While upholding the decision of the Election Commission, the Kerala High Court recently dismissed Writ Petitions filed against the decision of EC declaring the petitioners "disqualified" for being members of Grama Panchayath (Ranny-Pazhavangadi) and also disqualified them from contesting as candidates in any election of the local body for a period of six years.
Before the Bench of Justice A. Muhamed Mustaque, the essential question in these writ petitions revolved around the nature of candidature of the 3 petitioners in the election held on November, 2015 for the Grama Panchayath.
The petitioners contended that they were independent candidates and any whip issued by the political party would not bind them.
On the other hand, Sri.Abraham @ Anil Thundiyil, the petitioner before the Election Commission and member of the Grama Panchayath contended that the petitioners had contested with the support of the political parties forming part of the LDF coalition.
Importantly, the Court held that
"Acting against the interest of coalition by party members of the constituents of the coalition amounts to acting against their own party. The Election Commission entered into a finding based on the materials before it, there was valid whip and the petitioners were aware of such whip."
The Three Petitioners
Sri.Binu C. Mathew, the petitioner in W.P.(C) No.31824/2019 contested the election as a candidate of CPI with an independent symbol, Smt.Liji Chacko, the petitioner in W.P.(C) No.31796/2019 contested as the candidate of JD(S) with an independent symbol, Sri.Boby Abraham, the petitioner in W.P.(C) No.31773/2019 contested as a candidate of CPI(M) with an independent symbol.
Cause of Action
On 23.5.2017, Abraham (Petitioner before EC) from LDF was the President of the Grama Panchayath at that time.
A No-Confidence Motion was moved against him. A whip was issued by the parties of LDF coalition to all its members. However, it was alleged that defying the whip all these petitioners voted in favour of motion.
The petitioners later on contended that the whip alleged to have been issued was a fabricated one. They alleged that they did not receive the whips.
The petitioners originally admitted that they contested the election as the nominees of political parties forming part of the LDF coalition. However, after closing the evidence, they filed an application for amendment and deleted those admissions.
However, the Election Commission found that there were valid whips in existence and service of the whips was also valid.
The Election Commission also found that the petitioners were liable to be declared disqualified on the ground of defection relatable to both limbs under Section 3(1)(a) of the Act.
Submissions put forth
The counsel for the petitioners challenged the decision of the Election Commission and submitted that the declaration submitted by the petitioners would clearly show that they were part of the coalition as an independent member and not belonging to a particular political party. Therefore, any whip issued by a political party would not bind them.
It was submitted that the person authorised to issue such whip under coalition had not issued any whip. This argument was apart from raising the argument that there was no proof about the genuineness of the whip issued.
It is to be noted that the petitioners raised a contention that the alleged whip was a forged one in the statement filed before the Election Commission.
On the other hand, the counsel for Abraham referred to the declaration of each of the petitioners. The counsel argued that in the declaration, it was clearly mentioned that each of the petitioners belonged to the different political party of the LDF coalition.
The Standing Counsel for the Election Commission referred to Rule 3(2)(a) of the Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000 (the 'Rules') and argued that a person who contested election as a candidate in support of a political party shall be treated as a member of that political party.
It was further argued that even if the whip was found invalid supporting 'No Confidence Motion' against his own party, it would attract the first limb of Section 3(1)(a) of the Act, the ground of defection relatable to voluntarily giving up membership of such political party.
Referring to the EC's decision, the Court noted that the petitioners contested the election with the support of the political party.
"The whip issued by the political party, therefore, assumes significance", observed the High Court.
Again, while referring to Rule 3 (2)(a) of the Rules, the Court remarked,
"As rightly pointed out by the Standing Counsel for the Election Commission, that the petitioners can only be treated as the member of the political party as they won the election with the support of that political party."
Further, the Court observed that there are two limbs under Section 3(1)(a) of the Act, second limb would be attracted only when there was a valid whip and servicing the whip in a manner referred under Section 3(2) r/w 4(2) of the Rules.
The Court was of the opinion that the only question which arose before it was as to whether the first limb under Section 3(1)(a) of the Act is attracted or not, which is related to voluntarily giving up the membership. The petitioners were found part of the political party.
"The moment they become disloyal to their own party, it amounts to a declaration that they have voluntarily given up the membership of such party", the Court remarked.
The Court also observed,
"The petitioners' support to the No-Confidence Motion was against the interest of the political parties which supported them as candidates. This amounts to voluntarily giving up of the membership".
The Court also accepted the applicability of Rule 3(2)(a) of the Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000 wherein, any person who contests election as a candidate, taking the support of a political party, shall be treated as a member of that political party.
Lastly, the Court noted that the Election Commission entered into a finding based on the materials before it, there was valid whip and the petitioners were aware of such whip.
The Division Bench of the High Court in Lizy Valsan v. Suja Salim [2015 (3) KLT SN 61], in such circumstances, had held that voting in violation of whip amounts to voluntarily abandoning their membership.
Accordingly, these writ petitions were dismissed.