COUNTERMANDING OF POLL

Countermanding of poll under Section 52 of the R.P.Act,1951 on account of the death of a contesting candidate .

7. It is true that a State party recognised in one or more States may be granted concession by the Commission, on an application by that party under Para 10 of the Symbols Order and subject to fulfillment of conditions specified therein, allowing its candidates to use the symbol reserved for it in the State or States in which it is recognised, in an another State in which it is not so recognised as a State Party. But that would not make it a recognised as a State party in such other State where it is not so recognised for the purposes of the Symbols Order. Its candidates can ask for the concession of allotment of the party's symbol only in those specified constituencies in respect of which the Commission has granted the said concession and not in any other constituency. The grant of such concession would not carry with it the recognition of that party as a recognised State party in the constituencies concerned.

8. One of the essential attributes of recognition of a party in a State is the exclusive reservation of a symbol for that party in all constituencies, whether Parliamentary or Assembly, of that State. Its reserved symbol cannot be allotted in that State to any other candidate in any constituency even where the party has not set up its candidates. But this is not so in other States. A symbol reserved for a State Party in one State may be reserved for another State Party in an another State or even may be specified as a free symbol in such other States. If a State Party is granted the above mentioned concession under Para 10 of the Symbols Order to use its symbol in another State, its symbol may be allotted to its candidates only in those specified constituencies in relation to which it has been granted concession by the Commission. That symbol will be available for allotment to candidates of other registered-unrecognised parties and independent candidates in all other constituencies, if that symbol is specified as a free symbol in that State. Even if such symbol is not allotted or available for allotment to other candidates for the reason that it is not specified as a free symbol in that State, the legal position remains unchanged that such symbol is not exclusively reserved for that party in the said State as that party is not recognised State party in that State.

9. Another important aspect of recognition as a National Party or State Party in a State is that the party is supplied, free of cost, with copies of electoral rolls of every constituency in the State. No such grant of free copies of electoral rolls of every constituency in the State. No such grant of free copies of electoral rolls is available to any other party which is not recognised in that State, notwithstanding that it may be a recognised State Party in some other States and may have been granted the above-mentioned concession under Para 10 of the Symbols Order in the former State. Similarly, yet another major benefit of recognition of a party in a State is the facility of political telecast and broadcasts over the Doordarshan and AIR at the time of a general election in the State concerned. But such benefit is not extended in any circumstances to the political parties recognised in other States, notwithstanding the grant of above referred concession to such parties under Para 10 of the Symbols Order.

10. Viewed from all these angles, the logical conclusion is that the "recognised political party" for the purposes of section 52 of the Representation of the People Act, 1951 is only that party which is recognised either as a National Party or as a State Party in the State concerned and not a party which may be recognised in some other State. Otherwise, the whole distinction between the National and State Parties under the Symbols order would be obliterated for the purposes of said section 52, and the State Parties would be at par with the National Parties in all States and Union Territories (even in those States/Union Territories where they are not recognised as State Parties) which cannot be the intention of the law, as amended.

11. The above interpretation would also be in consonance with, and will further the object underlying the amendment made to the provisions of section 52. Under the amended provisions, the election is to be countermanded only on the death of a candidate set up by a recognised party and not on the death of a candidate set up by unrecognised party. This discrimination made in section 52 has been upheld by the Supreme Court as a valid discrimination and classification in the case of Rama Kant Pandey V. Union of India (Judgement Today 1993 (1) SC 340). As mentioned above, a party recognised as a State Party in one State is a registered-unrecognised party in other States and the death of a candidate set up by such party in a State in which it is not recognised should be considered at par with the death of a candidate of any other registered-unrecognised party.

12. Having regard to the above legal position, the election should not be countermanded under the amended section 52 of the Representation of the People Act, 1951 on the death of a candidate set up by a political party which is not recognised in the State concerned notwithstanding that the said party may be a recognised state party in some State and may have been given concession under Para 10 of the Symbols Order even in the constituency concerned.

13. The above may be brought to the notice of all the Returning Officers in the State/Union Territory.

14. The receipt of this letter be acknowledged by an immediate message.



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