Sindhu Anilkumar vs Kerala State Election Commission Thiruvananthapuram, Pin 695033

N. Nagaresh, J

The petitioner, who contested as an independent candidate from Ward No.1 of Pavaratti Grama Panchayat in Thrissur District, in the elections to the Local Self Government Institutions held in December, 2020, is before this Court seeking to quash Ext.P3 order dated 04.07.2023 passed by the 1st respondent-Kerala State Election Commission in OP No.14/2021.

The petitioner states that she contested as an independent candidate with the symbol “Autorickshaw”. As the opposing candidate belonged to Left Democratic Front, the petitioner was supported by the Indian National Congress. The petitioner won the election and gave a declaration to the Panchayat that she is affiliated with the United Democratic Front, in which Indian National Congress is only one of the parties. As the petitioner is an independent candidate, there is no question of anyone issuing a whip to the petitioner in terms of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 (hereinafter referred to as 'the Defection Act, 1999' for brevity).

The petitioner contested to the post of President of the Grama Panchayat. The Indian National Congress issued a whip to its members. The votes cast by the petitioner in the election to the posts of President and Vice President were declared as invalid. The petitioner got six votes and the 2nd respondent got four votes. The petitioner was declared elected as President.

The 2nd respondent thereupon filed OP. No.14/2021 before the 1st respondent-Election Commission seeking disqualification of the petitioner on the ground that she violated the whip. In Ext.P1 OP, there is no allegation that the petitioner has voluntarily abandoned her membership in any political party. The petitioner filed Ext.P2 objection. In Ext.P2, the petitioner asserted that she contested the election in a free symbol allotted to independent candidates. There is no question of any whip being issued on the petitioner as there is nobody allotting any symbol to her.

The State Election Commission, on a misunderstanding of the correct position in law, held that the petitioner is a member of Indian National Congress and hence her winning in the election to the post of President with the support of LDF and invalidating her vote amounts to defection. The petitioner was disqualified and barred from contesting election by Ext.P3 order. The petitioner argued that she contested as an independent candidate supported by Indian National Congress and others. The petitioner submitted Ext.R2(b) declaration to the Panchayat that she is an independent candidate. Ext.R2(b) extract of the Statutory Register maintained by the Grama Panchayat would also show that the petitioner is treated as an independent candidate. Ext.R2(a) nomination paper submitted by the petitioner also made it abundantly clear that the petitioner is an independent candidate.

The State Election Commission, however, treated the petitioner as a candidate belonging to the Indian National Congress and disqualified the petitioner under Section 3(1)(c) of the Defection Act, 1999. The petitioner states that the Election Commission relied on the Explanation under Section 3 of the Defection Act, 1999 to come to the conclusion that the petitioner belonged to Indian National Congress. The Explanation under Section 3 provided that 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. The petitioner argued that an Explanation given under a Section cannot alter the substantial provision of law. The petitioner relied on the judgment of the Hon'ble Apex Court in S. Sundaram Pillai and others v. V.R. Pattabiraman and others [AIR 1985 SC 582] to underline the point.

The learned Senior Counsel appearing for the petitioner urged that the deeming provision in the Explanation under Section 3 can be treated as a deeming provision only to govern defection, and it cannot be used for matters governing issuance of whip. The Senior Counsel relied on the judgment of this Court in Prasannakumari D. v. G.R. Shibu and others [2020 (5) KHC 602]. The Senior Counsel further pointed out that the Election Commission was confused whether the petitioner had contested and elected with the support of Indian National Congress or with the support of United Democratic Front.

The Election Commission erroneously proceeded to assume that the petitioner belongs to UDF coalition. The learned Senior Counsel further urged that when the petitioner contested as an independent candidate, not only persons belonging to Indian National Congress but persons belonging to other political parties inimical to the Indian National Congress or which were not aligned with the Indian National Congress, have also voted in favour of the petitioner. The petitioner being an independent candidate cannot be disloyal to those voters. The Election Commission's Ext.P3 order would show that the Election Commission was not sure as to whether the petitioner was defected from Indian National Congress or from the United Democratic Front.

The Senior Counsel pointed out that the evidence adduced by PW3, who issued the whip, would show that the petitioner was an independent candidate. A local Secretary of CPI party, who was examined as RW3, deposed that the CPI also had supported the petitioner. RW2, who is the Mandalam Secretary of Congress, has stated that there was no official candidate for Congress in Ward No.1. It was amply established by oral and documentary evidence before the Election Commission that the petitioner is an independent candidate. In the circumstances, the order passed by the Election Commission disqualifying the petitioner on the ground of violation of whip is highly illegal and arbitrary, contended the Senior Counsel.

Standing Counsel entered appearance on behalf of the 1st respondent and resisted the writ petition. The term “independent” has been defined in Section 2(vi) to mean 'a person not belonging to any political party'. However, the Explanation under Section 3(3) created a deeming provision that 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.

Relying on the judgment in Sujith Sreerangan v. Sunil Sradheyan [2023 (3) KHC 482], the Standing Counsel argued that in view of the statutory fiction created by the Explanation under Section 3, a member though has no formal membership in a political party, can still be treated as a member of the party in order to apply Section 3(a) of the Defection Act, 1999. The Standing Counsel further pointed out that Explanation to Section 3(3) before its amendment by Act 6 of 2013, took in only members who were “set up” by a political party as a candidate for the election. After amendment, candidates who were “given support” by any political parties, were also took in within the ambit of the Explanation.

Form 2 declaration in the appendix to the Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000 made provision not only to include the details of the political party supporting a candidate but also made provision to give the names of other elected members of the coalition to which a candidate belongs.

The Election Commission found that in the nomination, declaration, statutory register, etc., the petitioner was truly recorded as an independent candidate supported by the Indian National Congress. Ext.A9 minutes would show that the petitioner contested against the official candidate of the Indian National Congress. From Exts.A4 to A6, it is evident that the petitioner was issued with a whip and the whip was executed by affixture. In view of the evidence available in abundance, the Election Commission held that the petitioner has violated whip and has thus incurred disqualification. The petitioner has not advanced any legal grounds to unsettle Ext.P3, urged the Standing Counsel.

The learned counsel for the 2nd respondent also resisted the writ petition. The counsel for the 2nd respondent adopted the arguments advanced by the Standing Counsel. The counsel for the 2nd respondent pointed out that the Defection Act, 1999 contemplated three types of independent candidates. An independent candidate can be an unattached independent, an independent supported by a coalition or an independent supported by a political party. The declaration filed by the petitioner with the Grama Panchayat would prove beyond doubt that the petitioner was a candidate supported by the Indian National Congress Party and the petitioner was a member of the coalition in which the Indian National Congress is a constituent. Ext.P3 order of the Election Commission is therefore absolutely legal, contended the counsel for the 2nd respondent.

I have heard the learned Senior Counsel assisted by the counsel for the petitioner, the learned Standing Counsel for the 1st respondent and the learned counsel for the 2nd respondent.

The issue arising for consideration is whether the petitioner is an independent candidate who is not member of any political party and whether the petitioner can be declared as disqualified for violation of whip issued on behalf of any political party. The State Election Commission found that the petitioner is an independent candidate having the support of INC/UDF. The Election Commission further found that in connection with election of President of the Panchayat Committee, a whip was served on the petitioner by affixture. The petitioner has violated the direction given to her in writing. Since the petitioner has taken a different stand from that of the political party and coalition which supported the petitioner, the petitioner's conducted can only be treated as disloyalty and the inevitable inference is that the petitioner has voluntarily given up her membership in the political party.

Ext.R1(a) is the nomination submitted by the petitioner. Ext.R1(a) would show that the petitioner has described herself as an independent candidate supported by the Indian National Congress. Ext.R2(b) is the declaration given by the petitioner before the Grama Panchayat. In Ext.R2(b), the petitioner has stated that she is an independent candidate supported by the Indian National Congress. In Ext.R2(c) register maintained by the Panchayat also, against the name of the petitioner, it has been recorded that the petitioner is an independent candidate having the support of Indian National Congress. Going by the documents executed by the petitioner and the statutory register, it is clear that the petitioner is an independent candidate supported by a political party.

The petitioner would, however, dispute the same and would urge that during the general elections, the petitioner was supported not only by the Indian National Congress but by certain other political parties also. Therefore, the petitioner cannot be described as one who has deserted the Indian National Congress nor as disloyal to the Indian National Congress. The Senior Counsel would urge that to treat the petitioner as a member of a political party, the Election Commission has relied on the Explanation under Section 3 of the Defection Act, 1999.

Section 3 of the Defection the Act, 1999 reads as follows:

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 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 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 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.

The afore explanation creates a deeming fiction that 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. Exts.R2(a), R2(b) and R2(c) documents would undoubtedly make it clear that the petitioner was a candidate who was given support by the Indian National Congress in the general elections.

In the election conducted to the post of President, PW3 had issued a whip to the members of the Indian National Congress to cast their votes in favour of the candidate decided by the Indian National Congress. The evidence would prove that the petitioner did not cast her vote as directed in the whip and instead, the petitioner has invalidated her vote. It was in the said circumstances that the Election Commission has come to the conclusion that there was a valid whip existed in tune with the provisions under Section 2, that the whip was served on the petitioner as mandated in the Rules and that the petitioner has taken a different stand from that of the political party and coalition and thereby shown disloyalty to the party.

In Ext.P1 OP, the 2nd respondent pleaded that the petitioner was disloyal to the political party, that the petitioner voluntarily abandoned her membership from Indian National Congress and the petitioner violated the direction in writing / whip given to her. The 1st respondent, based on the Explanation under Section 3(3) and the evidence on record, found that the petitioner is a member of Indian National Congress and held that the petitioner has violated a valid whip and also that the petitioner has voluntarily given up her membership in the political party. Consequently, the 1st respondent declared the petitioner as disqualified under the Kerala Local Authorities (Prohibition of Defection) Act, 1999. I do not find any error or illegality in Ext.P3 order.

The writ petition is therefore dismissed.