infringe Part III of the Constitution. The 29th Amendment is affirmed in
Kesavananda Bharati’s case (supra) by majority of seven against six Judges.
153. The contentions of the respondent that the Amendment Acts of 1974
and 1975 are subject to basic features or basic structure or basic framework
fails in two grounds. First, legislative measures are not subject to the theory
of basic features or basic structure or basic framework. Second, the majority
view in Kesavananda Bharati’s case (AIR 1973 SC 1961) (supra) is that the
29th Amendment which put the two statutes in the Ninth Schedule and
Article 31-B is not open to challenge on the ground of either damage to or
destruction of basic features, basic structure or basic framework or on the
ground of violation of fundamental rights.
154. The symbol allotted to the party of the appellant was characterised
by the respondent as a religious symbol. Under Article 324 the
superintendence, direction and control of elections to Parliament is vested in
the Election Commission. Rule 5 of the Conduct of Elections Rules, 1961
states that the Election Commission shall by notification in the Gazette of
India and in the Official Gazette of each 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. Rule
10(4) of the 1961 Rules aforesaid states that at an election in a
Parliamentary or Assembly constituency, where a poll becomes necessary,
the returning officer shall consider the choice of symbols, expressed by the
contesting candidates in their nomination papers and shall, subject to any
general or special direction issued in this behalf by the Election Commission
allot a different symbol to each contesting candidate in conformity, as far as
practicable with his choice. It is, therefore, apparent that the power to specify
permissible symbols is vested by Rule 5 in the Election Commission. The
choice of candidates is limited to the symbol specified by the Election
Commission. The Election Symbols (Reservation and Allotment) Order, 1968
was made in exercise of the power conferred by Article 328 of the
Constitution read with Rule 5 and Rule 10 of the Conduct of Election Rules
and all other powers enabling in this behalf.
155. Clause 17 of the Election Symbols (Reservation and Allotment)
Order, 1968 provides that the Commission shall by notification in the Gazette
of India publish lists specifying national parties and the symbols respectively
reserved for them etc. There can, therefore be no doubt that the power of
evolving permissible symbols is exclusively vested in the Election
Commission. It is under their direction that the Returning Officer has to
make allotments and allotments are made in terms of Clauses 5, 6 and 8.
Therefore, in the matter of evolving of the permissible symbols, the
jurisdiction is vested in the Election Commission. If a candidate displays in
addition to the allotted symbol an additional symbol which may have a
special appeal on grounds of religion to a particular community then the
Court will be entitled to go into this question.
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