The Kerala High Court recently held that formal membership in a political party is not a prerequisite for applying the provisions for disqualifying one for voluntarily giving up membership of his party. It further stated that if a member contests an election with the support of a political party, he/she will be regarded as a member of that party.
Brief Facts:
In the December 2020 Local Self Government Institutions General Elections, the writ petitioner and the 1st respondent were elected as Members of Ward No.7 and Ward No.11 respectively in Mannar Grama Panchayat. They were both official candidates of the Indian National Congress (INC), part of the United Democratic Front (UDF). Despite the whip, the 1st respondent voted for the LDF candidate who became President, and later contested and won the Vice President post with the support of LDF members. Every major political party appoints a whip who is responsible for the party's discipline and behaviours on the floor of the house. The petitioner filed OP No.1 of 2021 to disqualify the 1st respondent under the Kerala Local Authorities (Prohibition of Defection) Act, 1999 for six years. However, the Election Commission dismissed the petition due to the petitioner's failure to follow the proper procedure and the invalidity of the whip.
Under Section 3, a member is to be disqualified if he/she votes or abstains from voting, contrary to the direction issued by the political party to which he/she belongs to. Rule 4 of the Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000 stipulates that a written direction is required under Section 3 of the 1999 Act. The written direction must be issued on the party's official letterhead and should include a date and seal. The issuer must obtain a receipt from the member, and a copy of the written direction must be provided to the Secretary.
Contentions of the Appellant:
The petitioner's counsel contended that the 1st respondent abandoned their INC membership by supporting a rival party and becoming Vice President with their help, which was not addressed by the Election Commission. The counsel further contended that the 1st respondent was aware of the INC's decision, and the court previously ruled in Eruthavoor Chandran and another v. Kerala State Election Commission [2018 (5) KHC 964] that failure to follow the party's directive constitutes voluntary abandonment. Therefore, the 1st respondent voluntarily gave up their membership by supporting a rival party candidate and winning the Vice President position with their assistance.
The petitioner further cited the case of Biju R.S. and others v. Kerala State Election Commission and others [2009 (2) KHC 839] where the Kerala HC held that disqualification for voluntarily giving up party membership does not require a violation of a whip.
Contentions of the Respondent:
The 1st respondent opposed the writ petitioner and cited differences between the whips produced by both parties (Ext.P4 and Ext.X1), resulting in the Election Commission deeming the petitioner's whip invalid. The 1st respondent also argued that the whip lacked a clear direction to vote, was not directly communicated to the Secretary, and lacked a dated signature from the authorized person, making it invalid. Therefore, the 1st respondent contended that there was no official INC candidate for President or Vice President.
As to the Kerala State Election Commission, it was argued that in Section 4(2) of the Act, the Election Commission's decision is final and cannot be revisited based on a re-evaluation of evidence under Article 226 of the Constitution of India.
Observations by the Court:
The Court took note of the petition filed by the Petitioner before the Election Commission, which indicated that the Petitioner had raised a specific ground. The objection filed by the 1st Respondent also revealed that the Respondent was aware of the arguments presented. Furthermore, the Court observed that the 1st Respondent had asserted in the objection filed before the Commission that he had not obtained formal party membership and had stood as the official candidate of UDF based on the promise that he would be appointed as the Vice President of the Panchayat. However, the petitioner and other members of the party failed to fulfill their promise after the elections, the 1st Respondent had argued before the Commission.
Further, the court while considering 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, it examined the scheme of the 1999 Act. Section 2(ii) of the 1999 Act's Explanation states that a member who contested an election with the support of a political party or coalition is considered a member of that party. This deeming provision enables Section 3(a) of the Act, 1999 to apply to a member who does not hold formal party membership. The member's motive for running as a party candidate is immaterial, the court held.
The Court determined that the Election Commission's decision on the violation of the written direction/whip was supported by the available evidence and should not be disturbed. Therefore, the Court affirmed the Commission's verdict regarding disqualification for breaching the written direction/whip.
The decision of the Court:
It returned the matter to the Election Commission to determine the disqualification issue on the grounds of voluntary relinquishment of membership.
Case Title: Sujith Sreerengum V Sunil Sradheyam & Another
Coram: Justice N.Nagaresh
Case No.: Writ Petition (C) NO. 27667 OF 2022
Advocate for the Applicant: Sri S Sreekumar, Senior Advocate, Sri Arun B Varghese, Advocate, Smt Aishwarya V.S., Advocate.
Advocate for the Respondent: Sri.Nandagopal S.Kurup Sri.Deepu Lal Mohan Sri.Abhiram T.K., Advocates
Read Judgment @LatestLaws.com
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