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 Local Authorities (Prohibition of Defection) Act, 1999.

JUDGMENT :

V.G.Arun, J.

This appeal is filed against the judgment in W.P.(C) No.22423 of 2023 by which the learned Single Judge repelled the challenge made to the order of the State Election Commission, disqualifying the appellant from being a member of the Pavaratti Grama Panchayat under Section 3(1)(a) of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 ('the Act' for short). The essential facts are as under;

The appellant contested the election to Ward No.1 of Pavaratti Grama Panchayat held in December, 2020, as an independent candidate supported by the Indian National Congress (I) and won the election. In her declaration submitted after election, the appellant stated that she had contested as an independent candidate supported by the INC(I). Thereafter, the appellant was elected as President of the Panchayat with the help of members of the Left Democratic Front, that too, by defeating the second respondent, who was the official candidate of the INC(I). This led to the second respondent filing the election petition and the appellant being disqualified by the Election Commission.

2. Heard Senior Advocate K.Ramakumar, instructed by Adv.T.H.Aravind for the appellant, Adv.Deepu Lal Mohan for the State Election Commission and Adv.M.Sreekumar for the second respondent.

3. Learned Senior Counsel contended that, since the appellant had contested as an independent candidate, she had every right to contest to the post of President in that capacity. Such conduct on the appellant's part does not amount to defection and hence, the State Election Commission and the learned Single Judge grossly erred in finding the appellant to have defected and being disqualified to continue as a member of the Panchayat. It is submitted that the appellant had contested with the symbol 'Autorickshaw', which itself is sufficient proof of the fact that she was an independent candidate. It is submitted that the appellant had been supported by not only the INC(I), but certain political parties in the LDF coalition also. Even though this fact was deposed by the witnesses examined on the appellant's side, that crucial piece of evidence was discarded by the Election Commission. It is contended that, being an independent candidate, the appellant was not bound by the whip issued by the INC(I), she not being a member of that political party. Reliance is placed on the decision in Abdul Haque v Pathumma [2005 (1) KLT 980] to contend that, merely by reason of a political party having supported a candidate, that candidate cannot be termed to have been 'set up by that political party'. Referring to the decision of the Apex Court in Jagjit Singh v State of Haryana and Others [(2006) 11 SCC 1], it is submitted that, in order to determine whether an independent member has joined a political party, the test is to consider whether the member has given up his independent character on which he was elected. According to the learned Counsel, even though the appellant was supported to by the INC(I) and other political parties, she had never given up her independent character. On the other hand, the appellant had filed a declaration as per Rule 3(2)(c) of the Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000 ['the Disqualification Rules' for short] as an independent member. This crucial factor was omitted to be considered by the State Election Commission as well as the learned Single Judge.

4. Learned Standing Counsel for the Election Commission submitted that in the appellant's nomination submitted as per Rule 6 of the Kerala Panchayat Raj (Conduct of Election) Rules, 1995 and her declaration under Rule 3(2) of the Disqualification Rules, the appellant had specified that she is contesting as an independent candidate supported by the INC(I). As per the Explanation to Section 2(ii) of the Act, a member who stood as a candidate in an election with the support of any one of the political parties or coalition shall be deemed to be a member included