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Kerala HC: Independent Candidate Who Later Declares Himself to be Candidate of Party/Coalition Will be Disqualified

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High Court of Kerala Antiques fraud Investigation

Sakina Tashrifwala

Published on: October 6, 2022 at 18:53 IST

The Kerala High Court has ruled that if a candidate who ran as an independent candidate later declares himself to be a candidate of a party or coalition, he will be disqualified for defection under Section 3(1)(c) of the Kerala Local Authorities (Prohibition of Defection) Act, 1999.

The Division Bench, comprised of Chief Justice S. Manikumar and Justice Shaji P. Chaly, upheld the State Election Commission’s decision to disqualify an elected member of Keerampara Grama Panchayat, saying the law relating to defection in regard to members of the local body was made with the intention of upholding the constitutional principles, democratic setup, and rule of law prevailing in the country.

“This we say because, in order to sustain the faith of the citizens in the democratic set up of conducting elections, and for retaining and sustaining the confidence of the citizens on the candidates elected by the electorate, a strict view is to be adopted in the matter of defection. It is with the said basic intention that the Act, 1999 and Rules, 2000 were brought into force,” said the court.

The bench also stated that the Tenth Schedule was enacted to remedy “the evil of defection,” while acknowledging the considerable influence it has on democracy’s health.

It went on to say that the 91st Constitutional Amendment reinforces the idea that the legislation needed to be strengthened further to combat the evil of defection.

“In our opinion, the abovementioned concept would equally or more forcefully apply to the legislation dealing to defection in municipal organisations,” the court stated.

Background Information

In the December 2020 Local Self Government Institutions elections, the appellant Sheeba George was elected as an independent candidate from Ward 6 of Keerampara Grama Panchayat, Ernakulam District.

She explicitly stated in her candidacy papers that she is running as an independent candidate, unaffiliated with any political party or alliance.

She had also circulated an election notice in this respect, seeking votes as an independent candidate. She was given the insignia of a ‘table fan.’

However, one Mamachan Joseph later brought to the attention of the State Election Commission (SEC) that, while George had contested and won the election as an independent candidate, she stated in the sworn declaration given on 21st December 2020, as required by Rule 3(2) (c) of the Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000, that she was the official candidate of CPI (M)-LDF.

Joseph further claimed that she was enrolled as a member of the CPI(M)-LDF in the record created by the Secretary of Keerampara Grama Panchayat as required by Rule 3 (1) of the Rules 2000.

As a result, it was argued before the SEC that the candidate would be disqualified under Section 3(1)(c) of the Act of 1999.

Decision of the SEC

In this respect, the SEC determined that the candidate accepted that the Panchayat Secretary had written the fact in the register based on her claim.

It was also discovered that she voted in favour of the LDF nominee for Panchayat President, and that LDF members successfully submitted and supported her name for the office of Vice-President.

Due to defection, the SEC ruled that the candidate was disqualified under Section 3(1)(a) of the Act of 1999.

The SEC determined that the candidate’s claim of mistake or error in the declaration could not be a viable and reasonable defence, especially as she made no effort to correct the problem at the right time.

According to Section 4(3) of the Act of 1999, the candidate was also disqualified from running for any local government office for a period of six years from the date of the ruling.

In the writ case brought before it, the Single Judge of the HC supported the SEC judgement.

The case was then heard by the division bench in appeal.

Arguments in Front of the Court

Senior Advocate K. Ramakumar and Advocates T. Ramprasad Unni, S.M. Prasanth, R.S. Aswini Sankar, and T.H. Aravind argued on behalf of the appellant that, while it was claimed before the SEC that the appellant had joined the CPI(M), no evidence was presented to show that the said political party had accepted her as a member.

Counsels argued that the Single Judge had overlooked the fact that ‘joining a political party’ is a question of fact, and that in an election matter involving disqualification and disruption of representation of a ward in the Panchayat, strict pleadings and proof are required, as established by precedents.

It was also argued that the Single Judge’s conclusion that a “mere indication to the Secretary of the Panchayat after the election” was sufficient to conclude that she joined the party was incorrect and unsupportable in law.

It was stated that a member joining a political party must be positively proven by the person seeking disqualification.

The court was advised that ‘merely associating with a political party’ does not imply membership in that party, particularly by an independent member.

The counsels further said that a declaration made in Form No. 1 of Rule 3(1) of the Rules, 2000 could not be interpreted as being adverse to the nomination paper and implying membership in the CPI(M) political party.

The counsels emphasised that in the event of a contradiction between the nomination paper and the declaration made, the declaration in the nomination paper should be recognised and the appellant should be considered as an independent candidate backed by CPI (M).

The Grama Panchayat maintained that because the appellant was an independent candidate, she had the option of making a declaration of her choice, as per Rule 3(c) of the Rules, 2000, and that regardless of the statement made, she could only be recognised as an independent member.

Deepu Lal Mohan, the SEC’s Standing Counsel, and Advocates T.K. Ajithkumar and others appeared on behalf of the respondents and supported the conclusions of the SEC and the Single Judge.

Court’s Decisions

The Court considered paragraph 2(2) of the Tenth Schedule, which allows for disqualification for defection.

It emphasised that, while there was no indication that the independent member had joined a political party and fought the election, her declaration may be considered substantial evidence in this respect.

The Court also stated that the question of whether a mere support of a political party in favour of an independent candidate is a defection could not be a static principle based solely on case law, but would depend on the pleadings, and the proof would depend on the facts, law, and circumstances of each case.

Referring to the Supreme Court’s ruling in Jagjit Singh vs. State of Haryana, the court stated that the factum of joining might be derived from the facts and behaviour of a member who has not formally joined a political party.

It went on to say that because the appellant conceded she ran as an independent candidate but submitted a statement to the contrary, she is disqualified under Section 3(1)(c) of the Act of 1999.

“It is obvious from the information on record that it is not a matter of mere outside assistance to the appellant in the race for the office of Vice President, but it is done after joining a political party in the framework of the legislation outlined above,” the court concluded.

It also dismissed the appellant’s claims of inadequate proof, concluding that sufficient documented evidence was available in this case.

The court stated in its decision:

“…When a declaration was made by the appellant, an independent candidate who won the election without support of a coalition or of a political party, as if to appear that she has contested as an independent member with the support of a political party/coalition, and the Secretary of the Grama Panchayat registered so in the statutory register;”

“It is clear that the petitioner has violated the requirements of law; which is a clear proof to show that the appellant has joined the CPI(M)/LDF coalition in terms of the provisions of the Act and the Rules, and contested and won the election to the post of Vice President as a candidate fielded by the said political party/coalition”.

The Court further said that it has been held by the apex court that the word “join” in para 2(2) of the Tenth Schedule ought to be given a strict interpretation in view of serious consequences of disqualification flowing therefrom on an order that may be made by the speaker.

In this light, the writ appeal was dismissed, and the Single Judge’s order was upheld.