legislative Assembly of the State concerned, and its
continued recognition as such National or State party
shall thereafter be dependent upon the fulfillment by it
of the conditions specified in paragraph 6A or, as the
case may be, paragraph 6B.
(2) xx xx xx xx
8. Choice of Symbols by candidates of National and
State Parties and allotment thereof -
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(1) A candidate set up by a National Party at any
election in any constituency in India shall choose, and
shall be allotted, the symbols reserved for that party
and no other symbol.
(2) A candidates set up by a State Party at an
election in any constituency in a State in which such
party is a State Party, shall choose, and shall be
allotted the symbols reserved for that party in that State
and no other symbol.
(3) A reserved symbol shall not be chosen by, or
allotted to, any candidate in any constituency other than
a candidate set up by a National Party for whom such
symbol has been reserved or a candidate set up by a
State Party for whom such symbol has been reserved
in the State in which it is a State party even if no
candidate has been set up by such National or State
Party in that constituency.
10A Concession to candidates set up by an
unrecognized party which was earlier recognized
as a National or State party - If a political party, which
is unrecognized at present but was a recognized
National or State party in any State or Union Territory
not earlier than six years from the date of notification of
the election, sets up a candidate at an election in a
constituency in any State or Union territory, whether
such party was earlier recognized in that State or Union
territory or not, then such candidate may, to the
exclusion of all other candidates in the constituency, be
allotted the symbol reserved earlier for that party when
it was a recognized National or State party,
notwithstanding that such symbol is not specified in the
list of free symbols for such State or Union territory, on
the fulfillment of each of the following conditions,
namely:-
(a) that an application is made to the Commission by
the said party for the exclusive allotment of that symbol
to the candidates set up by it not later than the third day
after the publication in the Official Gazette of the
notification calling the election;
(b) that the said candidate has made a declaration in
his nomination paper that he has been set up by that
party at the election and that the party has also fulfilled
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the requirements of clauses (b), (c), (d) and (e) of
paragraph 13 read with paragraph 13A in respect of
such candidate; and
(c) that in the opinion of the Commission there is no
reasonable ground for refusing the application for such
allotment:
Provided that nothing contained in this paragraph
shall apply to a candidate set up by the said party at an
election in any constituency in a State or Union
Territory where the same symbol is already reserved for
some other National or State party in that State or
Union Territory."
9. In support of his plea Dr. Swamy firstly pointed out that Janata Party
which came in existence in the year 1977 was once upon a time a ruling
party in the Parliament and was also a recognized State Party in number of
States. He impressed upon us that thereafter also it continued to be a
recognized party and had retained its symbol throughout for fairly long
period of over 20 years without any interruption and it was only in the year
2000 when it lost its recognition, it faced the threat of losing the reserved
symbol of Chakra and Haldar. According to Dr.Swamy, the said symbol
had gone into the psyche of the public for a long period of over two
decades and as such there was no justification in firstly depriving the
Janata Party of that symbol and secondly allowing only six years as a
concession period. This, according to Dr. Swamy, was an arbitrary
exercise and the said provision of clause 10A suffered from arbitrariness
and, therefore, did not pass the acid test of Article 14 of the Constitution of
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India. Dr.Swamy also adds that to deprive a political party of its symbol
would amount to an undemocratic act.
10. Dr.Swamy also very earnestly urged that the symbol was conceived
after a considerable intellectual exercise and thus became an intellectual
property which could not be taken away by a legislation and at any rate a
provision like the impugned provision and providing only six years time for
its retention with the Janata party would not be justifiable. In short
Dr.Swamy contends that "once a symbol always a symbol".
11. As against this Ms.Meenakshi Arora, learned counsel appearing on
behalf of the Commission firstly supported the High Court judgment and
pointed out that the petition suffered from basic defects which were of vital
nature. Learned counsel also took us through the historical background of
Symbols Order and pointed out that the symbol was integrally and
inextricably 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 as a recognized political
party, there was no question of it being allowed to insist on a reserved
symbol which was the prerogative only of the recognized political party.
She further took us through the aforementioned provisions and pointed out
that the Symbols Order recognize only two kinds of symbols, they being,
the reserved symbols and free symbols and, therefore, once the party had
lost its reserved symbol, it could be only treated as a free symbol available
to one and all without any exclusivity attached to it. She further points out
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that in effect the appellant or as the case may be, his party, took benefit of
the provisions of clause 10A for more than six years and it was only when
it came on the brink of losing the reserved symbol that the appellant
approached the court and thereby the appellant was not only guilty of
latches but of impropriety also. Learned counsel took us through a few
decisions of this Court which we shall consider in the latter part of this
judgment.
12. On this backdrop we have to decide this ticklish question of the right
of Janata Party to permanently retain its symbol. There can be no doubt
that a symbol particularly in case of an established political party is not only
having a political implication but has also an emotional angle attached to it.
This is apart from the fact that in India large population of which is rural,
uneducated or at time illiterate, the such electorate would naturally have a
tendency to identify a party or its candidates by its symbols. It is perhaps
for this reason that the political parties zealously guard their symbol. But
the basic question is whether a political party can be deprived of its symbol
under such scenario and would such deprivation amount to an
undemocratic step as urged by appellant. In our opinion though the matter
of symbol is extremely sensitive one for a political party, it should be or
remain to be firstly a political party.
13. A "political party" is defined in Section 2(h) as an association or body
of individual citizens of India registered with the Commission as a political
party under Section 29A of the Representation of People Act, 1951
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(hereinafter referred to as "RP Act, 1951"). That Section mandates that an
application has to be made to the Election Commission for registration of
any party who wants to avail of the provisions of Part IVA. This application
must contain the information as provided under Sections 4(a) to (g) which
information includes, amongst others, the numerical strength of its
members of various categories as also its representatives in House of
Parliament or any State Legislature. Such application must accompany
the Rules and Regulations for its internal functioning. Sub-section (7)
empowers the Election Commission a discretion to register such political
party or to refuse the registration. One very important aspect is that vide
Section 29B every political party may accept voluntary contribution,
donations or subscriptions etc. So also Section 29C provides that the
political party must prepare a report in respect of the contributions received
by it and such report shall be submitted to the Election Commission. Tax
relief is also provided under that Section. There is no doubt that Janata
Party is such a registered political party under Section 29A. The Section
clearly shows that a political party must, therefore, have followings. One
cannot imagine a political party without any substantial following.
14. As has been pointed out by Ms.Arora for good long 17 years there
was no concept of a recognized political party as till then there was no
Symbols Order. It came on the anvil only on 31st August, 1968. The
purpose of bringing in existence this Symbols Order was to maintain the
purity of elections so that elections should be conducted in a fair and
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efficient manner as also for specification, reservation, choice and allotment
of symbols as also for the recognition of political parties in relation to the
symbols. The Preamble suggests, among other things, that there was a
need to recognise the political parties for the purposes of specification,
reservation, choice and allotment of symbols. This has probably become
necessary on account of firstly increase in the number of parties on
political stage of India as also because of the emergence of the State
parties. It must be immediately remembered that till then the Symbols
were being granted in keeping with the tradition of a particularly party
having a particular symbol but there was a complete absence of any Rules
on such a sensitive aspect like symbols. This emergence of large number
of political parties on the national and local levels and their interest in the
elections necessitated bringing of the Symbols Order. A new concept of a
recognized political party came on the anvil via this Symbols Order.
Clause 5 of the Symbols Order is extremely significant and recognized only
two kinds of symbols, they being reserved symbols and free symbols. The
reserved symbols are necessarily reserved for the exclusive allotment to
the candidates of a recognized political party whereas all other symbols
are free symbols. Clause 6 is extremely important inasmuch as it
introduces for the first time, a classification of political parties as
recognized political parties and unrecognized political parties. It must be
remembered that there are only two classifications provided by Clause 6.
Clause 6A, 6B and 6C provide for the condition of recognition of a political
party on the national and/or State level. We need not, at this stage, go into
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the intricacies of clauses 6A, 6B and 6C but suffice it to say that in order to
have that status, the said political party must be an effective political party
in the sense that it must share a particular percentage of votes in the
national or the State level elections or it must have certain number of
elected representatives in Lok Sabha or the State Legislatures. It is this
concept which introduces that in order to be a recognised political party, it
must perform well in the elections and thereby pass the acid test of
"following". Therefore, unless there is a following of the nature provided in
Clauses 6A, 6B and 6C, the political party does not remain a recognized
political party. Once this position is clear, the other extremely important
position which has to be considered is that a reserved symbol is available
only for the recognized parties. Thus, there is a bond created between
recognized political party and its symbol.
15. Learned counsel for the respondent is undoubtedly correct in
arguing that concept of recognition is inextricably connected with the
concept of symbol of that party. It is but natural 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 recognized political party in the democratic set up. We
have, therefore, no hesitation in rejecting the argument of Dr.Swamy that in
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providing the symbols and reserving them for the recognized political
parties alone amounted to an undemocratic act.
16. This takes us to the next leg of arguments that Clause 10A suffers
from arbitrariness in providing only six years of additional period to retain
its symbol even after a particular political party loses its status as a
recognized political party. Dr. Swamy very fairly conceded that he has no
quarrel, atleast at this stage, against the derecognition of Janata Party as
recognized political party and indeed he could not have any grudge since
this Court has repelled the challenge to the decision taken by the Election
Commission for such a derecognition. We are, therefore, left with a limited
challenge to the constitutionality of Clause 10A.
17. According to Dr.Swamy there was no rationale in providing only six
years under clause 10A and he wondered as to why the period should be
limited only to six years. We do not see any irrationality or arbitrariness in
providing six years time as an additional period for retaining the exclusive
symbol for the simple reason that within that period there is bound to be
one or more general elections on the national level. So also, if any political
party has lost its status in the State Elections, apart from the fact that upto
the next general elections, it will not lose the said symbol, there is bound to
be another opportunity by way of fresh elections within six years. It is on
this rationale that the period of six years is provided. This is apart from the
fact that in case of Janata Party it continued to have and enjoyed the
status of said national or State party for the purposes of next general
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elections due to the saving clause vide clause 7. Under such
circumstances providing of six years period in clause 10A appears to be
perfectly reasonable and cannot be said to suffer from the vice of
arbitrariness. In the earlier paragraphs we have already indicated that the
theory of continuance and permanent reservation of a particular symbol for
a particular political party cannot stand on the ground that after passing of
the Symbols Order, the concept of recognition of a political party and the
concept of a reserved symbol for that party must be treated to have
amalgamated. A plain reading of the provisions would bring out only that
result.
18. The appellant then urged that we should read down the provisions of
clause 10A so as to avoid the mention of six years in clause 10A. In our
considered opinion such an exercise is not possible where the language of
the provision is clear, admits of no doubt and no situation warrants such
reading down. Such reading down and thereby ignoring the limit of six
years as provided in the clause would render other provisions nugatory.
Apart from that such reading down would lead to absurdity in the wake of
other provisions. At this juncture we must point out that in this writ petition
there is no challenge to clause 5(2) which specifically provides that a
reserved symbol is a symbol which is reserved for a recognized political
party for exclusive allotment to the contesting candidate set up by that
party. Clause 6 classifies, for the first time, the "political party" in
recognized political party or unrecognized political party. Reading these
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clauses together it becomes very clear that firstly the reserved symbol is
meant only for recognized political party for its exclusive user. Again the
second inference which comes out of such conjoint reading of two
provisions is that if a particular symbol is not a reserved symbol, meaning
thereby that it is not meant for a recognized political party, such symbol
automatically become a free symbol. There is no challenge to this concept
nor is there any challenge to the constitutional validity of clauses 5 and 6.
In the absence of any challenge to the constitutional validity of clauses 5
and 6, the challenge to clause 10A must necessarily fail. It is for this
reason that we have quoted the relief clauses in the writ petition at the
beginning of the judgment in para 2 above, the reading of which clearly
suggests that barring clause 10A, the petitioner has not chosen to
challenge any other clause of this Symbols Order. It is perhaps because of
this absence of challenge that Dr.Swamy wants us to read down the
impugned provisions of clause 10A.
19. It is trite law that a statute must be read as a whole in its context.
We must, therefore, read the provisions of clause 10A in the light of other
provisions, namely, clauses 5, 6, 6A, 6B and 6C. If we read down the
provisions ignoring the limit of six years, an absurdity would creep in vis-`-
vis clauses 5 and 6. In that case a political party which is not any more a
political party, would still continue to have a reserved symbol in total
derogation to the language of clauses 5 and 6. Such a course is not
permissible. We would have to interpret clause 10A in the light of other
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connected provisions. This Court in Philips India Ltd. v. Labour Court,
Madras and others [(1985) 3 SCC 103] observed in para 15 as under:
"No canon of statutory construction is more firmly established
than that the statute must be read as a whole. This is a
general rule of construction applicable to all statutes alike
which is spoken of as construction ex visceribus actus. This
rule of statutory construction is so firmly established that it is
variously styled as `elementary rule' [See Attorney General v.
Bastow (1957) 1 All ER 497] and as a `settled rule' [see
Poppatlal Shah v. State of Madras 1953 SCR 667]. The only
recognized exception to this well laid principle is that it cannot
be called in aid to alter the meaning of what is of itself clear
and explicit. Lord Coke laid down that: "it is most natural and
genuine exposition of a statute, to construe one part of a
statute by another part of the same statute, for that best
expresseth meaning of the makers" [Quoted with approval in
Punjab Beverages Pvt. Ltd. v. Suresh Chand (1978) 3 SCR
370]."
Clause 10A, therefore, cannot be interpreted in isolation as prayed for by
the appellant. It has to be read in terms of other connected provisions like
clauses 5, 6, 6A, 6B and 6C and also the objects on the Preamble which
also has been quoted by us above. The conjoint reading of all this would
clearly bring out a position that clause 10A would have to be read and
interpreted so that it does not harm the other provisions of statute.
20. Again this Court in Union of India v. Elphinstone Spinning and
Weaving Co. Ltd. & Others [(2001) 4 SCC 139], the Constitution Bench
of this Court in paragraph 21 has made the following observations:
"....though it is no doubt true that the court would be justified
to some extent in examining the materials for finding out the
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true legislative intent engrafted in a statute, but the same
would be done only when the statute itself is ambiguous or a
particular meaning given to a particular provision of the
statute would make the statute unworkable or the very
purpose of enacting the statute would get frustrated. By no
stretch of imagination, would it be open for a court to expand
even the language used in the Preamble to extract the
meaning of the statute or to find out the latent intention of the
legislature in enacting the statute. As has been stated
earlier....."
These observations would succinctly bring out a position that since the
language of clause 10A is extremely clear and its plain meaning does not,
in any manner, bring out any absurd results, we would have to rely upon
the plain meaning which is the only meaning emerging out of the plain
language of the provision. It is for this reason that we were not in a
position to read down the provision so as to ignore the words "six years" in
clause 10A.
21. Another argument which was pressed into service was that Clause 8
should recognize a third category, i.e., a party which was once a
recognized party but has lost its status as such so that it retains its old
symbol for ever and can rightfully claim it. That clause makes it mandatory
that a candidate set up by a national party shall chose the symbol reserved
for that party and no other symbol. So also a candidate set up by the State
party shall chose and shall be allotted only the symbol allotted to that party
and no other symbol. Clause 8(3) provides that a reserved symbol shall
not be chosen by or allotted to any candidate other than a candidate set up
22
by the national party or a State party for whom such symbol has been
reserved. The provision is extremely clear. Dr. Swamy, however, wanted
us to create a third category as has been stated earlier. That is not
possible. If the arguments were to be accepted, then we would have to
read something which is not there in the provisions and this includes
Clauses 5, 6 and 8 as also the impugned clause 10A. Such an exercise
would amount to this Court treading dangerous path of legislature. We do
not think that such a course is possible. We are, therefore, not inclined to
accept that argument.
22. That leaves us with the last argument that the symbol amounts to a
property and, therefore, a political party cannot be deprived of its property.
The argument must be rejected at the outset as the symbol can never have
even the traces of the concept of a property.
23. It may be that a recognized political party would have a right of
exclusive use of the symbol but the Symbols Order makes it very clear that
such right to use the symbol can be lost with the dismal performance of the
party. In a reported decision in Shri Sadiq Ali & Anr. V. The Election
Commission of India, New Delhi & Ors. [(1972) 4 SCC 664] this Court
was considering the controversy regarding the symbols "of two bullock with
yoke on" which was claimed by two splitted groups of the Congress Party.
The Court observed that:
"The answer to this contention is that the result of
differences and dissensions, a political party may be split
into two or more groups but the symbol cannot be split. It
23
is only one of the rival sections or groups, as is held to be
that political party under paragraph 15, which would be
entitled to the use of the symbol in the elections while the
other section or group would have to do without that
symbol. It is not permissible in a controversy like the
present to dissect the symbol and give one out of the two
bullocks represented in the symbol of the Congress to one
group and the other bullock to the other group. The
symbol is not property to be divided between co-owners.
The allotment of a symbol to the candidates set up by the
political party is a legal right and in case of split, the
Commission has been authorized to determine which of
the rival groups or sections in the party which was entitled
to the symbol."
The observations are more clear than necessary to repel the contention
raised by Dr.Swamy. A symbol is not a tangible thing nor does it generate
any wealth, it is only the insignia which is associated with the particular
political party so as to help the millions of illiterate voters to properly
exercise their right to franchise in favour of the candidate of their choice
belonging to a particular party. In the election process it is not merely the
individual candidate's personality or his identity that weighs with the voters.
It is undoubtedly a very relevant factor but along with it the voter also can
and does vote in favour of the party. It is under such circumstances that
the symbol becomes relevant and important. However, all that it provides
is the essential association that it has with a particular party. The
concerned party would have a legal right to exclusively use the same but
that is not, in our considered opinion, a property of the party and, therefore,
the Election Commission which is required to ensure free, fair and clean
elections have every right to deprive a particular party with a dismal
24
performance of that symbol. The Election Commission puts a clamp on
the right of such a political party to use the symbol rightfully. We are,
therefore, not in a position to accept the argument that symbol is a property
of a party and, therefore, such property cannot be taken away from that
political party. The symbol may be an outcome of intellectual exercise but
it does not become an "intellectual property" which concept has monetary
implications. In case of a political party as contemplated in Symbols Order,
monetary angle is conspicuously absent.
24. This takes us to the other argument by Dr. Swamy. He contends that
even if Janata Party because of its dismal performance has lost the right to
use the exclusive symbol which right it enjoyed for more than 20 years, yet
its symbol does not automatically become a free symbol unless it is
specifically included in the list of free symbols by the Election Commission.
Under the Election Rules there is a list of free symbols from which the
candidates selected by a particular party or independent candidates can
chose the symbol. Dr. Swamy urges that in case of the split in Congress
Party the symbol of the National Congress Party of "two bullocks and the
yoke on" and even the subsequent symbol of one of the groups of the
Congress Party, i.e., "a cow with calf" have not been included in the list of
free symbols and are frozen. He further points out that even after the
derecognition of Janata Party such symbol of Chakra and Haldar was
allotted from amongst the free symbols. He argues that there is always a
glorious uncertainty on the political horizons and the possibility of Janata
25
Party performing well again in future cannot be ruled out which would
depend on the political scenario then in existence and in that case Janata
Party would suffer grave prejudice and, therefore, the Election Commission
should freeze this symbol and this symbol should not be given as a free
symbol. We would have ordinarily considered this argument which is
attractive, however, it is not the prayer in the Writ Petition nor was it even
argued before the High Court. Therefore, instead of expressing anything
on this subject, we would leave it open to the appellant to raise this
question before the Election Commission. In fact we have not come
across any particular provision in the Symbols Order to freeze a particular
symbol. However, it will be for the Election Commission in case the
petitioner chooses to go before the same to take a decision in that behalf.
We leave it at that.
25. Since we have considered the questions broadly which are
undoubtedly important questions in the Indian scenario, we do not want to
go into the hypertechnical question as to whether the appellant could have
raised the grievance on behalf of the Janata Party in the absence of any
formal Resolution empowering him to do so. We choose not to go into that
question in view of the importance of the question otherwise.
26. Considering the overall situation we confirm the judgment of the
High Court and hold that the petition as it was presented was liable to be
dismissed and was rightly dismissed. This would be ofcourse subject to
26
the liberty we have given to the appellant to raise the additional question
about the freezing of the symbol.
27. Under the circumstances there shall be no costs.
.......................................J.
(Ashok Bhan)
....................................J.
(V.S. Sirpurkar)
New Delhi;
September 23, 2008
27
Digital Performa
Case No. : SLP(C) 3010 of 2008
Date of Decision : 23.9.2008
Cause Title : Subramanian Swamy
Vs.
Election Commission of India through its Secretary
Coram : Hon'ble Mr. Justice Ashok Bhan
Hon'ble Mr. Justice V.S. Sirpurkar
Judgment delivered by : Hon'ble Mr. Justice V.S. SirpurkarNature of Judgment: Reportable
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