JUDGMENT :

Altmas Kabir, J. (Surinder Singh Nijjar agreeing, Chelameswar, J. dissenting)

1. Writ Petition (Civil) No. 532 of 2008 was filed by Desiya Murpokku Dravida Kazhagam and Colonel Edwin Jesudoss (Retd.), challenging the constitutional validity of the amendment of the Election Symbols (Reservation and Allotment) Order, 1968, hereinafter referred to as the "Election Symbols Order, 1968", vide Notification No. O.N. 56/2000/Jud-III dated 1st December, 2000, substituting Clause 6 with 6A(i) and (ii) and Clause 6B therein. The same was taken up for final hearing along with several other Writ Petitions on account of the common issue involved therein. The common grievance in all these writ petitions is with regard to the amendment which mandates that in order to be recognised as a State party in the State, it would have to secure not less than 6% of the total valid votes polled in the State and should also have returned at least 2 members to the Legislative Assembly of the State.

2. The grievance of the Desiya Murpokku Dravida Kazhagam is that it had been refused recognition as a State party by the Election Commission of India, although, it secured 8.33% of the valid votes in the Assembly elections. It is the further grievance of the Petitioners that in view of the amendment made to Clause 6 of the Election Symbols Order, 1968, it had been denied recognition on account of the cumulative effect of the requirement that a political party would not only have secure not less than 6% of the total valid votes polled, but it had also to return at least 2 members to the Legislative Assembly of the State. It is the Petitioners' case that despite having secured a larger percentage of the votes than was required, it was denied recognition, since it had failed to return 2 members to the Legislative Assembly.

3. In order to appreciate the case made out by the writ petitioners, it would be apposite at this stage to look into the background in which the Election Symbols Order, 1968, came to be pronounced.

4. After the commencement of the Constitution on 26th January, 1950, the Election Commission was constituted under Article 324 of the Constitution. On 30th July, 1951, the Commission held a conference in New Delhi with 7 established political parties organised on an all-India basis and discussed the possibilities of allotting a distinctive symbol to each one of them all over India. During the deliberations, the participants generally agreed that the same symbols would be used throughout India for all candidates of a party, both for parliamentary and assembly elections. What also fell for discussion was whether where among several constituencies one of the seats was reserved for Scheduled Castes or Scheduled Tribes, the candidates belonging to a party would be allotted the party's symbol. The said discussions led to ad hoc recognition being given by the Election Commission to several parties as national or multi- state parties and allotted to them the symbols as were shown against their names.

5. Drawing inspiration from the first General Elections conducted by the Election Commission in 1951-52, the Election Commission decided to withdraw recognition from such parties whose poll performance was far below the standards to merit, further recognition. However, giving due recognition to the fact that some of the parties were new and were not fully organised before the elections, the Commission fixed 3% of the valid votes polled in the elections as the minimum standard for grant of recognition. In the case of national parties, such percentage was calculated with reference to the votes polled in regard to elections to the House of the People, while in the case of State parties, the votes polled in the elections to the State Legislative Assemblies were the factors to be considered. On account of the standards laid down, only 4 political parties remained eligible for recognition as national parties, namely, (1) Indian National Congress; (2) All India Bhar