Kerala Local Authorities Act | Elected Party Member Subsequently Supporting Opposite Party Liable For Disqualification: High Court

The Kerala High Court on Wednesday laid down that a member elected under the name of one party who subsequently supports the opposite party would be disqualified for voluntarily giving up membership under Section 3(1)(a) of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 (' 1999 Act').

In upholding the disqualification of the 2nd respondent under the 1999 Act, for "voluntary giving up membership" of the party under which he was elected, by 'supporting the opposite party' in a no-confidence motion raised against his own party member, a single bench of Justice Bechu Kurian Thomas observed

"If the conduct of a particular member indicates that he had, after being elected under the banner of one party, supported the opposite party, the same is sufficient to attract the disqualification of voluntarily giving up membership."  

The petitioner, who is the President of the Indian National Congress (INC), Alappuzha District Committee, alleged that contrary to the whip issued by him, the 2nd respondent acted in defiance of the same at a no-confidence motion moved by the opposition party CPI(M), against the then President of Veliyanadu Grama Panchayat.

It was alleged that the 2nd respondent in defiance of the directions issued, not only attended the meeting but also voted in favor of the no-confidence motion moved against the President who belonged to his own coalition, thereby incurring disqualification for defection under the Act, 1999.

The petitioner further averred that the 2nd respondent was also disloyal to the banner of the party under which he had been elected, in that he was subsequently made the President of the Panchayat with support of the CPI(M), seemingly as a reward for defiance of the whip. 

On the other hand, the 2nd respondent contended that the petitioner, who was only the nominated President, did not possess the powers of an elected President, and thus, could not issue a whip. It was also submitted that he had not been served any whip by the petitioner or his party.

The 2nd respondent further submitted that a no-confidence motion had been moved against him, pursuant to which he had been expelled from the coalition by the INC, and that the question of defection or disqualification would thus not arise. 

The Election Commission found that there was no evidence to prove any whip or direction issued to the 2nd respondent. It also could not find any conscious decision on the part of the INC to enforce upon its members the decision not to participate in the discussions for the no-confidence motion, thereby concluding that the 2nd respondent did not voluntarily give up his membership. 

It is against the above findings of the Election Commission that the present plea was filed. 

The Court took note that the petitioner had initially filed the plea alleging disobedience of the whip by the 2nd respondent, and subsequently amended it by stating that the latter had voluntarily given up his membership of the party under which he had contested and won election as a member of the Panchayat. 

The Court thus ascertained that the following questions arose for consideration: first, whether the 2nd respondent had defected due to a violation of a direction in writing issued to him and secondly, whether he had voluntarily given up membership of the party under whose banner he was elected.

As regards the first question, the Court found that although the 2nd respondent had been served the whip the day before the election, the petitioner failed to adduce evidence to show that the said direction in writing was served on the Panchayat Secretary.

Taking note of the decision in George Elamplakkadu @ Vakkachan Powathil v. A.V. Mathew @ Samkutty Vettupalam & Ors. (2020) which laid down that the service of the whip to the Secretary is mandatory, and non-compliance with the said provision would be fatal, the Court concluded that the findings of the Election Commission on there having been no valid whip, need not be interfered with. 

The Court however went on to add that failure to abide by the whip was different from voluntarily giving up membership of the party under whose banner a person was elected as a member. 

Justice Thomas was of the view that even if there is a failure to prove a valid whip, the petitioner could still prove that the person against whom defection is alleged had by his conduct, voluntarily given up membership of the party under whose banner he was elected. 

The Court thus ascertained that although the 2nd respondent disputed the service of a valid whip on him, he did not disputedpP the circumstances that he had supported the no-confidence motion moved by the opposition members against his own party member, nor had he adduced evidence to prove that his party had expelled him from the coalition. 

"The evidence in the present case brings to the fore the circumstance that the second respondent had supported the no-confidence motion against the President of the Panchayat who was a member of his own party. After the President of the Panchayat was voted out, the second respondent himself stood for the Presidentship of the Panchayat with the support of the opposite party members. This conduct by itself indicates, with certainty, that the second respondent became disloyal to his party. The said conduct can only be at the risk of inviting disqualification for voluntarily giving up membership of the party under whose banner he was elected," it observed. 

The Court thus held that the order of the Election Commission to the extent it held that there was no evidence of voluntarily giving up of membership by the 2nd respondent was perverse and liable to be interfered with. 

Accordingly, the 2nd respondent was declared to have become disqualified due to voluntary giving up of membership under the 1999 Act. 

Counsel for the Petitioner: Advocates T. Asaf Ali and T.Y. Laliza

Counsel for the Respondents: Standing Counsel for State Election Commission Deepu Lal Mohan, and Advocates B. Mohanlal, and Abijith M. 

Citation: 2023 LiveLaw (Ker) 696

Case Title: M. Liju v. Kerala State Election Commission & Anr. 

Case Number: W.P.(C) No.33740 of 2022

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