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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 .lm15 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