PETITIONER: RAMASHANKAR KAUSHIK AND ANOTHER Vs. RESPONDENT: ELECTION COMMISSION OF INDIA AND ANOTHER DATE OF JUDGMENT14/11/1973 BENCH: DWIVEDI, S.N. BENCH: DWIVEDI, S.N. REDDY, P. JAGANMOHAN CITATION: 1974 AIR 445 1974 SCR (2) 265 1974 SCC (1) 271 CITATOR INFO : RF 1977 SC2155 (22) ACT: Election Symbols (Reservation and Allotment) Order, 1968, paras 15, 16 and 18-Scope of. HEADNOTE: The PSP and SSP were national parties with the election symbols 'Hut' and 'Tree', respectively. in May, 1971 there was a merger of the two parties. and the 'United Party' was known as the Socialist Party. The Election Commission was informed about the merger, and the Chief Election Commissioner, in November, 1971, held that the Socialist Party was a National Party for the purposes of the Election Symbols (Reservation and Allotment) Order, 1968, and-that the symbol 'Tree' should be exclusively reserved and allotted to it. Thereafter, the appellant. and his group decided to dissolve this unity and they requested the Chief Election Commissioner to hold that there was a rebirth of the Socialist Party to be called the SSP and that the 'Tree' symbol may be allotted to the reborn SSP. The Socialist Party opposed this request. The Chief Election Commissioner, after considering the matter, held that the appellant's party now calling itself SSP could not be the old SSP but was a new party, and that the new SSP could not claim the 'Tree symbol for itself. In pursuance of the findings, he issued a notification, under paragraph 17 of 1968-Order, mentioning the Socialist Party as a National Party with 'Tree as its symbol. In appeal to this Court it was contended, (1) that the case was covered by ,paragraph 15 of the 1968-Order which deals with a case where rival sections of a recognised political party claim to be that party; (2) the case fell within the scope of rr. 5 and 10 of the Conduct of Election Rules, 1961, and paragraph 18 of the 1968-Order, and (3) as the Chief Election Commissioner did not hold any inquiry regarding the allegiance of the majority of members, his order was void. Dismissing the appeal to this Court, HELD : (1) Paragraph 15 of the Election Symbols (Reservation and Allotment) Order, 1968, is not attracted to the facts of the present case. [275D] A new political party is formed by the joining together of at least one recognised political party and another political party. The newly formed political party may apply for recognition to the Election Commission under Paragraph 16 of the Order. After due hearing, the Election Commission may recognise the newly formed political party either as a National Party or as a State Party and may allot a symbol to it. The decision of the Commission is binding on the newly formed political party and all the components units thereof. The expression "joining to gather in the paragraph is used in its broad meaning. There is nothing in the context to restrict its meaning to a case of merger of two or more political parties and their resultant extinction on the formation of a new political Party. The use of the expression "all the component units thereof", shows that it will also embrace a case of two or more political parties agreeing to form or federating into a new political party while retaining their separate identities. The expression 'joining together' also includes a third type of case where two or more politicAL parties, after deciding to destroy their separate identities, have brought into existence a new political party, even though the process of extinction was not formally completed or was invalid and ineffective. In such a case, they retain their separate identities and will be deemed to be component units of the new party. In the second and third types of cases also when the Commission has given recognition to the new formed political party as a National Party or a State Party and has allotted a symbol to it, his order will be binding on them since they are component units of the new party. [274D-275D] In the present case, the appellant's group did not claim the Socialist Party already recognised. The case set up by the appellant's group was that the 2 66 Socialist Party had-been dissolved and that a new Socialist party was. reborn. Admittedly there are important differences between the reborn SSP and the Socialist Party recognised by the Chief Election Commissioner. Their flags, their constitutions and their membership are all different. [275D-F] Sadiq Ali v. Election Commission of India, [1972] 2 S.C.R. 318, referred to. (2)(a) Rule 5 of the Conduct of Election Rules, deals with the case where the Election Commission specifies the symbols that may be chosen by candidates in parliamentary and assembly constituencies. Rule 10(4) will apply only in a case where the Returning Officer is considering the choice of a symbol expressed by a contesting candidate in his nomination paper. These rules will not apply to the present case. Further, the provisions of paragraph 16 of the Order will prevail over rr. 5 and 10, because, they are expressly subject to any general or special directions or restrictions issued by the Election Commission. The Order had been made by the Election Commission in exercise of its powers under Art. 324 of the Constitution read with rr. 5 and 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 implementation of the provisions of the Order. In the present case, no difficulty could arise in regard to the implementation of paragraph 16 of the Order. Assuming that the merger of the SSP in the Socialist Party was not a 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 a ceaseless existence, even then, the SSP is bound by the decision of the Chief Election Commissioner under paragraph 16(2), because, it would be regarded as a component unit of the Socialist Party. [275F-H] (3)It is not necessary on this view to decide whether the SSP had merged in the Socialist Party and lost its separate identity and whether the association of the two parties could be dissolved by a majority. [276A] JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 630 of 1973.
Appeal by Special Leave from the Judgment and Order dated
the 14th March, 1973 of the Chief Election Commissioner of
India, New Delhi. regarding Symbol of the Samyukt Socialist
Party.
D. V. Patel, J. P. Goyal, Pranab Chaterjee and R. A.
Gupta, for the appellants.
B. Sen and S. P. Nayar, for respondent No. 1.
S. C. Malik, S. K. Mehta Santokh Singh, K. R. Nagaraja, M.
Qamaruddin and Vinod Dhawan, for respondent No. 2.
The Judgment of the Court was delivered by
DWIVEDI, J. Before Independence the Congress Socialist Party
functioned as a group inside the Indian National Congress.
After Independence it had to quit the Congress, and became
known as the Socialist Party. On the eve of the general
election in 1952 another group of persons came out of the
Congress. They formed a new party called the Krishak
Mazdoor Praja Party. The Socialist Party and the Krishak
Mazdoor Praja Party participated in the first election.
‘Tree’ 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 a new party called the
Praja Socialist Party (hereinafter called the P.S.P.). It
was allotted the symbol of ‘Hut’. This unity was not long
lived. In 1956 a group of persons came out of the
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P.S.P. They reformed the Socialist Party. The Socialist
Party was allotted the symbol ‘Tree’. The P.S.P. retained
its symbol ‘Hut’. The two parties participated in the
second general election in 1957 with their respective
symbols. In 1964 the P.S.P. and the Socialist Party merged
to form a new party called the Samyukta Socialist Party
(hereinafter referred to as, the S.S.P.). This party was
allotted the symbol ‘Hut’. This unity also was short lived.
In 1965 there was a split. One group came to be known as
P.S.P., and the other as S.S.P. The P.S.P. got back its old
symbol ‘Hut’, the S.S.P. got the symbol ‘Tree’. They
participated in the general election of 1967 and bye-
elections in 1969 with their respective symbol. The urge
for unity was again strongly felt after the general election
to the Lok Sabha in 1971 in which both parties made a very
poor showing. It appears that on May 25, 1971, a joint
meeting of the Chairman and General Secretaries of the
P.S.P. and the S.S.P. was held to draft an agreement for
merger of the two parties for consideration by the two
parties. They succeeded in hammerging out a draft
agreement. The draft agreement was entitled the “basis for
the unification of the S.S.P. and the P.S.P.” It is a long
document. It laid emphasis on a 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. can be a precursor
to such a broadbased socialist consolidation.” According 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 meaningful participation of the people
in.building a socialist economy.” The document uses the
expression “United Party” in various clauses. For instance,
it says : “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 essential commodities not to exceed 1 1/2
times the coast of production including the transport
charges; (3) assurance of a remunerative price for the
agricultural produce and elimination of occasional
fluctuations in price; and (4) Socialisation of the
wholesale trade in foodgrain and other essential commodities
and their effective distribution through cooperative
agencies.” As regards organisational unification of the SSP
and the PSP, the agreement provided for the formation of a
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 United Party will be Socialist Party”. The National Ad-
hoc Committee would prepare the membership pledge for the
“New Party” and would fix up the membership year and the
date and venue of the first National Conference of the
United Party. The document is signed by Sarvsri N. G.
Goray, Karpoori Thakur, Prem Bhasin and Georpg Fernandes.
The draft agreement was approved by a Special National
Conference of the S.S.P. held at Barhiya in Bihar on June
19, 1971. The Conference approved the proposal “relating to
S.S.P. and P.S.P. unification”. An identical resolution
was, passed by the Special National Conference of the P.S.P.
held at Bulandshahr in U.P. on August 7, and 8, 1971. it
appears that after the passing of these Iwo resolutions,
268
the S.S.P. and the, P.S.P. formed a new party called the
Socialist Party. A National Ad-hoc Committee of the
Socialist Party was constituted. The National Ad-hoc
Committee held its first meeting in the Constitution 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. The Committee took
several decisions. Sri Karpoori Thakur and Sri Madhu
Dandavate were elected unanimously as Chairman and General
Secretary of the party. The Committee ratified 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 “old 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 a 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 a decision as regards the Party flag.
It- decided that the flag of the party will be :
“Red Band, above,, white band in the middle,
Red band 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 symbol, and
the issue Was postponed for consideration in the next
meeting. Certain decisions were taken in regard to the
formation of State Ad-hoc Committees and District Committees
of the Socialist Party. Decision was also taken in regard
to membership of the Socialist Party. The form of
membership was also adopted. Sri Madhu Dandavate, General
Secretary 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 a letter to the
Election Commissioner. An identical letter proceeded
simultaneously to the Election Commissioner from Sri Pram
Bhasin, General Secretary of the erstwhile P.S.P. Both these
letters state that the S.S.P. and 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 requested that the symbol “Hut” should be allotted to
the Socialist Party. On August 23, 1971 Sri Surendra Mohan,
Joint Secretary of the Socialist Party, sent a 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 concluded by saying that until
a 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 a decision as regards
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’ symbol
which was reserved for the S.S.P. should be reserved for the
Socialist
269
party. Paragraph 2 states that the ‘Hut’ which was reserved
for the PSP should be frozen. It should not be allotted to
any other party nor included in the list of symbols. After
considering various documents and hearing some of the
leaders of the erstwhile S.S.P. and P.S.P. as also a few
persons who were opposed to the merger of various parties
and formation of the socialist party, the Chief Election
Corn missioner passed an order on November 15, 1971. He
came to the conclusion that the Socialist Party was entitled
to be, recognised as a National Party. He has also
recorded, this finding : “In the circumstances, the
Commission will not be unjustified in coming to the
confusion that the P.S.P. or the S.S.P. does no longer
subsist as a separate political party after the formation of
the Socialist Party by the amalgam of these two parties and
some other groups.” As regards the dissidents who opposed
Sri Surendra Mohan’s request. he said “In any case the
existence of a few dissident members in the P.S.P. or the S
S.P. cannot be regarded as a 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.,
a National Party, p.S.P., another National Party, and other
political parties, such as the Indian Socialist Party, is a
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
reserved 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 of the
story.
Somewhere, in the middle of April, 1972 Sri Ramashankar K
declared in a 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
a harbinger of fissure in the Socialist Party. On May 13,
and 14, 1972, certain Persons callings 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 Balgri. The meetings
decided to annul “the ad-hoc merger of the S-S-P. and P.S.P.
On May 21, 1972, Sri Maniram Bagri sent a letter to the
Election Commission. Therein he stated that the unity
between the S.S.P. and P.S.P. was void. The Allahabad
assembly has decided to dissolve this unity and has given
rebirth to the Socialist Party. He requested that the
Tree symbol should be allotted to the reborn Socialist
Party.
On December 15 and 16, 1972 a 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 the flag of the former S.S.P. It also. decided that
the Steering Committee was Conference was held at Lucknow.
This Conference passed a resolution. The resolution
relevantly reads : “The special national conference of
social party endorses the decision of annulling the adhoc
merger of S.S.P and P.S.P that has been passed by all
Allahabad Conference . . . Lest some people might be under
the illusion this Conference unequivocally declares that the
merger of S.S.P. and P.S.P. herewith
270
stands annulled and the Party that is working in the name of
the so called socialist 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 endorsed. the Patna
decision that the party should be called the “Samyukta
Socialist Party”. 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 a
letter from. Sri Ramashanker Kaushik. He has described
himself in the letter as a 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.” It states that 13 members from
amongst the 25 members of the National Committee of the
former S.S.P. were with their party. Almost all the
legislators of the State Legislatures and Lok Sabha who were
elected on S.S.P. ticket were with them. Thost. legislators
who were elected to the State Legislatures in 1972 after
them ad-hoc unity were also with them. The letter ends with
the request that the symbol ‘Tree’ 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 a notification
on March 29, 1973 under paragraph 17 of the Order. This
notification mentions the Socialist Party as a 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 reserved 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 emerged from this merger a new party called 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.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 a new party.
On the second issue he recorded these 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 former
members of the merged P,S.P. and other parties are still
members of the Socialist Party. Only some of the ‘former
members of the merged S.S.P. have formed a party which
2 71
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 it self.
It was argued. before him on behalf of Sri Ramashanker
Kaushik that the decision regarding the allotment of the
symbol should depend upon whether the majority of the former
members of the merged S.S.P. and the representatives elected
on the merged S.S.P. and the Socialist Party tickets belong
to the Socialist Party or to the party now called the S.S.P.
He took the view that this question was not relevant on the
facts and circumstances of the case, Accordingly, he has not
made an inquiry into this question.. As a 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 the S.S.P. to apply for
registration as a 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 falls
within the scope of Rules 5 and 10 of the Conduct of
Election Rules, 1961 and paragraph 18 of the 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 Commission of India(1) and Sadiq Ali vs.
Election Commission of India. (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 Legislature of every
State shall be vested in a Commission called the Election
Commission. Clause (2) thereof provides that the, Election
Commission shall consist of a 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, People Act, 1951 (hereinafter called
the Act) defines the word “prescribed” as meaning “pres-
cribed by Rules made under this Act.” Section 59 of the, Act
provides that at every election where a poll is taken votes
shall be given by ballot “in such manner as may be
prescribed”. Section 169 deals 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 (2)(c) thereof provides
that rules may be made with respect to “the manner in which
the votes are to be given both generally and 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 Election Commission s I hall, by
notification in the Gazette of India and the
official Gazette of each State, specify the
symbols that may be chosen by candidates in
parliament-
(1) [1967] 1 S.C.R. 643.
(2) [1972] 2 S.C.R. 318.
272
ary or assembly constituencies and the
restrictions to which their choice shall be
subject.”
Rule 10(4), (5) and, (6) read as follows
“(4) At an election in a parliamentary or
assembly constituency, where a poll becomes
necessary, the returning officer shall
consider the choice of symbols expressed by
the contesting candidates in their nomination
papers and shall, subject to any general or
special direction issued in this behalf by
the Election Commission,-
(a) allot a different symbol to each
contesting candidate 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 which of such
candidates the symbol will be allotted
(5)The allotment by the returning officer
of any symbol 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
a specimen thereof by the returning officer.”
We now pass on to the relevant provisions of the Order.
Professedly, 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 registration of political parties
by the Election Commission. Any association of citizens,
desiring to be registered as a political party and intending
to avail itself of the provisions of the Order, may make an
application to the Election Commission for its registration
as a political party for the purpose of the Order. The
paragraph prescribes certain formalities for registration.
After hearing the applicants, the Election Commissioner
shall decide whether to register or not to register the
association as a political party for the purposes of the
Order. Ms decision shall be final. Paragraph 4 provides
that in every contested election a symbol shall be allotted
to a contesting candidate in accordance with the provisional
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 symbols : (1) reserved; and (2) free. A reserved symbol
is one which is reserved for a recognised political 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 Commission to specify
which political party shall be regarded as a recognised
political party or as a non-recognised political party. In
certain contingencies a political party shall be treated as
a recognised political party in a State. According to
paragraph 7, if a political party is treated as a recognised
political party under paragraph 6, in four or more States,
it shall be known as and shall enjoy the status of a
‘National Party’
2 73
throughout the whole of India. If a political party is
treated as a recognised political party under paragraph 6 in
less than four States, it shall be known and shall enjoy the
status of a “State Party” in the State or States in which it
is a recognised political party. There is also a provision
to the effect that every political party which immediately
before the commencement of the Order was a multi-State party
shall, on such commencement of the Order, be a National
Party. A similar provision is made in regard to a political
party recognised as a State party. Paragraph 8 (1 )
provides that a candidate set up by a National Party at any
election in any constituency in India “shall choose, and
shall be allotted the symbol reserved for that party in that
State and no, other symbol.”‘ There is a similar provision
in regard to a State Party. Sub-paragraph 3 of paragraph 8
provides that a reserved symbol shall not be chosen or
allotted to any candidate in any constituency other than a
candidate set up by a National Party for whom such symbol
has been reserved or up candidate set up by a State Party
for whom such symbol has been reserved in the State in which
it is a State Party even if no candidate has been set up by
such National or State Party in that constituency.
According to paragraph 9, a symbol. reserved for a State
Party may be included in the list of free symbols in any
State in which that party is not a State Party. The symbol
will be not allotted to a candidate set up by any other
political party for that State. It may, however, be
allotted to any independent Candidate in certain
circumstances. According to paragraph 10, a candidate set
up by a State Party in which it is not recognised as a State
Party may exclusively be allotted the symbol reserved for
the State Party in certain conditions. According to
paragraph 11, if a symbol has been exclusively allotted to a
candidate set up by a political Party at the election in the
parliamentary constituency that symbol shall not be allotted
to any candidate at any election in any of the said assembly
constituencies which is being held simultaneously with the
parliamentary election. According to paragraph 12, free
symbols may be chosen by a candidate, other than a candidate
set up by a National Party or a candidate set up by a State
Party. Paragraph 15 is important in I this appeal. It reads
:
“Were the Commission is satisfied on
information in its possession that there are
rival sections or groups of a recognised
political party each of whom claims to be that
party, the Commission may, after taking into
account all the available facts and
circumstances of the case and hearing such
representatives of the sections or group s 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 or all such
rival sections or groups”;
Paragraph 16 is also relevant for our
purposes. It reads
“(1) When two or more political parties, one
or some or all of whom is a recognised
political party or are, recognised political
parties, join together to form a new political
party, the Commission may, after taking into
account all the
274
facts and circumstances of the case, hearing
such representatives of the newly formed party
and other persons as desire to be heard and
having regard to the provisions of this Order,
decide-
(a) whether such newly formed party should
be a National Party or a State Party; and
(b) the symbol to, be allotted to it.
(2) The decision of the Commission under
subparagraph(1) shall be binding on the newly
formed political party and all the component units
thereof.”
Paragraph 17 authorises the Commission to
issue a notification in the Gazette of India
specifying (a) the National parties and the
symbols respectively 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. A new political party is formed by the
joining together of at least one recognised political party
and another political party. The newly 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 a National Party or as a State Party and may allot
a symbol to it. The decision of the Commission is binding
on the newly formed political party and “all the component
units thereof.” The two significant expressions in paragraph
16 are ” dining together” and “all the component units
thereof.” According to the Webster’s New World Dictionary,
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 a part
or a member of; enter into association with; (4) to go to
and combine with; (5) to enter into the company of; a
company; (6) to go and take one’s proper place in.” The word
has evidently got several meanings. When it is used in the
sense of “combine”, it may imply mingling together of
things,often with a loss of distinction of elements that
completely merge with one another. When it is used in the
sense of “unite”, it implies joining or combining of things
to form a single whole. When it is used in the sense of
“associate”, it implies joining with another or others as
companion, partner etc. According to the same dictionary,
the word “component” is derived from “Corn” plus “Ponere”.
Compuserve means serving as one of the parts of whole,
constituent. So the word corn, potent means : “part,
constituent, ingredient.”
The expression “joining together” in paragraph 16(1) is
apparently used in its broad meaning. There is nothing in
the context to restrict its meaning to a case of merger of
two or more political parties and
275
their resultant extinction on formation of a new political
party.- It will also embrace a case of two or more political
parties agreeing to form a new political party while
retaining their separate identity. Our construction gets
support from the expression “all the component units
thereof.” We think this expression is included in paragraph
16(2) with the object of comprehending a case where two or
more political, parties have federated into a new political
party while retaining their separate identity instead of
merging themselves into the new political party. it seems to
us that this expression also includes in paragraph 16(1) a
third type of case where two or more political parties,
after deciding to destroy their separate identity, have
brought into existence a new political party even though
the, process of extinction is not formally completed or is
invalid and ineffective. In such a case, they retain their
separate identity and will be deemed to be component units
of the new party. In the second and third types, when the
Commission has given recognition to the newly formed
political party as a National Party or a State Party and
has allotted a symbol to it, his order will be binding on
them as they should be regarded as the “component 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 Commissioner 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(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 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 argument, it
may be assumed that the merger of the Samyukta Socialist
Party in the Socialist Party was not a valid and
accomplished fact on the date when the symbol “Tree” was
allotted to the Socialist Party under paragraph 16 and that
the Samyukta Socialist Party has been enjoying a ceaseless
existence. Even so, the Samyukta Socialist Party is bound
by the decision of the Chief Election Commissioner under
paragraph 16(2) because the Samyukta Socialist Party would
be regarded as a component unit of the Socialist 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.
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On the view that we are taking,, it is not necessary to
decide whether the S.S.P. had merged in the Socialist Party
and destroyed its separate identity. But we should observe
that if–it were necessary for us to decide that matter, we
should have required evidence on certain aspects. Two vital
elements of an association are members and a common purpose
for which they associate. If an association is constituted
under a statute; it can be dissolved only in accordance with
that statute; if it is organised on the basis of a contract,
then it can be dissolved only in accordance with the terms
of the contract, commonly called the constitution. If the
constitution provides for dissolution by the consent 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
considering the choice of a symbol expressed by a contesting
candidate in his nomination paper. We are not concerned
with such a case at present. Rule 5 will also not apply
now. The provisions of paragraph 16 of the Order will
prevail over rules 5 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
has relied on Samyukta Socialist Party (supra). That
decision was given under rule 5 at a time when the
Commission had not enacted the, Order. As the present case
is now directly governed by the provisions of the Order, the
appellants cannot derive any help from that decision.
For the reasons already discussed, we find no force in this
appeal, and it is dismissed with, costs.
V.P.S.
Appeal dismissed.
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