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This Term Paper / Assignment / Project has been

submitted by

Mr.
S.Ananth Balaji

212024
ID No:

On....
Election Law

During the Monsoon Semester 2014-15


Laws relating to Election Symbols
in India

S.Ananth Balaji
212024

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WBNUJS,
Kolkata

Table of Contents
Introduction....................................................................................................................................5
Election Symbols and their Importance......................................................................................5
The Election Symbols Order, 1968...............................................................................................6
Positive features of Election Laws in India.................................................................................7
Categorization of Election Symbols..........................................................................................7
Allotment of Symbols.................................................................................................................7
Restrictions on allotment of Free Symbols and the Elephant Conundrum......................8
Revision of the Symbols Allotted to Political Parties..............................................................8
Status of Parties which lose recognition...................................................................................9
Is the Symbols Order Free from defects?...................................................................................9
Conclusion....................................................................................................................................11

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ACKNOWLEDGMENT
I would like to thank my college, The West Bengal National University of Juridical Sciences,
Kolkata (NUJS) and my professor, Ms. Mercy Khaute, for giving me the opportunity to do this
project on the Laws relating to Election Symbols in India as a result of which I have gained a
lot of knowledge.

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Introduction

T
his paper shall seek to examine the laws with respect to Election Symbols in India.
The researcher shall identify the positive aspects of the abovementioned laws.
Further, the researcher shall also look at the areas of concern with regards to these
laws and shall highlight those using recent controversies.

Election Symbols and their Importance

The founding fathers of our nation believed that it was essential for the people to choose their
leaders and hence instituted the principle of universal adult suffrage to govern elections in the
country.1Without doubt, this abovementioned concept has been the backbone of Indian
democracy. The entire process of elections is complicated and tedious in a country like ours
where illiteracy is a major area of concern. The aim of elections is to ensure that people have a
say in choosing their leaders, and if they are not able to read and write, it becomes difficult for
1M.P Jain , Indian Constitutional Law (5th, Lexis Nexis Butterworths Wadhwa, Nagpur 2005).

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them to understand for whom they are voting for.2 In order to remove this unfair handicap, the
Election Commission (hereinafter referred to as the EC) came up with the concept of using
symbols to classify different political parties, instead of using their names 3. Thus, the EC
introduced the concept of ballot boxes. Various ballot boxes were kept, each representing a
particular candidate and unique symbols were placed on each of them. Using these symbols, the
voters could identify for whom he/she wanted to vote for. This is how the concept of election
symbols came up in India.

In Samyukta socialist party v. Election Commission and Ors. 4, the Honble Supreme Court held
that the symbols were the very soul of the election system and the exercise of franchise would
not be possible without them. It is important for the political parties to reserve their symbols as
using these will help them maintain their propaganda and appeal 5. The Court once again stressed
the importance of election symbols in the Sadiq Alis case6. It held- Although the purpose which
accounts for the origin of symbols was of a limited character, the symbol of each political party
with the passage of time acquired a great value because the bulk of the electorate associated the
political party at the time of elections with its symbol.It is important for political parties to have
symbols as it brings a sense of pride and emotion into the minds of the people.

The Election Symbols Order, 1968

Until 1968, recognition of political parties and allotment of symbols were done on the basis of
the powers conferred under Article 324 of the Constitution and rule 5 of the Representation of

2Kiran Gupta and P.C Jain, Chawla's Elections- Law and Practise (9th, Bahri Brothers, New Delhi 2009)
1.167.

3 V.S. Rama Devi and S.K. Mendiratta , How India Votes (2nd, Lexis Nexis Butterworths Wadhwa) 550

4 AIR 1967 SC 898.

5 Rama Devi (n.3) 599

6AIR 1972 SC 187

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the People (conduct of elections and election petitions) Rules, 1951. There was no proper code
which governed matters relating to political parties and their recognition. Hence, in 1968, the
EC, using the power given to it under Article 324 of the Constitution and rules 5 and 10 of the
Conduct of Election Rules, 1961, decided to introduce a new code- The Election Symbols
(Reservation and Allotment) Order, 1968 (Hereinafter referred to as the Order)7.

As the Preamble suggests, the order was promulgated in the interest of purity of elections to the
House of the People and the legislative assembly of every state and in the interest of conduct of
such elections in a fair and efficient manner, for the specification, reservation, choice and
allotment of symbols for the recognition of political parties. Thus, the order contained all the
rules relating to recognition and registration of political parties, allotment of symbols etc., which
was previously not mentioned under any other statute. Further, Para 18 of the Order suggests that
the EC has the residuary power to deal with difficult or new situations for which solutions are not
already specified8. Hence, the EC has a lot of power in its hands to resolve any sort of dispute in
the field of elections in India.

Positive features of Election Laws in India

Firstly, before we discuss the laws relating to election symbols, we need to understand that the
allotment of symbols to political parties is only done for the purpose of conducting the
Parliamentary and Assembly elections. Thus, the symbols system applies only in case of election
to the Lok Sabha and the State Legislative Assemblies. 9 This is because the people vote only in
the abovementioned elections and the symbols exist mainly to help those people who are not
literate.

7 Rama Devi (n.3) 555

8 Order 18 of the Election Symbols (Reservation and Allotment) Order, 1968

9 Rama Devi (n.3) 559

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Over the years, the election laws in India have served the country well through the stringent laws
and efficient functioning of the EC.

Categorization of Election Symbols


According to the Symbols Order, elections symbols are classified into two types, i.e. Reserved
and Free Symbols. According to Para 5 of the Order, an election symbol can only be allotted to a
Recognized National or State Party, and the symbols which are not reserved (referred to as Free
Symbols) can be allotted to unrecognized political Parties or Independent candidates. According
to Para 17 of the Order, the EC shall release a notification regarding the Political Parties which
have allotted reserved symbols and the free symbols which are available for the unrecognized
political parties and independent candidates. This classification has helped in removing any sort
of confusion while allotting symbols to the party and adhering to this rational allocation
mechanism removes arbitrariness and ensures fairness.

Allotment of Symbols
A National Party shall be allotted the symbol which has been reserved for it and shall not be
allotted any other symbol in other states. The reserved symbol will be the only one which is
being used by the National Party in all parts of the country 10. For e.g. The BJP will not be
allowed to use the Lotus symbol in one state and other symbols elsewhere. The symbol must
be used in all the states.A state Party shall be given a symbol that has been reserved for it and not
any other symbol.11 This reserved symbol shall be used by the state symbol in all parts of the
state. These rules ensure that the symbols system actually helps people and do not confuse
them. Further, since the political parties associate symbols with a sense of pride and emotion, the
rules ensure that they do not suffer from losing the benefits provided by those symbols.

Further, unrecognized political parties and independent candidates are allotted symbols from the
free list of symbols and if there is a clash between with regards to allotment of a particular
symbol, the former gets preference. Similarly, if there is a clash between two unrecognized
political parties or two independent candidates over the allotment of a symbol, then a draw of
lots is conducted in order to decide which candidate/party shall get the symbol. Thus, the

10 Para 8(1) of the Symbols Order

11 Para 8(2) of the Symbols Order

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symbols order ensures that the process of allotment of symbols in a fair and not an
arbitrary one.

Similarly, state parties are allowed to use their reserved symbols in other states provided they
fulfill certain conditions as specified under Para 10 of the Order. This Para encourages state
parties to establish their presence in states where they are not recognized and thereby gives the
people a wider forum to choose from. Therefore, this is another such provision which further
strengthens the principles of democracy.

Restrictions on allotment of Free Symbols and the Elephant Conundrum


In 1996, various state parties across India were using the same symbol- the elephant. However,
one of the Parties- the Bahujan Samaj Party (BSP) was recognized as a national party after the
elections in Uttar Pradesh. At this time, the other parties which were using the symbol refused to
let go of it, stating that they would lose out a lot. To please the Majority of the state parties, the
EC asked the BSP not to contest elections in the states where the other state parties were using
the same symbol. To prevent such unfortunate instances from occurring in the future, the EC
added Para 9 to the Order, which stated that if a free symbol was allotted to a party in a particular
state, it will not be allotted to any other party i.e. it cannot be free symbol, in other states.

Revision of the Symbols Allotted to Political Parties


Although the returning officers decision with respect to allotting symbols is final, Rule 10(5) of
the 1961 Rules suggest that if the allotment made is not in accordance with the directions of the
EC, then the order of the officer can be revised by the commission. This process is referred to
as Revision. The EC is to exercise the jurisdiction in compliance with article 324 and must
follow the principles of Natural Justice while revising the order12.

Status of Parties which lose recognition


Earlier, if a political party loses its recognition after a particular election, it would lose its
reserved symbol. In 2000, an amendment was made to Para 10A, thereby changing the
abovementioned rule. The modified Para 10A stated that even if a party had lost its recognition.
The party could reserve its symbol for a period of six years, provided it applied for the same to
the EC within a period of three days from the date of calling of the elections. Extremely

12Uma Ballav Rath v. Maheshwar Mohanty, AIR 199 SC 1322

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experienced and well recognized political parties sometimes suffer a huge defeat in the elections,
and it is very unfair to take away their symbol based on just one result. Thus, this was a positive
step taken by the EC since it gave the previously recognized political parties a chance to re-
establish themselves in the political arena.

Is the Symbols Order Free from defects?

Even though there are a lot of positives with respect to the laws relating to symbols in India,
there are a few issues which leave doubts in our minds. One of the main problems is the loosely
framed language of the Order, which has resulted in a few controversies recently.

The first thing that comes to our minds when we talk about election symbols is the controversy
relating to the construction of elephant statutes by the then Mayawati-led government in Uttar
Pradesh. The chief minister had ordered the construction of statues of elephants, which also
happened to be the symbol of the ruling party- The Bahujan Samaj Party (BSP), at various parks
and public places in both Lucknow and Noida. A petition was filed before the Election
Commission of India, requesting them to freeze the elephant symbol which was allotted to the
BSP13. Neither the Petitioners nor the BSP had denied that fact that the latter had used public
money to build these monuments and statues.Reservations of symbols are dependent on whether
the party is recognized as a National or a State Party. Para 16 A of the Order gives the
commission the power to derecognize any political party which does not abide by the Model
Code of Conduct (MCC) during the election period. Therefore, this is the second way of freezing
the symbol of a party.

Para VII of the MCC states-

The party in power whether at the Centre or in the State or States concerned, shall ensure that
no cause is given for any complaint that it has used its official position for the purposes of its
election campaign14

13Election Commission of India Order, <http://eci.nic.in/eci_main/ElectoralLaws/Final_BSP_Order.pdf>


last accessed, September 7th, 2014.

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After analyzing the facts of the case, the commission explained that the construction of statues
using public money resulted in the failure of the party to comply with the provisions of the MCC.
The commission, using the powers given to it by Article 324 ordered for necessary steps to be
taken in order to ensure that the statues did not affect the level playing field and give undue
advantage to BSP vis--vis other political parties. However, it did not completely freeze the
symbol.

Another instance where the usage of party symbol created a stir was during the Tamil Nadu
phase of the 2014 General Elections. The Chief Minister of Tamil Nadu, J.Jayalalitha, had
introduced mini bus services across Chennai and these had paintings of the AIADMKs two
leaves symbol. The Election Commission held that these paintings were in contravention with
the MCC and ordered for the paintings to be removed or hidden from the buses since it would
create an unfair playing field during the time of elections. Further, the Election Commission also
ordered for the two leaves symbol to be removed from the government manufactured water
bottles in order to ensure a free and fair election.

However, the two abovementioned orders have been heavily criticized and these criticisms can
eventually be summarized by forming the following question: If statutes of elephants and
paintings of leaves are ordered to be removed/ covered, then what would happen to parties who
were using symbols such as the sun, hand, bicycle, sickle etc?

However, it is quite simple to answer this question and remove any doubts with respect to the
correctness of the abovementioned decisions. The answer lies in the MCC, which comes into
force from the day of the release of the notification by the EC, calling for elections. The MCC
suggests that a political party shall not use its official position for the purpose of election
campaigning. It is not mentioned in any statute that political parties are prohibited from
propagating their symbols using statues, posters etc. However, by reading all the laws relating to
elections together, we can gather that parties can do so only using their funds, and not the funds
of the state. Thus, merely because we see common objects like the bicycles on the road, we
cannot say that a political party must not be allowed to use the same as a party symbol. Only if

14 ibid

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the party misuses state funds to propagate its symbol can the EC step in and pass an order to
cover it.

The Symbols Order lays down the laws with respect to symbols, their usage and their allotment.
However, it does not contain laws which cover certain situations, such as the abovementioned
one, explicitly. The Order had been passed mainly to guide political parties go about their
campaigning, and if it misses out on key provisions, then it may cause lot of detriment to them. It
is true that all laws relating to elections must be read together, but one cannot expect the common
man to find implied meanings from the statutes. Therefore, the EC can avoid controversies such
as the ones mentioned above if it includes a set of guidelines that a party must follow with
respect to propagation of symbols during election campaigning period.

Further, it is true that Article 324 grants the EC a reservoir of power. However, the EC must
not sit back and try and claim jurisdiction through the wide ambit of the article. The EC must
formulate an order with respect to its area of jurisdiction under Article 324 separately so as
to avoid any questions of unconstitutionality of the Order or misuse of power.

Conclusion

After the promulgation of the Order, its constitutional validity of several of its provisions was
challenged many a time in the Supreme Court. In All Party Hill Leaders Conference v. Captain
WA Sangma15, the ECs power to settle disputes between political parties, as mentioned under
Para 15 of the Order, was challenged before the SC. The court stated that the power to make
rules under the order arose from Article 324 of the Constitution and rules 5 and 10 of the 1961
rules and hence, were perfectly valid. The court took the same view in the Sadiq Ali case16and
the Roop Lal Sathi case17. Later, the constitutional validity of the entire order was challenged in

15 AIR 1977 SC 2155

16 Sadiq Ali (n.6)

17 AIR 1982 SC 1559

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Kanhiya Lal Omar v. R.K.Trivedi and Ors18. However, the Supreme Court quickly rejected the
contention that the EC did not have the power to promulgate the order and held that act to be
well within constitutional limits and Article 324 were wide enough to grant the EC a reservoir
of power to conduct elections in a free and fair manner.

It is quite obvious that the EC has done a commendable job in framing the Order and it has
covered almost all areas of concern. Learning from its mistakes and experience, the EC has made
some very effective laws with respect to election symbols which have helped political parties
reach out to the common man and hence strengthen the base of Indian Democracy. However, by
making the language of the laws clearer and more specific, the EC can avoid a lot of difficulties
and at the same time, prevent parties from suffering.

18 AIR 1986 SC 111

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