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2008(7) Supreme 45
SUPREME COURT OF INDIA
(From Delhi High Court)
Ashok Bhan and V.S. Sirpurkar, JJ.
Subramanian Swamy — Appellant
versus
Election Commission of India Through its Secretary — Respondent
Civil Appeal No. 5803 of 2008
(Arising out of SLP (Civil) No. 3010 of 2008)
Decided on : 23-09-2008
(b) Election Symbols (Reservation and Allotment) Order, 1968 – Clause 6 – Concept of recognition is inextricably connected with the concept of symbol of that party – 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. (Para 15)
(c) Election Symbols (Reservation and Allotment) Order, 1968 – Clause 10A – Additional period of 6 years – Within that period there is bound to be one or more general elections on the national level – So even if any political party has lost its status in the State Elections, it will not lose the said symbol upto the next general election – It will get another opportunity by way of fresh elections within six years – Hence the provsion cannot be termed arbitrary. (Para 17)
(d) Election Symbols (Reservation and Allotment) Order, 1968 – Clauses 5 and 6 – A reserved symbol is meant only for recognized political party for its exclusive user – If a particular symbol is not a reserved symbol, meaning thereby that it is not meant for a recognized political party, such symbol automatically becomes a free symbol. (Para 18)
(e) Interpretation of statutes – Where the language of the provision is clear, admits of no doubt and no situation warrants reading down, it cannot be so done. (Para 18)
(f) Election Symbols (Reservation and Allotment) Order, 1968 – Clause 10A – Validity – A statute must be read as a whole in its context – Clause 10A has to be read in the light of clauses 5, 6, 6A, 6B and 6C – Result of reading Clause 10A in isolation would be that 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. (Para 19)
(1985)3 SCC 103; (2001)4 SCC 139 – Relied upon.
(g) Election Symbols (Reservation and Allotment) Order, 1968 – Clauses 5, 6, 8 and 10A – Contention to recognize a third category of political party apart from recognised and un-/de-recognised party, i.e., a party which was once a recognized party but has lost its status so as to enable it to retain its old symbol for ever and rightfully claim it; cannot be accepted. (Para 21)
(h) Election Symbols (Reservation and Allotment) Order, 1968 – Clauses 5 and 6 – A symbol can never have even the traces of the concept of a property – A recognized political party would have a right of exclusive use of the symbol – However such right can be lost with the dismal performance of the party. (Paras 22 and 23)
(1972) 4 SCC 664 – Relied upon.
Facts of the case :
1. The 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 Supreme Court. The decision of de-recognition of Janta Party has, therefore, become fait-accompli and the party was called upon to chose a new symbol.
2. Dr. Subramanian Swamy filed a Writ Petition in Delhi High Court in his personal capacity, though he claimed therein a mandamus for Janta Party of which he is the President.
3. The relief claimed was retention of party’s symbol.
4. High Court dismissed the petition.
Finding of the Court :
There is no reason to interfere with the impugned judgment.
Result : Impugned judgment confirmed.
Judgment
V.S. Sirpurkat, 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;
(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 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
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