CHENNAI: In the recent times, both the Dravidian majors have been increasingly asking their smaller allies not to contest on independent poll symbols. They prefer the smaller allies fighting elections using the recognised symbols of DMK and AIADMK. Even this time, the DMK wants MDMK and VCK to contest using its ‘Rising Sun’ symbol. The AIADMK also seems to have put forward a similar request.
The legal implication of such an arrangement between parties is not clear because they have not come under the scrutiny of the Election Commission or courts. Express spoke to a few members of the legal fraternity on the subject. While opinions were divergent, all of them agreed that the ramifications will be significant.
The basics
The Election Symbols (Reservation and Allotment) Order, 1968, is the overarching legislation governing poll symbols. A significant amendment was made to this order in the year 2000 – a sub-clause was inserted in Section 13 of the order, which said that a candidate must necessarily be a member of the particular political party to be eligible for the allotment of the symbol of the said party in the elections.
This means if a candidate is from an ally party, he or she must first enrol as a member of the first party on whose symbol they wish to contest. Senior members of legal wings of a few political parties agreed it’s a necessary formality, but not a major hurdle in doing otherwise. Any person can be enrolled into a party, even in the last minute before nominations are filed. But the real catch lies in another rule of the Election Commission.
One man, one party
The rule mandates that no person can be member of two political parties at the same time. The guidelines issued by the poll panel in 2010 specifically says that while applying for registration, an authorised party official must submit an affidavit declaring that none of their party member has membership in any other registered party.
Bylaws of both DMK and AIADMK also do not allow its prospective cadre to have membership in another party at the same time. So, does that mean a candidate contesting from ally party symbol will lose membership in his own party? Will Thirumavalavan and Vaiko, for instance, lose their party posts if they contest from ‘Rising Sun’ symbol? The answer isn’t clear.
The only similar case pending before the Election Commission is against KM Kader Mohideen of Indian Union Muslim League (IUML). He contested and won from the Vellore Parliament constituency in DMK’s symbol in 2004. A few members of the IUML subsequently filed petitions with the Election Commission saying Mohideen had lost the membership in IUML since he had declared himself to be a member of the DMK in the nomination papers. The case is still pending.
This may not cause any big harm, says a senior member of the legal team of a prominent party, as these are internal matters of the party concerned. “If the candidate wins the election, he will technically remain a member of the party in whose symbol he contested, for the next five years.”
“But, his parent party can, of course, amend its internal bylaws and make him an honorary president or general secretary. There is no need to have a basic membership for this.”
Rising trend
At least seven leaders of smaller parties contested polls using symbols of bigger fries in the last three general elections; some of them even won from AIADMK. None of them faced any trouble. This is also because these leaders have a strong hold over their own party and none from within have challenged their moves, unlike in the case of IUML’s Mohideen. Recently, VCK chief Thol Thirumavalavan recalled that he had contested from ‘Rising Sun’ symbol of DMK in 2001 and won the elections. However, the crucial difference is that VCK was not a registered political party during 2001 elections.
Who's the boss?
There was unanimous agreement among members of legal fraternity on one thing – a candidate winning from the symbol of another party will have to function under the control of the whip of that said party. In the eyes of EC, he is a member of the party in whose symbol he contested the election.
Senior lawyer K M Vijayan agrees. “Such arrangements take away the chances of the smaller parties to grow,” he says. “In future, the party cannot claim a permanent symbol for it in view of the votes it secured in that election,” says Vijayan. (A party must get at least 6 per cent votes and 2 MLAs to apply for recognition and a permanent symbol.) Vijayan says the votes secured by the smaller parties would only be considered as votes polled by party to which the symbol belongs.
Relevant laws
1 The Election Symbols (Reservation and Allotment) Order, 1968: Section 13s titled ‘When a candidate shall be deemed to be set up by a political party - For the purpose of an election from any parliamentary or assembly constituency to which this Order applies, a candidate shall be deemed to be set up by a political party in any such parliamentary or assembly constituency, if, and only, if -
Sub-clause (aa): the candidate is a member of that political party and his name is borne on the rolls of members of the party
2 Additional guidelines for Registration of political parties under section 29A of the Representation of the People Act, 1951: Para VII: An affidavit duly signed by the President/General Secretary of the applicant party and sworn before a 1st class Magistrate/Oath Commissioner/Notary Public to the effect that no member of the organisation is a member of any other registered political party...
3 Bylaw of DMK: Rule 5 titled “Membership” Section 2: Any person who is a member of any other political party or of any communal or religious organisation shall not be eligible for membership of the Kazhagam
Leaders who contested in other party symbols
2004 Lok Sabha polls
2016 assembly polls