While the formation of political alliance of opposition parties “I.N.D.I.A.” (Indian National Developmental Inclusive Alliance) has stirred politics and political landscape in India, it has also opened the pandora’s box and created a furore about the registrability or use of name of a political alliance as I.N.D.I.A[1]
The whole cacophonous debate compels to ponder whether the 26 political parties while deliberating on the united strategy overlooked laws pertaining to improper use of certain names in India.
Article 1 of the Constitution of India, 1950, declares that the name of the Union is “India” or Bharat. The Constitution does not expressly prohibit use of the name India for any purposes. However, naming anything identical to the name of the nation is an unusual occurrence and is bound to lead to obscurity. There are numerous parties across the world where the name of the country is a part of the name of political party, however having a name identical to name of country is a rarity and indicates an intentional branding strategy.
Can the term I.N.D.I.A. be registered or used as name of Political alliance?
To analyse this aspect, let’s delve into the laws prohibiting and restricting use of certain names in India.
The Emblems and Names (Prevention of Improper Use) Act, 1950
The legislature formulated Emblems and Names (Prevention of Improper Use) Act, 1950 with the object to prevent improper use of prescribed emblems and names for professional and commercial purposes. Such emblems and names are enlisted in the Schedule appended to the Act.
The Act under Section 3 provides that “no person[2] shall, use or continue to use, for the purpose of any trade, business, calling or profession, or in the title of any patent, or in any trade mark or design, any name or emblem specified in the Schedule or any colourable imitation thereof without the previous permission of the Central Government.”
The Relevant extract of the Schedule is reproduced herein below:
“[4.The name, emblem or official seal of the Government of India or of any State, or any other insignia or coat-of-arms used by any such Government or by a Department of any such Government.]
[6.The name, emblem or official seal of the President, Governor, 5 * * * 6 [Sadar-i-Riyasat] or Republic or Union of India.]
[7. Any name which may suggest or be calculated to suggest— (i) the patronage of the Government of India or the Government of a State; or”
From the aforesaid it is categorical that the use of the term I.N.D.I.A. may be prohibited by the Emblems and Names (Prevention of Improper Use) Act, 1950 for professional and commercial purposes.
However, there exists obscurity whether functions performed by a political party can be termed as professional and commercial purposes as the purpose for which a political party is formed is contesting of elections.
PIL to prohibit BCCI from using the name “India”
In a case of 2019, Geeta Rani v. Union of India[3], a PIL was lodged by one namely, Geeta Rani to issue a direction to de-register BCCI as it included the name of Nation “India” as the same was in violation of Section 3 of The Emblems and Names (Prevention of Improper Use) Act, 1950, which as mentioned aforesaid prohibits use of certain names and emblems for commercial and professional purposes.
The Madras High Court in the case held that Section 3 of the Act did not apply to BCCI as it is not a body which carries on any trade, business, calling or profession.
At present there are atleast 3 recognized National Parties in India which have used the term “India” in their political party name:
- All India Trinamool Congress
- Communist Party of India
- Communist Party of India (Marxist)
Additionally, there are several other State Parties who have used the term “India” in their party’s name. However, there is no political party that has used the sole word “INDIA” as its name.
Trademark Act, 1999
The Trademark Act of 1999 under Section 9 provides for the Absolute grounds for refusal of registration of trademarks and states under Section 9 (2)(d) that a mark shall not be registered as trademark if its use is prohibited under the Emblems and Names (Prevention of Improper Use) Act, 1950.
Hence, names that are prohibited from improper use under the Emblems Act is also expressly prohibited under the Trademark Act. This implies that any such mark filed with the Registry will face objection under Section 9 of the Trademark Act, 1999.
However, it is to be noted here that in India, a political party is not under any statutory obligation to register its name under the Trademark Act. Hence, the restrictions under the Trademark Act are not applicable while naming a political party/ alliance.
A political party in India to be recognized is to be mandatorily registered under the Representation of People Act, 1951.
The Representation of People Act, 1951
Section 29A of the Representation of People Act of 1951 provides for registration with the Election Commission of associations and bodies as political parties.
- The provision under Section 29A provides that a party seeking registration under the Act has to submit an application to the Commission within a period of 30 days from the date of its formation.
- Thereafter, as per the prescribed Guidelines, the Election Commission will direct the political party to publish the proposed Name of the party in two national daily newspapers and two local daily newspapers, for submitting objections if any. A time of 30 days is given to object the proposed name of the party[4].
- The Notice is also published on the website of the Election Commission.
It is pertinent to mention over here that the Act does not expressly prohibit or provides parameters based on which “name” of a political party can be determined.
The High Court of Madras in the case of Desiya Deiveega Murpokku vs Election Commission Of India[5], while setting aside an order passed by the Election Commission of India had noted that “the statutory provision does not specify any detailed parameters with regard to proposed name and that the name of political party should conform with the tenets of principles of socialism, secularism and democracy, and uphold sovereignty, unity and integrity of India”.
In this case, the Election Commission of India had refused registration of name of political party as Desiya Deiveega Murpokku Kazhagam, on the grounds that the name contained word with religious connotation.
Does Representation of People Act cover “political alliance”?
It is pertinent to mention herein that the Act of 1951 defines a “political party” - as an association or a body of individual citizens of India registered with the Election Commission as a political party. The Act nowhere mentions about political alliance or registrability of a political alliance[6].
From the aforesaid and considering the emergence of political alliances in India, it can be inferred that there is a yawning gap in the Statute. The Act does not render a clear stipulation of parameters while registering a political party. The legislations also do not prohibit or provide any criteria to be followed while naming a political party in India.
It is not very often that we hear name of a political party or a political alliance identical to the name of the country. Though the governing laws in India do not prima facie object use of such names for name of political party/ alliance, if viewed from a general perspective it does lead to a situation of imbroglio. While media is flashing news headlines as INDIA v. NDA, it is somewhere giving an ambiguous connotation as INDIA primarily implies the land of India and people of this nation.
While most of the nations across the world including India prohibit that name of political parties must not resemble with the name of existing parties, there are few nations, such as the Portuguese constitution prohibits the use of emblems by political parties that may be confused with national or religious symbols. Similarly, in Argentina political party names are prohibited to include personal names or the words Argentine, national, international[7].
While there is a lot of commotion around the name, it would be interesting to see as to how this altercation unfolds and all the speculation surrounding the name of the opposition political alliance is put to rest.
Authors: Vikrant Rana, Managing Partner and Shilpi Saurav Sharan, Managing Associate at S.S. Rana & Co. Views are personal.
*The political alliance is using the term “I.N.D.I.A.” and not INDIA ↑
Definition of person- Section 3(42) of the General Clauses Act defines “person” as a Company or Association or body of individuals whether incorporated or not. ↑
Writ Petition No.34053 of 2018 ↑
W.P.No.35566 of 2016 ↑
Section 2(f) of the Representation of People Act, 1951 ↑
https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-INF(2000)001-e ↑