REPORTABLE

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

DESIYA MURPOKKU DRAVIDA  KAZHAGAM & ANR.     … PETITIONERS  

             Vs.

THE ELECTION COMMISSION OF INDIA …    RESPONDENT

                     WITH  

W.P.(C)NOS.132, 315, 422, 426, 444, 447, 454 & 463  OF 2009, S.L.P.(C)NOS.23494 & 7379-80 OF 2009 AND  W.P.(C)NOS.111 & 117 OF 2011.

O R D E R

ALTAMAS KABIR, J.

1. The  common  challenge  in  these  eleven  Writ  

Petitions and three Special Leave Petitions is to  

the provisions of Paragraph 6A(i) & (ii), Paragraph  

6B(A)(ii), Paragraph 9(a) and (b), Paragraphs 10A,  

11, 12(1)(c) and Paragraph 12(3)(a) of the Election  

Symbols (Reservation and Allotment) Order, 1968, as  

amended from time to time.  However, on account of  

paucity  of  time  in  the  light  of  the  election  

process being set into motion in the State of Tamil  

Nadu,  we  decided  to  focus  our  attention  to  the  

possibility of making a temporary arrangement till  

the Writ Petitions and the Special Leave Petitions  

could be decided finally.   

2. Article 324 of the Constitution of India vests  

the superintendence, direction and control of the  

preparation  of  the  electoral  rolls  for  and  the  

conduct of elections in the Election Commission.  

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Since we shall be referring to the said provision  

hereinafter, the same is extracted hereinbelow :

“324. Superintendence,  direction  and  control of elections to be vested in an  Election Commission  (1) The  superintendence,  direction  and  control  of  the  preparation  of  the  electoral rolls for, and the conduct of,  all  elections  to  Parliament  and  to  the  Legislature  of  every  State  and  of  elections to the offices of President and  Vice  President  held  under  this  Constitution  shall  be  vested  in  a  Commission”

3. Section 29A of the Representation of the People  

Act,  1951,  which  comes  under  Part  IVA  thereof,  

provides for the registration of associations and  

bodies  as  political  parties  with  the  Election  

Commission.   Since  the  same  will  also  have  an  

impact  on  what  is  indicated  hereinbelow,  the  

provisions of Section 29A(1) are extracted below :

“29A.  Registration  with  the  Election  Commission of associations and bodies as  political parties. — (1) Any association  or  body  of  individual  citizens  of  India  

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calling  itself  a  political  party  and  intending  to  avail  itself  of  the  provisions  of  this  Part  shall  make  an  application to the Election Commission for  its registration as a political party for  the purposes of this Act.”

4. Since the facts in all these matters are more  

or less similar, we are treating W.P.(C)No.532 of  

2008, filed by Desiya Murpokku Dravida Kazhagam, as  

the  lead  case  in  this  group  of  matters.  

Incidentally,  it  may  be  indicated  that  SLP(C)  

Nos.7379-80 of 2009 have been filed by the Election  

Commission of India for quashing of the order of  

the  High  Court  of  Andhra  Pradesh  directing  the  

Election  Commission  to  consider  allotment  of  a  

common  symbol  to  the  Lok  Satta  Party  and  other  

similarly  situated  unrecognized  registered  

political  parties.   Similarly,  W.P.(C)No.463  of  

2009 and SLP(C)No.23494 of 2009 have been filed by  

certain  registered  unrecognized  political  parties  

for  a  direction  upon  the  Election  Commission  of  

India  to  allot  common  election  symbols  to  their  

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candidates in the ensuing elections to the State  

Legislative  Assembly.   One  of  the  States  in  

question is the State of Tamil Nadu, in respect  

whereof Writ Petition (C) No.532 of 2008 has been  

filed  by  Desiya  Murpokku  Dravida  Kazhagam,  

hereinafter referred to as “DMDK”, & Anr.  We have  

been  informed  that  the  date  for  notifying  the  

election programme in the State of Tamil Nadu has  

been fixed as 16th April, 2011 and the filing of  

nomination papers for the election is said to be  

scheduled between 19th and 26th April, 2011.  All  

other subsequent steps are to be taken thereafter.

5. Appearing in support of the Writ Petition, Mr.  

K.K. Venugopal, learned Senior Advocate, submitted  

that  the  Petitioner  No.1  is  a  registered  

unrecognized  political  party  and  the  Petitioner  

No.2 is a registered voter in the State of Tamil  

Nadu.  It was submitted that the DMDK contested 232  

out  of  234  constituencies  in  the  2006  Assembly  

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Elections in the State of Tamil Nadu, which were  

the first elections which the party had contested  

within 8 months of its formation, and, although, it  

was  an  unrecognized  political  party,  all  its  

candidates were allotted the “Nagara” symbol in 224  

out  of  232  constituencies.  In  respect  of  the  

remaining  8  constituencies,  the  party  candidates  

were allotted the “Bell” symbol in 6 constituencies  

and  the  “Ring”  symbol  in  the  remaining  2  

constituencies.  Mr. Venugopal submitted that the  

party had secured approximately 8.33% of the total  

valid votes polled in the State of Tamil Nadu, and  

it ultimately emerged as the third largest party in  

the State in terms of votes secured, without any  

electoral  alliance  with  any  other  party  or  

formation.  Mr. Venugopal also submitted that the  

President  of  the  Petitioner  Party,  Shri  Vijaya  

Kant, contested the election from the Virudhachalam  

Assembly under the “Nagara” symbol and won the seat  

by  a  margin  of  13,797  votes.   Learned  counsel  

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submitted that despite the large number of votes  

that  had  been  cast  in  its  favour  during  the  

Assembly Elections, the DMDK Party was able to win  

only one seat in the Assembly Elections and that is  

the  Virudhachalam  Assembly  Constituency  mentioned  

hereinabove.

6. Mr. Venugopal also submitted that it was the  

grievance of the Petitioner Party that inspite of  

its reasonable performance in the State Assembly  

elections, its prayer for recognition as a State  

Party had been denied by the Election Commission of  

India  in  view  of  Paragraph  6B  of  the  Election  

Symbols  (Reservation  and  Allotment)  Order,  1968,  

hereinafter referred to as the “Election Symbols  

Order, 1968”.   

7. In order to appreciate the submissions advanced  

by Mr. Venugopal, it is necessary to refer to some  

of the relevant provisions of the Election Symbols  

Order,  1968.   The  said  Order  was  made  by  the  

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Election  Commission  of  India  in  exercise  of  the  

powers  conferred  on  it  by  Article  324  of  the  

Constitution  read  with  Section  29A  of  the  

Representation of the People Act, 1951, hereinafter  

referred to as the “1951 Act”, and Rules 5 and 10  

of the Conduct of Election Rules, 1961, hereinafter  

referred to as the “1961 Rules”.  The said Order  

was  promulgated  in  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.   Paragraph  4  of  the  Order  

provides for allotment of symbols and stipulates  

that in every contested election a symbol has to be  

allotted to a contesting candidate in accordance  

with  the  provisions  of  the  Order  and  different  

symbols are to be allotted to different contesting  

candidates at an election in the same constituency.

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8. Paragraph 5 of the aforesaid Order provides for  

the classification of symbols and divides symbols  

into two categories, namely, “reserved” and “free”.  

It indicates that 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, whereas a free symbol is a  

symbol  other  than  a  reserved  symbol.   At  this  

point, it may also be indicated that the Election  

Symbols Order, 1968, underwent certain changes in  

2000 and 2005.  Prior to its amendment, Paragraph  

6, as it stood when the Order was promulgated in  

1968,  inter  alia,  provides  that  for  the  

classification of symbols, political parties were  

to be categorized either as “recognized” political  

parties  or  “unrecognized”  political  parties  and  

that  a  political  party  would  be  listed  as  a  

recognized political party in a State, if and only  if either of the conditions specified in Clause (A)  or the conditions in Clause (B) were fulfilled by  

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that party and not otherwise.  Clause (A) makes it  

imperative that such a political party would have  

had  to  be  engaged  in  political  activity  for  a  

continuous period of five years; and had at the  

General Election in that State to the House of the  

People or to the Legislative Assembly, for the time  

being  in  existence  and  functioning,  returned  at  

least one member to the House of the People for  

every 25 members of that House or any fraction of  

that number of that State; or at least one member  

to the Legislative Assembly of that State for every  

30 members of that Assembly or any fraction of that  

number.  Paragraph 6 was subsequently expanded into  

Paragraphs 6, 6A, 6B and 6C by Notification No.56  

dated 1st December, 2000.  Paragraph 6A was again  

revised  on  14th May,  2005,  and  set  down  certain  

conditions for recognition of a political party as  

a State Party.  Paragraph 6A, as amended in 2005,  

provides as follows :

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“6A. Conditions for recognition as a State  Party –  A  political  party  shall  be  eligible for recognition as a State party  in a State,  if, and only if, any of the  following conditions is fulfilled:  

(i) At the last general election to the  Legislative  Assembly  of  the  State,  the  candidates  set  up  by  the  party  have  secured not less than six percent of the  total  valid  votes  polled  in  the  State;  and, in addition, the party has returned  at  least  two  members  to  the  Legislative  Assembly  of  that  State  at  such  general  election; or

(ii) At the last general election to the  House of the People from that State, the  candidates  set  up  by  the  party  have  secured not less than six percent of the  total  valid  votes  polled  in  the  State;  and, in addition, the party has returned  at least one member to the House of the  People  from  that  State  at  such  general  election; or

(iii) At the last general election to the  Legislative  Assembly  of  the  State,  the  party has won at least three percent of  the  total  number  of  seats  in  the  Legislative  Assembly,  (any  fraction  exceeding half being counted as one), or  at  least  three  seats  in  the  Assembly,  whichever is more; or  

(iv) At the last general election to the  House of the People from the State, the  party has returned at least one member to  the  House  of  the  People  for  every  25  

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members or any fraction thereof allotted  to that State.”

As has been indicated hereinabove, the major  

challenge in these Special Leave Petitions and Writ  

Petitions is to the validity of this provision.   

19. Paragraphs 6A and 6B set out conditions for the  

recognition of a registered unrecognized party as a  

National Party and a State Party and Paragraph 6C  

deals with conditions for continued recognition as  

a National or State Party.  The outcome of the  

Election Symbols Order, 1968, is that certain norms  

have been laid down in order to minimize the number  

of  parties  contesting  an  election  since  many  

persons forming themselves into a political party  

tend  to  take  advantage  of  the  other  liberal  

provisions of the Order.   

20. Mr.  Venugopal  urged  that  even  prior  to  the  

Notification of 1st December, 2000, certain other  

amendments  had  been  effected  to  the  Election  

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Symbols  Order,  1968,  in  1997  and  1999,  whereby  

Paragraphs  10  and  10A  were  substituted.  For  

instance, certain concessions are provided that if  

a political party, which is recognized as a State  

Party in some State or States, sets up a candidate  

at an election in a constituency in any other State  

or Union Territory in which it is not a recognized  

party, then such candidate may, to the exclusion of  

other candidates of the constituency, be allotted  

the symbol reserved for that party in that State or  

States, in which it is recognized as a State Party,  

notwithstanding that such symbol is not specified  

in the list of “free” symbols for such other State  

or  Union  Territory,  upon  fulfillment  of  further  

conditions, namely,              

“(a) that an application is made to the  Commission by the said party for exclusive  allotment of that symbol to the candidate  set up by it, not later than the third day  after  the  publication  in  the  Official  Gazette  of  the  notification  calling  the  election;

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(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 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 a State Party at an election in any  constituency  in  a  State  in  which  that  party is not a State Party and where the  same symbol is already reserved for some  other State Party in that State.”

21. Paragraph  10A  makes  similar  concessions  in  

respect  of  candidates  set  up  by  an  unrecognized  

party which was earlier recognized as a National or  

State  Party.   Mr.  Venugopal  submitted  that  

Paragraph 6A, as amended, was highly arbitrary and  

negatively  impacted  upon  the  functioning  and  

development of a multi-party democracy.  Learned  

counsel submitted that the right to cast a vote  

allows a voter to make an intelligent choice, but  

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unfortunately he is often unable to identify the  

political  party  to  which  a  candidate  belongs  in  

addition to identifying a candidate. According to  

Mr. Venugopal, it is the percentage of the votes  

obtained  at  the  previous  elections  which  alone  

should be the criteria for recognition of a State  

Political Party and not the number of seats such  

party  wins.  Mr.  Venugopal  showed  us  several  

instances  where  even  with  a  lower  percentage  of  

votes  than  other  parties,  a  political  party  has  

come to power and has formed the Government.  Mr.  

Venugopal  urged  that  rather  than  the  number  of  

seats won, the number of votes polled by a State  

Political Party should really be the yardstick for  

recognition of a State Political Party.

22. It was submitted that the interim arrangement  

which had been made by the order dated 27th March,  

2009, could be continued for the present General  

Elections as well.

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23. Adopting Mr. Venugopal’s submissions, Mr. Mukul  

Rohtagi, learned Senior Advocate, appearing for the  

Writ  Petitioner,  Kongunadu  Munnetra  Kazhagam,  in  

Writ Petition (C) No.315 of 2009, contended that in  

the  2009  Parliamentary  Elections  the  party  had  

contested 12 out of 39 Parliamentary seats and “Gas  

Cylinder” as a symbol was allotted to all twelve  

candidates.  In fact, the identity of candidates  

set up by the party came to be equated with the  

“Gas Cylinder” symbol and not as a free symbol, so  

much so that candidates who were provided with “Gas  

Cylinder”  as  an  election  symbol  in  other  

constituencies where the party had not put up any  

candidate, benefitted and had polled a large number  

of votes which they had never expected to get.  

24. All the other learned counsel appearing for the  

other  Writ  Petitioners  and  Special  Leave  

Petitioners,  while  adopting  Mr.  Venugopal’s  

submissions, in one voice urged that the candidates  

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to be put up by them as registered but unrecognised  

political  parties  may  be  provided  with  a  common  

symbol in the constituencies in which they contest  

and such symbol may not be made available to other  

candidates as a free symbol. It was urged, as had  

been urged by Mr. Rohtagi, that after an election,  

voters come to associate the candidate of a party  

with  the  symbol  under  which  he  had  fought  the  

earlier election.

25. In reply, it was contended by Mr. Ashok Desai,  

learned Senior Advocate, appearing for the Election  

Commission that there were only a limited number of  

election symbols available as free symbols to the  

Election  Commission  and  if  all  the  registered  

unrecognized parties were to be accommodated by an  

interim  arrangement  in  direct  contrast  to  the  

Election  Symbols  Order,  1968,  framed  by  the  

Election  Commission,  it  would  really  amount  to  

achieving something by an interim order which it  

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could not achieve under the existing laws.  Mr.  

Desai submitted that in its wisdom, the Election  

Commission had made certain Orders which, in its  

view, would contain the vice of fragmentation of  

seats leading to ultimate uncertainty in the House.  

Mr. Desai contended that a great deal of thought  

and deliberation had gone into the making of the  

amendments in 2000 and 2005 in the Election Symbols  

Order, 1968, which ought not to be diluted for the  

purpose  of  making  an  interim  arrangement  as  had  

been done earlier.    

26. As we have indicated hereinbefore, the major  

challenge in these Writ Petitions and the Special  

Leave Petitions is to the validity of paragraph 6A  

of the Election Symbols Order, 1968, as it exists  

today. Keeping the same in mind, we have looked  

into  the  un-amended  as  well  as  the  amended  

provisions of the Election Symbols Order, 1968.  As  

on  date,  paragraph  6B  as  notified  under  

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Notification No.56/2000/JUD-III dated 1st December,  

2000, for the purpose of recognition of a State  

Party is in force and it provides that in order to  

be recognized 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 the candidates set up by it at the  last General Elections to the House of People or to  

the Legislative Assembly of the State concerned had  

secured not less than six per cent of the total  

valid votes polled in that State at the General  

Elections and in addition, it has returned at least  

two  members  to  the  Legislative  Assembly  at  the  

State  in  the  last  General  Elections  to  that  

Assembly.  Of course, the said notification is the  

subject  matter  of  challenge  in  the  present  

proceedings and is in existence by way of delegated  

legislation.  If interim arrangement made earlier  

is  to  be  continued  it  would  be  directly  in  

violation  of  the  said  provisions.   Such  an  

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arrangement cannot be made unless the operation of  

the impugned provision is stayed.  At this stage we  

are not inclined to stay the impugned provision.   

27. When the interim arrangements were made on 27th  

March, 2009, the registered unrecognized political  

parties before the Court were only three in number,  

whereas  presently  many  others  have  joined  the  

bandwagon. What we are required to consider at this  

stage is whether despite the above, any prejudice  

would be caused to any of the stakeholders in the  

election process, if such prayer was allowed. It  

would  certainly  be  to  the  advantage  of  the  

registered unrecognized political parties if they  

were able to put up candidates on a common symbol.  

On the other hand, if all registered unrecognized  

political parties were to be provided with a common  

symbol, prima facie, it would render the provisions  

of  the  Election  Symbols  Order,  1968,  completely  

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unworkable and destroy the very object it seeks to  

achieve.   

28. Having  regard  to  the  aforesaid  two  

possibilities,  we  are  not  inclined  to  make  any  

interim  arrangement  similar  to  that  made  on  an  

earlier occasion.  The earlier interim arrangement  

was possible on account of the lesser number of  

parties, but in the present circumstances, the same  

will  not  be  workable  in  view  of  the  number  of  

candidates who are likely to contest the elections  

and are required to be provided with free symbols  

in each constituency.    

29. However, while we are not inclined to make any  

interim  arrangement  regarding  the  allotment  of  

election  symbols  for  the  forthcoming  General  

Assembly Elections, we make it clear that this is  

only a tentative view, which shall not, in any way,  

affect  the  final  outcome  of  the  pending  Writ  

Petitions  and  Special  Leave  Petitions.   We  also  

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make it clear that this order will not prevent the  

Election  Commission  from  considering  any  

representation that may be made by the political  

parties and from accommodating their  prayer for a  

common symbol, to the extent practically possible.  

30. Let  these  eleven  Writ  Petitions  and  three  

Special  Leave  Petitions  be  listed  for  final  

disposal on 3rd May, 2011.   

………………………………………J. (ALTAMAS KABIR)

………………………………………J. (CYRIAC JOSEPH)

New Delhi Dated: 16.03.2011

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