'Forming A Splinter Group By Coming Out From A Political Party Does Not Make Defectors A Political Party': Karnataka High Court

Justice M Nagaprasanna in his order dated September 25 said,

"The contention of the petitioners is that 7 out of 9 of them have resigned and have formed a separate splinter group within the political party. This contention, I fail to countenance, for the reason that merely coming out from a political party and forming a splinter group will not make them a political party. They should either form a political party and seek recognition or show that they have joined a political party that is recognized by the Election Commission of India. It is only then the petitioners can claim that they are protected under Section 3A of the Act."

Case Background:

The petitioners Pavitra and others were elected as councilors to the Kollegal City Municipal Council in the year 2018. The office of President of CMC was reserved for General (Woman) and the office of Vice-President was reserved for Scheduled Tribe (Woman).

On 29-10-2020, elections were held and the petitioners voted in favour of one Gangamma, rebel BSP national party candidate who consequently secured 17 votes and was declared elected as President of the CMC.

The 2nd respondent (Jayamari G), official BSP national party candidate, secured only 2 votes. She filed a complaint with the Deputy Commissioner, who by order dated September 6, 2021, allowed the complaint and disqualified the petitioners from the membership of the Council on the ground that they had violated the direction and had defected from the party.

Arguments by the petitioner:

Senior Advocate Jayakumar S.Patil appearing for the petitioners submitted that the order of Deputy Commissioner does not bear consideration to any of the facts in the case at hand and it is bereft of reasons.

Senior Advocate A.S.Ponanna, appearing for respondent 2, urged that petitioners have resigned from the primary membership of the party way back on 29-02-2020 and having resigned nothing more need be examined in this petition. Further, the admitted facts are that the petitioners have acted against the interest of the party and have defected and formed a splinter group which is also admitted; that with this admission, it is not understandable how the contentions of the kind that are advanced could ever be advanced are his emphatic submissions.

Court findings:

Considering Section 3(1)(a) of the Karnataka Local Authorities (Prohibition of Defection) Act, 1987, which pertains to disqualification on the ground of defection, the court said,

"The letters of resignation submitted by the petitioners on the very perusal of them depicts that they were unconditional. Therefore, once having relinquished their own right to continue as councilors, it would not lie with the petitioners to contend that they have to be disqualified in any other manner as depicted in the Act."

It added, "Resignation is that voluntary act of the petitioners which snaps complete ties with the office that they were holding. Therefore, resignation being such a voluntary act would straightaway be covered under Section 3(1)(a) of the Act."

The court also refused protection sought by the petitioners by invoking Section 3A, which is regarding disqualification on the ground of defection not to apply in case of a split.

The bench said, "Section 3A of the Act protects disqualification of a Member in case of a split in the political party. This protection to the petitioners is not available and the contention is unacceptable."

Further, it said "The petitioners have tendered their resignation on 29.02.2020; eight months have passed by the time the election was sought to be conducted to the office of President and Vice-President of the CMC. The petitioners have not produced even a tither of evidence to show that their splinter group is a political party recognised by the Election Commission of India as obtaining under Section 2(vi) of the Act or have joined any political party which is already recognized by the Election Commission of India."

It opined, "Sitting on the fence and taking up such defence is unavailable to the petitioners. Therefore, the claim of the petitioners for protection under Section 3A of the Act deserves to be rejected."

It concluded by saying, "The order impugned narrates all the circumstances, does consider the contentions advanced and disqualifies the petitioners on the grounds indicated, inter alia, on the ground of resignation. Therefore, I do not find any fault in the order impugned."

Case Title: Pavitra & Ors. v. Deputy Commissioner/ District Election Officer

Case No: WP 17093/2021.

Date of Order: September 25, 2021

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