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Giving up membership of a Political Party should be established by positive, reliable and unequivocal evidence : Kerala HC

posted Nov 18, 2014, 2:23 AM by Law Kerala   [ updated Nov 18, 2014, 7:26 AM ]

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The Kerala High Court on Monday, November 10, 2014 held that "a member has voluntarily given up membership of the political party for all intent and purpose so as to incur disqualification under Section 3 of the Act is to be determined on appreciation of materials on record." 

The bench comprised of Justice K.T. Sankaran and Anil K. Narendran viewed that "in the absence of any such proof, the finding in order that respondents moved the no-confidence motion against their own party without the knowledge and consent of the Congress Party or the DCC President and their above conduct would amount to voluntarily giving up their membership of the party, is per se arbitrary and perverse. Therefore the learned Single Judge rightly set aside the order passed by the State Election Commission. 

The Court find absolutely no grounds to interfere with the judgment of the learned Single Judge and Writ Appeal is dismissed.

The common allegations in the Original Petitions filed before State Election Commission are that, respondents 1 to 3 with the support of Kerala Congress moved a no-confidence motion against the appellant to oust him from the post of the President of Manimala Grama Panchayat. This was done without the permission of the Parliamentary Party or the Political Party. 

Respondents 1 to 3 in gross defiance of the direction issued by the Parliamentary Party moved and voted in favour of the no-confidence motion and out seated the President of their own Party. Consequently Congress lost power in the Panchayat. Per contra, respondents 1 to 3 contended that, while holding the post of the President of Manimala Grama Panchayat the appellant acted against the interest of the people of the Grama Panchayat, Congress Parliamentary Party and UDF. Therefore, both the Parliamentary Party and UDF directed him to resign from that post. But he disobeyed the said decision and continued as President. 

Hence, the Parliamentary Party and UDF decided to move a no-confidence motion against him, which was signed by respondents 1 to 3, who are members of Congress and 5 other members of UDF. All UDF members and Congress members, except the appellant and one Valsala, voted in favour of the no-confidence motion. Respondents 1 to 3 neither supported LDF nor received the support of LDF. UDF is still in power in the Panchayat.

One of the findings of the State Election Commission in Exhibit P10 order is that, respondents 1 to 3 moved the no- confidence motion against their own party without the knowledge and consent of Congress Party or DCC President and the 1st respondent had also contested for the post of President against the official candidate of Congress Party and the 2nd and 3rd respondents supported him in that election. The above conduct of respondents 1 to 3 would abundantly prove that they have voluntarily given up their membership of the party. 

On the other issue of violation of whip, the Election Commission held that, going by Rule 4(1)(i) of the Rules, as amended by S.R.O.No.913/05, the party whip has to be read by the person elected by the Parliamentary Party by majority and on his refusal it has to be read by another member in the meeting of the elected members of that party. Admittedly the above procedure has not been followed in these cases. Even though, the appellant was elected as the Whip he had only given direction and did not read the whip given by the DCC President by convening the Parliamentary Party. So there is non-compliance of the above Rule and as such the second limb of Section 3(1)(a) in relation to violation of whip is not attracted in these cases.

As far as the finding of the State Election Commission that, after the no-confidence motion, the 1st respondent contested for the post of President against the official candidate of Congress Party and the 2nd and 3rd respondents supported him in that election is concerned, there is total lack of pleadings in this regard in Exhibits P3 to P5 Original Petitions. If that be so, no amount of evidence can be looked into upon a plea which was never put forward in Exhibits P3 to P5 Original Petitions. 

"In our view, the finding of the Election Commission that, after the no- confidence motion, 1st respondent contested for the post of President against the official candidate of Congress Party and 2nd and 3rd respondents supported him in that election, which would prove that respondents 1 to 3 have voluntarily given up their membership of the party cannot be sustained in the light of the pleadings in Exhibits P3 to P5 Original Petitions." The Court held.

"Our view in this regard finds support from the judgment in Chinnamma Varghese's case (supra) in which a Division Bench of this Court after a survey of the case law on the point and on an analysis of the provisions contained in the Act held that, incurring of the disqualification under any one of the contingencies depends upon the existence of a definite set of facts, which are required to be specifically pleaded before they are sought to be proved to establish the allegation of disqualification under the Act. Further, it is only the pleading in a legal proceeding that puts the opposite parties on notice of what is sought to be asserted against them and what are the rights or obligations sought to be enforced against them." Court Added.

"What constitute defection is deserting the political party and not deserting the leader of that political party. An act of a member expressing no confidence in the leader of the political party would not amount to voluntarily giving up of his membership of that political party. When a member expressed his no-confidence in the leader of the political party such act by itself would not amount to an act of floor crossing or political disloyalty.

The provisions under the Tenth Schedule of the Constitution and that under the Kerala Local Authorities (Prohibition of Defection) Act are intended to curb unprincipled and unethical political defection. In order to draw an inference that respondents 1 to 3 have voluntarily given up membership of the political party, there must be concrete proof that they have acted in defiance of any valid directions of the political party. The said giving up of membership should be established by positive, reliable and unequivocal evidence." Court Ruled.