Power of Election Commission to decide disputes relating to Splits and Election Symbols

Written by Kathi Thriveni

Graduate, BA LLB (Hons.), Alliance University, Bangalore


Source:DNA India


Disclaimer: Please note that the views expressed below represent the opinions of the article's author. The following does not necessarily represent the views of Law & Order.

Introduction


Political parties are being identified with their symbols more than in the name of their candidates. Without the symbols, the exercise of franchise by the majority of our citizens would be impossible because symbols play a key role in identifying the parties.In fact, the voters are asked to vote for this symbol or that symbol.[1]The Symbols system is applicable only in house of people and state legislative assemblies, reason being that common people vote and many of them by reason of illiteracy need assistance in the form of symbols to identify the candidate of their choice on ballot papers.


When a disagreement takes place while pursuing issues on policies or programs by a party or when a clash occurs because certain political leaders are trying to take control of the party affairs in a way beneficial to such leaders and their followers, they result in ‘splits’. In some cases, a smaller party ‘merges’ with a bigger party to be on the top or it merges by extinguishing their individual identities and forming a new political organisation. These political phenomena though not a direct concern, the election commission deals with the disputes relating to them.


Paragraph 15 of the Election Symbols (Reservation and Allotment) Order, 1968 (hereafter referred to as Symbols Order) provides that the Election Commission of India (ECI) is the only authority to decide issues on a split. The validity of the same has been upheld by the Supreme Court in 1971 on the ground that paragraph 15 is designed to serve the core object of the Symbols Order and that in case of a dispute between two or more groups in relation to allotting a symbol reserved for a political party is not set at nothing. It also raises a presumption when this kind of a power is vested with the election commission that it would be exercised in a fair and reasonable manner.[2]


Description


The contesting candidate is allotted with a symbol subjected to the provisions of Symbols Order.[3] To meet the objectives of the said order, symbols are classified into reserved and free[4] with timely amendments being made through a notification issued by the election commission containing the list of symbols reserved for ‘recognised’ and ‘registered unrecognised’ parties with reserved and free symbols respectively.


A Candidate set up by national/state party shall be allotted with the symbol reserved for such party[5] and if a candidate is not set up by a recognised national or state party its reserved symbol can neither be chosen nor be allotted to any other candidate in such constituency.[6] Candidates set up by unrecognised registered parties are allotted with free symbols from the list contained in Para 12 of Symbols Order.


The first major case of a split of a national party is that of the split of Indian National Congress in 1969 into two sections- Congress (J) and Congress (O), where election commission decided that Congress O retains the party symbol with a pair of bullocks carrying a yoke and the other section was given symbol of Cow with its calf.[7]


In Samyukta Socialist Party vs. Election commission and Ors[8] the court held, though there is no concern of the election commission into this aspect, but that the election symbol gives recognition to a political party, so in case of a split there could be a dispute between rival groups for the election symbol and certainly it should be settled by the election commission.


Analysis


When rival sections in the split of a political party want to register as a separate political party, the power vests with the election commission.

The administration and control of election is with the commission[9] and the political party should approach the commission to get itself registered.[10]


The case of Subramanian Swamy vs. Election Commission of India[11]considered the issue of whether the election commission has a right to take away a symbol, which is a property of that party. It was urged by the petitioner, well known Indian politician and economist, Dr. Subramanian Swamy that considerable intellectual exercise was put in, in deciding the election symbol and hence it becomes intellectual property and it cannot be taken away by any legislation.

The argument that symbols amount to property was rejected by the Supreme Court as it can never have the indications of concept of property.

The court denied that the symbol is an intellectual property when the concept of monetary implications is present and observed that for a political party under the Symbols Order, monetary angle is absent. It was also observed that regardless of how many groups the split resulted in, the symbol cannot be split and one of the rival sections gets to use that symbol and the other section would get another one.

Moreover, it was also contended in the above case that the disputes between splinter groups should be decided by civil courts and not by the election commission and that the issue raised was whether the election symbol is a property under the Symbols Order.[12] The Court denied the claim of party symbol to be a property and established that in case of a dispute between splinter groups the election commission has the power to decide the claims of election symbols exclusively and it is not for any ordinary court to decide on such disputes.


The constitutional validity of the election commission in deciding the disputes with regard to election symbols is vested with judicial powers and it has the jurisdiction to deal with the matters that fall under its purview. Questioning the constitutional validity of the election commission, an appeal was made to the court from an order of a tribunal, contending that the election commission is not a judicial tribunal and that an appeal cannot be made to the Supreme Court under Art. 136 of Constitution of India. However, the court held that ECI is a tribunal within the meaning of the said Article. Further, the Supreme Court reiterated the same and established that the election commission is vested with administrative as well as certain judicial power of the state.[13]


In deciding the disputes, the election commission may take time gathering enough material evidence but if they are so close to a general election, they would be given ad hoc recognition with linkage to their unified party and freeze the party's symbol advising the groups to contest in elections with temporary symbols and different names. In 2013, Karnataka Elections in the split of BJP party as BJP and KJP, KJP party had a temporary symbol, however a merger took place later.


In March 2017 election commission announced by-election to R K Nagar seat, Tamil Nadu. An interim order to freeze the two leaves symbol of AIADMK was issued by the commission and restricted both the groups on using the name and party symbol for by-poll, thus prohibiting its use in by-election. The ruling faction was given the name AIADMK (Amma) and the other faction was given the name Puratchi Thalaivi Amma (PTA), allotting hat and electric pole as the temporary symbols respectively. However, in August 2017, PTA and AIADMK (Amma) factions formally merged and the election commission allotted two leaves symbol to it.


Conclusion


If there is enough support in organisational and legislative wings of one splinter group about recognised party’s name and symbol, the election commission can decide the matter in favour of one faction permitting the other to register as a separate political party. For Example, in 2013 Karnataka elections, KJP got registered as a separate political party when BJP party had split into KJP and BJP.


Splits in formation of rival sections or groups of a registered unrecognised political party is not dealt under any provision. The Delhi High court held that the election commission has no mechanism to adjudicate rival claims of unrecognised political parties.[14] Hence, in cases of such splits, the election commission advises to settle disputes either within the party organisation itself or sort to court of law in deciding over the disputed claims.


[1] Samyukta Socialist Party vs. Election Commission and Ors., AIR 1967 SC 898

[2] Sadiq Ali and Another vs. Election Commission of India, AIR 1972 SC 187

[3] Election Symbols (Reservation and Allotment) Order 1968, S 4

[4] Ibid. S 5

[5] Ibid. SS 8(1) & (2).

[6] Ibid. S 8(3).

[7] Shankar Dayal (Dr) Sharma and Anr vs. Sadiq Ali & Ors., 47 ELR 1.

[8] Samyukta Socialist Party vs. Election Commission and Ors., AIR 1967 SC 898

[9] Constitution of India, 1950, Art. 324.

[10] Representation of People Act, 1951, S 29A.

[11] Subramanian Swamy vs. Election Commission of India, (2013) 10 SCC 500

[12] Representation of People Act, 1951, S 29A.

[13] All Party Hill Leader’s Conference vs. Captain WA Sangma and Ors., AIR 1977 SC 2155.

[14] Chandra Prakash Kaushik vs. Election Commission of India & Anr., LPA No. 522 of 2011decided on 16 March 2012


BIBLOGRAPHY


Books


  1. V S Rama Devi, S K Mendiratta, Election Laws, Practice and Procedure, 4th Edition, LexisNexis Butterworths, 2017.

  2. RN Choudhry, Election Laws and Practice in India, Orient Publishing Company, 2010.

  3. MP Jain, Indian Constitutional Law, 7th Edition, Lexis Nexis, 2014.

  4. P Rathna Swamy, Handbook on Election Law, Lexis Nexis, 2014.

Statutes

  1. Representation of People Act 1951.

  2. Election Symbols (Reservation and Allotment) Order, 1968.

  3. Constitution of India, 1950. (relevant provisions)

Databases

  1. SCC Online

  2. Manupatra

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