# RAMASHANKAR KAUSHIK AND AJ.'lOTHER v. ELECTION COMMISSION OF INDIA AND ANOTHER

- **Citation:** [1974] 2 S.C.R. 265
- **Court:** Supreme Court of India
- **Decided:** 1974
- **Bench:** P. ] Agan.Mohan. R Eoijy, s. N. D W!VEDI
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ramashankar-kaushik-and-aj-lother-v-election-commission-of-india-and-another-6136
- **Pages:** 12

## Headnote

265
Election Symbols (Resen·ation and Allotmem) Order 1968 p<Uas 15, 16
•nd IS-Scope oj.
'
'
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 November, 1971, held th~t the Soetah.st Party w:u a 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 a 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 a new party, and
th.•t the
"'"' SSP could not claim t~ 'Tree' S)'mbol for itself. In pu~uance of the
findings, he issued a notilic;uion, under parn~aph 17 of 1968-0rdcr, mentioning
llle Socialist !'arty a.s a 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
a 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 AllotJnent) Order. 1968, i' not ullracted to the facts of the prcs~nt case. [2750]
. A 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 E lectlun Comouss10n mny recogniSe
the newly fnrrncd political party either as n National Party .o~ a.s !1 Sf:atc. Party
tnd nuy allot a 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 the con(eKt to rc>trict its meanin.g I'? n case of
merg~ r of
•~o or more rolitical portk"' und their resultant exuncuon on the formation ?f
a 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 identui~.
The upre,<ion 'joini.ng tl'cether' :t!<O ind•tJe. a th•:J tv~
~
1
·~\e "·.h~re '"'O or moro political parttC'J, o(t.cr do:d.t!tng to dest.roy thetr sep.lc iolcnltu~. bave broul\hl into cxi.>tcnce a new pohttcal party, even though. the
r OCN Of utin(.1ion wa~ not forma(Jy comph:tcd or Wa• invnliJ tln<l indle~lt\'C.
Po 'Uch ~ t>\e. they retain their ,cparale iJentllic• and will be deemcJ to 1-c ,...,m-
' 11 tJ;"'"1 ~•ltr nl lilt new partv
Tn the oeconJ anJ thirJ tYT'C\ or c:t~~ aho tvhen
~~~lornmin lon bas gh•en r~cognitlon to the new formed politic:!! partv
~:, t!
bir~:t"•l Porty or a 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~~ the P•N:nt ca•e. the oppcll~nt't group did not claim the Social1~
1 to::r~
Y rc~&ni-.cd. ~
case set up by the nppenant's croup wa•
a
r
f
I
I I l
266
SUPREME COURT REPORTS
[ 1974 J 2 s.c.R.
Socialist Party had

## Text

_Characters 0–39,820 of 40,064. This is a partial read: ask again with offset=39820 for what follows._

.8
D
E
. . F
c
RAMASHANKAR KAUSHIK AND AJ.'lOTHER .
v.
ELECTION COMMISSION OF INDIA AND ANOTHER
Nopember 14, 1973
[P. ] AGAN.MOHAN. R EOIJY AND s. N. D W!VEDI, JJ.]
265
Election Symbols (Resen·ation and Allotmem) Order 1968 p<Uas 15, 16
•nd IS-Scope oj.
'
'
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 November, 1971, held th~t the Soetah.st Party w:u a 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 a 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 a new party, and
th.•t the
"'"' SSP could not claim t~ 'Tree' S)'mbol for itself. In pu~uance of the
findings, he issued a notilic;uion, under parn~aph 17 of 1968-0rdcr, mentioning
llle Socialist !'arty a.s a 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
a 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 AllotJnent) Order. 1968, i' not ullracted to the facts of the prcs~nt case. [2750]
. A 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 E lectlun Comouss10n mny recogniSe
the newly fnrrncd political party either as n National Party .o~ a.s !1 Sf:atc. Party
tnd nuy allot a 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 the con(eKt to rc>trict its meanin.g I'? n case of
merg~ r of
•~o or more rolitical portk"' und their resultant exuncuon on the formation ?f
a 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 identui~.
The upre,<ion 'joini.ng tl'cether' :t!<O ind•tJe. a th•:J tv~
~
1
·~\e "·.h~re '"'O or moro political parttC'J, o(t.cr do:d.t!tng to dest.roy thetr sep.lc iolcnltu~. bave broul\hl into cxi.>tcnce a new pohttcal party, even though. the
r OCN Of utin(.1ion wa~ not forma(Jy comph:tcd or Wa• invnliJ tln<l indle~lt\'C.
Po 'Uch ~ t>\e. they retain their ,cparale iJentllic• and will be deemcJ to 1-c ,...,m-
' 11 tJ;"'"1 ~•ltr nl lilt new partv
Tn the oeconJ anJ thirJ tYT'C\ or c:t~~ aho tvhen
~~~lornmin lon bas gh•en r~cognitlon to the new formed politic:!! partv
~:, t!
bir~:t"•l Porty or a 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~~ the P•N:nt ca•e. the oppcll~nt't group did not claim the Social1~
1 to::r~
Y rc~&ni-.cd. ~
case set up by the nppenant's croup wa•
a
r
f
I
I I l
266
SUPREME COURT REPORTS
[ 1974 J 2 s.c.R.
Socialist Party had been dissolved and that a 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 a symbol ex·
pressed by a 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 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 Ia bound by the decision of the Chief Election
Commissioner under paraeraph· ~6(2), because, it would be regarded as a 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 a 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
c
D
E
B. Sen and S. P. Nayar, for respondent No. I.
F
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 a group inside the Indian National Congress.
After
G
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.
'Tree1 was the symbol of the Socialist Party;
'Hut' of the Krishak
Mazdoor Praja Party.
Some time in 1953 the two parties merged
H
together and formed a 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 a group of persons came out of the
RAMASHANW V. ELECTION _COMMISSION (Dwivedi, /.)
267
I
A
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! a 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 a split. One
B
. 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
_, ..
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4
felt after the general election to the Lok Sabha in 1971 in which both
pa.r~es mad~ a very poor ~bowing. It appears that on May 25, 1971,
a JOint meetmg of the Chairman and General Secretaries of the P.S.P.
C
;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 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.
0
can be a. precursor to such a broadbased socialist consolidation."
. . 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
E
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 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 food grain and other
essential commodities and their effective distribution through coopera·
F
tive 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
G
vwuld _prepare the membership pledge for the "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 a Special. National Conference
of the S.S.P. held at Barhiya in Bihar on June 19,· 1971.
Th~ ~onH
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,
268
SUPREME COURT REPORTS
( 1974] 2 S.C.R·
the S.S,.P. and the P.S.P. form~d a new party called the Socialist Party.
A
A Nat10nal Ad-hoc Committee of the Socialist Party was constituted.
The National Ad-hoc _Committee held its first nieeting 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.
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
I
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· c
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 hi~:
"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."
D
No final decision could be taken on the election Siymbol, and the issue
'
was postponed for consideration in the next meeting. Certain <kcisions 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 Secrctary of the Socialist Party, despatched copies of the resolutions of the
E
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 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
F
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 b~ 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
G
Socialist Party.'• The letter conclud~d 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 ref
gards its election symboL It opted for the symbol 'Tree'. Accordingly,
on November 5 1971 Sri Surendra Mohan sent another letter to the
H
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
A
4
B
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F
G
H
RAM!tSIIANKAR V. ELECTION COMMISSio"N (Dwivedi, /.)
269
·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 documents and heanng some of the leaders of the erstwhile S.S.P. and P.S.P.
as a}so a few persons who were opposed to the merger of various ·
P~~es and formatio!l of the Socialist Party, the Chief Election CommiSswner 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· conclu~i?n that the P.S.P. or the S.S.P. does no longer subsist as a 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 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 Natic;:mal 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 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.
Somewhere in the middle of April, 1972 Sri Ramashankar Kaushik
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 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 a 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 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 too flag
of the former S.S.P. It also decided that the Steering Committee was
"authorised to adopt a Constitution." On December 30, 1972 another
Conference was held at Lucknow. This Omference passed a 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
270
SUPREME COURT REPORTS
[ 1974] 2 S.C.R.
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 a letter from Sri
Ramnshanker Kaushik.
H~ 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." 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 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 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 emerged from this merger a 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 a 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 a party wh1ch
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RAMASHAi,KAR V. ELECTION COMMISSION (Dwivedi, !.)
271
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 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 th~
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 falb within the scope of Rules 5 and 10
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 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 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 a 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.
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272
SUPREI\1E COURT REPORTS
[ 1974] 2 S.C.R.
ary or assembly constituencies and the restrictions to which
A
their choice shall be subject."
Rule 10(4), (5) and {6) read as f9llows:
• . "( 4) At an election in a parliamentary or assembly constituency, where a 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,-
·
(a) allot a 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 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."
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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
E
. 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 thei Order. may make an ·
application to the Election Commission for its registration as a p.o1ftical
party for the purpose of the Order. The paragraph prescribes certain
formalities for registration. After hearing the applicants, the El~ction
F
Commissioner shall decide whether to register or not to register the
association as a political party for the purposes of the Order. His
decision shall be final.
Paragraph 4 provides that in every contested
election a symbol shall be allotted to a 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·
G
bois: (1) reserved; and (2) free.
A reserved symbol_is one which
is reserved for a 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 a recognised pohtlcal
party or as a non-recognised political party. _In cert~i~ continge~cies
a political party shall be treated a~ a reco~Iscd pohti.cal party m a
II
State. According to paragraph 7, 1f a pohtJ.cal party IS treated as a
recognised political party under paragraph 6, m four or more States.
it shall be known as and shall enjoy the status. of a 'National Party'
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RAMASHANKAR V. ELECTlON COl\11\IlSSION (Dwivedi, /.)
273 .
t~rougho?~ the whole of India. lf a political party is treated as a rccogmscJ pohttcal party under paragraph 6 in less than four States it shall
be kno:vn an~ sh_aH, enjoy the s~atus of a "State Party" in the 'state or
State.s. m whtch 1t 1s a rccogmsed political party.
There is. also a
J?WVISton to the effect that every political party which immediately bc1 ore the commencement of the Order was ·a rilulti-Stnfe party shill,
on sl:lc.h c~mmence~ent of the Order, be a National Party. A similar
provtston ts made m regard to a political party recognised as a State
B
·party.
Par~graph 8 ( 1) provides that a candidate set up by a National
Party at any election in ano' constituency in India •:shail choose, and
5hall 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-p:Iragraph 3 of paragraph 8 provides that a reserved symbol shalt
not be chosen or aUotted to any candidate in any constituency other
than a candidate set up by a National Partly for whom such symbol
ha~ been r~servcd or a candidate set up by a State Party for whom ~
such sj-'mbol has been reserved in the State in which it is a State Party
C\'en 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
ilt which that party is: not a State Party. The symbol will be not
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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, a candidate set up by a
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. S·tatc Party in which it is not recognised as a State Party may exclusivdy be allotted the symbol reserved for the St!te Party in certain
conditions. According to paragraph 11, if a symbol has been exclu·
sively allotted to a candidate set up by a 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
which is being held simultaneo1,1sly with the parliamentary electio~.
Accordino- to paragraph .12, free symbols may be chosen by a candidate oth;r than a candidate set up by a National Party or a candidate
set ~p by a State Party. Paragraph 15 is important in this appeal. It
reads:
·
·
"Whc~e the Commission is satisfied on information in its
possession that there Me rival sections or groups of a recognised political party each of whom claims to be that part,v,
the Commission inay, after taking into. account all the avmlab~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
or all of whom is a recognised political party or are r~~og
nised political part~es, join together ~o f?rm a new pohhcal
party, the Commisston may, after takmg u:to account all the
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SUPREME COURT REPORTS
[ 1974] 2 S,C,ll.
f~cts and circumstances of the case, hearing such representaA
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 a National
Party or a State Party; and
(b) the symbol to be allotted to it.
B
(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 a notification in
the Gazette .. of India specifying (a) the National Parties and the symbols respectrvely reserved for them, (b) the State parties
and the
C
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 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 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
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 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 u5ed in the
sense of "combine", it may imply mingling together of things, often
with a 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 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 "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 a case of ~nerger of two or more poht1cal parties and
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RAMASHANKAR V. ELECTION COMMISSION (Dwivedi, /.)
275.
th,eir resultant extinction on formation of. a new political party. It
will also embra~e. a case of t\;Vo or ~?ore political parties agieeing toform a 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 a case where two or more political·
part1es h~ve f~de~ated mto a ne~ political part~ while' retaining their
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
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 part5~. In the second and third types, when the Com·
mission has given recognition to the newly formed political party as a
National· Party or a State Party and haSi 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 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!ctions 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 ~~u
ment, it may be assumed that the merger of the Samyukta: Soctabst
Party in the Socialist Party was not a 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 a 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
regarded as a 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.
276
SUPREME COURT REPORTS
( 1974) 2 S.C;Jl,
On the view that we are taking, it is not necessary to decide whether A _.
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 a common pur·
pose for ·which they associate. If an association is constituted under
a statute; it t:an be dissolved only in accordance with that statute; if
it is organised on the basis of a 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 C
of a symbol expressed by a contesting candidate· in his nomiruition
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 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 a time !'hen 0
the Commission had not. enacted the Order.