Judgment

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, 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 Article 226 of the Constitution. The petition has been filed by Mr. Madhu Limaye, M.P., a member of the Samyukta Socialist Party. These 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 where under the action purported to be taken are also challenged as unconstitutional in the petition. The controversy arises in the following circumstances :

2. 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 Praja 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 went 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.

3. 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, l965, 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.

4. 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 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 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 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.

5. Before, the merger, the Praja Socialist Party was allotted the Hut as a