Paragraph numbers below are the court’s original numbering, recovered from the source text.
19. Paragraphs 6A and 68 set out conditions for the recognition of a registered unrecognized party as a National Party and a State Party and Paragraph 6C deals with conditions _for continued recognition as a National or State Party. The outcome of the Election Symbols Order, 1968, is that certain norms have been laid down in order to minimize the number -of parties contesting an election since many persons forming themselves into a political party tend to take C advantage of the other liberal provisions of the Order.
20. Mr. Venugopal urged that even prior to the Notificatiort of 1st December, 2000, certain other amendments had been effected to the Election Symbols Order, 1968, in 1997 and D 1999, whereby Paragraphs 10 and 10A were substituted. For instance, certain concessions are provided that if a political party, which is recognized as a State Party in some State or States, sets up a candidate at an election in a constituency in any other State or Union Territory in which it is not a recognized party, then such candidate may, to the exclusion of other candidates of the constituency, be allotted the symbol reserved for that party in that State or States, in which it is recognized as a State Party, notwithstanding that such symbol is not specified in the list of "free" symbols for such other State or F Union Territory, upon fulfillment of further conditions, namely, "(a) that an application is made to the Commission hv the said party for exclusive allotment of that symbol to the ~andidate set up by it, not later than the third day after G the pui.JH,.~tion in the Official Gazette of the notification calling the election; (b) that the said candidate has made a declaration in his nomination paper that he has bee" ~et up by that party at H c the election and that the party has also fulfilled the requirements of clauses (b), (c), (d) and (e) of paragraph 13 read with paragraph 13A in respect of such candidate; and (c) that in the opinion of the Commission there is no reasonable ground for refusing the application for such allotment. Provided that nothing contained in this paragraph shall apply to a candidate set up by a State Party at an election in any constituency in a State in which that party is not a State Party and where the same symbol is already reserved for some other State Party in that State."
21. Paragraph 1 OA makes similar concessions in respect of candidates set up by an unrecognized party which was earlier recognized as a National or State Party. Mr, Venugopal submitted that Paragraph 6A, as amended, was highly arbitrary and negatively impacted upon the functioning and development of a multi-party democracy. Learned counsel submitted that the E right to cast a vote allows a voter to make an intelligent choice, but unfortunately he is often unable to identify the political party to which a candidate belongs in addition to identifying a candidate. According to Mr. Venugopal, it is the percentage of the votes obtained at the previous elections which alone should be the criteria for recognition of a State Political Party and not F the number of seats such party wins. Mr. Venugopal showed us several instances where even with a lower percentage of votes than other parties, a political party has come to power and has formed the Government. Mr. Venugopal urged that rather than the number of seats won, the number of votes polled G by a· State Political Party should really be the yardstick for recognition of a State Political Party.
22. It was submitted that the interim arrangement which had been made by the order dated 27th March, 2009, could H be continued for the present General Elections as well. DESIYA MURPOKKU DRAVIDA KAZHAGAM v. THE 929 ELECTION COMMN. OF INDIA [ALTAMAS KABIR, J.]
23. Adopting Mr. Venugopal"s submissions, Mr. Mukul . Rohtagi, learned Senior Advocate, appearing for the Writ Petitioner, Kongunadu Munnetra Kazhagam, in Writ Petition (C} No.315 of 2009, contended that ln the 2009 Parliamentary Elections the party had contested 12 out of 39 Parliamentary seats and "Gas Cylinder" as a symbol was allotted to all twelve candidates. In fact, the identity of candidates set up by the party came to be r:–:• •ated with the "Gas Cylinder" symbol and not as a free symbol, so much so that candidates who were provided with "Gas Cylinder" as an election symbol in other constituencies where the party had not put up any candidate, c benefitted and had polled a large number of votes which they had never expected to get.
24. All the other learned counsel appearing for the other Writ Petitioners and Special Leave Petitioners, while adopting Mr. Venugopal's submissions; in one voice urged that the candidates to be put up by them as registered but unrecognised political parties may be provided with a common symbol in the constituencies in which they contest and such symbol may not be made available to other candidates as a free symbol. It was urged, as had been urged by Mr. Rohtagi, that after an election, voters come to associate the candidate of a party with the symbol under which he had fought the earlier election.
25. In reply, it was contended by Mr. Ashok Desai, learned Senior Advocate, appearing for the Election Commission that there were only a limited number of election symbols available . as free symbols to the Election Commission and if all the registered unrecognized parties were to be accommodated by an interim arrangement in direct contrast to the Election Symbols Order, 1968, framed by the Election Commission, it would really amount to achieving something by an interim order which it could not achieve under the existing laws. Mr. Desai submitted that in its wisdom, the Election Commission had made certain Orders which, in its view, would contain the vice of fragmentation of seats leading to ultimate uncertainty in the A House. Mr. Desai contended that a great deal of thought and deliberation had gone into the making_ of the amendments in 2000 and 2005 in the Election Symbols Order, 1968, which ought not to be diluted for the purpose of making an interim arrangement as had been done earlier.
26. As we have indicated hereinbefore, the major challenge in these Writ Petitions and the Special Leave Petitions is to the validity of paragraph 6A of the Election Symbols Order, 1968, as it exists today. Keeping the same in mind, we have C looked into the un-amended as well as the amended provisions of the Election Symbols Order, 1968. As on date, paragraph 6B as notified under Notification No.56/2000/JUD-lll dated 1st December, 2000, for the purpose of recognition of a State Party is in force and it provides that in order to be recognized as a State Party, a Political Party, other than a National Party, shall D be treated as a recognized State Party in a State or States, if and only if, either the candidates set up by it at the last General Elections to the House of People or to the Legislative Assembly of the State concerned had secured not less than six per cent of the total valid votes polled in that State at the General E Elections and in addition, it has returned at least two members to the Legislative Assembly at the State in the last General Elections tci that Assembly. Of course, the said notification is the subject matter of challenge in the present proceedings and is in existence by way of delegated legislation. If interim F arrangement made earlier is to be continued it would be directly in violation of the said provisions. Such an arrangement cannot be made unless the operation of the impugned provision is stayed. At this stage we are not inclined to stay the impugned provision.
27. When the interim arrangements were made on 27th · March, 2009, the registered unrecognized political parties before the Court were only three in number, whereas presently many others have joined the bandwagon. What we are required H · to consider at this stage is whether despite the· above, any DES.IYA MURPOKKU DRAVIDA KAZHAGAM v. THE 931 ELECTION COMMN. OF INDIA [ALTAMAS KABIR, J.] prejudice would be caused to any of the stakeholders in the election procass, if such prayer was allowed. It would certainly be to the advantage of the registered unrecognized political : parties if they were able to put up candidates on a common symbol. On the other hand, if all registered unrecognized political. parties were to be provided with a common symbol, prima facie, it would render the provisions of the Election Symi:-~ 1 ~ Order, 1968, completely unworkable and destroy the very object it seeks to achieve ..
28. Having regard to the aforesaid two possibilities, we are not inclined to make any interim arrangementsimilar to that made on an earlier occasion. The earlier interim arrangement was possible on account of the lesser number of parties, but in the present circumstances, the same will not be workable in view of the number of candidates who are likely to contest the elections and are required to be provided wi.th free symbols in each constituency.
29. However, while we are not inclined to make any interim arrangement rGgarding the allotment of election symbols for the forthcoming General Assembly Elections, we make it clear that this is only a tentative view, which shall not, in any way, affect the final outcome ofthe pending Writ Petitions and Special Leave Petitions. We also make it clear that this order will not prevent the Election. Commission from considering any representati9:i that may be made by the political parties and from accommodating their prayer for a common symbol, to the ·extent practically possible.
30. Let these eleven Writ PetiUons and three Special Leave Petitions be listed for final disposal ori 3rd May, 2011. D.G. Matter adjourned.