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

Chhattisgarh High Court: A Division Bench of P.R. Ramachandra Menon, CJ and Parth Prateem Sahu, J., addressed an issue with regard to the alienation of Government Land.

Petitioner approached the Court challenging the course and proceedings being taken by the respondents in connection with the alienation of the Government Land, allegedly without any regard to the relevant provisions of law.

Further, it has been stated that the land in question is being allotted to a particular political party through respondents 3 and 4.

Petitioners Counsel, Sharad Mishra submitted that the property was allotted to the respondent concerned. At present, it has been sought to be allotted in the name of Pramod Sahi — Respondent 6 vide the resolution on a lease for 30 years.

Counsel further submits that, no prior sanction of the Government land has been obtained which is clearly in violation of Section 109 of the Municipalities Act, 1961.

As respondent 6 has been allotted a plot already for the purpose of setting up an office, by virtue of the clear mandate under Rule 3B (ii) (b) & (c) of the Rules, 1996, no further allotment shall be made again in their name.

Dy. Advocate General, Chandresh Shrivastava on behalf of the State submitted that the present petition is not maintainable, so far as the petitioner is having a private interest being the leader of a political party.

It was also pointed out that Rule 3B of the Act of 1996 enables allotment of the Government land to the political parties for the construction of their offices.

High Court on perusal of the above held that a prima facie case has been made out by the petitioner and hence the case stands admitted.

Bench has issued notices to the State Government and directed them to file their reply.

Matter to be posted for further consideration on 20-09-2020. [Bhanu Chandrakar v. State of Chhattisgarh, 2020 SCC OnLine Chh 183, decided on 01-09-2020]

Case BriefsHigh Courts

Andhra Pradesh High Court, Amravati: A Division Bench of J.K. Maheshwari, CJ and B. Krishna Mohan, J., addressed a Public Interest Litigation wherein a direction was sought to declare the proclamation, attempt or conduct of Andhra Pradesh State Election Commission in not conducting any election/poll for any post where there is only a single candidate in the fray for such post in any constituency, during the ensuing elections to be held for the members of local governing bodies in lieu of notifications and thereby depriving the electors’ of their right to vote in the form of NOTA against such single candidate.

Andhra Pradesh Panchayat Raj (Conduct of Elections) Rules, 2006

A Public Interest Litigation was filed referring to the amendment introduced in 2018 to the Andhra Pradesh Panchayat Raj (Conduct of Elections) Rules, 2006.

In the above-stated Rules, insertion was Rule 35-A was done after Rule 35, which was as follows:

(1)“Notwithstanding anything contained in these Rules, in the Postal Ballot Papers and in the Ballot papers used for conduct of poll at polling stations with Ballot Boxes or Electronic Voting Machines (EVMs), provision shall be made for ‘None of the Above’ (NOTA) option for the benefit of those electors who may wish to exercise their option of not voting to any of the candidates in the fray. The last panel of the ballot paper below the last candidate shall be earmarked for ‘None of the Above’ (NOTA) option.

(2) The State Election Commission may give such directions, as may be necessary, for effective implementation of ‘None of the Above’ (NOTA) option.”

What do the stated Rules say?

In case of  Postal Ballot Papers used for conduct of poll at polling stations with Ballot Boxes or Electronic Voting Machines (EVMs), ‘None of the Above’ (NOTA) provision is required to be made.

When can NOTA be exercised?

NOTA applies in case where there is contest of election and as per the language set up in Rule 35-A of the Andhra Pradesh Panchayat Raj (Conduct of Elections) Rules, 2006, when there is an election through Ballot Boxes or EVM’s only then the said option can be exercised.

Hence, Court in view of the fact that, in cases where candidates have been declared uncontested, NOTA cannot be applied, dismissed the present petition. [A.V. Badra Naga Seshayya v. State of A.P., 2020 SCC OnLine AP 509 , decided on 20-07-2020]

Case BriefsHigh Courts

Kerala High Court: The Bench of Sunil Thomas, J. dismissed a bail application filed by an individual under Section 438 CrPC, for being involved in acts of vandalism during hartal called by a political party.

Facts of the case were that a political party had declared a hartal in Kerala. The uncle of de facto complainant opened his shop despite the call for hartal. Defacto complainant went to the shop in the morning. Petitioner along with other persons abused him and caused damage to the movables in the shop. When the defacto complainant intervened, petitioner hit him on the head injuring his right eye. A case was registered against petitioner for offences punishable under Sections 143, 147, 294(b), 308, 323, 324 and 427 read with Section 149 of the Penal Code, 1860. Apprehending arrest, petitioner approached this court seeking anticipatory bail.

The Court noted that the aforesaid criminal acts were done by the petitioner under the cover of hartal called by a political party. Petitioner and his group’s act was nothing but sheer vandalism, under the guise of hartal. Call for hartal by any political party only gives the right to the members of that political party to withdraw themselves from their work as a protest. They may also persuade their fellow workers to withdraw from their work. But that does not empower them to commit criminal acts, much less, any act intended to interfere in the exercise of the fundamental right of any person to move freely anywhere in India and to carry on his trade or business anywhere in India. Reliance was placed on Full Bench decision of this Court in George Kurian v. State of Kerala, 2004 SCC OnLine Ker 42 where it was held that nobody can be compelled to participate in hartal and general strike.

Further, the Court also relied on the decision of the Supreme Court in Kodungallur Film Society v. Union of India, (2018) 10 SCC 713 where it was held that any mob violence and crime by self-appointed keepers of public morality, terrorizing common man without legal sanction and causing loss of life and destruction of property, should be dealt with seriously. It was opined that bail applications filed by persons charged with such offence should be dealt with circumspection.

In view of the above, anticipatory bail was rejected.[Vinod. P v. State of Kerala, 2019 SCC OnLine Ker 1012, Order dated 20-02-2019]

Case BriefsSupreme Court

Supreme Court: In the writ petition filed by Amar Singh where he asked the Court to declare that Para 2 of the 10th Schedule to the Constitution does not apply to an elected member of a House who has been expelled by his/her political party, the Bench of Dipak Misra and A.M. Khanwilkar, JJ placed the matter before the Chief Justice of India for constitution of a larger Bench. Amar Singh, having been expelled by the Samajwadi Party, had sought for a direction that his conduct would no longer fall within the acts that constitute a disqualification within the meaning of para 2(1)(a) and para 2(1)(b) of the Tenth Schedule to the Constitution. The larger Bench will be deciding the question as to the status in either House of Parliament or the State Legislatures of a Member who is expelled from the party which set him/ her up as a candidate for election.

Para 2 of the 10th Schedule to the Constitution provides for disqualification on ground of defection but does not specifically mention the expelled members, Hence, an important question had came before the Court in Amar Singh v. Union of India(2011) 1 SCC 210,  for consideration as to whether the members who are expelled from the membership of the parties which had set them up as candidates in the election, must be deemed to continue to belong to such party in view of Explanation (a) to paragraph 2(1) of the 10th Schedule. Also, when a Member of either House of Parliament is expelled by the party which had set him up as a candidate for election and he either joins another political party or forms his own party, can it be said that he had voluntarily given up his membership of the party in view of the legal fiction created by Explanation (a) to paragraph 2 (1) of the Tenth Schedule. The bench in that case had referred the case to a larger bench and the consequently, the larger bench had kept the questions open for decision in an appropriate case.

Earlier, in G. Viswanathan v. Tamil Nadu Legislative Assembly(1996) 2 SCC 353, the Court had held that even if such a member is thrown out or expelled from the party, for the purposes of the Tenth Schedule he will not cease to be a member of the political party that had set him up as a candidate for the election. He will continue to belong to that political party even if he is treated as `unattached’. [Amar Singh v. Union of India, 2017 SCC OnLine SC 405, order dated 17.04.2017]

Case BriefsHigh Courts

Delhi High Court: Disposing of a petition which sought freezing of the symbol “elephant” as the reserved symbol of  Bahujan Samaj Party, the Court held that there is no power in the Election Commission of India under the Election Symbols (Reservation and Allotment) Order, 1968 to withdraw/freeze an election symbol once allotted and/or reserved for a recognised political party and the only manner in which the symbol once allotted/reserved is lost, is on loss of recognition.

The petitioner had sought to draw the attention of the EC to the practice of erecting at public places and at State expense, statutes of political functionaries and symbols of the the ruling party, especially in Uttar Pradesh and to freeze the symbol “elephant” under Clauses 6 and 6-A of the Symbols Order.

Observing that recognition as a political party carries a right to a reserved symbol, the Court held that it appears that a symbol once reserved for a recognised political party under the prevalent laws, cannot be taken away. This is certainly a lacuna and which, if the averments of the petitioner are correct, has indeed been exploited by BSP. The Court held that a political party in power cannot use development activities carried out by it and which the government in any case is expected to perform, to propagate its symbol or its leaders so as to come in the way of a free and fair election. The performance of a political party in governance should be allowed to speak for itself.

The Bench of Rajiv Sahai Endlaw, J.  issued the following directions to the EC:

  • within a period of three months, consider issuing appropriate direction/guideline within the meaning of Clause 16-A(b) of the Symbols Order preventing recognised political party in power from using public places and public funds for propagating its reserve symbol and/or its leaders, so as to come in the way of conducting of free, fair and peaceful election and to safeguard the interest of the general public and the electorate in future; and,
  • after issuing the said direction/guideline, within a further period of three months therefrom, consider whether the actions already done by the respondent BSP and as complained of by the petitioner are in violation of the said guideline and if finds so, to give an opportunity to the respondent BSP to undo the same, so as to in future not obstruct free and fair election and if the respondent BSP does not avail of the said opportunity, to initiate proceedings under Clause 16-A of the Symbols Order for withdrawal of recognition thereof.

[Common  Cause v. Bahujan Samaj Party, 2016 SCC OnLine Del 3787, decided on July 7, 2016]