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2022 Supreme(Online)(KER) 15647
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
Breaching the oath of office does not constitute a ground for disqualification under the Constitution or statutes governing disqualification.
Headnote:(A) Constitution of India - Articles 173(a), 188, 191, and 192 - Disqualification for membership - Allegations of violation of oath of office by MLA leading to Writ of quo warranto - The court examined constitutional provisions allowing for disqualification and found no grounds for disqualification based solely on alleged violation of oath, concluding that existing grounds under the Representation of the People Act, 1951, provide the exhaustive basis for disqualification. (Paras 30, 27)
(B) The court ruled that a breach of oath of office is not a recognized ground for disqualification under the Constitution or the Act, and determined that the issue of breach goes beyond judicial review powers under Article 226. (Paras 30, 28)
Facts of the case:
The petitions sought action against an MLA for purported discredit to the Constitution in a speech, contending that such conduct warranted his disqualification from office.
Findings of Court:
The court determined that disqualification could not be invoked outside the specifically enumerated grounds in the Constitution and related statutory provisions.
Issues: The primary issue was whether violation of oath constitutes a valid ground for disqualification from legislative membership.
Ratio Decidendi: Breach of oath is not a ground for disqualification under specified statutory provisions, and procedural avenues for disqualification exist under Articles 191 and 192 of the Constitution and the Representation of the People Act.
Result: Writ petitions were dismissed.
| Table of Content |
|---|
| 1. challenge to mla's position based on alleged unconstitutionality. (Para 1 , 2 , 3 , 4) |
| 2. petitioner argues systemic failure to act against mla. (Para 5 , 6 , 7) |
| 3. court's reluctance to interfere without clear grounds for disqualification. (Para 8 , 10 , 11) |
| 4. detail of statutory provisions governing disqualification. (Para 27 , 28 , 29 , 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
