Kshatriya Kshema Sabha v. Election Commission and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **&** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **TUESDAY, THE 09TH DAY OF JULY 2019 / 18TH ASHADHA, 1941 WP(C).No.12165 of 2019** ## **PETITIONER:** **THE KSHATRIYA KSHEMA SABHA, (REG.NO.437/81) SUNDARA VILASAM PALACE,KOTTAKKAKAM.P.O, THIRUVANANTHAPURAM,KERALA-695023, REPRESENTED BY ITS STATE GENERAL SECRETARY ADMAJA VARMA THAMPURAN,AGED 51 YEARS,S/O.M.H.NARAYANAN NAMBOOTHIRIPPAD, VELIYTHUMURIKOIKAL,MAJANIKKARA,OMALLOOR, PATHANAMTHITTA-689647,NOW RESIDING AT ELAYAKOVILAKAM,KOVILAKOM COMPLEX, KARAPPUZHA,KOTTAYAM WEST.P.O, KOTTAYAM-686003.** **BY ADVS.SRI.ALEX.M.SCARIA SRI.G.BAIJURAJ SRI.KRISHNA DAS** ## **RESPONDENTS:** - **1 THE ELECTION COMMISSION REPRESENTED BY THE CHIEF ELECTORAL OFFICER, LEGISLATIVE LIBRARY ANNEXE, LEGISLATIVE COMPLEX,THIRUVANANTHAPURAM-695033.** - **2 DISTRICT COLLECTOR, PALAKKAD,IN HIS CAPACITY AS THE RETURNING OFFICER UNDER THE REPRESENTATION OF PEOPLE ACT,1951 AND THE RULES THEREUNDER,CIVIL STATION, PALAKKAD,SOUTH FORT ROAD-678001.** W.P.(C)No.12165 of 2019 2 - **3 DISTRICT COLLECTOR,ALAPPUZHA, IN HIS CAPACITY AS THE RETURNING OFFICER, UNDER THE REPRESENTATION OF PEOPLE ACT,1951 AND THE RULES THEREUNDER,CIVIL STATION, ALAPPUZHA-688001.** - **4 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT,GOVENMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **5 THE TRAVANCORE DEVASWAM BOARD, DEWASWAM BOARD JUNCTION,NANTHANCODE, KAWDIAR POST,THIRUVANANTHAPURAM-695003, REPRESENTED BY ITS CHAIRMAN.** **R2 TO R4 BY SR. G.P. SRI T.K. ANANDAKRISHNAN R5 BY ADVS.SRI.S.RAJMOHAN, SC, TDB R1 SRI.MURALI PURUSHOTHAMAN, SC,ELE. COMMN.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)No.12165 of 2019 3 ## **“C.R.”** ## **JUDGMENT** ## **Ravikumar, J.** The Kshatriya Kshema Sabha claims to be a registered organization (under which enactment ? It is not stated in the writ petition) filed this writ petition seeking the following reliefs:- - “i) issue a Writ of Certiorari or any other Writ, Order or Direction to quash Exhibit-P3; - ii) issue a Writ of Mandamus or any other Writ, Order or Direction commanding and compelling the respondents to provide polling stations to Purappeda Santhis of Sabarimala and Malikappuram temple in the temple premises or provide them postal vote facility for the up coming Lok Sabha elections; - iii) issue a Writ of Mandamus or any other Writ, Order or Direction commanding and compelling the respondents to make a permanent arrangement to ensure voting facility to the Purappeda Santhis of various temples of the State of Kerala;” 2. Essentially, the grievance projected in the writ petition pertains to the rejection of the request to permit the Melsanthis of Sabarimala and Malikappuram Temples to cast postal vote or to provide them polling stations in the said temple premises by the Chief Electoral Officer. Ext.P3 to that effect came to be passed on a request in writing for the said purpose by the State General Secretary of the petitioner organization. As per Ext.P3, he was informed that postal ballot could W.P.(C)No.12165 of 2019 4 be permitted only in the case of officers deputed for polling duty and such request could not be acceded. The petitioner seeks for quashment of Ext.P3 and also for issuance of a writ of mandamus commanding the respondents to provide polling stations solely for the _Melsanthis_ of Sabarimala and Malikappuram Temples at Sabarimala for the upcoming Lok Sabha elections. With respect to the second prayer virtually, it is not now surviving. Obviously, the said election is over. Therefore, the surviving questions in this writ petition are whether Ext.P3 letter invites interference and whether the petitioner is entitled to seek for issuance of a writ of mandamus commanding the respondents to make permanent arrangements to ensure voting facility to the _Purappeda Santhis_ of various temples of the State of Kerala, including Sabarimala and Malikappuram. 3. The first respondent filed a statement taking up the contention that the writ petition is not maintainable. Furthermore, it is stated therein that franchise being an individual's statutory right the petitioner organization cannot maintain a writ petition carrying such prayers. As regards the request for providing polling stations, it is stated that Section 25 of The Representation of the People Act, 1951 (for brevity `R.P Act' only) deals with the issue and as a matter of right, none can seek for establishment of a polling station at any W.P.(C)No.12165 of 2019 5 particular place and it is for the authorities concerned to take a decision on the said aspect in accordance with the mandates under the provisions of the R.P Act. As regards the request for providing postal vote facility to the _Purappeda Santhis_ of various temples in the State of Kerala including _Melsanthis_ of Sabarimala and Malikappuram temples, it is stated that in view of Rule 16 of Conduct of Elections Rules, 1961, it is impermissible in law to grant the said relief. Rule 18 thereunder provides the categories of persons who are entitled to vote by post in a parliamentary or assembly election in any constituency. In short, raising such contentions, the first respondent seeks for dismissal of the writ petition. 4. Heard the learned counsel for the petitioner, the learned Standing Counsel appearing for the Election Commission, the learned counsel appearing for the 5[th] respondent Travancore Devaswom Board and also the learned Senior Government Pleader. 5. We have already adverted to the reliefs sought for, by the petitioner in the writ petition. It is to be noted that the democratic system in India is based on the principle of universal adult franchise; that any citizen over the age of 18 years can vote in an election. True that the right to vote is not available to certain categories namely, persons of unsound mind and persons convicted for certain criminal W.P.(C)No.12165 of 2019 6 offences. The question whether the right to vote is a fundamental right or a constitutional right or a statutory right, is no longer _res integra_ . The Hon'ble Apex Court in **N.P.Ponnuswami** v. **The Returning Officer, Namakhal Constituency (AIR 1952 SC 64)** held that the right to vote or to stand as a candidate for election is not a civil right but is only a creature of statute or special law and therefore, must be subject to the limitations provided under the statute. This question was again considered by the Hon'ble Apex Court in **Rajbala and Others** v. **State of Haryana and Others** reported in **(2016) 2 SCC 445** . The Apex Court was considering the said question with reference to Part IX of the Constitution of India dealing with Panchayats. The Apex Court held that right to vote at and right to contest election to Panchayat are constitutional rights after the introduction of Part IX of the Constitution of India. However, they are neither fundamental nor statutory rights simpliciter, but constitutional rights. Certainly, in the case on hand, we are concerned with Part XV of the Constitution of India. But, at the same time, the decisions of the Apex Court in **Ponnuswami's** case and **Rajbala's** case (supra) would not become inapplicable in regard to the aforesaid question. In such circumstances, without all peradventure, it can be said that franchise is not a fundamental right though it is a constitutional right as recognized under Article 326 of the Constitution W.P.(C)No.12165 of 2019 7 of India and a right statutorily conferred under Section 62 of the R.P Act. Briefly stated, right to vote of every citizen at an election, either to the Lok Sabha or to the Legislative Assembly, is recognised under Articles 325 and 326 subject to limitations with reference to qualifications and disqualifications prescribed by or under the Constitution and also the R.P. Act. 6. Now, we will consider the question whether the petitioner can maintain this writ petition for the aforesaid purpose and in that regard the aforesaid aspects and various other factors have to be taken into account. We have already taken note of the fact that right to vote is not a fundamental right and there can be no doubt with respect to the position that unless a fundamental right is involved the remedy of writ would be discretionary. As stated earlier, right to vote in an election to Lok Sabha or to Legislative Assembly is a constitutional right as also a right recognized under Section 62 of the R.P. Act. In such circumstances, if it is violated, is it not for the party concerned to take up the matter in accordance with law ? Even at the instance of a ` _Purappeda Santhi_ ' whether the claims, contentions and reliefs sought for, as mentioned hereinbefore, are tenable ? In the contextual situation, certain provisions under the R.P. Act are worthy for reference. Section 20 of R.P. Act, 1950 deals with the meaning of the term of W.P.(C)No.12165 of 2019 8 `ordinarily resident'. It defines the said term as hereunder:- ## “ **20. Meaning of “ordinarily resident** ” (1) A person shall not be deemed to be ordinarily resident in a constituency on the ground only that he owns, or is in possession of, a dwelling house therein.” Going by Section 20(1A), a person absenting himself temporarily from his place of ordinary residence shall not by reason thereof cease to be ordinarily resident therein. Section 21 deals with preparation and revision of electoral rolls. Section 22 deals with correction of entries in electoral rolls. Section 23 deals with inclusion of names in electoral rolls and Section 24 provides appeals on the said subject. In short, going by the provisions of the Representation of the People Act, 1950 as also the Representation of the People Act, 1951, it can be seen that the right to vote is available only to a person who is included in an electoral roll and that too, in the constituency for which it is prepared. In the case on hand, the present _Purappeda Santhis_ of Sabarimala and Malikappuram who have been appointed only for a particular period, their names are included in the electoral roll of the place to which they are ordinarily residents. The term ` _Purappeda Santhi_ ' is not defined in any enactment. No definition of the said expression given in any text or statute is brought to our notice. _Purappeda Santhi_ (resident priest) is commonly understood as that Santhi (priest) who was appointed or W.P.(C)No.12165 of 2019 9 nominated in respect of any particular temple where a custom exists mandating that the persons so selected and appointed as _Purappeda Santhi_ during his tenure shall remain in the temple premises concerned and could leave the said premises only after the expiry of the said term. In this context, the meaning of the said term given in ` _Sabdha Tharavali_ ' (ശബത�ര�വല� ) which is a Malayalam dictionary, assumes relevance. In its 4[th] edition its meaning is given as follows:- “ ” പറപ�ട� ശ�ന� **-** ക�തത�ൽതപ� ശ�ന�ക�ല� മഴവൻ ത�മസ�ക� ര�ത� **.** Thus, the appointees of _Purappeda Santhis_ are virtually undertaking to abide by such conditions and during such term they cannot leave the temple premises. Thus, it is evident that those persons on their own agreed to abide by the conditions to remain as _Purappeda Santhis_ . None of them is before us raising a contention that he has suffered a legal wrong or injury. However, it appears that it is the grievance of the petitioner organization that owing to the disinclination shown by the Chief Electoral Officer to permit the _Purappeda Santhis_ of Sabarimala and Malikappuram they could not cast their votes in the just concluded election to the Lok Sabha. As noticed hereinbefore, the petitioner is seeking issuance of a writ of mandamus commanding the respondents to make permanent arrangements to ensure voting W.P.(C)No.12165 of 2019 10 facilities to _Purappeda Santhis_ of various temples of State of Kerala including Melsanthis of Sabarimala and Malikappuram. 7. When once it is found that the right to vote is a constitutional right and also a right conferred by relevant statutes and not a fundamental right the question is whether the petitioner organization can take up the case of _Purappeda Santhis_ of various temples of State of Kerala when such persons, on their own accepted the condition to remain within the premises of the temples, during their tenure of appointment as _Purappeda Santhis_ by accepting such appointments _._ When that be so, how can the petitioner seeks for issuance of a writ of mandamus ? It is true that there is no inviolable position that to maintain a petition for mandamus or certiorari the petitioner's personal right must be infringed. But, at the same time, the question is what is the legal wrong or injury being suffered by the _Purappeda Sathis_ that is justiciable or available to be espoused by the petitioner? Certainly, the petitioner got no grievance that he was subjected to any legal wrong. Hence, the question is with respect to the right to vote, whether the petitioner could be permitted to espouse the case of those _Purappeda Santhis ?_ 8. In order to answer the said question it is also relevant to note that right to vote would 'take in' the right not to vote. It is to be W.P.(C)No.12165 of 2019 11 noted that even in respect of a person whose name is included in an electoral roll certainly, it would be open to him to take a decision and to vote. We are referring to these aspects only to highlight the fact that it is purely the right vested with a particular individual. No mandamus could be issued at the instance of any particular person to permit him to cast postal vote or to set up a polling station to enable him to vote. When such requests could not be made by a _Purappeda Santhi_ , on his own legally, how can another individual or organization whose right was not at all infringed or who suffered no legal wrong or injury can take up a case in respect of any _Purappeda Santhi_ ? 9. As regards the question of casting postal vote the said subject is dealt with under Rule 18 of the Conduct of Election Rules. 1961. Going by Rule 18(a) of the Conduct of Elections Rules, 1961, only four categories of persons are entitled to vote by post. Rule 18(a) alone is relevant for the purpose of this case as Rule 68 of the aforesaid Rules is inapplicable in this case. It reads thus:- “ **18. Persons entitled to vote by post.** - The following persons shall, subject to their fulfilling the requirements hereinafter specified, be entitled to vote by post, namely:- - (a) at an election in a parliamentary or assembly constituency- - (i) special voters; - (ii) service voters; W.P.(C)No.12165 of 2019 12 ## (iii) voters on election duty; and ## (iv) electors subjected to preventive detention;” The expressions 'special voter', 'service voter' and `voter on election duty' have been defined under Rule 17 thereunder. Rule 17 reads thus:- ## “ **17. Definitions** .-In this Part,- “(a) “service voter” means any person specified in clause (a) or clause (b) of section 60, but does not include “classified service voter” defined in rule 27M; (b) “special voter” means any person holding an office to which the provisions of sub-section (4) of section 20 of the Representation of the People Act, 1950 (43 of 1950) are declared to apply or the wife of such person, if he or she had been registered as an elector by virtue of a statement made under sub-section (5) of the said section. (c) “voter on election duty” means any polling agent, any polling officer, presiding officer or other public servant, who is an elector in the constituency and is by reason of his being on election duty unable to vote as the polling station where he is entitled to vote.” Going by the Rules, only the aforementioned categories, subject to their fulfilling the requirements specified alone, are entitled to cast vote by post. In view of Rules 16 and 18 of the Conduct of Elections Rules, 1961 _Purappeda Santhis_ of Temples including Sabarimala and Malikappuram cannot be permitted to cast vote by post. Certainly, the _Purappeda Santhis_ of various temples including Sabarimala and W.P.(C)No.12165 of 2019 13 Malikappuram would not belong to any of such categories. When that be so, there cannot be any direction to provide them facility to cast vote by post. Hence, we do not find any reason to hold that Ext.P3 is liable to be set aside. In fact, what was intimated to the State General Secretary of the petitioner organization is only the position obtained in the relevant provisions viz., The Conduct of Election Rules. 10. With respect to the establishment of polling stations also we have already taken note of the fact that, that is essentially a matter for the authorities concerned to decide in accordance with law as to whether such polling stations are to be provided. Section 25 of R.P. Act, 1951 provides thus in this regard:- “ **25. Provision of polling stations for constituencies** .- The District Election Officer shall, with the previous approval of the Election Commission, provide a sufficient number of polling stations for every constituency the whole or greater part of which lies within his jurisdiction, and shall publish, in such manner as the Election Commission may direct, a list showing the polling stations so provided and the polling areas or groups of voters for which they have respectively been provided.” Section 62(1) of R.P. Act, 1951 is also relevant in this context. It reads thus:- ## “ **62. Right to vote** (1) No person who is not, and except as expressly provided by the Act, every person who is, for the time being entered in the electoral roll of any constituency W.P.(C)No.12165 of 2019 14 shall be entitled to vote in that constituency.” Section 15 of R.P. Act, 1950 mandates for preparation of electoral roll for every constituency. It reads thus:- ## “ **15. Electoral roll for every constituency** For every constituency there shall be an electoral roll which shall be prepared in accordance with the provisions of this Act under the superintendency, direction and control of the Election Commission.” As a matter of right, a voter or on his behalf any one could contend that at a particular place a polling station should be established in connection with an election to enable him to vote. In respect of _Purappeda Santhis_ essentially, the appointment as _Purappeda Santhi_ in any temple where such a custom is prevailing, will only for a particular period, which is usually a period of one year. Normally, name of such an appointee/selectee as _Purappeda Santhi_ would also be there in the electoral roll prepared for the constituency where he is an 'ordinarily resident'. The conjoint effect of Section 15 of R.P. Act, 1950 and Section 62(1) of R.P. Act, 1951 is that any person whose name is entered in the electoral roll of any constituency would be entitled to vote in that constituency only. How can this Court issue a writ of mandamus for providing a polling station inside a temple premise ? As W.P.(C)No.12165 of 2019 15 regards a _Purappeda Santhi_ he cannot leave the temple premise during the tenure of his appointment as _Purappeda Santhi._ Even in the case of such a Santhi who actually belongs to the constituency where the temple concerned situates his right can only be to cast vote in the polling booth concerned provided in the said constituency and not else where. Thus, viewing the claims and contentions of the petitioner in any angle we do not find any reason to sustain them. The upshot of the discussion is that the petitioner is not entitled to seek and get the reliefs sought for, in respect of Purappeda Santhis within the State of Kerala. Consequently, this writ petition stands dismissed. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **N.NAGARESH Judge** TKS W.P.(C)No.12165 of 2019 16 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 THE LIST OF PERSONS FOR WHOM THE VOTING FACILITY IS PRAYED FOR** **EXHIBIT P2 TRUE COPY OF THE PAPER PUBLICATION OF SELECTION OF THE EXHIBIT P1 PERSONS AS MELSHANTHIS.** **EXHIBIT P3 TRUE COPY OF THE LETTER DATED 23/03/2019 BEARING NO.1943/EL3/2019/ELECTION ISSUED BY THE 1ST RESPONDENT.** TKS