Protest & Police Actions Are Tools Of Society And Establishment Respectively: SC In Kerala Panchayat Election Dispute

The Supreme Court in an appeal filed by an election candidate of Kerala Gram Panchayat held that as the strike is a weapon of workmen and lock-out is a weapon of the employer, in a similar way, a protest is a tool of civil society and police action is a tool of the Establishment.

The Bench consisting of Justice S. Abdul Nazeer and Justice V. Ramasubramanian while allowing the appeal of the appellant whose election was declared as void held –

"Just as strike is a weapon in the hands of the workmen and lock-out is a weapon in the hands of the employer under Labour Welfare legislations, protest is a tool in the hands of the civil society and police action is a tool in the hands of the Establishment. All State enactments such as Kerala Police Act, Madras Police Act etc., are aimed at better regulation of the police force and they do not create substantive offences. This is why these Acts themselves empower the police to issue necessary directions for the maintenance of law and order and the violation of any of those directions is made a punishable offence under these Acts."

Advocate Ragenth Basant appeared for the appellant while Senior Advocate P.V. Surendranath represented the respondent.

Facts of the Case –

On November 5, 2015, elections in Annamanada Gram Panchayath were held. Apart from others, the appellant and respondent contested from Ward No.5. After two days, the appellant was declared as having been elected from Ward No.5. On December 4, 2015, the respondent filed an Election Petition before the District Munsif Court, challenging the election of the appellant. The Election Petition was dismissed by the District Munsif Court on the ground that there was no prayer in the Election Petition to declare the election of the appellant as void, on the grounds stipulated in Section 102 of the Kerala Panchayat Raj Act.

The respondent thereafter filed an appeal in the Court of the Additional District Judge being aggrieved by the dismissal of the Election Petition. The appeal was allowed by a Judgment in the year 2018 and the election of the appellant was declared as void on the ground that the appellant suppressed in his nomination form, his involvement in a criminal case and that he had committed a corrupt practice. The appellant therefore, filed a revision petition before the High Court being aggrieved by the judgment of the District Court. The Revision Petition got dismissed by an Order. The appellant filed a petition for review, but the same was also dismissed by the High Court.

Hence, the appellant filed an appeal before the Apex Court challenging the order passed in the Revision Petition and the order passed in the Review Petition.

The issue dealt with by the Court was -

Whether the non-disclosure of the conviction for such offences would also come within the purview of Section 102(1)(ca) of the Kerala Panchayat Raj (Amendment) Act, 2005.

The Court while considering the above issue observed –

"As we have seen from the way in which the law developed from the decision in Association for Democratic Reforms (supra), the primary object of compelling the disclosure of criminal antecedents of candidates contesting the elections, is to decriminalize politics and to make the voters aware of the choice that they have. This is why this Court was very careful in formulating the principles of law, in paragraph 94 of the decision in Krishnamoorthy (supra)."

The Court noted, "Kerala Police Act, 1960 is actually the successor legislation of certain police enactments of the colonial era, whose object was to scuttle the democratic aspirations of the indigenous population. This aspect should be kept in mind before applying blindfold, the principle 'what is sauce for the goose is sauce for the gander"

The Court further noted that the failure of a candidate to disclose his conviction for an offence under the Kerala Police Act, 1960 for holding a dharna in front of the Panchayat office cannot be a ground for declaring his election void under Kerala Panchayati Raj Act.

The Supreme Court at last concluded and held –

"Therefore, we are of the considered view that the District Court and the High Court were wrong in declaring the election of the appellant to be void on the ground that the failure of the appellant to disclose in Form 2A, his conviction under the Kerala Police Act amounted to 'undue influence on the free exercise of the electoral right' and also a violation of Section 52(1A) read with Section 102(1) (ca) of the Kerala Panchayat Raj Act."

Accordingly, the Court allowed the appeals, set aside the orders, and dismissed the Election Petition filed by the respondent.

Cause Title – Ravi Namboothiri v. K.A. Baiju & Ors.

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