Kerala Anti-Defection Law| Formal Membership In Political Party Not Prerequisite To Apply Disqualification Provisions For Voluntarily Giving Up Membership: High Court

The Kerala High Court recently held that a formal membership in a political party is not a prerequisite for the provisions of 'disqualification' for voluntarily giving up party membership under the Kerala Local Authorities (Prohibition of Defection) Act, 1999 to apply. The Court observed that a member contesting as a candidate in an election with the support of a political party shall be deemed to be a member of the party. 

A single bench of Justice N Nagaresh observed,

“Explanation to Section 2(ii) of the Act, 1999 provides that a member who stood as a candidate in an election with the support of any one of the political parties or coalition shall be deemed to be a member included in that political party or coalition. In view of the afore statutory fiction enacted as a deeming provision, a member though has no formal membership in a political party, can be still treated as a member of the party in order to apply Section 3(a) of the Act, 1999. The reason or consideration of the member for contesting as a party candidate is irrelevant”

The Court was considering a challenge to an order passed by the State Election Commission dismissing a petition filed under Sections 3 and 4(1) of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 for declaration of disqualification.

The Petitioner and 1st Respondent were both elected to the Mannar Grama Panchayat in the Local Self Government elections in December 2020.

The case of the petitioner was that the 1st Respondent belongs to the Indian National Congress (INC) and participated in the Panchayat election as an INC candidate, which he won. However, after the elections, despite being directed to do otherwise in writing/whip by the INC, the 1st Respondent voted in favor of the LDF candidate for the Panchayat President. Additionally, the petitioner alleged that with the help of the rival LDF party, the 1st Respondent became the Vice President of the Panchayat, defeating the INC/UDF candidate.

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.

Under Rule 4 of the Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000 a written direction is necessary under Section 3 of the 1999 Act. The direction must be given on the party's official letterhead, and should include a date and seal. The person issuing the written direction must obtain a receipt from the member, and a copy of the written direction should be given to the Secretary.

The petitioner alleged that 1st Respondent turned disloyal to the INC/UDF, and has voluntarily given up his membership in the INC by his conduct and thereby he is liable to be disqualified. However, the Standing Counsel for the Election Commission argued that the Commission did not consider the issue as the ground of voluntarily giving up membership of the party had not been pleaded by the petitioner before the Commission and that the Petitioner did not object to the issues framed by the Election Commission even though it did not include the above ground.

However, the Court noted that the petition filed before the Election Commission showed that the Petitioner had urged the specific ground and the objection filed by the 1st Respondent would also show that the Respondent was aware of the pleadings to that effect. The Court also noted that in the objection filed before the Commission, the 1st Respondent had argued that he had no formal party membership and that he contested as the official candidate of UDF on the assurance that he would be made Vice President of the Panchayat. But after the elections, the petitioner and other party members failed to keep their word, the 1st Respondent had submitted before the Commission.

The Court observed that having a formal membership in a political party is not necessary for the provisions of disqualification due to voluntary relinquishment of party membership under the 1999 Act to be applicable. The Court noted that if a member contests an election with the support of a political party, he/she will be considered a member of the said political party.

The Court remitted the Petition back to the Election Commission to adjudicate the issue of disqualification on the ground of voluntarily giving up membership. The Court observed the Election Commission ought to have adjudicated the issue raised by the Petitioner with regard to disqualification of the 1st Respondent on the ground of voluntarily giving up his UDF membership.

The Petitioner had also contended before the Commission that the 1st Respondent was liable to be disqualified as he voted in favour of the LDF candidate for post of Panchayat President contrary to the direction in writing/whip issued by the INC.

In this regard, the Election Commission had concluded that there was no direction in writing/whip in this case, as contemplated under the Act and hence the 1st Respondent could not be disqualified for violation of the whip. The Commission had noted that the document produced contained two dates, making it unreliable. The Commission also noted that the document produced by the Secretary did not contain proper name seal and office seal as required under Rule 4 of 2000 Rules.

The Court held that the conclusion of the Election Commission with regard to violation of direction in writing/whip was based on evidence on record and did not warrant interference. Therefore, the Court upheld the finding of the Commission on the issue of disqualification for violation of direction in writing/whip, however it remitted back the matter to the Election Commission for adjudication of the issue of disqualification on the ground of voluntarily giving up membership.

Case Title: Sujith Sreerengum V Sunil Sradheyam & Another 

Citation: 2023 LiveLaw (Ker) 216

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