Sindhu Anilkumar v. The Kerala State Election Commission and Vimala Sethumadhavan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR. A.J.DESAI** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 22[ND] DAY OF FEBRUARY 2024 / 3RD PHALGUNA, 1945** **WA NO. 1474 OF 2023** **AGAINST THE ORDER/JUDGMENT WP(C) 22423/2023 OF HIGH COURT** ## **OF KERALA** ## **APPELLANT/S:** SINDHU ANILKUMAR AGED 48 YEARS WIFE OF ANILKUMAR, MAKAL HOUSE, MARUTHAYOOR P.O., PAVARATTI, THRISSUR, (MEMBER, WARD NO. 1, PAVARATTI GRAMA PANCHAYAT),, PIN - 680507 BY ADVS. ASWINI SANKAR R.S. K.RAMAKUMAR (SR.) T.RAMPRASAD UNNI S.M.PRASANTH T.H.ARAVIND ## **RESPONDENT/S:** 1 THE KERALA STATE ELECTION COMMISSION THIRUVANANTHAPURAM, PIN - 695033 2 SMT. VIMALA SETHUMADHAVAN WIFE OF SETHUMADHAVAN, THEMATH HOUSE, PUVATHOOR P.O., THRISSUR DISTRICT (MEMBER, WARD NO. 7, PAVARATTI GRAMA PANCHAYAT), PIN - 680508 ## **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON** **14.02.2024, THE COURT ON 22.02.2024 DELIVERED THE FOLLOWING:** W.A.No.1474 of 2023 -2- **“CR”** ## **JUDGMENT** Dated this the 22[nd] day of February, 2024 ## _**V.G.Arun, J.**_ This appeal is filed against the judgment in W.P.(C) No.22423 of 2023 by which the learned Single Judge repelled the challenge made to the order of the State Election Commission, disqualifying the appellant from being a member of the Pavaratti Grama Panchayat under Section 3(1)(a) of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 ('the Act' for short). The essential facts are as under; The appellant contested the election to Ward No.1 of Pavaratti Grama Panchayat held in December, 2020, as an independent candidate supported by the Indian National Congress (I) and won the election. In her declaration submitted W.A.No.1474 of 2023 -3- after election, the appellant stated that she had contested as an independent candidate supported by the INC(I). Thereafter, the appellant was elected as President of the Panchayat with the help of members of the Left Democratic Front, that too, by defeating the second respondent, who was the official candidate of the INC(I). This led to the second respondent filing the election petition and the appellant being disqualified by the Election Commission. 2. Heard Senior Advocate K.Ramakumar, instructed by Adv.T.H.Aravind for the appellant, Adv.Deepu Lal Mohan for the State Election Commission and Adv.M.Sreekumar for the second respondent. 3. Learned Senior Counsel contended that, since the appellant had contested as an independent candidate, she had every right to contest to the post of President in that capacity. Such conduct on the appellant's part W.A.No.1474 of 2023 -4- does not amount to defection and hence, the State Election Commission and the learned Single Judge grossly erred in finding the appellant to have defected and being disqualified to continue as a member of the Panchayat. It is submitted that the appellant had contested with the symbol 'Autorickshaw', which itself is sufficient proof of the fact that she was an independent candidate. It is submitted that the appellant had been supported by not only the INC(I), but certain political parties in the LDF coalition also. Even though this fact was deposed by the witnesses examined on the appellant's side, that crucial piece of evidence was discarded by the Election Commission. It is contended that, being an independent candidate, the appellant was not bound by the whip issued by the INC(I), she not being a member of that political party. Reliance is placed on the decision in _**Abdul Haque v**_ W.A.No.1474 of 2023 -5- ## _**Pathumma [2005 (1) KLT 980]**_ to contend that, merely by reason of a political party having supported a candidate, that candidate cannot be termed to have been 'set up by that political party'. Referring to the decision of the Apex Court in _**Jagjit Singh v State of Haryana and Others [(2006) 11 SCC 1]**_ , it is submitted that, in order to determine whether an independent member has joined a political party, the test is to consider whether the member has given up his independent character on which he was elected. According to the learned Counsel, even though the appellant was supported to by the INC(I) and other political parties, she had never given up her independent character. On the other hand, the appellant had filed a declaration as per Rule 3(2)(c) of the Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000 ['the Disqualification Rules' for short] as W.A.No.1474 of 2023 -6- an independent member. This crucial factor was omitted to be considered by the State Election Commission as well as the learned Single Judge. 4. Learned Standing Counsel for the Election Commission submitted that in the appellant's nomination submitted as per Rule 6 of the Kerala Panchayat Raj (Conduct of Election) Rules, 1995 and her declaration under Rule 3(2) of the Disqualification Rules, the appellant had specified that she is contesting as an independent candidate supported by the INC(I). As per the Explanation to Section 2(ii) of the Act, a member who stood as a candidate in an election with the support of any one of the political parties or coalition shall be deemed to be a member included in that political party or coalition. Likewise, in the Explanation to Section 3 of the Act, dealing with disqualification on the ground of defection, it is stipulated that, for the purpose of the ## W.A.No.1474 of 2023 -7- |Section, an elected member of a local authority| |---| |shall be deemed to be a member belonging to the| |political party, if there is any such party, by| |which he was set up or given support as a| |candidate for the election. It is submitted that| |the word 'set up' in the Explanation was| |substituted with the words 'set up or given| |support' by amendment dated 17.01.2012. The| |decision in **_Abdul Haque_**<br> _(supra)_was rendered| |prior to the amendment and is therefore not| |applicable. The appellant having contested the| |election with the support of the INC(I), is| |deemed to be a member of that party and her| |conduct of having contested against the official| |candidate of the INC(I), contrary to the| |direction issued by that party, amounts to| |defection.| |5.<br>Learned<br>Counsel<br>for<br>the<br>second| respondent supported the arguments put forth by the Counsel for the Election Commission. W.A.No.1474 of 2023 -8- 6. In order to address the contentions advanced, it is essential to peruse the relevant documents. The nomination of the appellant, produced as Ext.R2(a), and the declaration under Rule 3(2) of Disqualification Rules, produced as Ext.R2(b), unequivocally show that the appellant had contested as an independent candidate supported by the INC(I). Based on the declaration, the appellant's name and details were entered in Ext.R2(c) register maintained as per Rule 3(1) of the Disqualification Rules. As per the entry in the register, the appellant is an independent member supported by the political party INC(I). In the face of such clear cut documentary evidence, the contention that the appellant contested as an independent candidate and had the support of not only the INC(I), but also certain constituents of the LDF can only be rejected. 7. As per the Explanation to Section 2(ii) ## W.A.No.1474 of 2023 -9- of the Act, a member who stood as a candidate in an election with the support of any one of the political parties shall be deemed to be a member included in that political party. The position is further clarified by the Explanation to Section 3 of the Act _._ The above deeming provisions create a fiction by which an independent candidate, who had contested the election with the support of a political party, is to be considered as a member of that political party, even without the member joining the political party. As rightly contended by the Counsel for the Election Commission, the word 'given support' was incorporated in the Explanation to Section 3 only with effect from 17.01.2012. The finding in _**Abdul Haque** (supra)_ that, merely because a political party had 'supported' a candidate, that candidate cannot be termed as 'set up' by that party, has lost its relevance by incorporation of the words 'given W.A.No.1474 of 2023 -10- support' in the Explanation to Section 3 of the Act. As such, the decision in _**Abdul Haque** (supra)_ , which was rendered prior to the amendment, will not apply to the case at hand. 8. The contention urged by the Senior Counsel referring to Rule 3(2)(c) of the Disqualification Rules cannot also be countenanced, since the declaration under the said Rule is to be made by an independent candidate who had contested the election, otherwise than as a candidate of a political party or a coalition or with the support of a political party or coalition. 9. The other question is whether the conduct of the appellant was sufficient to disqualify her on the ground of defection. While answering this question, it is essential to note that the factual finding in the order of the Election Commission that the appellant was served with a whip, directing her to vote in favour of W.A.No.1474 of 2023 -11- the official presidential and vice-presidential candidates of the INC(I)/UDF is not in dispute. The appellant has also admitted that she had contested to the post of President against the official candidate of the INC(I) and had cast invalid votes in both the presidential and vicepresidential elections. The fact that the appellant had won the presidential election with the support of LDF members is also not disputed. Instead, a legal contention is urged to the effect that, being an independent candidate, the appellant was not bound by the whip issued and had every right to contest to the post of President as an independent candidate. In order to answer the contention, it is essential to have a careful scrutiny of the relevant portion of Section 3 of the Act extracted herein below; ## _“_ _**3** ._ _**Disqualification on ground of Defection** -_ _(1)Notwithstanding anything contained in the Kerala Panchayat Raj Act, 1994 (13_ W.A.No.1474 of 2023 -12- _of 1994), or in the Kerala Municipality Act, 1994 (20 of 1994), or in any other law for the time being in force, subject to the other provisions of this Act,—_ _(a) if a member of a local authority belonging to any political party voluntarily gives up his membership of such political party, or if such member, contrary to any direction in writing issued by the political party to which he belongs or by a person or authority authorised by it in this behalf in the manner prescribed, votes or abstains from voting,—_ _(i) in a meeting of a Municipality, in an election of its Chairperson, Deputy Chairperson, a member of Standing Committee or the Chairman of a Standing Committee; or_ _(ii) in a meeting of a Panchayat, in an election of its President, Vice President, a member of a Standing Committee or the Chairman of the Standing Committee; or_ _in an voting on a no-confidence motion against any one of them except a member of a Standing Committee;_ _(b) if an independent member belong_ W.A.No.1474 of 2023 -13- _to any coalition with draws from such coalition or joins any political party or any other coalition, or if such a member, contrary to any direction in writing issued by a person or authority authorised by the coalition in its behalf in the manner prescribed, votes or abstains from Voting,—_ _(i) in a meeting of a Municipality, in an election of its President, Vice President, a member of a Standing Committee or the Chairman of the Standing Committee; or_ _(ii) in a meeting of a Panchayat in an election of its President/VicePresident, a member of a Standing Committee or the Chairman of the Standing Committee; or in a voting on a noconfidence motion against any one of them except a member of a Standing Committee;_ _(c) if an independent member not belonging to any coalition, joins any political party or coalition; he shall be disqualified for being a member of that local authority._ **==> picture [58 x 9] intentionally omitted <==** **==> picture [51 x 9] intentionally omitted <==** _Explanation.— For the purpose of this_ W.A.No.1474 of 2023 -14- _section an elected member of a local authority shall be deemed to be a member belonging to the political party, if there is any such party, by which he was set up or given support as a candidate for the election.”_ As per Section 3(1)(a), a member can be disqualified on the ground of defection if he voluntarily gives up the membership of his political party or votes or abstains from voting contrary to any direction in writing issued by the political party to which he belongs. As already observed, by virtue of the deeming provision in the Explanation to Section 2(ii) and Section 3 of the Act, the appellant is to be considered as a member of the political party INC(I). The Election Commission has held, based on the evidence on record, that the appellant had been served with a whip issued by the political party to which she belongs and had voted contrary to that direction. The conduct of the appellant ## W.A.No.1474 of 2023 -15- in having voted against the whip will definitely entail disqualification. 10. The ancillary question is whether, by her conduct of having contested against the official candidate of the INC(I), the appellant had voluntarily given up her membership of that party. The words ‘voluntarily giving up membership’ was examined in detail by a Division Bench in _**Shajahan v. Chathannoor Grama Panchayat and Others [2000 KHC 283].**_ Therein, relying upon the decision of the Supreme Court in _**Ravi S. Naik**_ _**v Union of India and Others [AIR 1994 SC 1558]**_ , the Division Bench held that the words ‘voluntarily giving up his membership’ have wider connotation and are not synonymous with resignation. The legal position emerging from an analysis of the legal provisions and the precedents is that, even if an independent candidate has not resigned from the political ## W.A.No.1474 of 2023 -16- party to which he is considered to belong by reason of the deeming provisions, his conduct of having contested against the official candidate of that party can be perceived as voluntarily giving up of the membership of that party. The decision of the Supreme Court in _**Jagjit Singh** (supra)_ cited by the Senior Counsel deals with a situation where an independent candidate joins a political party and is not with respect to the giving up of membership by a candidate belonging to a political party. This is clear from the discussion at paragraphs 51 and 52 of the judgment extracted below; _“51. As noted earlier, the object of the defection law has to be borne in mind. The question to be considered is whether a Member formally joining a political party is the requirement so as to earn disqualification or the factum of joining can be inferred from facts and conduct of a Member, without a Member formally joining a political party inasmuch as not filling form_ W.A.No.1474 of 2023 -17- _required to be filled by a member of the political party under the rules and regulations of that party or payment of any prescribed fee. The respondents pleaded for a liberal construction and submitted that inference from conduct was sufficient to establish that an independent Member has joined a political party. These are two extreme views on the issue._ _52. We are of the view that to determine whether an independent Member has joined a political party the test is not whether he has fulfilled the formalities for joining a political party. The test is whether he has given up his independent character on which he was elected by the electorate. A mere expression of outside support would not lead to an implication of a Member joining a political party. At the same time, non-fulfilment of formalities with a view to defeat the intent of para 2(2) is also of no consequence. The question of fact that a Member has given up his independent character and joined, for all intent and purposes, a political party though not formally so as to incur disqualification provided in para 2(2)_ W.A.No.1474 of 2023 -18- _is to be determined on appreciation of the material on record.”_ Having considered the relevant documents and the legal provisions, we are of the definite opinion that the Election Commission was correct in disqualifying the appellant and the learned Single Judge was justified in dismissing the writ petition. In the result, the writ appeal is dismissed. **Sd/-** **A.J.Desai Chief Justice** **sd/-** **V.G.Arun Judge** scl