The Kerala High Court observed that once an individual is elected through a political party or alliance, the individual is expected to adhere to the party's principles and not act arbitrarily, as the voters elected them based on party affiliation.

The Bench of Justice P. V. Kunhikrishnan observed, “After getting elected by the people through a political party or political alliance, a person cannot give up the political party and political alliance and act in accordance with his whims and fancies because the people elected him through a political party or political alliance”.

Advocate Liji. J. Vadakedom appeared for the Petitioner and Advocate Aswini Sankar R. S appeared for the Respondents.

Two interrelated writ petitions were filed. In W.P.(C) No.1141/2024, the petitioner had been named as the respondent in O.P. No. 19/2023 before the Kerala State Election Commission (commission). The petitioner, holding membership in the Communist Party of India (CPI) and the Adimaly Grama Panchayat, faced accusations of defection for voting contrary to party instructions. The original petition seeking the petitioner's disqualification was accompanied by a request for condoning the delay, prompted by the withdrawal of similar petitions by other parties. Eventually, the delay was pardoned, leading to the initiation of W.P.(C) No.1141/2024.

The Bench emphasized that elected representatives have a duty to represent the will of their constituency's electorate and cannot change their political allegiance without obtaining a fresh mandate. The Court noted that this is a fundamental principle of democracy and warned against the tendency of some representatives to disregard it, equating such behaviour with corruption.

Additionally, the Bench observed that to address defection issues, the Kerala Local Authorities (Prohibition of Defection) Act, 1999 was enacted, allowing for the disqualification of defecting members. The Court outlined the process for disqualification petitions under this act and discusses scenarios where withdrawal of such petitions raises questions about the member's evasion of disqualification proceedings and the potential for others to file fresh petitions. These issues form the crux of the court's deliberations in the case.

The Court observed that C.D. Shaji and Sherly Mathew filed OP Nos. 11/2022 and 12/2022 to disqualify the petitioner before the State Election Commission within the stipulated time. However, their legal representatives informed the Election Commission that they were not pursuing these original petitions, resulting in their dismissal. Consequently, O.P. No. 18/2023 and O.P. No. 19/2023 were lodged, along with requests to excuse the delay. The reason for seeking the condonation of delay is detailed in the delay condonation petition. It's suggested to extract the pertinent paragraph from the affidavit filed with petition in W.P.(C.) No. 1141/2024.

The Court noted the application of Rule 4A(1) and Rule 4A(2) in the context of defection petitions. The Bench emphasized the importance of upholding the will of the electorate and preventing elected officials from abandoning their political affiliations arbitrarily.

"The intention of the defection law itself is to see that the will of the people is exhibited by the elected member till he/she again faces a mandate from the electorate", the Bench noted.

Furthermore, the Court noted that where original petitions to disqualify a member were withdrawn, potentially leaving the defection unaddressed due to time constraints. However, the Court noted that the Election Commission can still entertain another original petition if filed promptly after withdrawal, with a delay condonation petition to excuse the delay. This is seen as a sufficient cause under Rule 4A(2).

“Lord Acton, an English Catholic historian, politician, and writer said that, "Power tends to corrupt, and absolute power corrupts absolutely". The elected members of democracy should hear these words before they do anything. Their remote control is the electorate which includes poor cooly workers, daily wages workers, sweepers etc”, the Bench noted.

The Bench observed that the Election Commission was justified in condoning the delay in filing two original petitions (O.P. No. 18/23 and O.P. No.19/23). The judgment supported the State Election Commission's decision regarding these petitions. However, the Court noted that the Election Commission should proceed with deciding petitions without being influenced by any remarks made in this judgment.

Accordingly, the Court dismissed the Writ Petitions.

Cause Title: Sanitha Saji v Salimkumar (2024/KER/9634)


Petitioner(s): Advocates Liji. J. Vadakedom and Athul V. Vadakkedom

Respondents(s): Advocates Aswini Sankar R. S, Deepu Lal Mohan, P. Yadhu Kumar, K. R. Prathish, Megha S.

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