Case BriefsHigh Courts

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

Case BriefsHigh Courts

Kerala High Court: The Bench of  Shaji P. Chaly, J. hearing a civil writ petition pertaining to a no-confidence motion filed against President of a Gram Panchayat, held that a person accused of defection is entitled to act as a member of the Panchayat until the date of the order of the Commission declaring him as disqualified.

The present petition had been filed by President of the Edavilangu Grama Panchayat who was ousted from his office by carrying out a motion of no-confidence. Consequent to this alleged defection that had taken place in the Panchayat committee, two petitions had been filed by third-parties under Section 4 of the Kerala Local Authorities (Prohibition of Defection) Act, 1999. Petitioner was not a party in these two petitions. His grievance was that without considering the pending petitions, no-confidence motion had been proposed to be considered, i.e., he was sought to be automatically disqualified on the ground of defection.

Petitioner’s contention was that State Election Commission does not have the power to grant any interim order so as to prevent a party from participating in any proceeding under a no-confidence motion; and that he was entitled to act as a member of the Panchayat until the Election Commission’s order declaring him as disqualified.

The Court took note of the judgment in Nattakam Suresh v. Kerala State Election Commission, 2009 SCC OnLine Ker 3917 where it was opined that there is no automatic disqualification of a member on the ground of defection. The Election Commission is not empowered to pass any interim order interdicting the continuance of a member of a local authority and it must dispose of the petition pending before it declaring the alleged defector as disqualified.

In view of the above, the instant petition was allowed and Election Commission was directed to decide petitions pending before it at the earliest. [Aadarsh A.P. v. Block Development Officer, 2019 SCC OnLine Ker 101, Order dated 10-01-2019]

Case BriefsHigh Courts

Kerala High Court: In a writ filed by the petitioner against an order of the Kerala State Election Commission, according to which the petitioner had defected and was disqualified to be a member of the Ramamangalam Gama Panchayat and also from contesting as candidate in an election to any local authority for a period of six years as per Kerala Local Authorities (Prohibition of Defection) Act, 1999, a Single Judge Bench comprising of K. Vinod Chandran, J. upheld the Commission’s order and dismissed the petition.

The petitioner contended that her disqualification was invalid since by the time the Election Commission was approached the term of council had expired. It was pointed out that “the disqualification is only with reference to the membership of the Committee in office for a valid term of five years and cannot be extended to a subsequent period for which a fresh election is conducted.”

The respondent on the other hand argued that there was a difference between disqualifications which are co-terminus with the term of office of a committee and those that extend beyond the term of office, this case falling in the latter category because the Act specifically provided for disqualification beyond a period of 6 years even beyond the term of the elected committee.

The Court held that if it was to sustain the petitioner’s contention, then towards the expiry of the term of office the Committee members would indulge in defection against which there would lay no action. Moreover, it would require the Court to add words to the provision: “for the term then in office” which is not permissible. “The intention clearly was to disqualify a member who has defected from continuing in that committee and in the subsequent committee too, since the disqualification runs for six years, while the term of the committee is 5 years.” [Jessie Raju v. Communist Party of India, 2017 SCC OnLine Ker 7860, decided on June 28, 2017]