This article is written by Aayushi Gupta, from the Rajiv Gandhi National University of Law. This is an exhaustive article on the laws of registration of political parties, allocation of symbols to parties, and also recognition and derecognition of political parties.
Modern-day politics is made functional by political parties. It is political parties that represent people’s demands and aspirations, channelize support and work for the betterment of people. They form the government and help run the country by acting both as legislature and executive. Hence, they form an integral part of our representative system.
An electoral or election symbol is a standardized symbol allocated to a political party. They are used by the parties during their campaigning and are shown on Electronic Voting Machines (EVMs), where the voter chooses the symbol and votes for the associated party. They were introduced to facilitate voting by illiterate people, who can’t read the name of the party while casting their votes.
In the 1960s, the Government of India proposed that the regulation, reservation and allotment of electoral symbols should be done through a law of Parliament, i.e., Symbols Order. In a response to this proposal, the Election Commission of India (ECI) stated that the recognition of political parties is supervised by the provisions of Election Symbols (Reservation and Allotment) Order, 1968 and so will the allotment of symbols. In 1968, the Election Commission promulgated this order.
Provisions under the Election Symbols (Reservation and Allotment) Order, 1968
In 1968, the Election Commission (EC) promulgated this order, which provided for specification, reservation, choice and allotment of symbols at elections in Parliamentary and State Assemblies’ constituencies. It also had provisions regarding the registration and recognition of political parties as state and national parties. Paragraph 3 of the order mentions the registration of political parties while Para 6 deals with the recognition of political parties.
The Election Symbols Order also provided for resolution of disputes in cases involving splits in recognized parties or merger of two or more political parties. Symbols are reserved for political parties and Paragraph 5 of the order distinguishes between a reserved and a free symbol. A reserved symbol is one that is allocated to a political party while a free symbol is available to be allocated to non-recognized parties and independent candidates.
Also, political parties are divided into regional or state and national parties, or registered and unregistered parties. Paragraph 6 of this order states the conditions which a party has to fulfil to become a national or a state party. And after two consecutive general elections, the poll performance of the already recognized political parties and newly associated parties would be evaluated and if they fail to perform well, they could be deregistered or derecognized and newly associated parties could find their place as recognized or registered parties. This order helped the Commission to achieve one of its primary objectives to prevent the wanton growth of political parties.
The constitutional validity of the symbols order was challenged in the Apex Court in the case Kanhaiyalal Omar v. R K Trivedi (AIR 1986 SC 111), under Article 32 of the Constitution. The main objection was that Article 324 of the Constitution could not be interpreted to have vested legislative powers to the ECI to issue such an order. However, this argument was repudiated by the Apex court on two grounds.
The objection raised was that the Commission issued this order ensuing the rules framed by the central government under Section 169 of the Representation of People’s Act, 1951 for carrying out its objects, but it went against Rule 5 of the Conduct of Election Rules, 1961. This rule obliges the Commission to specify the symbols used by the political parties in Parliamentary and State Elections. Rule 10(4) of the Conduct of Election Rules, 1961 empowers the ECI to issue general or specific directions to the returning officers at the booth in respect of allotment of symbols, but this direction had to be in consonance with the allotment. In addition to this, Rule 10(5), authorizes the Commission to revise the allotment of the symbols by the returning officers if they are inconsistent with the directions issued by the EC. In the light of these rules, it is apparent that the ECI has been bestowed with powers to win the order in the case of allotment of symbols.
The other ground emerged from the conjoined consideration of Article 324 and Article 327 of the Constitution. According to Article 327, the power to make laws in respect of elections to legislatures has been vested in the hands of Parliament, but it’s subject to provisions of the Constitution. So, this arresting clause meant that the laws made by the Parliament under Article 327 could be subject to other provisions of the Constitution, including Article 324, which provides the Election Commission with the power of control, superintendence and direction of elections. So, the EC should be empowered to issue such orders in light of the wide powers vested to it under the Indian Constitution.
The Preamble of the Election Symbols Order mentions that the EC makes the following order in consonance with Article 324 of the Constitution, read with Section 29A of the Representation of People’s Act, 1951 and Rules 5 and 10 of the Conduct of Election Rules, 1961. Article 324 describes the power of control, superintendence and direction of elections to be vested in an Election Commission. The Election Commission directs the preparation for and conduct of Parliamentary and State Elections, and also the elections for the Post of President and Vice President. It then talks about the composition of the Commission. Section 29A of the Act stated that political parties intending to enjoy benefits under the Act, need to get themselves registered with the Commission under the prescribed period. Rule 5 states that the Election Commission specifies the symbols that may be chosen by the candidate in State Assembly and Parliamentary elections and also specify the restrictions to which their choices shall be subject to. Rule 10 states the task of preparation of a list of contesting candidates is also to be performed under the direction of the Commission.
Election Symbols (Reservation and Allotment) (Amendment) Order, 2017 contained the list of the national and state parties with their respective symbols, list of registered unrecognized parties, list of free symbols, images of reserved symbols of national and state parties and also the list of registered unrecognized parties under Para 10/10A of the Order and the symbols allocated to them when they were recognized.
Allotment of Symbols
Election symbols are simple images that are easily recognizable by the general mass of voters. Each symbol represents either a political party or an independent candidate and helps the voter to identify the contender that they intend to vote for. This is essential because not all voters are literate, and it helps people to instead rely on the symbol and easily identify the party to vote for.
The symbols are allotted to parties by the Election Commission of India. And the provisions for the specification, reservation, choice and allotment of symbols are provided in the Election Symbols (Reservation and Allotment) Order, 1968.
Paragraph 4 of the order deals with the allotment of symbols. It states that in every contested election, a symbol will be allocated to a contesting candidate according to the provisions of the Symbols Order and different symbols will be allocated to different candidates at an election in the same constituency.
Paragraph 5 classifies the symbol into reserved and free symbols. A reserved symbol is a symbol reserved for a recognized political party for its exclusive allotment to contesting candidates set up by that recognized party. Whereas, a free symbol is a symbol other than a reserved symbol, which is available to be allocated to unrecognized parties and independent candidates.
Paragraph 8 of the Election Symbols Order deals with the choice and allotment of symbols to candidates of national and state parties. Para 8(1) states that a candidate nominated by a National Party at any election in any constituency shall choose and shall be allocated the symbol reserved for that National Party and no other symbol. Para 8(2) states that when a candidate is nominated by a State party at an election in any constituency of the state in which such a party is a State party shall choose and shall be allocated the symbol reserved for that State Party and no other symbol. Para 8(3) states that a reserved symbol will not be chosen by or allocated to any candidate in any constituency other than the candidate set up by a National party or a candidate set up a State party for whom such symbol has been reserved in the state in which it’s a State party, even if no candidate has been nominated by State or National Party in that constituency. It simply means that a reserved symbol will only be allotted to the candidates set up by the National or State party and not to anyone else.
Paragraph 9 places restrictions on the allotment of symbols of State parties in such states where it is not recognized as a State Party. Para 9(a) says that a reserved symbol of any State Party will not be included in the list of free symbols for any state or Union Territory. Para 9 (b) says that it shall not be allotted to or reserved for any other party which subsequently becomes eligible to be recognized as a State Party in any other state. It simply means that the reserved symbol for a State Party will not be considered a free symbol even in such states in which it is not recognized as a State Party. It also includes a provision which states this clause will not apply to those political parties for which the Commission has, before the commencement of Election Symbols (Reservation and Allotment) (Amendment) Order, 2017, already reserved the symbol which it has also reserved for some other State Party in any other state.
Paragraph 10 provides concessions to candidates nominated by a State Party in states in which it isn’t recognized. It says that if a political party, which is a recognized State Party in some states, nominates a candidate in states in which it isn’t recognized as a state party, then the candidate, to the exclusion of all the other candidates, shall be allotted the symbol, provided that the symbol is not listed as a free symbol. The said candidate and that State Party have to fulfil some conditions. The party has to submit an application to the ECI for the exclusive allotment of symbol to the said candidate, not later than the third day of publication of notification calling the election. Also, the candidate has to make a declaration in his nomination paper saying that he has been nominated by the said party and the party also fulfilling the conditions mentioned in Para 13. The Commission should also not find a reasonable ground to reject this application. This provision will not apply to the candidate nominated by a State Party in any constituency in a State in which it isn’t a recognized State party and the symbol is reserved for some other State Party in that state.
While Para 10A provides concessions to those candidates nominated by an unrecognized party which was earlier a State or a National Party. If a political party, which is presently unrecognized but was earlier a recognized State or National Party, nominates a candidate at an election in any constituency in any Union Territory or State, notwithstanding the fact whether it was earlier a recognized party in that State or not, may to the exclusion of all other candidates be allotted the symbol reserved earlier for that recognized party, provided it is not listed under free symbols of any such State or Union Territory. But it has to fulfil the same conditions mentioned in Para 10.
Paragraph 11 places restrictions on the choice and allocation of symbols allotted under Paragraph 10 or Paragraph 10A. In Para 11(a), it is mentioned that if a symbol has been exclusively allotted under Para 10 to a candidate set up by a political party in a Parliamentary constituency, then that symbol can’t be allotted to any candidate at any election in the said Assembly constituencies unless it is set up by that same political party. Para 11(b) states the same for candidates set up in an Assembly Constituency. It says that if a symbol is allotted to the candidate set up a political party at any election in any of the Assemblies constituencies, then that symbol can’t be allotted to any other candidate in any of the Parliamentary constituencies at any election unless it is set up by the same party.
Paragraph 12 of the Order lists the choice of symbols for candidates other than the candidates set up by a national party or a State party. It says that any candidate at an election in any Union Territory or State, other than the candidate set up by a national party; or any candidate set up by a state party recognized in that state, or candidates referred to in Para 10 or Para 10A, shall be allocated one of the symbols, specified as free symbols for that Union Territory or State by notification under Para 17.
While Para 12(2) states that if a free symbol has been chosen by a candidate, the same symbol can’t be allocated to any other candidate by the returning officer. Para 12(3) resolves the dilemma of choosing the same symbol by different candidates at such election. Out of those several candidates, if only one of them is nominated by an unrecognized party and rest all are independent candidates, then the returning officer shall allocate that free symbol to the candidate nominated by that unrecognized party. And if out of those, two or more are nominated by different unrecognized parties and the rest are independent candidates, then the returning officer can decide this by a draw of lots and allocate to the candidate on whom the draw falls.
If out of those several candidates nominated by different unrecognized parties, one was, immediately before such election, a sitting member of the Legislative Assembly or the House of People, then that free symbol should be allocated to that candidate.
And if out of those candidates, no one is nominated an unrecognized party and all are independent candidates, but one was previously a sitting member of the Legislative Assembly or House of People and was allocated that free symbol at the previous election when he was chosen as a member, then that free symbol will be allocated to him.
And if of those independent candidates, no one was a sitting member, then the returning officer shall decide it through a draw of lots.
Paragraph 17 of the order states that the Commission shall notify the lists of political parties and their respective symbols. The list should also contain free symbols and must always be kept up-to-date.
Disputes in Election Symbols
The dispute regarding election symbols erupts when there is a conflict within a political party which leads to the split of the party. Then, both the factions fight for the reserved symbol of the party. It was held in Sadiq Ali and Another v. Election Commission of India AIR 1972 SC 187 that symbol is not a property that can be simply divided between two owners. So, the dispute regarding electoral symbols is resolved by the Election Commission of India. The EC’s power to adjudicate disputes regarding allotment of election symbols is drawn from Article 324 and Rule 5 of the Conduct of Election rules, 1961. Also, Para 15 of the Symbols Order talks about the power of the Commission to split rival factions of a recognized political party. It says that when Commission is satisfied that there are rival factions within a recognized political party, each of whom claiming to be that party, the Commission on the basis of relevant facts and circumstances of the case and hearing the representatives from both the factions, decides that one such rival faction or no such faction is that recognized party and the decision of the Commission is final on all such sections. The Supreme Court decided that the EC is a tribunal and its decision regarding derecognition of a party or allocation of symbols in case of dispute could be challenged only by appealing to the Supreme Court under Special Leave Petition. But later, it was decided that it can be challenged in High Courts too. For disputes within registered but unrecognized parties, the EC generally advises them to solve their disputes amicably or to approach the court.
How does the Election Commission decide on party symbol disputes?
Under Paragraph 15 of the Symbols Order, the EC has the exclusive authority to decide on issues over merger or split of a party. The EC decides disputes among rivals factions of a recognized political party staking claim to its symbol and name.
Initially, the Election Commission ascertains the support enjoyed by a claimant within a political party in its organizational and legislative wing. For the organizational wing, the Commission studies the constitution of the party and also the list of office-bearers submitted when the party was still united. It identifies the apex committee in the organization and examines how many delegates, members and office-bearers support the rival claim. If the Commission fails to test the support strength to any faction based on the organizational support, then it goes for the legislative wing. For this wing, the Commission goes by the number of MLAs and MPs in the rival faction. It considers the affidavits filed by them to examine where they stand.
The ECI may decide in favour of the rival section who claims the majority in the organizational and legislative wing, and the winning faction becomes entitled to the symbol and name of the said political party while it may allow the other faction to register itself as a separate political entity.
Where the party is vertically divided and it is not feasible to establish majority through these wings, then the Commission may freeze the party’s symbol and permit the factions to register themselves with new names or they may add suffixes and prefixes to their party’s name.
The process of establishing a majority and deciding takes a lot of time. For immediate electoral purposes, the EC may freeze the party symbol and advise the factions to contest elections under different names and with temporary symbols.
If they settle their differences and reunite, they may approach the Commission again and seek to be recognized as a political party. The Commission is also bestowed with the power to recognize mergers of groups into one political party. The Commission may even restore the name and symbol of the original party.
Before 1968, EC used to issue executive orders and notifications under the Conduct of Election Rules, 1961. The first case of a dispute of party symbols was brought by the Communist Party of India. One of the factions approached the EC and asked it to recognize it as CPI (M). It presented the list of its MPs and MLAs. At that time, the EC decided to recognize this faction as CPI (M), as it was satisfied that its MPs and MLAs secured more than 4% votes in three states, Andhra Pradesh, Kerala, and West Bengal.
After the 1968 order, the first split was in the Indian National Congress. In 1971, the Indian National Congress split into Congress (R), led by Indira Gandhi and Congress (O), led by Nijalingappa and the reserved symbol became the bone of contention. The EC simply rejected the claim of Congress (O), establishing a majority test and deciding in favour of the majority out of the total number of members returned on Congress tickets to the House of Parliament and also the total members of all Legislatures on Congress tickets. The Supreme Court also held that the decision the EC was final and binding under Para 15 of the Order. And this paragraph is not ultra vires of the Constitutional provision under Article 324. It was also not acceptable to cut up the symbol and gave one cow to one faction and the other cow to the other faction, as a symbol is not a property. In the end, it was decided that the party symbol of two bullocks carrying a yoke was to be allotted to Congress (O) and a new symbol of a cow with a suckling calf was allotted to Congress (R).
Another dispute involved the party symbol used by AIADMK. The leadership of AIADMK came into dispute after the death of its leader Jayalalitha. The party is now headed by K. Palaniswami and O. Paneerselwam. Another rival faction, named Amma Makal Munnetra Kazhagam (AMMK), was formed by V. Sasikala, a confidante of Jayalalitha, and Dhanikaran. Soon, the two factions had conflicts concerning the party symbol of two leaves. They referred their dispute to the EC. The EC, taking into consideration the organizational and legislative majority, recognized that AIADMK had more members in the general council and also had higher members as MLAs and MPs, so it gave the decision in favour of AIADMK. However, this decision was challenged by AMMK in Delhi High Court. In this case, V. K. Sasikala v. The Election Commission of India (2019), the Delhi High Court also upheld the decision of the EC and said that it used the majority test fairly and hence the decision is binding. But the AMMK was still not satisfied and decided to file an appeal in the Apex Court. The Apex Court, then, issued a notice to EC on petitions filed by V. K. Sasikala in the party symbol dispute.
The EC also received an application in 1996 claiming to declare the Janata Dal (Samajwadi) as the real Janata Dal. Janata Dal (S), headed by Devi Lal, claimed that there was a split of Janata Dal in November 1990 which resulted in the creation of two factions, one led by Devi Lal and the other headed by S. K. Bommai. The speaker of the Lok Sabha, the chairman of the Rajya Sabha and the Presiding officers of several State Assemblies declared JD (S) as a separate legislative group. But the controversy revolved around two questions, whether this split resulted in the formation of two rival factions within JD or one of the splinter groups severed its ties with the party and established itself as a separate party.
The commission was of the view that JD (S) didn’t intend to create a faction within the party but instead formed a separate political party. So it felt that the claim to the party’s name and the symbol should go to JD (S). The EC exercising its powers conferred under Article 324 and in consonance with the provisions of the Symbols Order, declared JD (S) as a national party, which could choose any of the face symbols already approved by the Commission or can suggest a new one. The commission also examined whether Janata Party and Lok Dal merged to form Janata Dal or they exist as separate political parties. The EC couldn’t decide on this matter before the General Elections of 1989 and hence passed an interim order maintaining that Janata Party and Lok Dal are separate parties and were recognized as national parties under the name Janata Party (JP) and Lok Dal. They were provided with the symbol of a ‘farmer digging a mati within a wheel’ and a ‘farmer driving a bullock cart’ respectively. The Janata Dal (S) was also granted interim recognition as a national party and the symbol of the wheel was allotted to it.
The Commission examined the case of the Indian National Congress under Para 5 of the Symbols Order between Arjun Singh as the Petitioner and the President of the INC as the respondent. This decision was examined by a 3-member commission and was also judicially upheld by the Supreme Court. The first issue involved in this case was whether the petitioner’s group headed by N. D. Tiwari was the real Congress or not. Here, the commission applied the test of the majority to determine the legitimacy of the sections claiming to be the real party. In Sadiq Ali v. Election Commission of India and Another, it was held that Congress, being a democratic organization, can be best tested through the rule of the majority. It was also held that the numbers have relevance in a democratic setup. The Supreme Court, in this case, pointed out the difficulties in primary membership. It can be proved ineffective due to bogus memberships and plausible factions. And it was also held that EC was a tribunal and its decision regarding recognition or derecognition of a party, or allotment of symbols in case of a split is binding, as it acts as a quasi-judicial authority and can be challenged in courts. In the INC case, the commission after going through relevant facts decided that the petitioner’s group was not the real Congress.
The second issue was whether the All India Indira Congress (Tiwari) be recognized and allotted a new symbol either that of the two bullocks or folded hands. The Commission held that the petitioner’s group headed by N. D. Tiwari as President and Arjun Singh as Executive President is eligible for being registered and recognized as a national party, in the name and style of All India Indira Congress, subject to the provisions of Section 29A of the RPA, 1951. As regards the symbol of two bullocks, the Commission said that this was a symbol that was once allotted to a recognized party and was then frozen, so it would not be advisable to allocate this symbol to any other party. And also the symbol of folded hands was an acceptable way of national greetings, which makes it unacceptable as a recognized symbol. Thus, this party was directed to choose any other symbol from the listed free symbols.
The issue here was that the petitioner demanded the freezing of the hand symbol of the respondent group. The Supreme Court in All Party Hill Leaders (APHC) v. Captain W A Sangma and others case AIR 1977 SC 2155 held that allotment of a symbol in a country like India is quite essential as the illiteracy rate is still very high. The symbol as a favour of casting votes to a particular candidate has proved to be an invaluable aid. People after some time attach emotions and feelings to the party symbols. These are unifying emblems which can’t be, all of a sudden, expunged. The Apex Court reversed the decision of the EC to freeze the reserved symbol of the flower of APHC. Similarly, in this case, the commission was of the view that any attempt to freeze a symbol is done in exceptional cases, provided that it already has an application for the deregistration and derecognition of a party. The EC said that no such relief would be given under Para 15 of the Order. Two of the Commissioners opined that the respondent still enjoys the rights and privileges of a registered National Party, so it will not freeze the symbol.
After getting involved in a feud and facing vertical split, Samajwadi Party’s warring factions are also staking their claims to the party symbol of the cycle. The EC has ordered them to provide supporting documents and evidence to support their claims.
The commission takes into serious consideration all the facts and circumstances of the case in order to remain impartial and neutral. So far, the EC has been fairly impartial in giving its decisions. The impartiality and neutrality of the Commission can also be ensured through its mode of appointment or removal of multi-membered EC.
Registration of political parties
The issue of registration and de-registration of political parties has always been in question. In 1988, the Representation of People’s Act was revised to include Section 29A, which says that the parties, in order to enjoy the benefits of the Act, need to register themselves with the Election Commission within the period described in the statute. The compelling parties seeking registration need to furnish documents along with the particulars of their policies and programmes.
The Representation of People’s Act, 1951 was enacted on the ground to ensure just and free elections across the nation. This act makes provisions for the conduct of the election in the country in an impartial manner. It talks about the prevention of corruption and malpractices undertaken during elections. It also makes provisions for dispute resolution in matters relating to elections. It also mentions the grounds for qualification and disqualification of MLAs and MPs. It provides for administrative machinery for conducting elections and also deals with the registration of political parties.
Section 29A of RP Act, 1951
The registration of political parties is assessed by Section 29A of the Representation of People’s Act, 1951. It is covered under Part IVA of the Act, which deals with the registration of political parties. The sub-section (1) says that if anybody of individual citizens or association, intends to call itself a political party and avail itself of the benefits under the provisions of this part, it must register themselves by filing an application to the Election Commission.
It further states the conditions needed to be followed in order to register themselves as political parties. It says that if the body of individuals or association is in existence before or at the commencement of the Representation of People’s (Amendment) Act, 1988, then the application must be made within the next sixty days following the commencement. It also mentions that if the association is formed after such commencement, then the application must be filed within the next 30 days following its formation.
Sub-section (3) states that every application made under sub-section (1) must be signed by the Chief Executive Officer of the association or by the head of the association and handed over to the Secretary to the Commission or should be sent to the Secretary through a registered post.
Sub-section (4) of Section 29A states the essential particulars to be included in the application. It says the application must have the name of the body or the association, the name of the state in which its head offices is situated, the address to which the letters and other communications are meant to be sent, the names of its President, Secretary, Treasurer and also of its office-bearers. The application should also mention the numerical strength of its members, and if there are categories, then the numerical strength of categories as well. It must also mention whether it has any local units and if so, at what levels. The application should also mention if any member(s) of the House of People or State Assemblies represent the association, and if so, the number of such member(s).
The sub-section (5) states that the application made under sub-section (1) must contain a copy of the memorandum of rules and regulations of the body or association, and such memorandum shall contain a specific provision stating that the association will bear true faith and allegiance to the Constitution of India, and to the principles of socialism, secularism, and democracy. And it should also mention that the association or body will uphold the sovereignty, unity and integrity of the nation.
The Commission may also call for additional particulars from the association or body as may deem fit. After considering all the particulars and also the other necessary factors and also giving the representatives of the association or body reasonable opportunity of being heard, the Commission shall decide either to register the association as a political party or not to register it and the decision of the Commission shall be conveyed to the association. No association or body of individuals will be registered as a political party unless its memorandum of rules and regulations conform to sub-section (5).
The decision of the Commission is final and binding. And if the association or body intends to change its name, head office, or its office bearers, then it should be conveyed to the Commission without any further delay.
In the case of Hans Raj v. the Election Commission of India (2015), the petition was filed under Article 226 of the Indian Constitution and sought the following reliefs: (a) the petitioner impleaded the ECI to cancel the registration of the AAP on the ground of having been effected on forgery and presentation of wrong and incomplete documents; (b) setting up of a Special Investigating Team to look into the fabricated documents presented by the party; (c) also the initiation of disciplinary proceedings against the officials of the Commission.
It was held in Indian National Congress (I) v. Institute of Social Welfare and Others (2002), that neither the Election Symbols (Reservation and Allotment) Order, 1968 and nor the Section 29A of the Representation of People’s Act gave the power to ECI to deregister a party registered under Section 29A because it had violated the provisions of the Constitution and no proceedings can be taken by ECI having violated Section 29A(5). It was however held that since the ECI is to give its decision under Section 29A(7), after holding an inquiry giving a fair opportunity of hearing the body, it is acting as a quasi-judicial body. It was further held that since fraud and forgery vitiate any order passed by the quasi-judicial authority, it implicitly gave power to the ECI to deregister a party which was registered by practising fraud.
The petitioner, in this case, didn’t want deregistration of AAP on the grounds of it practising fraud but on the ground that the decision of ECI was erroneous and it didn’t follow proper procedure and caution which was required to follow before registering AAP. In this case, the petitioner was trying to create a distinction between obtaining registration through fraud and forgery and obtaining registration without complying with required formalities or based on deficient documents.
Thus, the court observed that the grounds for deregistration of AAP didn’t fall in the category which the Supreme Court held in the Indira Gandhi, for the ECI to deregister a party. Once it is held, the question of finding an error with the ECI refusing to deregister AAP doesn’t arise and the ECI didn’t fail to act within its jurisdiction.
It was held that the petitioner was not entitled to reliefs and, thus,t the petition is liable to be dismissed.
The Section certainly suffers from certain discrepancies. It doesn’t have sufficient conditions to deny registration to an association or body of individuals. This section suffers from certain looseness because even a small group of people, by making a simple declaration, can be registered as a political party under Section 29A(5). This has resulted in the mushrooming of political parties to the level that there are currently over 2300 registered parties, of which only a handful of them are recognized as State or National parties. And also, there is a serious discrepancy that once registered, a political party will stay in perpetuity even if it doesn’t contest elections over several years of its existence. This is because there is no provision to de-register a party. Also, the party which has been defunct for quite a time, are still on the rolls of the Commission as a functioning one. It is therefore suggested that the Section must regulate the registration and deregistration of a party.
Recognition of political parties
After seeking registration, the next thing that political parties seek is recognition. Recognition of political parties as State or National Party is endowed with several benefits like getting a reserved symbol, placement of their names at the top of the ballot paper, and other economic benefits. The recognition of political parties is governed through Paragraph 6 of the Symbols Order.
When is a Political Party recognized as a National or State Party?
Paragraph 6 states that for the purposes of this order or as the Commission specifies, the political parties are divided into recognized and unrecognized political parties. A recognized political party is either a recognized National Party or a recognized State Party.
There are a total number of 7 National Parties- Indian National Congress (INC), Bharatiya Janata Party (BJP), Bahujan Samaj Party (BSP), Communist Party of India (CPI), Communist Party of India (Marxist) (CPI-M), All India Trinamool Congress (AITC), and Nationalist Congress Party (NCP); 52 State Parties and 2538 unrecognized parties.
Para 6(A) states that a political party, to become a State Party, must fulfil any of the following conditions:
- to the Legislative Assembly of that state, the candidates nominated by that party must secure not less than 6% of the total valid votes polled in that state; and, in addition, the party shall have returned at least two members to the Assembly of that state at such election; or
- to the House of People from that state, the candidates set up by that party must have secured not less than 6% of the total valid votes polled in that state; and the party must have returned at least 1 member to the House of People from that State; or
- to the Assembly of that State, the party must have secured at least 3% of the total number of seats in the Assembly or at least three seats, whichever is more; or
- to the House of People from that state, the party must have returned at least 1 one member to the House for every 25 members or any fraction allotted to that state; or
- To the House of People from that State, or at the last general election to the assembly of the State, the candidates nominated by the party must have secured not less than 8% of the total valid votes polled from that State.
Para 6(B) states that to become a National Party, the registered party must fulfil any of the following conditions:
- The candidates nominated by the party in any 4 or more states, at the last general election to the House of People or the Assembly of the concerned state, have secured not less than 6% of the total valid votes polled in that state; and the party must have returned at least 4 members to the House of People at the last general election from any state(s); or
- At the last general election to the House of People, the party must have secured not less than 2% of the total number of seats in the House; and the candidates have been elected to the House from not less than 3 states; or
- The party is a recognized State party in at least 4 states.
If the political parties fulfil these conditions, then they become recognized State or National Parties. The benefits provided to them are enormous but they need to perform well during the succeeding general elections to retain their status as a National or State Party.
Para 6(C) mentions the conditions for continued recognition as either a State or a National Party. It says that if a political party is a recognized State party or a National party, the question of its continued recognition after any subsequent elections to the House of People or Legislative Assemblies depends upon the fulfilment of the conditions mentioned in Paragraph 6(A) and 6(B). If the parties fail to fulfil these conditions, they can be declared as derecognized by the Election Commission of India. However, this provision was amended and it stated that the review of the status of recognized parties will be done after every two consecutive State Assembly or Lok Sabha elections, instead of after every election. This amendment brought a sigh of relief to parties like NCP, BSP, and CPI-M, who were on the prospect of losing their national status.
Para 7 states that if a political party got recognized either as a State or a National party, before or after the commencement of Election Symbols (Reservation and Allotment) (Amendment) Order, 2005, on fulfilling the conditions for recognition before the commencement order, shall retain their status as a recognized National or State party for the purposes of the next general election. Its continued recognition depends on its performance in the subsequent general elections. If the recognized parties fail to fulfil the condition before or after the commencement of order, then the parties can even withdraw their recognition as a State or National Party.
Advantages of being recognized as a state or national party
There are certainly many benefits of being a recognized state or national party. The biggest advantage of being recognized is getting the reserved symbol. If a political party is recognized as a state party, it becomes entitled to the exclusive allotment of its reserved symbols to the candidates set up by the said party in states in which it is recognized. It can also allocate symbols to its candidates in other states and UTs, by fulfilling the conditions mentioned in Para 10. And if it’s a National Party, it exclusively allocates its symbol to the candidates set up throughout the country. Recognized parties need only one proposer for filing the nomination and they also get two sets of electoral rolls free of cost at the time of the revision of rolls. Their candidates also get one copy of the electoral roll free during General Elections. They are also entitled to broadcast or telecast facilities over Akashwani or Doordarshan during elections.
The telecast and radio facilities can be best used to address the people and convey their message to the masses. Political parties, be it recognized or unrecognized, can nominate Star Campaigners during elections. A recognized National or State Party can have a maximum of 40 Star Campaigners while registered unrecognized parties can have a maximum of 20 Star Campaigners. The travel expenses of these star campaigners are not included in the election expense accounts of candidates of these parties. They also get subsidized land for their party offices at the national or state capitals.
The State parties also entail the right to participate in the all-party meeting convened by EC or State or Central Government. Furthermore, the candidates set up by these parties are arranged alphabetically and presented on the top of the ballot paper followed by candidates of registered unrecognized parties and lastly, the independent candidates. Also, if the candidate nominated by a recognized party dies before the polling begins, then the elections in that constituency are adjourned and that party is given an additional time of a week to nominate another candidate.
De-recognition of political parties
As it’s aforementioned in Para 6(C) that the continued recognition of the parties depends on the fulfilment of conditions mentioned in Para 6(A) and 6(B). The review of their status will be done after every two consecutive general elections to State Assemblies and Lok Sabha. And it’s that the parties get derecognized on failing to perform well in the subsequent elections. Like in June 2000, the Election Commission of India, derecognized 7 regional parties based on their poll performances. These parties were: Haryana Vikas Party, NTR-Telugu Desam Party, the Rashtriya Janata Dal in Manipur, Shiv Sena in Dadra Nagar and Haveli, the United Minority Party in Assam, the Samajwadi Janata Party in Chandigarh and the Samata Party in Haryana. The Election Commission draws power from the provisions in Election Symbols Order which state that, for the continued recognition of the parties, they need to perform consistently well by satisfying all the conditions in Para 6(A) and 6(B). In this way, it prevents the growth of incompetent political parties.
The Commission referred to an order passed by a Commissioner dated February 19, 1992, which was concerning the petition filed by Arjun Singh seeking deregistration and derecognition of BJP and freezing of its symbol of the lotus. It held that a party recognized as a National or State party under the provisions of Symbol Order can’t be derecognized and its reserve symbol can’t be withdrawn or frozen merely on the basis that it is not functioning in accordance with the Section 29A(5) of the RPA, 1951. This view of the Commission was also upheld by the Supreme Court in dismissing the Special Leave Petition under the name Arjun Singh v. the Bharatiya Janata Party and Another.
In the Subramanian Swamy v. Election Commission of India (2013) case, the petitioner alleged that, in 2002 local bodies election in Andhra Pradesh, the reserved symbol of the Janata Party was allocated and used by the Telugu Rashtra Samiti, which has nothing to do with the former party. Their plea was rejected by the Andhra Pradesh Election Commissioner on the basis that the symbol of Halder within Wheel has now become popular among the people as the reserved symbol of Telugu Rashtra Samiti because of its use in the elections.
Again, in the 2003 elections, the Janata Party’s symbol was put in the list of free symbols and was allotted to one of the independent candidates. The appellant filed an appeal for striking down Para 10A of the Symbols Order, which provides concession in allotment of symbols to previously recognized parties, as it denies equality before the law that is violative of Article 14 of the Constitution.
The appellant alleged that the provision under Para 10(A) suffers from the vice of arbitrariness and denies equality before the law under Article 14. He also stated that the electoral symbol is an intellectual property of the party and can’t be taken away.
The Court held that the Symbols Order is in perfect consonance with the democratic principles and also promulgated that recognition of a political party is inextricably connected to its reserved symbol. But the party who doesn’t have the following of the people and remains only in record can’t be given the status of a recognized political party.
The challenge to the constitutionality of Para 10A is baseless, as it provides a reasonable and fair opportunity to the party to prove its following within 6 years. It further held that the electoral symbol may be the result of intellectual exercise, but it doesn’t become an intellectual property of the party. And the Commission has every right to deprive the party with a dismal performance with its reserved symbol. The symbol is just an emblem that helps millions of illiterate voters to exercise their right to vote and prefer their candidate.
The derecognition of a party is also governed by Para 16A of the Symbols Order. It says that if the Commission is satisfied on the information in its possession that a political party, either recognized as a National or a State party, has failed or shown defiance by its conduct to observe the provisions of the Model Code of Conduct for Guidance of Political Parties and Candidates; or failed to carry out the lawful directions and instructions given by the Commission to ensure fair and peaceful elections, then the Commission, taking into account all the relevant facts and circumstances of the case and giving the party reasonable opportunity to represent themselves in the cause, can either withdraw or suspend the recognition of the Party.
For instance, the Commission suspended the recognition of the National People’s Party as a State Party for failing to file its election expenditure statement. The parties are supposed to file their election expenditure statements within 75 days of Assembly elections and within 90 days of the Lok Sabha elections. The party was even given two notices to file their statement and was provided extra time to do so, but failing to abide by the directions of the Commission, the EC had to suspend its recognition.
This is for the time that the election watchdog has taken such a step to suspend the recognition of the party for failing to abide by the instructions of the Commission.
The benefits provided to the recognized parties raises a pertinent question that, with a level playing field for all, how far is it justified to provide these advantages to a handful of parties. While the system may be considered partial, these benefits do have a justification. These benefits are essential to ensure effective working of the electoral system. By laying down the criterion for acquiring the status of recognized parties, it incentivizes the parties to work harder on the ground and also promotes healthy competitions. The fact that every political system is subject to review makes it a fair and reasonable one.
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