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Case Comment

DMDK v. Election Commission of India (2012) 7 SCC 340


1. Introduction

India had a tryst with destiny on the eve of her Independence and became
eventually the largest democracy of the world. Parliamentary democracy was
obviously the choice because of her multifaceted diversities and pretty long
association with mother of democracies, the United Kingdom. The elections
in a democratic set up form the basis of gauging the public opinion, formal
expression of peoples voice or measured way of judging constitutional
governance through exercise of free and fair adult franchise. But of late,
the process of electioneering has suffered due to the indulgence of money
and muscle and less than transparent role of politicians. This is ideally the
case in which the above decision assumes importance. In this case, the
division bench of the Supreme Court, comprising of the present Chief Justice
of India, Mr. Justice Altamas Kabir along with Nijjar J, gave the majority
judgment and Mr. Justice J.Chelameswar, gave a dissenting judgment.
Certain important issues were involved in this case which need some
elaboration.

2. Matrix of the case:

The present writ petitions and SLP were filed challenging the constitutional
validity of the Amendment (in 2000 of the Election Symbols (Reservation and
Allotment) Order, 1968, substituting Para 6 with Para 6-A (i) and (ii). The
common grievance in all these writ petitions was with regard to the
amendment which mandated that in order to be recognized as a State Party
in a State, it would have to secure not less than 6% of the total valid votes
polled in the State and should also have returned at least 2 members to the
Legislative Assembly of the State. The Supreme Court upheld the
constitutional validity of the said amendment and dismissed the writ
petitions and the special leave petition filed against this constitutional
amendment in the Act.

The grievance of the Desiya Murpokhu Dravida Kazhagam (DMDK) is that it


had been refused recognition as a state party by the Election Commission of
India, although, it secured 8.33% of the valid votes in the Assembly
elections. Further grievance of the petitioners was that in view of the
amendment made to Para 6 of the Election Symbol Order, 1968, it had been
denied recognition on account of cumulative effect of the requirement that
political party would not only have to secure not less than 6% of the total
valid votes polled, but it had to return at least 2 members to the Legislative
Assembly of the State. It is the petitioners case that despite having secured
a larger percentage of the votes than was required, it was denied
recognition, since it failed to return 2 members to the Legislative Assembly.

The Election Symbols (Reservation and Allotment) Order, 1968 was


promulgated by the Election Commission of India, by virtue of powers
conferred on it by Article 324 of the Constitution, read with Section 29-A of
the Representation of People Act, 1951 and Rules 5 and 10 of the Conduct of
Election Rules, 1961. The primary object of this Order was to streamline the
provisions and procedure relating to recognition of political parties in the
conduct of elections. It was also envisaged to make registration of political
parties as a condition precedent for recognition so that their functioning
could be properly monitored, regulated and streamlined.

3. The Decision- An Appreciation

Upholding the validity of the said Order and the subsequent amendment to
Para 6 of the Election Symbol Order, the Supreme Court observed:

As the Preamble of the Symbols Order, 1968 states that, the same was
promulgated to provide for specification, reservation, choice and
allotment of symbols at elections in parliamentary and assembly
constituencies; for the recommendation of political parties in relation
there to and for matters connected therewith. It was also promulgated
in the interest of purity of elections to the House of People and the
Legislative assembly of every State and in the interest of the conduct
of such elections in a fair and effective manner. (Para 9)

The court reiterated the power of Election Commission to allot election


symbols as under:

The expression election in Article 324 of the Constitution is used in a


wide sense so as to include the entire process of election which
consists of several stages, some of which have an important bearing
on the result of the process but every norm which lays down a code of
conduct cannot possibly be elevated to the status of legislation or
even delegated legislation. There are certain authorities or persons
who may be the source of rules of conduct and who at the same time
cannot be equated with authorities or persons who are entitled to
make law in the strict sense. The Election Commission has been
clothed with plenary powers by Rules 5 and 10 of the Conduct of
Election Rules, 1961 in the matter of conducting of elections, which
includes the power to allot symbols to candidates during elections1.

The Election Commission according to the Court has laid down a benchmark
which is not unreasonable. In order to gain recognition as a political party, a
party has to prove itself and to establish its credibility as a serious player in
the political arena of the State. Once it succeeds in doing so, it will become
entitled to all the benefits of recognition, including the allotment of a
common symbol for the benefit of all the candidates set up by them at any
election.

The court tried to make a balance between the voters right to know and the
act of holding elections by observing:

No doubt, a voter has the right to know the antecedents of the


candidates, but such right has to be balanced with the ground realities
of conducting a State-wide poll. The election Commission has kept the
said balance in mind while setting the benchmarks to be achieved by a
political party in order to be recognized as a State party and become
eligible to be given a common election symbol2.

4. The Dissenting view: A prelude to Democratic right of


expression

The vital points raised in minority judgment rendered by Chelameswar J in


the case can be briefly enumerated as under:

i. In a democratic set up, while the majorities rule, minorities are


entitled to protection.
ii. It is said that democracy envisages rule by successive temporary
majorities. Such transient success or failure cannot be the basis to
determine the constitutional rights of the candidates or members of
such political parties.

1 The court relied upon the decision of the Apex Court in: Sadiq Ali v. Election
Commission of India ,(1972) 4 SCC 664; All Party Hill Leaders Conference v. Captain
W.A. Sangma, (1977) 4 SCC 161; Roop Lal Sathi v. Nachhattar Singh Gill (1982) 3
SCC ; Subramanian Swamy v. Election Commission of India ,(2008) 14 SCC 318.

2 Union of India v. Assn. for Democratic Reforms, (2002) 5 SCC 294; Peoples Union
for Civil Liberties v. Union of India, (2003) 4 SCC 399.
iii. The endeavour of all the political parties is to capture the State
power in order to implement their respective policies, professedly
for the benefit of the society in general. But it would be wrong to
assume that the defeated parties would be condemned forever by
the electorate.
iv. The enjoyment of the fundaments rights guaranteed by the
Constitution cannot be made dependent upon the popularity of a
person or an idea held by the person. If it were to be otherwise, it
would be the very antithesis of liberty and freedom.
v. The constitutional guarantees are meant to protect the unpopular,
the minorities and their rights.
vi. The restriction imposed under the impugned amendment has
created barrier for a political party to seek recognition or allotment
of a party symbol, thus violates Art.14 of the Constitution.
vii. Denying the benefits of a symbol to the candidates of a political
party, whose performance does not meet the standards set up by
the Election Commission, would disable such political party from
effectively contesting the election, thereby negating the right of an
association to effectively pursue its political brief3.
viii. In the United States, the right of individuals to associate for the
advancement of political beliefs and the right of the qualified voters
to cast their votes effectively are considered as the most precious
freedoms and are protected by the First and the Fourteenth
Amendments4.
ix. It is only much later (1996) certain legal rights and obligations came
to emanate from the factum of recognition or lack of it, such as
Sections 33 and 52, RP Act. Notwithstanding all these changes, the
constitutional right of a qualified citizen to contest an election to
any one of the legislative bodies created by the Constitution,
whether supported by a political party or not, be it a recognized or
an unrecognized political party, has never been curtailed so far5.

3 The learned judge relied upon the Kanhiya Lal Omer v. R.K.Trevedi ,(1985) 4 SCC
628; Subramanian Swamy v. Election Commission of India (2008) 14 SCC 318;

4 See Williams v. Rhodes, 21 L Ed 2d 24, p.31; 393 US 23 (1968) relied upon by the
learned judge.

5 The book written by S.K.Ramadevi and S.K.Mendiratta, How India Votes: Election
Laws, Practice And Procedure was referred to substantiate his views by the
dissenting judge.
5. The Judgment in Retrospect

The judgment under review has focused on an important issue: whether


denial of election symbol to a political party unable to return 2 members to
state Assembly under Para 6-A of Election Symbols order 1968, was justified
or not. It is a fact that the EC has the onerous duty to conduct elections,
where its impartiality, authority and dispensation of justice in matters related
to recognition, conduct of elections and all matters incidental thereto remain
of seminal importance. But it has at the same time, duty to see that all
sections of people especially the marginal and minority opinion gets its due
representation. The impugned amendment has virtually sidelined all small
political parties or associations to effectively participate in the electioneering
process, so there was need to question the vires of this amendment in terms
of voting rights of citizens. But it is submitted here that the majority opinion
in this case has not found any patent or latent defect in the impugned act of
EC debarring a political party to get election symbol even after getting a
sizable number of valid votes polled. This act on the part of EC obviously has
posed a threat to the democratic rights of the people especially for those
who usually sit at the fringe limits or form a minority view. The impugned
order of the EC had in fact created a sort of cushion for larger parties, while
as, the role of small and marginal parties seem to have been relegated to a
naught.

Mr. Goel who represented one of the petitioners, submitted on the authority
of the decision of a Constitution Bench6 that the voter has a right to know the
antecedents of the candidates based on the interpretation of Art.19(1)(a) of
the Constitution which unequivocally guarantees freedom of speech and
expression, so essential for a true democratic state7.

Chelameswar J reiterated this position by stating:

1 am of the opinion that this batch of petitions raises basic issues of


far-reaching consequences in the functioning of the democracy-which
We the People of India have solemnly resolved to constitute.

Similarly, in Wesbesrry v. Sanders the US Supreme Court remarked8:


6 Union of India v. Assn.of Democratic Reforms (2002)5 SCC 294.

7 Peoples Union for Civil Liberties v. Union of India (2006) 7 SCC 1.

8 11 Led 2d 481 : 376 US 1 (1976)


No right is more precious in a free country than that of having a
voice in the election of those who make the laws under which, as good
citizens, we must live. Other rights, even the most basic, are illusory if
the right to vote is undermined.

In Mohinder Singh Gill v. Chief Election Commissioner, speaking for the Court,
Krishna Iyer, J opined9:

Democracy is Government by the people. It is a continual participative


operation, not a cataclysmic, periodic exercise. The little man, in his
multitude, marking his vote at the poll does asocial audit of his
Parliament plus political choice of this proxy. It needs little argument to
hold that the heart of the parliamentary system is a free and fair
elections periodically held, based on adult franchise, although social
and economic democracy may demand much more.

The majority decision is based on the well grounded precedents and is a


reasoned decision but it is submitted that given the consequential effect on
right to expression through free and fair exercise of franchise, the minority
decision in this case seems to be more convincing. The Supreme Court itself
has set the example by declaring that where the effect of the precedent is
demonstrably inconsistent with the scheme of the Constitution, it becomes
the duty of the court to correct the wrong principle laid down 10. In nutshell, it
can be concluded that the Election Symbol Order 1968, in so far as it denies
the reservation of a symbol for the exclusive allotment of the candidates, set
up by a political party with insignificant poll performance is not free from
constitutional challenge. Let every person be free to chose and contribute
towards the democratic way of life as enshrined in our Constitution.

Dr. Fareed Ahmad Rafiqi* Department of Law,


University of Kashmir

9 (1978) 1 SCC 405.

10 See the observation of the court in Golak Nath v. State of Punjab, AIR 1967 SC
1643.