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2024 DIGILAW 927 (KER)

Mathew Joseph S/o Joseph v. Joseph John S/o John

2024-07-29

A.MUHAMED MUSTAQUE, S.MANU

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JUDGMENT : A.Muhamed Mustaque, ACJ. Simple question in this appeal arises in the context of disqualification of an elected candidate to the local authority under the Kerala Local Authorities (Prohibition of Defection) Act, 1999. The question is whether a member of a local authority, who is elected while aligning with a splinter group of a political party, would continue to have the identity of a political party for the purpose of disqualification law applicable for local body. 2. Shri Mathew Joseph, the sole appellant in these cases, was elected as a member of the Thodupuzha Municipality from the P.J. Joseph group. This group was part of the United Democratic Front (UDF) coalition. He switched over to the Left Democratic Front (LDF), the opposite coalition. The rival group of Kerala Congress (M), led by Jose K.Mani, was part of LDF coalition. The Kerala Congress (M) P.J.Joseph Group, led by P.J. Joseph was part of the UDF coalition. Kerala Congress (M) is a political party registered under Section 29A of the Representation of the People Act, 1951. At the time of the election and after the election to the local body, the Kerala Congress (M) (P.J. Joseph group) was never registered as a political party. However, taking note of the split in the Kerala Congress (M), the two factions were allowed to contest the election on the symbol allotted by the Election Commission. P.J. Joseph was allotted the symbol ‘chenda’. Mathew Joseph contested the election with the symbol ‘chenda’ by declaring allegiance to the Kerala Congress (M), P.J. Joseph group. The P.J. Joseph group later merged with another political party, Kerala Congress having allegiance to the UDF coalition. The Election Commission was of the view that leaving membership of a splinter group cannot be equated like ceasing the membership of a political party. Accordingly, the petitions filed for disqualification were dismissed. On a challenge made before this Court under Article 226 of the Constitution, the learned Single Judge was of the view that the order of the Election Commission was perverse and the application for disqualification being decided on a wrong premise, found Mathew Joseph liable to be disqualified. According to the learned Single Judge, Mathew Joseph had voluntarily given up membership of the Kerala Congress P.J. Joseph group. 3. According to the learned Single Judge, Mathew Joseph had voluntarily given up membership of the Kerala Congress P.J. Joseph group. 3. In this appeal, the learned Senior Counsel appearing for the appellant, Mathew Joseph, submitted that the learned Single Judge decided the matter on a wrong understanding of law and recognised the splinter group as a political party for the purpose of disqualification. The learned Senior Counsel submitted that if Kerala Congress P.J. Joseph group is treated as a political party, that would amount to recognising a political party which was never in existence at the time of or after the election. It is submitted that for the purpose of disqualification, the disqualification law will have to be narrowly construed. It is argued that when a specific provision assigns a meaning to a political party in a context, a different meaning cannot be assigned based on the phrase referred to in the definition of political party. On the other hand, the learned counsel for the petitioners before the Election Commission and before this Court would submit that for the purpose of disqualification, there are only two categories of members; one, the category of political party, and the other, the category of independents. It is argued that Mathew Joseph contested election not as an independent but on a specific allotment of symbol ‘chenda’ belonging to P.J. Joseph group. It was submitted that this court in W.P.(C).No.27221/2020 filed by P.J. Joseph and others, ordered that the contestants of the P.J. Joseph group shall not be treated as independent candidates. They were allowed to contest elections as candidates of Kerala Congress (M) P.J. Joseph group under the symbol ‘chenda’. 4. The learned Senior Counsel for the appellant cited the following judgments: State Bank of India v. Yogendera Kumar Srivastava and Others [ (1987) 3 SCC 10 ] Edapaddi K.Palaniswami v. T.T.V.Dhinakaran and Others [ (2019) 18 SCC 219 ] Kalya Singh v. Genda Lal and Others [ (1976) 1 SCC 304 ] Shah Faruq Shabir and Others v. Govindrao Ramu Vasave and Others [ 2016 (5) Mh.L.J. 436 (FB)] Assistant Commissioner of Income Tax (Exemptions) v. Ahmedabad Urban Development Authority [ (2023) 4 SCC 561 ] 5. In this context, the only question that arises is whether switching allegiance from the Kerala Congress (M), P.J. Joseph group would amount to voluntarily giving up membership of that political party as contemplated under Section 3(1)(a) of the Kerala Local Authorities (Prohibition of Defection) Act, 1999. It is appropriate to refer to Section 3(1)(a) which reads thus: (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 a 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; 6. The Election Commission of India, in exercise of its powers conferred under Article 324 of the Constitution of India, issued the Election Symbols (Reservation and Allotment) Order, 1968. In paragraph 6, regarding classification of political parties, it is stated that “the Commission may specify as and when necessity therefore arises, political parties are either recognised political parties or unrecognized political parties”. Similarly, the State Election Commission of Kerala in exercise of the powers conferred under Article 243K and 243ZA of the Constitution of India and the Kerala Municipality (Conduct of Election) Rules, 1995, issued the Local Authorities Election Symbols (Reservation and Allotment) Order, 2017 (‘Order 2017’ for short). Paragraphs 2(g) and 2(h) of the above order define ‘recognised political party’ and ‘registered unrecognised political party’ as follows: (g) ‘Recognised Political Party’ means a political party recognised by the Election Commission of India as a National Party or as a State Party in a State or Union Territory; (h) ‘Registered unrecognised political party’ means and includes every political party registered under Section 29A of the Representation of the People Act, 1951, but classified under Paragraph 6 of the Election Symbols (Reservation and Allotment) Order, 1968 as unrecognised political party; 7. In paragraph 4(3) of the Order 2017, it is stipulated as follows: (3) The candidate of a registered unrecognized political party having a member or members in the Kerala Legislative Assembly or in any Local Self Government Institution in the State of Kerala shall be allotted, as far as possible, the symbol of its choice. 8. In paragraph 8 of the Order 2017, it is mentioned as follows: 8. When a candidate shall be deemed to be set up by a political party. - For the purpose of this Order, a candidate shall be deemed to be set up by a political party , only if - (i) The candidate has mentioned the name of the political party in the prescribed column in the nomination paper and has been chosen the symbol, if any, reserved or allotted for that party in the nomination paper; ** ** 9. In paragraph 10 of the above Order 2017 it is stated as follows: 10. Power of the Commission in the case of Splinter Groups. - In the case where a political party recognised by or registered with the Election Commission of India is split into two or more political parties and each of such party raises claim for the same symbol assigned by the Election Commission of India or for which that party was eligible for preference, the Commission shall not assign such symbol to the candidates belonging to those political parties and shall assign one symbol each from the free symbols notified under paragraph 7(1)(d) of this order to the candidates belonging to such political party. 10. The combined reading of the above provisions abundantly make it clear that the splinter group of a registered political party can be recognised as a political party for the limited purpose of contesting election. Such allotment of symbol has nothing to do with the registration of a political party. The ‘political party’ in this context has to be understood in the light of Order 2017 issued by the State Election Commission Kerala. 11. Paragraph 10 of Order 2017 allows the Election Commission to assign symbol to a splinter group of a political party to contest election as a candidate of that political party. Section 3(1) of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 will have to be interpreted in accordance with the notification issued by the Election Commission. 11. Paragraph 10 of Order 2017 allows the Election Commission to assign symbol to a splinter group of a political party to contest election as a candidate of that political party. Section 3(1) of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 will have to be interpreted in accordance with the notification issued by the Election Commission. The members of the local authority are either elected as belonging to the party or as an independent member. On a declaration by the member in Form 2 under sub rule (2) of Rule 3 of the Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000, a member is identified as elected as candidate of political party or independent. That rule prescribes that the declaration has to be given when a candidate is elected to the local body as to whether he is belonging to a political party or belonging to a coalition or as an independent. It is based on the Order issued by the State Election Commission, the group led by P.J. Joseph is recognised as a political party and that would be sufficient for the purpose of application of Section 3(1)(a) of the Kerala Local Authorities (Prohibition of Defection) Act, 1999. It is to be noted that the group belonged to P.J.Joseph approached this Court in W.P.(C).No. 27221/2020 as they apprehended that the group will be treated as independent candidates for the purpose of local body election in which Mathew Joseph had contested. 12. The purpose of anti-defection law is to prevent switching over from one party to another or switching over allegiance by betraying the mandate of the electorate. The provisions will have to be interpreted objectively. Thus, a member is identified as part of a political party based on the declaration given under Rule 3(1) of the Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000. If that declaration is betrayed by the act of the elected member, that would entail disqualification. The law itself is clear under Section 3(1)(a) of the Kerala Local Authorities (Prohibition of Defection) Act, 1999. 13. Mathew Joseph has no case that he was elected as an independent candidate. He declared himself as the elected candidate of a political party. Whether splinter group of a political party has registration under Section 29A of the Representation of Peoples Act, 1951, or not is irrelevant for the purpose of disqualification. 13. Mathew Joseph has no case that he was elected as an independent candidate. He declared himself as the elected candidate of a political party. Whether splinter group of a political party has registration under Section 29A of the Representation of Peoples Act, 1951, or not is irrelevant for the purpose of disqualification. The question relating to disqualification will have to be adjudicated based on the declaration given by an elected member in Form 2 as prescribed under sub rule (2) of Rule 3 of the Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000. 14. Mathew Joseph switched over his allegiance to the opposite coalition. He has no case that he remained with P.J.Joseph group which later merged with Kerala Congress. The factual aspects have already been adverted to by the learned Single Judge. In the light of the reasoning as above, we find no merit in these appeals. The appeals stand dismissed.