IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.S.R.BANNURMATH & THE HONOURABLE MR. JUSTICE KURIAN JOSEPH FRIDAY, THE 12TH JUNE 2009 / 22ND JYAISHTA 1931 WA.No. 1095 of 2009() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.14006/2009 Dated 25/05/2009 .................... APPELLANT: PETITIONER ------------------------- V.V.VARGHESE,AGED 53 YEARS,S/O.BABY, COUNCILLOR,WARD NO.1,ADOOR MUNICIPALITY,RESIDING AT VALLABHATHUM VILAYIL,MUTHRAPURAM,ADOOR, PATHANAMTHITTA DISTRICT. BY ADV. SRI.T.RAMPRASAD UNNI SRI.MANU TOM RESPONDENT(S): RESPONDENTS -------------------------- 1. THE KERALA STATE ELECTION COMMISSION, THIRUVANANTHAPURAM. 2. MRS ANNAMMA ABRAHAM,KANNAYIL LIJO VILLA, KARUVATTA, ADOOR.PO,PERINGANADU VILLAGE, PATHANAMTHITTA DISTRICT. ADV. SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM FOR R1 SRI.V.CHITAMBARESH, SENIOR ADVOCATE FOR R2 SRI.M.SREEKUMAR FOR R2 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 28/05/2009, ALONG WITH WA NO.1096 OF 2009, THE COURT ON 12/06/2009 DELIVERED THE FOLLOWING: S.R.BANNURMATH, C.J. & KURIAN JOSEPH,J. ------------------------------------------------- W.A.Nos.1095 & 1096 of 2009 -------------------------------------------------- Dated this the 12th day of June, 2009 JUDGMENT Kurian Joseph,J. Discipline decides destiny. This principle aptly applies to the democratically elected representatives of the people going for acrobatic exercises for power, position, money etc. betraying the democratic values. Disciplined democracy, though appear to be a contradiction in terms, is the need of the hour. There is no democracy without democratically disciplined conduct of the people and their representatives. Discipline is derived from the word 'Disciple', a person who believes in and follows a religious or political leader or philosophy. Loyalty is the hallmark of a disciple. Infidelity to the party is infidelity to the people. Restoration and restatement of democratic values seem to be the object behind enacting anti defection laws. Etymologically the word “democracy” has Greek origin, derived from two Greek words, 'demos' meaning people and 'kratos' meaning rule, strength. In Greece the reference to democracy is to the middle W.A.Nos.1095 & 1096 of 2009 -:2:- of the 5th/4th century BC, in Athens. However, democracy and democratic institutions have their roots in ancient India right from Vedic age (Circa 3000 - 1000 BC). 'Sabha' and 'Samiti' are two such democratic institutions referred at several places in Rigveda. Grama Panchayat was the cradle of domestic democracy. 'Panchayat' literally means 'Council of Five'. That too has its origin in ancient India. A village council of the residents of the village consisting of the elders known as Panchayat or Gramsangha performed administrative and judicial functions in the villages. Sometimes such Panchayats or Gramsanghas were manned by elected representatives also. There are references to Gramsanghas in Manusmriti, Kautilya's Arthashastra and Mahabharata. Valmiki's Ramayana speaks of the Ganapada, a federation of village republics. The membership in Ganapada was restricted to those persons who were committed to the general welfare of the people. It is pertinent and interesting to note that membership was specifically denied to 'durjana', people who are not interested in the welfare of others and people who do not possess good qualities in life. Thus it can be seen that the W.A.Nos.1095 & 1096 of 2009 -:3:- village panchayats manned by 'sajjana' had an unbroken continuity in India throughout her long history and that is the source and basis of democracy in this country. Democracy thus became one of the basic features of Indian constitution. The history of Indian democracy down from the Vedic ages would show that it was value based only. But whether in the present history are we in a position to be proud of such ethos and sacred and noble values in our democratic institutions? What is the role of the court as protector of the principles of democracy? These are some of the thoughts serving in the background while analysing the facts and law involved in the present case. 2. Appellants are the writ petitioners. They challenged Ext.P4 order dated 16-5-2009 passed by the Kerala State Election Commission under the provisions of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 on the ground that they had voluntarily given up their membership of the political party under whose banner they were elected as members of the Adoor Municipal Council. The learned single Judge dismissed the writ petitions and hence the writ appeals. W.A.Nos.1095 & 1096 of 2009 -:4:- 3. Short facts: The second respondent in the writ petition approached the Election Commission in O.P.Nos.77 and 78 of 2008 in order to disqualify the writ petitioners. The writ petitioners and the second respondent were elected to the Adoor Municipal Council during September, 2005. All the three were the official candidates of Indian National Congress, one of the constituents of United Democratic Front. The second respondent was elected as the Chair Person and one Sri.Tharayil Sasi, another member of the same political party, was elected as the Deputy Chairman. The rival political parties belonging to the Left Democratic Front moved a No Confidence Motion against the Chair Person, the second respondent. In the meeting convened for discussing the No Confidence Motion on 21-4-2008 the writ petitioners and Sri.Tharayil Sasi supported the motion. Thus, on the strength of the votes of the writ petitioners and the said Sasi, the motion was carried and the second respondent was unseated. 4. But in the subsequent election conducted to the post of Chair Person the second respondent was again nominated by the Indian National Congress party. The writ petitioner in W.P(C) W.A.Nos.1095 & 1096 of 2009 -:5:- No.14026/2009 contested against the second respondent and the petitioner in W.P(C) No.14006/2009 contested against the official nominee for the post of Deputy Chairman. The second respondent lost in the election and the writ petitioner in W.P(C) No.14026/2009, who originally belonged to the Indian National Congress, was elected as the Chair Person with support of the rival political parties. The second respondent filed a complaint before the Election Commission alleging that the writ petitioners had violated the whip and they had also voluntarily given up their membership in the political party. The Election Commission found that there was no evidence for issuance of the whip, but on facts it was proved that the writ petitioners had voluntarily given up their membership in the political party. The learned single Judge, finding no infirmity in the order of the Election Commission, dismissed the writ petitions and hence the writ appeals. 5. Sri.Ramakumar, learned Senior Counsel appearing for the appellants, contended that in the absence of whip, the writ petitioners only exercised their conscience vote and thus there is W.A.Nos.1095 & 1096 of 2009 -:6:- no disqualification. It is further contended that in the absence of any specific whip, it has to be inferred that the elected members were free to exercise their vote according to their free will. Still further, it is contended that the expression ‘voluntarily giving up’ is an abstract expression and in the modern democratic trends, in the absence of any specific direction from the designated person – whip, the elected member is absolutely free to act according to his own free will. It is submitted that the popular concept of ‘political morality’ has nothing to do with the Election Commission or the Court while deciding whether an elected member has become disqualified. A decision on the disqualification has to be taken on evidence which is positive, reliable and unequivocal as held by the Supreme Court in G.Viswanathan v. Speaker, Tamil Nadu Legislative Assembly, (1996) 2 SCC 353. 6. The learned Senior Counsel appearing for the party respondent in the appeals and also the learned Standing Counsel for the Election Commission, on the other hand, submit that the writ petitioners, by their conduct, have become disqualified in terms of Section 3(1)(a) of the Kerala Local Authorities W.A.Nos.1095 & 1096 of 2009 -:7:- (Prohibition of Defection) Act, 1999 since they have voluntarily given up their membership in the political party in whose banner they contested and won the election. 7. The Kerala Local Authorities (Prohibition of Defection) Act 1999 was brought out “to prohibit defection among members of local authorities in the State of Kerala and to provide for disqualification of the defecting members for being members of the local authorities”. Section 3 deals with disqualification on the ground of defection. Section 3(1)(a) reads as follows:- “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 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 W.A.Nos.1095 & 1096 of 2009 -:8:- authority authorized by it in this behalf in the manner prescribed, votes or abstains from voting. The expression ‘defection’ as such is not defined in the Act. Probably the expression does not require a definition since the concept is so plain. But the Legislature has left the disqualification to be decided on the defined conduct of the member. We are concerned with the conduct of voluntarily giving up membership in the political party. It is now settled law that in order to attract the disqualification on the ground of voluntary giving up membership in the political party, the elected member need not resign from the party. In Ravi S. Naik v. Union of India, AIR 1994 SC 1558 it was held that voluntarily giving up membership is not synonymous with resignation. Voluntary giving up membership has a wider meaning than resignation as observed by a Division Bench of this court in Shajahan v. Chathannoor Grama Panchayat, 2002(2) KLJ 451. In Ravi S.Naik’s case the apex court made it clear that “Even in the absence of a formal resignation from membership an W.A.Nos.1095 & 1096 of 2009 -:9:- 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”. In Rajendra Singh Rana v. Swami Prasad Maurya, (2007) 4 SCC 270 also the Supreme Court held that it is the conduct of the elected members that is to be looked into while considering whether an elected member has become disqualified on the ground of defection based on voluntary giving up membership in the political party. In G.Viswanathan v. Speaker, Tamil Nadu Legislative Assembly, (1996) 2 SCC 353 the apex Court held that “the Act of voluntary giving up the membership of the political party may be either express or implied”. In Faisal v. Abdulla Kunhi, 2008 (3) KLT 534 a learned single Judge of this court has taken the view that the expression “voluntarily giving up membership of his political party” is not to be equated with ceasing to be a member of his party by express resignation; it is to be inferred from the conduct of the member. It was also held therein that the relevant date for deciding the question of disqualification is the date on which the member voluntarily gives up the membership. W.A.Nos.1095 & 1096 of 2009 -:10:- 8. However, placing heavy reliance on another Single Bench decision in Nazeera Beevi v. State Election Commission, 2004 (1) KLT 1108, the learned Senior Counsel for the appellants would contend that every objectionable conduct does not automatically lead to the inference of voluntarily leaving the political party. In the above case a few members of a political party decided to form a separate group in the “parliamentary party” of that political party and that was informed to the Secretary of the Grama Panchayat. It was in that context the learned single Judge took the view that “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 voluntary leaving of the membership in the political party. Leaving the parliamentary party may be a circumstance, which may indicate that the incumbent has left the political party”. It is to be noted that the letter of the group was dated 8-1-2003 and the No Confidence Motion was on 13-1-2003. The members who had decided to sit as a separate block had voted in favour of the no confidence W.A.Nos.1095 & 1096 of 2009 -:11:- motion moved by the rival political parties and thereafter those members had been removed from the primary membership of the political party on 18-1-2003. The petitions for disqualification was filed on 24-1-2003 before the State Election Commission. A subsequent election to the posts of President and Vice President of the Panchayat was held on 7-2-2003, wherein the aforementioned members were elected as the President and the Vice President with the support of the rival political parties. It appears the learned single Judge had omitted to take note of the fact that the conduct of the revolting members was not the letter given to the Secretary to the Grama Panchayat to form a separate block; those members had in fact supported the no confidence motion moved by the rival political parties. Thus the inevitably inferential conduct was the shifting of loyalty. Loyalty to the party is the norm. To vote against the party is disloyalty. It was this principle as stated in Griffith and Ryle on Parliamentary Functions, Practice and Procedure which was taken note of by the Supreme Court in the celebrated decision in Kohoto Hollohan v. Zachillhu, 1992 Supp. (2) SCC 651. The W.A.Nos.1095 & 1096 of 2009 -:12:- apex court held that “any freedom of its members to vote as they please independently of the political party’s declared policies will not only embarrass its public image and popularity but also undermine public confidence in it which, in the ultimate analysis, is its source of sustenance – nay, indeed, its very survival.” Referring to the object behind the 10th Schedule to the Costitution of India dealing with disqualification on the ground of defection, it was held therein that, “the provision is to curb the evil of political defection motivated by lure of office or other similar considerations which endanger the foundations of our democracy. The only remedy would be to disqualify the member…” The Father of our Nation had foreseen the possibility of such cancerous and endangering tendencies in the practice of democracy and hence only the Mahatma said that politics without principle is a vice. No doubt politics is an art. But the beauty of the art is lost when no value is attached to the art. It is to check erosion of the values in democracy the 10th Schedule to the Constitution of India and the Kerala Local Authorities (Prohibition of Defection) Act, 1999 were brought into force. Looking from W.A.Nos.1095 & 1096 of 2009 -:13:- that angle we find it difficult to agree with the dictum in Naseera Beevi’s case. Not only that, there is no party as ‘parliamentary party’. That expression only denotes the wing of the elected members of the political party. Therefore, if a member or a group of the elected members of the political party takes a different stand from that of the political party as such, and acts against the policies of the political party in which they are members, it is nothing but disloyalty. The moment one becomes disloyal by his conduct to the political party, the inevitable inference is that he has voluntarily given up his membership. In Naseera Beevi’s case the rebel group in the parliamentary wing of the political party concerned had not only formed a separate group, but they had voted in favour of the no confidence motion moved by the rival political party. Thus, by their conduct of being disloyal to the political party in which they were members and by voting as they pleased independent of the political party’s declared policy, they had incurred the disqualification. In view of both factual and legal position as above, the dictum laid in Naseera Beevi’s case that leaving the parliamentary party and W.A.Nos.1095 & 1096 of 2009 -:14:- exercising the right to vote according to the choice of the elected member would not attract the disqualification on the ground of voluntarily giving up membership in the political party is not good law. Hence the same is overruled. We also take note of the fact that the judgment of the single Judge in Naseera Beevi’s case had been set aside by the Division Bench by judgment dated 13-7-2005 in W.A.No.1127/2004, though on a different ground. 9. The learned Senior Counsel Sri.Ramakumar contends that in modern democracy the elected member is free to vote according to his conscience, in the absence of a specific whip, particularly in view of the modern trends in democracy – intra party groups. We are afraid, the court will not be justified in taking judicial notice of such developments and in re-writing the law. The court shall only analyse the facts and decide the case in accordance with law and upholding the spirit of laws. The law, as it stands now, is unambiguously clear that one has to be loyal to his political party. The situation would be different if the political party itself, taking note of such strange realities, permits the elected members to cast conscience vote. In such situations W.A.Nos.1095 & 1096 of 2009 -:15:- the whip itself is for decision by the individual concerned according to his conscience. The Oxford dictionary defines conscience to mean “the part of your mind that tells you whether your actions are right or wrong”. In the absence of a specific whip for conscience vote, an elected member, under law, is entitled and liable to cast only a conscious vote, being aware of the consequences of his decision, in terms of Section 3 of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 on disqualification on the ground of defection on account of voluntarily giving up membership in the political party. Conscience vote is hence a matter of express whip in the absence of which an elected member is bound by the policies of his political party and he can cast only a conscious vote. That is nothing but an expected expression of his obligation to the political party and responsiveness to the people, by doing things carefully and correctly and if not the conduct would amount to betrayal of the political conscience which is impermissible under law. According to Harry S.Truman “Democracy is based on the conviction that man has the moral and intellectual capacity, as W.A.Nos.1095 & 1096 of 2009 -:16:- well as the inalienable right, to govern himself with reason and justice”. The reason and justice are the two mandates of the conscious vote under Section 3 of the Act. There is no case that the political party in which they belonged had given them the whip to vote according to their conscience. 10. Indisputably the writ appellants, who were elected to the Municipal Council as official candidates of the Indian National Congress and having continued so in the Council, have voted in favour of the no confidence motion moved by the rival political parties on 21-4-2008 and by the said conduct they had incurred the disqualification of voluntarily giving up membership in the political party. Though Sri.Ramakumar, inviting reference to Annexure A minutes of a meeting dated 12-5-2008, canvassed the position that the political party had tried to own up the writ petitioners, the fact remains that on 24-1-2008 on account of the disloyalty and conduct against the policy of the political party, the writ petitioners had already incurred the disqualification on the ground of defection. Subsequent change of heart and remorseful conduct of the member or the reconciliatory attitude of the W.A.Nos.1095 & 1096 of 2009 -:17:- political party cannot repair or undo the damage caused by the disloyal conduct leading to the disqualification. Such steps are to be reassessed by the people, given another choice to contest. Thus we see no merit in the writ appeals. They are accordingly dismissed. S.R.BANNURMATH, Chief Justice KURIAN JOSEPH, Judge ahg. S.R.BANNURMATH, C.J. & KURIAN JOSEPH,J. --------------------------- W.A.Nos.1095 & 1096 of 2009 ---------------------------- JUDGMENT 12th June, 2009