Defection A Menace To Democracy, Stringent Financial Penalties Needed Against Defectors : Kerala High Court

Title: Deepak K. v The Kerala State Election Commission & connected case

Decided on: 06.11.2023

Citation: WP(C) NO. 15253 OF 2023 and WP(C) NO. 15289 OF 2023

Coram: Justice Bechu Kurian Thomas


The Kerala High Court has ruled that defection poses a significant threat to Indian representative democracy, and the current laws in place have not been successful in effectively preventing defection. Justice Bechu Kurian Thomas pointed out that despite the anti-defection laws in existence, many individuals continue to engage in acts of defection. Considering the limitations of the orders that can be issued against defectors under the current laws, Justice Thomas has determined that imposing substantial financial penalties is necessary. The court emphasized that only financial penalties will have a substantial impact on defectors and discourage them from engaging in acts of defection.

Facts of the case:

The 2nd respondent, an elected member of the Thodupuzha Municipal Council, was accused of defection by voluntarily relinquishing the party’s membership under which he had been elected. The petitioners, who were also elected members of the Thodupuzha Municipal Council, lodged complaints with the State Election Commission, asserting that the 2nd respondent had become disqualified due to defection. The allegation was that the 2nd respondent had been elected as a member of the Kerala Congress (M) P.J. Joseph [KCMPJJ] within the UDF coalition. Both the petitioners and the 2nd respondent were part of the UDF coalition. It was claimed that after winning the election, the 2nd respondent abandoned his membership in KCMPJJ and joined the Kerala Congress (M) [KCM], which was part of the LDF coalition. KCM was a constituent of the LDF group, which included CPI, CPM, and KCM. KCMPJJ was a component of the UDF group, which included the Indian National Congress and KCMPJJ. The main issue before the Court was to determine whether the elected candidate had engaged in defection by relinquishing the party’s membership under which he had contested and won the election.

Court’s observation and analysis:

The Court emphasized that the anti-defection law was established to prevent political defection, which posed a threat to democracy due to members switching parties. Defection, in this context, referred to a member joining a different political party than the one they represented during their election. Such actions not only betrayed the party under whose banner the candidate was elected but also the voters who supported them. Elected officials were chosen by the public based on the promises and ideology of the party they represented. The Court stressed that circumventing anti-defection laws on technical grounds would undermine the law’s purpose and democracy.

The Court pointed out that candidates from KCMPJJ were allowed to contest the election using the’’chenda’ symbol, and both the public and candidates treated KCMPJJ as a political party during the 2020 Local Self-Government Institutions elections. The Court noted that Section 2(xi) of the Act defined a political party as a registered political party under the Representation of the People Act, 1954. It argued that the statute should not be interpreted too rigidly if the law’s purpose can be achieved without distorting the statute’s language and aligning with the general concept of the defined term. Thus, KCMJJ should be regarded as a political party for the 2020 elections held by the Kerala Local authorities.

Section 3 of the Act outlines the conditions for disqualification based on defection. The election petitions were filed under Section 3(1)(a) and (b), which deal with the disqualification of a member of a political party and an independent member of a coalition, respectively. In this case, Section 3(1)(b) did not apply to the 2nd respondent as he was not an independent member of the coalition.

Section 3(1)(a) of the Act specifies that defection occurs when a person belonging to a political party and serving as a member of the local authority either (1) voluntarily gives up their membership in the political party or (2) goes against any written directives from the political party by voting or abstaining from voting in specific circumstances. On the other hand, Section 3(1)(b) of the Act pertains to disqualification incurred when (1) an independent member of a coalition withdraws from the coalition, (2) joins another party, or (3) votes or abstains from voting contrary to the coalition’s directives.

The Court observed that the 2nd respondent contested the election as a member of the political party KCMPJJ, symbolized by ‘Chenda,’ which was part of the UDF coalition. He was elected as a member of Thodupuzha Municipality within the UDF coalition. The Court noted from the evidence that the 2nd respondent had left the UDF and joined the LDF, actively working for the LDF and voting against the UDF’s views in the Municipal Council meeting. Consequently, the 2nd respondent’s conduct qualified for disqualification under the Act, as he had voluntarily given up his membership in KCMPJJ, under whose banner he had contested and won the elections.

Based on these considerations, the Court concluded that the 2nd respondent had indeed defected and should be disqualified.

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Written by- Amrita Rout

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