Kerala High Court
Velayudhan V.K vs P.V.Sreenijin on 3 January, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
MONDAY, THE 3RD DAY OF JANUARY 2022 / 13TH POUSHA, 1943
EL.PET. NO. 3 OF 2021
PETITIONER:
VELAYUDHAN V.K.,
S/O. KURUMBAN, AGED 48 YEARS,
VARIKKANETHUKAVU HOUSE, KUMARAPURAM P.O.,
ERUMELIKKARA, KUNATHUNADU-683565.
BY ADV SREEKANTH S.NAIR
RESPONDENTS:
1 P.V.SREENIJIN,
S/O. M.A.VASU, AGED 45 YEARS, 71/2701.
KEETHANAM, ELAMAKKARA,
ERNAKULAM, PIN-682026.
2 MANIKUTTAN A.T.,
S/O. THEVAN, AGED 50 YEARS,
ADAYAPPADATHU HOUSE, KIGINIMATTOM P.O.,
KOLANCHERRY, PIN -682311.
3 RENU SURESH,
W/O. SURESH, AGED 44 YEARS,
KANNIYARAKAL HOUSE, KADUVAL,
PERUMBAVOOR P.O., ERNAKULAM, PIN-683542.
4 V.P. SAJEENDRAN,
S/O. PADMANABHAN, AGED 51 YEARS, 7/344,
VALLOTHYAMALA, PERINGOL, KOLENCHERRY P.O.,
ERNAKULAM, PIN-682311.
5 KRISHNAN ERANHIKKAL
S/O. NELLAKANDAN, AGED 48 YEARS,
EARNHIKAL HOUSE,
EAST VADAKKUMURY, OORNGATTIRI P.O.,
ERANAD, PIN-673639.
6 SUJITH K. SURENDRAN,
S/O. SURENDRAN K.I., AGED 36 YEARS,
KARUKAKANDATHIL, CHANDPARAMBU,
NORTH KALLARA P.O., KOTTAYAM, PIN-686611.
7 SUJITH P. SURENDRAN,
S/O. SURENDRAN K.A., AGED 37 YEARS,
E.P.No.3/2021
2
PAINADIYIL HOUSE,
PAZHANTHOTTAM P.O.,
ERNAKULAM, PIN-683565.
BY ADVS.
P.K.VARGHESE
R.DIVAKARAN
BLAZE K.JOSE
K.S.ARUN KUMAR
AMRUTHA K P
VIJAY SANKAR V.H.
P.S.ANISHAD
K.R.ARUN KRISHNAN
P.T.MANOJ
SANJANA RACHEL JOSE
REGHU SREEDHARAN
NIVEA LIZ PETER FERNANDEZ
URMILA ZACHARIA
JUDY JOSE
BINOI GEORGE (CHERUKARA)
THIS ELECTION PETITION HAVING COME UP FOR HEARING ON
03.01.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
E.P.No.3/2021
3
JUDGMENT
The maintainability of the election petition came up
as a preliminary issue.
2. Heard both sides on the question of maintainability
of the election petition.
3. Petitioner came up under Sections 80,81,83,84 and
100 of the Representation of People Act, 1951 challenging the
election conducted in 084 Kunnathunadu Scheduled Caste
Reserved Constituency in Kerala State Legislative Assembly
Election held in the year 2021 on the ground of improper
acceptance of nomination of the returned candidate/first
respondent and other respondents and for a declaration that he
is the returned candidate. It is submitted that respondent Nos. 1
to 7 belong to various political parties registered under the
Representation of the People Act,1951. Admittedly, the
constituency 084 Kunnathunadu is a reserved constituency for
scheduled castes. The sum and substance of the allegation is that
the nomination papers submitted by the returned candidate, who
E.P.No.3/2021
is the first respondent and the other candidates, the remaining
respondents, were improperly accepted by the Returning
Officer, though there is declaration with respect to the caste
and religion in which he/they belongs without adhering to the
constitutional intention and the concept of secularism to be
followed by all political parties registered under the Act. The
Apex Court in Abhiram Singh v. C.D.Commachen (dead) by
Lrs. And others [Civil Appeal No.37 of 1992 dated 2.1.2017]
had considered the importance of maintaining secularism in
political parties/organisations registered under the Act.
Paragraph 310 of the said judgment is extracted below for
reference:-
"310. If the Constitution requires the State to be
secular in thought and action, the same
requirement attaches to political parties as well.
The Constitution does not recognise, it does not
permit, mixing religion and State power. Both must
be kept apart. That is the constitutional injunction.
None can say otherwise so long as this
Constitution governs this country. Introducing
religion into politics is to introduce an
impermissible element into body politic and an
imbalance in our constitutional system. If a
political party espousing a particular religion
E.P.No.3/2021
comes to power, that religion tends to become, in
practice, the official religion. All other religions
come to acquire a secondary status, at any rate, a
less favourable position. This would be plainly
antithetical to Articles 14 to 16,25 and the entire
constitutional scheme adumbrated hereinabove.
Under our Constitution, no party or Organisation
can simultaneously be a political and a religious
party."
4. The legal position so settled is taken as a ground of
attack against the nomination submitted by the returned
candidate- the first respondent on the reason that since he
belongs to a particular political party following the concept of
secularism, is not expected to disclose his religious identity in
the nomination though there is a specific column for making a
declaration with respect to his eligibility to contest in a
particular constituency reserved for Scheduled Castes or
Scheduled Tribes. What is settled by the Apex Court in the
above said decision is the importance of maintaining secular
concepts by political parties/organisations registered under
Section 29A of the Representation of the People Act,1951. The
political party or organisation so registered under Section 29A of
E.P.No.3/2021
the Act will have its own legal entity apart from the candidates
who were contested or elected. It is by virtue of Article 332 of
the Constitution of India certain constituencies are reserved
exclusively for Scheduled Castes and Scheduled Tribes and it is
a constitutional mandate. Necessarily those who want to contest
in that constituency reserved either for Scheduled Castes or
Scheduled Tribes should make a declaration as required in the
nomination disclosing his/her eligibility to contest in that
particular constituency by specifying the religion and the caste
in accordance with the mandate under Section 33(2) of the Act.
A certified copy of the nomination was submitted by the
returned candidate wherein the respective candidate made a
declaration by disclosing his religious and community status so
as to show his eligibility to contest in the constituency reserved
for scheduled castes/scheduled tribes. That is what is actually
done by the returned candidate by filling the blanks disclosing
his community and religious status. It is the declaration made
by him with respect to his eligibility to contest in that reserved
E.P.No.3/2021
constituency. The argument advanced by the learned counsel for
the petitioner that the disclosure of his religious and community
status in the nomination would amount to alteration of the
concept of secularism to be maintained by a political party, is
per se found to be against the mandate under Section 33(2) of
the Representation of the People Act, 1951, which is extracted
below for reference:-
"33. Presentation of nomination paper and
requirements for a valid nomination.---(1) ..........
(2) In a constituency where any seat is reserved, a
candidate shall not be deemed to be qualified to be
chosen to fill that seat unless his nomination paper
contain a declaration by him specifying the particular
caste or tribe of which is a member and the area is
relation to which that caste or tribe is a Schedule Caste
or, as the case may be, a Schedule Tribe of the State."
(emphasis supplied)
The concept of secularism to be maintained by a political
party/organization cannot be mixed up with a statutory
requirement to be complied with under the provisions of the
Representation of the People Act, 1951, while submitting a
nomination or contesting in an election to a particular
E.P.No.3/2021
constituency. As discussed earlier, what is laid down by the
Apex Court in the above said decision, is the importance of
maintaining secular concept by the political
parties/organisations registered under Section 29A of the
Representation of the People Act,1951. The disclosure of
eligibility of a particular candidate by making a declaration as
required under a nomination to contest in a particular
constituency reserved for a sect of people-either schedule castes
or scheduled tribes will not violate the concept of secularism.
Secondly, it is a mandate to be complied with by the candidate
to disclose and reveal his eligibility to contest in that particular
constituency. Of course, the legal position would be different
when the caste or religion was used so as to canvass vote by
playing 'corrupt practice'. No such case of 'corrupt practice'
was either pleaded or advanced by the petitioner. The only case
raised is the improper acceptance of the nomination ignoring the
declaration made by the petitioner revealing his status and
showing the eligibility based on the religion and community,
E.P.No.3/2021
which according to the petitioner violates the concept of
secularism to be followed by a political party and all its
members. It is so unfortunate that the petitioner did not
understand the real spirit of the decision rendered by the
Supreme Court on an alleged 'corrupt practice'. The jurisdiction
to be exercised under Order VII Rule 11 CPC in an election
petition was also taken into consideration by the Apex Court in
Azhar Hussain v. Rajiv Gandhi [1986 (Supp) Supreme Court
cases 315] and laid down the legal position affirmatively.
There is no cause of action or an arguable case to maintain an
election petition by the petitioner, hence liable to be rejected
under Order VII Rule 11 CPC. The election petition is hereby
dismissed (rejected) with cost of respondents.
Sd/-
P.SOMARAJAN
JUDGE
SPV
E.P.No.3/2021
APPENDIX OF EL.PET. 3/2021
PETITIONER'S ANNEXURES
ANNEXURE A1 TRUE COPY OF FORM 2B NOMINATION PAPER
OF ELECTION TO LEGISLATIVE ASSEMBLY.
ANNEXURE A2 TRUE COPY OF FORM A COMMUNICATION WITH
REGARD TO AUTHORISED PERSONS TO
INTIMATE NAMES OF CANDIDATES SET UP BY
POLITICAL PARTY.
ANNEXURE A3 TRUE COPY OF FORM B NOTICE AS TO NAME
OF CANDIDATES SET UP BY THE POLITICAL
PARTY OF THE ELECTION SYMBOLS
(RESERVATION AND ALLOTMENT) ORDERS
1968.
Annexure A4 TRUE COPY OF KERALA GAZETTE
NOTIFICATION DATED 04/05/2021 ISSUED
BY GOVERNMENT OF KERALA.
//TRUE COPY//
PA TO JUDGE
