{"id":7257,"date":"1973-11-14T00:00:00","date_gmt":"1973-11-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ramashankar-kaushik-and-another-vs-election-commission-of-india-and-on-14-november-1973"},"modified":"2015-04-22T15:39:32","modified_gmt":"2015-04-22T10:09:32","slug":"ramashankar-kaushik-and-another-vs-election-commission-of-india-and-on-14-november-1973","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ramashankar-kaushik-and-another-vs-election-commission-of-india-and-on-14-november-1973","title":{"rendered":"Ramashankar Kaushik And Another vs Election Commission Of India And … on 14 November, 1973"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Ramashankar Kaushik And Another vs Election Commission Of India And … on 14 November, 1973<\/div>\n
Equivalent citations: 1974 AIR 445, \t\t 1974 SCR (2) 265<\/div>\n
Author: S Dwivedi<\/div>\n
Bench: Dwivedi, S.N.<\/div>\n
           PETITIONER:\nRAMASHANKAR KAUSHIK AND ANOTHER\n\n\tVs.\n\nRESPONDENT:\nELECTION COMMISSION OF INDIA AND ANOTHER\n\nDATE OF JUDGMENT14\/11\/1973\n\nBENCH:\nDWIVEDI, S.N.\nBENCH:\nDWIVEDI, S.N.\nREDDY, P. JAGANMOHAN\n\nCITATION:\n 1974 AIR  445\t\t  1974 SCR  (2) 265\n 1974 SCC  (1) 271\n CITATOR INFO :\n RF\t    1977 SC2155\t (22)\n\n\nACT:\nElection  Symbols (Reservation and Allotment)  Order,  1968,\nparas 15, 16 and 18-Scope of.\n\n\n\nHEADNOTE:\nThe  PSP  and SSP were national parties\t with  the  election\nsymbols\t 'Hut' and 'Tree', respectively. in May, 1971  there\nwas a merger of the two parties. and the 'United Party'\t was\nknown  as the Socialist Party.\tThe Election Commission\t was\ninformed   about   the\tmerger,\t and  the   Chief   Election\nCommissioner,  in  November, 1971, held that  the  Socialist\nParty was a National Party for the purposes of the  Election\nSymbols\t (Reservation and Allotment) Order,  1968,  and-that\nthe  symbol  'Tree'  should  be\t exclusively  reserved\t and\nallotted  to it.  Thereafter, the appellant. and  his  group\ndecided to dissolve this unity and they requested the  Chief\nElection  Commissioner to hold that there was a\t rebirth  of\nthe Socialist Party to be called the SSP and that the 'Tree'\nsymbol\tmay  be allotted to the reborn SSP.   The  Socialist\nParty\topposed\t  this\t request.    The   Chief    Election\nCommissioner,  after considering the matter, held  that\t the\nappellant's  party now calling itself SSP could not  be\t the\nold SSP but was a new party, and that the new SSP could\t not\nclaim  the  'Tree symbol for itself.  In  pursuance  of\t the\nfindings,  he issued a notification, under paragraph  17  of\n1968-Order,  mentioning\t the Socialist Party as\t a  National\nParty with 'Tree as its symbol.\nIn appeal to this Court it was contended, (1) that the\tcase\nwas  covered by ,paragraph 15 of the 1968-Order which  deals\nwith  a case where rival sections of a recognised  political\nparty  claim to be that party; (2) the case fell within\t the\nscope  of  rr. 5 and 10 of the Conduct\tof  Election  Rules,\n1961,  and  paragraph 18 of the 1968-Order, and (3)  as\t the\nChief  Election\t Commissioner  did  not\t hold  any   inquiry\nregarding  the\tallegiance of the majority of  members,\t his\norder was void.\nDismissing the appeal to this Court,\nHELD : (1) Paragraph 15 of the Election Symbols (Reservation\nand Allotment) Order, 1968, is not attracted to the facts of\nthe present case. [275D]\nA  new political party is formed by the joining together  of\nat   least  one\t recognised  political\tparty  and   another\npolitical party.  The newly formed political party may apply\nfor  recognition to the Election Commission under  Paragraph\n16 of the Order.  After due hearing, the Election Commission\nmay  recognise the newly formed political party either as  a\nNational Party or as a State Party and may allot a symbol to\nit.  The decision of the Commission is binding on the  newly\nformed political party and all the components units thereof.\nThe  expression \"joining to gather in the paragraph is\tused\nin  its broad meaning.\tThere is nothing in the\t context  to\nrestrict  its  meaning to a case of merger of  two  or\tmore\npolitical  parties  and their resultant\t extinction  on\t the\nformation  of  a  new  political  Party.   The\tuse  of\t the\nexpression \"all the component units thereof\", shows that  it\nwill  also embrace a case of two or more  political  parties\nagreeing  to form or federating into a new  political  party\nwhile  retaining their separate identities.  The  expression\n'joining together' also includes a third type of case  where\ntwo  or\t more politicAL parties, after deciding\t to  destroy\ntheir separate identities, have brought into existence a new\npolitical  party, even though the process of extinction\t was\nnot  formally completed or was invalid and ineffective.\t  In\nsuch a case, they retain their separate identities and\twill\nbe  deemed to be component units of the new party.   In\t the\nsecond and third types of cases also when the Commission has\ngiven  recognition  to the new formed political party  as  a\nNational Party or a State Party and has allotted a symbol to\nit,  his  order\t will  be binding on  them  since  they\t are\ncomponent units of the new party. [274D-275D]\nIn the present case, the appellant's group did not claim the\nSocialist Party already recognised.  The case set up by\t the\nappellant's group was that the\n2 66\nSocialist Party had-been dissolved and that a new  Socialist\nparty\twas.   reborn.\t Admittedly  there   are   important\ndifferences  between the reborn SSP and the Socialist  Party\nrecognised by the Chief Election Commissioner.\tTheir flags,\ntheir constitutions and their membership are all  different.\n[275D-F]\nSadiq  Ali v. Election Commission of India,<\/a> [1972] 2  S.C.R.\n318, referred to.\n(2)(a)\tRule 5 of the Conduct of Election Rules, deals\twith\nthe case where the Election Commission specifies the symbols\nthat  may  be  chosen by  candidates  in  parliamentary\t and\nassembly  constituencies.  Rule 10(4) will apply only  in  a\ncase  where the Returning Officer is considering the  choice\nof  a  symbol  expressed by a contesting  candidate  in\t his\nnomination paper.  These rules will not apply to the present\ncase.  Further, the provisions of paragraph 16 of the  Order\nwill prevail over rr. 5 and 10, because, they are  expressly\nsubject to any general or special directions or restrictions\nissued by the Election Commission.  The Order had been\tmade\nby  the Election Commission in exercise of its powers  under\nArt.  324 of the Constitution read with rr. 5 and 10 of\t the\nConduct of Election Rules. [271H; 276C-D]\n(b)   Paragraph\t 18(b)\tof  the\t Order\tprovides  that\t the\nCommission  may\t issue instructions and directions  for\t the\nremoval of any difficulty which may arise in relation to the\nimplementation\tof  the\t provisions of the  Order.   In\t the\npresent\t case,\tno difficulty could arise in regard  to\t the\nimplementation of paragraph 16 of the Order.  Assuming\tthat\nthe merger of the SSP in the Socialist Party was not a valid\nand accomplished fact on the date when the symbol 'Tree' was\nallotted  to  the Socialist Party and that the old  SSP\t had\nbeen  enjoying a ceaseless existence, even then, the SSP  is\nbound  by  the decision of the Chief  Election\tCommissioner\nunder  paragraph 16(2), because, it would be regarded  as  a\ncomponent unit of the Socialist Party. [275F-H]\n(3)It is not necessary on this view to decide whether  the\nSSP had merged in the Socialist Party and lost its  separate\nidentity  and  whether the association of  the\ttwo  parties\ncould be dissolved by a majority. [276A]\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 630 of 1973.
\nAppeal\tby Special Leave from the Judgment and\tOrder  dated
\nthe  14th March, 1973 of the Chief Election Commissioner  of
\nIndia, New Delhi. regarding Symbol of the Samyukt  Socialist
\nParty.\n<\/p>\n
D. V.  Patel,  J.  P. Goyal, Pranab Chaterjee  and  R.\tA.
\nGupta, for the appellants.\n<\/p>\n
B.   Sen and S. P. Nayar, for respondent No. 1.
\nS.   C. Malik, S. K. Mehta Santokh Singh, K. R. Nagaraja, M.
\nQamaruddin and Vinod Dhawan, for respondent No. 2.
\nThe Judgment of the Court was delivered by
\nDWIVEDI, J. Before Independence the Congress Socialist Party
\nfunctioned  as a group inside the Indian National  Congress.
\nAfter  Independence it had to quit the Congress, and  became
\nknown  as  the Socialist Party.\t On the eve of\tthe  general
\nelection  in 1952 another group of persons came out  of\t the
\nCongress.   They  formed  a new\t party\tcalled\tthe  Krishak
\nMazdoor\t Praja Party.  The Socialist Party and\tthe  Krishak
\nMazdoor\t Praja\tParty participated in  the  first  election.
\n‘Tree’\twas the symbol of the Socialist Party; ‘Hut’ of\t the
\nKrishak\t Mazdoor  Praja Party.\tSome time in  1953  the\t two
\nparties\t merged together and formed a new party\t called\t the
\nPraja  Socialist Party (hereinafter called the\tP.S.P.).  It
\nwas  allotted the symbol of ‘Hut’.  This unity was not\tlong
\nlived.\tIn 1956 a group of persons came out of the
\n2 67
\nP.S.P.\tThey  reformed the Socialist Party.   The  Socialist
\nParty  was allotted the symbol ‘Tree’.\tThe P.S.P.  retained
\nits  symbol  ‘Hut’.   The two parties  participated  in\t the
\nsecond\tgeneral\t election  in  1957  with  their  respective
\nsymbols.  In 1964 the P.S.P. and the Socialist Party  merged
\nto  form  a new party called the  Samyukta  Socialist  Party
\n(hereinafter  referred\tto as, the S.S.P.). This  party\t was
\nallotted the symbol ‘Hut’.  This unity also was short lived.
\nIn  1965 there was a split.  One group came to be  known  as
\nP.S.P., and the other as S.S.P. The P.S.P. got back its\t old
\nsymbol\t‘Hut’,\tthe  S.S.P. got\t the  symbol  ‘Tree’.\tThey
\nparticipated  in  the  general election\t of  1967  and\tbye-
\nelections  in 1969 with their respective symbol.   The\turge
\nfor unity was again strongly felt after the general election
\nto  the Lok Sabha in 1971 in which both parties made a\tvery
\npoor  showing.\t It appears that on May 25,  1971,  a  joint
\nmeeting\t of  the  Chairman and General\tSecretaries  of\t the
\nP.S.P.\tand  the S.S.P. was held to draft an  agreement\t for
\nmerger\tof  the\t two parties for consideration\tby  the\t two
\nparties.    They  succeeded  in\t hammerging  out   a   draft
\nagreement.  The draft agreement was entitled the “basis\t for
\nthe  unification of the S.S.P. and the P.S.P.” It is a\tlong
\ndocument.   It\tlaid emphasis on a broadbased unity  of\t all
\ndemocratic   socialists\t who  have  genuine  commitment\t  to
\ndemocratic  socialism.\t It  expressed the  hope  that\t“the
\nunification of the S.S.P. and the P.S.P. can be a  precursor
\nto such a broadbased socialist consolidation.” According  to
\nit, the “primary task of the unified Socialist Party will be
\nto  build an effective organisational instrument which\twill
\nlead   people’s\t struggle  for\teconomic  equality,   social
\nmobility   and\tmeaningful  participation  of\tthe   people
\nin.building  a\tsocialist economy.” The\t document  uses\t the
\nexpression “United Party” in various clauses.  For instance,
\nit says : “The United Party will pursue an integrated  price
\npolicy whose important elements will be : (1) Parity between
\nthe prices of the agricultural produce and industrial  goods
\n;(2) the price of essential commodities not to exceed 1\t 1\/2
\ntimes  the  coast  of  production  including  the  transport
\ncharges;  (3)  assurance  of a remunerative  price  for\t the
\nagricultural   produce\t and   elimination   of\t  occasional
\nfluctuations   in  price;  and\t(4)  Socialisation  of\t the
\nwholesale trade in foodgrain and other essential commodities
\nand   their  effective\tdistribution   through\t cooperative
\nagencies.” As regards organisational unification of the\t SSP
\nand  the PSP, the agreement provided for the formation of  a
\nNational   Ad-hoc  Committee  comprising  of  the   National
\nExecutive  Committees  of  the S.S.P.  and  the\t P.S.P.\t The
\nNational Ad-hoc Committee of the United Party would  appoint
\noffice\tbearers\t of  the new party and also  set  up  ad-hoc
\ncommittees at State level.  It was decided that “the name of
\nthe United Party will be Socialist Party”.  The National Ad-
\nhoc  Committee would prepare the membership pledge  for\t the
\n“New  Party”  and would fix up the membership year  and\t the
\ndate  and  venue  of the first National\t Conference  of\t the
\nUnited\tParty.\t The  document is signed by  Sarvsri  N.  G.
\nGoray,\tKarpoori Thakur, Prem Bhasin and  Georpg  Fernandes.
\nThe  draft  agreement  was approved by\ta  Special  National
\nConference  of the S.S.P. held at Barhiya in Bihar  on\tJune
\n19, 1971.  The Conference approved the proposal “relating to
\nS.S.P.\tand  P.S.P. unification”.  An  identical  resolution
\nwas, passed by the Special National Conference of the P.S.P.
\nheld  at  Bulandshahr in U.P. on August 7, and 8,  1971.  it
\nappears that after the passing of these Iwo resolutions,
\n268<\/span>
\nthe  S.S.P.  and the, P.S.P. formed a new party\t called\t the
\nSocialist  Party.   A  National\t Ad-hoc\t Committee  of\t the
\nSocialist  Party  was  constituted.   The  National   Ad-hoc
\nCommittee  held its first meeting in the Constitution  Club,
\nNew  Delhi  on\tAugust 9 and 10, 1971.\t51  members  of\t the
\nCommittee  were\t present  in  the  meeting.   Seven  special
\ninvitees  also\tattended the meeting.\tThe  Committee\ttook
\nseveral\t decisions.   Sri  Karpoori  Thakur  and  Sri  Madhu
\nDandavate  were elected unanimously as Chairman and  General
\nSecretary   of\tthe  party.   The  Committee  ratified\t the
\nagreement arrived at amongst the General Secretary of the  ”
\nerstwhile S.S.P.”, the General Secretary of the,  “erstwhile
\nP.S.P.”\t and the Chairman of the “old I.S.P.” regarding\t the
\nrepresentation\tof the old I.S.P., Socialist  Party  (U.P.),
\nSocialist  Party  (Bihar)  and\tthe  Socialist\tParty  (West
\nBengal)\t in the National Ad-hoc Committee of  the  Socialist
\nParty.\t  The  Chairman\t and  the  General  Secretary\twere
\nauthorised  to\ttake  a decision in  the  matter  of  giving
\nrepresentation\tin the Committee to the I.S.P.\t(Bihar)\t and
\nother  groups  which  decided to merge in  the\tParty.\t The
\nCommittee  also took a decision as regards the\tParty  flag.
\nIt- decided that the flag of the party will be :\n<\/p>\n
\t      “Red  Band, above,, white band in the  middle,
\n\t      Red band below.  Insignia of wheel and  plough
\n\t      to  be  painted in red in the  middle  of\t the
\n\t      white band.”\n<\/p><\/blockquote>\n
No final decision could be taken on the election symbol, and
\nthe  issue  Was\t postponed for\tconsideration  in  the\tnext
\nmeeting.   Certain  decisions were taken in  regard  to\t the
\nformation of State Ad-hoc Committees and District Committees
\nof  the Socialist Party.  Decision was also taken in  regard
\nto   membership\t of  the  Socialist  Party.   The  form\t  of
\nmembership  was also adopted.  Sri Madhu Dandavate,  General
\nSecretary  of the Socialist Party, despatched copies of\t the
\nresolutions   of  the  National\t Ad-hoc\t Committee  of\t the
\nSocialist  Party to the State and District units  on  August
\n14, 1971.  On August 18, 1971 Sri George Fernandes,  General
\nSecretary  of  the, erstwhile S.S.P. sent a  letter  to\t the
\nElection   Commissioner.   An  identical  letter   proceeded
\nsimultaneously\tto the Election Commissioner from  Sri\tPram
\nBhasin, General Secretary of the erstwhile P.S.P. Both these
\nletters\t state\tthat  the S.S.P. and the  P.S.P.  have\t“now
\nmerged\t….  to form the new Socialist Party.”\t Sri  George
\nFernandes  requested the Election Commissioner to allot\t the
\nsymbol\t“Tree” to the Socialist Party.\tSimilarly, Sri\tPrem
\nBhasin requested that the symbol “Hut” should be allotted to
\nthe Socialist Party. On August 23, 1971 Sri Surendra  Mohan,
\nJoint Secretary of the Socialist Party, sent a letter to the
\nChief  Election\t Commissioner along with the  two  aforesaid
\nletters\t as enclosures.\t His letter states that “both  these
\nparties have now merged alongwith some others to create\t the
\nSocialist Party.” The letter concluded by saying that  until
\na  request  for\t reservation  of  symbol  was  made  by\t the
\nSocialist  Party, the symbol ‘Hut’ and ‘Tree should  not  be
\nallotted  to any other party.  It appears that the  National
\nAd-hoc\tCommittee of the Socialist Party met in\t Lonavla  on
\nOctober\t 22, 23 and 24, 1971 and took a decision as  regards
\nits  election  symbol.\t It  opted  for\t the  symbol  ‘Tree.
\nAccordingly,  on  November 5, 1971 Sri Surendra\t Mohan\tsent
\nanother\t letter\t to  the  Chief\t Election  Commissioner\t for
\nreservation  of\t the symbol ‘Tree’ to the  Socialist  Party.
\nParagraph  1  of the letter states that\t the  ‘Tree’  symbol
\nwhich was reserved for the S.S.P. should be reserved for the
\nSocialist
\n269<\/span>
\nparty.\tParagraph 2 states that the ‘Hut’ which was reserved
\nfor the PSP should be frozen.  It should not be allotted  to
\nany other party nor included in the list of symbols.   After
\nconsidering  various  documents\t and  hearing  some  of\t the
\nleaders\t of  the erstwhile S.S.P. and P.S.P. as also  a\t few
\npersons\t who were opposed to the merger of various   parties
\nand  formation\tof the socialist party, the  Chief  Election
\nCorn  missioner\t passed an order on November 15,  1971.\t  He
\ncame to the conclusion that the Socialist Party was entitled
\nto  be,\t recognised  as\t a  National  Party.   He  has\talso
\nrecorded,   this  finding  :  “In  the\tcircumstances,\t the
\nCommission    will  not\t be unjustified\t in  coming  to\t the
\nconfusion  that\t the  P.S.P. or the S.S.P.  does  no  longer
\nsubsist as a separate political party after the formation of
\nthe Socialist Party by the amalgam of these two parties\t and
\nsome  other groups.” As regards the dissidents\twho  opposed
\nSri  Surendra  Mohan’s request. he said “In   any  case\t the
\nexistence of a few dissident members in the P.S.P. or the  S
\nS.P.  cannot  be  regarded as a\t ground\t for  the  continued
\nexistence,  of\tthe P.S.P. and S.S.P. as  separate  National
\nPolitical  Parties.” On these findings he decided that\t“the
\nnewly formed Socialist Party formed by the merger of S.S.P.,
\na National Party, p.S.P., another National Party, and  other
\npolitical parties, such as the Indian Socialist Party, is  a
\nNational  Party\t for the purposes of the  Election  Symbols
\n(Reservation  and Allotment) Order, 1968 (hereinafter to  be
\nreferred  as  the Order), and that symbol  ‘Tree’  shall  be
\nreserved exclusively for that party and be allotted to\tit.
\nThis  narrative\t brings to close the first  chapter  of\t the
\nstory.\t We shall now pass-on to the second chapter  of\t the
\nstory.\n<\/p>\n
Somewhere,  in the middle of April, 1972 Sri  Ramashankar  K
\ndeclared  in a Press Conference that Sri Maniram  Bagri\t was
\nelected\t as the General Secretary of the socialist party  in
\nplace\tof  Sri\t Madhu\tDandavate.   This  declaration\t was
\nquestioned by others in the Socialist Party and proved to be
\na harbinger of fissure in the Socialist Party.\tOn May\t13,
\nand  14,  1972,\t certain  Persons  callings  themselves\t  as
\ndelegates of the Poona Conference of the S.S.P. and  certain
\nmembers of the P.S.P. and I.S.P. assembled at Allahabad, The
\nmeeting\t was convened  by sri maniram Balgri.  The  meetings
\ndecided to annul “the ad-hoc merger of the S-S-P. and P.S.P.
\nOn  May\t 21, 1972, Sri Maniram Bagri sent a  letter  to\t the
\nElection  Commission.\tTherein\t he stated  that  the  unity
\nbetween\t the  S.S.P.  and P.S.P. was  void.   The  Allahabad
\nassembly has decided to\t dissolve  this unity and has  given
\nrebirth\t to  the  Socialist Party.  He\trequested  that\t the
\nTree  symbol  should  be allotted to  the  reborn  Socialist
\nParty.\n<\/p>\n
On December 15 and 16, 1972 a Socialist Workers’  Conference
\nwas  held at Patna.  It decided that “the name of the  party
\nwould be Samyukta Socialist Party” and that “the party would
\nadopt  the flag of the former S.S.P. It also.  decided\tthat
\nthe Steering Committee was Conference was held at   Lucknow.
\nThis   Conference  passed  a  resolution.   The\t  resolution
\nrelevantly  reads  :  “The special  national  conference  of
\nsocial\tparty endorses the decision of annulling  the  adhoc
\nmerger\tof  S.S.P  and P.S.P that has  been  passed  by\t all
\nAllahabad  Conference . . . Lest some people might be  under
\nthe illusion this Conference unequivocally declares that the
\nmerger of S.S.P. and P.S.P. herewith
\n270<\/span>
\nstands annulled and the Party that is working in the name of
\nthe   so   called   socialist  party   under   the   General
\nSecretaryship  of Dandavate is not the same as\tthe,  merged
\nparty between S.S.P. and P.S.P.” It also endorsed. the Patna
\ndecision  that\tthe  party should be  called  the  “Samyukta
\nSocialist  Party”.   This  ends the second  chapter  of\t the
\nstory.\n<\/p>\n
The third chapter of the story begins from January 27, 1973.
\nOn  that  date the Chief Election  Commissioner\t received  a
\nletter\tfrom.\tSri Ramashanker Kaushik.  He  has  described
\nhimself in the letter as a Co-convener of S.S.P. The subject
\nmatter\tof  the letter is : “allotment of ‘Tree’  symbol  to
\nS.S.P.”\t It refers to the letter of Sri Maniram Bagri  dated
\nMay 31, 1972 and to his own letter, dated June 21, 1972\t and
\ngoes on to say that “the ad-hoc unity between the S.S.P. and
\nthe P.S.P  has broken down.” It states that 13 members\tfrom
\namongst\t the  25 members of the National  Committee  of\t the
\nformer\tS.S.P.\twere  with  their  party.   Almost  all\t the
\nlegislators of the State Legislatures and Lok Sabha who were
\nelected on S.S.P. ticket were with them.  Thost. legislators
\nwho  were  elected to the State Legislatures in\t 1972  after
\nthem ad-hoc unity were also with them.\tThe letter ends with
\nthe request that the symbol ‘Tree’ should be allotted to the
\nS.S.P.\tThe  Socialist Party opposed this request  and\tthe.
\nChief  Election\t Commissioner forwarded its  caveat  to\t Sri
\nRamashanker Kaushik.  By his letter dated March 13, 1973  he
\nsent  his reply to the caveat.\tOn March 14, 1973 the  Chief
\nElection  Commissioner\tpassed the order  impugned  in\tthis
\nappeal.\t Pursuant to the order, he published a\tnotification
\non  March  29, 1973 under paragraph 17 of the  Order.\tThis
\nnotification  mentions\tthe Socialist Party  as\t a  National
\nParty with its symbol ‘Tree’.\n<\/p>\n
The  Chief  Election  Commissioner  posed  two\tissues\t for
\ndecision (1)   whether Sri Ramashanker Kaushik’s party could
\nbe recognised as the\t S.S.P.; and (2) whether the  symbol
\n‘Tree’ could be reserved for it.\n<\/p>\n
On  the first question he recorded these findings : (1)\t the
\nmerger of the S.S.P. and P.S.P. was complete and irrevocable
\nand  there emerged from this merger a new party\t called\t the
\nSocialist Party; (2) it is no body’s case that the Socialist
\nParty  has ceased to exist; (3) the Constitution of the\t new
\nParty (called the S.S.P.) is different from the Constitution
\nof  the\t merged\t S.S.P. Some of the office  bearers  of\t the
\nformer party are new and were not the office bearers of\t the
\nmerged S.S.P.; and (4) many leaders of the merged %S.P.\t are
\nstill  members of The Socialist party. on these findings  he
\nheld  that the party (now calling itself the S.S.P.)  cannot
\nbe the old S.S.P. and is a new party.\n<\/p>\n
On  the\t second issue he recorded these findings :  (1)\t the
\ndecision of the Chief Election Commissioner regarding merger
\nof the S.S.P. and P.S.P. and the formation of the  Socialist
\nParty  has  been  acted upon by the former  members  of\t the
\nmerged\tS.S.P.\tand  P.S.P.  (2)  the  Socialist  Party\t has
\ncontested  the\telections to the Legislative  Assemblies  of
\nvarious\t States\t held  in 1972 on the basis  of\t the  ‘Tree’
\nsymbol; (3) the Socialist party was formed by the merger  of
\nthe  S.S.P. and P.S.P. and four other parties.\t The  former
\nmembers\t of  the merged P,S.P. and other parties  are  still
\nmembers\t of the Socialist Party.  Only some of\tthe  ‘former
\nmembers of the merged S.S.P. have formed a party which
\n2 71
\nthey  call  as S.S.P.; and (4) the Socialist  Party  is\t now
\nidentified  with  the ‘Tree’ symbol.  On these\tfindings  he
\ncame  to  the conclusion that the party now  calling  itself
\nS.S.P. cannot claim the ‘Tree’ symbol for it self.
\nIt  was\t argued.  before him on behalf\tof  Sri\t Ramashanker
\nKaushik\t that  the decision regarding the allotment  of\t the
\nsymbol should depend upon whether the majority of the former
\nmembers of the merged S.S.P. and the representatives elected
\non the merged S.S.P. and the Socialist Party tickets  belong
\nto the Socialist Party or to the party now called the S.S.P.
\nHe took the view that this question was not relevant on\t the
\nfacts and circumstances of the case, Accordingly, he has not
\nmade an\t inquiry into this question.. As a result  of  his
\nfindings  on the two issues he rejected the applications  of
\nSarvsri Ramashanker Kaushik and Maniram Bagri.\tHe left open
\nto  the\t party now calling itself the S.S.P.  to  apply\t for
\nregistration as a new party under paragraph 3 of the Order.
\nSri  Patel,  counsel  for the  appellants,  has\t made  three
\nsubmissions before us : (1) the case is covered by paragraph
\n15  of\tthe  Order; (2) in the alternative  the\t case  falls
\nwithin\tthe  scope  of\tRules 5 and 10\tof  the\t Conduct  of
\nElection Rules, 1961 and paragraph 18 of the Order; and\t (3)
\nas the Chief Election Commissioner did not hold any  inquiry
\nregarding  the\tallegiance of the majority  of\tmembers\t and
\nelected\t representatives, the order is void.  In support  of
\nhis  arguments he has heavily relied on\t Samyukta  Socialist
\nParty vs.  Election Commission of India<\/a>(1) and Sadiq Ali vs.
\nElection Commission of India.<\/a> (2)
\nIt  should  facilitate the appreciation of arguments  if  we
\nnotice\tthe  relevant provisions of the law at\tthis  stage.
\nClause\t(1) of Art. 324 of the Constitution provides,  inter
\nalia, that the superintendence, direction and conduct of all
\nelections  to  Parliament and to the  Legislature  of  every
\nState  shall be vested in a Commission called  the  Election
\nCommission.  Clause (2) thereof provides that the,  Election
\nCommission  shall consist of a Chief  Election\tCommissioner
\nand  such number of Election Commissioners as the  President
\nmay   from   time  to  time  fix.   Section  2(g)   of\t the
\nRepresentation of the, People Act, 1951 (hereinafter  called
\nthe  Act)  defines the word “prescribed” as  meaning  “pres-
\ncribed by Rules made under this Act.” Section 59 of the, Act
\nprovides that at every election where a poll is taken  votes
\nshall  be  given  by  ballot  “in  such\t manner\t as  may  be
\nprescribed”.  Section 169 deals with the rule making power
\nof the Central Government.  Sub-section (1) thereof empowers
\nthe  Central Government to make rules “for carrying out\t the
\npurposes  of this Act.” Sub-section (2)(c) thereof  provides
\nthat rules may be made with respect to “the manner in  which
\nthe  votes  are to be given both generally and\tin  case  of
\nilliterate  voters.” The Central Government has enacted\t the
\nConduct\t of  Election Rules, 1961  (hereinafter\t called\t the
\nRules).\t Rules 5(1) reads
\n\t      “The   Election  Commission  s  I\t  hall,\t  by
\n\t      notification  in the Gazette of India and\t the
\n\t      official\tGazette of each State,\tspecify\t the
\n\t      symbols  that may be chosen by  candidates  in
\n\t      parliament-\n<\/p>\n
\t      (1) [1967] 1 S.C.R. 643.\n<\/p>\n
\t      (2) [1972] 2 S.C.R. 318.\n<\/p>\n
\t      272<\/span><\/p>\n
\t      ary   or\tassembly  constituencies   and\t the
\n\t      restrictions  to which their choice  shall  be
\n\t      subject.”\n<\/p>\n
\t      Rule 10(4), (5) and, (6) read as follows
\n\t      “(4)  At\tan election in\ta  parliamentary  or
\n\t      assembly\tconstituency, where a  poll  becomes
\n\t      necessary,   the\t returning   officer   shall
\n\t      consider\tthe choice of symbols  expressed  by
\n\t      the contesting candidates in their  nomination
\n\t      papers  and shall, subject to any\t general  or
\n\t      special  direction issued\t in this behalf\t by
\n\t      the Election Commission,-\n<\/p>\n
\t      (a)   allot   a  different  symbol   to\teach
\n\t      contesting candidate in conformity, as far  as
\n\t      practicable, with his choice; and\n<\/p>\n
\t      (b)   if\tmore contesting candidates than\t one
\n\t      have  indicated their preference for the\tsame
\n\t      symbol,  decide  by  lot\tto  which  of\tsuch
\n\t      candidates the symbol will be allotted
\n\t      (5)The  allotment by the returning  officer
\n\t      of  any symbol shall be final except where  it
\n\t      is inconsistent with any directions issued  by
\n\t      the  Election  Commission in  this  behalf  in
\n\t      which case the Election Commission may  revise
\n\t      the allotment in such manner as it thinks fit.
\n\t      (6)Every\tcandidate or his  election  agent
\n\t      shall  forthwith\tbe informed  of\t the  symbol
\n\t      allotted to the candidate and be supplied with
\n\t      a specimen thereof by the returning officer.”
\nWe  now\t pass on to the relevant provisions  of\t the  Order.
\nProfessedly,  the  Order  has  been  made  by  the  Election
\nCommission in exercise of its power under Art. 324 read with
\nrules 5 and 10.\t It was made on August 31, 1968.   Paragraph
\n3 of the Order deals with registration of political  parties
\nby  the Election Commission.  Any association of  citizens,
\ndesiring to be registered as a political party and intending
\nto avail itself of the provisions of the Order, may make  an
\napplication to the Election Commission for its\tregistration
\nas  a  political party for the purpose of  the\tOrder.\t The
\nparagraph  prescribes certain formalities for  registration.
\nAfter  hearing\tthe applicants,\t the  Election\tCommissioner
\nshall  decide  whether to register or not  to  register\t the
\nassociation  as\t a political party for the purposes  of\t the
\nOrder.\t Ms decision shall be final.  Paragraph\t 4  provides
\nthat in every contested election a symbol shall be  allotted
\nto a contesting candidate in accordance with the provisional
\nof  the\t Order and different symbols shall be,\tallotted  to
\ndifferent  contesting candidates at an election in the\tsame
\nconstituency.  According to paragraph 5, there are two kinds
\nof symbols : (1) reserved; and (2) free.  A reserved  symbol
\nis  one which is reserved for a recognised  political  party
\nfor  exclusive allotment to contesting candidates set up  by
\nthat  party.   All other symbols are  free  symbols.   Under
\nParagraph 6 it is open to the Election Commission to specify
\nwhich  political  party shall be regarded  as  a  recognised
\npolitical party or as a non-recognised political party.\t  In
\ncertain contingencies a political party shall be treated  as
\na  recognised  political  party in a  State.   According  to
\nparagraph 7, if a political party is treated as a recognised
\npolitical  party under paragraph 6, in four or more  States,
\nit  shall  be  known  as and shall enjoy  the  status  of  a
\n‘National Party’
\n2 73
\nthroughout  the\t whole of India.  If a\tpolitical  party  is
\ntreated as a recognised political party under paragraph 6 in
\nless than four States, it shall be known and shall enjoy the
\nstatus of a “State Party” in the State or States in which it
\nis a recognised political party.  There is also a  provision
\nto  the effect that every political party which\t immediately
\nbefore the commencement of the Order was a multi-State party
\nshall,\ton  such commencement of the Order,  be\t a  National
\nParty.\tA similar provision is made in regard to a political
\nparty  recognised  as  a  State party.\t Paragraph  8  (1  )
\nprovides that a candidate set up by a National Party at\t any
\nelection  in  any constituency in India “shall\tchoose,\t and
\nshall be allotted the symbol reserved for that party in that
\nState  and no, other symbol.”‘ There is a similar  provision
\nin regard to a State Party.  Sub-paragraph 3 of paragraph  8
\nprovides  that\ta  reserved symbol shall not  be  chosen  or
\nallotted  to any candidate in any constituency other than  a
\ncandidate  set up by a National Party for whom\tsuch  symbol
\nhas  been reserved or up candidate set up by a\tState  Party
\nfor whom such symbol has been reserved in the State in which
\nit is a State Party even if no candidate has been set up  by
\nsuch   National\t or  State  Party  in\tthat   constituency.
\nAccording  to  paragraph 9, a symbol. reserved for  a  State
\nParty  may  be included in the list of free symbols  in\t any
\nState in which that party is not a State Party.\t The  symbol
\nwill  be  not allotted to a candidate set up  by  any  other
\npolitical  party  for  that  State.   It  may,\thowever,  be
\nallotted   to\tany   independent   Candidate\tin   certain
\ncircumstances.\t According to paragraph 10, a candidate\t set
\nup by a State Party in which it is not recognised as a State
\nParty  may exclusively be allotted the symbol  reserved\t for
\nthe  State  Party  in  certain\tconditions.   According\t  to
\nparagraph 11, if a symbol has been exclusively allotted to a
\ncandidate set up by a political Party at the election in the
\nparliamentary constituency that symbol shall not be allotted
\nto any candidate at any election in any of the said assembly
\nconstituencies\twhich is being held simultaneously with\t the
\nparliamentary  election.   According to paragraph  12,\tfree
\nsymbols may be chosen by a candidate, other than a candidate
\nset up by a National Party or a candidate set up by a  State
\nParty.\tParagraph 15 is important in I this appeal. It reads
\n:\n<\/p>\n
\t      “Were   the   Commission\t is   satisfied\t  on
\n\t      information  in its possession that there\t are
\n\t      rival  sections  or  groups  of  a  recognised
\n\t      political party each of whom claims to be that
\n\t      party,  the Commission may, after taking\tinto
\n\t      account\tall   the   available\tfacts\t and
\n\t      circumstances  of\t the case and  hearing\tsuch
\n\t      representatives of the sections or group s and
\n\t      other  persons as desire to be  heard,  decide
\n\t      that  one such rival section or group or\tnone
\n\t      of such rival sections or groups is that
\n\t      recognised political party and the decision
\n\t      of the Commission shall be binding or all such
\n\t      rival sections or groups”;\n<\/p><\/blockquote>\n
\t      Paragraph\t  16  is  also\trelevant   for\t our
\n\t      purposes.\t It reads
\n\t      “(1)  When two or more political parties,\t one
\n\t      or  some\tor  all\t of  whom  is  a  recognised
\n\t      political\t party or are, recognised  political
\n\t      parties, join together to form a new political
\n\t      party,  the Commission may, after taking\tinto
\n\t      account all the
\n\t      274<\/span>
\n\t      facts  and circumstances of the case,  hearing
\n\t      such representatives of the newly formed party
\n\t      and  other persons as desire to be  heard\t and
\n\t      having regard to the provisions of this Order,
\n\t      decide-\n<\/p><\/blockquote>\n
\t      (a)   whether  such newly formed party  should
\n\t      be a National Party or a State Party; and\n<\/p><\/blockquote>\n
\t      (b)   the symbol to, be allotted to it.<\/p><\/blockquote>\n
\t       (2)  The\t decision  of the  Commission  under
\n\t      subparagraph(1) shall be binding on the  newly
\n\t      formed political\tparty and all the component units
\nthereof.”\n<\/p>\n
\t      Paragraph\t 17  authorises\t the  Commission  to
\n\t      issue  a notification in the Gazette of  India
\n\t      specifying  (a) the National parties  and\t the
\n\t      symbols  respectively reserved for  them,\t (b)
\n\t      the State parties\t and ‘ the symbols reserved
\n\t      for  them,  (c)  the  unrecognised   political
\n\t      parties;\tand  (d)the free  symbols  for\teach
\n\t      State.\n<\/p><\/blockquote>\n
\t      Sri Patel has also relied on paragraph  18(b).<\/p><\/blockquote>\n
\t      It reads
\n\t      “The  Commission\tmay issue  instructions\t and
\n\t      directions\n<\/p>\n
\t      (b)   for the removal of any difficulty  which
\n\t      may arise in relation to the implementation of
\n\t      any such provision.”,
\nIt is first necessary to consider the impact of paragraph 16
\non  this  ,case.   A new political party is  formed  by\t the
\njoining together of at least one recognised political  party
\nand  another  political party.\tThe newly  formed  political
\nparty  may apply for recognition to the Election  Commission
\nunder  paragraph  16.\tAfter  due  hearing,  the   Election
\n,Commission  may recognise the newly formed political  party
\neither as a National Party or as a State Party and may allot
\na  symbol to it.  The decision of the Commission is  binding
\non  the newly formed political party and “all the  component
\nunits thereof.” The two significant expressions in paragraph
\n16  are\t ”  dining together” and “all  the  component  units
\nthereof.”  According to the Webster’s New World\t Dictionary,
\n1962  Edn. page 789 the word “join” has these meanings\t“(1)
\nto  place  together,  bring together,  connect,\t   pass\t on,
\ncombine;  (2) to make into one, unite; (3) to become a\tpart
\nor  a member of; enter into association with; (4) to  go  to
\nand  combine  with;  (5) to enter into\tthe  company  of;  a
\ncompany; (6) to go and take one’s proper place in.” The word
\nhas evidently got several meanings.  When it is used in\t the
\nsense  of  “combine”,  it may  imply  mingling\ttogether  of
\nthings,often  with  a loss of distinction of  elements\tthat
\ncompletely  merge with one another.  When it is used in\t the
\nsense of “unite”, it implies joining or combining of  things
\nto  form  a single whole.  When it is used in the  sense  of
\n“associate”,  it implies joining with another or  others  as
\ncompanion,  partner etc.  According to the same\t dictionary,
\nthe  word “component” is derived from “Corn” plus  “Ponere”.
\nCompuserve  means  serving  as one of the  parts  of  whole,
\nconstituent.   So  the\tword corn,  potent  means  :  “part,
\nconstituent, ingredient.”\n<\/p>\n
The  expression\t “joining together” in\tparagraph  16(1)  is
\napparently  used in its broad meaning.\tThere is nothing  in
\nthe  context to restrict its meaning to a case of merger  of
\ntwo or more political parties and
\n275<\/span>
\ntheir resultant extinction on formation of a new  political
\nparty.- It will also embrace a case of two or more political
\nparties\t agreeing  to  form  a\tnew  political\tparty  while
\nretaining  their separate identity.  Our  construction\tgets
\nsupport\t from  the  expression\t“all  the  component   units
\nthereof.” We think this expression is included in  paragraph
\n16(2)  with the object of comprehending a case where two  or
\nmore political, parties have federated into a new  political
\nparty  while  retaining their separate identity\t instead  of
\nmerging themselves into the new political party. it seems to
\nus  that this expression also includes in paragraph 16(1)  a
\nthird  type  of case where two or  more\t political  parties,
\nafter  deciding\t to destroy their  separate  identity,\thave
\nbrought\t into  existence a new political party\teven  though
\nthe,  process of extinction is not formally completed or  is
\ninvalid and ineffective.  In such a case, they retain  their
\nseparate  identity and will be deemed to be component  units
\nof  the new party.  In the second and third types, when\t the
\nCommission  has\t given\trecognition  to\t the  newly   formed
\npolitical  party as a National Party or a State\t Party\tand
\nhas  allotted a symbol to it, his order will be\t binding  on
\nthem as they should be regarded as the “component units”  of
\nthe new party.\n<\/p>\n
Returning  to the arguments of Sri Patel, we are of  opinion
\nthat paragraph 15 of the Order is not attracted to the facts
\nof  the Present case.  The appellants did not  claim  before
\nthe Chief Election Commissioner that their group represented
\nthe  Socialist\tParty recognised under paragraph 16  of\t the
\nOrder.\t The case set up by Sri Maniram Bagri was  that\t the
\nSocialist  Party has been dissolved and that  the  Socialist
\nParty  is reborn  Sri Kaushik also pressed the claim of\t the
\nS.S.P.\tagainst the Socialist Party.  Admittedly  there\t are
\nimportant  differences between the S.S.P. and the  Socialist
\nParty.\t  Their\t  flags\t  are  different;   so\t are   their
\nconstitutions.\t Their\tmembership is also  different.\t The
\nS.S.P.\tdoes not claim that it is the Socialist\t Party.\t  On
\nthe facts of the present case, the appellants cannot  derive
\nany  assistance from the decision in Sadiq Ali (supra).\t  In
\nthat case two rival groups claimed to be the Indian National
\nCongress.\n<\/p>\n
The  next  argument  of\t Sri  Patel  also  cannot  prevail’.
\nParagraph  18(b) of the Order provides that  the  Commission
\nmay issue instructions and directions for the removal of any
\ndifficulty which may arise in relation to the implementation
\nof  the provisions of the Order.  Obviously,  no  difficulty
\ncan arise in regard to the implementation of paragraph 16 of
\nthe Order in the present case.\tFor the sake of argument, it
\nmay  be\t assumed that the merger of the\t Samyukta  Socialist
\nParty\tin  the\t Socialist  Party  was\tnot  a\t valid\t and
\naccomplished  fact  on the date when the symbol\t “Tree”\t was
\nallotted to the Socialist Party under paragraph 16 and\tthat
\nthe  Samyukta Socialist Party has been enjoying a  ceaseless
\nexistence.   Even so, the Samyukta Socialist Party is  bound
\nby  the\t decision of the Chief Election\t Commissioner  under
\nparagraph  16(2) because the Samyukta Socialist Party  would
\nbe regarded as a component unit of the Socialist Party.\t  It
\ncannot\tnow go back from his decision and claim\t the  symbol
\n“Tree”.\t it should be observed that it has not\tbeen  proved
\nthat the Socialist Party has ceased to exist.
\n2 76
\nOn  the\t view that we are taking,, it is  not  necessary  to
\ndecide whether the S.S.P. had merged in the Socialist  Party
\nand destroyed its separate identity.  But we should  observe
\nthat if–it were necessary for us to decide that matter,  we
\nshould have required evidence on certain aspects.  Two vital
\nelements of an association are members and a common purpose
\nfor which they associate.  If an association is\t constituted
\nunder a statute; it can be dissolved only in accordance with
\nthat statute; if it is organised on the basis of a contract,
\nthen  it can be dissolved only in accordance with the  terms
\nof  the contract, commonly called the constitution.  If\t the
\nconstitution provides for dissolution by the consent of\t all
\nthe  members, the rule of decision by majority is  excluded.
\nThere seems to be no evidence on these material aspects.
\n The last argument also does not prevail.  Rule 10(4) of the
\nRules  will  apply  only  when\tthe  Returning\tOfficer\t  is
\nconsidering the choice of a symbol expressed by a contesting
\ncandidate  in  his nomination paper.  We are  not  concerned
\nwith  such  a case at present.\tRule 5 will also  not  apply
\nnow.   The  provisions\tof paragraph 16 of  the\t Order\twill
\nprevail over rules 5 and 10 because rules 5 and 10 expressly
\nare  subject  to  any  general\tor  special  directions\t  or
\nrestrictions  issued by the Election Commission.  Sri  Patel
\nhas  relied  on\t Samyukta  Socialist  Party  (supra).\tThat
\ndecision  was  given  under  rule  5  at  a  time  when\t the
\nCommission had not enacted the, Order.\tAs the present\tcase
\nis now directly governed by the provisions of the Order, the
\nappellants cannot derive any help from that decision.
\nFor the reasons already discussed, we find no force in\tthis
\nappeal, and it is dismissed with, costs.\n<\/p>\n
V.P.S.\n<\/p>\n
Appeal dismissed.\n<\/p>\n
2 77<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Ramashankar Kaushik And Another vs Election Commission Of India And … on 14 November, 1973 Equivalent citations: 1974 AIR 445, 1974 SCR (2) 265 Author: S Dwivedi Bench: Dwivedi, S.N. PETITIONER: RAMASHANKAR KAUSHIK AND ANOTHER Vs. RESPONDENT: ELECTION COMMISSION OF INDIA AND ANOTHER DATE OF JUDGMENT14\/11\/1973 BENCH: DWIVEDI, S.N. BENCH: DWIVEDI, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-7257","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nRamashankar Kaushik And Another vs Election Commission Of India And ... on 14 November, 1973 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ramashankar-kaushik-and-another-vs-election-commission-of-india-and-on-14-november-1973\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ramashankar Kaushik And Another vs Election Commission Of India And ... on 14 November, 1973 - 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