S.R. Bannurmath, C.J.
1. Challenging the judgment of the learned Single Judge confirming the disqualification of the writ petitioner affirming the order of the Election Commission, the present appeal is filed. The petitioner was elected as Councilor of the Kottayam Municipality with the membership of Indian National Congress. Respondent No. 1 herein filed O.P.41 of 2007 in the year 2007 before the Kerala State Election Commission seeking declaration that the appellant is disqualified to continue as Councilor since she has committed defection. It was contented that after the election to the Municipality, the Parliamentary Party of the Congress, the District Parliamentary Board of Congress had made arrangements and entered into an understanding in the matter of the office of the chairperson, taking into account the views expressed by the elected Councilors about sharing of offices of the Municipality for specific period and the first term was allotted to the appellant and she was elected as the Chairperson, as a candidate sponsored by the Congress and UDF, which is a coalition. It is alleged that after the election as the Chairperson, the appellant acted according to her whims and fancies ignoring the political party and Parliamentary Party mandates, directions and resulting in several problems in the party as well as in the day today administration of the Municipality. As such considering these actions, the parliamentary party convened a meeting on 02-12-2006 and elected respondent No. 1 as the whip of the party and thereafter a meeting was convened on 12-05- 2007 with notice to all members, including the appellant herein, and the meeting unanimously authorized respondent No. 1 to issue Whip to all Councilors in all votings and it was communicated to the Secretary on 19-05-2007.
2. It is further alleged that at the end of the allotted term of 1= years, as per the understanding between the parties, as the appellant was reluctant to resign from the office and make way for the new Chairperson, the District President of the party issued a direction in writing to the appellant on 12-05-2007 to resign from the post of Chairperson within five days, which she, allegedly refused to comply. Following this, the parliamentary party unanimously decided to move a no-confidence motion against the appellant on the ground of her disloyalty to the party. As such a no-confidence motion was convened on 06-06-2007 and in this regard the first respondent is stated to have issued a whip to the party members directing the party Councilors to vote in favour of the no-confidence motion. It is alleged that in spite of receipt of such notice well in advance not only the appellant abstained herself from attending/voting, but also she misguided other four Councilors and instructed them to disobey the party. The no confidence motion was defeated. The conduct of the appellants disqualified them to continue as members of the Municipality and they voluntarily given up their membership. The Election Commission accepted the contentions after assessing the evidence placed before it and affirmed the disqualification incurred. As such the aggrieved persons approached this Court in three writ petitions. As already noted the learned Single Judge, agreeing with the order of the Election Commission, rejected the contentions of the appellants and hence the present three writ appeals.
3. Since the question raised in these three writ appeals are common, all are taken up together and being disposed of by this common judgment.
4. In so far as the question as to whether whip was issued or not has been considered in detail by the Election Commission as well as by the learned Single Judge and here in favour of the appellants. We do not intend to go into that question, since prima facie we are also satisfied on that aspect. However, the question before us is:
(1) Whether the appellants incurred disqualification in terms of Section 3(1)(a) of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 (hereinafter referred as 'Act').
(2) Whether the appellants belonging to a political party voluntarily gave up their membership of such political party.
5. The learned Counsel for the appellants vehemently contended that as the appellants had not tendered their resignation and continued to be with the party, there was no question of incurring disqualification under Clause (a) of Section 3(1) of the Act. It is submitted that so far as the appellant in W.A. No. 1774/09 is concerned, the fact against her is only that she did not attend the no-confidence motion on 06-06-2007 and in respect of the others though they attended the meeting did not cast their vote. It is submitted that these conducts of the appellants do not by any stretch of imagination amount to designation from the membership of the party or voluntarily giving up of party membership.
6. The question as to when a person has voluntarily given up his membership was considered by the apex court in the case of Ravi S. Naik v. Union of India and Ors. : 1994 Supp (2) SCC 641. Para 11 of the judgment reads thus:
This appeal has been filed by Bandekar and Chopdekar who were elected to the Goa Legislative Assembly under the ticket of MGP. They have been disqualified from membership of the Assembly under order of the Speaker dated December 13, 1992 on the ground of defection under paragraph 2(1)(a) and 2(1)(b) of the Tenth Schedule. From the judgment of the High Court it appears that disqualification on the ground of paragraph 2(1)(b) was not pressed on behalf of the contesting respondent and disqualification was sought on the ground of paragraph 2(1)(a) only. The said paragraph provides for disqualification of a member of a House belonging to a political party 'if he has voluntarily given up his membership of such political party'. The words 'voluntarily given up his membership' are not synonymous with 'resignation' and have a wider connotation. A person may voluntarily give up his membership of a political party even though he has not tendered his resignation from the membership of that party. Even in the absence of a formal resignation from membership an interference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs.
7. It is observed by the Apex Court that if a person by his own volition joins another political party, he must be taken to have acquired the membership of another political party by abandoning the political party to which he belonged. In G. Viswanathan v. Hon'ble Speaker Tamil Nadu Legislative Assembly, Madras and Anr. reported in : (1996) 2 SCC 353, the apex court further observed that the act of voluntary giving up the membership of the political party may be either express or implied. In Kohoto Hollohan v. Zachillhu : 1992 Supp (2) SCC 651, it is observed that '...the provisions of the act are to curb the evil of political defection motivated by lure of office or other similar considerations which endanger the foundations of our democracy. The only remedy would be to disqualify the member.'.
8. Similar question was before this Court in the case of G. Dharma Mani v. Parassala Block Panchayat in W.A. No. 795 of 2009, dated 6th April 2009 and placing reliance on the aforesaid apex court judgments this Court dismissed the appeals. In another case by the Division Bench of this Court reported in Varghese v. Kerala State Election Commission 2009 (3) KLT 1 it was further observed thus: Conscience means the part of your mind that tells you whether your actions are right or wrong. In the absence of a specific whip for conscience vote, an elected member, under law is entitled and liable to cast only a conscious vote, being aware of the consequences of his decision, in terms of Section 3 of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 on disqualification on the ground of defection on account of voluntarily giving up membership in the political party. Conscience vote is hence a matter of express whip in the absence of which an elected member is bound by the policies of his political party.
9. Keeping in view these pronouncements when we analyze the facts and circumstances of the present case, it is clear that acting in violation of the instructions of the political party alone is sufficient to hold that the appellant has voluntarily given up the membership from the party. This is nothing but giving up her membership voluntarily. Similarly, in respect of other members, though they pretended to attend the meeting, their abstinence from voting is nothing but betrayal of the collective decision of the political party to which they belonged. If one considers all these aspects in sequence and cumulative only inference that can be drawn is that the appellants had abandoned the party directions and decisions and thereby their conduct amounted to voluntary giving up the membership. Both the Election Commission as well as the learned Single Judge had considered these aspects in detail and even after re-assessment of the entire materials, we do not find any ground to differ from the views taken by the two authorities.
Writ appeals are devoid of merits and are dismissed.