While upholding the findings of the Election Commission on the issue of disqualification of the first Respondent for violation of direction in writing/whip, the Kerala High Court held that the Election Commission (second Respondent) ought to have considered and adjudicated the issue raised by the Petitioner as regards the disqualification of the first Respondent on the ground of voluntarily giving up membership.

After analyzing the statutory provision enacted as a deeming provision by way of Explanation to Section 2(ii) of the of the Kerala Local Authorities (Prohibition of Defection) Act, 1999, a Single Judge Bench of Justice N. Nagaresh observed that “a member though has no formal membership in a political party, can be still treated as a member of the party in order to apply Section 3(a) of the Act, 1999 and the reason or consideration of the member for contesting as a party candidate is irrelevant”.

Senior Advocate S. Sreekumar appeared for Petitioner, whereas, Advocate Nanda Gopal S. Kurup appeared for the Respondent.

In a brief background, it was the case of the Petitioner that he and the first Respondent were official candidates of the INC and after getting elected, they filed a Form-2 showing allegiance to the INC. Thereafter, Alappuzha District Congress Committee gave direction in writing/whip to the members of the INC directing them to attend the meeting and to vote in favour of Radhamani Saseendran. However, the first Respondent did not do so, and rather he voted in favour of LDF candidate and got himself elected as Vice President with the support of the rival LDF party. The Petitioner challenged this before the State Election Commission of Kerala, for declaring the Respondent as disqualified on ground of not acting in accordance with the whip and also on the ground of voluntarily giving up membership. The Election Commission after examining the Whip order, found them to be contradictory and declared the whip as invalid. (para25)

After considering the representations, the High Court upheld those findings of the Election Commission on the issue of disqualification for violation of the whip.

However, with respect to the submission made by the counsel for Respondent that the Petitioner did not raise the ground of voluntary giving up membership before it, the High Court clarified that the issue was in fact raised by the Petitioner before the Commission and evidence was also given.

From a perusal of the OP filed by the Petitioner and the Objection filed by the first Respondent before the Election Commission, the Bench observed that the first Respondent was very much aware of the pleadings and evidence adduced by the Petitioner.

Hence, the Bench observed that the Election Commission should have considered the issue of ‘voluntarily giving up membership’ as a ground of disqualification raised by the Petitioner and also should have adjudicated upon the same.

Accordingly, the High Court disposed of the petition while remitting back the OP to the Election Commission for adjudication on the issue of disqualification of the on ground of voluntarily giving up membership.

Cause title: Sujith Sreerengum v. Sunil Sradheyam and Anr.

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