“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

J U D G M E N T  

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-à-

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

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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

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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

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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

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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

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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

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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. Sirpurkar

Nature of Judgment:  Reportable

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