Symbol case counter copy

IN THE HIGH COURT OF JUDICATURE AT MADRAS
(Special Original Jurisdiction)
W.P. No. 3953 of 2021

Tamizhaga Murpokku Makkal Katchi,
Rep. by Mr. Prabhakaran,
Legal Wing Secretary,
82/1, Fifth Street, Padmanabha Nagar,
Adyar, Chennai – 600 020. …Petitioner
vs.
The Secretary,
Election Commission of India,
Nirvachan Sadan, Ashoka Road,
New Delhi – 110 001. …Respondent

COUNTER AFFIDAVIT FILED ON BEHALF OF THE RESPONDENT
I, Satyabrata Sahoo, S/o. Narasingh Sahoo, aged about 50 years, having office at Nirvachan Sadan, Ashoka Road, New Delhi – 110 001, do hereby solemnly affirm and sincerely state as follows:-
1. I am the Chief Electoral Officer of Tamil Nadu, and I am well acquainted with the facts of the case from records. I respectfully sujbmit that I am filing this affidavit on behalf of the Respondent and I am authorised and competent to do so.
2. I respectfully submit that I have gone through the affidavit filed in support of the Writ Petition, and I deny the averments made therein except those that are specifically admitted herein.
3. I respectfully submit that the usage of symbols has been in vogue right from the first General Elections in 1952 and has been an irreplaceable tool in identifying and recognising the candidates contesting in an election. Especially considering that a large section of the voters was illiterate, the usage of symbols, especially, in a fair and rational way, became intrinsic to the conduct of fair elections. I respectfully submit that the Election Symbols (Reservation and Allotment) Order, 1968, which is in force today, was promulgated by the Election Commission under Article 324 read with Section 29A of the Representation of the People Act, 1951 and Rules 5 & 10 of the Conduct of Election Rules, 1961, with the intent of regulating the allotment and reservation of symbols by political parties during elections.
4. The Elections Symbol Order contemplates the classification of symbols and political parties under Para 5 of the Symbol Order; the symbols are classified as either ‘reserved’ or ‘free’. A ‘reserved’ symbol is reserved for a recognised political party for exclusive allotment to the contesting candidates set up by that party. All other symbols are ‘free’ symbols. Under Para 6, the political parties are classified as ‘recognised’ political parties and ‘unrecognised’ political parties. The recognised political parties are further classified into a National Party or a State Party.
5. I respectfully submit that the conditions for recognition as a State or a National Party are provided under Paras 6A, 6B and 6C. The recognition of parties is based upon the fulfilment of certain conditions in relation to enjoying a certain level of support among the electorate, which is identified by the electoral performance in the previous elections and is gauged through the percentage of voting and/or the number of seats.
6. It is submitted that along with Paras 6A to 6C, Para 7 also provides for rules in relation to the manner of recognition. Para 8 provides that candidates set up by recognised political parties shall be allotted the reserved symbol and no other symbol and also provides that, even if such parties do not contest in a particular constituency, such a symbol cannot be allotted to other candidates. Para 9 provides for restriction on allotment of symbols reserved to State Parties to parties in another State where the recognised State Party is not recognised. Para 10 provides for concessions to State Parties to be allotted their common symbols while contesting in elections in other States. I respectfully submit that Para 10A and 10B provides for concessions to candidates set up by political parties, those that have lost their recognition within 6 years and other unrecognised political parties, respectively. Para 12 provides the manner in which the symbols will be allotted in an election. Para 15 provides for the resolution of disputes. The copy of Election Symbols (Allotment & Reservation) Order 1968 is enclosed in the typed set and may be referred to as part and parcel of this affidavit.
7. I respectfully submit that, while the provisions for concession have been introduced recently, the distinctions of recognized and unrecognized political parties as well as State and National Parties are time tested and have proved necessary and convenient for the conduct of elections. I respectfully submit that the provisions of the Symbol Order have been challenged on various occasions and have always been upheld by the Hon’ble Supreme Court, in cases of Shri Sadiq Ali v. The Election Commission of India & Ors. reported in (1972) 4 SCC 664, Kanhiya Lal Omar v. R.K. Trivedi reported in (1985) 4 SCC 628, Subramanian Swamy v. Election Commission of India reported in (2008) 14 SCC 318 and Desiya Murpokku Dravida Kazhagam & Anr. v. Election Commission of India reported in (2012) 7 SCC 340. I respectfully submit that in the light of the above-said judgements of the Hon’ble Supreme Court, the question of the constitutional validity of the symbol order has been upheld and therefore, the pleas raised in the writ petition are not liable to be entertained. In any event, submissions in support of the provisions impugned in the writ petition, as to its constitutional validity and the rationale behind the same are elaborated below.
8. I respectfully submit that the conduct of elections in our country is a humongous task, considering the number of voters and contestants for every constituency. To encourage only serious candidates to contest elections and to see that candidates who have reasonable support among the public stand for elections, provisions for a minimum number of persons nominating a candidate and payment of deposit are contemplated under Sections 33 & 34 of the Representation of the People Act, 1951. Therefore, the laying of benchmarks for contesting elections are complementary to the conduct of fair elections and does not restrict the right to contest itself. For the basic purposes of identification of a particular political party, the reservation of symbols become necessary and desirable. However, such reservation cannot extend to all political parties because of various practical factors and limitations. It is therefore necessary that certain benchmarks are there to identify and reserve symbols to those political parties which meet those criteria or benchmarks. The criteria or benchmark for reservation under the Symbol Order is solely based on the performance of political parties in elections, which is evidence of support of the electorate. The Hon’ble Supreme Court in the case of Desiya Murpokku Dravida Kazhagam vs. The Election Commission of India (2012) 7 SCC 340, observed that,
53. The Election Commission has set down a bench-mark 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.
54. …The Election Commission has kept the said balance in mind while setting the bench-marks 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 symbol.
However, the reservation is also subject to continuing to meet the criteria and there is no right to any political party towards any particular political symbol. The Hon’ble Supreme Court in Subramanian Swamy v. Election Commission of India reported in (2008) 14 SCC 318 has categorically held that there is no intellectual property in a symbol and no party can claim a right to a symbol. It is submitted therefore that the reservation of a particular symbol to a political party is a convenience extended to both the political party and its voters. It is the experience of the Commission that in the present system of elections, symbols continue to be a necessary means of identification and people continue to recognize political parties by the symbol. Therefore, political parties having to campaign for new symbols every election does not help the system in any way and will only create uncertainty and confusion among voters. It is submitted that the continuation of recognition is not a random benefit given to any political party or any advantage here and is only the systemic recognition of the efforts put in by the political parties in view of the support it enjoys among the electorate and the same is only in interest of conduct of fair elections.
9. I respectfully submit in regard to the submission made in Paragraph 4 that though the literacy rate has increased to a large extent since the time of the first general elections, it cannot be denied that the usage of symbols is continuing to be a useful tool to recognise a candidate. Symbols have especially, in the age of political parties, aided the voters in clearly identifying the candidate of their preferred party. When it comes to the question of an inclusive voting process, the usage of symbols to identify candidates becomes irreplaceable and even if a very small minority continue to be illiterate, the requirement of symbols cannot be done away with. Even in achieving 100% literacy, the question of language will continue, as all those who are literate may not be uniformly acquainted with the languages. Even for those who are literate, the symbols constitute an easy way of identifying their preferred candidates. When there are numerous names of candidates, to read and identify the preferred candidate for voting is tedious and if the voter is already familiar with the symbol of the preferred candidate, the voting process is swifter and it is more convenient. Further, it is seen that in certain critical constituencies, persons with the same name as that of a prominent candidate are made to contest and even in the normal course, if candidates of the same name contest in a constituency, the usage of the symbol becomes indispensable to differentiate between the candidates. It is submitted that the electoral process is not merely about what works for the candidate or the parties, and the convenience of the voter is imperative and cannot be lost sight of. In the circumstances, it is learnt from the experience in conducting elections that the symbols have proven the most useful tool in identifying candidates by voters and any move to change it at present will be detrimental to the electoral process. It is denied that there is anything arbitrary or unnecessary in the usage of symbols even in the present circumstances.
10. I respectfully submit in regard to paragraph 5 that the situation in India cannot be compared with foreign jurisdictions in certain regards, as the number of voters, the number of candidates etc. are much more. The building of goodwill for a party or for a symbol due to good work is not antithetical to democracy and does not affect the freedom of voting in any way. To vote for a candidate either on his merit or because he is being set up by a political party, is a matter of the voter’s choice. The symbol remains only as a tool to identify the political party or a candidate and the goodwill for a symbol is the goodwill for a party. If a party loses a symbol, it is free for another party to earn it by meeting the criteria.
11. I respectfully submit in regard to paragraph 6 that the symbols used in elections are pictorial representations of objects which are identifiable in day-to-day life and containing no religious or communal signification. Hence political parties cannot develop any following based on a symbol alone, except by way of a reflection of good work done to the people. The submissions of the petitioner on the influence of symbols are its own perceptions and have no basis. It is further submitted that the right to get elected being a constitutional right is not fettered in any manner by the usage of symbols or reservation of it and the distinction between recognised political parties and other political parties which may include mere paper parties have already been upheld as valid by the courts of law.
12. I respectfully submit in regard to paragraph 7 that the political parties are prohibited from using public funds, government machinery etc., for the propagation of their election symbol. In case of any violation, such actions are bound to have consequences under paragraph 16A of the Symbol Order to the extent of withdrawal of the symbol. The submission of undue influence on voters’ minds and therefore that the usage of the symbol itself becomes a corrupt practice is far-fetched. It is submitted that if there is any case of misuse of the official machinery or public funds for the elections, the same may become a corrupt practice and a ground to set aside the election, which of course is a matter of trial and evidence. Further, it cannot be argued that the symbol system is violative of Article 19 (1) (a) of the Constitution as it only furthers the freedom of expression. Furthermore, the argument that the voters are misled by the political parties using symbols while being without any basis, on one hand, underestimates and diminishes the intelligence of the voter, on the other. In fact, in Paragraph 8, the petitioner itself states that even in the case of combined elections in local bodies, the rural voters are vigilant enough. It is submitted that the submission of the Petitioner that the allotment of reserved symbols leads to discrimination between the recognised parties and others by giving the former an advantage, is misplaced. If at all the usage of symbols in elections only furthers the freedom of expression. In this regard, it is relevant to note the first proviso to Para 10B(A)(iv) of the Symbols Order, which provides unrecognised parties with the option to propose 3 new symbols of their choice, as part of their list of preferred symbols, to be approved by the Election Commission. It is submitted that the enactment in no way curtails the freedom of political parties to choose/design a symbol of their choice, it only places necessary checks on such symbol attaining the status of a reserved symbol. Upon fulfilment of the necessary requirements, the symbol can be used as a common reserved symbol.
13. I respectfully submit that it cannot be in doubt that the recognised political parties and the other political parties constitute a different class. In the case of Rama Kant Pandey v. Union of India [(1993) 2 SCC 438], the creation of distinction between candidates of recognised parties and other candidates through grant of certain privileges to candidates of recognised political was challenged as artificial, inconsistent with the spirit of election law, discriminatory and giving important and special treatment to party system in a democracy. The Hon’ble Supreme Court rejecting the contention held that political parties constitute a separate class from other candidates and that the said classification was not violative of Articles 14, 19 and 21. The differentiation is based upon the support such a party enjoys among the electorate which would be a legitimate basis for differentiation in a democracy. There is no barrier for any new entrant in seeking recognition as the threshold laid in sections 6A to 6C are that of minimum. It is needless to state that if a recognised political party does not continue to enjoy the support of the electorate, it loses the recognition and eventually may stand at the same footing of any other political party. The recognition of a party is not a permanent status but it is a recognition of the support it enjoys in public at the given point of time. In the absence of any entry barrier, the system of recognition cannot be considered as arbitrary as every political party at one point of time ought to have breached the barrier to obtain recognition. This will apply to new political parties also, as it had to parties, which had come to the position of recognition, and which position remains, only as long as it enjoys the support of the electorate. A system of merit or a bench-mark at a threshold level to filter parties for certain benefits is with the intent of such benefit being conferred legitimately and in the absence of which, the very system becomes irrational and given to chance. Once the recognition is obtained by a party they automatically stand at a different footing from the new political party or an unrecognised party and are unequals and cannot be treated equally as that by itself would violate article 14.
14. I respectfully submit that while it is plausible that a new entrant into the political arena or a party that has lost its recognition and wants to get back into the fray, may not stand at the same level of the field, as a measure of level playing, the provisions in relation to concessions have been introduced in the symbol order. It is submitted that such concessions are extended for two elections to the political parties who are unrecognised and in those two opportunities, if the political parties do not breach the minimum threshold for recognition, then it is a reflection of the lack of sufficient support that it has with the electorate and therefore is disentitled to seek equal treatment with those parties which provenly enjoy a certain level of support from the electorate. It is submitted that the provisions for concession in Paragraph 10A of the Symbol order were challenged and were upheld in the cases of Subramanian Swamy v. Election Commission of India reported in (2008) 14 SCC 318 and Desiya Murpokku Dravida Kazhagam & Anr. v. Election Commission of India reported in (2012) 7 SCC 340.
15. I respectfully submit in regard to Paragraph 9 that the advantages cine-persons or breakaway factions have in starting a political party and a less gestation period are ground-level campaign and support factors and there cannot be a presumption of a clear-cut time period as a gestation period. There are instances to point out, of getting recognition out of the very first elections and even forming Governments. It is submitted that the concession is granted for unrecognized parties or for a particular symbol that could be used for two occasions. It is not a restriction on seeking concession for a common symbol in contesting elections itself. It is submitted that there is a distinction between a right and a concession. Recognizing that the new entrants are at a disadvantage, such concession is given to such parties and there is no justification, in extending such concessions beyond two elections, as, another interested new party or even an independent candidate is losing the opportunity of contesting in that symbol, which will get blocked if the concession is given continuously for a party, that despite two elections, has been unable to breach the minimum threshold.
16. I respectfully submit that the statistics pointed out in Paragraph 10 does not in any way reflect the fairness or the workability of the Symbols Order and is a political pattern on electoral support and factors. It is submitted that the concession can be granted only if the political party seeking it adheres to the condition of contesting a minimum number of seats. For, if it has no intention or means to contest a minimum number of seats, it is a clear indication that the party does not have the intention or means to become a recognized party. Secondly, as the choice of symbols is competitive in the sense that there are multiple persons who may want a particular symbol, there can be no justification in reserving a symbol for a party which does not contest a minimum number of seats and the same would be unfair to other candidates and political parties. Hence, the minimum condition that is sought for by the Commission from parties which are desirous of availing the concession is rational and justified.
17. I respectfully submit in regard to Paragraph 11 (in regard to Clause (Para) 10 of the Symbol Order) that among parties, those parties which have lost their recognition, constitute a different class from recognized political parties and fresh unrecognized political parties. It needs to be borne in mind that loss in a particular election may be a mere indication of a one-time dissatisfaction of the electors or a combination of other electoral factors. As much as a fresh political party has the right to contest with concession, a recognized party that has lost its recognition is also justified in seeking a chance to get back its recognition and the six-year embargo is a reasonable time for the same, which the Hon’ble Supreme Court has upheld in Subramanian Swamy v. Election Commission of India reported in (2008) 14 SCC 318. Further, a recognized State Party is presumed to enjoy a certain level of support among voters and in a democracy, is entitled to seek to expand its presence in other States. As such, the symbol cannot be allotted as a recognized symbol for any other political party, it is logical that the political party to which it has been reserved is allowed a concession when it contests in another State. However, as such parties continue to be differentially placed, there can again be no complaint of differential treatment of unequals.
18. I respectfully submit that the Hon’ble Supreme Court in Sadiq Ali v. ECI & Ors. [(1972) 4 SCC 664] observed that:
“34. A symbol is not a tangible thing nor does it generate any wealth, it is only the insignia which is associated with the particular political party so as to help the millions of illiterate voters to properly exercise their right to franchise in favour of the candidate of their choice belonging to a particular party. In the election process it is not merely the individual candidate’s personality or his identity that weighs with the voters. It is undoubtedly a very relevant factor but along with it the voter also can and does vote in favour of the party. It is under such circumstances that the symbol becomes relevant and important. However, all that it provides for is the essential association that it has with a particular party. The party concerned would have a legal right to exclusively use the same but that is not, in our considered opinion, a property of the party and, therefore, the Election Commission which is required to ensure free, fair and clean elections have every right to deprive a particular party with a dismal performance of that symbol. The Election Commission puts a clamp on the right of such a political party to use the symbol rightfully.”
Reiterating the same, the Hon’ble Madras High Court by it’s judgment dated 13.02.201 dismissed Desiya Makkal Sakthi Katchi v. CEC & Ors (W.P. No. 4084 of 2019).
19. I respectfully submit in response to the submissions made in Paragraph 11 that Rule 5 and 10 of Election Rules only prescribes that there will be a list. There is no conflict between what is provided in the rules and what is provided in the Symbol Order. They both function complementing each other. The essential contention herein was also made while questioning the powers of the Commission in framing the Symbols Order and was upheld in favour of the Commission. It is submitted that the said contentions, therefore, do not hold any merit. It is further denied that any symbol is reserved for a political party permanently.
20. I respectfully submit in regard to submissions made in Paragraph 13 & 14 that the request is not liable to be entertained as per the provisions of the Symbols Order and is in any case, as on the date infructuous.
21. In regard to the grounds, it is submitted that, though the petitioner argues that the allotment of reserved symbols violates Article 14 and 19(1)(a), it has not demonstrated therein, in what manner it is violative. The submissions made in the preceding paragraphs deal with the issue of how the various types of political parties which are identified are unequals and therefore, there can be no discrimination in having separate treatment. Further, the justification behind having the present system and the necessity to continue has also been elaborated above. It is further submitted that the ground of having a reserved symbol as an undue influence and therefore, a corrupt practise under Section 123(3) of the 1951 Act is far-fetched and untenable. A statutorily permitted Act cannot be a corrupt practice.
22. It is further submitted in regard to the ground that the enactment of Symbols Order providing for reservation of symbols is an arbitrary exercise of power, has already been set at nought by the Hon’ble Supreme Court in multiple cases. It is further submitted that the submission ground that Symbol Order provisions are in excess of Rule 5 and 10 of the 1961 Rules is also untenable as there is no restriction of such practice either in Rule 5 or 10 or in any other provision of law.
23. I respectfully submit that though the petitioner impugned various specific Paragraph/Clause(s), it does not elaborate the challenge to every clause and the averments are general. It is submitted that the provisions impugned have been validly issued and are in conformity with the principles of equality as laid down under our Constitution. Further, as the Hon’ble Supreme Court has already upheld the provisions and the Symbol Order as a whole on multiple occasions, the current writ petition is not maintainable and therefore, liable to be dismissed.
24. In the circumstances, it is prayed that this Hon’ble Court may be pleased to dismiss the writ petition and thus, render justice.

Solemnly affirmed at Chennai Before Me
on this the day of June 2021
and signed his name in my presence

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