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IN THE HIGH COURT OF KERALA AT ERNAKULAM
N.NAGARESH, J.
Sujith Sreerengum, S/o P.K Krishna Pillai – Appellant
Versus
Sunil Sradheyam, S/o Gangadharan, Sradheyam – Respondent
WP(C) No. 27667 of 2022
Decided on : 02-05-2023
Kerala Local Authorities (Prohibition of Defection) Act, 1999 - Sections 3 and 4(1), 3(1)(a), 4(2) - Constitution of India, 1950 - Article 226 – Election - Disqualification on ground of Defection - Voluntary giving up the membership - Petition for declaration of disqualification - Whether a formal membership in a political party is a prerequisite for applying the provisions for disqualifying one for voluntarily giving up membership of his party - Principle “Loyalty to the parties is the norm and voting against the party is disloyalty as stated in Griffith and Ryle on Parliamentary Function, Practice and Procedure (Para 32).
Finding of the Court :
Standing Counsel for Election Commission would submit that the petitioner has not prosecuted case on the ground of voluntarily giving up membership of party and has not objected to issues framed by the Election Commission which did not include said ground. OP filed by the petitioner would show that petitioner had urged that ground and Objection filed by the 1st respondent before Election Commission would show that the 1st respondent was aware of the pleadings of the petitioner. Deposition of petitioner as PW1 would establish that petitioner has adduced evidence in this regard. There is nothing on record to show that the issues to be decided were framed by Election Commission in advance and the petitioner had opportunity to make objection in that regard.
Result: Writ petition is disposed of
JUDGMENT :
Aggrieved by Ext.P1 order of the State Election Commission of Kerala dismissing Ext.P1 petition for declaration of disqualification filed under Sections 3 and 4(1) of the Kerala Local Authorities (Prohibition of Defection) Act, 1999, the petitioner is before this Court.
2. The writ petitioner and the 1st respondent were elected as Members of Ward No.7 and Ward No.11 respectively of the Mannar Grama Panchayat, in the General Elections to the Local Self Government Institutions held during December, 2020. According to the petitioner, both of them were official candidates of Indian National Congress (INC), a constituent of United Democratic Front (UDF). After the elections, the petitioner and the 3rd respondent filed Form-2 Declarations showing their allegiance to Indian National Congress party.
3. There are 18 Wards in the Panchayat. Nine wards were won by the UDF, eight by the LDF and one by the BJP. One Radhamani Saseendran was the official candidate of the UDF, for the post of President. The Alappuzha District Congress Committee gave direction in writing/whip on 29.12.2020 to the members of the INC directing them to attend the meeting on 30.12.2020 and to vote in favour of Radhamani Saseendran.
4. The petitioner states that the 1st respondent, in spite of the whip, voted in favour of the LDF candidate, who won the post of President. Furthermore, the 1st respondent contested to the post of Vice President and was elected as Vice President with the support of LDF members. The 1st respondent thereby voluntarily abandoned the membership of INC which fielded him as a candidate in the General Election.
5. The petitioner therefore filed OP No.1 of 2021 before the the State Election Commission of Kerala seeking to declare the 1st respondent as disqualified under Sections 3 and 4(1) of the Kerala Local Authorities (Prohibition of Defection) Act, 1999. The petitioner also sought for a declaration that the 1st respondent is disqualified to contest in any election to Local Body for a period of 6 years.
6. The Election Commission found that the receipt signed by the 1st respondent in acknowledgement of the direction in writing/whip does not contain the date of the receipt and service of whip is hence invalid. Copy of the direction was not served on the Secretary directly and it was received by someone ‘for Secretary’ without proper name and office seal. Ext.A4 and Ext.X1 proof of communication of whip produced by the petitioner and the Secretary contradict. The oral evidence adduced by PW1-petitioner and PW2-Secretary is also contradictory and hence existence of a valid whip is not established.
7. The Election Commission further found that two distinct dates appearing in two different places in the whip negative the authenticity of whip. Whip should be issued by a person authorised, in letter head and with dated signature. This requirement is also not satisfied. The Election Commission found that the petitioner has failed to adhere to the procedure under Rule 4 of the Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000 with respect to the service of whip to the members and consequently dismissed the OP as per Ext.P15 Order dated 02.08.2022.
8. The counsel for the petitioner argued that the petitioner has a specific case that the 1st respondent has voluntarily abandoned his membership from the INC by supporting another political party and by becoming Vice President with the support of a rival party. The Election Commission failed to adjudicate this issue. The 1st respondent was aware of the decision taken by INC. This Court has held in the judgment in Eruthavoor Chandran and another v. Kerala State Election Commission [2018 (5) KHC 964] that where a member of a political party is aware of the decision taken by the political party but failed to act in accordance with the political directive, it would amount to voluntarily abandoning the membership. The 1st respondent has voluntarily given up his membership by suppor
When a member stood for the election to contest against a candidate of his own coalition, it can be deemed that the member has voluntarily given up his membership of the political party.
Compliance with statutory procedural requirements is essential to uphold the validity of directives impacting party membership and election outcomes.
The court emphasized the importance of adhering to party whips and the consequences of voluntary abandonment of party membership under the Kerala Local Authorities (Prohibition of Defection) Act, 199....
Once a member attracts disqualification under the Kerala Local Authorities (Prohibition of Defection) Act, 1999, they are disqualified from continuing as a member, irrespective of subsequent election....
Service of a political party whip is deemed effective under the General Clauses Act when properly addressed and posted, presuming the recipient's awareness of its contents.
There can be many inferences for voluntarily giving up the membership even if one has not resigned; the case at hand is one where the petitioners have all resigned, therefore, no inference need be dr....
Provisions of Act, 1999 and Rules, 2000, it can be seen that there is a clear modality prescribed for dealing with a petition filed before State Election Commission in matter of defection in terms of....
The conduct of contesting against the official candidate of a political party can be perceived as voluntarily giving up the membership of that party, leading to disqualification under the Kerala Loca....
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