Ker HC | Election Commission disqualifies candidates from participating in any election of the local body for a period of 6 years on the ground of disobedience to the whip; Writ Petition dismissed

Kerala High Court: A. Muhamed Mustaque J., upholding the decision of the Election Commission, dismissed the present Writ Petitions and clarified the applicability of Kerala Local Authorities (Prohibition of Defection) Act, 1999.

 Brief Facts

Three writ petitions were filed by the members of Ranny-Pazhavangadi Grama Panchayat aggrieved by the decision of the Kerala State Election Commission (for short, the ‘Election Commission’) declaring that the petitioners are disqualified for being members of Ranny-Pazhavangadi Grama Panchayat as provided under Section 3(1)(a) of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 (for short, the ‘Act’) and further disqualified to contest as candidates in any election of the local body for a period of six years.

The cause of action for disqualification arose on 23-5-2017. Abraham from LDF (the party to which the petitioners allegedly belong) was the President of the Grama Panchayat at that time. A No-Confidence Motion was moved against him. Subsequently, a whip was issued by the parties of LDF coalition to all its members. Defying the whip all these petitioners voted in favour of the motion. In defence before the Election Commission, the petitioners alleged that they did not receive the aforementioned whips, hence, no provision of the Act was attracted. With respect to candidature, it was originally admitted by the petitioners that they contested the election as nominees of political parties forming part of the LDF coalition but after closing of the evidence, they filed an application for deleting those admissions by way of amendment.

 Issue

  1. Whether petitioners were independent candidates or supported by political party in question?
  2. Whether the whip issued was conveyed to the petitioners as per Kerala Local Authorities (Prohibition of Defection) Act, 1999?
  3. Whether supporting the no-confidence motion, amount to voluntary giving up of membership under the said Act?

Observation

Placing reliance over the findings of Election Commission, the Court agreed with the submission made by the counsel for respondents that the petitioners contested election with the support of political party and the whip issued, therefore, assumes significance. The Court also accepted the applicability of Rule 3(2)(a) of the Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000 wherein, any person who contested election as a candidate in support of a political party shall be treated as a member of that political party. Further, Court made the following observation with respect to service of whip to the rightful person, as per Kerala Local Authorities (Prohibition of Defection) Act, 1999

“There are two limbs under Section 3(1)(a) of the Act, second limb would be attracted only when there was a valid whip and servicing the whip in a manner referred under Section 3(2) r/w 4(2) of the Rules. The service referred as above is mandatory. There is no dispute in regard to the fact that the whip was not served on the Secretary of the Local Self Government Institutions. Therefore, the second limb cannot be attracted to this matter. The finding of the Election Commission would also show that no copy of the whip was served on the Secretary.”

In reference with issue 3, the Court said,

“The petitioners support to the No Confidence Motion was against the interest of the political parties which supported them as candidates. This amounts to voluntarily giving up of the membership. It is to be noted that there was no dispute on CPI(M), CPI and JD(S) were part of the coalition. Thus acting against the interest of coalition by party members of the constituents of the coalition amount to acting against their own party. The Election Commission entered into a finding based on the materials before it, there was valid whip and the petitioners were aware of such whip. Though such whip cannot be relied to attract second limb of Section 3(1)(a) of the Act, nothing bars the Election Commission for placing reliance on it for disqualifying a member based on the ground referred in the first limb of Section 3(1)(a).

The Court further cited Rama Bhaskaran v. Kerala State Election Commission, 2018(2) KLT 600, Manoj Madhavasseril v. Kerala State Election Commission, 2018(1) KLT 1047 and Chandran v. Kerala State Election Commission, 2019(1) KLT SN 18 and Lizy Valsan v. Suja Salim, 2015 (3) KLT SN 61 in furtherance of its said observation.

Decision

While dismissing the present Writ Petitions, the Court upheld the decision of Election Commission of debarring the petitioners from contesting future elections.[Boby Abraham v. Kerala State Election Commission, 2020 SCC OnLine Ker 4507, decided on 15-10-2020]


Sakshi Shukla, Editorial Assistant has put this story together

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