Election Symbols in India: Reservation, Allotment, and Adjudication

The Legal Framework of Election Symbols in India: Reservation, Allotment, and Adjudication

Introduction

Election symbols are an indispensable feature of the electoral landscape in India, a nation characterized by vast linguistic diversity and varying literacy levels. These symbols serve as a crucial cognitive heuristic, enabling voters to identify political parties and candidates, thereby facilitating the exercise of their franchise.[11, 15] The reservation and allotment of these symbols are meticulously regulated processes, primarily governed by the Election Commission of India (ECI). This article undertakes a comprehensive analysis of the legal framework governing election symbols in India, delving into the constitutional and statutory underpinnings, the criteria for party recognition and symbol reservation, the mechanics of allotment, the adjudication of disputes, and the jurisprudential understanding of the nature and significance of these symbols. The analysis draws extensively upon the Election Symbols (Reservation and Allotment) Order, 1968 (hereinafter "Symbols Order"),[28] relevant statutory provisions, and landmark judicial pronouncements that have shaped this domain.

Constitutional and Statutory Basis for Symbol Regulation

The authority to regulate election symbols is derived from a confluence of constitutional mandates and statutory enactments, which collectively empower the ECI to ensure free, fair, and orderly elections.

Article 324 of the Constitution

Article 324 of the Constitution of India[25] vests the ECI with 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." The Supreme Court has consistently interpreted these powers as plenary, encompassing all provisions necessary for the smooth conduct of elections, especially in areas not occupied by specific legislation.[5, 16, 29] In Kanhiya Lal Omar v. R.K Trivedi And Others, the Court affirmed that the ECI's power to issue the Symbols Order flows from Article 324, even if some provisions are not directly traceable to an Act or Rules, as Article 324 operates in areas left unoccupied by legislation.[14, 16] This was reiterated in All Party Hill Leaders' Conference, Shillong v. Captain W.A Sangma And Others (hereinafter "APHLC case"), where the Court held that the ECI is empowered under Article 324 to make directions in general and specific cases to facilitate free and fair elections, including matters relating to symbols.[1, 14]

Representation of the People Act, 1951

The Representation of the People Act, 1951 (RP Act, 1951),[26] provides the legislative framework for the conduct of elections. Section 29A, introduced later, deals with the registration of associations and bodies as political parties with the ECI.[21] While the RP Act, 1951 itself does not elaborately detail symbol allotment, it forms the bedrock upon which rules and orders, including the Symbols Order, are built. The ECI purports to draw authority from Section 29A, in addition to Article 324 and the Conduct of Elections Rules, 1961, for the Symbols Order.[9]

Conduct of Elections Rules, 1961

The Conduct of Elections Rules, 1961,[27] framed under the RP Act, 1951, further delineate the ECI's role. Specifically, Rules 5 and 10 empower the ECI concerning the specification, reservation, choice, and allotment of symbols. Rule 5(1) historically allowed the ECI to publish and amend lists of symbols.[10, 22] The Supreme Court in Kanhiya Lal Omar noted that Rules 5 and 10 delegate authority to the ECI for these purposes, and the Symbols Order was made in exercise of powers conferred by Article 324 read with these rules.[5, 9]

The Election Symbols (Reservation and Allotment) Order, 1968

The Symbols Order, 1968,[28] promulgated by the ECI, is the primary regulatory instrument. It provides detailed provisions for the registration of parties, their recognition, specification, reservation, choice, and allotment of symbols, and the adjudication of disputes.[9] Its constitutional validity has been upheld by the Supreme Court, notably in Sadiq Ali And Another v. Election Commission Of India[7] and Kanhiya Lal Omar,[5] which recognized it as a compendium of directions essential for the conduct of elections. Paragraph 18 of the Symbols Order vests residuary powers in the ECI to remove difficulties or address situations for which the Order makes no or insufficient provision.[9]

Recognition of Political Parties and Symbol Reservation

The privilege of a reserved election symbol is intricately linked to the recognized status of a political party, which is determined by its electoral performance.

Criteria for National and State Party Status

Paragraphs 6, 6A, 6B, and 6C of the Symbols Order lay down the conditions a political party must fulfill to be recognized as a National or State party. These criteria typically involve securing a minimum percentage of valid votes polled and/or winning a certain number of seats in parliamentary or assembly elections.[3, 6] The Supreme Court, in Desiya Murpokku Dravida Kazhagam (DMDK) And Another v. Election Commission Of India (2012), upheld the ECI's amendments to these criteria, specifically the requirement for a party to secure at least 6% of total valid votes and return at least two members to the State Legislative Assembly for State party recognition. The Court found these criteria to be a reasonable classification under Article 14 of the Constitution.[6]

Consequences of Recognition

A recognized National or State party is entitled to the exclusive allotment of a symbol reserved for it in the constituencies where it contests.[8] This exclusivity is a significant advantage, aiding in party branding and voter recall.

Non-Permanence of Recognition and Symbol Retention

Recognition as a National or State party is not perpetual and is subject to continued fulfillment of the prescribed electoral performance criteria. In Janata Dal (Samajwadi) v. Election Commission Of India, the Supreme Court upheld the ECI's decision to withdraw the national party status of Janata Dal (Samajwadi) for failing to meet the requisite criteria, affirming that recognition can be rescinded.[2] The Court relied on Section 21 of the General Clauses Act, 1897, which empowers an authority that can issue orders to also amend, vary, or rescind them.[2] Furthermore, Paragraph 10A of the Symbols Order provides a concession: a party that loses its recognition can retain its reserved symbol for a period of six years, allowing it an opportunity to regain recognition in subsequent elections. The Supreme Court in Subramanian Swamy v. Election Commission Of India upheld the constitutionality of this six-year cap, deeming it reasonable and non-arbitrary.[3]

Allotment of Symbols

The process of symbol allotment varies depending on whether the party is recognized, registered unrecognized, or if the candidate is an independent.

Reserved Symbols for Recognized Parties

As per Paragraph 8 of the Symbols Order, a candidate set up by a National party at any election in any constituency in India shall choose, and shall be allotted, the symbol reserved for that party and no other symbol.[8] A similar provision applies to State parties within their respective states. The allotment by the Returning Officer is generally final unless inconsistent with ECI directions.[8, 17]

Free Symbols for Unrecognized Parties and Independent Candidates

Candidates of registered unrecognized parties and independent candidates choose from a list of "free symbols" notified by the ECI. If multiple candidates opt for the same free symbol, the Returning Officer decides the allotment by drawing lots.[10] The ECI maintains and amends the list of free and reserved symbols through notifications.[10]

Common Symbols for Registered Unrecognized Parties

There has been a growing demand from registered unrecognized political parties for the allotment of a common symbol to all their candidates in a particular election. The Supreme Court in Desiya Murpokku Dravida Kazhagam (2) And Another v. Election Commission Of India (2011) considered this issue and directed the ECI to explore possibilities for temporary arrangements, acknowledging the ECI's powers under Article 324 and Section 29A of the RP Act, 1951.[21] The Telangana High Court in Samajwadi Forward Bloc Party v. ECI dealt with a plea for the continued allotment of a common symbol ("Truck") and the challenge to its proposed removal from the free list based on alleged resemblance to another party's symbol, highlighting issues of natural justice.[4]

Role of Form B and "Setting Up" of Candidates

Paragraph 13 of the Symbols Order is crucial in determining whether a candidate is "set up" by a political party. It requires a notice in Form B, signed by an authorized office-bearer of the party, to be delivered to the Returning Officer by the stipulated deadline.[19] This official nomination (Form B) entitles the candidate to the party's reserved symbol.[17, 18] The distinction between an "official candidate" (who submits Form B) and a "dummy candidate" (a party member who files nomination without Form B, often as a backup) is well-recognized in election law.[19]

Adjudication of Disputes Relating to Symbols

The ECI plays a significant quasi-judicial role in resolving disputes concerning election symbols.

ECI as a Tribunal

The Supreme Court in the APHLC case conclusively established that the Election Commission, when adjudicating disputes relating to party symbols and recognition under the Symbols Order, functions as a tribunal under Article 136 of the Constitution.[1] This subjects its decisions in such matters to appeal before the Supreme Court by special leave. The Court drew parallels with other adjudicatory bodies recognized as tribunals.[30, 31, 32]

Disputes in Recognized Parties (Splits and Mergers): Paragraph 15 and the "Majority Test"

Paragraph 15 of the Symbols Order empowers the ECI to decide which of the rival sections or groups of a recognized political party is that party, in case of a split. The landmark case of Shri Sadiq Ali And Another v. Election Commission Of India (1971) involved a split in the Indian National Congress. The Supreme Court upheld the ECI's decision, which was based on the "majority test" – assessing the numerical strength of each faction in both the legislative wings (Parliament and State Legislatures) and the organizational wing of the party.[7, 20] The faction commanding the majority support is deemed to be the recognized political party entitled to the reserved symbol. The Court emphasized that in a democratic setup, numerical strength is paramount.[7] The APHLC case also touched upon internal party democracy, where the ECI's de-recognition based on a factional decision without broader membership consensus was found erroneous.[1]

Disputes in Unrecognized Registered Parties

The ECI's power to adjudicate internal disputes under Paragraph 15 is generally limited to *recognized* political parties. In cases like Apna Dal Through Its National President Krishna Patel & Another v. ECI, the Allahabad High Court noted the ECI's stand that disputes between splinter groups of a registered but *unrecognized* political party cannot be resolved by it under the Symbols Order.[23, 24]

ECI's Power to Revise Allotment and Address Grievances

The Returning Officer's allotment of a symbol is final, "except where it is inconsistent with any directions issued by the Election Commission in this behalf in which case the Election Commission may revise the allotment in such manner as it thinks fit."[8] Recent High Court cases, such as Vadlamuri Krishna Swaroop v. ECI and Rashtriya Praja Congress (Secular) v. Jana Sena Party, have raised questions about the ECI's powers to freeze an allotted symbol based on representations from other parties, especially unrecognized ones, and whether the ECI can sit in appeal over the Returning Officer's decisions without a finding of violation of law or ECI directions.[12, 13]

Judicial Review and the Bar under Article 329(b)

Article 329(b) of the Constitution bars interference by courts in electoral matters, stipulating that no election shall be called in question except by an election petition. This often arises in symbol allotment disputes. While the ECI's decisions under the Symbols Order (acting as a tribunal) are appealable to the Supreme Court,[1] challenges to allotment decisions during the election process may be constrained by Article 329(b).[12, 13, 18] However, the scope of this bar and the availability of judicial review for manifest errors or violations of natural justice remain pertinent issues.[18]

Nature and Significance of Election Symbols

The jurisprudence surrounding election symbols also clarifies their intrinsic nature and importance within the electoral framework.

Aid to Voters, Especially Illiterate Electorate

The necessity of symbols, particularly in a country with significant illiteracy, has been consistently highlighted by the judiciary. Symbols enable voters to identify parties and candidates easily, ensuring an informed choice.[5, 11] As observed in V.V Giri v. D. Suri Dora & Others, "Every candidate has to have a symbol the necessity for which arises because of the illiteracy of the general electorate."[11] The Delhi High Court in Janta Party v. ECI reiterated that symbols help millions of illiterate voters exercise their franchise effectively.[15]

Symbols as Identity, Not Property

While symbols are crucial for a party's identity and electoral prospects, they are not considered the "property" of the political party in a proprietary sense. In Janta Party v. ECI, the Delhi High Court opined that while a party has a legal right to exclusively use its reserved symbol, this does not make the symbol its property. Therefore, the ECI, to ensure fair elections, can deprive a party of its symbol for dismal performance.[15] The symbol is not "intellectual property" with monetary implications in this context.[15] The Supreme Court in Sadiq Ali also implied the non-proprietary nature by rejecting the division of a symbol between factions.[7]

Conclusion

The legal regime governing election symbols in India is a dynamic and intricate framework, with the Election Commission of India at its fulcrum. Endowed with plenary powers under Article 324 of the Constitution and guided by the Election Symbols (Reservation and Allotment) Order, 1968, the ECI plays a pivotal role in recognizing political parties, reserving and allotting symbols, and adjudicating disputes. The judiciary, through landmark pronouncements, has consistently upheld the ECI's authority while emphasizing principles of fairness, democratic functioning within parties, and the fundamental importance of symbols in ensuring an informed electorate. The distinction between recognized and unrecognized parties, the criteria for recognition, the "majority test" for resolving party splits, and the non-proprietary nature of symbols are key tenets of this jurisprudence. As India's democracy evolves, the legal framework for election symbols will continue to adapt, balancing the regulatory needs of a complex electoral system with the rights and aspirations of political entities and the electorate they seek to represent.

References

  1. All Party Hill Leaders' Conference, Shillong v. Captain W.A Sangma And Others (1977 SCC 4 161, Supreme Court Of India, 1977)
  2. Janata Dal (Samajwadi) v. Election Commission Of India (1996 SCC 1 235, Supreme Court Of India, 1995)
  3. Subramanian Swamy v. Election Commission Of India Through Its Secretary (2008 SCC 14 318, Supreme Court Of India, 2008)
  4. Samajwadi Forward Bloc Party Rep. By Its National President v. Election Commission of India, New Delhi, rep. by its Secretary & Another (2019 ALT 3 280, Telangana High Court, 2019)
  5. Kanhiya Lal Omar v. R.K Trivedi And Others (1985 SCC 4 628, Supreme Court Of India, 1985)
  6. Desiya Murpokku Dravida Kazhagam (DMDK) And Another v. Election Commission Of India (2012 SCC 7 340, Supreme Court Of India, 2012)
  7. Shri Sadiq Ali And Another v. Election Commission Of India, New Delhi And Others (1972 SCC 4 664, Supreme Court Of India, 1971)
  8. Sri Ram Autar v. Kr. Satyabir (Allahabad High Court, 1978)
  9. Desiya Murpokku Dravida Kazhagam (DMDK) And Another v. Election Commission Of India (Supreme Court Of India, 2012) [referring to promulgation of Symbols Order and Para 18]
  10. Samyukta Socialist Party v. Election Commission Of India And Another (Supreme Court Of India, 1966)
  11. V.V Giri v. D. Suri Dora & Others (Supreme Court Of India, 1959)
  12. Vadlamuri Krishna Swaroop v. THE ELECTION COMMISSION OF INDIA (Andhra Pradesh High Court, 2024)
  13. RASHTRIYA PRAJA CONGRESS (SECULAR) v. JANA SENA PARTY (Andhra Pradesh High Court, 2024)
  14. Kanhiya Lal Omar v. R.K Trivedi And Others (Supreme Court Of India, 1985) [referring to ECI power under Art 324 and Rules 5 & 10]
  15. JANTA PARTY THROUGH ITS PRESIDENT v. ELECTION COMMISSION OF INDIA (Delhi High Court, year not specified in provided text, assumed post-2008)
  16. Asok Pande And Another Petitioners v. Election Commission Of India And Another Opposite Parties (Allahabad High Court, 2010)
  17. Roop Lal Sathi v. Nachhattar Singh Gill (1982 SCC 3 487, Supreme Court Of India, 1982)
  18. Manda Jaganath v. K.S Rathnam And Others (2004 SCC 7 492, Supreme Court Of India, 2004)
  19. Pothula Rama Rao v. Pendyala Venakata Krishna Rao And Others (2007 SCC 11 1, Supreme Court Of India, 2007)
  20. Shri Sadiq Ali And Another v. Election Commission Of India, New Delhi And Others (1972 SCC 4 664, Supreme Court Of India, 1971) [referring to details of INC split]
  21. Desiya Murpokku Dravida Kazhagam (2) And Another v. Election Commission Of India (2011 SCC 4 224, Supreme Court Of India, 2011)
  22. Sushil Kumar Dhara… v. The Election Commission Of India And Others… (Calcutta High Court, 1972)
  23. Apna Dal Through Its National President Krishna Patel & Another v. Election Commission Of India Nirvachan... (Allahabad High Court, 2017)
  24. Apna Dal Thru. National President Smt. Krishna Patel & Anr. v. Election Commission Of India And Anr. (Allahabad High Court, 2016)
  25. Constitution of India
  26. Representation of the People Act, 1951
  27. Conduct of Elections Rules, 1961
  28. Election Symbols (Reservation and Allotment) Order, 1968
  29. Mohinder Singh Gill v. Chief Election Commissioner (1978) 1 SCC 405
  30. Bharat Bank Ltd. v. Employees of Bharat Bank Ltd. (1950)
  31. Durga Shankar Mehta v. Thakur Raghuraj Singh (1955)
  32. Associated Cement Companies Ltd. v. P.N. Sharma (1965)
  33. A.C Jose v. Sivan Pillai (1984) 3 SCR 74: (AIR 1984 SC 921)