Full Judgment Text
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PETITIONER:
SAMYUKTA SOCIALIST PARTY
Vs.
RESPONDENT:
ELECTION COMMISSION OF INDIA & ANR.
DATE OF JUDGMENT:
30/09/1966
BENCH:
HIDAYATULLAH, M.
BENCH:
HIDAYATULLAH, M.
RAO, K. SUBBA (CJ)
SIKRI, S.M.
BACHAWAT, R.S.
DAYAL, RAGHUBAR
CITATION:
1967 AIR 898 1967 SCR (1) 643
CITATOR INFO :
R 1972 SC 187 (35)
D 1974 SC 445 (10,21)
ACT:
Conduct of Election Rules, 1961, r. 5(1)-Powers of Election
Commission-Merger of two political parties into one party-
Election symbol of one of the merging parties allotted to
the new party-Parties separating again-Symbol whether can be
taken back from new party and given to the party to which it
originally belonged.
HEADNOTE:
In the 1962 general election the Praja Socialist Party had
the ’Hut’ as its election symbol. In 1964 the Praja
Socialist Party and the Socialist Party combined to form the
Samyukta Socialist Party, and the Election Commission
allotted the ’Hut’ symbol to the new party. The union was
however short-lived and in early 1965 the Praja Socialist
Party again severed itself from the Socialist Party which
retained the new name even after the separation. The
Election Commission on being moved by the Praja Socialist
Party withdrew the ’Hut’ as the symbol of the Samyukta
Socialist Party and restored it to the Praja Socialist
Party. This order of the Election Commission was challenged
by the Samyukta Socialist Party in a writ petition before
the High Court and the writ being refused an appeal by
special leave was filed before this Court. A writ petition
by one of the members of the Samyukta Socialist Party under
Art. 32 of the Constitution was also filed before this
Court. It was contended that unlike the earlier rule the
new rule 5(1) of the Conduct of the Election Rules, 1961
only enables the Election Commission to place restrictions
on the choice of the candidate or the party but the choice
once made by the candidate or party is final, and that the
power to amend the list of symbols which was conferred by
the last eight words of the former rule was no longer there.
HELD : (i) It is incorrect to say that by changing rule 5(1)
and dropping the last eight words from that rule the
Election Commission has denied to itself the power to amend
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the list of symbols. The restrictions which the Election
Commission has framed for the use of the symbols permit the
issuance of fresh notifications if symbols are required to
be changed. The restrictions when analysed are these.
Before a candidate can choose a symbol it must be free.
Before a reserved symbol can be chosen, the candidate must
be accredited to the party whose symbol it is and it must be
shown by the Election Commission in its notification as the
symbol of the party. Obviously therefore, if the
circumstances change the notification must follow suit.
Parties may come into existence and parties may go out of
existence; parties may unite or parties may separate. This
will require amendment of the notification. Just as the
Election Commission allotted the ’Hut’ as a symbol by a
change of notification to the Samyukta Socialist Party, it
can allot it to another party if circumstances made that
course obligatory and just. The Election Commission is
required to give effect to conditions of its own making but
that does not restrict its own powers so long as what it
does is in consonance
644
with facts and the action is dictated by them. It must not
of course favour one party so as to harm others. It must
only change the symbol when the circumstances justify such a
charge. [649 C-F]
(ii) If the merger of Praja Socialist Party and the
Socialist Party was unsuccessful and before any significant
time had passed the Praja Socialist Party had decided to
separate, and if all the leaders of the party and almost all
its original members decided to quit the amalgamated party,
the benefit of its symbol could not be left to the Socialist
Party which, in the events that have happened is bearing the
name of the unified party. It is no longer the unified
party it was when the name was assumed. The ’Hut’ was the
symbol of the Praja Socialist Party and the amalgamated
party chose the ’Hut’ rather than -the ’tree’ because of the
greater success of the Praja Socialist Party at the polls.
If disagreement led to a quick break up before the new party
or its symbol could become properly grounded, the reversion
to the original position was not only logical but also
eminently just. It was clear therefore that the Election
Commission proceeded along the right lines and reached the
right conclusion both legally and in the light of the facts
ascertained by it from impartial .sources. [651 E]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1653 of
1966.
Appeal by special leave from the judgment and order dated
November 18, 1965 of the Punjab High Court (Circuit Bench)
at Delhi in Civil Writ No. 701(1)-D of 1965.
AND
Writ petition No. 193 of 1966.
Petition under Art. 32 of the Constitution of India for the
enforcement of Fundamental Rights.
H. R. Gokhale and J. P. Goyal, for the appellant and peti-
tioner.
N. S. Bindra and R. H. Dhebar, for respondent No. 1. (in
C. A. No. 1653 of 1966) and respondents Nos. 1 and 3 (in
W. P. No. 193 of 1966).
Purshottam Tricumdas, T. R. Bhasin, S. C. Malik, S. K. Mehta
and K. L. Mehta, for respondent No. 2 (in C. A. No. 1653 of
1966 and W. P. No. 193 of 1966).
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The Judgment of the Court was delivered by
Hidayatullah, J. This judgment will govern Civil Appeal No.
1653 of 1966 and Writ Petition No. 193 of 1966. The :appeal
has been filed, after obtaining special leave of this Court,
I by the Samyukta Socialist Party, through its General
Secretary, :against the judgment and order of the High Court
of Punjab, November 18, 1965, dismissing summarily a
petition under Art. 226 of the Constitution. The petition
has been filed by Mr. Madhu Limaye, M.P., a member of the
Samyukta Socialist Party. These
645
two proceedings raise a common question and challenge the
action of the Election Commission in allotting the "Hut" as
the reserved election symbol to the Praja Socialist Party,
which symbol was previously reserved for the Samyukta
Socialist Party. The challenge is on the ground of want of
jurisdiction and also on the basis of fact. The Rule and
Notification whereunder the action purported to be taken are
also challenged as unconstitutional in the -petition. The
controversy arises in the following circumstances :
The Praja Socialist Party (popularly known as the P.S.P.)
was formed by a merger of the-Socialist Party and the Kisan
Mazdoor Praja Party (known shortly as K.M.P.P.) and was
recognised as a nationalist Party after the First General
Election in 1952. The Socialist Party was recognised as a
State Party in Uttar Pradesh and Rajasthan and the Union
Territory of Manipur after the Second General Election in
1957. In the last General Election of 1962, the Praia
Socialist Party was recognised in nine States and the
Socialist Party in Uttar Pradesh, Rajasthan and Manipur.
The Praja Socialist Party secured 12 seats in the Lok Sabha
and 6 want to the Socialist Party., In the Legislative
Assemblies the Praja Socialist Party secured 172 seats in 9
States and the Socialist Party 47 seats in 4 States.
In June, 1964 there was a merger of the Praja Socialist
Party and the Socialist Party and a new party, called the
Samyukta Socialist Party, emerged. The Samyukta Socialist
Party contested four bye-elections and the elections in
Kerala but there was a deterioration in the total number of
seats. The union, therefore, was short lived. On January
31, 1965, even at the inaugural meeting of the National Ad
Hoc Committee held at Banaras the two Parties broke as
under. The Praja Socialist Party claims that this restored
the position as it was before the merger while the Samyukta
Socialist Party claims that the merger was final and the
Samyukta Socialist Party as the united Party continues
although some members have been guilty of defection.
These happenings would have had no concern with the Election
Commission or with the Courts but for the procedure for
elections in our country. Owing to the inability of a vast
majority of voters to read or mark a ballot, a system of
allotment of symbols has to be employed. Every candidate is
required -to have a symbol to represent his particular
ballot box and a voter exercises his choice by putting the
ballot in the box of his candidate identified by the symbol.
The allotment of symbols is done by the Election Commission
under Rules framed by the Central Government. The symbols
are of two kinds : free and reserved. A free symbol belongs
to no one in particular and may be chosen (unless chosen
already by some other candidate) by
646
any candidate. Where two or more candidates desire the same
symbol, there is a drawing of lots to determine who should
get it. A free symbol becomes a free symbol again after it
has been used in an election- by a candidate. Reserved
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symbols, on the other hand, are those which the Election
Commission assigns to recognised Political Parties on the
basis of their achievement, which means reaching a
prescribed minimum share at the polls. Political Parties
set great store by their reserved symbols probably because
the symbol gets identified with the Party and helps it in
maintaining election appeals and propaganda.
Before the merger, the Praja Socialist Party was allotted
the ’Hut’ as a reserved symbol and contested the First
General Election. After 1957 the Socialist Party was
recognised as a Political Party in Uttar Pradesh and
Rajasthan and in the Union Territory of Manipur and was
allotted the symbol ’Tree’ which became its reserved symbol.
The 1962 General Elections were fought with the Praja
Socialist Party possessing the ’Hut’ and the Socialist Party
the ’Tree’ respectively as their symbols. Then came the
merger. The Samyukta Socialist Party claimed and was
allotted the ’Hut’ as its reserved symbol and the ’Tree’
became a free symbol again. After the Party disrupted the
Election Commission, on being moved by the Praja Socialist
Party, took away the symbol ’Hut’ from the Samyukta
Socialist Party and allotted it to the Praja Socialist
Party, allotting at the same time the symbol ’Tree’ to the
Samyukta Socialist Party. The order of the Election Com-
mission was questioned by the Samyukta Socialist Party by a
petition under Art. 226 of the Constitution, and, on the
dismissal of the petition, is questioned in the appeal
before us. The same order is also questioned directly as a
breach of his fundamental rights by Mr. Madhu Limaye in the
companion petition.
Two questions arise-the first is : What are the powers of
the Election Commission in relation to the allotment of
symbols, and the second is : Whether in the circumstances,
its powers were legally exercised ? Under s. 169 of the
Representation of People Act, 1951, the Central Government
is empowered, after consulting the Election Commission, to
make rules generally for the purposes of the Act and in
particular to provide for "the manner in which votes are to
be given both generally and in the case of illiterate voters
or voters under physical or other disability". The Central
Government has promulgated the Conduct of Elections Rules,
1961 and Rule 5 of these Rules makes provisions for symbols
in Parliamentary and Assembly elections. The rule reads
"5. Symbols for elections in parliamentary and assembly
constituencies.-
(1) The Election Commission shall, by notification in the
Gazette of India and in the Official Gazette of each
647
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State, specify the symbols that may be chosen by candidates
at elections in parliamentary or assembly constituencies and
the restrictions to which their choice shall be subject.
(2) Where at any such election more nomination papers than
one are delivered by or on behalf of a candidate, the
declaration as to symbols made in the nomination paper first
delivered, and no other declaration as to symbols, shall be
taken into consideration under rule 10 even if that
nomination paper has been rejected."
As an argument was grounded on the, change of language from
the former rule, we may quote its relevant portion here for
reference :
"5. Choice of symbols by candidates:-
(1) The Election Commission shall, by notification in the
Gazette of India and in the Official Gazette of each State,
publish a list of symbols and may in like manner amend such
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list."
Under the power conferred under the existing Rule 5(1) the
Election Commission has prepared a list of free and reserved
symbols and has notified them from time to time together
with the restrictions to which their use is subject. The
reserved symbol is indicated in the various notifications
either by putting it against the name of the particular
Political Party or by showing the name of the Political
Party in brackets opposite it. The first of these
Notifications was S.O. 2316 dated September, 19 1961. This
showed that the ’Hut’ was a reserved symbol of the Praja
Socialist Party in Andhra Pradesh, Assam, Bihar, Gujarat,
Kerala, Uttar Pradesh, Madras, Maharashtra, Mysore, Orissa,
Madhya Pradesh, West Bengal and the Union Territories of
Delhi, Himachal Pradesh and Manipur. In the Punjab,
Rajasthan and the Union Territory of Tripura, the Praja
Socialist Party enjoyed the ’Hut’ as an allotted free
symbol. The Socialist Party had the ’Tree’ as the reserved
symbol in Andhra Pradesh, Bihar, Madhya Pradesh, Rajasthan,
Uttar Pradesh and the Union Territory of Manipur and the
same symbol as an allotted free symbol in the other States
and in the other Union Territories except Himachal Pradesh
and Tripura. This notification was replaced by S.O. 2939 of
September 22, 1962 and this time the ’Hut’ was shown as the
reserved symbol of the Praja Socialist Party in Assam,
Bihar, Gujarat, Kerala, Madhya Pradesh, Maharashtra, Mysore,
Orissa and Uttar Pradesh. The Socialist Party enjoyed the
’Tree’ as the reserved symbol in Madhya Pradesh and the
Union Territory of Manipur. On October 13, 1964, amendments
were made in S.O. 2939 by Notifica-
6 Sup. C. 1.166-13
648
tion S. 0. 3666 by substituting the name Samyukta Socialist
Party in all items where the Praja Socialist Party was
formerly mentioned. Against Manipur the name of Samyukta
Socialist Party with the reserved symbol ’Hut’ was inserted
in place of the Socialist Party and the symbol ’Tree’. The
reference to the Socialist Party and the reserved symbol
’Tree’ against Uttar Pradesh was omitted. This gave effect
to the merger of the two Parties and was ordered in answer
to the request for ’Hut’ as the symbol for the combined
Party. The final Notification and the one which is
challenged before us-was issued on September 2, 1965. It
supersedes Notification S. 0. 2939. The restrictions on the
choice of symbols by the candidates were restated and they
may be reproduced here :-
" (1) Subject to the restrictions specified in paragraphs
(2) , (3) and (4), the choice of symbols to be made by
candidates at any election in a parliamentary or assembly
constituency is a State specified in column I of the table
below shall be made :-
(a) from the reserved symbols specified against that state
in column 3 of the tables, or
(b) from the following free symbols, namely
(i) bicycle (ii) boat, (iii) camel, (iv) pot, (v) railway
engine (vi) scales, (vii) spade, (viii) sparrow and (ix) two
leaves :
Provided that, in the case of an election in the State of
Nagaland, such free symbols shall be....
(2) Any such candidate sponsored by a political party
mentioned against the State in column 2 of the table shall
choose, and shall be allotted, the symbol specified against
that party in column 3 thereof, and no other symbol.
(3) Any other candidate shall choose, and shall be
allotted, one of the free symbols specified in clause (b) of
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paragraph (1) and no other symbol.
(4) If two or more candidates have indicated their
preference for the same free symbol, the Returning Officer
shall decide by lot to which of them the symbol shall be
allotted.
(5) For the purposes of these directions, a candidate shall
be deemed to be sponsored by a political party if, and only
if, a notice in writing to that effect has been delivered
not later than 3 p.m. on the last date for the withdrawal of
candidates to the returning officer of
649
the constituency by a person who is authorised by the said
party to send such notices and whose name and specimen
signature have been communicated in advance to the said
returning officer and I to the Chief Electoral Officer of
the State."
The table which follows those conditions shows the ’Hut’ as
the reserved symbol of the Praja Socialist Party in Bihar,
Gujarat, Madhya Pradesh, Maharashtra, Mysore and Orissa and
the ’Tree’ as the reserved symbol of the Samyukta Socialist
Party in Bihar, Kerala and Manipur.
It is said that by changing rule 5(1) and dropping the last
8: words from that rule the Election Commission has denied
to itself the power to amend the list of symbols. This is
not correct. The restrictions which the Election Commission
has framed, for the use of the symbols are quite clear and
permit the issuance of fresh notifications if symbols are
required to be changed. The restrictions when analysed are
those. Before a candidate can choose a symbol it must be
free. Before a reserved symbol can be chosen the candidate
must be accredited to the party whose symbol it is and it
must be shown by the Election Commission in its,
notification as the symbol of that party. Obviously,
therefore, if circumstances change the notification must
follow suit. Parties may come into existence and parties
may go out of existence; parties may unite or parties may
separate. This will require amendment of the notification.
Just as the Election Commission allotted the ’Hut’ as a
symbol by a change of notification to the Samyukta Socialist
Party, it can allot it to another party if circumstances
made that course obligatory and just. The Election
Commission is required to give effect to restrictions of its
own making but that does not restrict its own powers so long
as what it does is in consonance with facts and the action
is dictated by them. It must not of course, favour one
party so as to harm another. It must only change a symbol
when the circumstances justify such a change.
There is no doubt that for a time the Praja Socialist Party
and the Socialist Party did genuinely unite to form the
Samyukta Socialist Party and that the Secretaries of the two
Parties wrote to the Election Commission that the symbol
’Hut’ should be allotted to the united Party. The Election
Commission recognised the new party and also accepted the
request. It is equally clear that on January 31, 1963 the
Samyukta Socialist Party brokeup at its very first meeting
and the Praja Socialist Party, which reorganised itself
claimed its original symbol. The Election Corn-, mission
did not decide whether the merger was final or provisional.
But after enquiry, found it established that the original
leaders of the Praja Socialist Party together with the bulk
of the members
650
of the Party had, in fact, left the united Party. The
Election Commission ascertained the relative strengths of
the Praja Socialist Party and the Samyukta Socialist Party
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before and after the breakup and came to the conclusion that
the Parties had reverted to their original state. The
Election Commission, therefore, restored the symbol of ’Hut’
to the Praja Socialist Party as its original party symbol,
and the symbol of ’Tree’ to the Samyukta Socialist Party as
representing the old Socialist Party leaving it open to the
Samyukta Socialist Party to choose any other free symbol if
it liked.
The question is whether in doing so the Election Commission
acted capriciously or without jurisdiction. We think the
facts support the action of the Election Commission and also
that it was within its jurisdiction. If the Praja Socialist
Party, after the break-up, was a new party or had a new
leadership then the symbol, which originally belonged to the
defunct Praja Socialist Party, could not be claimed by the
new Praja Socialist Party as a matter of right, but if it
was the same party with the same leaders which contested the
earlier elections with the symbol of ’Hut’ there was
complete justification in restoring the party to its ori-
ginal position so that the advantage of a symbol identified
with a party should not be lost to it. Although we are
clear that a change of symbol by the Election Commission
arbitrarily would be outside its competency, because the
Rules framed by the Central Government and supplemented by
the Election Commission in its Notification do not
contemplate a discretion to the Election Commission, there
is some jurisdiction in the Election Commission to regulate
or restrict the choice of symbols in circumstances such as
this. Although no power is given to the Election Commission
to impose its own wishes on parties or candidates, it can,
in a suitable case, restore the lost advantage to a party
before the symbol can be said to be finally assigned to
another party. Can we, therefore, say, in this case, that
the Election Commission imposed its will arbitrarily or
capriciously on the Samyukta Socialist Party when it took
away the symbol of ’Hut’ from it ? On a careful
consideration of the correspondence between the Election
Commission on the one hand, and the Praja Socialist Party on
the other, and taking into consideration all available
facts, we are satisfied that the action of the Election
Commission was within its jurisdiction when it recognised
the choice of the symbol by the Praja Socialist Party and
cannot be described as an interference with the choice of
the Samyukta Socialist Party.
To begin with the action is bona fide, for no malice or any
other improper motive has even been suggested. The Samyukta
Socialist Party only contends that the Election Commission
was not competent to cancel the symbol chosen by the
Samyukta
651
Socialist Party. It submits that unlike the earlier rule,
the new rule 5(1) only enables the Election Commission to
place restrictions on the choice of the candidate or the
party but the choice once made by the candidate or the party
is final and the Election Commission has no further say in
the matter. It also submits that the facts do not justify
the assumption of the Election Commission that the parties
had once again reverted to the premerger state. These
arguments require careful consideration because the
importance of the symbols to our system of elections needs
no exaggeration. Symbols are its very soul and without them
the exercise of franchise by the majority of our citizens
would be impossible. No doubt elections are fought on party
lines but even if there is a plebiscite between parties, the
symbols play a key role by identifying the parties.
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Slogans, placards, appeals all invoke the symbols and not
the candidates. In fact, the voters are asked to vote for
this symbol or that symbol. The Election Commission can
allot symbols as desired by parties and candidates but, in a
case such as this, it has to decide who is to have which
symbol without, of course, putting a hurdle in the way of
any party.
But what we have said has a double edge on it. If the
merger of Praja Socialist Party and the Socialist Party was
unsuccessful and before any significant time had passed the
Praja Socialist Party had decided to separate, and if all
the leaders of the party and almost all its original members
decided to quit the amalgamated party, the benefit of its
symbol could not be left to the Socialist Party which, in
the events that have happened, is bearing the name of the
unified party. It is no longer the unified party it was
when the name was assumed. Parties have a sentimental
attachment for their symbols. The ’Hut’ was the symbol of
the Praja Socialist Party and the amalgamated party chose
the ’Hut’ rather than the ’Tree’ because of the greater
success of the Praja Socialist Party at the polls. If
disagreement led to a quick break up before the new party or
its symbol could become properly grounded, the reversion to
the original position was not only logical but also
eminently just. It is clear, therefore, that the Election
Commission proceeded along the right lines and reached the
right conclusion both legally and in the light of the facts
ascertained by it from impartial sources. We see no force
in the appeal and it will be dismissed but we make no order
as to costs.
Writ Petition 193 of 1966 was heard alongwith Civil Appeal
No. 1653 of 1966. As no separate contentions were raised in
the petition we have passed a common judgment to cover the
petition also. The constitutional point was not pressed at
the hearing. The petition fails and is dismissed but there
will be no order about costs.
G.C Appeal and writ petition dismissed.
652