Kerala High Court

Kerala High Court: In an appeal filed challenging the judgment of the Single Judge upholding the State Election Commission’s order of disqualifying the appellant from being a member of the Gram Panchayat and for further contesting as a candidate in an election to any local authorities for a period of six years., S. Manikumar, CJ. and Shaji P. Chaly, J. upheld the said decision and observed that the appellant has violated the requirements of law; which is clear proof to show that the appellant has joined the coalition in terms of the provisions of the Act and the Rules and contested and won the election as a candidate fielded by the said political party/ coalition.

In this case, the appellant, an elected candidate in the elections held to the Local Self Government Institutions has submitted in the nomination paper, that she is an independent candidate contesting without any help from any of the political parties or coalition. But, the respondent submitted that the appellant contested and won the election as an independent candidate, however, the sworn declaration in accordance with Rule 3(2) (c) of the Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000 (‘Rules, 2000’) was given, affirming that she is the official candidate of Communist Party of India (Left Democratic Front); instead of making a declaration as provided under Section 3(1)(c) of the Kerala Local Authorities (Prohibition of Defection) Act, 1999, (‘Act of 1999’) that she won the election as a candidate without any support of any political party or coalition. Thus, the action on the part of the appellant, who contested and won the election as an independent candidate, and thereafter joining a political party or coalition, shall acquire disqualification as per Section 3(1)(c) of the Act, 1999.

The Court observed that the Tenth Schedule of the Constitution of India deals with the provisions as to disqualification on ground of defection, and it applies to either House of Parliament or the Legislative Assembly; and Paragraph 2(2) of the schedule specifies that an elected member of a House, who has been elected as such otherwise than as a candidate set up by any political party shall be disqualified for being a member of the House, if he joins any political party after such election. Further, it is true that there was no proof to establish that the independent member joined a political party and contested the election, but the present case is entirely different due to the declaration made by the appellant quite contrary to the mandatory requirement of the Rules 2000, and thus, that by itself can turn out to be a relevant piece of evidence leading to the ultimate proof when considered along with other documentary and oral evidence.

The Court observed that in Abdul Haque v. Pathumma, 2004 SCC OnLine Ker 111 this Court had considered the question as to whether a mere support of a political party in favour of an independent candidate can be said to be a defection; and it was held that it is not so because, in that case, on evidence, it was found that the independent member did not make any declaration, contrary to the provisions of the Rules 2000, as in the instant case. It was further viewed that the pleadings and proof depend on the facts, law and circumstances of each case; and in the case at hand, it has got its own peculiar features and characteristics to reach the conclusion in terms of the Act, 1999 and Rules, 2000.

The Court referred to the decision in Jagjit Singh v. State of Haryana, (2006) 11 SCC 1, wherein the Court interpreted paragraph 2(2) of the Tenth Schedule of the Constitution and held that “the factum of joining can be inferred from facts and conduct of a member, without a member formally joining a political party, inasmuch as not filling form required to be filled by a member of the political party under the Rules and Regulations of that party or payment of any prescribed fee” and observed that reference to the relevant provisions of the Act, 1999 and the Rules, 2000 would make the situation clearer to arrive at a logical conclusion in the matter, and with respect to the implication of the proposition of law laid down by the Supreme Court in the afore-cited judgments.

Moreover, it was viewed that Section 3(1) of the Act of 1999 specifies that, the application of the provisions of the Act is notwithstanding anything contained in the Kerala Panchayat Raj Act, 1994 (‘Act of 1994’) or in the Kerala Municipality Act, 1994 or in any other law for the time being in force and subject to the other provisions of the Act of 1999 and it is a special statute governing election to the Self-Government Institutions.

Further, it was observed that clause (c) of Section 3(1) of the Act of 1999 specifies that if an independent member not belonging to any coalition, joins any political party or coalition; he shall be disqualified for being a member of that local authority. Further, Clauses (a), (b) and (c) of Sub-Rule 2 of Rule 3 of Rules, 2000 specifies that the independent candidate who contested election as a candidate of a coalition, or with the support of the coalition, and an independent candidate who contested the election otherwise than as the candidate of a political party or coalition in accordance with their candidature, necessarily have to file a declaration in accordance with the Rules after being elected as a member. Therefore, when the appellant contested as an independent candidate, otherwise as the candidate of political party or a coalition or as the candidate with the support of the same ,and instead of filing a declaration to that effect, filed a declaration that she has contested as an independent candidate of a party with the symbol of ‘table fan’, is absolutely against the mandatory requirement contained under Rule 3 (2)(c), and therefore, the disqualification contained under Section 3(1)(c) of the Act, 1999 is attracted.

It was viewed that the law relating to defection was made with the intention of upholding the constitutional principles, the democratic set up and the rule of law prevailing in the country and to sustain the faith of the citizens in the democratic set up of conducting elections; and for retaining and sustaining the confidence of the citizens on the candidates elected by the electorate, a strict view is to be adopted in the matter of defection. It is with the said basic intention that the Act, 1999 and Rules, 2000 were brought into force.

[Sheeba George v. State Election Commission of Kerala, 2022 SCC OnLine Ker 4808, decided on 28.09.2022]

Advocates who appeared in this case :

Counsel for the Appellants: Senior Advocate K.Ramakumar

Advocate T.Ramprasad Unni

Advocate S.M.Prasanth

Advocate R.S.Aswini Sankar

Advocate T.H.Aravind

Counsel for the Respondents: Advocate Deepu lal mohan,

Advocate T.K.ajithkumar

Advocate Alexander Joseph

Advocate C.Dilip

Advocate R.Pradeep

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