'No Case For Interference Under Article 226': Kerala High Court Dismisses Plea Seeking Former Minister Saji Cheriyan's Disqualification As MLA

The Kerala High Court on Thursday dismissed the petitions seeking a writ of quo warranto against Chengannur MLA Saji Cherian over his alleged "derogatory remarks against the constitution".

The division bench of Chief Justice S. Manikumar and Justice Shaji P. Chaly observed that it is not for the court to go to the contentions, decipher the truth of it, and grant the reliefs sought by the petitioners under Article 226 of the Constitution of India, when there is a clear procedure prescribed in the law.

"Whether the 1st respondent has violated the Oath of office, on the basis of the subject matter, is a matter which could be identified or deciphered only by a fact finding body, taking into account the attendant circumstances. So also, Article 173 of the constitution of India deals with the qualifications of a person to become a member of a Legislative Assembly, which has nothing to do with the case projected by the petitioners. Therefore, we are of the view that, if at all the allegations have any intrinsic relationship with the disqualifications deliberated above, there is a straightforward remedy specified under the Constitution of India."

The court made the observations in its decision in a matter seeking a declaration that the former minister Saji Cherian is not entitled to hold the office of Member of Kerala Legislative Assembly. It was alleged that in a speech, he "clearly expressed disloyalty to the Constitution of India and thereby, violated the Oath administered to him as an M.L.A"

The petitioners contended that the MLA did not correct his statements, even after his resignation as the Minister. It was argued that his actions are a significant threat to national integrity.

The Court observed that the issue with respect to disqualification for membership is dealt with under Article 191 of the Constitution of India and according to the Article, unless and until the disqualification prescribed therein is available, a member who has already been elected as a Member of Legislative Assembly is not liable to be proceeded on the ground of disqualification for being a member of Legislative Assembly.

It further said that Article 192 (1)  of the Constitution of India, which deals with decisions on the question of the disqualification of members, clearly specifies that if any question arises as to whether a member of a House of the Legislature of a State has become subject to any of the disqualifications mentioned in clause (1) of Article 191, the question shall be referred for the decision of the Governor and his decision shall be final. 

"On a close reading of Articles 191 and 192 of the Constitution of India, we have no doubt to say that there is a clear procedure prescribed, in order to deal with any circumstance under the said Constitutional mandates, if there are any. Hence, there is no scope for considering the subject issue under Article 226 of the Constitution of India, and that too, in a case where writ petitions were filed after making a complaint to the Superintendent of Police; Election Commission of India; Election Commission of Kerala, etc."

The Court after perusing Sections 8, 8A, 9, 9A, 10, and 10A of the Representation of Peoples Act, 1951, which deals with disqualifications, said the provisions do not contain anything to suggest that Article 226 can be invoked.

"It is not for this Court to go to the contentions, decipher the truth of it, and grant the reliefs sought by the petitioners under Article 226 of the Constitution of India; much less, the relief of a writ of quo warranto," it said.

The Court also pointed out that the issue of violation of Oath is a matter to be taken care of under Article 193 of the Constitution of India.

Considering the facts and circumstances; the provisions of the Constitution and the laws; and the provisions of Representation of People Act, 1951, discussed above, we do not think that the petitioners have made a case for interference under Article 226 of the Constitution.

Advocates P.K. Pretheep Kumar and Sonnymon K. Mathew appeared for the Petitioners. 

Advocate General K. Gopalakrishna Kurup, Advocate Deepu Lal Mohan (SC), Election Commission of India, DSGI Advocate Manu S and Senior Government Pleader Advocate V. Manu appeared for the Respondents. 

Case Title: Biju P. Cheruman @ Aadi Margi Maha Chandala Baba v. Election Commission of India and Ors. and Vayalar Rajeevan v. Saji Cherian MLA and Ors. 

Citation: 2022 LiveLaw(Ker) 641

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