Dr Satya Dev Gupta
A historical judgment has been passed by the Hon’ble High Court of Kerala on 19th November 2020 and slammed defection of elected candidates as an act of alien to democracy and is immoral. A Division Bench of the Chief Justice and Justice Shaji P Chaly issued the order while a plea was filed by Varghese KV, chairman of Thiruvalla Municipality, challenging his disqualification. Kerala High Court observed that defection and disloyalty of elected candidate are nothing but an antithesis and alien concept to the democratic form of governance apart from being an immoral and unprincipled act.
” A candidate of a political party elected to any statutory institution shall always bear in mind that his political appeal activities vis-a-vis his functions in the institution are regulated and guided by the laws of his party also, and his continuance as a member depends upon his continued unflinching loyalty to his party,”
Mr. Varghese, the chairman of Thiruvalla Municipality defied the directive of the District President of his party i.e. Indian National Congress, under whose banner he was elected as councilor of ThiruvallaMunicipality, to step down from the chairmanship. The Division Bench not only dismissed the petition of Mr. Varghese but also banned him for fighting the election for any Local Self Government Institution for a period of 6 years, although the single bench had upheld the order.
The Bench held that all elected candidates owing allegiance to their respective political groups are bound to subscribe to such views and translate it in the real spirit to sustain the coalition formed before the election, which is a significant facet of democracy, required to balance the activities of those in power and make their governance citizens-friendly adhering strictly to Constitutional values.
On the same day, I.e. 19th November 2020 Kerala High Court in another judgment passed by Justice A MuhamedMustaque after considering a petition ( WP-C No.13002/2017 ) filed by K Sivadasan of Koduvally in Kozhikode through advocate TR Harikumar, directing the Kerala State Election Commission to obtain a declaration from the candidate about the coalition to which they are affiliated to before the election.
Sivadasan, the petitioner, had won from ward number 28 of Koduvally Municipality as an independent candidate defeating “Palm” symbol candidate of named CM Gopalan, nominated by district Congress leadership. UDF coalition of the municipal committee had supported Sivadasan. After winning Sivadasan declared that he is an independent member belonging to the UDF coalition. A rival party member moved an election petition alleging that Sivadasan, who was elected as an independent member, has defected to the coalition and the Election Commission disqualified Sivadasan under Defection Act.
While setting aside Sivadasan’s disqualification, the court said ” Anti-defection law is in a natural of punishment depriving one’s status as a member and to debar him from contesting future elections. Therefore, one cannot be punished on account of a lack of clarity and shortcomings in the law. It will be a great injustice to deprive a person, who declared himself as loyal to the coalition, by stretching the meaning of “coalition” out of the context of anti-defection law, that too at the hands of a rival political party member. ”
The present election rules are not strong enough and have ambiguities. To stop the defections the court issued such a directive after noting that the present law does not allow for recording the coalition to which a candidate belongs, before the election a party loyalist who competes as an independent candidate will be punished as per anti-defection law when he joins his party coalition after winning, the court noted.
The high level of political leadership while drafting the rules for local bodies are very strict in doing so. Looking at Kerala Local Bodies, Act framed in 1999. These acts are so stern, severe, and harsh that even independently elected candidates will lose their memberships of the concerned “Local Bodies” if they support a political coalition or party with whom they were not in agreement before the elections. At Parliament and State Assembly level, there is a paradox. Maharashtra, Karnataka State elections are glaring examples of defection. Two political parties, BJP and Shiv Sena with similar ideology had made a pre-pole coalition for fighting the election in Maharashtra and after the declaration of the result of the assembly, the pre-election alliance commitments vanished like a highly volatile liquid. In Karnataka, three major political parties, BJP, Congress, and JDS were at daggers drawn in the pre- poll period but after the election, the political scenarios changed noticed. In Jammu and Kashmir, in the 2015 election two rival political parties, PDP, and BJP made a coalition to rule. Hon’ble High Court of Kerala indicated this practice as alien to democracy, immoral, anti-democratic, and anti people. Is it not a betrayal to the people who elect their representatives on a party basis, the ability of candidates, and ideology-based grounds? When the rules for Local bodies election are made relevant in the people’s favour why State Assembly and Parliament are so vague?
Hon’ble High Court comments defection as an antithesis to the essence of democracy and directs the lawmakers to design some strategy towards the election reforms. The constitution of India states ” By the People, For the People and Of the people”. The defection and mass defection spoil the very spirit of governance by democratic values. Pre-poll alliance of coalition shouldn’t be breached, and if on circumstantial grounds some changes are mandatory, then the political party or coalition should declare their agenda and plan and then go to the people to seek the fresh mandate on the policies projected in due course of time. All political parties, groups, and coalitions should ponder upon the reforms in the election process and especially on anti-defection law.
On 26th of November 2020 in Kevadia while celebrating constitutional day, the Prime Minister Narendra Modi on video conference in 80th concluding session of All India Presiding Officers and pitched ” One Nation, One Election” and a single voter list for all polls, Parliament, State Assembly, and other bodies and asked the Presiding Officers to apply their minds to simplify the language of statues books and allow the easier process to weed out the redundant law. To prevent the effect of model code of conduct on the development work frequently whenever elections are held, the Government is interested in taking the due steps to simplify the election process and taking a leaf from the recent judgments by Kerala High Court the steps for uplifting the democratic values shall be paved.
(The author is Ex-Head of Intensive Care Unit & Department of anesthesia Government Medical College Jammu.)
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