Sabu Steephen vs State Election Commission & Ors.

Soumen Sen, C.J.

In the writ petition, the petitioner claims himself to be essentially an activist appearing in person. The petitioner-in-person has in this public interest litigation alleged violation of statutory provisions under the Kerala Panchayat Raj Act, 1994, the Kerala Municipality Act, 1994 and the Representation of the People Act, 1951, including the breach of sanctity of oath-taking ceremonies of elected representatives in Local Self Government Institutions, on the ground that the prescribed form of oath has been flouted. It is specifically stated that while taking oath, the elected representatives have flouted Section 22 of the Kerala Panchayat Raj Act, 1994, Section 48 of the Kerala Municipality Act, 1994 and Section 123(3) of the Representation of the People Act, 1951, which prohibits undue religious and political influence in elections, allegedly extended to post-election functions such as oath-taking ceremonies. However, the persons likely to be affected by any order that are to be passed in the proceedings have not been made parties.

Earlier, we had directed the State Election Commission and the Local Self Government Department to file counter affidavits dealing with the allegations raised in the writ petition. In the counter affidavit filed by the State Election Commission, it is admitted that complaints, representations and reports have been received in respect of alleged deviations from the prescribed form of oath or affirmation taken by the elected members. The details of the complaints and representations received by the State Election Commission have been enumerated in paragraph 31 of the said affidavit. It refers to six complaints – four by the individuals and 2 by Returning Officers – involving about 26 members elected to various local bodies. The petitioner, appearing in person, submitted that the first written complaint mentioned in the chart furnished in the affidavit involves about 98 elected Councillors.

In the affidavit filed by the Local Self Government Department, it is stated that there have been violations of the prescribed statutory norms concerning oath to be taken in terms of the aforesaid Acts. The affidavit refers to the judgment of this Court in Haridasan Palayil v. The Speaker of the 11^th Kerala Legislative Assembly and Others^{11.AIR 2003 Kerala 328} to demonstrate that an elected member who has not taken oath in accordance with the provisions of the Constitution is not entitled to sit or vote in the Legislature until duly sworn in and is also liable to pay the prescribed penalty.

It is the contention of the Local Self Government Department that the issue regarding oath-taking by the members/elected representatives of Corporations, Municipalities and Panchayats in the Local Self Government Institution elections held in 2025 has to be decided in accordance with the provisions of the Kerala Panchayat Raj Act, 1994 and the Kerala Municipality Act, 1994, which are the legislations enacted under the legislative power conferred upon the State Legislature by Article 243 of the Constitution of India. Reference is also made to Article 246(2) and 246(3), read with List II and List III of the Seventh Schedule to the Constitution of India. The provisions relating to the formation of Local Self Government Institutions were introduced into the Constitution by the Constitution (Seventy-Third Amendment) Act, 1992. Reliance is also placed on Section 143 and Schedule III of the Kerala Municipality Act, 1994, Section 152 and Schedule II of the Kerala Panchayat Raj Act, 1994, read with Rule 3 of the Kerala Panchayat Raj (Oath of Members, President and Vice President) Rules, 1995, governing oath-taking by elected representatives of the Local Self Government Institutions.

It is submitted that under the constitutional scheme, there is no provision permitting oath to be taken in any form or manner not sanctioned by law and that there is no scope for deviation, addition, substitution or embellishment of the prescribed format. According to the said respondent, such prescription is mandatory and cannot be diluted.

In the affidavit filed by the State Election Commission, it is contended that in areas left unoccupied by legislation, there is a need for framing of code of conduct for elected members of Local Self Government Institutions to be followed during the oath-taking ceremonies and that such matters fall within the domain of the Legislature. It is thus contended that no relief can be granted to the petitioner. However, the State Election Commission has not denied having received the complaints enumerated in Paragraph 31 of the affidavit and it is the duty to consider and decide the said complaints in accordance with the constitutional scheme.

Under such circumstances, we dispose of this Public Interest Litigation by directing the State Election Commission to consider and decide the complaints in accordance with law, after affording reasonable opportunity of hearing to all the parties, within a period of four weeks from the date of communication of this order. A reasoned order shall be passed and communicated to the parties within one week thereafter.

We make it clear that we have not gone into merits of the matter, as we are of the view that the State Election Commission is the appropriate authority to decide the said complaints in accordance with law and after taking into consideration the various statutory provisions referred to in the affidavits filed by the parties. The relevance of the said rules and the statutes referred to by the parties are matters for the Election Commission to decide. At this stage, we express no opinion on the applicability of such provisions.

The writ petition is disposed of accordingly.

Exhibit P1 TRUE COPY OF THE ELECTION PETITION FILED BY THE PETITIONER ON 21-12-2025, BEFORE THE STATE ELECTION COMMISSION, KERALA(1ST RESPONDENT) AND TO THE SECRETARY, LSGD(2ND RESPONDENT).

Exhibit P2 TRUE COPY OF THE VARIOUS INCIDENTS OF OATH CEREMONIES CONDUCTED IN THE RIGHT MANNER, TO THE ELECTED MEMBERS, AT THE NATIONAL LEVEL, STATE LEVEL AND LOCAL BODY LEVEL.

Exhibit P3 TRUE COPY OF PHOTOGRAPHS, THE ELECTED MEMBERS OF VARIOUS LOCAL BODIES IN KERALA-2025.

Exhibit P4 TRUE COPY OF PHOTOGRAPHS SWEARING IN CEREMONIES OF LOCAL BODIES IN KERALA, 2025.