Defection | Withdrawal Of Earlier Petition Against Defection Sufficient Ground To Condone Delay In Filing Subsequent Petition: Kerala High Court

The Kerala High Court has held that if an election petition filed before the Election Commission within statutory period is withdrawn, the same will be sufficient cause for another person to seek condonation of delay in moving the subsequent election petition."Once an original petition is filed before the Election Commission alleging defection within a statutory period and suppose the party or the person who filed the Election Petition is influenced by the elected person and he was able to withdraw the defection petition, the Election Commission is not helpless in such situation," Justice PV Kunhikrishnan observed.It thus dismissed a plea filed against an order of the State Election Commission condoning delay in filing the subsequent election petition, holding that “the intention of the defection law itself is to see that the will of the people is exhibited by the elected member till he/she again faces a mandate from the electorate.”The petitioner is the respondent in an application before the Kerala State Election Commission alleging that the petitioner had committed an act of defection of 26th May 2022 by voting in favour of a No confident motion and further standing in the election for vice president against the direction of her political party.A previous petition was filed to disqualify the petitioner which was then withdrawn leading to the current application before the Kerala SEC, filed after the deadline of 30 days as provided under Section 4 of the Kerala Local Authorities (Prohibition of Defection) Act. The respondent had submitted that they had opted to not file a case for disqualification within 30 days due to an already pending application for disqualification of the petitioner and to avoid multiplicity of proceedings. The SEC had referred to the proviso of Rule 4A of the Kerala Local Authorities (Disqualification of Defected Members) Rules, which says that if there exists sufficient reason for not filing the petition within the time limit specified, the State Election Commission may accept the petition. Hence, the application was allowed resulting in the writ petition. The court, while rejecting the petition stated,"An elected representative of a constituency has to represent the will of the electorate of that constituency. He is the representative of the electorate and once he is elected under the banner of a particular political party or political alliance or with an independent status, he cannot change his stand against that political party or that political alliance or his independent status without getting a fresh mandate from the electorate is the fundamental principle of democracy. The elected representative should be the voice of the people of his constituency and he cannot go against the will of his electorate according to his whims and fancies and if this is followed by our elected representatives, that will be an era noted in golden letters in our democracy."The court referred to the decision in Varghese VV and anr. v. Kerala State Election Commission and anr. which had pointed out the aim of the 10th Schedule as being to “curb the evil of political defection motivated by lure of office or other similar considerations which endanger the foundations of our democracy.”In doing so, the court was of the opinion that the Election Commission was perfectly justified in condoning the delay in the applications filed against the petitioner. Counsel for Petitioners: Advocates Liji J Vadakedom and Athul V VadakkedomCounsel for Respondents: Advocates Aswini Sankar RS, Deepu Lal Mohan, P Yadhu Kumar, KR Prathish and Megha SCase Title: Sanitha Saji v. Salimkumar Case Number: WP (C) No. 1141 of 2024Citation: 2024 LiveLaw (Ker) 106Click here to read/download Order

Defection | Withdrawal Of Earlier Petition Against Defection Sufficient Ground To Condone Delay In Filing Subsequent Petition: Kerala High Court

Rubayya Tasneem

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