Eruthavoor Chandran v. Kerala State Election Commission; K. Rajendran v. Kerala State Election Commission (W.A. Nos. 1800/2014 & 1814/2014)

**“C.R.”** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.HRISHIKESH ROY** ## **&** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **THURSDAY,THE 13TH DAY OF DECEMBER 2018/22ND AGRAHAYANA, 1940** **WA.No. 1800 of 2014** **AGAINST THE JUDGMENT IN WPC 18146/2013 of HIGH COURT OF KERALA DATED 08-07-2014** ## **APPELLANT/PETITIONER:** **ERUTHAVOOR CHANDRAN AGED 59 YEARS, S/O.VASUDEVAN PILLAI, 'SALINI MANDIRAM', NETHAJI LANE, KOOVALASSERI POST, MARANALLUR, NEYYATTINKARA TALUK, (MEMBER, WARD NO.19, MARANALLUR GRAMA PANCHAYAT, THIRUVANANTHAPURAM DISTRICT, PIN - 695 501)** **BY ADV. SRI.T.M.RAMAN KARTHA** ## **RESPONDENTS/RESPONDENTS:** - **1 KERALA STATE ELECTION COMMISSION THIRUVANANTHAPURAM, CORPORATION BUILDING, PALAYAM, THIRUVANANTHAPURAM - 695 001, REP. BY ITS SECRETARY.** **2 K.P.SAJI KUMAR, S/O.KRISHNAN NAIR, SAJI BHAVAN, PLAVARATHALA, VANDANNOOR, RUSSELPURAM P.O., WARD NO.14, MARANALLUR GRAMA PANCHAYAT, THIRUVANANTHAPURAM - 695 512.** W.A. Nos.1800/14 &1814/2014 2 ## **3 N.BHASURANGAN** **MEMBER, WARD NO.1, MARANALLUR GRAMA PANCHAYAT, MARANALLUR, THIRUVANANTHAPURAM - 695 512.** ## **4 MARANALLUR GRAMA PANCHAYAT** **MARANALLUR, THIRUVANANTHAPURAM - 695 512, REPRESENTED BY ITS SECRETARY.** **R1 BY SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM. SRI.T.K.ANANDA KRISHNAN R4 BY ADV. SRI.V.PHILIP MATHEW** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 13.12.2018, ALONG WITH WA.1814/2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** W.A. Nos.1800/14 &1814/2014 3 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.HRISHIKESH ROY** **&** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **THURSDAY,THE 13TH DAY OF DECEMBER 2018 / 22ND AGRAHAYANA, 1940** **WA.No. 1814 of 2014** **AGAINST THE JUDGMENT IN WPC 18145/2013 of HIGH COURT OF KERALA DATED 08-07-2014** ## **APPELLANT/PETITIONERS:** **K.RAJENDRAN, AGED 48 YEARS, S/O KRISHNAN PILLAI, PLAVARATHALACHAK PUTHEN VEEDU, NEERAMANKUZHI, OOROOTTAMABALAM, NEYYATTINKARA TALUK, MEMBER, WARD NO 17, MARANALLUUR GRAMA PANCHAYAT, THIRUVANANTHAPURAM DISTRICT.** ## **BY ADV. SRI.T.M.RAMAN KARTHA** ## **RESPONDENT/RESPONDENTS:** - **1 KERALA STATE ELECTION COMMISSION, THIRUVANNATHAPURAM, REPRESENTED BY ITS SECRETARY 695001** **2 K.P SHAJI KUMAR S/O KRISHNA NAIR, SAJI BHAVAN, PLAVARATHALA, VANDANNOOR, RUSSELPURAM P.O, MEMBER, WARD NO 14, MARANALLUR GRAMA PANCHAYAT, THIRUVANANTHAPURAM 695 001.** W.A. Nos.1800/14 &1814/2014 4 ## **3 N. BHASURANGAN** **MEMBER, WARD NO 1, MARANALLUR GRAMA PANCHAYAT, MARANALLUR, THIRUVANANTHAPURAM 695001** ## **4 MARANALLUR GRAMA PANCHAYAT** **MARANALLUR, THIRUVANANTHAPURAM 695512, RERPESENTED BY ITS SECRETARY** **R1 BY SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM** **SRI.T.K.ANANDA KRISHNAN R4 BY ADV. SRI.V.PHILIP MATHEW** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 13.12.2018, ALONG WITH WA.1800/2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** W.A. Nos.1800/14 &1814/2014 5 ## J U D G M E N T ## Hrishikesh Roy, CJ Heard Sri.T.M.Raman Kartha, the learned counsel appearing for the appellants. Also heard Sri.Murali Purushothaman, the learned standing counsel appearing for the 1[st] respondent and Sri.V.Philip Mathew, the learned standing counsel appearing for the Panchayat (4[th] respondent). 2. The appellants in these two cases were to vote in accordance with their party's direction but they acted contrary to such direction while voting for the Panchayat President's post, in the Maranallur Panchayat in the election held on 26.11.2012. Both appellants belong to the CPI(M) Party and were directed to vote in favour of the party candidate put up by the CPI party, since under the arrangement of the two parties, it was the CPI's turn for the Presidential post. However, defying the Party directives, the appellant Eruthavoor Chandran deliberately voted in a defective fashion, and thereby invalidating his vote. In so far as the appellant Sri.K.Rajendran is concerned, he failed to cast his vote, feigning illness and getting himself admitted to the hospital. It so turned out that the Presidential candidate put up by the LDF was defeated by a single vote and therefore it is apparent that votes of the two appellants could have made a material difference in the result of the said election. 3. Accordingly, complaint was filed by the defeated candidate Sri.N.Bhasurangan, under the Kerala Local Authorities (Prohibition of Defection) Act, 1999 ('the Act' for short). Acting on the complaint and the evidence adduced by the parties, the Kerala State Election Commission concluded that the conduct of the appellant is covered by the first limb of Section 3(1)(a) of the Act, and they voluntarily gave up their membership in the political party, by defying the voting direction issued by the party. The appellants were accordingly declared to have earned the disqualification by the Election W.A. Nos.1800/14 &1814/2014 6 Commission, under the analogous judgment dated 17.7.2013 (Ext.P5). The aggrieved parties then approached the High Court but the learned Judge by the judgment rendered on 8.7.2014, found no acceptable basis to interfere with the disqualification ordered by the Election Commission. Thus, both Writ Petitions were dismissed on 8.7.2014. Against the said order, the present Writ Appeals have been filed. 4. The learned counsel Sri. Murali Purushothaman draws the attention of the court to paragraph 28 of the 17.7.2013 (Ext.P5) judgment of the Election Commission to point out that the appellants by their conduct is found to have voluntarily given up their membership of their political party and that action had not been taken against them, for defying the party whip. Therefore, these cases are covered under the first limb of the disqualification, specified by Section 3(1)(a) of the Kerala Local Authorities (Prohibition of Defection) Act , 1999. 5. In order to explain the distinction between the member of a political party acting in defiance of the whip and a member who voluntarily gives up the membership of the party, the learned counsel for the Election Commission, places reliance on the decision reported in Biju P.S and Others v. Kerala State Election Commission [2009 (2) KHC 839] wherein a learned Judge has held as follows: **==> picture [326 x 8] intentionally omitted <==** 17. Under the Act, a member can be disqualified if he has voluntarily given up the membership of the political party to which he belongs or acts in defiance of a whip / direction issued by the political party. Disqualification for voluntarily giving up the membership of one's party, is not dependant on the violation of the whip. The intention of the Act is that the member who has violated the whip or has abandoned the membership of the political party to which he belongs shall be disqualified. It is not necessary to hold that the member has violated the whip in order to hold that he has voluntarily abandoned the W.A. Nos.1800/14 &1814/2014 7 membership of his political party. The grounds for disqualification are distinct and are not interlinked. “ . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. In Surya Prakash and Others v. Kerala State Election Commission, Trivandrum and Others [2015 KHC 454], where the distinction between the two types of disqualifications, under Section 3(1) of the Act have been explained by a Division Bench of this Court. 7. The learned counsel Sri. Purushothaman then places reliance on Lissy Valsalan v. Suja Salim and Another reported in [2015 (3) KHC 968], where again the Division Bench held that where a member of a political party is aware of the decision taken by the political party, but had failed to act in accordance with the political directive, it would amount to voluntarily abandoning the membership of the political party and he would be disqualified under Section 3(1) of the Act. 8. In reaching the above conclusion, our Court had referred to the decision in Kihoto Hollohan v. Zachillhu [1992 Supp. (2) SCC 651], where the Supreme Court had explained the objective of the 10[th] Schedule to the Constitution in the following passage:- “ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . …..... Any freedom of its members to vote as they please independently of the political party's declared policies will not only embarrass its public image and popularity but also undermine public confidence in it which, in the ultimate analysis, is its source of sustenance - nay, indeed, its very survival.” Referring to the object behind the 10[th] Schedule to the Constitution of India dealing with disqualification on the ground of defection, it was held therein that, “the provision is to curb the evil of political defection motivated by lure of office or other similar considerations which endanger the foundations of our democracy. The only remedy would be to disqualify the member....” The Father of our Nation had foreseen the possibility of such cancerous and endangering tendencies in the practice of democracy and hence only the Mahatma said that politics without principle is a vice. No doubt politics is an art. But the beauty of the art is lost when no value is attached to the art. It is to check erosion of the values in democracy the 10[th] Schedule to the Constitution of India and the Kerala Local Authorities (Prohibition of Defection) Act, 1999 were brought into force. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .” W.A. Nos.1800/14 &1814/2014 8 9. It is relevant to note that in the Ext.P5 order of the Election Commission, the Ext.X8 was referred to, which establishes that the District Secretary of CPI(M) had issued direction to the respondents to vote in favour of Sri.Bhasurangan to the post of President, in the Election scheduled on 26.11.2012. This was corroborated by the evidence of Pws. 3, 4 and 5 as also the admission of the Rws 1 and 2. By referring to these evidence, the Election Commission found that the respondents were given directions to vote in favour of Sri. Bhasurangan, for the post of President, but they failed to act in accordance with the directives of the political party. In such backdrop, the respondents were held to have earned disqualification under the first limb of Section 3(1)(a) of the Act and accordingly, they were held to be disqualified. 10. We have perused the basis of the above conclusion and also applied our mind to the discussion by the learned Single Judge while upholding the Ext.P5 decision of the Election Commission. The conclusion of the adjudicating authority as also of the learned Single Judge, on the disqualification incurred by the respondents, when tested with the ratio of the judgments in Biju P.S and Others (supra), Surya Prakash and Others (supra) and Lissy Valsalan (supra), we are convinced that they are consistent with the law enunciated by our court. Therefore finding the impugned decisions to be in order, the Writ Appeals are found devoid of merit and they are dismissed. Sd/Hrishikesh Roy, Chief Justice Sd/A.K. Jayasankaran Nambiar, Judge sou.