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2022 Supreme(Online)(KER) 15646
HIGH COURT OF KERALA
S.MANIKUMAR, CJ, SHAJI P.CHALY, J
BIJU P. CHERUMAN @ AADI MARGI MAHA CHANDALA BABA – Appellant
Versus
ELECTION COMMISSION OF INDIA – Respondent
WP(C) NO. 24222 OF 2022 | WP(C) NO. 24233 OF 2022
For the Appellants/Petitioners: P.K.PRETHEEP KUMAR, SONNYMON K. MATHEW
For the Respondents: K. GOPALAKRISHNA KURUP, DEEPU LAL MOHAN, MANU S., V. MANU
Breach of oath does not constitute grounds for disqualification of legislators under the Constitution of India.
Headnote:(A) Constitution of India - Articles 173(a), 188, 191, and 192 - Breach of oath by a Member of Legislative Assembly - Petitioner sought a writ of quo warranto against an MLA for alleged disloyalty to the Constitution, following derogatory remarks made in a public meeting - No evidence presented to show the MLA’s disqualification under specific constitutional and legislative grounds - Court found disqualification under Article 191 provisions is exhaustive and does not include breach of oath as a basis for disqualification. (Paras 3, 11, 21, 28, 30).
(B) Writ Jurisdiction - The jurisdiction of the High Court under Article 226 does not entertain cases based on alleged violation of an oath of office without established legal grounds of disqualification - The court cannot substitute its judgment in cases for which there exists a clear procedural remedy under the Constitution or legislation. (Paras 13, 19, 30).
Facts of the case:
The writ petitions challenge the conduct of a sitting MLA relating to derogatory remarks made against the Constitution, alleging the need for disqualification and taking appropriate actions against him related to his conduct as a public official.
Findings of Court:
The arguments regarding disqualification lacked substantive grounding in existing legal provisions, leading the court to conclude petitions do not warrant judicial relief under Article 226.
Issues: Whether a breach of oath can form a ground for disqualification of a member of the legislative assembly and the maintainability of the writ petitions seeking such disqualification.
Ratio Decidendi: The court held that breach of oath is not among the constitutionally prescribed grounds for disqualification from membership of the legislature; hence the case was not maintainable, given the clear procedural alternatives available.
Result: Writ petitions dismissed.
| Table of Content |
|---|
| 1. challenge against an mla's disqualification for breach of oath. (Para 1 , 2 , 4 , 11) |
| 2. discussion on the grounds for disqualification from legislative positions. (Para 7 , 14 , 21 , 28) |
| 3. judicial limits on issues of disqualification not prescribed in law. (Para 27 , 30) |
JUDGMENT
S. Manikumar, CJ Challenging the act of a speech allegedly defying the Constitution of India, by respondent No.4, an MLA representing Chengannur Constituency, in Alappuzha district, and a Minister then, in a political meeting, W.P.(C) No.24222 of 2022 is filed seeking for issuance of a writ of quo warranto or any other appropriate writ, order or direction declaring that the 4th respondent is not entitled to hold the office of the post of 3rd respondent-Member of Kerala Legislative Assembly.
2. According to the petitioner, the act of respondent No.4 is clear violation of Articles 173(a) and 188 of the Constitution of India, and that a crime has also been registered against him as Crime No.600/22 by the Keezhvaipur Police Station, Pathanamthitta district.
3. W.P.(C) No.24233 of 2022 is filed being aggrieved by the inaction on the part of the respondents in taking stringent action against the former Culture, Cinema and Fisheries Minister and sitting MLA of Chengannur Constituency-respondent No.1, for issuance of a writ of quo warranto commanding the 1st respondent to forthwith resign or to restrain from the post of MLA. He has also sought for a direction to the 7th respondent – the Home Minister, Ministry of Home Affairs, New Delhi, represented by Assistant Solicitor General of India for the Kerala High Court, to make necessary reports regarding the Constitutional crisis occurring in the State and take proper action under Article 356 of the Constitution of India.
4. That apart, petitioner in W.P.(C) No.24233 of 2022 has also sought for a mandamus directing respondent Nos.5, 6, 8 and 9 to constitute a Special Team to register appropriate cases against the 1st respondent, expedite the investigation, and file a report before the competent Court, within one month.
5. For convenience of discussion, we deem it fit to refer to the facts in W.P.(C) No.24233 of 2022 as hereunder: 5.1 W.P.(C) No.24233 of 2022 is filed by the petitioner claiming that he is the President of Bahujan Dravida Party (BDP), which according to the petitioner is a national political movement for the weaker sections of the country, working with the proper registration number issued by the Election Commission of India.
5.2 At the outset, it is made clear that no documents are produced by the petitioner, to ensure that the political party is a registered one with the Election Commission of India.
5.3 The grievance highlighted by the petitioner in W.P.(C) No.24233 of 2022 is that, the respondents 2 to 10, viz., State Secretary, Communist Party of India (Marxist), Kerala State Committee, Thiruvananthapuram; Chief Minister of Kerala; Additional Chief Secretary, Department of Home Affairs; DGP & State Police Chief; the Home Minister, Ministry of Home Affairs, represented by the Assistant Solicitor General of India for Kerala High Court; Director General NIA, New Delhi; Superintendent of Police, Alappuzha District; and the Editor, Janam TV, Thiruvananthapuram, have failed to take appropriate action against the former Minister for Culture, Fisheries and Youth Affairs Minister and sitting MLA of Chengannur Municipality Mr. Saji Cherian – respondent No.1, a CPI(M) leader, against the derogatory remarks or crooked deliberate attack against the Constitution in his speech made on 3.7.2022.
5.4 According to the petitioners, the said speech was live telecasted through Facebook, a social media platform handled by the Area Committee of Pathanamthitta district, in which, the minister has clearly expressed disloyalty to the Constitution of India and thereby, violated the Oath administered to him as an M.L.A., that he will abide by the Constitution of India.
5.5 The case projected by the petitioners
