Symbols and symbol disputes

Detail

1. Why symbols matter

• An election symbol is a party's identity on the ballot. Many early voters could not read, so they voted by picture. A symbol let them find their party on the ballot paper (now on the EVM).
• Symbols are still strong brands. Voters link a symbol to a party's history, leaders and loyal voters. Losing the symbol can mean losing those voters.
• The Congress's first symbol was a pair of bullocks. The opening cartoon of the Class 12 chapter recalls it. After the 1969 split, Congress (R) fought under the "cow and calf". The "hand" came later, after another split in 1978.
• The legal source is the Election Symbols (Reservation and Allotment) Order, 1968 ("Symbols Order"). The ECI issued it as S.O. 2959 on 31 August 1968 [2].
• Its legal basis is Article 324, which gives the ECI superintendence, direction and control of elections [2].
• This is read with Section 29A of the Representation of the People Act, 1951 (registration of parties) [2].

• It also uses Rules 5 and 10 of the Conduct of Elections Rules, 1961 [2].

• The ECI acts as a quasi-judicial body here (a body that is not a court, but hears both sides and decides disputes like one). It decides recognition and symbol disputes (NCERT Class 9, Elections).

2. Types of symbols (para 5)

• Under para 5, every symbol is either reserved or free [2].

Feature	Reserved symbol	Free symbol
Meaning	Kept for a recognised political party only. Only that party's candidates can get it [2]	Any symbol that is not reserved [2]
Area	All of India for a National party; only its own state for a State party	Listed by the ECI for each state
Who gets it	Candidates the party officially sets up	Independents and candidates of RUPPs
Examples	Lotus (BJP), hand (INC)	Items on the ECI's free-symbol list

• RUPP (registered unrecognised political party): a party registered with the ECI under Section 29A of the RP Act, 1951, that has not won enough votes or seats to be recognised as a National or State party.
• How free symbols are given out: the returning officer (the official who runs the election in a constituency) allots them [2].
• If only one candidate picks a free symbol, that candidate gets it [2].
• If an RUPP candidate and independents pick the same symbol, the RUPP candidate gets it [2].
• If candidates from two or more RUPPs pick it, the returning officer draws lots. A sitting member gets preference [2].

3. Common symbol for RUPPs (para 10B)

• A common symbol is one free symbol given to all of an RUPP's candidates in a general election, so voters see the same picture everywhere.
• The condition for an Assembly general election: the party must field candidates in at least 5% of the Assembly constituencies in the state. In states with 40 or fewer seats, the minimum is three constituencies [3].
• The party gets this benefit on the basis of its undertaking (a formal promise) to field candidates in that share of seats [3].
• A revised para 10B also gives RUPPs a second chance to apply for a common symbol [3].
• Related concession (para 10A): a party that lost recognition not more than six years before the election can ask for its old reserved symbol for its candidates [2].

4. Freezing a symbol

• Freezing means that, while a dispute is pending, neither rival group can use the party's reserved symbol.
• The usual steps [4]:
• Rival groups claim the party → the ECI freezes the reserved symbol.
• The ECI gives each group an interim symbol and an interim name.

• The ECI decides the para 15 case → the winning group gets the original symbol back.

• The danger of a long freeze: if the freeze lasts too long, voters may stop linking the symbol with the party. So the ECI must decide which group is the party and cannot wait indefinitely [4].

• Example: in October 2022 the ECI froze the Shiv Sena's bow-and-arrow before a by-election. The Thackeray group got "Shiv Sena (Uddhav Balasaheb Thackeray)" with a flaming torch. The Shinde group got "Balasahebanchi Shiv Sena".

5. Symbol disputes under para 15

• Para 15 (splinter groups or rival sections): this applies when rival groups of a recognised party each claim to be that party [2].
• The ECI looks at all facts and hears the groups and anyone else who wants to be heard [2].
• It then decides that one group, or none of them, is the recognised party [2].

• Its decision is binding on all the rival groups [2].

• Para 16 (merger): if two or more parties merge, the ECI decides whether the new party is a National or State party and which symbol it gets. The decision binds the new party and all its parts [2].

• What the ECI decides: the question is not which group represents the party, but which group is the party. The symbol follows from that answer (Sadiq Ali) [4].

6. Sadiq Ali v. ECI (1971)

• The case: after the 1969 split, both Congress groups claimed the Congress name and symbol. The Supreme Court upheld the ECI's power under para 15 and its decision.
• The tests the ECI used [4]:
• aims and objectives: which group stayed true to the aims written in the party constitution;
• party constitution: which group followed the party's own rules;

• majority test: which group had majority support in the organisational wing (party members and office-bearers) and the legislative wing (MPs and MLAs).

• What the Court said: in the facts of that case, the majority test was "not only germane and relevant but a very valuable test" [4].

• Why the majority test fitted then [4]:
• the INC was a democratic organisation, where numbers count;

• seats won in the legislature also decide whether a party is recognised.

• Later practice: after 1971 the ECI kept using the test of majority in the legislative and organisational wings [4].

7. The 1969 Congress split (Class 12)

• The two sides:
• The Syndicate: a group of senior organisational leaders, namely K. Kamaraj, S. Nijalingappa, S.K. Patil, Atulya Ghosh and N. Sanjiva Reddy;

• Indira Gandhi and her supporters.

• The 1969 Presidential election:

• The Syndicate made N. Sanjiva Reddy the official Congress candidate.
• Congress President Nijalingappa issued a whip (an official party order to vote a certain way) for Reddy.
• Indira Gandhi called for a "conscience vote" (vote as your conscience says, not as the party orders).

• V.V. Giri, an independent candidate, won.

• The split:

• Indira Gandhi was expelled in November 1969.

• The party divided into Congress (O) (Organisation, the Syndicate's group) and Congress (R) (the "Requisitionists", Indira's group). In the Sadiq Ali case it is called "Congress J", after its president, Jagjivan Ram [4].

• The result: the ECI treated Indira's group as the real Congress, and the Supreme Court upheld this in Sadiq Ali.

• The political test: in the 1971 Lok Sabha election, Congress (R) won 352 seats. This settled which group was the "real" Congress in practice.

8. Recent disputes

Party	Date of ECI decision	Outcome
Samajwadi Party	January 2017	Name and "cycle" symbol went to Akhilesh Yadav's group
AIADMK	2017	"Two leaves" symbol frozen first; later given to the merged E. Palaniswami–O. Panneerselvam faction
Shiv Sena	17 February 2023	Name and bow-and-arrow went to Eknath Shinde's faction
NCP	6 February 2024	Name and "clock" symbol went to Ajit Pawar's faction

• How the Shiv Sena case unfolded:
• Eknath Shinde filed a para 15 petition on 19 July 2022 [4].

• The ECI relied on legislative majority. It found that the party's 2018 constitution was undemocratic, so the constitution test could not be used.

• The criticism: a legislative-majority test can reward defectors. MLAs who leave a party in a group can then claim the whole party, its name and its symbol.

9. Subhash Desai v. Principal Secretary, Governor of Maharashtra (2023)

• The bench: a five-judge Constitution Bench headed by CJI D.Y. Chandrachud decided the case on 11 May 2023 [4].
• Key holdings on symbols and anti-defection [4]:
• Both proceedings can run at the same time. The Speaker (deciding disqualification under the Tenth Schedule, the anti-defection law) and the ECI (deciding under para 15) can act concurrently. One constitutional authority's work cannot be stopped to wait for another's decision.
• There is no fixed test. Under para 15, the ECI may use whatever test best suits the facts. Neither Sadiq Ali nor the Symbols Order makes legislative majority the only or main test.
• The legislative-majority test gets weaker when MLAs face disqualification. If the majority group may soon be disqualified, its claim stands on uncertain ground. So the ECI should not be limited to that one test.
• The Speaker's view is only prima facie. The Speaker may decide which faction is the party, but only for the disqualification case. This first-look decision does not affect the para 15 case.
• The Speaker must use the right party constitution. That means the version sent to the ECI before the groups split, which both sides had agreed to. The Speaker must also look at the party's leadership outside the Assembly.
• Numbers alone are not enough. The Speaker must not decide just by counting who has a majority in the Assembly. In the Court's words, "This is not a game of numbers, but of something more."
• The political party controls the whip. The political party, not the legislature party (the group of its MLAs), appoints the whip and the party leader in the House.
• The "split" defence is gone. The 91st Amendment (2003) deleted para 3 of the Tenth Schedule. So "split" is no longer a defence against disqualification.

10. Para 16A: suspending or withdrawing recognition

• What it allows: the ECI can suspend or withdraw the recognition of a National or State party if the party [2]:
• (a) fails or refuses to follow the Model Code of Conduct (MCC, the ECI's code of conduct for parties and candidates, issued in January 1991 and amended since), or

• (b) defies the ECI's lawful directions meant to keep elections free, fair and peaceful.

• Due process: the ECI must first give the party a reasonable chance to show cause (explain why action should not be taken) [2].

• Why it matters: this is the strongest legal sanction behind the MCC, which otherwise has no law to enforce it.
• First use: the National People's Party (Meghalaya), 2015 [5]:
• The party did not file its election expenditure statement for the 2014 Lok Sabha election. The deadline was 26 August 2014.
• The ECI issued a show-cause notice on 17 March 2015. The party missed the extended deadlines of 15 April and 15 May 2015.
• The ECI suspended its recognition. This was the first time it had done so for failing to follow its lawful directions.
• The ECI restored recognition on 1 July 2015 [6].

Prelims Hooks

• The Symbols Order, 1968 comes from Article 324, read with Section 29A of the RP Act, 1951 and Rules 5 and 10 of the Conduct of Elections Rules, 1961 [2]. It is not a separate Act of Parliament.
• Para 5 says every symbol is either reserved or free [2]. Para 15 covers splinter groups [2]. Para 16 covers mergers [2]. Para 16A covers suspending or withdrawing recognition [2].
• Under para 15, the ECI can decide that none of the rival groups is the party. Its decision binds all the groups [2].
• Para 10B: an RUPP gets a common symbol for an Assembly election if it fields candidates in at least 5% of Assembly seats, with at least 3 in states with 40 or fewer seats [3].
• Sadiq Ali v. ECI (1971): the three tests are aims and objectives, the party constitution, and majority in the organisational and legislative wings.
• Subhash Desai (2023): the Speaker and the ECI can act concurrently; the ECI may use any suitable test; the political party, not the legislature party, appoints the whip [4].
• First para 16A suspension: the National People's Party in 2015, for not filing election expenditure statements [5].
• Trap: in the 1969 Presidential election, V.V. Giri won as an independent candidate, not as the official Congress candidate. Congress (O) was the Syndicate's group, and Congress (R) was Indira Gandhi's.
• Trap: Shiv Sena went to the Shinde faction on 17 February 2023; NCP went to the Ajit Pawar faction on 6 February 2024.

Mains Points

• Legislative majority versus party organisation. Since 1971, using legislative majority under para 15 has made symbol disputes a contest of MLA numbers. This can reward defection, which the Tenth Schedule is meant to stop. Subhash Desai (2023) said the test is weaker when legislators face disqualification and asked the ECI to choose the test that suits the facts. Reform idea: give more weight to the party constitution and organisational support, checked against records filed with the ECI before the split [4].
• Two forums, possibly two answers. The Speaker and the ECI can decide at the same time and may reach different answers about which group is the party. The Speaker's view is only prima facie, but there is no rule on which comes first [4]. Proposals: time limits for the Speaker, and moving disqualification cases to a neutral tribunal or to the President or Governor on the ECI's advice.
• Internal party democracy is the root problem. The Shiv Sena's undemocratic 2018 constitution left the ECI unable to use the constitution test. Possible fixes: ECI checks on party constitutions and on regular internal elections, backed by law.
• Symbols and fair elections (GS-II). Long freezes hurt parties and confuse voters [4]. Para 16A gives the MCC real teeth [2][5]. But because the Symbols Order rests on Article 324 rather than a law passed by Parliament, some argue for a separate statute on parties and symbols.