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2019 DIGILAW 278 (KER)

A. G. Mathew v. Kerala State Election Commission

2019-03-21

SHAJI P.CHALY

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JUDGMENT : 1. The captioned writ petitions filed by the respondents in the election petitions are materially connected, challenging the common order passed by the Kerala State Election Commission, Thiruvananthapuram in O.P.Nos.96 & 97 of 2015 dated 30.11.2016, holding that the writ petitioners have voluntarily given up their membership, in accordance with the stipulation under Sec.3(1)(a) of the Kerala Local Authorities (Prohibition of Defection) Act, 1999, and disqualified them from contesting election to any local authority for a period of six years, as provided under Sec.4(3) of the Act. Since the subject matter of the writ petitions are common in nature, I heard them together and propose to deliver this common judgment. Material facts for the disposal of the writ petitions discernible from the complaints filed before the Commission are as follows: 2. Petitioners and the party respondent were members of the Kadamakudi Grama Panchayat, Ernakulam District, representing different Wards. They were elected to the Panchayat in the General Elections held to the Local Authorities during November, 2015, as the official candidates of Indian National Congress. The District President of the Indian National Congress allotted the official symbol of the party to all contesting candidates of Indian National Congress. After the election, all returned candidates of Indian National Congress gave a sworn declaration to the Secretary of the Kadamakkudi Grama Panchayat, conveying their affiliation with political party as Indian National Congress. In the said declaration given by the petitioners to the Secretary, as per Rule 3(2) of the Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000, they affirmed that they are the official candidates and members of Indian National Congress having affiliation with all the elected members of the said political party. On the basis of the same, the Secretary of the Grama Panchayat prepared a political affiliation register of the members, wherein also, the said aspects are stated. Therefore, as per the available records with the Secretary, it is evident that, petitioners were members of the said political party at the time of election and also while swearing in as Panchayat members. 3. There are 13 Wards in the Grama Panchayat and after election, representation of the parties in the board is as follows: Indian National Congress-5 members, LDF comprising of CPI(M) and CPI, 2 and 3 members respectively, BJP-2 members, and one independent member. 3. There are 13 Wards in the Grama Panchayat and after election, representation of the parties in the board is as follows: Indian National Congress-5 members, LDF comprising of CPI(M) and CPI, 2 and 3 members respectively, BJP-2 members, and one independent member. The Indian National Congress which won 5 seats decided to find out its chance to form board in the Panchayat, with the support of the one independent candidate, which was also offered by the independent candidate. The election to the post of President and Vice- President of the Panchayat was notified on 19.11.2015 by the Commission. Accordingly, arrangements were made in consultation with the Parliamentary Party, and the District Congress Committee nominated the party respondent in the writ petitions as the President candidate and one Mrs. Treasa Manual K. as the Vice- President candidate. 4. Accordingly, a whip was issued by the President of the District Congress Committee to vote in favour of the party respondent and the said Treasa Manual, to the respective posts. It is also stated that, the whip was served on all Congress members. It was also served on the petitioners in the writ petitions by handing over directly by the Block Congress Committee Vice-President, who also requested to acknowledge the receipt of the whip. It is also submitted that, the meeting for electing the President was called for, on 19.11.2015 at the Panchayat Committee Hall. Before the election, the Returning Officer explained the process and mode of voting, and specifically instructed that “X” mark alone will be valid and do not put any “v” mark. Thereafter, nominations for the post of President was invited by the Returning Officer, and the party respondent was nominated on behalf of Indian National Congress and the LDF proposed one Salini Babu as the opposing candidate. But the petitioners in the writ petitions, in utter defiance of the direction issued by their political party, purposefully polled their vote invalid by putting “v”mark. This was done in the President election only to support the LDF candidate. The BJP members who were present in the President election kept aloof from voting, as directed by their party. The party respondent got 4 votes, out of which, 3 votes from members of the Indian National Congress and one vote of the independent member. The LDF candidate got 5 votes i.e., 2 votes from CPI(M) and 3 votes from CPI. The BJP members who were present in the President election kept aloof from voting, as directed by their party. The party respondent got 4 votes, out of which, 3 votes from members of the Indian National Congress and one vote of the independent member. The LDF candidate got 5 votes i.e., 2 votes from CPI(M) and 3 votes from CPI. Thus, the LDF candidate got elected but only with the silent support of the petitioners. 5. In the afternoon session of the same meeting, while the Vice-President election was going on, the writ petitioners adopted the very same stand and put “v” mark in the polling, with the intention of supporting the LDF candidate, one Sindhu Shaju. Therefore, according to the party respondent, due to the wilful act of the writ petitioners, they became disqualified. It is also submitted that, the writ petitioners have voluntarily abandoned the membership from Indian National Congress, and therefore, they were liable to be disqualified in accordance with the provisions of Act, 1999, and the Rules specified above. 6. The Election Commission, after receiving objection from the writ petitioners and after evaluating evidence adduced by both sides, arrived at the conclusion that the writ petitioners have affixed “v” mark in the election conducted, with the wilful intention of defeating the Indian National Congress candidate, overlooking the direction issued by the Congress party. However, it was found that there is no evidence to show that whip was issued by the authorized person of the political party to hold that the writ petitioners have violated any directions in writing issued by the political party to vote to any particular candidate in accordance with the rules, but held that, by their conduct, voluntarily abandoned their membership as is provided under the first limb of Sec.3(1)(a) of Act, 1999. 7. I have heard learned counsel for the petitioners, learned Standing Counsel for the Election Commission and the respective counsel appearing for the respondents and perused the pleadings and the documents on record. 8. The prime contention advanced by learned counsel for the petitioners is that, petitioners have not abstained from voting, but on the other hand, they have affixed their votes in favour of the candidate of the Indian National Congress, however, instead of putting “X” mark, they have made the “v” mark, and therefore, it can never be said that they have voluntarily given up the membership. It is also pointed out that, the complaint was filed alleging that the whip was violated and having found that there was no whip issued, the Commission was not competent to go beyond the pleadings and find that the writ petitioners have voluntarily given up their membership. It is further submitted that, petitioners have put “v” mark in favour of the Congress candidates, bonafidely thinking that “v” mark is to be affixed against the candidate. 9. On the other hand, learned Standing Counsel appearing for the Election Commission submitted that, there is an alternative pleading made in the petitions filed by the party respondent before the Commission that the writ petitioners have voluntarily abandoned their membership, and therefore, the contention advanced that the Commission went beyond its powers cannot be said to be correct. It is also pointed out that, in accordance with the provisions of the Kerala Panchayat Raj (Election of President and Vice- President) Rules, 1995, it is clear that the vote is to be exercised by putting “X” mark against the candidate. It is also submitted by learned counsel appearing for the party respondent that the writ petitioners were members of the Panchayat on earlier occasions also, and therefore, ignorance cannot be pleaded in the matter of voting. 10. Learned counsel for the petitioners submitted that even though petitioners were suspended from the political party, they are taken back in the political party, and therefore, a lenient view may be taken in the matter. In my considered view, merely because the petitioners were taken back in the political party, it cannot be said that their conduct in the election is to be diluted in any manner, and further, strict view is to be adopted in such matters to ensure, and maintain traditional values upholding the democratic principles, morality and honesty and thus win confidence of the people in the democratic process of election. Therefore, the request made by learned counsel for the petitioners on that account cannot be sustained. 11. I have considered the rival submissions made across the Bar and evaluated the pleadings and the documents produced. Therefore, the request made by learned counsel for the petitioners on that account cannot be sustained. 11. I have considered the rival submissions made across the Bar and evaluated the pleadings and the documents produced. In my considered view, the State Election Commission has assimilated the factual and legal circumstances and has arrived at a conclusion that the Returning Officer has explained the procedures regarding the election, and manner of voting, and members were asked to vote in favour of their candidates by putting 'X' and not “v” mark. Further, A1 to A11 documents in respect of election to the President and Vice-President would establish that the writ petitioners have given sufficient declarations, their political affiliations were declared, sufficient instructions were given by the office bearer of the Congress party as to the candidate to whom the votes are to be affixed etc. etc. Despite the clear instructions, the writ petitioners put “v” mark and made their votes invalid, which facilitated the success of LDF candidates. It is also found that, the election to the post of President was in the morning and the Vice-President election was conducted in the afternoon, and on both occasions, the writ petitioners have put “v” mark. Even assuming that the “v” mark was put in the morning session for election to the President post by mistake, one cannot believe that the same mistake is repeated in the election conducted for the post of Vice-President, and that too, two times in the afternoon, since initially there were three candidates for the post of Vice-President. 12. Moreover, as per Rule 9 of the (Election of President and Vice-President) Rules, 1995, it is clear, there is a legal frame-work provided for affixing the vote. Accordingly, as per Rule 9(3), 'X' mark is to be affixed against the candidate. Therefore, the contention advanced by learned counsel for the petitioners that in the absence of any rules for affixing the votes, there is no embargo in putting “v” mark, cannot be sustained under law. Further, when there is a clear rule for exercising the votes by affixing 'X' mark only, petitioners cannot plead ignorance against the provisions of law. 13. Therefore, the contention advanced by learned counsel for the petitioners that in the absence of any rules for affixing the votes, there is no embargo in putting “v” mark, cannot be sustained under law. Further, when there is a clear rule for exercising the votes by affixing 'X' mark only, petitioners cannot plead ignorance against the provisions of law. 13. So much so, after evaluating the evidence and assimilating the factual and legal situations, it is found out by the Commission that the conduct of the writ petitioners established that they have put “v” mark wilfully with the intention of defeating the candidates of the Indian National Congress, in spite of required instructions, and thus voluntarily given up the membership. Now, looking at the intention and purport of Act, 1999, it is clear, the legislation 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. That apart, the contention that the writ petitioners were free and at liberty to exercise their vote in favour of any other person, can never be sustained, since they have offered their vote in favour of their own candidate, however, with the intention of making the votes invalid, they cast their vote putting “v” mark. 14. Above all, Rule 10 of Rules, 1995, makes it clear that “A ballot paper which does not bear the seal and signature of the returning officer as specified under sub-rule (2) of Rule 9 or the mark 'X' as specified under sub-rule (3) of the said rule or the name and signature of the member who has voted or on which 'X' is marked against the names of more than one candidate shall be rejected as invalid”. These were all component factors guided the authority to arrive at the final conclusion against the writ petitioners. By adopting a strict view in the interpretation of the provisions of Act, 1999, and the Rules, 1995, which has to be done so, the action of the writ petitioners can only be viewed deliberate and wilful to defeat the official candidate. 15. In this regard, the judgment of a Division Bench of this Court in 'Eruthavoor Chandran and Another v. Kerala State Election Commission and Others' [ 2018 (5) KHC 964 (DB)] is relevant. Paragraphs 5 to 10 read thus: “5. 15. In this regard, the judgment of a Division Bench of this Court in 'Eruthavoor Chandran and Another v. Kerala State Election Commission and Others' [ 2018 (5) KHC 964 (DB)] is relevant. Paragraphs 5 to 10 read thus: “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, wherein a learned Single Judge has held as follows: xxx xxx xxx 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 dependent 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 membership of his political party. The grounds for disqualification are distinct and are not interlinked. xxx xxx xxx 6. In Surya Prakash and Others v. Kerala State Election Commission, Trivandrum and Others, 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 Vaisaian 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. 8. In reaching the above conclusion, our Court had referred to the decision in Kihoto Hollohan v. Zachillhu, where the Supreme Court had explained the objective of the 10th Schedule to the Constitution in the following passage:- “xxx xxx xxx 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 10th 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. I is to check erosion of the values in democracy the 10th Schedule to the Constitution of India and the Kerala Local Authorities (Prohibition of Defection) Act, 1999 were brought into force. xxx xxx xxx” 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. 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.” 16. In 'Chenthamara K. and Others v. Kerala State Election Commission, Thiruvananthapuram and Others' [2015 KHC 7086], it was held that, it is trite law that disqualification prescribed under Sec.3 of Act, 1999, with respect to voluntarily giving up membership and violating the whip are distinct and different, and it is not necessary to hold that the member has violated the whip in order to conclude that he has voluntarily given up the membership of the political party. In 'Varghese V.V. and Another v. Kerala State Election Commission and Another' [ 2009 (3) KHC 42 : 2009 (3) KLT 1 ], a Division Bench of this Court held that, the moment one becomes disloyal by his conduct towards the political party, the inevitable inference is that, he has voluntarily given up his membership from that party. 17. Moreover, the Election Commission has entered into the findings after providing opportunity of hearing to the petitioners and the party respondent, and appreciating the evidence tendered by the parties, both oral and documentary, and in my considered view, petitioners have not made out any case of illegality, arbitrariness or any other legal infirmity, justifying interference of this Court exercising the power of judicial review under Article 226 of the Constitution of India. Resultantly, the writ petitions fail, accordingly they are dismissed.