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The Republican Party of India Vs. the Election Commission of India - Court Judgment

LegalCrystal Citation
SubjectElection
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 1413 of 1973
Judge
Reported inILR1974Delhi509
ActsElection Symbols (Reservation and Allotment) Order, 1968
AppellantThe Republican Party of India
RespondentThe Election Commission of India
Advocates: G.L. Sanghvi,; A.K. Sanghi and; B. Kirpal, Advs
Excerpt:
.....satisfied by a political party to become a recognised political party. a party is recognised as a 'state party' if it satisfied the requirements for recognition under paragraph 6 in less then four states but at least in one state. that is to say, for the purposes of a state party like the petitioner, the general election consists of two parts, namely, (a) the general election to the house of the people in the particular state (maharashtra in respect of the petitioner) and (b) the general election to the legislative assembly of the said state. in 1972 the petitioner party failed to poll even 4 per cent of the total number of valid votes polled by all the contesting candidates in the general election to the legislative assembly of the state. the spirit of paragraph 7(3) is that it is only..........requirements for recognition under paragraph 6 in four or more states. a party is recognised as a 'state party' if it satisfied the requirements for recognition under paragraph 6 in less then four states but at least in one state. briefly, the minimum requirement for being recognised as a 'state party' is that such a party must poll at the general election in the state to the house of the people or to the legislative assembly not less than 4 per cent of the total number of valid votes polled by all the contesting candidates at such general election in the state. the' expression 'general election' is defined in paragraph 2(l)(f) to mean 'any general election held after the commencement of this order for the purposes of constituting the house of the people or the legislative assembly of a.....
Judgment:

V.S. Deshpande, J.

(1) Though the process of election to Parliament and the State Legislatures is a sine qua non to the functioning of democracy under our Constitution, the right to contest an election is a creature of the provisions of the Constitution, Statutes of Parliament and the Rules framed there under. An important matter for a candidate in fighting an election is to posses a symbol. The Election Commission of India has, thereforee, issued 'The Election Symbols (Reservation and Allotment) Order, 1968' (hereinafter culled the Order) under Article 324 of the Constitution read with Rules 5 and 10 of the Conduct of Election Rules, 1961 and all other powers enamling it to do so.

(2) The scheme of the Order is as follows. Symbol may be allotted to a political party or to an individual candidate not belonging to any party. Paragraph 6(2) (B) lays down the legal requirements to be satisfied by a political party to become a recognised political party. It is as follows:--

'6.Classification of political parties.- (2) A political party shall be treated as a recognised political party in a State, if and only if either the conditions specified in clause (A) are, or the condition specified in clause (B) is, fulfillled by that party and not otherwise, that is to say- (B) that the total number of valid votes by all the contesting candidates set up by such party at the general election in the State to the House of the People, or as the case may be, to the Legislative Assembly for the time being in existence and functioning (excluding the valid votes or each such contesting candidate in a constituency as has not been elected and has not polled at least one-twelfth of the total number of valid votes polled by all the contesting candidates in that constituency) is not less then four per cent of the total number of valid votes polled by all the contesting candidates at such general election in the State (including the valid votes of those contesting candidates who have forfeited their deposits.)'

(3) A party is recognised as a 'National Party' if it satisfies the requirements for recognition under paragraph 6 in four or more States. A party is recognised as a 'State Party' if it satisfied the requirements for recognition under paragraph 6 in less then four States but at least in one State. Briefly, the minimum requirement for being recognised as a 'State Party' is that such a party must poll at the general election in the State to the House of the People or to the Legislative Assembly not less than 4 per cent of the total number of valid votes polled by all the contesting candidates at such general election in the State. The' expression 'general election' is defined in paragraph 2(l)(f) to mean 'any general election held after the commencement of this Order for the purposes of constituting the House of the People or the Legislative Assembly of a State and includes a general election whereby the House of the People or the Legislative Assembly of a State in existence and functioning at such commencement, has been constituted'. The status of a party recognised as a State Party is lost in the manner described in paragraph 7(3) which reads as follows:-

'NOT With Standing anything contained in sub-paragraph (1), every political party which immediately before the commencement of this Order is in a State a recognised political party, other than a multi-State party as aforesaid shall, on such commencement, be a State party in that State and shall continue to be so until it ceases to be a State Party in that State on the result of any general election held after such commencement.'

'Not with standing anything contained in sub-paragraph (1), recognised party by polling not less than 4 per cent of the total number of valid votes by all candidates at a general election in the State. Similarly, it loses the said recognition if it polls less than 4 per cent of the total number of valid votes polled by all the contesting candidates at any general election in the State. The petitioner Republican Party of India was recognised as a State Party in the State of Maharashtra. Prior to the general election to the House of the People held in 1971, the Republican Party of India was split into factions each of which claimed the right to be represented by the symbol of 'elephant' which had been allotted to the party when it was recognised as a State Party in the State of Maharashtra. As the dispute could not be settled, both the factions of the party agreed before the Election Commission that the symbol of elephant should be frozen for the time being and should not be used by either of the factions. Such a dispute between factions each of which claims to be the political party was to be decided by the Election Commission under paragraph 15 of the Order. In view of the agreement between the parties, the Election Commission passed an order freezing the symbol with the result the general election of 1971 was contested by the different candidates of the Republican Party without using the symbol 'elephant'. In this general election of 1971 to the House of the People, the votes polled by the contesting candidates set up by the different factions of the Republican Party of India were less than 4 per cent of the total number of valid votes polled by all the contesting candidates at the election. Thereafter the High Court of Bombay directed the Election Commission to decide which of the factions was entitled to be called the Republican Party of India. The Commission thereupon decided the dispute between the factions and the petitioner was recognised as the Republican Party of India.

(4) Thereafter came the general election to the legislative Assembly in the State of Maharashtra in 1972. In this election also the total number of valid votes polled by all the contesting candidates set up by the petitioner party were less than 4 per cent of the total number of valid votes polled by all the contesting candidates at the said election. Thereupon Shri T. Swaminathan, Chief Election Commissioner of India passed the impugned order dated 14th March 1973 to the effect that 'the Republican Party of India should cease to be a recognised State party in the State of Maharashtra for the purposes of the Symbols Order'. The present writ petition is filed to challenge the validity of the said order on various grounds. Shri G. L. Sanghi, learned counsel for the petitioner, however, put forth only the following contentions in his oral argument before us. He argued that the definition of 'general election' in paragraph 2(1) (f) should be read conjunctively rather than disjunctively. That is to say, for the purposes of a State party like the petitioner, the general election consists of two parts, namely, (a) the general election to the House of the People in the particular State (Maharashtra in respect of the petitioner) and (b) the general election to the Legislative Assembly of the said State. He then argued that under paragraph 6(2) (B), a political party has two opportunities to be recognised as a State party, namely, (a) in the election to the House of the People in that State and (b) in the election to the Legislative Assembly of that State. If the total number of valid votes polled by all the contesting candidates set up by such a party at either of these two general elections is not less than 4 per cent of the total number of valid votes polled by all the contesting candidates at either of these general elections, then the party is entitled to be recognised as a recognised party in the State. Counsel, thereforee, argued that paragraph 7(3) which deals with the objection of the recognition of a political party should be read in conjunction with paragraph 6(2) (B) which deals with the recognition of a political party. So read, according to the counsel, a party should not cease to be a recognised party in the State unless and until the total number of valid votes polled by all the contesting candidates set up by such a party is less than 4 per cent of the total number of valid votes polled by all the contesting candidates at both the general elections in the State, namely, (a) the general election for the House of the People in the State, and (b) the general election for the Legislative Assembly of the State. In 1972 the petitioner party failed to poll even 4 per cent of the total number of valid votes polled by all the contesting candidates in the general election to the Legislative Assembly of the State. Counsel argued that this alone should not be sufficient to disqualify the party and the party must be given the chance of fighting the next general election in the State to the House of the People. Unless and until the party fails to poll 4 per cent of the total number of valid votes polled by all the contesting candidates in the State at such general election to the House of the People, the party should continue to be a recognised political party. Counsel further says that the results of the general election in 1972 should not be taken into account against the petitioner party because the factions in that party fought that election without the benefit of the symbol. The spirit of paragraph 7(3) is that it is only the failure of the party to poll the necessary number of votes with the help of symbol which should result in the loss of the recognition and also of the symbol which had been allotted to the recognised party.

(5) Shri B. N. Kirpal for the Election Commission has contested the validity of the petitioner's contentions. He points out that by the very definition of 'general election' the election to the House of the People in the State is in itself a general election. The election in that State to the Legislative Assembly is also a separate general election. It could not be contended that the two together constituted one general election. thereforee, the qualification to be recognised as a recognised political party in the State under paragraph 6(2) (B) as also the disqualification incurred resulting in the loss of the recognition and, thereforee, also of the symbol which had been allotted to the recognised party under paragraph 7(3) both arise out of the result of a single general election which may be either to the House of the People or to the Legislative Assembly in the particular State. As the petitioner party failed to poll the necessary percentage of votes admittedly in the election to the Legislative Assembly in Maharashtra in the year 1972, it was covered squarely by paragraph 7(3) of the Order and the Chief Election Commissioner's order could be upheld on that ground alone. Shri Kirpal further submitted that the result of the general election to the House of the People in the State of Maharashtra in the year 1971 need not be taken into account at all. The impugned order is severable. It can be supported by the result of the 1972 general election to the Legislative Assembly of that State. The question whether it can also be supported by the result of the general election to the House of the People in the year 1971 may be left open.

(6) The questions for decision before us, thereforee, are- (1) what is the meaning of a general election Must it include the general election to the House of the People in the State as also the general election to the Legislative Assembly of the State or whether it is confined to either of them? (2) Whether a party is entitled to be recognised as a political party in a State if it polls the necessary percentage of votes in either of these two general elections in the State under paragraph 6(2) (B) (3) Whether the recognition of a political party in the State is lost if it fails to secure the necessary percentage of votes at a single general election in the State or whether it cannot be lost until it fails to do so at both the general elections in the State, namely, (a) to the House of the People and (b) to the Legislative Assembly of the State and (4) Whether the order of the Chief Election Commissioner is severable in respect of the elections of 1971 and 1972

(7) Question No. 1: The definition in paragraph 2(1) (f) is clear to show that 'general election' for the purposes of this Order is confined to one general election which may be (a) either to the House of the People in that State or (b) to the Legislative Assembly of the State. The reason is not difficult to understand. A party may not be equally popular at the National and State levels. It must, thereforee, have the choice of securing the necessary percentage of the votes at either of the levels. Further, it is impossible to ensure that the elections to the House of the People and to the Legislative Assembly of the State would be held each time either simultaneously or one after the other as a part of one scheme. It could not be seriously contended, thereforee that general election must include not one but two general elections. We hold, thereforee, that either the election to the House of the People in the State or the election to the Legislative Assembly of the State would consitute a general election for the purposes of the Order. Question NO. 2: The word 'general election' in paragraph 6(2) (B) is used in the same sense. The necessary number of votes to get recognition as a political party in the State is to be polled by such a party in the words of paragraph 6(2) (B) 'at the general election in the State to the House of the People or as the case may be to the Legislative Assembly for the time being in existence and functioning'. The use of the word 'or' shows that the recognition could be obtained by winning the necessary percentage of votes in either of these elections. We find so.

(8) Question NO. 3: The correspondence between obtaining the recognition and losing the recognition so obtained is very close. Paragraph 7(3) must, thereforee, be read in the same manner as we read paragraph 6(2) (B) as being part of one scheme. As we said above it is a continuous process of see-saw. One after the other general elections go on taking place and a political party may win recognition in one. But such win cannot be permanent. It is liable to be continued by the next win in the next election or is liable to be lost in the next election. Again it may be won, continued or lost in the election thereafter. The argument that win at any one general election is sufficient for the recognition but the recognition connot be lost unless a political party once recognised fails to obtain the necessary percentage of votes in two consecutive elections to the House of the People and/or to the Legislative Assembly of the State cannot be sustained on the clear language of paragraph 7(3). We find so.

(9) Question NO. 4: The impugned order is clearly severable. It is sustained on the result of the election in 1972. Whether the result of election in 1971 should be taken into account against the party is left open at the request of the respondents. Since the order is severable, no question of it being vitiated by reference to the election of 1971 arises.

(10) The writ petition is, thereforee, dismissed but in the circumstances without any order as to costs.


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