Independent Candidate Who Joins A Political Party After Elections Will Attract Disqualification : Kerala High Court

The Kerala High Court recently held that when a candidate, who contested elections as an independent contender, subsequently makes a declaration about being a candidate of a party or coalition, the same would attract disqualification on the ground of defection under Section 3(1)(c) of the Kerala Local Authorities (Prohibition of Defection) Act, 1999.

Upholding the decision of the State Election Commission to disqualify an elected member of Keerampara Grama Panchayat, the Division Bench comprising Chief Justice S. Manikumar and Justice Shaji P. Chaly said the law relating to defection in regard to the members of the local body has been made with the intention of upholding the constitutional principles, the democratic setup and the rule of law prevailing in the country.

"This we say because, in order to sustain the faith of the citizens in the democratic set up of conducting elections, and for retaining and sustaining the confidence of the citizens on the candidates elected by the electorate, a strict view is to be adopted in the matter of defection. It is with the said basic intention that the Act, 1999 and Rules, 2000 were brought into force," said the court.

The bench also said that the Tenth Schedule was brought in to cure "the evil of defection" while recognising the significant impact it has on the health of democracy. It added that the 91st Constitutional Amendment also strengthens the view that law needed further strengthening to curb the evil of defection.

"In our view the said proposition would equally, or with more force apply to the laws relating to the defection in the local bodies," said the court

Factual Background

The appellant Sheeba George was elected as an independent candidate from Ward 6 of Keerampara Grama Panchayat, Ernakulam District in the Local Self Government Institutions elections held in December 2020.

She specifically declared in her nomination papers that she is an independent candidate, contesting without the support of any political party or coalition. She had also published an election notice in this regard, seeking votes from the electors as an independent candidate. She was assigned the symbol of 'table fan'.

However, one Mamachan Joseph later brought it to the attention of the State Election Commission (SEC) that although George had contested and won the election as an independent candidate, in the sworn declaration given on 21st December 2020, as required under Rule 3(2) (c) of the Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000, she stated that she was the official candidate of CPI (M)-LDF.

Joseph further alleged that in the register prepared by the Secretary of Keerampara Grama Panchayat as required under Rule 3 (1) of the Rules 2000, She was shown registered as a member of CPI(M)-LDF. It was therefore contended before the SEC that the candidate would incur disqualification under Section 3(1)(c) of the Act, 1999.

SEC Decision

The SEC in this regard found that the candidate herself had admitted that the Panchayat Secretary had recorded the fact in the register based on her declaration. It was also found that in the election to the post of Panchayat President, she had voted in favour of the LDF nominee and later the LDF members successfully proposed and recommended her name for the post of Vice-President.

On these grounds, the SEC held the candidate to be disqualified under Section 3(1)(a) of the Act, 1999 due to defection. The SEC found that the plea of mistake or error in the declaration could not be a valid and reasonable defence, particularly since the candidate herself had made no effort to rectify the error at the appropriate time.

The candidate was also barred from contesting as a candidate in an election to any local authorities for a period of six years from the date of order, as per Section 4(3) of the Act, 1999.

The Single Judge of HC upheld the SEC decision in the writ petition filed before it. The matter then reached the division bench in appeal.

Arguments Before the Court

On behalf of the appellant, it was submitted by Senior Advocate K. Ramakumar and Advocates T. Ramprasad Unni, S.M. Prasanth, R.S. Aswini Sankar, and T.H. Aravind, that although it had been contended before the SEC that the appellant had joined CPI(M), no material was produced before it to show that the said political party had accepted her as a member.

It was urged by the counsels that the Single Judge had failed to notice that 'joining a political party' is a question of fact and in an election matter leading to disqualification and disruption of representation of a ward in the Panchayat, strict pleadings and proof are mandatory as established through precedents.

It was further contended that the view by the Single Judge that a 'mere intimation to the Secretary of the Panchayat after the election' was sufficient to infer that she joined the party, was erroneous and unsupportable in law. A member joining the political party is to be positively proved by the one who seeks disqualification, it was submitted

'Mere aligning with a political party' would not amount to joining that party particularly by an independent member, the court was told.

The counsels also submitted that declaration made in form No.1 of Rule 3(1) of the Rules, 2000 could not be treated as contrary to the nomination paper and amounting to joining the CPI(M) political party. The counsels stressed that in case of any conflict with respect to the nomination paper and the declaration made, the declaration in the nomination paper ought to be accepted and the appellant ought to be treated as an independent candidate supported by CPI(M).

On behalf of the Grama Panchayat, it was contended that as the appellant was an independent candidate, she had an option to make a declaration of her choice, as per Rule 3(c) of the Rules, 2000, and that irrespective of the declaration made, she could only be treated as an independent member.

The Standing Counsel for the SEC Deepu Lal Mohan, Advocates T.K. Ajithkumar and others appeared on behalf of the respondents and supported the findings of the SEC and the Single Judge.

Findings of the Court

The Court perused Paragraph 2(2) of the Tenth Schedule which provides for disqualification on the ground of defection. It emphasised that although there was no proof to establish that the independent member had joined a political party and contested the election, the declaration furnished by her could itself amount to be a relevant piece of evidence in this regard.

The Court further said that the question as to whether a mere support of a political party in favour of an independent candidate can be said to be a defection could not be a static principle based on a case law alone, but it would depend on the pleadings, and the proof depends on the facts, law and circumstances of each case.

Referring to apex court's decision in Jagjit Singh v. State of Haryana, the court said it has been held that the factum of joining can be inferred from facts and conduct of a member, who may not have formally joined the political party. It added that when the appellant herself admitted that she contested as an independent candidate but filed a declaration to the contrary, disqualification contained under Section 3(1)(c) of the Act, 1999 is attracted.

"It is clear from the material available on record that, it is not a case of mere support to the appellant from outside; in the contest of the election to the post of Vice President, but it is done after joining a political party in the context of the laws discussed above," said the court.

It also rejected the contentions of the appellant regarding insufficient proof, and held that sufficient documentary proof was available herein.

In the judgement, the court noted:

"...When a declaration was made by the appellant, an independent candidate who won the election without support of a coalition or of a political party, as if to appear that she has contested as an independent member with the support of a political party/coalition, and the Secretary of the Grama Panchayat registered so in the statutory register; it is clear that the petitioner has violated the requirements of law; which is a clear proof to show that the appellant has joined the CPI(M)/LDF coalition in terms of the provisions of the Act and the Rules, and contested and won the election to the post of Vice President as a candidate fielded by the said political party/ coalition".

The Court further said that it has been held by the apex court that the word "join" in para 2(2) of the Tenth Schedule ought to be given a strict interpretation in view of serious consequences of disqualification flowing therefrom on an order that may be made by the speaker.

It was in this light that the writ appeal was rejected, and the order of the Single Judge was confirmed.

Case Title: Sheeba George v. State Election Commission & Ors. 

Citation: 2022 LiveLaw (Ker) 510 

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