Defection A Menace To Democracy, Stringent Financial Penalties Needed Against Defectors : Kerala High Court

Justice Bechu Kurian Thomas noted that despite anti-defection laws, many persons commit acts of defection. Taking into account the nature of orders that can be issued against defectors under the existing laws, Justice Thomas held that stringent financial penalties have to be imposed. It observed that only financial penalties will affect the defectors and deter them from committing acts of defection.

“Once an elected representative is found disqualified due to defection, the burden on the exchequer is immense due to the inevitable bye-elections. However, the person responsible for such nefarious activity is not affected seriously due to the nature of the orders that can be issued under the existing law. Considering the entire scenario, this Court has a wishful thinking that the time has come to contemplate on including stringent financial penalties for acts of defection. Unless a monetary pinch is felt by the defector, the evil acts that are sought to be remedied by the anti-defection law will continue. However, as it is a matter that requires a legislative exercise, this Court fervently hopes that the legislature will bestow its consideration earnestly.”

The Court stated that it hopes that the legislature will consider the possibility of imposition of financial penalties upon the defectors under the anti-defection laws to curb the menace of defection. 

The Court passed the above order while considering the issue of defection by voluntarily giving up membership of a political party under whose banner the candidate stood for elections and won. The Court found that the 2nd respondent stood for election as a candidate of Kerala Congress (M) P.J.Joseph [KCMPJJ] under UDF coalition and later joined Kerala Congress (M) [KCM] which is an LDF coalition. It observed that the 2nd respondent had defected under Section 3 (1) (a) of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 (hereafter, referred to as the Act) and has to be disqualified. 

Background Facts

The 2^nd respondent, an elected member from Thodupuzha Municipal Council was alleged to be defected by voluntarily giving up the membership of the party under whose banner he was elected. The petitioners, also elected members from Thodupuzha Municipal Council, filed petitions before the State Election Commission alleging that the 2^nd respondent has become disqualified due to defection.The allegation was that the 2^nd respondent won the election as member of Kerala Congress (M) P.J.Joseph [KCMPJJ] under UDF coalition. Both the petitioners and the 2^nd respondent belonged to UDF coalition. It was alleged that after 2^nd respondent won the election, he gave up his membership in KCMPJJ and joined Kerala Congress (M) [KCM] which is a LDF coalition. KCM was part of coalition of LDF group that included CPI, the CPM and KCM. KCMPJJ was part of the coalition of the UDF group which included the Indian National Congress and KCMPJJ. It was alleged that he suffered disqualification under Section 3(1) of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 (hereafter, referred as the Act)

The 2^nd respondent has denied all the allegations and stated that he was unaware of the coalition groups and that he was a member of the Indian National Congress. The State Election Commission stated that there was no cause of action for disqualification and dismissed the petitions. Aggrieved by this, petitioners have approached the High Court.

The Counsel for the petitioners argued that the 2^nd respondent has voluntarily given up party membership of the political party and the UDF coalition, after he won the election and has committed defection.

The Counsel for the 2^nd respondent submitted that the order of the State Election Commission warrants no interference under the writ petition. It was submitted that he could be disqualified only for giving up membership of a political party and that KCMPJJ was not a registered political party. It was submitted that KCM was a registered political party.

The issue before the Court was to consider whether the elected candidate committed defection by giving up membership of the party under which he stood for elections and won it. 

Court Observations

The Court noted that the anti-defection law was enacted to prevent political defection as floor crossings from one party to another became a threat to democracy. The court noted that the term defection means the joining of another political party other than under whose banner a person stood and got elected. It noted that political defection betrays not only the party under whose banner the election was won but also the public who voted for the candidate. The Court stated that persons were elected by the public based on the promises and ideology of the political party that they represent. It noted that wriggling out of anti-defection law based on technicalities would defeat the purpose of the law and would be a threat to democracy.

“The conduct of political defection betrays not only the party under whose ticket the candidate contested the elections but also the will of the people who elected the candidate. The pivotal role played by political parties in a representative democracy need not be gainsaid….. Wriggling out of the evil of anti-defection law on technicalities, despite changing sides after the election, erodes the efficiency of the law enacted. Such attempts will be to the peril of democracy itself. Ingenious methods adopted by the defectors to overcome the rigour of anti-defection law must be dealt with sternly, as otherwise, the purpose of the statute itself could be destroyed.”

The Court found that the KCMPJJ candidates were permitted to contest the election using the symbol ‘chenda’ and noted that the public as well as the candidates treated KCMPJJ as a political party for conducting the 2020 elections to the Local Self Government Institutions. It noted that Section 2 (xi) of the Act defines the term political party as a registered political party under the Representation of the People’s Act, 1954. It further noted that the statute cannot be interpreted rigidly to defeat its purpose of enactment. The Court noted that interpretation of the statute can be permitted if the purpose of the statute can be achieved without straining the language of the statute and in tune with the general concept of the term defined. It thus noted that KCMJJ was to be treated as a political party for the elections held by Kerala Local authorities in 2020.

Section 3 of the Act provides for the conditions for disqualification on the grounds of defection. It noted that the election petitions were filed under Section 3(1)(a) and (b) which provides for disqualification by a member of a political party and disqualification of an independent member of a coalition. It noted that Section 3(1)(b) was not applicable to the 2^nd respondent as he was not an independent member of the coalition.

“A reading of section 3(1)(a) of the Act reveals that defection can occur when a person belonging to a political party and a member of the local authority either (1) voluntarily gives up his membership of such political party or (2) contrary to any direction in writing issued by the political party votes or abstains from voting in a meeting of the Municipality in the circumstances specified therein. Section 3(1)(b) of the Act, on the other hand, deals with disqualification incurred when (1) an independent member of a coalition withdraws from such coalition or (2) joins another party or (3) contrary to any direction by the coalition votes or abstain from voting in the circumstances specified therein.”

The Court relied upon Rajendra Singh Rana and Others v. Swami Prasad Mouriya and Others (2007) to state that the conduct of the elected member has to be looked into to consider whether he has become disqualified on the ground of defection on voluntarily giving up of membership in the political party. The Court noted that 2^nd respondent contested the election as a member of the political party KCMPJJ with the symbol ‘Chenda’, which is part of the coalition of the UDF. He was elected as a member of Thodupuzha Municipality as a member of KCMPJJ and was part of the coalition of UDF. The Court noted from the evidence that the 2^nd respondent left UDF and joined LDF. It noted that now the 2^nd respondent was working for LDF and had even voted against the views of UDF in the Municipal Council meeting. The Court noted that his conduct thus attracts disqualification under the Act. It noted that the 2^nd respondent has voluntarily given up membership of KKCMPJJ under whose banner he stood and won the elections.

On the above observations, the Court held that the 2^nd respondent had defected and had to be disqualified. 

Counsel for the petitioner: Advocate Manoj P. Kunjachan in WP(C) NO. 15253 OF 2023 and Advocate K.C. Vincent in WP(C) NO. 15289 OF 2023

Counsel for the respondents: Standing Counsel Deepu Lal Mohan, Thajudeen, P Deepak Irfan Basheer and Nazrin Banu

Citation: 2023 LiveLaw (Ker) 634

Case title: Deepak K. v The Kerala State Election Commission & connected case

Case number: WP(C) NO. 15253 OF 2023 and WP(C) NO. 15289 OF 2023

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