POLITICAL PARTIES AND ELECTION SYMBOLS

CHAPTER-1 INTRODUCTION According to its constitution, India is a “sovereign, socialist, secular, democratic republic.” Like the United States, India has a federal form of government. Political parties have been defined by various writers in various ways. Political parties makes people politically conscious, i.e., aware them about the role as citizens which is done through election. For the purpose of holding elections symbols is of immense importance as election symbols plays a vital role in demarcating the various political parties among each other. In our country a great percentage of people could not read the name of the candidates and the political parties. Thus symbol system helps them to elect their candidates. Modern democracy says for participation by all in the democratic system. So symbol system is a valuable weapon to choose the political parties. The government exercises its broad administrative powers in the name of the president, whose duties are largely ceremonial. The president and vice president are elected indirectly for 5-year terms by a special electoral college. Their terms are staggered, and the vice president does not automatically become president following the death or removal from office of the president.

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CHAPTER-2 MEANING OF POLITICAL PARTIES Politics exists everywhere; it does not come from oak threes, it is not a gift of any angel, it is a human venture centered in man and created by man. According to Black’s Dictionary, Political party is an organization of voters, formed to influence the Governments conduct and polities by nominating an electing candidate to public office 1. According to Michael Curtis, it is notoriously difficult to define accurately a political party. The reason is that the views of the Liberal and Marxist writers differ sharply on this point also the English liberals and the Americans have different views2. Essentially a political party is a voluntary association of individuals with a common set of beliefs and political goals, who work to get with a desire to take control on become part of the government. The liberal view is that the first and foremost aim of each Political Party is to prevail over the others in order to get into power or to stay in it3. According to Marxists, a political party is the most organized and active section of any class or part of that class or coalition of classes in a society. Parties reflect ideology that is a theory of society from which

1

2 3

Black’s Dictionary, Pg no-1179, 7th Edition, United States of America, West Group, 7th edition 1999 Johari. J.C.Indian Government & Politics, Pg No. 557, Delhi, Vishal Publication, 1st edition 1977 Bhattacharya, D.C., Political Theory, Pg no-554, Kolkata, Vijoya Publishing house, 8th Edition 2003.

9

a program of political action can be derived. Parties reflect interests, which give each its particular characters4. The key point of English view on political party is the issue of “principles” of public importance on which the members of a party are agreed. Disraeli defined political parties as “a group of men bonded together to pursue certain principles”1. The Americans views in a different way, to them political party is an instrument of catching power, it is a platform to achieve the power. A definition of political party has three essential ingredients-First, it is an organization of persons who are more or less agreed on some important matters of public policy. Second, it is an organization whose main aim is to take part in the struggle for power. Last, it is a body whose members make concerted efforts to implement their policies and programs by constitutional (democratic) means. Five conditions are necessary to constitute a political party, are as follows – 1. That they agree upon certain fundamental principles of public policy and have a political ideology of their own; 2. That in pursuit of their political objectives, they formulate a ‘practical program’ and ‘platform’ and in doing so aim at unity within its own ranks and at making an effective appeal to the electorate; 3. That they create an effective organization for putting across to the people their ideology and program, and if successful in capturing power, in carrying their program into action;

4 1

Ibid, at pg 555. Johari. J. C., Indian Government & Politics, Pg. No. 558, Delhi, Vishal Publications, 1st edition 1977

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4. That their programs formulated in such a manner as to promote the general interests of the people as a whole and not only of a particular section or community however large or important it may be there is a condition which has not always been observed in practice and therefore there are religious, communal and sectional parties existing particularly in several countries of Europe and Asia, and America. 5. That they employ only ‘constitutional methods’ and work strictly

within the framework of the constitution, thus there is no room for a ‘revolutionary’ party in a democracy. A communist party, whatever its ultimate am, if it is to function as a political party in a democratic state, must forswear violence or the use of force in its struggle for the capture of political power and agree to use only peaceful, constitutional means like other political parties in the State1.

DEFINITION OF POLITICAL PARTIES There is no statutory or constitutional definition of the term ‘political parties’. “However the word political party denotes two broad meaningsone, it has to be a party which has some political aims and objects ultimately with a view of gaining power. Secondly a political party must represent a section of the people without which it cannot be called a political party. Till 1988 there was no direct reference to political parties as regard their definition in law. Even the Tenth Schedule which was added to the Constitution in 1985, have not define the term ‘political party’. It was clause 2(h) of the Election Symbols (reservation and

1

Ibid Pg. No. 560

11

Allotment) Order, 1968 which define a political pary in the following words: “Political party” means an association or body of individual citizens of India registered with the Commission as a political party under paragraph 3 and includes a political party deemed to be registered with the commission under the proviso to sub-paragraph (2) of that paragraph.”1 “According to Marxists, a political party is the most organized and active section of any class or part of that class or coalition of classes in a society. Parties reflect ideology that is a theory of society from which a programmed of political action can be derived. Parties reflect interests which give each its particular character.”2 According to R.M. Mac Iver ‘A political party is an association organized in support of some principles or policy which by constitutional means it endeavors to make the determinant of Government.’ According to R.N. GIlchrist ‘A political party is an organised group of citizens who prefers to share the some political views and who by acting as a political unity try to control the Government. The Chief aim of a party is to make its own opinion and policies prevail.’ Though political party is recognized by the Constitution of India but is not defined there. Political parties are now registered with the Election Commission under section 29A of the 1951-Act. 1. Anand Ballabh Kafaltiya, Democracy & Election Laws, No , Deep & Deep Publications Pvt. Ltd. 2. D.C. Bhattacharya, Political theory, 554, 8th Edition, 2003, Kolkata, Vijoya Publishing House.

But the Act defines a ‘political party’ in section 2(1) (f) merely to mea an association or a body of individual citizens registered with the Election Commission as a political party under section 29A. Section 29A(1) provides that any association if apply for registration as a political party. Other enactment, like, the income Tax 1961, also speak about political parties in the same vein to mean associations or bodies

12

of individual citizens register with the Election Commission as political parties1. The Encyclopaedia Britannica defines a political party as a group of persons organized to acquire and exercise political power. All parties develop a political program that defines their ideology and set out the agenda they would pursue should they win elective office or gain power through extra parliamentary means. Most countries have single-party, two-party, multi-party system.

EVOLUTION OF POLITICAL PARTIES

“In the parliamentary system of governance which the Constitution adopted for the country, the existence of political parties was implicit and inevitable. Even before the country achieved independence, political parties had been playing crucial role in the freedom movement and were also participating in elections at central and provincial levels, however the Constitution was silent altogether with regard to their existence right up to 1985. it was only in 1985 that their existence and functioning in the political field came to be recognised for the first time by the Constitution- that too not direct but in the form of the Tenth Schedule thereto as inserted by the Constitution (Fifty-second Amendment) Act 1985, making political defections a ground for disqualification for membership of Parliament and state legislatures. Even after the existence of political parties being recognised by the Constitution, there is no precise definition of political party in the Constitution or in any statutory law. Political parties are now registered with the Election Commission under section 29a of the 1951 Act. But the Act defines a ‘political party’ in section 2(1)(f) merely an association or a body of individual citizens registered with Election Commission as a political party under section 29A. Section 29A(1) provides that any association or body of individual citizens of India 1

Devi E.S.Rama & Mandiratta. S. K. How India Votes-Election Law Practice Procedure, Pg No. 480, New Delhi, Butterworths, 1st edition 2004

13

‘calling itself a political party’ may apply for registration as a political party. Other enactments, like the Income Tax 1961, also spark about political parties in the same vein to mean associations or bodies of individual citizens registered with the Election Commission as political parties.”1

ORIGIN OF POLITICAL PARTIES Historically, the emergence of political parties has accompanied the growth of modern electorate. Indeed the latter made the former, moreover the

right to

vote

was

extended,

it became

necessary

for political

organizations to organize the electors. Parties acquire new character with the development; they became mass organizations, linking together a large body of citizens with their representatives in the legislative assemblies. They develop institutions of their own and with a view to fighting and winning elections, they collected financial contributions. In this way the parties responded to the real need. Without them the millions of voters who composed the new electorate would have become a disorganized crowed unable to formulate their aims or debate the important and many issues they confronted. “By means of parties, the voters obtained a medium that, to state it in no stronger terms, afforded a chance of rational and coherent action12. The origin of political parties can be determined from the following sources – 1. HUMAN NATURE : Different human beings have different temperaments,

some are radical, others are reactionary, some are moderate others are extremists. Thus people form different parties give different 1

V.S.Rama Devi and S.K Mendiratta, How India Votes, 479,New Delhi,Butterworths, First edition. 2

3

Kappor. A. C. Principles of Political Science, Pg. No. 642, S. Chand & Company, New Delhi, 2001. Johari, J. C. Indian Government & Politics, Pg. No. 563, Vishal Publication, Delhi, 1977

14

expression to their combative instincts. In the words of mains, popular feeling is probably far more a survival of the intellectual differences between men and men.3

2.

ECONOMIC INTEREST : The more realistic basis of division into parties is the conflicts of

economic interests. Difference in possessions,

economic out look of the people and economic conditions are the vital forces behind the formation of political parties, some are capitalists others are communists or socialists, some have a view to nationalized public sectors others have the view to privatize. There may be some force in the opposite argument that politics is not at all economic, but certainly without economics, politics is an utter mysteryi. 3.

ENVIRONMENTAL

EFFECT

: It is often claimed that men inherit their

politics alike religion. The young man joins a particular party, because his father belongs to it. Party allegiance, like property, is often transmitted from generation to generation. In combination there can be influence of group interest and the present political system prevailing for example-German descent to the republicansii. 4. RELIGIOUS

AND

COMMUNAL

SENTIMENTS

: In Western Countries religious

and communal passions are excluded from the conduct of Government. But in India unfortunately political parties are divided on religious grounds although India is a secular country. Familiar parties like Bharatiya Janata Party, Akali, Sibsena are all political parties based on religion. They try to develop nation through communal spirit.

5. IDEOLOGY : Ideology is also a familiar source of political parties. While

the parties of the ‘right’ like Fascists and Nazis are interested in protecting and promoting the interests of the capitalist and other affluent classes of the society, the parties of the ‘left’ like socialists 15

and communists desire a change in the present system so as to give benefits to the unprivileged and under privileged sections of the society. It may also be added that the factor of ‘charisma’ attracts people to join a particular party, it depends on the personalities of the great leader.

CHAPTER-3 CONSTITUTUTION & POLITICAL PARTY Party system exists outside the legal framework of the State and it is not referred in the Constitution of any country. The constitution of United States does not presume existence of political parties. In Britain where party system first began, there also political parties are unknown to law although without political parties nature of British Constitution would be changed. Similarly, political parties in India are extra constitutional, but they are lifeblood of the system of Government established at the center and in the states. The Totalitarian States does not accept existence of any opposition. Professor Brogan realistically points out, “the election of a president really enough of a national figure to carry out his duties, might have been impossible. And it is certain that the greatest break down of the American constitution system, the civil war, came only when the party system collapsed”. Gilchrist is of the opinion that the “party system is really the method whereby the too great rigidity of the American Constitution has been broken down”2. Indian Constitution does not define political party but separate law has been made on it, the most important law in Representation of Peoples Act 1951. 2

Kappor. A. P. Principles of Political Science, Pg. No. 641. S. Changd & Co., New Delhi, 2001

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CHAPTER-4 REGISTRATION OF POLITICAL PARTIES Prior to 1968 there was no Act. Or Rules or order of Election Commission for registering a political parties. In August 1968 provisions was made for reserving and allotting elections symbols. Election Commission gathered knowledge from the general elections held in 1951, 1952, thereafter they felt the necessity for registering political parties to regulate the functioning of parties in democratic manner. Commission considered that to grant recognition of those political parties, which are register, in this order by the Election Commission in Para III detail provisions were made for registrations of political parties. The order continues upto 1989. A new part IV A was inserted in 1951 by Representation of People (Amended) Act, 1988. The section 29A of the Amended Act tells the process of registrations of the political parties with the Election Commissions1.

1

Devi. E. S. Rama & Mandiratta. S.K., How India Votes Election Law Practice procedure, Pg. No. 491, Butterworths, New Delhi, 1st Edition 2004.

17

PROCESS OF REGISTRATION 1. Requirements for RegistrationThe first and foremost requirement prescribe under section 29a of the 1951-Act is that the association or body which seeks registration as a political party under that section should be comprised wholly of the citizens of India, as is evident from the expression ‘any association or body of individual citizens of India’ used in the very beginning of that section. Thus any association or body whose membership is open to any foreigners ie, non-citizens of India, shall be disentitled to seek registration as a political party. Thus any social or cultural organisations are not registered under section 29A of the 1951-Act, unless they call themselves as political parties and intend to contest elections. a. Minimum Membership strength. “The law does not prescribe any minimum membership strength of the association or body seeking registration as a political party under section 29A. In the earlier stages after enactment of the section in June 1989, the Election Commission was also not insisting on any minimum numbers for the formation of a political party. The result was that there was a mushroom growth of several small associations or bodies, comprising, in many cases, only a few members of a family, and they sought and obtained registration with the Commission. This is evident from the fact that by the time of the 1989- general election to the House of people, which followed in less than four months since the enactment of section 29a in June 1989, as many as 261 political parties had applied for registration. On next general election in 1996 the number of political parties on the register of Commission went up to 574. The next general election took place in 1998, the number of political parties on the register of Commission went up further to 657. Now the Commission is insisting that any applicant party must have at least 100 such registered electors as its members. Further, all these 100 members have to submit individual affidavits with the party’s application making a declaration that they are not member of any other political party. Furthermore, the applicant party has also to 18

produce certified extracts from the electoral rolls of the parliamentary or assembly constituencies in which the names of its members are enrolled as electors. An attested true copy of an electoral identity card issued to an elector under the authority of the Election Commission is also accepted as evidence of the person concerned being a registered elector. The president or the secretary of the applicant party is also required to furnish another affidavit to the effect that none of the persons who are claimed to be its members are members of any other political party.”

b. Processing Fee. “In addition, the Election Commission has now also fixed under its own inherent power a processing fee of Rs. 10,000 (rupees ten thousand only) in respect of every application for registration so as to cover party the administrative expenditure in scrutinising and processing the application and also to meet party the expenditure involved in the correspondence with the party both before and after the registration. This non-refundable processing fee has to be paid by means of a demand draft or a cheque. These measure have made a salutary effect and the flow of applications for registration has now come down to a trickle and only 33 parties got themselves registered with the Commission during the year 1999, though it was an election year when several new parties generally come up, and only 18 parties during the first half of the year 2000. c. Time Limit for Making Application. The law stipulates that any application for registration by a political party shall be made to the Election Commission within 30 days following the date of its formation [section29A (2) (b), 1951-Act]. As the law required that even those political parties which were in existence at the time of the enactment of section 29a, including the parties which were already registered with the Election Commission under the provisions of Para 3 of the 1968 Symbols Order, should also seek fresh registration, such parties were granted time to apply for registration within 60 days next following the date of enforcement of section 29A, i.e., from June 1989 to 14 August 1989. d. Particulars to be Furnished in the Application. 19

Under section 29A (4), every application for registration as apolitical party shall contain the following particulars: i) the name of the association or body; ii) the state in which its head office is situate; iii) the address to which letters and other communications meant for it should be sent; iv) the names of its president, secretary, treasurer and other office bearers; v) the numerical strength of its members; and if there are categories of its members, the numerical strength in each category; vi) whether it has any local units; if so, at what levels; vii) whether it is represented by any member or members in either House of Parliament or of any state legislature; if so, the number of such member or members.” 1. V.S.Rama Devi and S.K Mendiratta, How India Votes, 493, New Delhi,Butterworths, First edition.

e. Additional Particulars to be Furnished with the Application. Under the Registration of Political Parties Order 1992, every applicant party has to furnish the following additional particulars under section 29A (6) in its application for registration: i) the political principles on which it is based; ii) the policies, aim and objects it pursues or seeks to pursue; iii) its programmers, functions and activities for the purpose of carrying out its political principles, policies, aims and objects; iv) the names of its main organs (by whatever names called) their functions and the names of chairman (by whatever name called) and other members of such organs; v) its relationship with the electors and the popular support it enjoys, and tangible proof, if any, of such relationship and support. f. Name of the Party. In order to avoid any confusion in the minds of the general public and electors in particular on the ground of similarity between the names of different parties, the Election Commission insists that the name of the applicant party should not closely resemble with the name of an already registered political party.

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2. Registered Parties Obliged to Keep Election Commission Informed of Any Subsequent Changes“After a political party been registered by the Election Commission, it is its statutory duty to keep the Commission duly informed of any change in its name, head office, office-bearers, address or in any other material matters, like its constitution [section 29A(9), 1951-Act]. Where, however, it wants to change its name the Commission insists that it must obtain its prior approval in regard to the new name so that there is no objection thereto on the grounds discussed above.”1

1. V.S.Rama Devi and S.K Mendiratta, How India Votes, 503, New Delhi, Butterworths, First edition.

3. No Reservation of Symbol for Registered-Unrecognised Parties-

“There is a general misconception that a political party immediately on its registration gets an exclusive election symbol reserved for it. However, this not the case. Election Symbols are reserved only for those political parties which after registration fight a general election and become eligible for recognition as national or state parties, on the basis of their poll performance as prescribed in the Symbols Order. The registered-unrecognised political parties get only a preference in the matter of allotment of free, ie, unreserved, symbols to their candidates over the independent candidates. Such allotment is made to their candidates at the time of elections in respective constituencies and not in advance. Thus it is quite likely that the candidates of a registeredunrecognized party may get different symbolism different constituencies and not a common symbol”3 31

Ibid 504.

21

CASE LAW –

In Socialists party Vs. Election Commissioner of India, the

high Court held that no right of writ of mandamus could be issued unless there is refusal be Election Commission to consider the prayer of the petitioners. Registration is must under the Representation of People, Act. Various rules have been stated under the Act, which have been mentioned earlier. Some other rules are like – at least there should be strength of 100 registered electors as members to applying for registration. An affidavit is to be given that persons who claim to be the members must not be members of any other Political Parties Election Commission has now also fixed processing fee of Rs. 10,000 with application1.

1

Devi E. S. Rama & Manadirratta S. K., How India Votes-Election Law Practice procedure. Pg. No. – 493, New Delhi, Butteworths, 1st edition 2004

22

To avoid any confusion of similar kind of party name Election Commission insists that name of an already registered party should not closely resemble in the application but with the split of political parties similar kind of names is common today like Janata Party and Bharatiya Janata party, Communist Party of India and Communist Party of India (Marxist)2. Election Commission ensures that membership of political party is not confined to any caste or community, it forces to amend those parties. Election Commission refuse the application of Akhil Bharat Hindu Nahasabha later, the High Court by accepting the explanation by the party that by the explanation by the party that by the world Hindu the party means land of Bharatvatrsha, the party was registered3.

2 3

Ibid. Pg no-497 Ibid, Pg no.-502

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CHAPTER-5 RECOGNITION OF POLITICAL PARTIES The Act of 1951 states for registrations of the Political Parties u/s 29A, it also recognised political parties u/s 33, 38 and 52. Section 52 states that recongised political party means political party recognised by Election Commission under Election Symbol (Reservation and Allotment) Order, 1968.The recognition of political party carries various priveleges, like they get supply of copies of electoral rolls, they get substantial free telecast during general election. As recognised political parties are of two categories; ii)

recognised political parties,

ii)

unrecognised political parties.

Further recognised political parties are divided into two categories, namely, i)

national parties

ii)

state parties.

National Parties and State Parties : On the basis of performance in election, political parties are recongised as state parties or national parties. A party recognised in four or more states on fulfillment of certain criteria are given status of national party. A party which secure recognition in less than four states, ie, either in a single state or in two or even three states, is called a state party. Criteria for Recognition : The first and foremost requirement for recognition is the party must be registered with the Election Commission. Under para 6(2), of the Symbols Order a party is recognised in any state on the fulfillment of any of the following conditions: i)

If the candidates set up by the party have secured at least six per cent of the total valid votes polled in the state, either at the last general election to the House of People held from that state or at the last general election to the state legislative assembly; or

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ii)

If it has, at the last general election to the House of the People, returned at least one member to that House for every 25 members of that House or any fraction of that number, elected from that state; or

iii)

If it has at the last general election to the state legislative assembly, returned at least one member to that assembly for every 30 members of that assembly or any fraction of that number.

DE-RECOGNITION OF POLITICAL PARTIES

A political party if boycott a election than its recognition can be cancelled when the ground on which the political party boycotted the election is not justice either before Election Commission or before High Court2. There was no express provision in the Act of 1951 under section 29A for deregistration of registered parties. The order of Election Commission in a case of Bharatiya Janata Party was challenged before Supreme Court but it was to latter dismissed. The Election Commission cancelled the registration on the ground that the party ceased to function in accordance with the provision of section 29-A (5). So the recognition cannot took place except on the ground mentioned above.

2

P.C.Jain & K.Jain Chawlas. Pg. Elections Law & Practice, Pg no-1.144, Babri Brothers Delhi, 8th Edition, 2004

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CHAPTER-6 SETTING UP OF CANDIDATES BY POLITICAL PARTIES

Both the patty and the candidate must fulfil certain conditions if he is to be treated as having being set up or sponsored by a political party. The candidate has to made a declaration in the nomination paper that he has been set up by the political party. The party. The party must intimate its name to the officer. A party is permitted to change its candidate by notification1. It has been observed sometimes a same party give authorization to more than one candidate in the same constituency. The Election Commission has an earlier rule to treat all such candidates to be independent. In Rakesh Kumar Vs. Sunil Kumar2, Supreme Court took a view that in such cases opportunity is to be given to the candidate to produce confirmation of the party. After this 1 2

Ibid. Pg no-1.517 (1999) 25CC 489

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decision Election Commission made a rule that the nomination which was first delivered is to be treated as the approved candidate, unless there is a cancellation by the party authority. The order was made in paragraph 13A in the Election Symbols (Reservation and allotment) Amendment order, 19993.

3

Devi E.S.Rama & Mandiratta S.K. How India Votes Election Law Procedure Procedure, Pg no. 520, Butterworths, New Delhi, 1st edition 2004.

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CHAPTER-7 ELECTION SYMBOLS

Millions of voters in India are illiterate. To enable them to exercise their right to franchise through a secret ballot, symbols are considered

absolutely

necessary.

Symbols

help

to

identify

the

contrasting candidates. Other system available to differential the candidates is painting the ballot box in different colour or making marks on the boxes. This system was prevalent in different parts of India before independence. But it appeared that the system is not satisfactory or workable if number of candidate’s increases. And it is true as in India there are innumerable

candidates

in

various

parts,

in

modakuruchi

and

constituent assembly in Tamil Nadu there were 1,033 candidates during State Legislatinve Election1. In Kanhiya Lal Omar Vs. R. K. Trivedi and Others, in this case symbol system was challenged Supreme Court held that “India is a country which consists of millions of Voters”. For assigning appropriate symbol, the Election Commission had issued the election symbols (Reservation and Allotment) Order, 1968 in exercise of the power conferred by rule 5 of the conduct of election rules, 1961 read with Article 324 of the constitution.

1

Ibid Pg No. 481

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EVOLUTION OF SYMBOL SYSTEM “The founding fathers of the Constitution of India considered the parliamentary form of government as best suited to the needs and aspirations fo millions in the country on the achievement of independence. To meet those aspirations, they also felt that the people of India should themselves choose there representative to the House of the People and the legislative assemblies of states by direct elections from the territorial constituencies. They further accepted universal adult suffrage as the fundamental principal for such direct elections from parliamentery and assembly constituencies. But thuse vast multitudes of electors mainly consisted of those who could not even read the names of candidates in the electoral contests vying for their votes, the level of literacy being in the neighbourhood of only 16.6 % at that time . Thus a system had to be evolved whereby this overwhelming majority of illiterate voters could exercise their franchise in favour of the candidates of their choice in complete secrecy. The Election Commission considered several option available in this behalf. The easiest method which appealed to the Commission then was to assign a separate ballot box for each candidate and to place a different mark on each such box so that the distinctive features of such marks might help a voter in distinguishing between the boxes of the different candidates and in casting his vote correctly by dropping his ballot paper inside the ballot box assigned to the candidate of his choice. Here also, the choice before the Commission lay between having each ballot box painted in a different colour or marked with a distinguishing symbol pasted on it. Both these systems had been tried more or less successfully in the past, in different parts of India at the elections held to various legislative and local bodies before independence. But it was apprehended that painting of ballot boxes with different colours would not be a satisfactory or workable system if the number of candidates in a constituency was very large. The Commission, therefore, decide in favour of the ‘symbol system’-the symbols depicting commonly know objects easily recognisable even by the illiterate voters.”1 1. V.S.Rama Devi and S.K Mendiratta, How India Votes, 480, New Delhi,Butterworths, First edition.

29

OBJECTS OF SYMBOL Election Symbols are commonly known objects, animate or inanimate, so that it can be easily identified by the general mass of elections despite their illiteracy and ignorance. During first general election in 1951-52, Election Commission specified “railway engine” as one of the elections symbols in certain states. But the Election Commission in 1957 cancelled the symbol on the ground that in some remote undeveloped area many people had never seen a “railway engine”. In 1996, in Tamil Nadu in a constituency in Modakurichi there were 1,033 contesting candidate. With great difficulty Election Commission could identify 350 commonly known objects, sotto meet the requirement the Election Commission made an innovation by specifying the multiple of those objects, for example one bat, two bats, three bats, one comb, two combs, three combs and so on.

CLASSIFICATION OF SYMBOLS The Symbols order classifies the symbols into two categories:1. Reserved symbols, 2. Free symbols. A symbol allotted to a recognized national or state party is a reserved symbol. A symbol not so reserved for any recognized party is a free symbol. (Para 5, symbols order).

UNIFORM LIST OF SYMBOLS Election Commission has decided to specify a uniform list of free symbols for all states and Union Territories. In the recent general election to the House of People in 1999, the commission has specified a list of hundred such free symbols, which could be chosen by an independent candidate or a candidate of an un-recognized party in 30

parliamentary or Assembly constitution in the country. Previously, this list use to vary from state to state, number of free symbols specified all vary which sometimes becomes necessary to add more free symbols in certain states when number of candidate exceeded number of free symbols. 1

1. V.S.Rama Devi and S.K Mendiratta, How India Votes, 524, New Delhi,Butterworths, First edition.

SYMBOL, NOT PROPERTY OF ANY PARTY A symbol reserved for a recognized party is not its property. In Sadiq Ali Vs. Election Commission and ors, AIR 1972 SC 187, it has been held that symbols cannot be divided among the rival or splinter groups of a party in the event of a split in it.

NO RESERVATION OF SYMBOL FOR UNRECOGNISED PARTIES No symbols are reserved for unrecognized registered parties. There candidates have to choose symbols from out of the list of free symbols. In All India Maglis-e-Ittebadul Musilmeen and ors Vs. Election Commission and Another, Writ Appeal No. 1207 of 1994, the Andhra Pradesh High Court held that an unrecognized party has no right to insists on the allotment of a particular symbol either to the party or to the candidates sponsored by it. The law makes an appeal that use of religious symbols, national symbols such as national Flag or National Emblem, or use of such symbols is a corrupt practice. Supreme Court held that “star” reserved for Swatantra Party and “cock” reserved for Jharkhand Party in Bihar are not religious symbols. In 1971, the Election Commission allotted the symbol of ‘calf and cow’, to one of the splinder groups of Indian National Congress, a recognised national party. It was argued that ‘calf and cow’ is a religious symbol. But the High Courts took the view that ‘calf and cow’ was not a religious symbol. In Indira Nehru Gandhi Vs. Raj Narain, AIR 1975 SC 2299, in this case Supreme Court held, removing all doubts that ‘calf and cows’ was not a religious symbol. The Election Law (Amendment) Act, 1975 made a rule under section 123(3) that no election symbol officially allotted to a candidate shall be deemed to be a religious or national symbol. In 1991, Election Commission removed the symbols scales, as

31

scales is associated with justice and judiciary which should not be involved in electoral propaganda and electoral process.1

CHAPTER-8 CONSTITUTIONAL VALIDITY OF ELECTION SYMBOLS In Kanhiya Lal Omar Vs. R.K. Trivedi, AIR 1986 SC III, the constitutional validity of the Election Symbols order was challenged before Supreme Court under Article 324 of the Indian Constitution. The ground of attack was that system is not to be so construed as to confer legislative power on the commission to issue such an order. The defence was in the light of such rules the commission has been clothed with plenary powers to issue the order in the matter of allotment of symbols. Also under Article 327 of the constitution give power to make laws with respect of elections. The Commission is empower to issue election symbols order in the light of power vested by constitutions.

1. V.S.Rama Devi and S.K Mendiratta, How India Votes, 522, New Delhi,Butterworths, First edition

CHAPTER-9 DECLARATION AND CHOICE OF SYMBOLS VALIDITY OF RESTRICTION PARTIES A list of symbols is published under sub-rule(1) of Rule 5 by the Election Commission. The candidate is to choose one particular symbol out of the list as his first preference and two other symbols. Election Commission many impose restrictions to the choice of symbols. When more nomination papers are delivered than the first one would be taken under consideration. The power imposing restriction by the Election Commission is an executive power and not a legislative power. In Bishnu Kumar Singh vs. Ram Bilas Singh, it has

32

been held that publication of restriction in the Gazette is not necessary as the rule does not expressly provide for such publication.

NATURE OF SYMBOLS Election Symbols are commonly known objects, animate or inanimate, so that it can be easily identified by the general mass of elections despite their illiteracy and ignorance. During first general election in 1951-52, Election Commission specified “railway engine” as one of the election symbols in certain states. But the Election Commission in 1957 cancelled the symbol on the ground that in some remote undeveloped area many people had never seen a “railway engine”. In 1996, in Tamil nadu in a constituency in Modakurichji there were 1,033 contesting candidate. With great difficulty Election Commission could identify 350 commonly known objects, so to meet the requirement the Election Commission made an innovation by specifying the multiple of those objects, for example one bat, two bats, three bats and so on.

The law makes an appeal that use of religious symbols, national symbols such as national flat or national emblem is a corrupt practice.

Sometimes

controversy

arises

on

this

sensitive

issue

Supreme Court held that “star” reserved for Swatantra Party and “cock” reserved for Jharkhand party in Bihar are not religious symbols1.

1

Devi E.S.Rama & S.K.Mandiratta. How India Vote Election Law Practice Procedure, Pg No. 524, New Delhi, Butterworths, 1st edition 2004.

33

The law makes an appeal that use of religious symbols, national symbols such as national flat or national emblem is a corrupt practice. Sometimes controversy arises on this sensitive issue Supreme Court held that “star” reserved for Swarantra party and “cock” reserved for Jharkhand party in Bihar are not religious symbols1. A great controversy arose with the allotment of symbol ‘calf and cow’, to one of the splinder groups of Indian national Congress, a recognised national party. It was argued that ‘calf and cow’ is a religious symbol. Several High Courts took the view that ‘calf and cow’ was not a religious symbol. In India Nehru Gandhi Vs. Raj narain, AIR 1975 SC 2299, in this case Supreme Court held, removing all doubts that ‘calf and cows’ was not a religious symbol. The Election Law (Amendment) Act, 1975 made a rule under section 123(3) that no election symbol officially allotted to a candidate shall be deemed to be a religious or national symbol. In 1991, Election Commission removed that symbol scales, as scales are associated with justice and judiciary.

1

34

CHAPTER-10 SYMBOLS DEPICTING BIRDS AND ANIMALS

Prior to 1991, THE election Commission had a number of birds and animals as election symbols, but is was argued that birds and animals are being subjected to cruelty, the Election Commission in 1991 decided that no bird or animal is to be specified as an election symbol.

But the Election Commission did not withdraw the symbols of birds and animals, which have been reserved for recognized national and state parties. The Commission requested the concerned parties to surrender such election symbols voluntarily. Now only very few parties use such symbols like All India Forward Block (Lion), Mizo National Front (Tiger), BSP, Asam Gana Parisad, Sikkim Sangram Parishad uses the symbol of elephant. The All India Forward Block was allotted the symbol ‘plough’ in 1994, but later on the party requested the Commission to restore the original symbol ‘lion’. The Commission there upon re-allotted the symbol ‘lion’ in 19961.

1

Ibid Pg. No. 526

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CHAPTER-11 ALLOTMENT OF ELECTIONS SYMBOLS

1. Allotment of Symbols to Candidates of National and State PartiesA candidate set up by a national party at any election in any constituency in India shall choose, and shall be allotted, the symbol reserved for that party, and no other symbol [Para 8(1), Symbols Order]. Similarly a candidate set up by a state party at an election in any constituency in a state in which that party is so recognised shall choose, and shall be allotted, the symbol reserved for that party in that state, and no other symbol [Para 8(2)]. Even if a recognised national or state party has not set up its candidates in any constituencies, its reserved symbol can neither be chosen by nor can be allotted to any other candidate in such constituency. Directions issued by the Election Commission for the allotment of symbol to political parties, old and new, are not discriminatory and they do not violate Article 14 of the constitution. The violation of sub-rule (5) of Rule 10 will not invalidate the election. The election petitioner has also to prove that the result of the election, insofar as it concerns the returned candidate, was materially affected. Lata Devi vs. Haru Rajwar, AIR 1990 SC 19. In this case the election symbol of the petitioner was changed on 15.2.1985. Polls were held on 5.3.1985 while the last date of withdrawal was 9.2.1985. It was held that there was no violation of section 30(d) of 1951 Act which prescribed at least 20 days, time for election campaign. (Petitioner in this case did not have 20 days time after the change of symbol). 2. Symbols Use by the State Parties of Their Reserved Symbols in Other States in which They Are Not Recognized-

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If a state party is recognized in one state desires to use it’s reserved symbol for it’s candidates in other states in which it is not recognized, it can do so, but on the fulfillment of the following conditions laid down in para 10 of the Symbols Order: i) The party must make an application for the purpose to the Election Commission not later than the third day after the publication of the notification calling the election. Any application received beyond the prescribed time-limit shall not be entertained by the Election Commission. ii) In such application, the party must specify the name of each constituency in which it proposes to set up its candidate for whom the above concession is being sought. But it is not necessary to specify the name of each candidate in that application. iii) Both the party and the candidate concerned must comply with each of the requirements of Para 13 of Symbols Order relating to the setting up of candidates by political parties. 3. Allotment of Symbols to Candidates of Unrecognized registered PartiesThe allotment of symbols to candidates setup by unrecognised registered parties is made from out of the list of symbols in accordance with the provision of Para 12 of the Symbols Order. Each candidate has to choose three symbols in order of preference. If a candidate filed more than one nomination paper then first one will be taken in account. For allotting symbol to a candidate of an unrecognized registered party, preference is give over all independent candidates, if any of those independent candidates has opted for same symbol as first choice than symbol will be allotted to him and not to any independent candidate. But if two or more candidates set up by different unrecognized registered parties have opted for the same symbol as first choice than returning officer will decide by lot to which of these candidates of the aforesaid parties should be allotted that symbol. This rule of allotment of symbols has two exceptions, If only one of them is at present an unrecognized party but it was recognized party in last six years of the date of notification of the election, the symbol will be allotted to such candidate to the exclusion of all other candidates. ii) Subject to first exception if any of these candidates is or was, immediately before the present election a sitting member of any House, he shall be allotted that symbol. In such case the candidate will get the symbol of his choice without draw of lot. i)

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4. Allotment of Symbols to Independent CandidatesThe allotment of symbols to independent candidates is also governed by the provision of Symbols order para 12. They are allotted to candidates of recognized parties, unrecognized registered parties; in the same manner. If there is only one independent candidate then his first choice will be granted. When two or more such candidates opted for same symbols as their first choice than returning officer will allot the symbol by draw of lots. If one of the candidates immediately before the election was a sitting member of any House, he will be given preference. 5. Revision of Allotment of SymbolsThe allotment of symbols made by a returning officer to the candidates shall be final. However, if any wrong occurred by the returning officer, the commission has the authority to revise such allotment. In exercise of this power under rule 10(5) of the symbols order, the Election Commission can correct the mistake. In Premlal Shastri Vs. Ramesh Chandra Yadav, AIR 1987 All 221, the court held that the commission cannot direct the returning officer to accept any authorization from a party beyond the prescribed time limit.4

CHAPTER-12 LIMITATION ON ALLOTMENT OF ELECTION SYMBOL 1. Restriction on Reservation of Same Symbol for More Than One state PartyThe symbol reserved for a national party can be exclusively used by it and its candidates in all states throughout India. But a state party has a symbol reserved for it only in the state or states in which it is so recognised. Previously, the Election Commission in some cases reserved same symbol for different state parties in different states. A controversy arose with the symbol ‘elephant’ which was symbol of Bahujan Samaj Party in State of Madhya Pradesh, Punjab and Uttar Pradesh; for Asam Gana Parishad in Assam, for Pattali Makkal Katchi in Tamil Nadu, for SSP in Sikkim. Later Bahujan Samaj Party became national party, they desires that the symbol elephant to be reserved for it in all states, but the request was not granted. BSP make an 4

V.S.Rama Devi and S.K Mendiratta, How India Votes, 530, New Delhi, Butterworths, First edition.

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agreement that they will not contest election in Assam, Tamil Nadu and Sikkim on the symbol elephant. In order to avoid any such piquant situation arising again, the Election Commission has now decided that a symbol reserved for a state party in any state will not hereafter be reserved for any other State party in any other state. However, this decision does not apply to the symbols which already stand reserved for more than one party as aforesaid. 2. Restriction on Specification of Reserved Symbols as Free Symbols in Other statesElection Commission has also decided that a symbol reserved for any state party in any part of the country will not be specified as a free symbol any where else which was earlier practiced. This has been done with a view to avoid any confusion in the minds of public which could otherwise arise whether a candidate was an independent candidate or a candidate set up by the party for whom that symbol stood reserved in some adjoining state.. This rule also implies that, except for a few state parties which have a common symbol as aforesaid, all other state parties have an exclusive symbol reserved for them which they can use in all other states also, subject to certain conditions which have been discussed below separately.

CHAPTER-13 PROMULGATION OPF ELECTION SYMBOLS (RESERVATION AND ALLOTMENT) ORDER 1968

After the fourth general election in 1967, the Election Commission considered to codify the provision relating to recognition of political parties. So that it would be easy to get recognition. Accordingly, the Commission on 31st August 1968 promulgamated an order called the Election Symbols (Reservation and Allotment) Order, 1968. The order made written provisions for registration of parties, reservations, choice and allotment of symbols at elections. Para 18 of the order gives the Election Commission all residuary powers to 39

remove any difficulty arising in the implementation of the order or to deal with a situation for which no provisions are there1.

EXTENT OF APPLICATION OF SYMBOLS ORDER This order was made applicable only in relation to elections to the House of People and State Legislative Assemblies (other than Legislative Assembly of Jammu and Kashmir). Under Article 324 of the Indian Constitution, which says about superintendence, direction, and control of elections in Parliament and State Legislature and power under rule 5 and 10 of the conduct of Election Rule, 1961 is to be made effective. Under rule 51, Election Commission is to notify in Gazette of Central and State about the specified symbol that can be chosen by candidates. Rule 10(4) states that during election returning officer is to consider the choice of symbol2.

1

Devi. E.S.Ram & Mandiratama. S.K.How India Votes Election Law Practice Procedure, Pg. No. 486, New Delhi, Butterworths, 1st edition 2004 2 Ibid. Pg No. 487

40

SYMBOL SYSTEM APPLICABLE ONLY IN PARLIAMENTARY AND ASSEMBLY CONSTITUTNCIES

One thing needs to be specially noted that the symbol system is in vague only in elections to the house of the people and state legislative assemblies and not in elections to the council of states and state legislative councils, the reason being obvious that it is only in the elections to the House of the People and state legislative assemblies that the common people vote and many of them by reason of illiteracy need assistance in the form of symbols to identify on the ballot papers the candidates of their choice. The ballot papers for elections to the upper houses do not contain any election symbols. But after the addition of the Tenth Schedule to the constitution in 1985 providing for disqualification on the ground of defection, the party affiliation of the candidate is shown in the ballot papers for elections to the upper house also, so that after his election his political affiliation can be identified for the purposes of that schedule.

1

Ibid. Pg. No. 522

41

1

DISPUTES REGARDING SYMBOL

Political party may come into existence and they may go out of existence. Parties may unite or parties may split. Frequent splits in political parties occasional amalgamations have given rise to good amount of litigation before the Election Commission and the Courts. Paragraphs 15 and 16 pf the Symbol Order, 1968 deal with the power of the Commission in relation to splinter groups of rival Sections of a recognized political party and in cases of amalgamation of two or more political parties. Under these paragraphs the Election Commission has power to decide which one of such rival Sections or groups is the recognized political party. Such a decision will be taken after hearing such representations of separated groups or sections. Paragraph 16 gives power to the Commission to decide whether such newly formed party should be a National Party or a State Party and which symbol shall be allotted to it.

In C.Parushram Naidu vs. N. Vantakarami Naidu, Andhra Pradesh High Court was faced with the question whether the Election Commission has power to order change of symbol allotted to a candidate. It was contended before the Court that the change of symbol was without jurisdiction because sub-rule (5) of rule 10 of the Conduct of election Rules, 1961 authorized the Election Commission to revise allotment of symbol only. It has no jurisdiction to change it. The High Court held that the jurisdiction of the Commission is preserved to issue orders for change of symbol subsequent to the order of allotment and this jurisdiction is conferred on the Commission by virtue of the powers vested in it under Article 324 read with Rule 10(4) of the Conduct of Election Rules and Para 18 of the Election Symbol (Reservation and Allotment) Order, 1968.5

5

Anand Ballabh Kafaltiya, Democracy & Election Laws, No , Deep & Deep Publications Pvt. Ltd.

42

WITHDRAWAL OF ELECTION SYMBOL REMEDY The term ‘election’ covers the entire process from the issue of the notification under sec. 14 (Notification for general election to the House of the people) to the declaration of result under sec. 66 (Declaration of result) of the Act. Withdrawal of a symbol allotted to a candidate and the allotment of a fresh symbol also comes within the term election. Therefore, the bar provided under Act. 329(b) (Bar to interference by courts in electoral mattes, except a petition presented to such authority as prescribed) of the constitution and sec 80 (Elections cannot be called in question except a petition is presented in accordance with the provisions of the Act) of the Representation of Peoples Act would be operative only remedy available is to file election petition held in Kerala High Court .

CHAPTER-14 RELATION BETWEEN ELECTION SYMBOLS AND POLITICAL PARTIES

The following observation of the Supreme Court in All Party Hill Leaders Conference v Captain W A Sangma and ors shows the permanent importance of symbols vis-a-vis political parties:

For the purpose of holding elections, allotment of symbol will find a prime place in a country where illiteracy is still very high. It has been found for experience that symbol as a device for casting votes in favour of the candidate of one’s choice has proved an invaluable aid. Apart from this, just as people develop a sense of honors, glory and political pride for a flag of one’s country, similarly 43

great fervor and emotions are generated for a symbol representing a political party. This is particularly so in a parliamentary democracy which is conduct on party lines. People after a time identify themselves with the symbol and the flag. These are great unifying insignia which cannot all of a sudden be effaced.

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i 2

ii

Kappor. A.C. Principles of Political Science, Pg. No. 644, S. Chand & Company, New Delhi, 2001 Ibid, Pg No. 644

CASE LAWS

1.Janata Dal (Samajwadi) Vs. Election Commission of India Janata Dal (Samajwadi) one of the recognized national parties failed to fulfill the conditions for recognition as a national party on the basis of poll performance at the general election in 1991. The party questioned that once a party has been recognized by Election Commission it cannot be derecognized under the symbol order that Election Commission could not seized a party to be a national party after it has been recognized. But there is a rule that a national party or state party shall continue to be as such as long as they fulfill the conditions prescribed. By the application of the General Clauses Act, section 21 Supreme Court state that the party ceased to fulfill the condition prescribed in paragraph 6(2) of the Order. So, Supreme Court held that the decision of the Election Commission was positive.

2.Prem Pal Shastri Vs. Ramesh Chandra Yadav The provision of Para 13 of the Symbol order lays that it is mandatory to treat a candidate as a party candidate and failure to fulfill any of the condition as mentioned can deprive the party. It has been held that Para 13 of the Symbol order is as much binding on the Election Commission as on parties and candidates and the commission could not permit changes or give directions contrary to the provisions of that Para.

3 .Dr. Jagonnathrao Ganesh Hegde Vs. Chief Electoral Officer, Maharashtra and others. In the case a farm was not signed by the authorized officer, bearer of the Indian National Congress; though the consolidated list of the party's candidate submitted to the Chief Electoral Officer of the State contend his name. The returning officer overlooked the defect in the form, despite objection of the rival candidates. Election Commission directed to treat him as an independent candidate and allot his a free symbol. Bombay High Court held that Election Commission violated the principle of Audi Alteram Partem and the decision is reviewable. High Court observed that m ischeap must nipped forthwith otherwise irredeemable injustice would be done to the petitioner.

4. VRV Sree Rama Rao Vs. Telugu Desam Here objection was raised regarding the name of the party Telugu Desam and it's registration. It was claimed that the word Telugu appeals to major linguistic group of the Andhra Pradesh and the work Desam tendered to promote secessionist tendencies. High Court rejected the objection stating that linguistic character of a state could not be deemed to be acting contrary to the intendment of the Constitution or any law, constitution itself encouraged linguistic basis in states. High Court further observed Telugu to be recognized official object. So it cannot be said that the name would promote fissiparous tendencies. No anti-national activity is intended, so High Court

orders to go with the name.

CHAPTER-17 CONCLUSION From the time of the first general election, Election Commission decided to allot different symbols to the political parties so that illiterate voters not face any difficulty to identity the parties of their choice. In Sadiq Ali’s case, the Supreme Court observed that these symbols originated for a limited purpose but symbol of each political party with passage of time acquired a great value. Symbol system is now deeply ingratiated into the Indian political system which is now inseparable. Regarding the recognition of political party the Election Symbol plays a vital role. The symbols demarcates among national parties, state parties, recognized parties, unrecognized parties. Recognition of political parties of political parties is not possible without the symbols. In August, 1968 Election Symbols (Reservation and Allotment) Order, 1968 was passed, since than registration of political parties started. Under this statutory provisions political parties require to register under the Symbol order to get themselves register afresh. Article 324 of the Indian Constitution and Rule 5 of the conduct of Elections Rules 1961 conferred the power on the Election Commission to adjudicate disputes regarding recognition of political parties and allotment of Election symbols. Any political party or any person intending to contest an election can question on the allotment of election symbol or recognition of a party as political party. Any change in the allotment of symbols by returning officers with the Election Commission directive falls within the 1951 Act (The peoples of Representative Act). Election symbol is so much

interrelated with the political parties that during the splits and merges of political parties, symbols create serious problems there arose confusion with the symbol and argument with it. The importance of symbols with the political parties needs not exaggeration. Symbols are in the very soul of the political parties which helps the franchises to select their leaders. Symbols play a key role to identify the parties or candidates. In fact voters are asked to vote for the symbol or that symbol.