Kerala High Court calls for financial penalty on defecting politicians, changes to anti-defection law

Taking note of increasing defection from political parties despite the existence of anti-defection laws, the Kerala High Court recently expressed its hope that a law would be enacted imposing financial penalties on defectors. [Deepak K v Kerala State Election Commission & Ors.].Political defection, in general parlance, means joining a political party other than the one under whose banner a person stood and got elected.It is a bane to democracy and current anti-defection laws have not been effective in curbing the practice, Justice Bechu Kurian Thomas said."The conduct of political defection betrays not only the party under whose ticket the candidate contested the elections but also the will of the people who elected the candidate ... Wriggling out of the evil of anti-defection law on technicalities, despite changing sides after the election, erodes the efficiency of the law enacted. Such attempts will be to the peril of democracy itself. Ingenious methods adopted by the defectors to overcome the rigour of anti-defection law must be dealt with sternly, as otherwise, the purpose of the statute itself could be destroyed," the Court observed..It noted that while the defecting politician is disqualified, they face no other significant repercussion. On the other hand, the exchequer is burdened with financing a bye-election. The Court, therefore, suggested that the legislature look into including financial penalties in the anti-defection law. "Considering the entire scenario, this Court has a wishful thinking that the time has come to contemplate on including stringent financial penalties for acts of defection. Unless a monetary pinch is felt by the defector, the evil acts that are sought to be remedied by the anti-defection law will continue. However, as it is a matter that requires a legislative exercise, this Court fervently hopes that the legislature will bestow its consideration earnestly", the Court said. .Political defection betrays not only the party under whose ticket the candidate contested the elections but also the will of the people.Kerala High Court.These observations were made while considering two petitions challenging an order of the Kerala State Election Commission that refused to disqualify Mathew Joseph, a member of the Thodupuzha Municipal Council who was elected to the Council in 2020.The case has its genesis in the split of political Kerala Congress (M) [KCM], into two factions - KCM led by Jose K Mani and the KCM PJ Joseph Group [KCMPJJ], led by PJ Joseph. Pursuant to an order of the Election Commission and of the High Court Court, KCM was given the symbol 'two leaves' while KCMPJJ was given the symbol 'chenda’ (drum). Pertinently, the KCM was part of the Left Democratic Front, while KCMPJJ was part of the United Democratic Front coalition. The allegation against Mathew Joseph was that he contested and won the election as a member of KPMJJ but after getting elected, he voluntarily gave up his membership with KCMPJJ and joined the KCM. This ought to have resulted in his disqualification under Section 3A of the Kerala Local Authorities (Prohibition of Defection) Act, 1999, the petitioners contended.However, Joseph contended that the KCMPJJ is not a registered political party as defined by the Representation of Peoples Act. Rather, he argued that it is, at the most, only a splinter group. The provisions of defection will apply only when a person gives up membership in a registered political party, he submitted. .The Court, however, failed to find merit in any of Joseph's contentions.It noted that the definition of "political party" under the Act is not inflexible and with the purpose of the anti-defection law in mind, the Court held that KPMPJJ ought to be treated as a "political party" for the purpose of the elections held to the Kerala local body in the year 2020.From the facts of the case and the deposition of Joseph himself, the Court concluded that he was liable to be disqualified on the ground of defection.Therefore, the Court set aside the order of the Kerala State Election Commission and declared that Mathew Joseph was disqualified from being a member of the Thodupuzha Municipal Council..The petitioners were represented by advocates Manoj P Kunjachan and KC Vincent. Joseph was represented by advocate P Deepak.The State Election Commission was represented by standing counsel Deepu Lal Mohan..[Read Judgment]