"A Strict view must be adopted in defection matters to sustain citizens' faith in country's democratic setup": Kerala High Court

The Kerala High Court recently observed that in order to sustain the faith of the citizens in the democratic setup of conducting elections, and for retaining and sustaining the confidence of the citizens in the candidates elected by the electorate, a strict view is to be adopted in the matter of defection.

The division bench of Chief Justice S Manikumar and Justice Shaji P Chaly observed thus while upholding the order passed by a single-judge bench dismissing the writ petition filed challenging the decision of the Kerala State Election Commission, Thiruvananthapuram disqualifying one Sheeba George, an elected member of a ward in Keerampara Grama Panchayat.

Sheeba George moved an appeal before the division bench challenging the order passed by the single judge. Her counsel argued that the single judge bench erred in its decision while upholding the order of the State Election Commission as in the petition alleging her defection before the SEC, no sufficient pleadings were made.

The counsel submitted that the only contention raised in the petition before SEC, was that the appellant had joined a political party after her election as an independent candidate, however, no material had been produced to show that the said political party had accepted her as a member.

He contended that the single Judge failed to notice that ‘joining a political party’ is a question of fact and in an election matter leading to disqualification and disruption of representation of a ward in the Panchayat, strict pleadings and proof are mandatory.

The SEC had passed the order of her disqualification on a petition moved by one Mamachan Joseph alleging that Sheeba George had sworn a declaration in accordance with Rule 3(2)(c) of the Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000 affirming that she is the official candidate of CPI (M) (LDF), in spite of already making a declaration under Section 3(1)(c) of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 that she won the election as a candidate without any support of any political party or coalition.

The division bench held that the single Judge was right in dismissing the writ petition as the appellant had violated the provisions of the Kerala Local Authorities (Prohibition of Defection) Act, 1999, and the Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000.

Court said, "In our considered opinion, insofar as the law relating to defection in regard to the elected members of the local body is concerned, it is made with the intention of upholding the constitutional principles, the democratic setup and the rule of law prevailing in the country...It is with the said basic intention that the Act, 1999 and Rules, 2000 were brought into force".

Court highlighted that the Tenth Schedule of the Constitution was brought in to cure the evil of defection recognising the significant impact it has on the health of nation's democracy and the 91st Constitutional Amendment also strengthens this view that the law needed further strengthening in order to curb the evil of defection.

Keeping the same in mind, the court opined, "In our view, the said proposition would equally, or with more force apply to the laws relating to the defection in the local bodies".

Court referred to Apex Court's ruling in Jagjit Singh v. State of Haryana, (2006), wherein it was held that the word “join” in para 2 (2) of the Tenth Schedule deserves a strict interpretation, in view of serious consequences of disqualification flowing therefrom on an order that may be made by the speaker.

With the same view, the court held that the single Judge was right in dismissing the writ petition as the appellant had violated the provisions of the Act, 1999 and Rules, 2000.

Case Title: Sheeba George v The State Election Commission of Kerala & Ors.