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IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bechu Kurian Thomas, J.
Praveena Ravikumar – Petitioner
Versus
State Election Commission And Ors. – Respondents
W.P.(C) Nos.36155 & 36144 of 2023
Decided On : 08-12-2023
Disqualification - Violation of Party Whip - Kerala Local Authorities (Prohibition of Defection) Act, 1999 - Section 3(1)(a), Section 4(3)
Fact of the Case:
The writ petitioners, elected members of the Munnar Grama Panchayat, were disqualified for violating the directions in writing issued by the political party. The disqualification was based on their defiance of the party whip in the election for the President and Vice-President of the Panchayat.
Finding of the Court:
The Election Commission found that the respondents had defected and declared them disqualified for contesting as candidates in any election to the local authority for a period of six years, as provided under section 4(3) of the Act. The court dismissed the writ petitions challenging the Election Commission's decision.
Issues: Violation of party whip, voluntary abandonment of party membership, validity of service of whip
Ratio Decidendi: The court held that the respondents violated the direction in writing and one of them voluntarily gave up party membership. The court also found the service of the whip to be valid despite being returned as unclaimed.
Final Decision: The court dismissed the writ petitions, upholding the Election Commission's decision to disqualify the respondents.
Key Points: - (!) The case concerns disqualification for defecting in violation of the party whip under the Kerala Local Authorities (Prohibition of Defection) Act, 1999. - (!) The Election Commission held that the respondents defected by voting against the written directions (whip) and disqualified them for six years under section 4(3) of the Act. - (!) The court accepted that PW2 was authorized to issue the whip and that the whip was valid despite alleged issues with Tamil translation and service. - (!) Service of the whip via registered post with acknowledgment due is considered valid service when correctly addressed to the addressee’s last known address. - (!) The postal articles were deemed served on 27-12-2021 under section 26 of the Interpretation and General Clauses Act, and Rules regarding service in Panchayat matters were satisfied. - (!) Smt. Praveena Ravikumar’s voluntary giving up of party membership was established, affecting her disqualification status. - (!) The High Court dismissed the writ petitions; there was no perversity in the Election Commission’s findings. - (!) Ext.A20 shows the minutes of the Panchayat election meeting indicating the INC’s candidate and voting outcome relevant to the defection analysis. - (!) The matters of service and affixture of the whip were supported by Exts A10–A19, including notices and acknowledgments. - (!) The court relied on statutory provisions and prior case law to uphold the disqualification as valid.
JUDGMENT :
Writ petitioners have been disqualified by the Kerala State Election Commission (for short 'the Election Commission') for violating the directions in writing issued by the political party. Writ petitioners were the respondents in O.P. No.1 of 2022 and O.P. No.2 of 2022, both of which were filed by the second respondent. The Election Commission allowed both original petitions, hence these two writ petitions.
2. The facts of these two writ petitions as revealed from the pleadings and the arguments raised before the Court are briefly narrated below:
The individuals before the Court are Sri.Marsh Peter, Smt.Praveena Ravikumar and Sri.M.Rajendran. They had contested and won from different Wards in the election to the Munnar Grama Panchayat in the year 2020. All three of them were the official candidates of the Indian National Congress (for short 'INC') with the symbol of “hand”. They were part of the coalition of United Democratic Front (for short 'the UDF'). As elected members of the Panchayat, they had given declarations before the Secretary of the Panchayat showing their association with the political party and affirmed that they belonged to the political party INC based on which the register showing the political affiliation was also prepared.
3. Out of a total of 21 Ward Members in the Munnar Grama Panchayat, 11 belonged to the INC under the UDF banner while LDF had 10 members of which 8 belonged to CPI and 2 belonged to CPI(M). Initially, Smt. Manimozhi of the UDF was elected as the President of the Panchayat while Sri. Marsh Peter became the Vice-President, both of whom belonged to the INC. While so, no-confidence motions were brought against the President and the Vice-President of the Panchayat. Smt. Manimozhi resigned before the motion was put to vote and Sri. Marsh Peter was removed through the motion on 10.12.2021.
4. After the no-confidence motion, elections for the new President and Vice-President were scheduled to be held on 03.01.2022. The INC decided to field Smt. Deepa Rajkumar, elected from Ward 3 as its Presidential candidate and Sri. Marsh Peter again as the Vice-Presidential candidate. Directions in writing were issued on 24.12.2021 to all the members belonging to the INC to attend the meeting and to cast their vote in favour of INC candidates in the elections to be held on 03.01.2022. However, Smt.Praveena Ravikumar and Sri. M.Rajendran were reluctant to accept the whip directly in person, and therefore, the whip was sent through registered post on 24.12.2021. Since both of them refused to accept the notice, it was returned as ‘unclaimed’. In the meantime, the whips issued to Smt.Praveena Ravikumar and Sri. M.Rajendran were affixed in their respective residences and also communicated to the Secretary of the Munnar Grama Panchayat. Smt. Praveena Ravikumar, who was elected under the banner of INC, stood as the Presidential candidate against the official candidate of INC.
5. In the elections held on 03.01.2022, the official candidates of INC secured only 9 votes and failed to win the elections. Smt. Praveena Ravikumar not only defied the written directions given by the party but also stood as a candidate nominated by the LDF and won the election. Smt. Praveena Ravikumar and Sri. M.Rajendran voted against the written directions of the INC and voted in favour of the candidates fielded by the LDF resulting in those candidates winning the elections. Sri. Marsh Peter filed O.P. No.1 of 2022 and O.P No.2 of 2022 alleging that Smt. Praveena Ravikumar and Sri.M.Rajendran had become disqualified under section 3(1)(a) of the Kerala Local Authorities (Prohibition of Defection) Act, 1999, (for short ' the Act').
6. Sri. Marsh Peter, who was the original petitioner before the Election Commission, is hereafter referred to as the ‘petitioner’ while the original respondents -Smt.Praveena Ravikumar and Sri.M.Rajendran are referred to as ‘respondents’ collectively.
7. In the separate objections filed by the respondents,
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.
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.
Compliance with statutory procedural requirements is essential to uphold the validity of directives impacting party membership and election outcomes.
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....
Candidates using a political party's symbol are deemed members of that party and bound by its directives, leading to disqualification for defection if they act contrary.
Election - Disqualification on ground of defection - Petitioner has violated the whip and invited the impugned order. Violation alleged in terms of Section 4 with regard to 24 hours as held by this C....
High Court in exercising the jurisdiction under Article 227 of the Constitution of India was totally erroneous.
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