Kerala High Court

Vayalar Rajeevan vs Saji Cherian Mla on 27 July, 2022

                   IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
               THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
                                      &
                   THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
          Wednesday, the 27th day of July 2022 / 5th Sravana, 1944
                         WP(C) NO. 24233 OF 2022(S)
PETITIONER:

     VAYALAR RAJEEVAN, KERALA STATE PRESIDENT,
     BAHUJAN DRAVIDA PARTY (BDP), BDP STATE COMMITTEE OFFICE,
     ROYAL BAKERY, 1ST FLOOR, 28/441, INTUC ROAD, NETTOOR. P.O.,
     MARADU, ERNAKULAM-682 940, AGED 49 YEARS, S/O RAGHAVAN,
     KOCHUTHARA HOUSE, PATTANAKKAD. P.O., CHERTHALA, PIN- 688 531.

RESPONDENTS:

  1. SAJI CHERIAN MLA, MLA OFFICE, CHENGANNUR, ALAPPUZHA, KERALA , PIN -
     689 121.
  2. STATE SECRETARY, COMMUNIST PARTY OF INDIA (MARXIST), KERALA STATE
     COMMITTEE, AKG CENTRE, A. RAGHAVAN ROAD, THIRUVANANTHAPURAM-695 034.

  3. CHIEF ELECTORAL OFFICER KERALA, ELECTION DEPARTMENT, KERALA
     LEGISLATIVE COMPLEX, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM - 695
     033.
  4. CHIEF MINISTER OF KERALA, OFFICE OF THE CHIEF MINISTER, 3RD FLOOR,
     NORTH BLOCK, SECRETARIAT, THIRUVANANTHAPURAM, KERALA, PIN-695 001,
     REPRESENTED BY ADVOCATE GENERAL, KERALA.
  5. ADDITIONAL CHIEF SECRETARY, DEPARTMENT OF HOME AFFAIRS, ROOM
     NO.357(A) & 358, MAIN BLOCK, SECRETARIAT, THIRUVANANTHAPURAM,
     PIN-695 001.
  6. DGP & STATE POLICE CHIEF, STATE POLICE HEADQUARTERS, VELLAYAMBALAM,
     THIRUVANANTHAPURAM, PINCODE-695 010.
  7. THE HOME MINISTER, MINISTRY OF HOME AFFAIRS, NORTH BLOCK, NEW DELHI,
     PIN-110 001, REPRESENTED BY ASSISTANT SOLICITOR GENERAL OF INDIA FOR
     THE KERALA HIGH COURT.
  8. DIRECTOR GENERAL, NATIONAL INVESTIGATION AGENCY, CGO COMPLEX, LODHI
     ROAD, NEW DELHI-110 003.
  9. SUPERINTENDENT OF POLICE, ALAPPUZHA DISTRICT, CCSB ROAD, CIVIL
     STATION WARD, ALAPPUZHA, KERALA, PIN-688 012.
 10. THE EDITOR, JANAM TV, LEKSHMI TOWERS, CHAKKAI P.O.,
     THIRUVANANTHAPURAM, KERALA-695 024.

                                                       P.T.O.
      Writ petition (civil) praying inter alia that in the circumstances
stated in the affidavit filed along with the WP(C) the High Court be
pleased to direct the 6th respondent to take all necessary steps to give
proper police protection to the petitioner and the counsel appearing for,
pending the final disposal of the above writ petition.


     This petition coming on for admission upon perusing the petition and
the affidavit filed in support of WP(C) and upon hearing the arguments of
SRI.SONNYMON K. MATHEW, Advocate for the petitioner, SRI.DEEPU LAL MOHAN,
STANDING COUNSEL for R3 and of SRI.K. GOPALAKRISHNA KURUP, ADVOCATE
GENERAL, the court passed the following:


                                                    P.T.O.
                                S. MANIKUMAR, CJ
                                             &
                                SHAJI P. CHALY, J
                -----------------------------------------------------------
                W.P(C). Nos. 24222 & 24233 of 2022 (S)
                 ----------------------------------------------------------
                   Dated this the 27th day of July, 2022

                                      ORDER

S. Manikumar, CJ.

State President of Bahujan Dravida Party (BDP) has filed the

instant public interest writ petition for the following reliefs:

Prayers "i) Issue a writ of Quo Warranto or any other appropriate writ orders or directions commanding to the 1 st respondent to immediately resign or restrain from the post of MLA, who is currently representing the Chengannoor constituency in Alappuzha District.

ii) To Issue a Writ in the nature of mandamus directing the 7 th respondent to make necessary reports regarding the constitutional crisis occurred in the state and take proper action whether it is allowed under Article 356 of the Constitution.

iii) Because of the gravity and rarity of the Constitutional issues, to issue a Writ in the nature of mandamus directing all the respondents 5, 6, 8 and 9 to constitute a special team to register appropriate case against the 1 st respondent and expedite the investigation and file report before the competent Court within one Month, monitor under this Hon'ble Court."

W.P(C).Nos.24222/2022 & 24233/2022

2. Brief facts leading to filing of the writ petition are as

under:

2.1. The petitioner is the State President of Bahujan Dravida

Party (BDP), a national political movement for the weaker

sections of the country working with the proper registration

number issued by the Election Commission of India. The BDP is

now highly aggrieved by the inaction of the respondents in taking

appropriate stringent action against the former Culture, Cinema

and Fisheries Minister and sitting MLA of Chenganoor

Constituency - the 1st respondent, who is the CPI(M) leader and

State Secretariat Member, who had made a derogatory remarks

or highly crooked deliberate attack against the Constitution on

3rd of July, 2022 and that was live telecasted through facebook - a

social media platform, which is handled by their Area Committee

at Pathanamthitta. The problem does not end with the Minister's

resignation. The 1st respondent should resign from the post of

MLA because he has had an oath on behalf of the pledging of

faith over the Constitution for to become an MLA. and this is the

first incident in the history of India that a person, who himself W.P(C).Nos.24222/2022 & 24233/2022

occupying a Constitutional post had deliberately as well as

publically breached his own oath on the Constitution by

distorting it is much enough to ouster him from the position of an

MLA.

2.2. The 1st respondent has not yet corrected his

statements even after his resignation as a Minister. The ruling

Party CPI(M) has sought to put to rest the controversy caused by

the 1st respondent's alleged contentious remarks about the

Constitution which amount to waging a war against the State.

The 2nd respondent described the problems associated with the

alleged speech of the 1st respondent has come to an end, when

he resigned from the Cabinet. But in fact, the 1 st respondent is

still occupying the Constitutional post of an MLA but disloyal to

the Constitution would adversely affect the utmost faith over the

Constitution, and may become a regular habit of disrespect over

it and a great threat to the National Integrity. That will mislead

and might give a wrong message to our young generation, who

are closely watching all these developments. So the situation

warrants an urgent intervention of this Hon'ble Court to protect

the ultimate interest of the Constitution of India. W.P(C).Nos.24222/2022 & 24233/2022

3. In support of the averments and the prayers sought for,

attention of this Court was invited to Section 9 of the

Representation of People Act, 1951, which deals with

disqualification for dismissal for corruption or disloyalty. The

said provision is extracted:

"9. Disqualification for dismissal for corruption or disloyalty. --(1) A person who having held an office under the Government of India or under the Government of any State has been dismissed for corruption or for disloyalty to the State shall be disqualified for a period of five years from the date of such dismissal.

(2) For the purposes of sub-section (1), a certificate issued by the Election Commission to the effect that a person having held office under the Government of India or under the Government of a State, has or has not been dismissed for corruption or for disloyalty to the State shall be conclusive proof of the fact:

Provided that no certificate to the effect that a person has been dismissed for corruption or for disloyalty to the State shall be issued unless an opportunity of being heard has been given to the said person."

4. Statutory provision stated supra deals with dismissal of a

person under the Government of India or under the State

Government, on the finding that corruption or disloyalty to the

State, for a period of five years from the date of such dismissal. W.P(C).Nos.24222/2022 & 24233/2022

5. Provision primarily indicates that he must be a holder of

office under the Government of India or under the State

Government, as the case may be.

6. Posed with a question as to whether a Member of State

Assembly/Council is a person said to be holding an office under

the State Government and as to whether he can be dismissed by

any authority under the Constitution of India for the alleged

disloyalty to the State, there is no specific answer by

Mr.Sonnymon K. Mathew, learned counsel for the petitioner. He

has referred to the Preamble and other Constitutional Provisions.

7. However, by inviting attention of this Court to the

prayers sought for in W.P.(C) No.24233 of 2022, (1) issue a Quo

Warranto or direction against Mr. Saji Cheriyan, MLA or a

direction sought for against the MLA to immediately resign or

restrain from the post of MLA. (2) Prayer for a mandamus

directing the Home Minister, New Delhi, 7th respondent to take

action under Article 356 of the Constitution of India, which deals

with declaration of emergency and the 3 rd relief sought for

extracted supra, Mr. K. Gopalakrishana Kurup, learned Advocate W.P(C).Nos.24222/2022 & 24233/2022

General submitted that none of the reliefs sought for by the writ

petitioner, are maintainable in law.

8. As regards the averments and the prayers sought for

action under Article 356 of the Constitution of India, by inviting

attention of this Court to a Full Bench decision of Andhrha

Pradesh High Court in Dhronamraju Satyanarayana v. N.T. Rama

Rao and Others [1988 KHC 1588], learned Advocate General

submitted that the relief sought for in respect of Article 356 of

the Constitution of India is liable to be rejected outright.

9. Paragraph 18 of the above said judgment referred to by

learned Advocate General is reproduced:

"18. Learned Attorney General of India, assisting this Court, pointed out that the exercise of power under Art. 356 is largely coloured by political considerations and it is not open to this Court to give any mandamus in the terms prayed for by the petitioner. Learned Attorney General invited our attention to a decision of this Court in In Re A. Sreeramulu, AIR 1974 AP106. Dealing with the question of 'satisfaction' for the purpose of Art. 356(1), Chinnappa Reddy J., (as he then was) observed that the issue of President's satisfaction under Art. 356 is basically a political issue and consequently the Court cannot go into the question whether circumstances exist justifying the imposition of President's Rule. Learned Attorney General agreed with Sri. Palkhivala that the 'satisfaction' required W.P(C).Nos.24222/2022 & 24233/2022

for the purpose of Art. 356(1) of the Constitution should be that of the President and it would be impermissible for this Court to go into the merits of the various matters urged by the petitioner and to record its opinion thereon."

10. Inasmuch as there is no answer in respect of the

specific query regarding holder of office in State Government by

any of the learned Counsel representing the petitioners herein

and on the averments made in the writ petition, we request Mr.

K. Gopalakrishna Kurup, learned Advocate General to assist us

and file a statement with all necessary documents.