Adv.M.Swaraj vs K.Babu
2023 Latest Caselaw 3572 Ker

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                 THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
         Wednesday, the 29th day of March 2023 / 8th Chaithra, 1945
                            EL.PET. NO. 8 OF 2021
PETITIONER:

     ADV.M.SWARAJ,S/O. MURALEEDHARAN NAIR,AGED 41 YEARS,SUMA NIVAS,
     BHOODAN COLONY P. O., MALAPPURAM DISTRICT, PIN - 679334.

   BY ADVS.M/S.P.K.VARGHESE,SRI.K.S.ARUN
   KUMAR,SRI.N.K.SHYJU,SRI.P.P.BIJU,SRI.P.S.ANISHAD,
   SRI.K.R.ARUN KRISHNAN,SRI.P.T.MANOJ,SANJANA RACHEL JOSE,SRI.BIJU KUMAR &
   SRI. REGHU SREEDHARAN
RESPONDENTS:

  1. K.BABU,S/O. KUMARAN, AGED 70 YEARS, KANNUPARAMBATH HOUSE, SANSKRIT
     COLLEGE ROAD, TRIPUNITHARA, ERNAKULAM DISTRICT, PIN - 682301.
  2. DR. K. S. RADHAKRISHNAN, S/O. K. A. SUKUMARAN, AGED 66 YEARS,
     KALLUMADATHIL, HMC ROAD, SOUTH CHITTOOR P. O., ERNAKULAM DISTRICT,
     PIN - 682027.
  3. K. P. AYAPPEN, S/O. K. M. PONNAN, AGED 46 YEARS, KAPPILY HOUSE,
     EDAKKUNNU, PADUVAPURAM P. O., PIN - 683576.
  4. ARUN BABU P. C., S/O. CHANDRASEKHARAN, AGED 35 YEARS, NIKARTHIL,
     KUMBALAM P. O., KUMBALAM, ERNAKULAM DISTRICT, PIN - 682506.
  5. RAJESH PAIROAD, S/O.K. K. RAMESH, AGED 44 YEARS, KALAPPURACKAL,
     EDAKOCHI, ERNAKULAM DISTRICT, PIN - 682010.
  6. C. B. ASHOKAN, S/O. BHASKARAN T. K., AGED 57 YEARS, CHERAPURATHU
     VEEDU, IRUMBANAM P. O., TRIPUNITHARA, ERNAKULAM DISTRICT, PIN -
     682309.

   BY T.KRISHNANUNNI (SR.) ALONG WITH ADVS.M/S.C.S.AJITH
   PRAKASH,SRI.T.K.DEVARAJAN,SRI.FRANKLIN ARACKAL,SRI.PAUL C.THOMAS,SRI.
   BABU M.,SRI.NIDHIN RAJ VETTIKKADAN,SRI.HAARIS MOOSA & SRI.ADESH JOSHI
   FOR R1
   SRI.K.ANAND(SR) ALONG WITH SMT.LATHA ANAND,SRI.M.N.RADHAKRISHNA
   MENON,SRI.K.R.PRAMOTH KUMAR,SRI.VISHNU S.,SRI.ROHITH MOHAN,SRI.SIDHARTH
   P.S.,SRI.RADHAKRISHNA PILLAI B. & ARJUN VARMA FOR R2
   SRI. ARUN K.P. FOR R4
   SHRI.DEEPU LAL MOHAN, SC, ELECTION COMMISSION OF INDIA,

     This Election petition having come up for orders on 29.03.2023 upon
perusing the Election Petition, the court on the same day passed the
following:


                                                                      P.T.O.
                     P.G. AJITHKUMAR, J.
   -----------------------------------------------------------
               Election Petition No.8 of 2021
   -----------------------------------------------------------
          Dated this the 29th day of March, 2023


                          ORDER

This petition was filed invoking the provisions of Sections

80, 81, 83, 84, 100, 101 and 123 of the Representation of

People Act, 1951 (for short "R.P.Act"). The petitioner and

respondent Nos.1 to 6 were the candidates in the election to

the Kerala Legislative Assembly in 081-Tripunithura

Constituency in Ernakulam District held on 06.04.2021. The

result was declared on 02.05.2021. Respondent No. 1

returned in the election. The petitioner seeks to declare the

election void on the ground that the 1 st respondent has

committed corrupt practices affecting materially the result of

the election.

2. The 1st respondent entered appearance and filed a

preliminary objection. He contends that the election petition

suffers from material defects for non-compliance of the

provisions of Section 81 of the Act and Rule 212 of the Rules

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of the High Court of Kerala, 1971. It is further contended that

allegations leveled against the 1st respondent in the election

petition do not constitute any corrupt practice within the

meaning of Section 123 of the Act and therefore there is no

cause of action for the petition. Accordingly, the 1 st

respondent seeks to reject the petition under Order VII Rule

11 of the Code of Civil Procedure, 1908. That question is

considered as a preliminary question.

3. Heard the learned counsel appearing for the

petitioner and also the learned Senior Counsel, appeared on

instructions, for the 1st respondent. Other respondents did not

choose to file any objection or turn up to make up any

submission.

4. An election petition has to be presented in

accordance with the provisions of Part II of the R.P.Act.

Section 81 lays down the parameters for presentation of a

petition. An election petition can be filed within 45 days from

the date of election of the returned candidate. Apart from

satisfying the requirements of Sections 81, 83 and 84 of the

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Act, provisions of Rule 212 of the Rules of the High Court of

Kerala also should be complied with. The allegation of the

petitioner is that although the election petition was presented

within 45 days, it was defective, and such defects were cured

beyond the period of 45 days for which reason it is liable to be

dismissed for non-compliance of the provisions of Section 83

of the Act. The defects pointed out by the 1st respondent are

that sufficient number of copies of the petition were not

furnished and the copies were not duly attested to be true

copies. It is seen that at the time of presentation of election

petition, it had the defects of discrepancy in pagination of

various appendices and deficiency in number of authenticated

copies. The same were cured, of course, after 15.06.2022, the

last date for presentation of the petition.

5. In M.Kamalam v. Dr.V.A.Syed Mohammed

[(1978) 2 SCC 659] the Apex Court held that if there is

substantial compliance of the requirements of Section 81(3) of

the Act, an election petition cannot be dismissed at the

threshold invoking the provisions of Section 86(1) of the Act,

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which enables the High Court to dismiss an election petition

which does not comply with the provision of Sections 81 or

other provisions of the Act. It was held that affixing of

signatures at a wrong place of the petition for the purpose of

authentication by itself is not a reason to dismiss an election

petition treating it to be defective. The Apex Court in

G.M.Siddeshwar v. Prasanna Kumar [(2013) 4 SCC 776]

held that,-

"53. The doctrine of substantial compliance as well as the doctrine of curability were followed in V.Narayanawsamy v. C.P.Thirunavukkarasu (2000) 2 SCC 294. This Court held that a defect in verification of an affidavit is not fatal to the election petition and it could be cured. Following Moidutty it was held that if the election petition falls foul of Order VI Rule 16 and Order VII Rule 11 of the CPC and does not disclose a cause of action then it has to be rejected at the threshold.

54. Somewhat more recently, in Anil Vasudev Salgoankar v. Naresh Kushali Shigaonkar (2009) 9 SCC 310 this Court reiterated this position in law and held:

"The position is well settled that an election petition can be summarily dismissed if it does not furnish the cause of action in exercise of the power under

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the Code of Civil Procedure. Appropriate orders in exercise of powers under the Code can be passed if the mandatory requirements enjoined by Section 83 of the Act to incorporate the material facts in the election petition are not complied with."

55. The principles emerging from these decisions are that although non- compliance with the provisions of Section 83 of the Act is a curable defect, yet there must be substantial compliance with the provisions thereof. However, if there is total and complete non-compliance with the provisions of Section 83 of the Act, then the petition cannot be described as an election petition and may be dismissed at the threshold. Integral part of an election petition."

6. Here, the requirement of Section 81(3) of the Act is

that every election petition shall be accompanied by as many

copies thereof as there are respondents mentioned in the

petition. The deficiency pointed out was not with respect to

the furnishing of copies as insisted on by Section 81(3) of the

R.P. Act instead, 3 authenticated copies as insisted on by Rule

212 of the Rules of the High Court of Kerala. Instead of such

three authenticated copies, two copies alone were furnished.

That defect was later cured. Deficiency of one authenticated

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copy does not amount to non-compliance of Section 81(3) of

the Act. The other defects pointed out are only trivial and

curable ones which at any rate do not amount to infraction of

the provisions of Section 81, 82, 83 or any other provision of

the Act or Rule 212 of the Rules of the High Court of Kerala.

In such circumstances, I am of the view that the election

petition is not liable to be rejected invoking the provision of

Section 86(1) of the Act.

7. The contention of the petitioner is that election of

the 1st respondent is void under Section 100(1)(b) and 100

(1)(d) of the Act. Under the said provisions, if the returned

candidate or the election agent or by any other person with

the consent of the returned candidate or his election agent

committed any corrupt practice, the High Court can declare

the election of the returned candidate void.

8. The corrupt practices alleged to have been

committed by the 1st respondent during the process of

election are exerting of undue influence as defined in Section

123(2)(a)(ii) of the Act, and corrupt practice as defined in

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Section 123(3) of the Act. For easy understanding, Section

123(2) and (3) are extracted below:-

"123. Corrupt practices.-- xx xx xx (2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person with the consent of the candidate or his election agent, with the free exercise of any electoral right:

Provided that--

(a) without prejudice to the generality of the provisions of this clause any such person as is referred to therein who-

(i) threatens any candidate or any elector, or any person in whom a candidate or an elector is interested, with injury of any kind including social ostracism and ex-communication or expulsion from any caste or community; or

(ii) induces or attempts to induce a candidate or an elector to believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause;

(b) a declaration of public policy, or a promise of public action, or the mere exercise of a legal right without

Election Petition No.8 of 2021

intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this clause.

(3) The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate:

Provided that no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purposes of this clause ."

9. The allegations set forth by the petitioner are

corrupt practices under three distinct heads, namely;

i) inducement on electors to vote for the !st respondent in the name of Lord Sabarimala Ayyappa making them believe that they will become or will be rendered an object of divine or spiritual censure as enjoined in Section 123(2)(a)(ii) of the Act,

ii) the 1st respondent, his election agent and others with their consent appealed to the electors in the constituency to vote for the 1st respondent and also to refrain from voting

Election Petition No.8 of 2021

for the petitioner on the ground of religion, coming under the first part of Section 123(3) of the R.P.Act, and

iii) the 1st respondent and his election agent and others with their consent used picture of Lord Ayyappa, which is a religious symbol for the furtherance of the prospectus of the election of the 1st respondent coming under the later part of Section 123(3) of the R.P.Act.

10. In Dhartipakar Madan Lal Agarwal v. Rajiv

Gandhi [(1987) Supp. SCC 93], it was held by the Apex

Court that if the court, on examination of the pleadings in an

election petition, finds that it do not make out any cause of

action or that the same may tend to prejudice, embarrass or

delay the fair trial of the election petition, it shall strike out

that part of the pleadings, and if the court finds that there are

no triable issues after striking out the unnecessary pleadings,

it has to reject the election petition under Order VII Rule 11 of

the Code of Civil Procedure. In Azhar Hussain v. Rajiv

Gandhi [(1986) Supp.SCC 315], it was held by the Apex

Court that the power under Order VI Rule 16 and Order VII

Rule 11 shall be exercised by courts to ensure that a litigation

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which is meaningless and bound to prove abortive should not

be permitted to occupy the time of the court and the sword of

Damocles is not kept hanging over the respondent without a

point or purpose.

11. In the light of the law laid down in the aforesaid

decisions, it is to be considered whether the allegations in the

petition will constitute the ingredients of the corrupt practices

making sufficient cause of action so as to proceed with this

election petition. For a proper understanding of the purport of

the allegations, the statements spoken, written or publicised

which are mentioned in the election petition are extracted

below:-

Sl. Parag                       Statement
No. raph
    No.
1   10      The contest is between lord Sabarimala Ayyappa and

Swaraj, I am the person who stands with lord Sabarimala Ayyappa; unless you cast your vote in favour of me, it is as good as in defeating Lord Sabarimala Ayyappa.

2 10 Swaraj is a person who tried to destroy the solemn sanctity of Lord Sabarimala Ayyappa and the Sabarimala Temple..

3   10      Though we all Hindus Swaraj is a Hindu by his name
    &       only, but not of his breliefs.


Election Petition No.8 of 2021


4   11     You are Hindu voters and believers of Lord Sabarimala

Ayyappa, Mr.Swaraj is acting against the true hindu faiths, rituals and he made speeches that Lord Sabarimala Ayyappa is married and you may have heard it.

5 12 Unless you cast your vote in my favour, Lord Sabarimala Ayyappa will be defeated and this is the right opportunity to expel the election petitioner from the constituency.

6 14 The election petitioner is not a true Hindu and believer of lord Sabarimala Ayyappa by his faith's and beliefs so that Lord Ayyappa is not pleased with him.

7 14 At the moment we are in such a war in which Swaraj is such a person who is playing with our religious affairs and beliefs. He considers our Hindu community whose conscience is dead. You are requested to make use of this opportunity by casting one vote in favour of me in the name of Lord Sabarimala Ayyappa.

8 15 The election petitioner, though a Hindu in name, was not true to the religious tenets of Hinduism and thereby not a true devotee of lord Sabarimala Ayyappa, and the election petitioner is a heretic and as such the election petitioner is standing outside the pale of Hindu religion. 9 26 Ayyane kettikkuvan vannavane ayyante nattil ninnum kettukettikan.

(To drive away the one who came to get Ayyan (Lord Ayyappa) married, from Ayyan's land) 10 27 Sabarimala kalapabhumiyakkiyavarkk ethire (Against those who made Sabarimala a battle zone)

12. The learned counsel appearing for the petitioner

would contend that the aforesaid statements amount corrupt

practices in Section 123(3A) of the R.P.Act also. But, no

ground of commission of corrupt practice as defined in Section

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123(3A) of the R.P.Act is urged in the Election Petition. In the

absence of pleadings in that respect election petition cannot

be entertained for the allegation of commission of corrupt

practices as defined in Section 123(3A) of the R.P.Act.

13. The petitioner alleges that the 1 st respondent, his

election agent and others with their consent made public

speeches and appealed to the voters that the 1 st respondent is

a true Hindu; whereas the petitioner is a Hindu by name only.

Similarly, they made statements and appeals that the 1 st

respondent stood for protecting the faith of the devotees of

Lord Ayyappa; whereas the petitioner acted against and

denigrated the interest of the devotees of Lord Ayyappa. The

further allegations are that the 1st respondent, his election

agent and others with their permission, made wall writing at

various places of the constituency, and distributed leaflets

containing similar appeals to the electors in the constituency.

The allegation of the petitioner is that those acts amounted to

inducement to the electors in the constituency, who are

Election Petition No.8 of 2021

Hindus and devotees of Lord Ayyappa that if they do not vote

for the 1st respondent, they will be rendered objects of divine

displeasure. Thus the petitioner maintains that a major

portion of the electors in the constituency were unduly

influenced in the matter of exercise of their electoral right.

Also, the aforementioned public speeches, wall writings and

leaflets amounted to appeal to the electors to vote for the 1 st

respondent on the ground of religion.

14. The learned counsel appearing for the petitioner, on

the other hand, wound submit that the aforementioned

statements were communicated to the Hindu electors, most

of whom are devotees of Lord Ayyappa, and the same

certainly would alarm the electors of the obvious consequence

of divine displeasure if they do not vote for the 1 st respondent.

The learned counsel further would submit that such

statements, in any view of the matter, amount to appeal to

the electors to vote for the 1st respondent on the basis of

religion. The learned counsel places reliance on the law laid

down by the Apex Court in Shubnath Deogam v. Ram

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Narain Prasad and others [AIR 1960 SC 148], Kultar

Singh v. Mukthiar Singh [AIR 1965 SC 141], Manubhai

Nandlal Amersey v. Popatlal Manilal Joshi and others

[(1969) 1 SCC 372], Ziyauddin Burhanuddin Bukhari v.

Brijmohan Ramdass Mehra [(1976) 2 SCC 17], and

Kalamata Mohan Rao v. Narayana Rao Dharmana and

others [(1995) 6 SCC 728] in order to substantiate his

contention.

15. In Shubnath Deogam referred to above appeal to

vote on the basis of religious ceremonies of the Adibasis was

in question. Cock was the symbol of the returned candidate.

He allegedly solicited votes indicating a religious belief among

Adibadis that the pleasure of the deities is through the cock

taking the food before it is sacrificed to the deities. The

leaflet distributed was clearly invoking the wrath of the deities

on the electorate in case they forget the cock, that is, forget

to vote for the party of which it is the symbol. By drawing

such a simile, the electors were warned that the Gods will be

displeased if votes are not cast in the box of cock. The Apex

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Court held that it was clearly an incitement of divine

displeasure thereby compelling to vote in favour of the

candidate and would come within the kind of undue influence

mentioned in Section 123(2)(a)(ii) and when such a leaflet is

given a large circulation, it would come within Section 123(3)

of the R.P.Act.

16. In Manubhai Nandlal Amersey referred to

above the corrupt practice alleged was with respect to the

speech telling the electors that if they voted for the

Congress candidate they would commit the sin of cow

slaughter and urged them in the name of mother cow to

take a vow not to vote for the Congress candidate with the

result that several members of the audience publicly took

the vow. The Apex Court held that actual effect of the

speech is not material, and corrupt practice is committed if

the speech is calculated to interfere with the free exercise

of electoral right and to leave no choice to the electors in

the matter.

Election Petition No.8 of 2021

17. The objectionable speech referred to the command

of Sri Shankracharya. Then said that the electors should not

vote for the Congress Party. But even apart from the

command of Sri Shankracharya the electors are distinctly told

that though there was a ban on cow slaughter in Ahmedabad,

the Congress was permitting the slaughter of crores of cows

elsewhere in India and was committing the sin of go-hatya

and those who vote for the Congress would be partners in the

sin. The dominant theme of the speech was that those who

commit the sin of go-hatya would be visited with divine

displeasure. Having regard to the character of the audience,

the speech was calculated to interfere with the free exercise

of electoral right. It was in that context the Apex Court held

that the speech was held to be fallen within the mischief of

Section Section 123(2)(a)(ii) of the R.P.Act.

18. In Kultar Singh (supra) the allegation was that

appellant had made speeches asking the voters to vote for

him as he was the proper representative of the Sikh Panth,

whereas the respondent represented the Hindu-ridden Party,

Election Petition No.8 of 2021

and so, the appellant would be able to protect the Sikh

religion and the Sikh language. The respondent-election

petitioner contended that the speeches plainly and

unambiguously invited the voters to vote for the appellant in

order to prescribe the honour and prestige of the Panth and it

was urged that in the context, the Panth meant the Sikh religion

and since the pamphlet clearly appeals to the voters to vote for

the appellant and proceeded on the assumption that the

election of the appellant would uphold the honour and prestige

of the Sikh religion that amounts to a corrupt practice.

19. The Constitution Bench of the Apex Court

observed that a corrupt practice under Section 123 (3) of the

R.P.Act can be committed by a candidate by appealing to the

voters to vote for him on the ground of his religion even

though his rival candidate may also belong to the same

religion. An example was cited; if a Sikh candidate were to

appeal to the voters to vote for him, because he was a Sikh

and add that his rival candidate, though a Sikh in name, was

not true to the religious tenets of Sikhism or was a heretic

Election Petition No.8 of 2021

and as such, outside the pale of the Sikh religion, that would

amount to a corrupt practice under Section 123(3) of the

R.P.Act.

20. The Constitution Bench succinctly stated the

principle as, "a document must be read as a whole and its

purport and effect determined a fair objective and reasonable

manner. In reading such documents it would be unrealistic to

ignore the fact that when election meetings, are held and

appeals are made by candidates of opposing political parties,

the atmosphere is usually surcharged with partisan feelings

and emotions and the use of hyperboles or exaggerated

language, or the adoption of metaphors, and the

extravagance of expression in attaching one another, are all a

part of the game; and so, when the question about the effect

of speeches delivered or pamphlets distributed at election

meetings is argued in the cold atmosphere of a judicial

chamber, some allowance must be made and the impugned

speeches or pamphlets must be construed in that light. In

doing so, however, it would be unreasonable to ignore the

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question as to what the effect of the said speech or pamphlet

would be on the mind of the ordinary voter who attends such

meetings and reads the pamphlets or hears the speeches."

21. In the light of the said principles, the Apex Court

considered the impact of the speeches in question. It was held

that Panth might mean the Sikh religion and the followers of the

Panth would be the persons who follow the path prescribed by

the Sikh Gurus and as such, would signify the Sikh community.

Panthic is an adjective which means, of the Panth or belonging to

the Panth, and so, prima facie, the glory or prestige of the Panth

may mean the glory or prestige of the Sikh religion.

22. The Apex Court considered, what the word 'Panth'

used in pamphlet in the abstract mean and also, what does

the word "Panth" mean in the context of the pamphlet, the

distribution of which is alleged to constitute corrupt practice.

The word "Panth" occurs in six places in this pamphlet. The

word "Panth" used firstly and secondly were conceived to be

used to mean the Sikh religion. But the use of the word

"Panth" in the next sentence, was not possibly meaning the

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Sikh religion. The word "Panth" used in the remaining places

in the palmet were held not possibly not to mean the Sikh

religion. It was observed that the third sentence made it still

clearer that the Panth and the Akali Dal party are treated as

synonymous in this portion because it says "every Sikh vote

should go to the representatives of the Akali Dal", and that

could be reconciled with the previous sentence only on the

basis that in the minds of those who drafted the impugned

poster, the Akali Dal Party and the Panth are the same. Then

the poster says that the prayer made in the poster if

accepted, will once again preserve the honour of the Panth;

the words "once again" was indicative of the triumph which

the Akali Dal Party achieved at the earlier Gurdwara Elections,

and accordingly, the Apex Court held that the Panth in that

context must mean the Akali Dal Party.

23. The Constitution Bench observed that political

issues which form the subject matter of controversies at

election meetings may indirectly and incidentally introduce

considerations of language or religion, but in deciding the

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question as to whether corrupt practice has been committed

under Section 123(3), care must be taken to consider the

impugned speech or appeal carefully and always in the light

of the relevant political controversy. The Apex Court

accordingly held in Kultar Singh that the impugned poster

would not attract the provisions of Section 123(3) of the

R.P.Act.

24. Ziyauddin Burhanuddin Bukhari (supra) the

appeal by the appellant therein to the electors was to vote for

him and not for Chagla on the ground that he alone stood for

all that was Muslim whereas, Chagla represented all that was

against Muslim religion and belief so that Chagla could not be

a true Muslim at all. The object of such appeals being to

further the chances of election of Bukhari and to prejudicially

affect the prospects of the election of Chagla; it was held that

the appellant, Bukhari, had attempted to promote feelings of

enmity and hatred between Muslims and Hindus on grounds of

religion and community.

Election Petition No.8 of 2021

25. The Apex Court in paragraph 46 of that judgment

held that what is relevant in such a case is what is professed

or put forward by a candidate as a ground for preferring him

over another and not the motive or reality behind the

profession which may or may not be very secular or

mundane. It is the professed or ostensible ground that

matters. If that ground is religion which is put on the same

footing as race, caste, or language as an objectionable

ground for seeking votes, it is not permissible. On the other

hand if support is sought on a ground distinguishable from

those falling in the prohibited categories, it will not be struck

by Section 123 of the R.P.Act. By applying the said principle

the Apex Court proceeded to hold that the appellant wanted

votes for himself on the grounds that he staunchly adhered

to what he believed to be Muslim religion as contrasted with

Chagla who did not, and that amounted guilt of the corrupt

practice defined by the provisions of Sections 123(2), 123(3)

and 123(3A) of the Act.

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26. Kalamata Mohan Rao (supra) is a case where the

objection taken out was concerning posters pasted on the

walls at several places in the constituency which depicted the

Telugu Desam Party Supremo N.T.Rama Rao in the role of

Lord Krishna worshiped by the Hindus as an incarnation

blowing a conch shell, with a sloka from Bhagwad Gita written

at the top of the poster and below the photograph of N.T.

Rama Rao his clarion call to the voters to defeat the deceitful

Congress which had sold away the nation.

27. The Apex Court held that the contents of that

poster unambiguously amount to an appeal on the ground of

the religion of the candidate of the Telugu Desam Party, the

appellant. Describing that the clear meaning of the contents

of the poster was that N.T. Rama Rao was an incarnation of

God worshiped by the Hindus who is seeking votes for his

candidate, held that publicising of the posters amounted to

corrupt practice under Section 123(3) of the R.P. Act.

28. The learned Senior Counsel appearing for the 1st

respondent would submit that the statements extracted in the

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tabular column above, even if it is proved to have been made

or publicized by the 1st respondent or on his behest, the same

would not amount to any corrupt practice. The learned Senior

Counsel would submit that entry of women between a

particular age group was a burning social issue in the State of

Kerala during the relevant period, following the decision of the

Apex Court in Indian Young Lawyers Association vs The

State Of Kerala [(2019) 11 SCC 1]. It is pointed out that

the said decision was later decided to be reviewed by the

Apex Court. In Kantaru Rajeevaru v. Indian Young

Lawyers Association through its General Secretary and

others [2020 (2) SCC 1] the Apex Court directed that the

review petitions, as well as the writ petitions, would remain

pending until the determination of the questions indicated

therein by a Larger Bench. Therefore, during the successive

elections; be it to the Parliament, Assembly, or Local Bodies,

the said issue was spiralled into a point of political controversy

and being a social issue connected to the larger interest of the

devotees of Lord Ayyappa, every political party made

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allegations and counter allegations touching that issue.

Highlighting those aspects, the learned Senior Counsel

submitted that those statements alleged to have been made

by the 1st respondent would only be his policy statements on

that subject and do not constitute any appeal on the basis of

religion or an inducement to the electors to vote in the name

of religion.

29. In Dr.Das Rao Deshmukh v. Kamal Kishore

Nanasaheb Kadam and others [(1995) 5 SCC 123] the

Apex Court held,-

"16. xx xx xx We may, however, indicate that speeches delivered in the election meeting by leaders of political parties should be appreciated dispassionately by keeping in mind the context in which such speeches were made. This Court has indicated a note of caution that in election speeches appeals are made by candidate of opposing political parties often in an atmosphere surcharged with partisan feelings and emotions. Use of hyperboles or exaggerated language or adoption of metaphors and extravagance of expression in attacking one party or a candidate are very common and court should consider the real thrust of the speech without labouring to disect one or two sentences of the speech,

Election Petition No.8 of 2021

to decide whether the speech was really intended to generate improper passions on the score of religion, caste, community etc. In deciding whether a party or his collaborators had indulged in corrupt practice regard must be had to the substance of the matter rather than mere from or phraseology."

30. In S.Harcharan Singh v. S.Sajjan Singh and

others [(1985) 1 SCC 370], it was held,-

"43. These questions should be very broadly decided. It would not be an appeal to religion if a candidate is put up by saying 'vote for him' because he is a good. Sikh or he is a good Christian or he is a good Muslim, but it would be an appeal to religion if it is publicised that not to vote for him would be against Sikh religion or against Christian religion or against Hindu religion or to vote for the other candidate would be an act against a particular, religion. It is the total effect of such an appeal that has to be borne in mind in deciding whether there was an appeal to religion as such or not. In each case, therefore, the substance of the matter has to be judged."

31. The Three Judge Bench of the Apex Court took the

view that the paramount and basic purpose

underlying Section 123(3) of the Act is the concept of secular

democracy. Section 123 (3) was enacted so as to eliminate

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from the electoral process appeals to divisive factors such as

religion, caste, etc. which give vent to irrational passions.

Consequently, the section must be so construed as to

suppress the mischief and advance the remedy. It was further

held that a line has to be drawn by the court between what is

permissible and what is prohibited, after taking into account

the facts and circumstances of each case interpreted in the

context of these factors. The court should attach importance

to the effect and impact of the acts complained of and always

keep in mind the paramount purpose of Section 123(3) of the

R.P. Act.

32. The question therefore to be considered in this

case is whether the statements made by the 1st respondent,

election agent and others with their consent publicized

through various modes like speeches, personal requests, wall

writings and leaflets, which are extracted in the tabular

column above, if true, would amount to undue influence by

inducement to vote or an appeal to vote in the name of

religion.

Election Petition No.8 of 2021

33. The purport of the allegations are to the effect that

the 1st respondent solicited votes for him since he opposes

entry of women of particular age group to Sabarimala and the

petitioner supports the entry. While appealing for vote in that

context Hindu religion was mentioned. None of the statements

extracted in the tabular column, by applying the aforesaid

principles of law, would distinctly amount an appeal in the

name of Hindu religion.

34. A similar question was considered by this Court in

the order dated 07.01.2020 in E.P.No.1 of 2019,

(K.N.Balagopal v. N.K.Premachadran) and the order dated

06.11.2019 in E.P.No.2 of 2019 (Anandagopan K. v. Anto

Antony). In those Election Petitions also the allegation was

that the returned candidate made statements that the LDF

candidate, who lost the election, supported the entry of

women into Sabarimala Temple, that she had actively aided

women to enter the Sabarimala Temple and success of that

candidate would be against the interest of the Hindu devotees

of the Sabarimala Temple. This Court after referring to the

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principle laid down by the Apex Court in various decisions

held that such statements would not constitute a corrupt

practice under the provisions of Section 123(2)(a)(ii) of the

Act.

35. As pointed out above, in order to decide whether

the statements made by the returned candidate, his election

agent or others with their consent are violative of the

provisions of Section 123(a)(ii) or 123(3) of the R.P. Act,

regard must be had to the substance of the matter, rather

than the phraseology. The context as mentioned herein

before that entry of women between a particular age group

to Sabarimala was then a burning social issue in the State of

Kerala is a relevant consideration while deciding the

question. In substance, the statements which were the

subject matter in Election Petitions No.1 and 2 of 2019 and

those which are the subject matter in this case are similar. I

do not find any reason to deviate from the finding

rendered by this Court in the Election Petitions No.1 and 2 of

2019.

Election Petition No.8 of 2021

36. Here, the speeches, personal requests, wall

writings and leaflets containing the statements which have

been extracted in tabular column are the reasons

canvassed for holding that the 1st respondent has

committed corrupt practice under two heads, namely

inducing the electors to vote for him saying that they will

otherwise be rendered objects of divine displeasure and

also appeal to vote on the ground of religion. At this stage,

the requirement is to consider, if those statements were

proved to have been made by the 1st respondent, his

election agent or any other person with their consent would

amount to a corrupt practice.

37. In the light of the principles of law laid down by the

Apex Court in Dr.Das Rao Deshmukh [(1995) 5 SCC 123],

S.Harcharan Singh [(1985) 1 SCC 370], Abhiram Singh

[(2017) 2 SCC 629] and Kultar Singh [AIR 1965 SC

141], which are referred to above, the aforesaid statements

allegedly made by the 1st respondent are to be considered in

the social milieu existed during the relevant period. If so

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considered, such statements can only be an appeal to vote for

the 1st respondent since he supports one view of the issue and

not to vote for the petitioner since he supports the other view.

On a reading in that perspective, it is clear that those

statements did not contain any element of undue influence or

can never be termed as an appeal on the basis of religion.

Similarly, the statement that the petitioner was not a true

Hindu, unlike the 1st respondent, in the light of the law laid

down in Kultar Singh (supra) and also the controversy in

connection with entry of women of particular age to Sabarimla

Temple, no element of appeal to vote in the name of religion

can be attached to it.

38. Hence, I hold that the statements extracted in

tabular column above, even if proved to have been made or

publicised by the 1st respondent, his election agent or any

other person with their consent would not amount to

commission of a corrupt practice as defined in Section 123 (2)

(a)(ii) or 123(3) of R.P.Act.

Election Petition No.8 of 2021

39. The third contentions of the petitioner is that the

1st respondent used religious symbol for the furtherance of

the prospects of his election coming within the sweep of

Section 123(3) of the R.P.Act. The allegations with respect to

that contention contain in paragraph Nos.16 to 21 of the

election petition are that the 1st respondent, his election

agent and others with their knowledge and consent allegedly

issued Annexures I to III slips depicted with the picture of

Lord Ayyappa containing an appeal to vote for the 1 st

respondent, to the electors in the constituency. The slips are

filled in with the booth number, serial number, house

number, name, age, polling station, etc. of the elector. A few

electors to whom such slips were issued have been made

mention of in the said paragraphs in the election petition.

Annexures I to III are similarly printed formats. Annexure I

and its English translation at Annexure I(a) are reproduced

below:

Election Petition No.8 of 2021

Election Petition No.8 of 2021

40. Annexures I, II and III are depicted with picture of

Lord Ayyappa with an inscription that "Your vote is for

Ayyappa" and an appeal "to vote for the 1 st respondent". A

picture of a Deity certainly is a religious symbol. In Kantaru

Rajeevaru (supra), the Apex Court after referring to the

principle laid down in the Commissioner, Hindu Reigious

Endowments, Madras v. Shri.Lakshmindra Thritha

Swaminar of Sri Shirur Mutt [1954] SCR 1005] and

S.P.Mittal v. Union of India [(1983) 1 SCC 51] held that

devotees of Lord Ayyappa do not constitute a separate

religious denomination, but Hindus in common. It would show

that picture of the deity Lord Ayyappa is a Hindu religious

symbol.

41. A Constitution Bench of the Apex Court in

Ramanbhai Ashabhai Patel v. Dabhi Ajithkumar Fulsinji

[AIR 1965 SC 669] considered the question, what is a

religious symbol. Question there was as to whether the

election symbol 'star' prefixed with the word 'dhruva' would

amount to a religious symbol or rather would it give a

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religious impetus thereby an appeal to the voters in the name

of religion. It was observed that the use of the symbol in

question is of such a nature that it stir up religious

sentiments, if it to be a transgress into the provisions of

Section 123(3) of the R.P.Act. From the said observations, it is

quite clear that a picture of a deity certainly is a religious

symbol.

42. A perusal of Annexures I, II and III would convey a

message that the 1st respondent appeals to vote on the basis

of religious symbol appeared therein. If such slips were

actually distributed to the Hindu voters, who are devotees of

Lord Ayappa, in the constituency, that may amount to use of

religious symbol for the furtherance of the prospects of the

election of the 1st respondent. In that view of the matter, the

pleadings in the election petition relating to use of Annexures

I to III by distributing them to Hindu voters in he

constituency, who are devotees of Lord Ayyappa, prima facie

constitutes corrupt practice coming under Section 123(3) of

the R.P.Act. Therefore, the Election Petition with respect to the

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said aspect is liable to be tried.

43. In the light of the discussion made above,

1) the election petition on the basis of the allegations contained in paragraph Nos.10 to 14 and 20 to 28 of the Election Petition that-,

i) the 1st respondent committed corrupt practice since he, his election agent and other persons with his consent or his election agent induced the electors to vote for him and not to vote for the petitioner by publicising the messages that unless they do so, they will be rendered objects of divine displeasure coming within the meaning of Section 123(2)(a)(ii) of the R.P.Act, or

ii) appealed to the electors to vote for him and refrain from voting to the petitioner on the ground of religion coming within the purview of Section 123(3) of the R.P.Act, do not make out a cause of action. Therefore, the Election Petition as regards the said allegations is rejected under the provisions of Order VII, Rule 11 of the Code, and

2) The averments in paragraph Nos.16 to 21 of the Election Petition that the 1st respondent, his election agent and other persons with the consent of the 1st respondent and his election agent, used Hindu religious symbol by

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distribution of Annexures I to III and similar slips to electors, for the furtherance of the prospects of election of the 1st respondent and for prejudicially affecting the election of the petitioner, made out sufficient cause of action for a trial on the Election Petition in order to decide whether election of the 1st respondent as a member of the Legislative Assembly from Thripunithura Legislative Assembly constituency in the election held on 06.04.2021 is null and void. The Election Petition will be proceeded with in respect of the said aspect alone. Respondents are granted three weeks to file objections/

further objections, if any.

Sd/-

P.G. AJITHKUMAR, JUDGE dkr

29-03-2023 /True Copy/ Assistant Registrar