Writ Appeal No. 51 of 2024: Sunil Sradheyam v. Sujith Sreerengum and Kerala State Election Commission

W. A. No. 51 of 2024 -1- # **`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 ``` ``` FRIDAY, THE 2[ND] DAY OF FEBRUARY 2024 / 13TH MAGHA, 1945 ``` ``` WA NO. 51 OF 2024 ``` ``` AGAINST THE JUDGMENT WP(C) 22501/2023 OF HIGH COURT OF ``` ## **`KERALA`** ``` APPELLANT/S: ``` ``` SUNIL SRADHEYAM AGED 51 YEARS S/O GANGADHARAN, SRADHEYAM, KUTTAMPEROOR P.O, MANNAR P.O ALAPPUZHA, PIN - 689623 ``` ``` BY ADVS. M.SASINDRAN JOGGY MATHUNNI MRINAL CHAND M. ``` ## **`RESPONDENT/S:`** ``` 1SUJITH SREERENGUM AGED 45 YEARS S/O P.K KRISHNA PILLAI, SREERENGUM, KURATTIKKADU, MANNAR P.O ALAPPUZHA, PIN - 689622 ``` ``` 2THE KERALA STATE ELECTION COMMISSION VIKAS BHAVAN, THIRUVANANTHAPURAM, PIN - 695033 BY ADVS. S. SREEKUMAR (SR.) ARUN B. VARGHESE DEEPU LAL MOHAN ``` ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON ``` ``` 02.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W. A. No. 51 of 2024 -2- ## **J U D G M E N T** ## A. J. Desai, C. J. The challenge in this appeal filed under Section 5 of the Kerala High Court Act, 1958 is the judgment dated 21.11.2023 in W. P. (C) No. 22501 of 2023 passed by the learned Single Judge declaring the present appellant disqualified to continue as a member of the Mannar Grama Panchayat, treating his conduct as voluntarily giving up the membership of a political party from which he had contested the election and to continue as the Vice President of the Panchayat. 2. Short facts that arise from the record are as under:- The election of the Grama Panchayat was held in December 2020 wherein the appellant filed his nomination as official candidate from the political party Indian National Congress (INC). Thereafter, he was elected from ward No. 11. Altogether, there are 18 wards in the Panchayat, out of which 9 seats were won by the United Democratic Front (UDF) (8 members belonging to INC and 1 member belonging to the Indian Union Muslim League W. A. No. 51 of 2024 -3- (IUML)), 8 seats were won by LDF (7 seats for the Communist Party of India (Marxist) (CPI(M)) and 1 seat for the Kerala Congress (M)) and the Bharatiya Janata Party (BJP) got one seat. Election to the post of President of the said Grama Panchayat was held in a scheduled meeting on 30.12.2020. One person from UDF and one person from LDF contested the election. The meeting was attended by all 18 members which reflects from the minutes recorded by the Returning Officer in Ext. P7. The appellant, who won the election from INC which is a part of UDF, voted in favour of a candidate who contested the election for the post of President from the opposition party, i.e. LDF, and therefore, LDF candidate won the election for the post of President. 3. On that day itself, election to the post of Vice President was held where also all 18 members remained present which reflects from the minutes recorded by the Returning Officer in Ext. P8. One candidate from UDF, namely Ms. Shyna Navas, contested whereas no one from LDF or BJP contested to the post of Vice President. But the present appellant contested the election W. A. No. 51 of 2024 -4- to the post of Vice President. Pertinently, the appellant’s name was nominated and serenaded by LDF members. In the election, all the 8 LDF members voted in favour of the present appellant, who was originally from INC. On the support of the opposition and without getting a single vote from his coalition, i.e. UDF, the appellant secured 9 votes and was elected as Vice President of the Grama Panchayat. 4. In view of the above development, O. P. No. 1 of 2021 was filed before the State Election Commission to declare the present appellant as disqualified under the provisions of Sections 3 and 4(1) of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 (hereinafter referred as ‘the Act’). By order dated 02.08.2022, the said petition was dismissed by the State Election Commission. Challenging the said order, W. P. (C) No. 27667 of 2022 was filed by the present private respondent. The learned Single Judge, by judgment dated 02.05.2023, disposed of the writ petition holding that, in the absence of any whip or direction issued by the concerned political party, it cannot be said W. A. No. 51 of 2024 -5- that the appellant had acted against the whip or direction issued by the political party under whose banner he had contested the election and remanded the case to the State Election Commission to consider whether the appellant’s conduct amounted to voluntarily giving up the membership of his political party, since the said aspect was not examined by the State Election Commission. The State Election Commission re-examined the case and by order dated 15.06.2023 again dismissed O. P. No. 1 of 2021. The said decision came to be challenged in the captioned writ petition. The respondent as well as the State Election Commission appeared through their Advocates and contested the same. 5. The learned Single Judge, after considering the facts and circumstances of the case and the principles laid down by various decisions, came to the conclusion that the conduct of the appellant can be treated as voluntarily giving up membership of the party under whose banner he was elected and therefore, disqualified the appellant as a member of the Panchayat. Hence, this appeal. W. A. No. 51 of 2024 -6- 6. The learned counsel appearing for the appellant would submit that the learned Single Judge has committed grave error in coming to the conclusion that the appellant has voluntarily given up his membership by violating the whip, when there was no whip issued by his party. He would further submit that the appellant was never a member of the INC and therefore, the learned Single Judge has committed an error in coming to the conclusion that the case would fall under Section 3 of the Act. He would submit that the private respondents have miserably failed in establishing that a whip was issued to the members of UDF to vote in favour of Radhamani Saseendran, who had contested the election to the post of President from UDF. Therefore, it was open for the appellant to cast his vote in favour of any person. He would submit that the party had assured the appellant that he shall be given the post of Vice President. Instead another candidate from UDF namely Shyna Navas contested the election to the post of Vice President. It is in such circumstances that the appellant also declared his candidature to the post of Vice President. Since there was no other W. A. No. 51 of 2024 -7- official candidate from UDF, the appellant cannot be held to have voluntarily given up his membership in the INC, merely for the reason that the LDF members had voted in the appellant’s favour. 7. Relying upon the decisions of this Court in **Joseph K. M. v. Babychan Mulangasseri and Others [2015 (1) KHC 111]** and **M. T. and Others v. Kerala State Election Sandeep Commission and Others [2015 (5) KHC 133]** , learned counsel for the appellant would submit that voting in favour of another party in the absence of any whip is not sufficient to come to the conclusion that he has voluntarily given up his membership. Relying upon the decision in **Chinnamma Varghese v. State Election Commission of Kerala, Tvm and Another [2010 KHC 655]** , he would submit that in the absence of any binding directions issued by the political party, a person cannot be treated as disqualified for having voted in favour of another party. 8. Lastly, he would submit that the learned Single Judge has committed an error in examining the case in detail and reappreciating the evidence as the scope of examining the issue is W. A. No. 51 of 2024 -8- limited, as held by this Court in **Shajahan v. Chathannoor Grama Panchayat and Others [2000 KHC 283]** . He therefore would submit that the judgment of the learned Single Judge be quashed and set aside and the appeal be accordingly allowed. 9. On the other hand, the learned Senior Counsel appearing for the private respondent vehemently submitted that the learned Single Judge had committed no error in disqualifying the appellant from being a member of the Grama Panchayat by treating him to have voluntarily given up the membership of INC by his conduct. He would submit that what amounts to voluntarily giving up membership has been examined and re-examined not only by this Court but also by the Hon’ble Apex Court. He would submit that the term ‘voluntarily giving up membership’ is not synonymous with resignation and have wider connotations. He would submit that with regard to the election in question, it is not in dispute that the appellant had contested the election from ward No. 11 under the banner of INC. By taking us through the relevant documents, i.e. the nomination and declaration submitted by the appellant, he W. A. No. 51 of 2024 -9- would argue that the appellant has, in no unclear terms, declared that he contested and got elected as the official candidate of INC. He would submit that the appellant was never promised the post of Vice President by the party and the appellant has miserably failed in establishing his submission about the so-called promise. 10. He would further submit that, in the election to the post of President, one member from the UDF coalition and one of the members from the coalition of LDF had contested. In such circumstances, even in the absence of a whip, it was the duty of the appellant to vote in favour of the candidate supported by UDF and not the candidate from LDF. The appellant, instead of supporting the UDF candidate, voted in favour of the candidate from LDF and because of his vote, the opposite party’s candidate was declared elected. Similarly, when there was no direction or whip asking the appellant to contest the election to the post of Vice President, which was also held on 30.12.2020, he should not have contested to the post, particularly when a candidate from UDF had declared her candidature for the post of Vice President. W. A. No. 51 of 2024 -10- He would submit that no candidate from LDF contested the election for Vice President, which itself suggests that the appellant was confident that he was going to get all from the opposition, since his one vote got a person from LDF elected to the post of President. He would further submit that even in the absence of any whip or direction, it is expected that a person who has won the election under the banner of a political party would remain loyal to his party and not act in favour of the opposite party. This conduct of voting in favour of a candidate from the opposite party, as well as contesting the election for Vice President when another candidate from his own party had filed nomination, makes it clear that the appellant had, by his conduct, defected the coalition of UDF. Learned counsel would submit that the appellant might not have resigned from the membership of INC, but his conduct, which is apparent on the face of it, makes him ineligible to continue as a member of the Panchayat. 11. Relying on a decision of this Court in **Shajahan** (supra), which has been relied upon by the Advocate for the appellant, he W. A. No. 51 of 2024 -11- would submit that even in the absence of a formal resignation, an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs. Relying on a decision of this Court in **Varghese V. V. and Another v. Kerala State Election Commission and Another [2009 (3) KHC 42]** , he would submit that the words ‘voluntarily giving up of membership’ of a party is a ground for disqualification which has been explained in detail. Relying on the decision of a learned Single Judge of this Court in **Rama Bhaskaran v. Kerala State Election Commission [2018 (2) KLT 600]** , he would submit that the conduct of a member of a political party in acting against the interest of that party or coalition is an integral component which would tantamount to his voluntarily giving up of membership of that particular political party, which is amply clear from the facts of the case on hand. He therefore would submit that no interference is required by this Court in this appeal. 12. We have heard the learned counsel appearing for the W. A. No. 51 of 2024 -12- respective parties. 13. The Mannar Grama Panchayat has 18 wards. The appellant was nominated as the official candidate from INC in ward No. 11 and won the election. Out of 18 wards, 9 candidates from UDF and 8 from LDF got elected. The balance one seat was secured by the BJP. INC and IUML constituted the UDF coalition, whereas the CPI(M) and KC(M) formed the LDF coalition. The lone BJP member was not part of any coalition. Therefore, when the election to the posts of President and Vice President was held on 30.12.2020, the candidates nominated by UDF could have won the election, if all UDF members voted for their candidate. But in the present case, though a candidate was contesting the election for President from UDF, of which the appellant was a member, he voted in favour of the candidate who was from the opposite party and because of the appellant’s one vote, the person from the opposite party got elected. Not only this, the appellant filed his candidature for the post of Vice President of the Panchayat, even though a member from UDF was also contesting. It is interesting W. A. No. 51 of 2024 -13- to note that the LDF did not nominate any of its members as a candidate for Vice President. Therefore, an inference can be drawn that the LDF members had decided to vote in favour of the present appellant, who, in spite of being a member of INC, had voted for their candidate for the post of President. 14. At this juncture, we would like to note the issue regarding legality and validity of the whip which had already been decided by the judgment dated 02.05.2023 in W. P. (C) No. 27667 of 2022. Therein it is held that the whip was not a legal one. However, the matter was remanded to the State Election Commission to decide the issue whether the conduct of the appellant can be treated as voluntarily giving up his membership or not. The said judgment has become final. In view of the above facts, this Court is supposed to examine whether the conduct of the appellant can be treated as voluntarily giving up his membership from a political party. 15. Section 3 of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 reads as under:- W. A. No. 51 of 2024 -14- “ **3. Disqualification on ground of Defection** .— (1) Notwithstanding anything contained in the Kerala Panchayat Raj Act, 1994 (13 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 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 a voting on a no-confidence motion against any one of them except a member of a Standing Committee; W. A. No. 51 of 2024 -15- (b) if an independent member belonging to any coalition withdraws 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 Standing Committee or the Chairman of the 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 a voting on a no confidence 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. (2) The direction in writing issued for the purpose of clauses (a) and (b) of sub-section (1) shall be given to the members concerned in the manner as may be prescribed and copy of such direction in writing shall be given to the W. A. No. 51 of 2024 -16- Secretary of the Local Self Government Institution concerned. (3) Where any dispute arises regarding the direction issued under this section between the political party or coalition concerned and the member authorised in this behalf as prescribed under sub-section (2), the direction in writing issued in this regard by the person authorised by the political party from time to time to recommend the symbol of the political party concerned for contesting in election shall be deemed to be valid. **Explanation** .— For the purpose of this 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.” 16. Now the words ‘voluntarily gives up his membership from such political party’ have been examined and re-examined by this Court in various judgments. In the absence of any proof with respect to the so-called promise given by the party to the appellant to permit him to file candidature for the post of Vice President, voting in favour of a candidate from the opposite party W. A. No. 51 of 2024 -17- for the post of President and contesting election for Vice President with complete support from all the members of the opposite coalition even though one candidate from his own coalition was contesting the election of Vice President, in our opinion leads to an inference that the appellant wanted to become Vice President by any method whatsoever. The words ‘voluntarily giving up his membership’ have been examined in detail in the case of **Shajahan** (supra) wherein it has been specifically held by a Division Bench of this Court, that too relying upon a decision of the Hon’ble Supreme Court in **Ravi S. Naik v. Union of India and Others [AIR 1994 SC 1558]** , that these words have wider connotation and are not synonymous with resignation. Therefore, even if there is no resignation, the appellant’s conduct can result him from becoming disqualified to continue as if he is no longer a member of the political party under whose banner he had contested and won the election. 17. In the case of **Varghese V. V.** (supra), a Division Bench of this Court, while dealing with the provisions of Section 3 of the W. A. No. 51 of 2024 -18- Act, has held as under:- “7. The Kerala Local Authorities (Prohibition of Defection) Act, 1999 was brought out “to prohibit defection among members of local authorities in the State of Kerala and to provide for disqualification of the defecting members for being members of the local authorities”. Section 3 deals with disqualification on the ground of defection. Section 3(1) (a) reads as follows:- “3. Disqualification on ground of Defection:- (1) Notwithstanding anything contained in the Kerala Panchayat Raj Act, 1994 (13 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 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 authorized by it in this behalf in the manner prescribed, votes or abstains from voting.” The expression ‘defection’ as such is not defined in the Act. W. A. No. 51 of 2024 -19- Probably the expression does not require a definition since the concept is so plain. But the Legislature has left the disqualification to be decided on the defined conduct of the member. We are concerned with the conduct of voluntarily giving up membership in the political party. It is now settled law that in order to attract the disqualification on the ground of voluntary giving up membership in the political party, the elected member need not resign from the party. In Ravi S. Naik v. Union of India, AIR 1994 SC 1558 it was held that voluntarily giving up membership is not synonymous with resignation. Voluntary giving up membership has a wider meaning than resignation as observed by a Division Bench of this court in Shajahan v. Chathannoor Grama Panchayat, 2002(2) KLJ 451. In Ravi S.Naik’s case the apex court made it clear that “Even in the absence of a formal resignation from membership an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs”. In Rajendra Singh Rana v. Swami Prasad Maurya, (2007) 4 SCC 270 also the Supreme Court held that it is the conduct of the elected members that is to be looked into while considering whether an elected member has become disqualified on the ground of defection based on voluntary in the In giving up membership political party. G.Viswanathan v. Speaker, Tamil Nadu Legislative Assembly, (1996) 2 SCC 353 the apex Court held that “the W. A. No. 51 of 2024 -20- Act of voluntary giving up the membership of the political party may be either express or implied”. In Faisal v. Abdulla Kunhi, 2008 (3) KLT 534 a learned single Judge of this court has taken the view that the expression “voluntarily giving up membership of his political party” is not to be equated with ceasing to be a member of his party by express resignation; it is to be inferred from the conduct of the member. It was also held therein that the relevant date for deciding the question of disqualification is the date on which the member voluntarily gives up the membership. 8. However, placing heavy reliance on another Single Bench decision in Naseera Beevi v. State Election Commission, 2004 (1) KLT 1108, the learned Senior Counsel for the appellants would contend that every objectionable conduct does not automatically lead to the inference of voluntarily leaving the political party. In the above case a few members of a political party decided to form a separate group in the “parliamentary party” of that political party and that was informed to the Secretary of the Grama Panchayat. It was in that context the learned single Judge took the view that “there is a distinction between membership in the parliamentary party and the membership in the political party. What has been made objectionable under law is the voluntary leaving of the membership in the political party. Leaving the parliamentary party may be a W. A. No. 51 of 2024 -21- circumstance, which may indicate that the incumbent has left the political party”. It is to be noted that the letter of the group was dated 8-1-2003 and the No Confidence Motion was on 13-1-2003. The members who had decided to sit as a separate block had voted in favour of the no confidence motion moved by the rival political parties and thereafter those members had been removed from the primary membership of the political party on 18-1-2003. The petitions for disqualification was filed on 24-1-2003 before the State Election Commission. A subsequent election to the posts of President and Vice President of the Panchayat was held on 7-2-2003, wherein the aforementioned members were elected as the President and the Vice President with the support of the rival political parties. It appears the learned single Judge had omitted to take note of the fact that the conduct of the revolting members was not the letter given to the Secretary to the Grama Panchayat to form a separate block; those members had in fact supported the no confidence motion moved by the rival political parties. Thus the inevitably inferential conduct was the shifting of loyalty. Loyalty to the party is the norm. To vote against the party is disloyalty. It was this principle as stated in Griffith and Ryle on Parliamentary Functions, Practice and Procedure which was taken note of by the Supreme Court in the celebrated decision in Kihoto Hollohan v. Zachillhu, 1992 Supp. (2) SCC 651. The Apex court held that “any freedom of its W. A. No. 51 of 2024 -22- 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. Looking from that angle we find it difficult to agree with the dictum in Naseera Beevi’s case. Not only that, there is no party as ‘parliamentary party’. That expression only denotes the wing of the elected members of the political party. Therefore, if a member or a group of the elected members of the political party takes a different stand from that of the political party as such, and W. A. No. 51 of 2024 -23- acts against the policies of the political party in which they are members, it is nothing but disloyalty. The moment one becomes disloyal by his conduct to the political party, the inevitable inference is that he has voluntarily given up his membership. In Naseera Beevi’s case the rebel group in the parliamentary wing of the political party concerned had not only formed a separate group, but they had voted in favour of the no confidence motion moved by the rival political party. Thus, by their conduct of being disloyal to the political party in which they were members and by voting as they pleased independent of the political party’s declared policy, they had incurred the disqualification. In view of both factual and legal position as above, the dictum laid in Naseera Beevi’s case that leaving the parliamentary party and exercising the right to vote according to the choice of the elected member would not attract the disqualification on the ground of voluntarily giving up membership in the political party is not good law. Hence the same is overruled. We also take note of the fact that the judgment of the single Judge in Naseera Beevi’s case had been set aside by the Division Bench by judgment dated 13-7-2005 in W.A.No.1127/2004, though on a different ground.” ## 18. This issue has been decided in **Ravi S. Naik v. Union of** **India and Others** (supra) wherein the Hon’ble Supreme Court in W. A. No. 51 of 2024 -24- ## paragraph 11 held as under:- “11. This appeal has been filed by Bandekar and Chopdekar who were elected to the Goa Legislative Assembly under the ticket of MGP. They have been disqualified from membership of the Assembly under order of the Speaker dated December 13, 1992 on the ground of defection under paragraph 2(1)(a) and 2(1)(b) of the Tenth Schedule. From the judgment of the High Court it appears that disqualification on the ground of paragraph 2(1)(b) was not pressed on behalf of the contesting respondent and disqualification was sought on the ground of paragraph 2(1) (a) only. The said paragraph provides for disqualification of a member of a House belonging to a political party "if he has voluntarily given up his membership of such political party". The words voluntarily given up his membership" are not synonymous with "resignation and have a wider connotation. A person may voluntarily give up his membership of a political party even though he has not tendered his resignation from the membership of that party. Even in the absence of a formal resignation from membership an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs.” Considering the facts and circumstances of the case and the W. A. No. 51 of 2024 -25- ratio laid down by this Court, we are of the considered opinion that the appellant has voluntarily given up his membership from INC and therefore, he cannot be continued as a member of the Mannar Grama Panchayat. Hence, we are not inclined to interfere with the judgment impugned in this appeal. The writ appeal is accordingly dismissed. Pending Interlocutory Applications, if any, shall stand closed. **Sd/A. J. DESAI CHIEF JUSTICE** **Sd/V. G. ARUN JUDGE** Eb