Kerala High Court Issues Notice On Plea Challenging Constitutionality Of Kerala Local Bodies Prohibition Against Defection Act, 1999

The Kerala High Court has issued a notice on a Writ Petition challenging the constitutionality of the Kerala Local Bodies Prohibition against Defection Act, 1999.

The said Petition has been filed by Varghese Thomas, an elected representative of ward 33 of the Changanassery Municipality who was disqualified by an Order of the State Election Commission (SEC).

A Single Bench of Justice C.S. Dias on September 16, 2025, has admitted the case and issued notice to the State of Kerala and Kerala State Election Commission.

Senior Advocate S. Sanal Kumar appeared for the Petitioner, while Advocate Deepu Lal Mohan represented the Respondents.

The Petitioner had contested the General Election to the local authorities in the State of Kerala, held in 2020. As per the practice then, he was a candidate of the Indian National Congress (INC).

It has been claimed by the Petitioner that the finding of the SEC that he has committed defection in terms of the 1999 Act is totally unsustainable legally and factually. He contends that contrary to the Constitutional scheme, elections at the local body level in Kerala are contested along party lines and sometimes coalitions between parties are also formed.

As per the Petitioner, one Sandhya Manoj had independently contested and won the election as a councillor without being part of any party or coalition or backed by either. In the light of several allegations of corruption against Sandhya, a no-confidence motion was moved against the Chairperson of the Municipality, seeking her removal from office.

The Petition reads, “The concept of ‘defection’ is alien to the Constitutional framework and the Kerala Local Authorities (Prohibition of Defection) Act, 1999, under which the impugned disqualification order has been passed, is unconstitutional, arbitrary, and beyond the legislative competence of the State. Hence this Writ Petition (Civil) has been filed challenging the vires of the Kerala Local Authorities (Prohibition of Defection) Act, 1999, and the order of disqualification issued by the State Election Commission.”

It has been pointed out in the Petition that the Constitution of India provides an anti-defection regime only for Parliament and State Legislatures under the Tenth Schedule and no such regime is contemplated for local bodies under Parts IX and IXA, despite those Parts having been enacted after the Tenth Schedule.

“The deliberate omission reflects a constitutional intent to exclude Panchayats and Municipalities from anti-defection control”, it further states.

The Petitioner submits that as per Article 243F(1)(a), a person shall be disqualified for being chosen as, and for being, a member of a Panchayat if he is so disqualified under the Constitution or under any law made by the Legislature of the State and there is a similar provision in Article 243V(1)(a) for Municipalities.

“The phrase "any law made by the Legislature of the State" must be read with the constitutional scheme i.e. only under the powers vested on the State Legislature under Entry 5 of List 11. As per Entry 5, the State Legislature is empowered to enact legislations only with regard to the constitution, powers of, local bodies, for the purpose of local self-government. This does not cover laws against defection. Therefore, there is no constitutional mandate in Part IX or IXA for introducing defection at the local level. It effectively replicates a constitutional amendment (Tenth Schedule) at a lower level, which the State Legislature has no competence to do”, he contends.

The Petitioner further argues that local body elections are governed by the Kerala Panchayat Raj Act, 1994 and the Kerala Municipality Act, 1994 and neither statute recognises political coalitions nor provides for allotment of election symbols to such coalitions.

“The system of symbols and coalition-based politics at the local body level is without statutory authority, unlike elections under the Representation of People Act, 1951, where symbols are traceable to law. Recognition of coalitions and enforcement of "coalition discipline" is therefore wholly illegal”, states the Petition.

It has also been argued that since political parties are not recognized under the scheme of the 73rd and 74th Constitutional amendment and the Kerala Panchayat Raj Act 1994 and Kerala Municipality Act, 1994, the conferment of power to legitimize party politics in local bodies by allotment of symbols under Rule 12(1) of Kerala Municipality Conduct of Elections Rules 1995 and exercise of that power are both unconstitutional and at the same time suffers from the vice of substantive ultra-vires.

“The rationale for the Tenth Schedule at the Union and State level is to preserve stability of governments and prevent frequent elections. This rationale has no application to local self-government institutions, where the fall of a particular chairperson or president does not result in dissolution of the body or fresh elections. Importing "defection" into local bodies therefore lacks not only constitutional foundation but also practical justification. Hence this Writ petition (Civil)”, it urges.

The Petitioner further submits that the State Legislature is empowered to enact legislations only with regard to the Constitution, powers of, local bodies, for the purpose of local self-government and a law introducing disqualification on grounds of defection into the scheme of elections in such local bodies is completely outside the legislative competence of the State Legislature.

“… the Kerala Local Authorities (Prohibition of Defection) Act,1999, under which the impugned disqualification order has been passed, is unconstitutional, arbitrary, and beyond the legislative competence of the State. … Therefore, there is a constitutional right for all elected representatives to vote in council meetings. This is an absolute and unqualified right, While right to vote in Central and State Legislatures were restricted by Constitutional amendment introducing loth schedule and the anti-defection law, no such restriction has been placed by the Constitution on the right to vote of elected representatives of local bodies under Parts IX and IXA”, the Petition states.

It has been further contended that the law enacted by the State Legislature cannot run contrary to the Constitutionally guaranteed right to vote and the law can be enacted only under the powers vested on the State Legislature under Entry 5 of List 11.

“The intention of the Parliament to give an absolute right to vote for the elected representatives according to their conscience cannot be curtailed by whips, threats or dictates of persons who are not representatives of people and who operate from political party offices”, it also states.

The Petitioner urges that imposing party discipline and outside political control in such a context is not only without constitutional sanction, but also directly undermines the sovereignty of the people at the grassroots.

“A "will of a political leader from outside" cannot be permitted to override the democratic choice of the electorate and the conscience of their elected representatives. … Hence, the 1999 Act is arbitrary and ultra vires, because it imposes restrictions that the Constitution itself did not visualize”, the Petition concludes.

Cause Title- Varghese Thomas v. The State of Kerala and Others (Case Number: WP(C) 33894/2025)

Appearance:

Petitioner: Senior Advocate S. Sanal Kumar, Advocates Vishnu Jayapalan, T.J. Seema, Bhavana Velayudhan, and Anu Balakrishnan Nambiar.

Respondents: Advocates Deepu Lal Mohan, Jomy Joseph, and K.C. Vincent.