Can Voters Approach SEC Seeking Disqualification Of Elected Members U/S 4 Of Local Authorities (Prohibition Of Defection) Act: Kerala HC To Consider

Justice Mohammed Nias C.P. has sought instructions on the matter from the State Government and State Election Commission.

The matter is pertaining to elections to the Local Self Government held in 2020. The petitioner is a voter and the 3^rd respondent is an elected member of Eruvessy Grama Panchayath from Kannur district. The 3^rd respondent who won the election as an independent candidate joined the Indian National Congress. The petitioner filed an election petition seeking disqualification of the 3^rd respondent on grounds of defection.

The petitioner's election petition was dismissed by the State Election Commission by relying upon Section 4 of the Act. The State Election Commission stated that a petition for disqualification can only be filed by a member of a local authority, concerned political party or person authorized by the concerned political party. The State Election Commission ordered that the petition filed by a voter seeking disqualification was not maintainable under Section 4. Aggrieved by this, the petitioner has approached the High Court.

The plea stated that the Kerala Local Authorities (Prohibition of Defection) Act, 1999 was enacted to prevent defection among members of local authorities in the State to ensure political accountability and stability of elected representatives. It intends to prevent the disqualification of defecting members.

Section 4 reads thus: “4. Decision on question as to disqualification on ground of defection.— (1) If any question arises as to whether a member of a local authority has become subject to disqualification under the provisions of this Act a member of that local authority or the political party concerned or a person authorised by it in this behalf may file a petition before the State Election Commission for decision.”

The plea states that the exclusion of voters from the ambit of Section 4 defeats the purpose of the enactment. It is stated that voters would be left with no remedy to challenge defection by an elected representative if an elected member or political party do not challenge it.

The plea alleged that section 4 of the Act was violative of Article 14 of the Constitution of India to the extent to which it excludes voters from filing petitions to challenge defection. The plea said: “This exclusion creates an unreasonable classification among persons who have a legitimate interest in maintaining the integrity of the electoral mandate.”

It stated that allowing voters to file petitions would serve a larger public interest in upholding democratic principles and preventing defection. The plea stated that a harmonious interpretation of Section 4 of the Act to include voters also as eligible to challenge defection would fulfil the objectives of the Act.

The plea has been moved by Advocates Manas P Hameed and Ipsita Ojal

Case Title: Baburaj Thottukara v State of Kerala & Others

Case Number: WP(C) 23171/2024