IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 26TH JULY 2010 / 4TH SRAVANA 1932 El.Pet..No. 3 of 2009() ----------------------- PETITIONER -------------------- N.S.SAJI KUMAR, S/O.SANKARAN, 45 YEARS, NEDUMCHIRA VEEDU, KAINADY.P.O., KUTTANADU TALUK, ALAPPUZHA DISTRICT. BY ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE SRI.T.RAMPRASAD UNNI RESPONDENT(S): --------------- KODIKUNNIL SURESH @ J.MONIAN, AGED 47 YEARS, S/O.JOSEPH, SCHOOL VIEW, KIZHAKKEKARA, KOTTARAKKARA.P.O., KOLLAM DISTRICT. ADV. SRI.S.VINOD BHAT FOR R1 SRI.K.HARILAL FOR R1 SRI.JOHNSON ABRAHAM (MAVELIKKARA) FOR R1 SRI.R.D.SHENOY, SENIOR ADVOCATE FOR R SRI.S.VINOD BHAT SRI.K.HARILAL SRI.JOHNSON ABRAHAM (MAVELIKKARA) THIS ELECTION PETITION HAVING BEEN FINALLY HEARD ON 4/06/2010 ALONG WITH EP NO. 7 OF 2009, EP NO. 8 OF 2009 THE COURT ON 26/7/2010 DELIVERED THE FOLLOWING: APPENDIX PETITIONRS EXHIBITS Ext.P1: Photocopy of caste certificate dt.5/3/09 issued to respondent from Taluk Office, Kottarakara. Ext.P2: Photocopy of Caste Certificate dt. 12/3/2009 issued to first respondent from Taluk Office, Nedumangad. Ext.P3: Proceeding of the Returning Officer, 16- Mavelikkara Constituency Ext.P3(1): English Translation of Exhibit P3. Ext.P4: Extract of Tabulation Register of SSLC Examination March, 1998 Ext.P5: Copy of Electoral Roll of 110 Chengannur Assembly Constituency. Ext.P6: True photocopy of identity card of petitioner in E.P.8/2009 Ext.P7: True photocopy of community certificate issued to petitioner in E.P.8/2009. Ext.P8: Copy of Notification. Ext.P9: Copy of Extract of Admission Register maintained by GHSS, Ayiroopara with respect to respondent. Ext.P10: Copy of extract of Admission Register maintained by LVHS, Pothancode with respect to respondent. Ext.X1: File from Taluk Office, Nedumangad Ext.X1(a): Application for caste certificate sub- mitted by Sri.Kodikunnil Suresh. Ext.X1(b): Report submitted by Village Officer, Vembayam. Ext.X1(c): Caste certificate dt.12/3/2010 issued to Sri.Kodikunnil Suresh. Ext.X1(d): Further Report submitted by Village Officer, Vembayam dt. nil. Ext.X1(e): Copy of voters list with respect to 130 Nedumangad Assembly Constituency. Ext.X2: File sent from District Collector, Alappuzha (Returning Officer) Ext.X2(a): Attested copy of caste certificate dt. 12/3/2009 issued to Sri.Kodikunnil Suresh by Tahsildar, Nedumangad. Ext.X2(b): Caste certificate dt.5/3/2009 issued to Sri.Kodikunnil Suresh by Tahsildar, Kottarakara. Ext.X2(c): Order dt.31.3.2009 by District Collector Alappuzha. Ext.X2(d): Report by Tahsildar, Nedumangad. Ext.X2(e): Report by District Collector, Thiruvananthapuram. Ext.X2(f): Fax message issued to Tahsildar, Kottarakara. Ext.X2(g): Report by Tahsildar, Kottarakara Ext.X2(h): 1st page of the Ration Card with respect to Smt.Thankamma. Ext.X3: File sent from Tahsildar, Kottarakara Ext.X3(a): Application submitted by Sri.Kodikunnil Suresh Ext.X3(b): Report submitted by Village Officer on the reverse side of Exhibit X3(a). Respondent's Exhibits:- Ext.R1 certified extract of Admission Register in respect of Raju K. having Admission Number 6665 issued by the Headmistress, Government Higher Secondary School, Ayirooppara. Ext.R2 Original SSLC Book of Monian J. Ext.R3 Extract of Admission Register relating to Leela T. Ext.R4 Legal and Constitutional Digest published by Secretariat. The Kerala Legislative Thiruvananthapuram Volume 18 No.1(Election Special Issue) disclosing results of General Elections to Lok Sabha 1952-1999. Ext.R4(a) Legal and Constitutional Digest published by Secretariat. The Kerala Legislative Thiruvananthapuram Volume 18 No.1 (Election Special Issue) disclosing results of General Elections to Lok Sabha 1952-1999. (pages 123 and 124). Ext.R5 Transfer Certificate No.95/89-90 issued by Government Law College,Thiruvananthapuram relating to respondent. Ext.R6: Page 222 of Admission Register, Government Law College, Thiruvananthapuram for the year 1984-85 attested by the Principal, Government Law College, Thiruvananthapuram. Ext.R7: Letter No.EL-1-58200/09 dated 23-10-2009 received by the respondent from Deputy Collector (Election) Kollam. Ext.R8: Copy of Caste Certificate issued by Tahsildar, Nedumangad to the respondent dated 27-10-1989 Ext.R8(a) Copy of Caste Certificate issued by Tahsildar, Nedumangad to the respondent. Ext.R8(b): Copy of Caste Certificate issued by Tahsildar, Nedumangad to the respondent. Ext.R9: Kerala Gazette Volume XXIII,Part IV dated 21-11- 1978 Pages 405 to 408 both inclusive) Ext.R10: Certificate issued by Kerala Hindu Mission, bearing number 107365 relating to respondent Ext.R11: Invitation relating to the marriage of T.K. Anila to Sri.P.G. Rajan. Ext.R12: Caste Certificate issued to T.Anila by Tahsildar, Nedumangad. Ext.R13: Kerala Gazette Volume XXXVI Part IV pages 35 and 36 regarding reconversion of T.Christeena to Hinduism Ext.R13(a): Kerala Gazettee Volume XXXVi Part IV pages 35 and 36 regarding reconversion of T.Christeena to Hinduism (page 36) Ext.R14:- Marriage Certificate dated 22-10-2009 issued by Thiruvananthapuram Corporation pertaining to the marriage of the respondent with Bindu Shekar Ext.R15: Marriage photo album relating to the marriage between the respondent and Bindu Shekar. Ext.R16 Series Negatives (39 negatives) Ext.R17: Certificate issued by Kerala Cheramar Sangham (KCS), Thiruvananthapuram under Ref.No.47/B1/KCS/79. Ext.R18: Bye-laws of Kerala Pulayar Mahasabha registered as No.S.13/1970 under the Travancore -Cochin Literary Scientific & Charitable Societies Act XII of 1955. Ext.R19: Certificate issued by Kerala Cheramar Sangham w.r. to Jnanaseelam Ext.R20: Certificate issued by Hindu Mission w.r. to Smt.T.Anila dt. 30.12.89. Ext. R21: News item published in Malayala Manorama dt. 2/2/2008. Ext.R22: Certificate issued to Sri.K.Susheelan by Kerala Hindu Mission. M.SASIDHARAN NAMBIAR,J. ============================== E.P. No.3, 7 & 8 of 2009 ============================== Dated this the 26th day of July, 2010 JUDGMENT Petitioners in E.P.3/2009 and 8/2009 are voters of Mavelikkara Parliamentary Constituency. Petitioner in E.P.7/2009 is the defeated candidate in the election. E.P.3/2009 and E.P.8/2009 are filed under section 100(1) (a) of the Representation of People Act to declare the election of the respondent from No.16 of Mavelikkara Parliamentary Constituency to the Lok Sabha void and to set aside the election. The ground in both the petitions is the same. Respondent the elected candidate was not qualified to contest the election for a Constituency reserved for Scheduled Caste as he is not a member of the Scheduled Caste and instead is a Christian. In E.P.7/2009 in addition to the ground taken in the other two election petitions, petitioner sought to set EP 3, 7 & 8 of 2009 2 aside the election under section 100(1)(d)(i)on the ground that the nomination of the respondent a christian who is not qualified to contest from a reserved Constituency ought to have been rejected by the Returning Officer and the improper acceptance of the nomination paper by the Returning Officer has materially affected the result of the election and on that ground also, election of the respondent is void and is to be set aside. No.16 Mavelikkara Parliamentary Constituency was a reserved Constituency for Scheduled Caste. The last date for submitting the nomination paper was 30.3.2009. The date for scrutiny of the nomination paper was 31.3.2009. The last day for withdrawal of the valid nomination papers was 2.4.2009. The polling was conducted on 16.4.2009. The votes were counted on 16.5.2009. Respondent the candidate of Indian National Congress secured 3,97,211 votes. Petitioner in E.P.7/2009 a candidate of the Communist Party of India secured 3,49,163 votes. Respondent was declared elected with a margin of EP 3, 7 & 8 of 2009 3 48048 votes. As the election challenged in all these cases is of the same Parliamentary Constituency, all the three petitions were jointly tried and E.P.3/2009 is treated as the main case. 2. The case of the Election Petitioner in E.P.3/2009 is that under Article 366 (24) of the Constitution of India scheduled caste is defined as means such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under article 341 of the Constitution to be scheduled castes for the purpose of Constitution and under Article 341, the President of India may with respect to any State or Union Territory after consultation with the Governor by public notification specify the castes, races or tribes which shall for the purposes of the Constitution of India be deemed to be Scheduled Castes in relation to that State as the case may be and as per the Constitution Scheduled Caste Order 1950, the caste shown in Part VIII are declared as Scheduled Caste in the State of Kerala and under Entry 54, Pulayan, EP 3, 7 & 8 of 2009 4 Cheramar, Pulaya, Pulayar, Cherama, Cheraman, Wayanad Pulayan, Wayanadan Pulayan, Matha, Matha Pulayan are the Scheduled Castes. Under section 4 of the Representation of People Act a person shall not be qualified to be chosen to fill a seat in the House of the people unless in the case of a seat reserved for the Scheduled Castes in any State, he is a member of any of the Scheduled Caste of that State or any other State and is an elector for any Parliamentary Constituency. The respondent is not a Scheduled Caste qualified to stand for election to a Constituency reserved for Scheduled Caste. It is contended that along with the nomination paper respondent submitted a declaration that he is a member of Hindu Cheramar community and produced a certificate issued by Tahsildar, Nedumangad that he belongs to Hindu Cheramar by a Suddhi certificate dated 25.5.1978 issued by Kerala Hindu Mission, he converted from Christianity to Hinduism and his name was changed from Monian,J., s/o. Joseph to J. Suresh and the conversion was EP 3, 7 & 8 of 2009 5 published in the Gazette on 21.11.1978 and the Returning Officer did not make any mention of the Gazette publication or the conversion certificate relied on by the respondent. Eventhough he produced two divergent caste certificates, one that he belongs to Hindu Cheramar and the other Hindu Pulaya, at the time of scrutiny though the qualification of the respondent was disputed, this was not properly considered and the nomination of the respondent was accepted. He was later declared elected. It is contended that the name of the respondent is J. Monian and the name of his mother is Rosily and in S.S.L.C examination and the certificate issued thereto, respondent was shown as a Christian Cheramar and though a Notification was published in the Kerala Gazette dated 1.6.1978 by the brother of the respondent that respondent has changed his religion from Christianity to Hinduism and name was also changed to J. Suresh, the school records where he studied including the S.S.L.C book show that he is a Christian Cheramar, son of EP 3, 7 & 8 of 2009 6 Thankamma who is a Christian Gazette publication by the brother is not valid. It is contended that respondent never practiced Hindu religion and even if he was converted to Hinduism, he cannot convert himself as a Hindu Cheramar as his parents admittedly belong to Christian religion which is not a Scheduled Caste as per the Constitution (Scheduled Castes and Scheduled Tribe) Order, 1950 issued by the President of India and respondent was all along living as Christian. He was attending Churches. It is further contended that the Scheduled Caste community never accepted the respondent as a member of their community and a person who was born to Christian parents, brought up as a Christian, studied as a Christian, passed SSLC examination as a Christian, cannot later declare himself that he is a Hindu Cheramar. It is also contended that when the caste certificate issued by Tahsildar Nedumangad shows that respondent a Hindu Cheramar, Tahsildar, Kottarakkara certified that he is a Hindu Pulayan. EP 3, 7 & 8 of 2009 7 Respondent cannot claim to be a Cheramar and Pulayan at the same time as both are distinct and different castes. It is also contended that the caste certificate issued by the Tahsildar, Nedumangad is a fake certificate which is not valid and it was not issued after inquiry as provided under the provisions of Kerala (Scheduled Castes/Scheduled Tribes Regulation of Issuing Community Certificate) Act, 1996 and no application as provided under the Act was submitted and no inquiry as provided therein was conducted and the certificate was not issued in the prescribed form. Respondent and his family have been living as Christians in Vembayam and it is gathered that they were attending nearby Churches. The members of the family and relatives of the respondent are also doing that and he has been living as Christian without any caste and the Cheramar Pulayan community never accepted respondent as a member of that community and therefore election of the respondent is liable to declared void and is to EP 3, 7 & 8 of 2009 8 be set aside. 3. The petitioner in E.P.7/2009 reiterating the very same contentions additionally contended that the school register maintained by the Government Higher Secondary School, Ayiroopara indicates that Joseph, the father of the respondent was the guardian and Thankamma was the mother and Suseelan, his brother has no authority to change the religion or name of his minor brother. The respondent is a native of Kodikunnil Theepukal Muri of Vembayam Village in Nedumangad Taluk. His parents are late Joseph and mother Smt.Thankamma. Both are Christians. Respondent was born on 4.6.1972 and was baptised as a Christian in Malankara Catholic Church, Ayiroopara. He studied in Government Upper Primary School, Ayiroopara from Standards I to VII, and in Lakshmi Vilas High School, Mandavakunnu from Standard VIII to X. The records maintained in both schools indicate that he is a Cheramar Christian and he joined in GHSS, Ayiroopara on 7.6.1967 and in the admission EP 3, 7 & 8 of 2009 9 register also name of the parent is Joseph and religion Christian Cheramar and in the S.S.L.C. book he is shown as Christian Cheramar. On 1.6.1978 his brother Suseelan made a publication in the Kerala Gazette that he changed the name of his minor brother J. Monian from Christianity to Hinduism with the name J.Suresh. But the SSLC book shows his name as Monian and caste Christian. It is contended that respondent had never practiced Hindu religion and was not a member of Scheduled Caste Hindu Cheramar. Upto 1989 he has not claimed that he belongs to Hindu Cheramar community. In 1989 he contested from the Adoor SC reserved Parliamentary Constituency on the strength of bogus certificates issued and thereafter he fabricated various documents and claims that he is a member of Hindu Cheramar community. A person born to Christian parents and brought up as a Christian cannot become a member of Scheduled Caste community, even if he converts to Hinduism from Christianity. Membership in a particular caste in EP 3, 7 & 8 of 2009 10 Hindu religion can only be by birth and nobody can acquire membership in a particular caste, especially a Scheduled Caste by conversion/change of religion. He filed an application on 7.3.2009 before Tahsildar, Nedumangad to issue a caste certificate claiming that he is a Hindu Cheramar and son of late Kunjan and the report of the Village Officer indicates that his parents both belong to Hindu Cheramar community. A caste certificate was issued on 12.3.2009 showing the name of his father as Kunjan, though as matter of fact, his name was Joseph till his death. Father of respondent could not have converted to Hinduism posthumously. Respondent had submitted another application before Tahsildar, Kottarakkara on 4.3.2009 to issue a caste certificate claiming that he is a member of Hindu Pulaya Community. A report was submitted by the Village Officer on 5.3.2009 showing that he is son of late Kunjan and Thankamma and he belongs to Hindu Pulayan community and practising Hindu rites. The caste EP 3, 7 & 8 of 2009 11 certificate so issued is false. The Returning Officer in his anxiety to accept the nomination paper of the respondent, overlooked the glaring contradictions in the caste certificates. Therefore his nomination paper was improperly accepted. It has materially affected the result of the election. Petitioner contended that the election of the respondent be declared void on the ground that respondent was not qualified to stand for election in a Constituency reserved for Scheduled Caste and also because his nomination paper was improperly accepted, which has materially affected the result of the election. It was prayed that the election of the respondent is void and is to be set aside. 4. Petitioner in E.P.8/2009 claiming to be an elector belonging to Scheduled Caste contended that respondent being not a member of a Scheduled caste, is not qualified to stand for election in a Constituency reserved for Scheduled Caste and respondent was never a Pulaya or Cheramar, from EP 3, 7 & 8 of 2009 12 the date of birth. He continued to be a Christian. Therefore he is disqualified to claim any of the privileges or reservation or benefits available to the members of the Scheduled Caste. Petitioner sought to declare the election void, as respondent is not qualified to stand for election in a Constituency reserved for Scheduled Castes. 5. Respondent filed separate written statement in all the cases raising identical contentions. Respondent contended that under Entry 54 of the Constitution (Scheduled Castes) Order, 1950, Pulayan and Cheramar are Scheduled Castes and a member of Cheramar Community is qualified to stand for election in Mavelikkara Parliamentary Constituency, which is reserved for Scheduled Caste. Respondent submitted four sets of nomination papers on 23.3.2009 complying with the legal requirements. After scrutiny of the nomination papers on 31.3.2009, his nomination paper was accepted. The polling was on 16.4.2009 and counting was on 16.5.2009. On 16.5.2009 he EP 3, 7 & 8 of 2009 13 was declared elected. The name of the father of the respondent is Kunjan and mother Thankamma. Of the children born to them, respondent is the fourth child. His elder brother is K.Susheelan and younger sister is T.Anila and the name of the elder sister is T.Leela. The Cheramar caste is included in Entry 54 as a scheduled caste. Historically members of the Pulaya Caste, in course of time had changed the name to Cheramar, though many of its members adhered to the practice of calling themselves Pulaya. Whether Pulaya or Cheramar, both are included in Entry 54. Kunjan was illiterate. So also his mother Thankamma. The family was poverty stricken. Kunjan was of ill health and could do only menial work in connection with agriculture which was seasonal. Hence parents of the respondent could not find a way to maintain the family. They decided to avail the reliefs extended by Christian Missionaries to the poor. In course of time, father of the respondent was named as Joseph by Christian missionaries who EP 3, 7 & 8 of 2009 14 called him by that time. He used to acknowledge the name. He went to the missionaries only to avail the relief, such as milk powder, bread and American wheat and was not converted to Christianity. He continued to be called as Kunjan by members of his caste . The relationship between the members of his caste and father of the respondent was cordial. The members of his caste did not see any reason to outcaste or to excommunicate him. Parents also never desired or intended to break the social ties with their caste and their members. The Christian missionaries were tolerant and has not raised any objection in the parents of the respondent keeping the pictures of Hindu deities in their house or worshipping them. Social customs of their community were maintained in the family of the respondent. The conversion if at all was only nominal. It is also contended that in the erstwhile Travancore-Cochin State, it is usual to find persons converted to Christianity, retaining their original caste. The parents of the EP 3, 7 & 8 of 2009 15 respondent did not abjure Hindu religion. The parents of the respondent irrespective of the question whether they abjured or not abjured Hindu religion, retained their caste, Cheramar. The caste is evident in the SSLC book and school admission registers. After attaining the age of discretion and gaining knowledge of the world affairs, the children of the convert are at liberty to revert to Hindu religion. The information gathered by the respondent was that the school records pertaining to the respondent maintained in Government Secondary School, Ayiroopara, showed the name of the father of the respondent as Joseph and the religion as Christian. So also records maintained in LVHS, Pothencode showed the name of the respondent as Monian and mother as Thankamma. His religion in those records are shown as Christian and caste Cheramar. In view of these entries, respondent decided that the cloud created by the school records to the effect that respondent is a christian which is nothing but EP 3, 7 & 8 of 2009 16 thrusting on the respondent the Christian religion must be removed. Accordingly respondent underwent expiatory ceremonies and was given suddhi certificate by Kerala Hindu Mission in May 1978. Thus the religion of christianity thrust upon the respondent was got rid of by his reconverting to Hinduism. The change of his name as Suresh and fact that he has converted to Hindu Religion were published in the Gazette in 1978 itself which was done with full publicity and voluntarily. Suseelan, who published the Gazette Notification is his elder brother. Father of the respondent died in 1970. Mother was illiterate. It was in such circumstances, Suseelan was looking after his family as guardian and took steps to effect Gazette Notification. What all things respondent was made to do, during his childhood, is of no relevance as he has no knowledge as to what was being done and what is religion. The respondent decided to get converted to Hinduism. He underwent Suddhi ceremonies and converted to Hinduism. His conduct EP 3, 7 & 8 of 2009 17 after 1978 is clear and conclusive that he is a Hindu and member of Cheramar caste. During his studies he conducted himself as a student, whose religion is Hindu and whose caste is Cheramar. He never used to attend the Church after he came back to Hinduism. He has been offering worship to Hindu deities in temples. In 1994 he married Bindu, a member of scheduled caste who hails from Palakkad. The marriage was performed in accordance with the customs and rules prevalent among the members of the Cheramar Caste. The marriage was conducted in Subramaniyam Hall, Vazhuthakad. After he came of age, he did not profess christianity. But he professed only Hindu religion. He joined in Law College in 1984-85 and completed LLB course in 1989. He availed the benefits extended to scheduled caste during the period of his studies. In 1989, he contested election from Adoor Parliamentary Constituency which was reserved for scheduled caste and was declared elected. In 1992 he again contested from the Parliamentary EP 3, 7 & 8 of 2009 18 Constituency reserved for scheduled caste and was declared elected. In 1996 he again contested from Adoor Parliamentary Constituency. He was declared elected. In 1999 he again contested from same Parliamentary Constituency. It was also reserved for scheduled caste. He was declared elected. The electorate have given a majority verdict in favour of the respondent. Election of the respondent from the Parliamentary Constituency was not challenged by any of the rival candidates or electors on the ground that he is a christian or that he is not a member of scheduled caste. Acceptance by the members of scheduled caste that respondent is a Hindu Cheramar is thus beyond challenge. The members of scheduled caste accepted the respondent as a member of their caste, which is more important than expiatory ceremonies, as there is no necessity to undergo any expiatory ceremonies before reconversion. In the house of the members of the family of the respondent, they worship only Hindu deities. The Presidential Order cannot be EP 3, 7 & 8 of 2009 19 understood as indicating that Pulaya and Cheramar are distinct and different castes. In spite of conversion parents had retained the original caste. The Tahsildar, Nedumangad issued the caste certificate showing that respondent belongs to Hindu Cheramar caste. The certificate cannot be questioned. To the best recollection of the respondent, he contested the previous election as a member of Cheramar caste. The allegations contrary is not correct. The validity of certificates issued by the Revenue Authorities cannot be challenged in an election petition. Even if there is loss of caste of the parents of the respondent, on conversion of the respondent to Hinduism, he got back the caste which even otherwise was not lost. As the respondent was qualified to stand for election, his election is not void and it cannot be set aside. 6. In E.P.7/2009 respondent has reiterated the very same contentions and also contended that there was