Sivarathnan Alathi @ Sivarathnan ... vs C.C.Mukundhan
2022 Latest Caselaw 25 Ker

               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. 2 OF 2021
PETITIONER:

            SIVARATHNAN ALATHI @ SIVARATHNAN A.K.,
            AGED 56 YEARS
            S/O. KUTTAN, ALATHI HOUSE, VADANAPPALLY P.O.,
            THRISSUR, PIN - 680614.
            BY ADV SREEKANTH S.NAIR


RESPONDENTS:

    1       C.C.MUKUNDHAN,
            S/O. CHENNAN, AGED 62 YEARS,
            CHONATTU VEEDU, ANTHIKADU P.O., THRISSUR-680641.
    2       LOJANAN AMBATT,
            S/O. KUTTAN, AGED 39 YEARS, AMBATTUPARAMBU VEEDU,
            POOVVATHOOSSERI P.O., KUMBIDI, THRISSUR, PIN-680741.
    3       VIMAL MALLIKA VIJAYAN,
            S/O. VIJAYAN, 25 YEARS, PARAMBIL VEEDU,
            POOTHARAKKAL P.O., THRISSUR-680561.
    4       ADV. SUNIL LALOOR,
            S/O. VASU A.C., AGED 40 YEARS, AAMBAKATTU VEEDU,
            ELTHURUTHU P.O., THRISSUR, PIN-680611.
    5       C.S. JITHESH KUMAR,
            S/O. SIVARAMAN, AGED 37 YEARS, CHENATATHU VEEDU,
            INJAMUDI P.O., CHIRAKKAL, THRISSUR-680564.
            BY ADVS.
            A.JAYASANKAR
            T.RAMPRASAD UNNI
            LINDONS C.DAVIS
            E.U.DHANYA
            RAVI KRISHNAN
            S.M.PRASANTH
            G.RENJITH
            R.S.ASWINI SANKAR
            T.H.ARAVIND

     THIS     ELECTION   PETITION   HAVING   COME   UP   FOR   HEARING   ON
03.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 E.P.No.2/2021

                                     2



                              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 068 Nattika 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 5 belong to various

political parties registered under the Representation of the People

Act,1951. Admittedly, the constituency 068 Nattika in Thrissur

District 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 is the first respondent E.P.No.2/2021

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 comes to power, that religion tends to become, in practice, the official religion. All other religions E.P.No.2/2021

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.2/2021

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.2/2021

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.2/2021

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.2/2021

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.2/2021

APPENDIX OF EL.PET. 2/2021

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 PETITIONERS' CANDIDATE IDENTITY CARD.

ANNEXURE A5       TRUE COPY OF KERALA GAZETTE
                  NOTIFICATION DATED 04/05/2021 ISSUED
                  BY GOVERNMENT OF KERALA.




                                    //TRUE COPY//


                                      PA TO JUDGE