Mere Presence Of A CPI (M) Party Member Along With The Members Of BJP Cannot Be Viewed To Hold That He Has Joined BJP: Kerala HC [Read Order]

The Bench of Justice Muhamed Mustaque further stated that the aforesaid observation has to be taken into account in the background that CPI(M) has not chosen to expel the second respondent for anti-party activities by joining with rival political parties.

Background

A Writ Petition was filed challenging an order of the Kerala State Election Commission dismissing the petition filed by the petitioner under Section 4 of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 (for short, the 'Defection Act') to declare that the second respondent disqualified to continue as a member of the Ambalappara Grama Panchayat.

The case was relatable to first part of Section 3(1)(a) of the Defection Act. It may be noted that there are two parts related to the grounds of disqualification [as per Section 3(1)(a) of the Defection Act].

Firstly, a member of the local authority belonging to a political party voluntarily gives up his membership; secondly, he acts against the whip of a political party.

Further, the disqualification can be based on satisfying any one of the part or both. In the present case, the case was projected on the first part of the ground of disqualification under Section 3(1)(a) of the Defection Act i.e, the member of the local authority belonging to a political party [CPI (M)] has voluntarily given up his membership.

Facts of the Case

The petitioner is an elected member of the Grama Panchayat belonged to Communist party of CPI(M), alleged that the second respondent announced his decision to join BJP in a press conference held on 21.3.2018.

The second respondent denied attending any press conference announcing his decision to join BJP.

The petitioner also produced materials before the Election Commission to substantiate his contentions. The petitioner also relied on oral evidence. The second respondent denied the allegation of defection and joining BJP.

The Election Commission on analysing the materials was of the view that there was no convincing and satisfactory evidence to show that the second respondent has given up his membership from CPI(M).

Apart from the newspaper reports, nothing was available before the Election Commission to hold that such a declaration was made by the second respondent in the Press Conference.

Election Commission's Analysis and Decision

The Election Commission adverted to photo posters and observed that some of those do not connect with the second respondent. In some of the photos, it was found that the second respondent was sitting with BJP leaders.

Perhaps the only evidence to connect the second respondent with BJP was the photos taken along with BJP leaders.

The oral evidence was given by CPI (M) office bearers and members indicated that the second respondent remained absent from attending the meeting of the CPI(M) Committee.

The Election Commission observed that CPI(M) has not chosen to expel the second respondent from the party.

On an appreciation of the evidence, the Election Commission was of the view that there was nothing on record to show that the second respondent has joined BJP.

Court's Analysis

The Court was of the view that invoking its power under Article 226 of the Constitution, it cannot upset the finding of fact of Election Commission, unless such finding of fact is perverse or irrational based on the materials before the authority which is competent take primary decision.

The Court further said,

"There is nothing on record to show that the second respondent at any point of time supported BJP, at least to infer that he has given up membership of CPI(M). Apart from pointing out the presence of the second respondent with BJP members or Hindu Aikkiya Vedi there is nothing on record to show that the act of the second respondent would amount to giving up membership with CPI(M)." (emphasis supplied)

The Court further opined,

"Absence of the second respondent in the party meeting of CPI(M) at the best would attract disciplinary proceedings against him, but cannot lead to hold that he has joined BJP. As rightly noted by the Election Commission, CPI(M) has not chosen to take any action against the second respondent." (emphasis supplied)

The Court did not find that the Election Commission had been misdirected on arriving at such a conclusion based on the materials available before the Commission. Therefore, the writ petition was dismissed

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