Kerala High Court
Naseera Beevi vs State Election Commission on 9 March, 2004
Equivalent citations: 2004(1)KLT1108
Author: K. Balakrishnan Nair
Bench: K. Balakrishnan Nair
JUDGMENT K. Balakrishnan Nair, J.
1. The petitioners are the members of Navaikulam Grama Panchayat in Thiruvananthapuram istrict. They are challenging Ext.P11 order of the Election Commission. By the said order, the Commission has held that they have voluntarily given up the membership of their political party and therefore, they have ceased to be the members of the above said Panchayat and are disqualified to be candidates to contest any election to the local bodies for a period of 6 years. The brief facts of the case as pleaded by the petitioners are the following:-
2. In the election to the committee of Navaikulam Grama Panchayat held in September 2000, the candidates mainly belonged to two political fronts. For convenient reference, the fronts are called 'A' and 'B' fronts and the party of the petitioners is described as 'C' Party. The petitioners belong to 'C' party and they contested in the symbol of that party. Their party is part of 'A' front and the rival political group is the 'B' front. The total strength of the Panchayat Committee was 17. 11 members were elected from 'A' front and 6 members from 'B' front. All the 11 elected members of 'A' front belonged to 'C' Party. After the election, the petitioners were elected President, Vice President, Chairman of the Welfare Standing Committee and Chairperson of the Development Standing Committee respectively. While so, in February, 2002, a no-confidence motion was moved against petitioners 1 and 2, which was supported by some of the 'A' front members, including the 2nd respondent herein. The said motion was passed and in their place, one Smt. Najmuneesa and Shri. Gopalakrishnan Nair were elected President and Vice President respectively. After the lapse of about one year, in January 2003, one Shri. Shereef, a member of the 'B' front moved a no-confidence motion against the President and Vice President. It was scheduled to be taken up for consideration on 13.1.2003. It is submitted, the 2nd respondent herein, claiming to be the parliamentary party leader of the 'C' Party, issued a whip to all members of the 'C' Party to vote against the no-confidence motion. The petitioners, however, did not receive any whip. The 2nd respondent was not authorised by any competent person to issue such a whip. Thus, there was no valid whip issued to any of the members of the 'C' Party. However, before the consideration of the no-confidence motion, the petitioners herein intimated the Secretary of the Panchayat by letter dated 8.1.2003 that they have decided to continue as members of the 'C' Party, but to remain as a separate block. The said letter is Ext.PlO. The petitioners voted in favour of the no-confidence motion on 13.1.2003 and the same was carried. Immediately thereafter, the President of the Thiruvananthapuram District Committee of 'C' Party removed the petitioners on 18.1.2003 from the primary membership of the said party for a period of 6 years. - Ext.P1 is the communication issued by the District President of the party in this regard.
3. While so, the 2nd respondent herein, who is a member of Ward No. 2 of Navaikulam Grama Panchayat, filed Exts. P2 to P5 petitions before the State Election Commission on 24.1.2003, seeking to disqualify the petitioners under Section 3(1) of the Kerala Local Authorities (Prohibition of Defection), Act, 1999. The petitioners filed Exts. P6 to P9 objections. After taking evidence and hearing both sides, the Election Commission allowed Exts.P2 to P5 petitions against the petitioners by Ext.P11 order. This Writ Petition is filed challenging Ext. P11.
4. The Election Commission found that no valid whip has been issued to the petitioners, but held that they have voluntarily relinquished the membership of 'C' party and therefore, have ceased to be the members of the Panchayat and are disqualified to contest any election to local bodies for 6 years. The petitioners submit, in view of the finding that there was no valid whip, they cannot be disqualified for voting in support of the no-confidence motion, on 13.1.2003. They were removed from the membership of the 'C' Party by Ext.P1 communication on 1811.2003. The Commission has found that they have voluntarily left the membership of the Party, mainly relying on their conduct on 7.2.2003, wherein petitioners 1 and 2 were elected President and Vice President respectively of the Panchayat. It is submitted, their conduct on 7.2.2003 is irrelevant for the reason that it was on a date after their removal from the party on 18.1.2003 and after the filing of Exts. P2 to P5 petitions on 24.1.2003 before the Election Commission.
5. The 2nd respondent has filed a counter affidavit, supporting the impugned order. It is contended that whip was issued to the petitioners and in violation of that whip, they voted on 13.1.2003. Further, their conduct on 13.1.2003 would reveal that they have voluntarily left the party. The removal of the petitioners from the party for 6 years is admitted by the 2nd respondent. Ext.P1 has been produced by him as Ext. R2(1).
6. At the time of final hearing, the petitioners have filed an amendment application to amend the Writ Petition, to contend that Exts. P2 to P5 petitions were filed beyond the time limit of 15 days prescribed in the Rules. The said point was never raised before the Election Commission and therefore, I am not inclined to entertain the said contention. Further, the petitioners voted against the alleged whip on 13.1.2003 and the petitions were filed on 24.1.2003. Therefore, they were filed well within the time limit.
7. I heard Shri. K. Ramkumar, learned Counsel for the petitioners, Shri. Murali Purushothaman, learned Standing Counsel for the Election Commission and also Shri. T.R. Ramachandran Nair, learned Counsel for the 2nd respondent. Before dealing with the rival contentions, it will be fruitful to refer to the relevant statutory provisions, dealing with defection. Section 3 of the Kerala Local Authorities (Prohibition of Defection) 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 his 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;
(b) if an independent member belonging to any coalition withdrawals 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;
(b) 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.
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 as a candidate for the election".
Going by Section 3(1)(a)(ii), if the voting of the petitioners in favour of the no-confidence motion on 13.1.2003 was against any direction issued in writing, by 'C' Party or by a person authorised by the 'C' Party, then they will be disqualified to continue as members of the Panchayat. But, the Election Commission has categorically found in Ext.P11 that the 2nd respondent herein, who was the petitioner before the Election Commission, was not authorised to issue whip to the members of the 'C' Party. The relevant portion in Ext.P11 reads as follows:-
"In the absence of such evidence, the case set up by the petitioner that he was elected as the whip of the parliamentary party of 'C' Party cannot be accepted for a moment. In other words, the evidence adduced improbablise the version of the petitioner that he was duty elected as the whip of the Parliamentary party of 'C' Party on 3.10.2000. So, the petitioner is incompetent to issue whip to the respondents".
Therefore, the case of the 2nd respondent herein, who was the petitioner before the Commission that the petitioners herein voted against his whip, has been found against him. The said finding is further reiterated in paragraph 28 of Ext.P11, which reads as follows:-
"28. I have already held that petitioner failed to establish that he was duly elected as the whip of the parliamentary party of 'C' Party. So he is incompetent to issue whip of the respondent. It is true that in the discussion of the non-confidence motion held on 13.1.2003 the respondent voted in favour of the no-confidence motion. This is clear in Ext.P19 minutes. This fact is also admitted by the respondent. But, it cannot be stated that the respondents have violated the whip on 13.1.2003 since the petitioner is not the duly elected whip".
But, as stated earlier, the Commission has found that the petitioners have voluntarily given up the membership of 'C' Party. The point to be decided in this Writ Petition is whether the said finding is suffering from any infirmity, warranting interference by this Court in exercise of its power of judicial review. The pleadings of the 2nd respondent concerning defection of the first petitioner contained in paragraph 9 of Ext.P3 petition before the Commission are the following:-
"9. The respondent has voluntarily given up her membership in 'C' Party and she joined in the other front and voted in the Panchayat Committee against the direction given by the competent person and she committed defection by voluntarily giving up her membership from the political party and Front in which she belonged to. The respondent and three other members given a representation to the Secretary to the effect that they have joined together with B front members to remove the President and Vice President of 'C' Party and they have given up the membership from the 'C' Party and decided to remain as a separate block. The said representation alone is sufficient to hold that the respondent has voluntarily given up her membership from 'C' Party".
8. The allegations in other petitions before the Commission against other writ petitioners are identical. The reply of the first petitioner to the above allegations, in Ext.P6 objection at paragraph 9 reads as follows:-
"9. The averments contained in para 9 of the petition are false and hence denied. The allegation that the respondent has voluntarily given up membership from 'C' Party and joined other front is not correct and hence denied. The respondent has never acted against the directions given by the competent person authorised by the party or front. No whip was issued by any one. The averment that respondent and three other members given a representation to the Secretary to the effect that they have joined together with B front members to remove the President and Vice President of 'C' Party and they have given up the membership from the political party and decided to remain as a separate block is utter false and hence denied. It may be noted that from the above said submission, it is crystal clear that the respondent is still continues as member of 'C' Party.
The defence of other petitioners in their objections is identical. The finding of the Commission on this point is contained in paragraph 30 of Ext.P11, which reads as follows:-
"The respondents have supported the no-confidence motion moved against the President and Vice President of the Navaikulam Grama Panchayat who contested and won the election to the post in the banner of 'C' Party. It is clear from the evidence that the respondents have not even consulted the office bearers of the Mandalam Committee or the District Committee of 'C' Party before taking a stand as regards the no-confidence motion moved against the President and Vice President. This is a circumstance to show that respondents have disown allegiance to the 'C' Party by voting in favour of the no-confidence motion. The petitioner has produced as Ext.P20 letter. It is signed by all the respondents. It is a copy of the letter issued by the respondents to Secretary of the Panchayat. RW1, the respondent in OP No. 5/2003 clearly deposed that he has signed Ext.P20. RW2 respondent in OP No. 6/2003 also admitted that he has signed and forwarded Ext.P20 letter to the Secretary of the Panchayat. Moreover, the signature, of the respondents in Ext.P20 tally with the admitted signature of the respondents in the objection, yakalath etc. Thus it is clear that the respondents forwarded as Ext.P20 letter to the Secretary. There is a clear statement in Ext.P20 that the respondents have formed themselves into a separate block in the Panchayat. The letter shows that the respondents have withdrawn from the membership in the Parliamentary party of 'C' Party and formed a separate Block. It is pertinent to note that on 7.2.2003 election to the post of President and Vice President were conducted subsequent to the passing of no-confidence motion on 13.1.2003. The minutes of the election is marked as Ext.P22. It is clear from the minutes that the respondent in O.P. 5/2003 contested the election with the help of the B front and won the election to the post of President. It is also clear from the minutes that the respondent in OP No. 6/03 and 7/03 voted in favour of the respondent in OP 4/03 and 5/03 along with the LDF members. It is relevant to note that they contested the election in the C Party ticket. This is a clear conduct from which it can be inferred that the respondents have given up their membership from the political party by name INC. Thus the evidence adduced brings to light that all the respondents have voluntarily given up their membership from the political party by name INC. The said conduct is nothing but defection as contemplated in 3(1)(a) of Act 11 of 1993. Therefore I hold that the respondents are disqualified to continue as members of Navaikulam Grama Panchayat".
9. The concept of voluntarily giving up membership of a political party has been the subject matter of a few decisions of the Apex Court and this Court. The provisions contained in Section 3 of the Kerala Act are identical to those contained in Schedule X of the Constitution of India. So, the decisions under the said schedule can be relied on safely to interpret the provisions of the Kerala Act. In Ravi S. Naik v. Union of India, AIR 1994 SC 1558, the Apex Court has held as follows:-
"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".
The above decision was followed in G.Viswanathan v. Speaker T.N. Legislative Assembly, (AIR 1996 SC 1960), wherein, the case of a person who, on his expulsion from his party, joined another party, was considered. It was held that he has voluntarily given up the membership of his political party and incurred disqualification. These two decisions of the Apex Court were considered by this Court in Shajahan v. Chathanoor Grama Panchayat, 2000 (2) KLJ 451. It was a case of resignation by a member from his party. The member contended that his resignation was not accepted and therefore, he should not be treated as having voluntarily given up his membership in the party. This Court, in the said decision, held as follows:-
"Learned Single Judge as well as Election Commissioner also noted that no whip was issued to the petitioner because he was not considered as a member of 'A' party after submission of his resignation. After submission of resignation, petitioner did not attend any of the party meetings of the 'A' party. From the totality of evidence, it was found by the Election Commission that he ceased to be member of 'A' party after submission of his resignation and that party also treated him accordingly".
In the light of the principles laid down in the above decisions, it has to be considered whether the decision of the Election Commission in his case is liable to be interfered with or not. Normally, in any motion in the Panchayat Committee, a member is free to vote according to his conscience. A voting will be treated as a defection entailing disqualification, if any whip issued by an authorised person is ignored in the voting in relation to certain resolutions such as election to certain offices and no-confidence motion against certain Office bearers. If there was a valid whip, the voting made by the petitioners in favour of the no-confidence motion on 13.1.2003 would amount to defection, entailing disqualification. But, as meritioned earlier, the Election Commission found this point in favour of the Writ Petitioners, whether a person has voluntarily given up his membership, has to be decided based on the conduct of that member inside and outside the Panchayat Committee. Here, the Election Commission found this point against the petitioners mainly based on two materials. The first material is Ext.P10 given by them to the Secretary of the Pahchayat. The second is the election of petitioners 1 and 2 to the office of President and Vice President and the voting done by all the petitioners on 7.2.1999. I think, the reliance placed on the voting/election on 7.2.1999 is totally irrelevant. The petitioners were already removed from the primary membership of the party for 8 years on 18.1.2003. Therefore, the pattern of their voting thereafter, may not normally entail any disqualification. Further, it was a conduct from the part of the petitioners after the filing of the petitions before the Election Commission under Section 4 of the Act, on 24.1.2003. No political party or any member of the Panchayat belonging to a political party can normally raise any complaint against the voting of panchayat members who are expelled from that party. In this case, on 7.2.2003, they did not vote for any other political party, but they voted for themselves/their colleagues. No one has a case that they have joined any other political party. At any rate, there is no such case in the petitions before the Commission. If they joined any other party, then they may have incurred disqualification in the light of the decision of the Apex Court in G. Viswanathan's case mentioned above. But, the Election Commission has heavily relied on their voting on 7.2.2003 for entering the finding against the petitioners to the effect that they have voluntarily given up the membership of the C party. Taking into account an irrelevant matter will render Ext.P11 unreasonable in the "Wednesbury sense" and therefore this Court can interfere with that decision in exercise of its power of judicial review. If the conduct of the petitioners on 7.2.2003 is eschewed, then, what remains among the materials relied on by the Election Commission is only Ext.P10 letter issued by the petitioners to the Secretary of the Panchayat. The translation of the relevant portion in Ext.P10 which has been relied on by the Commission against the petitioners reads as follows:
"Therefore, for the progress, public good and development of the panchayat, we, who are 'C' party members, have decided to work as a separate block in the Panchayat".
According to the Election Commission, the said letter shows that the respondents have withdrawn from the membership of the parliamentary party of 'C' Party and formed a separate block. The petitioners would submit that nothing in Ext.P10 would show that they have decided to leave the 'C' party. On the contrary, it is submitted, it is specifically stated in Ext.P10 that they are still the members of the 'C' Party. What they have decided was only to work as a separate block in the parliamentary party of the 'C' Party. 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 voluntarily leaving of the membership of the political party. Leaving the parliamentary party may be a circumstance, which may indicate that the incumbent has left the political party. I feel that there is nothing in Ext.P10 which shows that the petitioners have decided to leave the 'C' Party. Further, this submission is forfeited by Ext.P1 communication of the District President of the party expelling them from the primary membership of the party. The political party, which is the competent authority to say whether a person is its member or not, has treated them as members upto 18.1.2003 and with effect from the said date, removed them from membership of the party for 6 years. So the interpretation given to Ext.P10 by the Election Commission is plainly untenable in the light of Ext.P1. The Apex Court, in G. Viswanathan's case mentioned above, has observed while dealing with the evidence necessary to hold a person disqualified as follows:-
"Of course, Courts would insist on evidence which is positive, reliable and unequivocal".
Therefore, even assuming that the petitioners have detached themselves from the parliamentary party, still they were treated as continuing as members of the 'C' Party, by that Party upto 18.1.2003. So, the submission of Ext. P10 letter to the Secretary of the Panchayat alone will not be sufficient to hold that the petitioners have voluntarily given up their membership of the 'C' Party. The finding of the Election Commission in this regard is vitiated by error apparent on the face of the record. The said finding is not based "on evidence which is positive, reliable and unequivocal".
10. But, the learned Counsel Shri. T.R. Ramachandran Nair, appearing for the 2nd respondent submitted that if a Panchayat member, though dismissed from his party, joins another political party, the same shall be treated as voluntarily leaving his party in view of the explanation to Section 3 of the Act in the light of the interpretation given to an identical explanation in Schedule X of the Constitution of India i n G. Viswanathan's case mentioned above. According to the learned Counsel, the conduct of the petitioners in giving Ext.P10 on 6.1.2003 and the manner of their voting on 13.1.2003 would show that they have voluntarily left the C party. This inference is fortified by their voting in the election held on 7.2.2003. It is submitted, the dismissal or removal of a member from a party is an internal affair of that party. Even if a Panchayat member is dismissed from his party, he will continue to be the member of that party for the purpose of Section 3 of the Act in the light of the above said decision of the Apex Court. But, I feel that the conduct of the petitioners after the filing of the petition on 24.1.2003 cannot be taken into account while considering the case of the 2nd respondent raised in his petitions before the Commission about the disqualification of the writ petitioners. Further, the submission of Ext.P10 to the Secretary of the Panchayat and the voting on 13.1.2003 in the absence of a binding whip cannot be treated as evidence "which is positive, reliable and unequivocal" to hold that the petitioners have voluntarily left their party. Further, any doubt cast oh the petitioners in his regard is dispelled by Ext.P1 order of the District President of C party, removing the petitioners from that party on 18.1.2003. It will amount to admission of a competent authority that they were the members of C party, atleast upto 18.1.2003. No one has a case that they have joined some other party between 18.1.2003 and 24.1.2003, the date of filing of the petitions against them. Therefore, the contentions urged by the learned Counsel relying on G. Viswanathan's case mentioned above cannot be accepted.
11. For all the above reasons, the finding of the Election Commission that the petitioners have voluntarily left their party cannot be upheld. In the result, the Writ Petition is allowed. Ext.P1 is quashed.