Kuttan Kattachira @ Kuttan K.P. v. C.K. Asha and others (Election Petition, E.P.No.1/2021)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.SOMARAJAN`** ``` MONDAY, THE 3[RD] DAY OF JANUARY 2022 / 13TH POUSHA, 1943 ``` ## **`EL.PET. NO. 1 OF 2021`** ## **`PETITIONER:`** ``` KUTTAN KATTACHIRA @ KUTTAN K.P., AGED 64 YEARS S/O. POOVANCHAN, AGED 64 YEARS, KANNUVETTIYEL, THALAYOLAPARAMBU, KOTTAYAM, PIN -686605. ``` ``` BY ADV SREEKANTH S.NAIR ``` ## **`RESPONDENTS:`** - `1 C.K.ASHA, W/O. RAJESH K.K., AGED 46 YEARS, KIRAN NIVAS, KUDAVECHOOR P.O., VAIKOM, PIN-686114.` - `2 AKILJITH KALLARA, S/O. THANKAPPAN, AGED 30 YEARS, IYKKARAPARAMBIL, KALLARA SOUTH P.O., KOTTAYAM, PIN-686611.` - `3 DR.P.R. SONA W/O. SHIBU, AGED 42 YEARS, PUTHANPARAMBIL, S.H. MOUNT P.O., KOTTAYAM, PIN-686006.` - `4 AJITHA SABU, W/O. SABU K.K., AGED 49 YEARS KORATTITHADATHIL, PEROOR P.O., KOTTAYAM, PIN-686637.` - `5 BINDU, D/O. NARAYANAN, AGED 45 YEARS, DAIVATHARA, THAIKKATTUSSERY P.O., CHERTHALA, ALAPPUZHA, PIN - 688528.` ``` 6T.K. SABU, S/O. DEVESIA, AGED 51 YEARS, SANKARAMANGALAM, THURUTHY P.O., CHANGANASSERY -686535. R1 BY ADV. P.N.ANOOP R1 BY ADV. T.KRISHNANUNNI (SR.) R1 BY ADV.SANTHOSH PETER (MAMALAYIL) R2 BY ADV.P.K.SANTHAMMA R3 BY ADV.SIJI JOY R3 BY ADV.P.R.SOPHIYA ``` ``` THIS ELECTION PETITION HAVING COME UP FOR HEARING ON 03.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` E.P.No.1/2021 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 095 Vaikom 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 she is the returned candidate. It is submitted that respondent Nos. 1 to 6 belong to various political parties registered under the Representation of the People Act,1951. Admittedly, the constituency 095 Vaikom 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.1/2021 3 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 otherwise so as this say long 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.1/2021 4 _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 she belongs to a particular political party following the concept of secularism, is not expected to disclose her religious identity in the nomination though there is a specific column for making a declaration with respect to her eligibility to contest in a particular constituency reserved for Scheduled Castes or Scheduled Tribes. What is settled by the Apex Court in the abovesaid 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.1/2021 5 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.1/2021 6 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.1/2021 7 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.1/2021 8 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.1/2021 9 ## **`APPENDIX OF EL.PET. 1/2021`** ## `PETITIONER'S ANNEXURES` - `Annexure A1 ORIGINAL OF FORM 2B NOMINATION PAPER OF ELECTION TO LEGISLATIVE ASSEMBLY.` - `Annexure A2 ORIGINAL OF FORM A COMMUNICATION WITH REGARD TO AUTHORISED PERSONS TO INTIMATE NAMES OF CANDIDATES SET UP BY POLITICAL PARTY.` - `Annexure A3 ORIGINAL 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 ORIGINAL OF LIST OF CANDIDATES OF VAIKOM CONSTITUENCY.` - `Annexure A5 ORIGINAL OF PETITIONERS' CANDIDATE IDENTITY CARD.` - `Annexure A6 ORIGINAL OF KERALA GAZETTE NOTIFICATION DATED 04/05/2021 ISSUED BY GOVERNMENT OF KERALA.` ``` //TRUE COPY// ``` ``` PA TO JUDGE ```