RAMASHANKAR KAUSHIK AND ANOTHER versus ELECTION COMMISSION OF INDIA AND ANOTHER

RAMASHANKAR KAUSHIK AND AJ.'lOTHER .

v. ELECTION COMMISSION OF INDIA AND ANOTHER Nopember 14, 1973 [P. ] AGAN.MOHAN. R EOIJY AND s. N. W!VEDI, JJ.] .8 •nd Election Symbols IS-Scope oj. (Resen·ation and Allotmem) Order ' 1968 ' p<Uas 15, 16

The PSP nnd SSP were national parties with the election symbols 'H ut' and 1'ree', mpccttvel~. In May, 1971 there .w~ a. merger of the two parti~ and lhe 'Uwted Party was known a.s the Soctahst Party. The Ei<ction Commission .. ~ informed t~bout the merge~. ~md the Chte( Election Commissioner, in Nov-ember, 1971, held th~t the Soetah.st Party w:u National Party for the purposes of the Election 1>'ymbols (Reservation and Allotment) Order, 1968 and that the symbol 'Tree' s~ould be exc)usivdy r!'Scrwd a!"d allotted to it. Thereafter, the •pJ?<IIant ~d btS group .dectded to dtssolve thiS unity and they rcque.t.cd the Chief Elccuon CommtSSJOncr to hold thnt tl1er~ was rttbinlt of the Socialist Party to be called the SSP and tbut the 'Tree' symbol may be allotted to the uborn SSP. The Socialist Party opposed this roque~!. The Chic( Election Commissioner, nftcr considering· the matter, held that the appellant's party now caWng itself SSP could not be the old SSP but was new party, and th.•t the "'"' SSP could not claim t~ 'Tree' S)'mbol for itself. In pu~uance of the findings, he issued notilic;uion, under parn~aph 17 of 1968-0rdcr, mentioning llle Socialist !'arty a.s N ational Party with "Tree' a.s its symbol. In apptal to this Court it W:IS contended, (I) that the case was coven:J by J>M'JI:I"Ph IS of tlte 1968-0rdcr which dcnls with a. case where rival sect1ons of rc:cogniscd political party cbim to be that {!Urty; (2) the ea.se fell within the >rope of rr. S and 10 of the Conduct of Elocuon Rules, 1961, and rar.~graph 1& ol the 196&-0rder, nnd (l} .._. the Chief Election Commissioner did oot bold any inquiry reg-Jrding the ;illegiance of the majority o( memben, bis order was •oid.

Dismissing the appeal to this Court, HELD : (I) Paragraph IS of the Election Symbols ( R~ervatlon and Allot-Jnent) Order. 1968, i' not ullracted to the facts of the prcs~nt case. [2750]

. new politic:.) party is formed by the fo/1111111 ro ~~~/r~r of at lc:\St ooe ~.og· ru~ed rolittcal party nnd another political pa ':fY· Tho J:!Cwly formed pohucal . . P>rty may npply for recognition to the Ekct10n Comnu"'!o'! under Parngr:~ph 16 of lbe Order. After due hearing, tlte lectlun Comouss10n mny recogniSe the newly fnrrncd political party either as n National Party .o~ a.s !1 Sf:atc. Party tnd nuy allot symbol to it. The d~dsion of tbo Coolmt!<SIOD IS bmJmg on lhe D<YfiY fonntd rolitical party nnJ all rite co!"pon.-11!·' . units th~rto/. 'fhe "<Pr"'"on "joining together" in tho paragr;~ph .. used 10 •LS brood meantn~. Thetc i• nothing in •~o or more rolitical the portk"' con(eKt to rc>trict its und their resultant meaninexun.g cuoI'? n n on case the of formamergtion ~ r ?f of lltw politic;,! party. The u~ of the e~pn:ssion wall the comp?~ent un.•ts lhtrror . •how• th;~t it will nlso entbrace u ca<e of two or more pohtteal partt~' • &teeinll to form or federating into n new political p;trty while n:t.unin.s th<Jr '<f>'•te ~1 ·~\e iolcnltu"id·.h~re entui~. '"bave ~'O . or The broul\hl moro upre,<ipolitical parttC'J, o(t.cr do:d.t!tng into on cxi.>tcnce 'joini.ng ta new l'cether' pohttcal :t!<O paind•tJe. to rty, dest.roy even th•ththouge:J tr h. setv~ pthe .l-r OCN Of utin(.1ion wa~ not forma(Jy comph:tcd or Wa• invnliJ tln<l indle~lt\'C. ' 11 Po tJ;"'"'Uch [1 ]~•ltr ~ t>\e. nl they lilt new retain partv their ,cpTn athe rale oeconJ iJentllianJ c• and thirJ will tYT'C\ be deemcJ or c:t~~ to aho 1-c tv,...,m-hen ~~~lornmin lon bas gh•en r~cognitlon to the new formed politic:!! partv ~:, t! bir~:t"•l Porty or State Party 0 n,J has alloll«l o Aymhol to It, h" Oni~D-r ~~50) '"I on them since they ore compon"'r units of the new p:trty. (274 -~Ire~~ Y the rc~&niP•N:nt -.cd. ca•e. ~ the case oppcll~nt't set up by group the nppendid not ant's claim croup the waSocial• 1~1 to::r~

r I I I l

Socialist Party had been dissolved and that new Socialist party was r~born. Admittedly there are important differences between the reborn SSP and the Socialist Party recognised by the Chief ElectiOn Commass1oner. Their ftags, their constitutions aod their membership are all different. f275D·Fl

Sadlq A.lt v. Election Commission of ld11ia, [1972] 2 S.C.R. 318, referred to.

(2) (a) Rule 5 of the Conduct of Election Rules, deals with the case where the l!.lection Commission specifies the symbols that may be chosen by candid11tes in parliamentary and as!embly constituencies. Rule 10(4) will apply only in 11. case where the RetUrning Officer is considering the cho1ce of symbol ex· pressed by contestinr candidate in his nomination paper. These rules will not apply to the present case. Further, the provisions of paragraph 16 of the Order wall prevail over rr. 5 and 10, beOUISC, they are expressly subject to any general or special directions or restriction! issued by the Election Commlssion. The Order· had been made by the Election Commission in exercise · ·of its powers under Art. 324 of the Constitution read with rr. 5 ond 10 of the· Conduct of Election Rules. [271H: 276C-D}(b) Paragraph 18(b) of the Order provides that the Commission may issue instructions and directions for the removal of any difficulty which may arise in relation to the lmplementatJon of the provisions of the Order. In the prese~t eliSe, no difficulty could arise ln regard to the implementation of paragraph Hi · of the Order. Assuming that the merger of the SSP in the Socialist Pa~ty was not valid and accomplished fact on the date when the symbol 'Tree' was allotted to the Socialist Party and that the old SSP had been enjoying ceaseless existence, even then, the SSP Ia bound by the decision of the Chief Election Commissioner under paraeraph· ~6(2), because, it would be regarded as com· ponent unit of the Socialist PartY· f27SF·Hl

', (3) It is not necessary on th'is view to decide whether the. SSP had mer$ed in the Socialist Party and loet Its separate Identity and whether the associatton of the two parties could be dissolvea by majority. [276A]

CIVIL APPELLATE ]URISDICTIO~ : Civil Appeal No. 630 of 1973.

Appeal by Special Leave from the Judgment. and Order dated the 14th March, 1973 of the Chief E!wion Commissioner of India, New Delhi. r.:g:-~rding Symbol of the Samyukt Socialist Party.

D. V. Patel•, J. P. Goyal, Pra11ab Chatterjee and R. A. Gupta, for the appellants.

B. Sen and S. P. Nayar, for respondent No. I.

S. C. Malik, S. K. Mehta, Santo/.:h Singh, K. R. Nagaraja, M. Qamaruddin and Vinod Dhawan, for respondent No. 2.

The Jud~ment of the Court was delivered by

DWIVEDI, J. Before Independence the Congress Socialist Party functioned as group inside the Indian National Congress. After Independence it had to quit the Congress, a1id. became knowu as the Sncialist F~1.rty. On the eve of the general election in 1952 another group of pei·wns came out of the Congress. They formed ~~ new p<~tty caUecl the Krishak Mazdoor Praja Party. The Socialist Party and the Krishak Mazdoor Praja Party particioated in the first general election. 'Tree[1 ]was the symbol of the Socialist Party; 'Hut' of the Krishak Mazdoor Praja Party. Some time in 1953 the two parties merged together and formed new party called the Praja Socialist Party (here· inafter called the P.S.PJ. It was allotted the symbol of 'Hut'. This unity was not long lived. In 1956 group of persons came out of the

RAMASHANW V. ELECTION _COMMISSION (Dwivedi, /.) I

P.S.P. They reformed the Socialist Party.. The Socialist. Par:ty was allotted ~e symJ;>~I 'Tree~. The P.S.P. retained its symbol 'Hut'. The tw~ part1es participated m .the second general election in 1957 with .·their respective symbols. In 1964 the P.S.P. and the Socialist Party x;terged to forll! new party called the Samyukta S~ialist Part~ (here-~natt;r ref~rred. to as the S.S.P.) .. This party was allotted the symbol Hut. Thts uruty also was short lived. In 1965 there was split. One . group came to be known as P.S.P., and .the other as S.S.P. The P.S.P. got ~~ck its ?ld symbol 'Hut', t~e S.S.P. got the symbol 'Tree'. They .. p~rt1c1pa~ed m th~ general electron of 1967 and bye-elections in 1969 with therr respective symbol. The urge for unity. was again strongly felt after the general election to the Lok Sabha in 1971 in which both \ pa.r~es mad~ very poor ~bowing. It appears that on May 25, 1971, JOint meetmg of the Chairman and General Secretaries of the P.S.P. ;and the S.S.P. was held to draft an agteement for merger of the two parties for consideration by the two parties. They succeeded in ham-merging out draft agreement. · The draft agreement was entitled the "basis for the unification of the S.S.P. and the P.S.P." It is long document It laid emphasis on broadbased unity of all democratic socialists who have genuine commitment to democratic socialism. It expressed the hope that "the unification of the S.S.P. and the P.S.P. 0 can be a. precursor to such broadbased socialist consolidation." I . . Ac{;ording to it, the "primary task of the unified Socialist Party will be to . build .an effective organisational instrument which will lead people's struggle for economic equality, social mobility and mean1ngful participation, of the people in building ;,t . socialist economy." The document uses the expression "United Party" in various clauses. For instance, it sa:ys : "The United Party will pursue an integrated price policy whose important elements will be: (1) Parity between the prices of the agricultural produce and industrial goods ;(2) the price of essen· tial commodities not to exceed 1 t times the co_st of production includ-ing the transport charges; (3) assurance of remunerative~ price for the agricultural produce and elimination of occasional fluctuations in price; and ( 4) Socialisation of the wholesale trade in food grain and other essential commodities and their effective distribution through coopera· tive agencies." As regards· organisational unification of the SSP and · the PSP~ the agreement provided for the formation of National Ad· hoc Committee comprising of the National Executive Committees of the S.S.P. and the P.S.P. · The National Ad-hoc Committee of the'United Party would . appoint office bearers of the new party and also set up ad-hoc committees at State level. It was decided that "the name of the -4 United Party will vwuld _prepare the membership pledge for be Socialist Party". The the National Ad-hoc Committee "New Party" and v.:ould ftx up the membership year and the date and venue .of ~he first Natlona! Conference of the United Party. The document 1s s1gned by Sarvsn N. G. Garay, Karpoori Thakur, Prem Bhasin and George Fernandes. The draft agreement was approved by Special. National Conference of the S.S.P. held at Barhiya in Bihar on June 19,· 1971. Th~ ~on-ference approved the propo~al "relating to S.S.P. and ~.S.P. un!fica· tion". An identical resolutton was passed by the Spec1al Nat10nal Conference of the P.S.P. held at Bulandshahr in U.P. l)n August 7, and 8, 1971. It appears that after the passing of there ~wo resolutions,

the S.S,.P. and the P.S.P. form~d new party called the Socialist Party. Nat10nal Ad-hoc Committee of the Socialist Party was constituted. The National Ad-hoc _Committee held its first nieeting in the Constitu-tion Club, New Delhi on August 9 and 10, 1971. 51 members of the Committee were present in the meeting. Seven special ·invitees also attended the meeting. TI1e Committee took several decisions. . Sri Karpo~ri Thakur and Sri Madhu pandavate were elected unanimously _as Chauinan and General Secretary of the party. The Corilmittee ratl.-B fied the agreement arrived _at amongst the General Secretary of the .. erstwhile S.S.P.", the General Secretary of the. "erstwhile P.S.P." and the Chairman of the "9ld I.S.P." regarding the representation of the old I.S-P., Socialist Party (U.P. ), Socialist Party (Bihar) and the Socialist Party (West Bengal) in the National. Ad-hoc Committee of the Socialist Party. The Chairman and the General Secretary were authorised to take decision in the matter of giving representation in· the Committee to the I.S.P .. (Bihar) and other groups which decided to merge in the Party, The Committee also took decision as regards the.Party flag. It decided that the flag of the party will hi~:

-~ ' !. I

"Red Band above. white band in the middle, Red bJ.nd below; Insignia of wheel and plough to be painted in red in the middle of the white band."

No final decision could be taken on the election Siymbol, and the issue was postponed for consideration in the next meeting. Certain <kci-sions were taken in regard to the formation of State Ad-hoc Committees and District· Committees of t~ Socialist Party. Decision was also taken in regard to_ membership of the Socialist Party. The form of membership was also adopted. Sri Madhu Dandavatc, General Secrc-tary of the Socialist Party, despatched copies of the resolutions of the National Ad-hoc Committee of the Socialist Party to the State and District units on August 14, 1971. On August 18, 1971 Sri George . Fernandes, General Secretary of the erstwhile S.S.P. sent letter to the Election . Commissioner. An identical letter proceeded simultaneously to the Election Commissioner from Sri Prem Bhasin, General Secretary of the ·erstwhile P.S.P. Both these letters state that the S.S.P. m1d the P.S.P. have "now merged .... to form the new Socialist Party." Sri George Fernandes requested the Election Commissioner to allot the symbol "Tree" to the Socialist Party. Similarly, Sri Prem Bhasin re-quested· that the symbol "Hut" should b~ allotted to the Socialist Party. On August 23, 1971 Sri Surendra Mohan, Joint Secretary of the Socialist Party, sent letter to the Chief Election Commissioner along with the two aforesaid letters as enclosures. His letter states that ''both these parties have now merged alongwith some others to create the Socialist Party.'• The letter conclud~d by saying that ·until request for reservation of symbol was made by the Socialist Party, the symbol 'Hut' and 'Tree' should not be allotted to any other party. It appears that the National Ad-hoc Committee of the Socialist Party met in Lonavla on October 22, 23 and 24, 1971 and took decision as re-gards its election symboL It opted for the symbol 'Tree'. Accordingly, on November 5 1971 Sri Surendra Mohan sent another letter to the Chief Election Commissioner for reservation of the symbol 'Tree' to the Socialist Party. Paragraph 1 of the letter states that the 'Tree' syz_nb_ol which was reserved for the S.S.P. should be reserved for the S.Oc1ahst

4 --4 ·'! \

·Party. Paragraph 2 ~tates that the 'Hut' which was reserved for the PSP .should b~ froze~. It should not be allotted to any other party nor ,included ~ th<:: hst of symbols. After considering various docu-ments and heanng some of the leaders of the erstwhile S.S.P. and P.S.P. as a}so few persons who were opposed to the merger of various · P~~es and formatio!l of the Socialist Party, the Chief Election Com-miSswner passed an order on November 15, 1971. Be came to the con~lusion that the Socialist Party was entitled to be recognised as ·a NatiOnal Party. He has also recorded this finding: "ln. the circum~ stances, the Commission will not be unjustified in coming to the· con-clu~i?n that the P.S.P. or the S.S.P. does no longer subsist as separate pohttcal party a~ter the formation of the Socialist Party by the amal"a~ n~a~on of these two parties_ and some other groups." As regards the dtss1dents who opposed Sn Surendra Mohan's request, he said "In anv case the existence of few dissident members in the P .S.P. or the S.S.P. cannot be regarded as ground for the continued existence of the P.S.P. and S.S.P. as separate National Political Parties." On these findings he decided that "the newly formed Socialist Party formed by the merger of S.S.P., Natic;:mal Party, P.S.P., another National Party, and other political parties, such as the Indian Socialist Party, is National Party for the purposes of the Election Symbols (Reservation and Allotment) Order, 1968 (hereinafter to be: referred as the Order), · and that symbol 'Tree' shall be 1;eserved exclusively for that party and be allotted to it. This narrative brings to close the first chapter of the story. We shall now pass on to the second chapter ot the story.

on Somewhere in the middle of April, 1972 Sri Ramashankar Kaushik declared in Press Conference that Sri Maniram Bagri was. elected as the General Secretary of the Socialist ·;party in place of Sri Madhu . Dandavate. · This declaration was questioned by others in the Socialist Party and proved to be harbinger of fissure in the Socialist Party. On May 13, and 14, 1972, certain persons calling themselves as delegates of the Poona Conference of the S.S.P. and certain members of the P.S.P. and I.S.P. assembled at Allahabad, The meeting was convened by ·sri Maniram Bagri. The meeting decided to annul "the ad-hoc merger of the S.S-P. and P.S;P." On p.t~ 21, 197_2, Sri Maniram Bagri sent letter to the ElectiOn Comnnsston. 'f?.erem he stated that the unity between the S.S.P. and P.S.P. was votd. The Allahabad assemblv has decided to dissolve ( <Jfl!' ) this unity and has given rebirth (~ ) to the Socialist Party. He requeste<l that the 'Tree' symbol t;hould be allotted to the reborn Socialist Party. .

On December 15 and ·16, 1972 Socialist Workers' Conference was held at Patna. . It decided that "the name: of the party would be Samyukta Socialist Party" and that "the party would adopt too flag of the former S.S.P. It also decided that the Steering Committee was "authorised to adopt Constitution." On December 30, 1972 another Conference was held at Lucknow. This Omference passed resolution. The resolution relevantly reads : "The special national conference of Socialist Party endorses the decision of annulling the adhoc merger of S.S.P. and P.S.P. that has been passed by t~e ~ahab~d Conference .... Lest some people might be under the illuswn, th1s Confere~ce unequivocally declares that the merger of S.S.P. and P-S.P. herewtth

stands alll:lu~le4 and the Party that is. working in the name of the so· called soc1ahst party under the General Secretaryship of Dandavate is not the same as the merged party between S.S.P. and P.S.P." It also e~orsed the Patna decision that the party should be called the "Samyukta Socialist Par~y''. This ends the second chapter of the story.

The third chapter of the story begins from January 27, 1973. On that date the Chief Election Commissioner received letter from Sri Ramnshanker Kaushik. H~ has described himself in the letter as Co-convener of S.S.P. The subject matter of the letter is ; "allotment of 'Tree' symbol to S.S.P." It refers to the letter of Sri Maniram Bagri, dated May 31, 1972 and to his own letter, dated June 21, 1972 and . goes on to say that "the ad·hoc unity between the S.S.P. and the P.S.P. has broken down." lt states that 13 members from amongst the 25 memb-ers of the National Committee of the former S.S.P. were with their party. Almost all the legislators of the State Legislatures anq. Lok Sabha who were elected on S.S.P. ticket were with them. Those legislators who were elected to the State-Legislatures in 1972 after the ad-hoc unity were also with them. The letter ends with the request that the symbol 'Tre:e' should be allotted to the S.S.P. The Socialist Party opposed this request and the Chief Election Commissioner forwarded its caveat to Sri Ramashanker Kaushik. By his letter dated March 13, 1973 he sent his reply to the caveat. On March 14, 1973 the Chief Election Commissioner passed the order . impugned in this appeal. Pursuant to the order, he published notification on March 29, 1973 under paragraph 17 of the Order. This notification mentions the Socialist Party as National Party with its symbol 'Tree',

The Chief Election Commissioner posed two issues for decision : ( 1) whether Sri Ramashanker Kaushik's party could be recognised as the S.S.P.; and {2) whether the symbol 'Tree' could be reser\red for it.

On the first question he recorded these findings : ( 1 ) the merger of the S.S.P. and P.S.P. was complete and irrevocable and there emerg-ed from this merger new party caJ.Ied the Socialist Party; (2) it is no body's case that the ·Socialist Party has ceased to exist; (3) the Constitution of the new Party (called the S.S.P.) is different from the Constitution of the merged S.S.P. Some of the office bearers of the former party are new and were not the office bearers of the merged S.S.P.; and ( 4) many leaders of the merged s.S.P. are still members of the Socialist Party. On these findings he held that the party (now calling itself the S.S.P.) cannot be the old S.S.P. and is new partly.

On the second. issue he recorded the5e findings : ( 1) the decision of the Chief Election Commissioner regarding merger of the. S.S.P. and P.S.P. and the formation of the Socialist Party has been acted upon by the former members of the merged S.S.P. and P.S.P., (2) the Socialist Party has contested the elections to the Legislative Assemblies of various States. held in 1972 on the basis of the 'Tree' symbol; (3) the Socialist Party was formed by the merger of the S.S.P. and P.S.P. and four other parties. ·The fornier members of the merged P.S.P. and other parties are still members _of the Socialist Party. · Only so!lle of the former members of the merged S.S.P. have formed party wh1ch

they call as S.S.P.; and (4) the Socialist Party is now identified with the 'Tree' symbol On these findings he came to the conclusion that the party now calling itself S.S.P. cannot claim the 'Tree' symbol for itself.

It was argued before him on behalf of Sri Ramashanker Kaushik that the decision regar~~g the allotment of the symbol should depend upon whether the maJonty of the former members of the merged S.S.~ .. and the !epresentatives elected on the merged S.S.P. and th~ Socialist Party tickets belong to the Socialist Party or to the party now called the S.S.P. He took the view that this qu~stion was not relevant on the facts and circumstances of the case. Accordingly, he has not made an inquiry into this question. As result of his findings on the two issues he rejected the applications of Sarvsri Ramashanker Kaushik and Maniram Bagri. He left open to the party now calling itself th~ S.S.P. to apply for registration as new party under paragraph 3 of the Order.

Sri Patel; counsel for the appellants has made three submissions before us : ( 1) the case is covered by paragraph 15 of the Order; ( 2) in the alternative the case falb within the scope of Rules 5 and 10 0 of the Conduct of Election Rules, 1961 and paragraph 18 of lhe Order; and (3) as the Chief Election Commissioner did not hold any· inquiry regarding the allegiance of the majority of members and elected representatives, the order is void. In support of his arguments he has heaviLy relied on Samyukta Socialist Party vs. Election ·Commissum of India(l) and Sadiq Ali vs. Election Commission of lndia.(2)

It should facilitate the appreciation of arguments if we notice the relevant provisions of the law at this stage. Clause ( 1) of Art. 324 of the Constitution provides, inter ·alia. that the superintendence, direction and conduct of all elections to Parliament and to the Legisla-ture of every State shall be vested in Commission called the Election Commission. Clause ( 2} thereof provides that the Election Commis-sion shall consist of ·Chief Election Commissioner and such number of Election Commissioners as the President may from time to time fix. Section 2(g) of the Representation of the Pe?ple Act, 195 ~ (~~rein· after called the Act) defines die word "prescnbed" as ·meamng pres· cribed by Rules made under, this Act." Section 59 .of the Act _pro- . vides that at every election where poll is taken votes shall be gJVen by ballot "in .such mailner as may be prescribed". Sect~on 169 d~als with the rule making power of the Central Government.. Sub-section . ( 1) thereof empowers the Central Government tO' make rules ·~for carrying out the_ :purposes of this Act." Sub-section (~)(c). ther~of provides that rules may be made with respect to "the manner tn whtch the votes are to be given both generally ll.nd in case of illiterate voters." The Central Government has enacted the Conduct of Election Rules, 1961 (hereinafter called the Rules). Rules 5{1) reads: .

"The El~ction Commission shall, by notification· in : · ~he Gazette of India and the Official Gazette of each Sta.te, specify the symbols that may be chosen by candidates in parliament·

0) [1967] 1 S.C.R. 643.

(2) {19721 2 S.C .R. 318.

[ 1974] 2 S.C.R.

272 SUPREI\1E COURT REPORTS

ary or assembly constituencies and the restrictions to which their choice shall be subject."

Rule 10(4), (5) and {6) read as f9llows:

• . "( 4) At an election in parliamentary or assembly con-stituency, where poll becomes necessary the returning ofli· ccr shall consider the choice of symbol~ expre~sed by the contesting candidates in their nomination papers and shall subject to any general or special direction issued in tni~ behalf by the Election Commission,-·

~ ~ I J ;·

tni~ ·

(a) allot different symbol to each contesting ca~didate in conformity, as far as practicable, with his choice; and . .

(b) if more contesting candidates than one have indicated their preference for the same symbol, decide by lot to wh~h of such candidates the symbol will be allotted

(5) The allotment by the returning officer of a!ly sym-bol shall be final except where it is inconsistent with any directions issued by the Election Commission in this behalf in . which case the Election Commission may revise the allotment in such manner as it thinks fit.

( 6) Every candidate or his election agent shall forthwith be informed of the symbol allotted to the candidate and be supplied with specimen thereof by the returning officer."

We now pass on to the . relevant provisions of the Order. Pro-fessedly, the Order has been made by the Election Commission in exercise of its power under Art. 324 read with rules 5 and 10. It was . made on August 31, 1968. Paragraph 3 of the Order deals with r; registration of political parties by the Election Commission.. Any association of citizens, desiring to be registered as political party and intending to avail itself of the provisions of thei Order. may make an · application to the Election Commission for its registration as p.o1ftical party for the purpose of the Order. The paragraph prescribes certain formalities for registration. After hearing the applicants, the El~ction Commissioner shall decide whether to register or not to register the association as political party for the purposes of the Order. His decision shall be final. Paragraph 4 provides that in every contested election symbol shall be allotted to contesting can~idatc in accor~ dance with the provisions\ of the Order and different symbols shall be allotted to different contesting candidates at an election in the same· constituency. According to paragraph 5, there are two kinds of sym· bois: (1) reserved; and (2) free. reserved symbol_is one which is reserved for recognised po!itical party for exclusive allotment to contesting candidates set up by that party. All other symbols are free symbols. Under paragraph 6 it is open to the Election C~mmissi?I?- to specify which political party shall be regarded as recognised pohtlcal party or as non-recognised political party. _In cert~i~ continge~cies political party shall be treated a~ reco~Iscd pohti.cal party m II State. According to paragraph 7, 1f pohtJ.cal party IS treated as recognised political party under paragraph 6, m four or more States. it shall be known as and shall enjoy the status. of 'National Party'

RAMASHANKAR V. ELECTlON COl\11\IlSSION (Dwivedi, /.)

t~rougho?~ the whole of India. lf political party is treated as rccog-A mscJ pohttcal party under paragraph 6 in less than four States it shall be kno:vn an~ sh_aH, enjoy the s~atus of "State Party" in the 'state or State.s. m whtch 1t 1s rccogmsed political party. There is. also J?WVISton to the effect that every political party which immediately bc-1 ore the commencement of the Order was ·a rilulti-Stnfe party shill, on sl:lc.h c~mmence~ent of the Order, be National Party. similar provtston ts made m regard to political party recognised as State ·party. Par~graph 8 ( 1) provides that candidate set up by National I .. I Party 5hall be at allotted the symbol reserved for any election in ano' constituency that in party India in •:shail choose, that State and and no other symbol." There is similar provision in regard to State Party. Sub-p:Iragraph 3 of paragraph 8 provides that reserved symbol shalt not be chosen or aUotted to any candidate in any constituency other than candidate set up by National Partly for whom such symbol ha~ been r~servcd or candidate set up by State Party for whom ~ such sj-'mbol has been reserved in the State in which it is State Party C\'en if no candidate has been set up by such National or State ·Party in that constituency. According to paragraph 9, symbol reserved for State Party may be included in the list of free symbols in any State ilt which that party is: not State Party. The symbol will be not allotted to a. candidate set up by any other political party for that State . . lt may, howevc·r, be allotted to any independent candidate in certain circumstances. According to paragraph 10, candidate set up by . S·tatc Party in which it is not recognised as State Party may exclu-sivdy be allotted the symbol reserved for the St!te Party in certain conditions. According to paragraph 11, if symbol has been exclu· sively allotted to candidate set up by political party at the election in th~ parliamentary constituency that symbol shall not be allotted to any candidate at any election in any of the said assembly constituencies at any election in any of the said assembly constituencies any election in any of the said assembly constituencies election in any of the said assembly constituencies in any of the said assembly constituencies any of the said assembly constituencies of the said assembly constituencies the said assembly constituencies said assembly constituencies which is being held simultaneo1,1sly with the parliamentary electio~. Accordino- to paragraph .12, to paragraph .12, paragraph .12, .12, free symbols may be chosen by candi-date oth;r than than candidate set up up by National Party or Party or or candidate set ~p by by State Party. Paragraph 15 is important in in this appeal. It r , reads: · ·any candidate at any election in any of the said assembly constituencies at any election in any of the said assembly constituencies any election in any of the said assembly constituencies election in any of the said assembly constituencies in any of the said assembly constituencies any of the said assembly constituencies of the said assembly constituencies the said assembly constituencies said assembly constituencies which is being held simultaneo1,1sly with the parliamentary Accordino- to paragraph .12, to paragraph .12, paragraph .12, .12, free symbols may be chosen by date oth;r than than candidate set up up by National Party or Party or or set ~p by by State Party. Paragraph 15 is important in in this appeal. I r , reads: · · "Whc~e the Commission is satisfied on information in its possession that there Me rival sections or groups of recog-nised political party each of whom claims to be that part,v, the Commission inay, after taking into. account all the avml-ab~c facts and circumstances of the case and hearing such representatives of the sections or groups and other persons as desire to be heard, decide that one such rival section or group or none of such rival sections or groups is that recognised political party and the decision of the Commission shall be binding qn aU such rival sections. or groups"; · Paragraph 16 is also ~levant for our purposes. It reads : "( l) When two or more political parties, one or some II or all of whom is recognised political party or are r~~og­nised political part~es, join together ~o f?rm new pohhcal party, the Commisston may, after takmg u:to account all the

f~cts and circumstances of the case, hearing such representa-trves of the newly f?rmed party and other persons as desire to ~e heard and havmg regard to the provisions of this Order decrde-'

(a) whether such newly formed party should be National Party or State Party; and

(b) the symbol to be allotted to it. (2) The de~isi~n of the Commission under sub-paragraph ( 1) shall b2 brndmg on the newljy formed political party and all the component units thereof." Paragraph 17 authorises the Commission to issue notification in the Gazette .. of India specifying (a) the National Parties and the sym-bols respectrvely reserved for them, (b) the State parties and the symbols reserved for them, (c) the unrecognised political parties; and (d) the free symbols for each State. Sri Patel has also relied on paragraph 18(b). It reads: "The Commission may issue instructions and directions : (b) for the removal of any difficulty which may arise in relation to the implementation of any such provision ... It is first necessary to consider the impact of paragraph 16 on this -case. new political party is formed by the joming together of at least one recognised political party and another political party. The newljy .formed political party may apply for recognition to the Election Commission under paragraph 16. After due hearing, the Election Commission may recognise the newly formed political party either as National Party or as State Party and may allot symbol to it. The decision of the Commission is binding on the newly formed political party and "all the component units thereof." The two significat'!t expressions in paragraph 16 are "joining together" and "all the com· ponent units thereof." Accordit)g to the Webster's New World Dic-:tionary, 1962 Edn. page 789 the word "join" has these meanings: "(1) to place together, bring together, connect, pass on, combine; (2) to make into one, unite; (3) to become part or member of; enter into association with; ( 4) to go to and combine with; ( 5) to enter into the company of; company; (6) to go and take one's proper place in." The word has evidently got several meanings. When it is u5ed in the sense of "combine", it may imply mingling together of things, often with loss of distinction of elements that completeby merge with one another. W:hen it is used in the sense of "unite'', it implies joining or combining of things to form single whole. When it is used in the . ·sense of "associate"; it implies joining with another or others as com-panion, partner etc. According to the same dictionary, the word "component" is derived from "Com" plus "Ponere". Componere ineans serving as one of the parts of whole, constituent. So the word com· ~ponent means : "part, constituent, ingredient."

The expression "joini11g together" in pa~agr~ph 16(1) is aoparent_ly 1used in its broad meaning. There is nothmg m the <:o_ntext t? restnct its m~aning •.o case of ~nerger of two or more poht1cal parties and

RAMASHANKAR V. ELECTION COMMISSION (Dwivedi, /.)

th,eir resultant extinction on formation of. new political party. It will also embra~e. case of t\;Vo or ~?ore political parties agieeing to-form n~w political party while retaming their separate identity. Our constru~~JOn .gets ~uppo~t from th~ ex~re~sioii "all the component units th.ereof. ~e think this expr~ss10n IS mcluded in paragraph lo(2) With. the ObJeCt of comprehendmg case where two or more political· part1es h~ve f~de~ated mto ne~ political part~ while' retaining their 8 separate tdenttty Instead of mergmg themselves mto the new political party. It s.eems to us that this expression also includes in paragraph 16(1! a. thud type of .case where two or more political parties, after dectdmg to destroy thetr separate identity, have brought mto existence new political party even though the process of extinction is not formally completed or is invalid and ineffective. In such case, they . retain their separate identity and will be deemed to be component units of the new part5~. In the second and third types, when the Com· mission has given recognition to the newly formed political party as National· Party or State Party and haSi allotted symbol to it, his order will be binding on them as they should be regarded as the "com-ponent units" of the new party.

Returning to the arguments of Sri Patel, we are of opinion that paragraph 15 of the Order is not attracted to the facts of the present case. The appellants did not claim before the Chief Election Com· missioner that their group represented the Socialist Party recognised under paragraph 16 of the Order. The case set up by Sri Maniram Bagri was that the Socialist Party has been dissolved ( ~ ) and that the Socialist Party is reborn ( ~~ ) . Sri Kaushik also pressed the claim of the S.S.P. against the Socialist Party, Admittedly there are important differences between the S.S.P. and the Socialist Party. Their flags are different; so are their constitutions. Their membership is also different. The S.S.P. does not claim that it is the Socialist Party. On the facts of the present case, the appellants cannot derive any assistance from the·decision in Sadiq Ali (supra)., In that case two rival groups claimed to be the Indian National Congress. The next argument of Sri Patel also cannot prevail. Paragraph 18(l:i) of the Order provides that the Commis~ion may issue instn!c-tions and directions for the removal of any difficulty which may anse in relation to the implementation of the provisions of the Order. Obviously, no difficulty can arise in regard to the implementation of paragraph 16 of the Order in the present case. For the sake of ~~u­G ment, it may be assumed that the merger of the Samyukta: Soctabst Party in the Socialist Party was not valid and accomplished fact on the date wben the symbol "Tree" was allotted to the Socialist Party under paragraph 16 and that the Samyukta Socialist Part~ ~as been enjoying ceaseless existence. Even so, the Samyukta Soctaltst Party is bound by the decision of the Chief Election Commissioner under paragraph 16(2) because the Sall1lyUkta Socialist Party would ·be 8 regarded as component unit of the Sociali~t Party. It cannot now go back from his decision and claim the symbol "Tree". It should be observed that it has not been proved that the Socialist Party has ceased to exist.

On the view that we are taking, it is not necessary to decide whether _. the S.S.P. had merged in the Socialist })~rty and destroyed its separate identity. But we should observe that if' It were necessary for u.S to decide that matter, we should have required evidence on certain aspects. Two vital elements of an association are members and common pur· pose for ·which they associate. If an association is constituted under statute; it t:an be dissolved only in accordance with that statute; if it is organised on the basis of contract, then it can be dissolved only I in accordance with the terms of the contract, cominonly called the constitution. If the constitution provides for . dissolution by the con:. sent of all the members, the rule. of decision by majority is excluded. There seems to be no evidence on these material aspects.

The last argument also does not prevail. Rule 10(4) of the Rules will apply only when the Returning Officer is considenng the choice of symbol expressed by contesting candidate· in his nomiruition paper. We are not concerned with such case at present. Rule 5 will also not apply now. The provisions of paragraph 16 of the Order will prevail over rules S and 10 because rules 5 and 10 expressly are subject to any general or special directions or restrictions issued by the Election Commission. Sri Patel bas relied on Samyukta Socialist Party (supra). That decision was given under rule 5 at time !'hen 0 the Commission had not. enacted the Order. As the present case is now directly governed by the provisions of the Order, the appellants c:'annot derive any help from that decision.

For the reasons already discussed, we find no force in this appeal, and it is dismissed with costs.