Jiji Thomas vs The Kerala State Election Commission on 8 August, 2025

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Kerala High Court

Jiji Thomas vs The Kerala State Election Commission on 8 August, 2025

The present intra court appeal is directed against the judgment of the Single Bench, whereby the writ petition filed by the appellants challenging the action/order dated 2.7.2024 of the Kerala State Election Commission, allowing O.P.Nos.6, 7, 8 and 9 of 2021 filed by the second respondent in the writ petition as well as the appeal, seeking disqualification of the appellants as per the provisions of Section 3 of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 (hereinafter called 'Act No.11 of 1999') and by taking into consideration the provisions of Paragraph No.8 of the Local Authorities Election Symbols (Reservation and Allotment) Order, 2017, has been dismissed.

2. Succinctly, the facts in brief for adjudication of the controversy are enumerated herein below:

WA NO. 1723 OF 2024 -4-

2025:KER:59779 Appellants, for the elections of Panchayat in the year 2020, submitted their nomination papers as independent candidates but used the symbol of 'Foot Ball', which was a free symbol allotted to the party called Revolutionary Marxist Party of India (hereinafter called 'RMPI'). Copy of the nomination papers available at page Nos.262, 263, 264 and 265 in the writ appeal reveal that all the appellants submitted their nomination papers as independent candidates but was allotted the free symbol allotted to RMPI, much less the said party also vide letter dated 22.11.2020 Ext.P3 recommended the allotment of the symbol of 'foot ball' to the returning officer. The contents of the letter Ext.P3 and Exts.P4, P4(a) and P4(b) collectively read as under:

Ext.P3 "RMPI Revolutionary Maexist Party of India Kerala State Committee Room 152, Hotel New Nalanda, Aurobindo Ghosh Road, Kozhikode -1.

 WA NO. 1723 OF 2024            -5-


                                                       2025:KER:59779

                [email protected]
       To
       The Returning Officer              Date:22.11.2020
                  Interested         in    allotting      the

Revolutionary Marxist Party's election symbol, football, to Jiji Thomas Thacharukudiyil, who is contesting in the Local Government Elections from Mandapam Ward/Division in East Eleri Grama/Block/Jilla Panchayat.

Your's faithfully, Sd/- N.Venu, Secretary, RMPI Kerala State Committee"

Ext.P4 "Form 25A (See Rule - 52) (For use when there is competition for a position) As per Section 80 of the Kerala Panchayat Raj Act, 1994 (13 of 1994) Declaration of election results Election to G-14032 East Eleri Grama Panchayat from 001 Mandapam Constituency As per the provisions contained in Section 80 of the Kerala Panchayat Raj Act, 1994 (13 of 1994) WA NO. 1723 OF 2024 -6- 2025:KER:59779 and Section 52 of the Kerala Panchayat Raj (Conduct of Elections) Rules, 1995, in order to fill the vacancy from the above mentioned constituency, I hereby declare that Shri/Shrimati Jiji Thomas, Thacharukudiyil nominated as independent candidate has been duly elected.

Place:

Date:16/12/2020 Sd/-

The Election Officer, Thomas VT, Co-operative Society Assistant Registrar (General), Vellarikund, Parappa P.O."

3. Paragraph No.8 of the aforementioned symbols order 2017 reads as under:

"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 chosen the symbol, if any, reserved or allotted for that party in the nomination paper. Provided that if a political WA NO. 1723 OF 2024 -7- 2025:KER:59779 party recommends the symbol of the party to a candidate who has not mentioned in the name of the political party or its symbol in the nomination paper and has mentioned a symbol from the list of free symbols in the nomination paper, he is eligible to get the symbol of that

(ii) A notice by the political party in writing to that effect, not later than 3.00 PM on the last date for withdrawn of nominations, is delivered to the returning officer of the constituency;

(iii) The said notice is signed by the person authorized by political party from time to time to recommend the symbol that political party;

Provided that no facsimile signature, signature by means of rubber stamp, signature transmitted by electronic means etc of such authorized persons shall be accepted.

(iv) The State President, Secretary or Convener as the case may be, of the political party shall authorize a person to recommend the symbol of that political party and shall intimate his name and office to the State Election Commission, District Election Officer or the concerned Returning Officer."

4. The aforementioned paragraph, takes into consideration certain situations like the one involved WA NO. 1723 OF 2024 -8- 2025:KER:59779 in the present case, where a candidate who chooses to contest the election independently, but takes the aid of the symbol being allotted to the party shall be deemed to be a candidate set up by a political party.

5. In the aforementioned elections all the appellants had won the election and for the purpose of the election of the President, Vice President or the Secretary, candidates from the other party i.e., the Indian National Congress as well as the Democratic Development Front had contested. The RMPI issued a whip to the appellants to cast the votes in support of the candidates for Indian National Congress. However, the appellants cast the votes in favour of the candidates supported by the Democratic Development Front. By taking the proviso 2 Section 18, considering the appellants to be deemed candidates of the RMPI, four(4) complaints were filed before the Election Commission seeking disqualification as per the provisions of Section 3 WA NO. 1723 OF 2024 -9- 2025:KER:59779 of the Act 11 of 1991. Section 3 of the Act reads as under:

"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 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 WA NO. 1723 OF 2024 -10- 2025:KER:59779 Committee; or in an voting on a no-

confidence motion against any one of them expect a member of a Standing Committee;

(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 this 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, 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;

(c)if an independent member not belonging WA NO. 1723 OF 2024 -11- 2025:KER:59779 to any coalition, joins any political party or coalition; he shall be disqualified for being a member of that local authority.

Explanation. - For the purpose of the 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 as a candidate for the election."

6. Election Commission noticing the fact that the appellants though had contested the election independently, but used the symbol as per the recommendations ibid of the RMPI, who are deemed candidates of the said political party and therefore acted in defiance to the whip issued by the party for the purpose of holding the elections of the President of the Panchayat in not supporting the candidates being supported by the said party, disqualified the appellants for the period of six(6) years.

7. The aforementioned order of the election commission, as noticed above, was challenged before WA NO. 1723 OF 2024 -12- 2025:KER:59779 this Court in the writ petition and this court, by interpreting the aforementioned provisions in the Act, dismissed the writ petition observing as under:

"24. Here it would be relevant to note that prior to the 2020 General Election to Local Self Government Institutions in the State of Kerala, the State Election Commission had in pursuance of paragraph 7 of the Symbols Order, 2017, issued an up-to-date list of election symbols as per notification No.278/2020/SEC dated 06.11.2020 and published in Kerala Gazette Extraordinary No.2690 dated 6.11.2020.

25. Thus, in the said notification, the free symbols for independent candidates which include the symbols allotted to registered unrecognized political parties having no member or members in the Kerala Legislative Assembly or in any of the Local Self Government Institutions in the State of Kerala were provided in Table-IV. Accordingly, the election symbol 'Football' has been included in Table-IV of said notification at serial number 33 and it is mentioned therein that the said symbol has been allotted to Revolutionary Marxist Party of India (RMPI) on priority basis.

26. Therefore, in view of paragraph WA NO. 1723 OF 2024 -13- 2025:KER:59779 3(4), 4(4) & 7(d) of the Symbols Order, 2017, as far as the election symbol 'football' is concerned, as on the date of 2020 General Election to Local Self Government Institutions in the State of Kerala, the said symbol though included as a free symbol, stood allotted to Revolutionary Marxist Party of India (RMPI) on priority basis; meaning thereby that if RMPI (which was at that time a registered unrecognized political parties having no member or members in the Kerala Legislative Assembly or in any of the Local Self Government Institutions in the State of Kerala) recommends said symbol to a candidate in the manner prescribed in paragraph 8(ii) to (iv), the Returning Officer would be bound to allot said symbol to the candidate on priority basis.

27. Further, on such allotment of the election symbol 'Football' to the RMPI candidate, the legal consequence as envisaged in Proviso to Paragraph 8(i) of the Symbols Order, 2017 would also set in and the respective candidate who has been allotted the election symbol 'Football' solely on the basis of priority letter issued by RMPI, would be deemed to be set up by said Political Party.

28. Therefore, in the instant case, even though in the nomination papers, the Petitioners WA NO. 1723 OF 2024 -14- 2025:KER:59779 have mentioned that they are independent candidates and though they have shown 'Football' (which is included as a 'free symbol' in Table IV of notification No.278/2020/SCE dated 6.11.2020) as their first preference election symbol, still, since it is admitted fact that at time of scrutiny of nominations, the Returning Officer has allotted the election symbol 'Football' to the Petitioners solely on the basis of priority letters submitted by RMPI, the legal effect of deeming provisions of Proviso to Paragraph 8(i) of the Symbols Order, 2017 is applicable in case of the Petitioners and accordingly, the Petitioners shall be deemed to set up by RMPI.

29. Further, the Explanation to Section 3 of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 explicitly provides that for the purpose of Section 3 (Disqualification on ground of Defection) 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.

30. Hence, in the 2020 General Election to Local Self Government Institutions, by virtue of Proviso to Paragraph 8(i) of the Local Authorities Election Symbols (Reservation WA NO. 1723 OF 2024 -15- 2025:KER:59779 and Allotment) Order, 2017, since the Petitioners are deemed to be set up as candidates of RMPI from Ward Nos.1, 14, 10 & 3 respectively of East Elari Grama Panchayat, the Petitioners are also deemed to be members belonging to RMPI in view of Explanation to Section 3 of the Kerala Local Authorities (Prohibition of Defection) Act, 1999.

31. In this context, it would be relevant to note that allotment of election symbols is done by the Returning Officer at the time of scrutiny of nominations and such scrutiny is done after the last date of making nominations. It is hence that when the list of nominations is published by the Returning Officers in FORM No.3 as provided in Rule 9 of the Kerala Panchayat Raj (Conduct of Election) Rules, 1995, there is no provision in FORM No.3 for entering the election symbol of the candidates. However, after scrutiny of nominations, while publishing the list of contesting candidates by the Returning Officer in FORM No.6 as provided in Rule 13 of the Kerala Panchayat Raj (Conduct of Election) Rules, 1995, there is a provision in FORM No.6 for entering the election symbols allotted to the contesting candidates.

32. Therefore, the fact that at the time of submitting nomination papers, the Petitioners WA NO. 1723 OF 2024 -16- 2025:KER:59779 have declared in their nomination papers that they are not associated with any Political Party and that they are Independent candidates does not have any relevance since, admittedly, at the time of scrutiny of nominations, the Returning Officer has allotted election symbol 'Football' to the Petitioners solely on the basis of priority letters submitted by RMPI. Given the above, the contention of the learned senior counsel for the writ petitioners that they had contested the election as independent candidates and the same is seen from the declaration stated in the nomination papers, cannot be accepted. In view of the findings rendered above, the writ petitioners case must be covered by the explanation to Section 3 of the Act, and the petitioners must be held deemed to be set up by the RMPI. The Commission has come to the correct conclusion relying on the appropriate provisions. Under such circumstances, I do not find any illegality warranting interference of the order of the Commission.

Accordingly, the writ petition fails and is dismissed."

8. Mr.Navaneeth Kumar, learned counsel appearing on behalf of the appellants submitted that the WA NO. 1723 OF 2024 -17- 2025:KER:59779 proviso in the Act No.11 of 1999 was introduced only in the year 1992 and prior to amendment, there was no such proviso and therefore a candidate, who had contested independently though under the symbol of the party could not be considered to be a deemed candidate of a political party, for the reason that the RMPI had not contested the election of the Panchayat by fielding any candidate. In support of the contention, relied upon paragraph No.9 of the judgment in Abdul Haque v. Pathumma (2005 KHC 167) that even if the party had supported a candidate, the candidature of the candidate, as per the contents of the nomination paper, would be treated only as independent and not a deemed candidate of the political party. Also relied upon paragraph No.12 of the judgment of the Division Bench of this Court in Mathew Joseph v. Joseph John (2024 KHC Online

752). The same reads as under:

"12. The purpose of anti-defection law is to WA NO. 1723 OF 2024 -18- 2025:KER:59779 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 S.3(1)(a) of the Kerala Local Authorities (Prohibition of Defection) Act, 1999."

9. On the other hand, Mr.Ramkumar, learned Senior Counsel assisted by Smt.Devika submitted that the judgment of the Single Bench is clearly based upon the interpretation of the provisions of paragraph No.8 as well as Section 3 and the appellants squarely fall within the aforementioned conditions and have rightly been disqualified in not agreeing to the whip of the RMPI for the purpose of the elections of the President of the Panchayat. The judgments cited above, WA NO. 1723 OF 2024 -19- 2025:KER:59779 would not be applicable particularly judgment in Abdul Haque as it was in respect of the unamended provisions of the Act and Symbols Order, 2017 which has undergone a sea change by amendment in 2020.

10. We have heard learned counsel for the parties and appraised the paper book.

11. On cumulative reading of the provisions of paragraph No.8 of the Symbols Order, 2017, it is evident that if a candidate has chosen to contest the election independently but has taken the support of the symbol allotted to a political party, there is no bar for using the symbol then he/she would be considered to be a deemed candidate of the political party. The nomination papers though reflect that the appellants submitted their candidature as independent and had given the name of three symbols i.e., the foot ball, mango and umbrella, however, were allotted 'foot ball' on the recommendation letter, extracted above, of the RMPI WA NO. 1723 OF 2024 -20- 2025:KER:59779 submitted to the Returning Officer. Thus, in view of the recommendation, in our considered view, the candidates would be considered to be deemed candidates and rightly so, the learned Single Bench considered the appellants to be the deemed candidates of the said political party.

12. The stage for disqualification only arise in case a person does not act in tandem with the provisions of Section 3 of Act 11 of the 1999. It is not in dispute that despite having been elected as the member of the Panchayat for the purpose of elections of the President, the appellants did not adhere to the recommendations of the RMPI for casting the vote in favour of the candidate belonging to Indian National Congress supported by the RMPI, but cast the vote in favour of Democratic Development Front. The provisions of the Section were rightly so, attracted.

13. We do not find any justification in tinkering WA NO. 1723 OF 2024 -21- 2025:KER:59779 with the judgment of the learned Single Bench as it does not suffer from any illegality and perversity, much less the judgment cited at bar as it pertains to the provisions of the Act, which were not in force at the time when the appellants contested the elections.

Appeal sans merit, accordingly, dismissed.

Sd/-

AMIT RAWAL JUDGE Sd/-

P. V. BALAKRISHNAN JUDGE vv

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