Section 123(3) of the R.P. Act provides that ‘the use of or appeal to National Symbol, such as, the National Flag, or the National Emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate,’ would be a corrupt practice.

Counsel said that Mrs Gandhi had admittedly used the cow and calf symbol for her election. The only question was whether the symbol of the cow and calf was a religious symbol. He said that he would overwhelmingly establish this beyond any doubt.

Counsel submitted, ‘Your Lordship will see that a similar symbol had been asked for by the Akhil Bharatiya Ram Rajya Parishad in the 1952 elections but was refused by the Election Commission on the ground that it was a religious symbol. Further, a report on the First General Elections in India published by the Election Commission says that “no object having any religious or sentimental association, for example, a cow, a temple, a National Flag, a spinning wheel, and the like are found in the list of approved symbols.” The Commission specifically mentions the cow as one of the objects having a religious association. The same Commission which had refused to allot the symbol of a cow to the Parishad in 1952 on the ground that it was a religious symbol had now allotted it to the ruling Congress party.’

Counsel went on, ‘Just because the symbol has been allotted by the Election Commission, it cannot cease to be a religious symbol. Moreover, your Lordship will see that it has been allotted on the basis of a very suspicious piece of reasoning. The first preference of the Congress party was “a mother with a child in her arms”. The “cow and calf” was their second choice. The Election Commission did not allot the first preference though it was a completely harmless symbol, and allotted the second preference which is clearly a religious symbol. Their professed reason was that since the Congress (O) had been allotted their second preference, they were allotting the second preference to the Congress (R) too.’

Counsel argued that just because the symbol had been allotted by the Commission, the party could not abdicate its responsibility. They had themselves asked for the symbol in the first place. So there was no reason why they should not be made to suffer.

Justice Sinha: Suppose the Election Commission allots a religious symbol on its own without the party asking for it.