IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 23RD JULY 2010 / 1ST SRAVANA 1932 El.Pet..No. 2 of 2009(Y) ------------------------ PETITIONER. ------------------------------- P.A.SEKHARAN, S/O.APPUNNI, AGED 65 YEARS RESIDING AT PANDYATH HOUSE, P.O.KYPARAMBA, PUTHUR 680 546. BY ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE SRI.J.R.PREM NAVAZ SRI.T.RAMPRASAD UNNI RESPONDENT(S): RESPONDENTS. ------------------------------------- 1. P.K.BIJU, S/O.KUTTAPPAN, AGED 34 YEARS, PARAYAMPARAMBIL VEEDU,MANJOOR SOUTH P.O., VAIKOM, KOTTAYAM DISTRICT. 2. MR.N.K.SUDHIR, AGED 44 YEARS, S/O.N.C.KUTTAN, KUNNAPPILLY HOUSE, PERAMANGALAM P.O., THRISSUR DISTRICT-680 545. 3. M.BINDU TEACER, AGED 35 YEARS, ANANDALAYM, KANNIYAMPURAM,OTTAPPALAM, PALAKKAD DISTRICT. 4. DR.G.SUDEVAN, AGED 61 YEARS, DF8/129 (TC-4/1780), PANDIT'S COLONY, KOWDIAR,THIRUVANANTHAPURAM. 5. K.GOPALAKRISHNAN, AGED 39 YEARS, THAMARATHUKULAMBU HOUSE, AMBATTUPARAMBU, THTHAMANGALAM 678 102, PALAKKAD DISTRICT. 6. BIJU K.K., AGED 38 YEARS, MANAPARAMBIL VEEDU, NADAVARAMBU P.O., IRINJALAKUDA, THRISSUR DISTRICT. 7. P.C.BIJU, AGED 36 YEARS, PANACHAMOOTTIL HOUSE, ELIPAKULAM, KAYAMKULAM, ALAPPUZHA DISTRICT. 8. C.K.RAMAKRISHNAN, AGED 43 YEARS, CHATHANTHAGA HOUSE, KINASSERY P.O., PALAKKAD DISTRICT. 9. K.K.SUDHIR, AGED 44 YEARS, KALLEKKAD VEEDU, KUTANUR P.O., PALAKKAD DISTRICT. ADV. SRI.G.JANARDHANA KURUP, SENIOR ADVOCATE FOR R1 SRI.JOHN K.GEORGE FOR R1 SRI.C.K.SAJEEV FOR R1 SRI.P.K.VARGHESE FOR R1 SRI.K.S.ARUN KUMAR FOR R1 SRI.E.C.BINEESH FOR R1 SRI.N.K.SHYJU FOR R1 SMT.M.B.SHYNI FOR R1 SMT.AMBIKA DEVI FOR R1 SRI.R.JYOTHI KRISHNAN FOR R1 SRI.V.RAMKUMAR NAMBIAR FOR R2 SRI.VINCENT JOSEPH FOR R7 DR.V.N.SANKARJEE FOR R7 THIS ELECTION PETITION HAVING BEEN FINALLY HEARD ON 2/06/2010, THE COURT ON 23/7/2010 DELIVERED THE FOLLOWING: APPENDIX Petitioner's Exhibits:- EXT.P1:- Copy of Community Certificate dated 13.3.2009 issued to Sri.P.K. Biju Ext.P2:- Copy of Gazettee Notification dt. 19.8.2008 Ext.P2(a):- English Translation of Exhibit P2 Ext.P3:- True photocopy of page 26 of Vol.IV((II Part) of Marriage register. Ext.P4:- Published Article in Mathrubhumi Ext.P4(a):- English Translation of Ext.P4. Ext.X1:- File from Taluk Office, Vaikom. Ext.X1(a):- Community certificate issued to P.K. Biju Ext.X1(b):- Copy of Sudhi certificate dt. 24.7.2008 Ext.X1(c):- Certificate dt. 12/3/2009 issued to Sri.P.K. Biju by KPMS. Respondents Exhibits:- Ext.R1(a):- SSLC Book of first respondent. Ext.R2: Extract of Admn. register of SNVLP School, Manjoor. Ext.R3: Extract of Admission register of VKVM NSS High School, Manjoor, relating to P.K.Biju Ext.R4: Caste certificate dt.4/6/1991 issued to Sri.P.K. Biju. Ext.R5: Caste certificate dt.29/9/1998 issued to Sri.P.K. Biju Ext.R6: Certificate dated 22/8/2009 issued to Sri.P.K. Biju by KPMS Ext.R6(a): English Translation of Ext.R6 Ext.R7: Vivaha Pathrika relating to Smt.Jayamole Ext.R7(a): English Translation of Exhibit R7 /true copy/ P.S. to Judge M.SASIDHARAN NAMBIAR,J. =========================== E.P.No. 2 OF 2009 =========================== Dated this the 23rd day of July,2010 JUDGMENT First respondent P.K. Biju was the successful candidate to Alathur Parliamentary Constituency of Kerala State in the Parliamentary elections conducted on 16.4.2009. Alathur Parliamentary Constituency was reserved for Scheduled Castes. First respondent was declared elected, on 16.5.2009, with a majority of 20960 votes. Second respondent was the nearest rival candidate. First respondent was a candidate of Communist Party of India (Marxist) and second respondent a candidate of Indian National Congress. There were nine candidates in the election. Respondents 3 to 9 are the other candidates. Election Petition is filed to declare that election of the first respondent is void and to declare his election E.P.2/2009 2 illegal and to set it aside and to declare that second respondent, who secured the next largest number of votes, the successful candidate. The election petition is filed under section 100(1)(a) of the Representation of the People Act on the sole ground that first respondent was not qualified to be chosen to fill that seat as under the Constitution and the Representation of the People Act he is not a member of the Scheduled Caste. Petition is filed in his capacity as an elector of the Parliamentary Constituency. 2. Pleadings: Petitioner claims to be a social worker and President of Adat Block of Indian National Congress. Alathur Parliamentary Constituency has been notified as a reserved Constituency solely for the members of Scheduled Caste in terms of Section 4(a) of Representation of the People Act. Therefore only a member of the Scheduled Caste is qualified to contest the election. Respondents 2 to 9 are members of Scheduled Caste. Under Entry 54 of Constitution (Scheduled Caste Order) 1950 made by the President E.P.2/2009 3 of India as amended by Parliament Pulayan, Cheramar, Pulaya, Pulayar, Cherama, Cheraman, Wyanad Pulayan, Matha and Matha Pulayan are the Scheduled Castes included in that entry. First respondent submitted the nomination on 26.3.2009 along with a declaration that he is a member of pulayan caste. In support of the claim he produced a certificate issued from Taluk Office, Vaikom that he belongs to Hindu religion and Pulayan caste as per Suddhi certificate issued by Arya Samaj, Thiruvananthapuram and also Gazette Notification dated 19.8.2008. When the nominations were scrutinized, objections were raised that first respondent is not a member of Scheduled Caste and therefore he is not qualified to contest the seat reserved for the scheduled caste. The Returning Officer rejected the objection solely relying on the caste certificate and the suddhi certificate. In the election, first respondent was declared elected. The election of the first respondent is to be declared void as provided under section 100 (1)(a) of the Representation of the People Act as E.P.2/2009 4 he was not qualified to be chosen to fill a seat reserved for Scheduled Caste. He was not a member of scheduled caste on the date of submission of the nomination paper. First respondent is a Christian by birth. His parents were also Christians and they belonged to Manjoor Village of Vaikom Taluk of Kottayam District. Even in his school records, first respondent is shown as Christian. In his S.S.L.C book also, it is so recorded. He passed the S.S.L.C examination in March 1989. Inspite of these facts by pressurizing the Tahsildar, Vaikom using his political clout, a certificate was obtained that he belongs to Pulayan caste by reason of Suddhi certificate. In Kerala a caste certificate that he is a member of scheduled caste can be issued only as provided under the provisions of Kerala (Scheduled Caste/Scheduled Tribe Regulation of Issuing Community Certificate) Act 1996. To obtain such a certificate, an application shall be submitted in such form and in such manner and the competent authority duly notified shall after following the E.P.2/2009 5 prescribed procedure and satisfying itself about the genuineness or otherwise of the claim shall issue a community certificate. The Caste certificate produced by the first respondent and issued to him by the Tahsildar is not in accordance with the provisions of the said Act. Therefore it should not have been relied on by the Returning Officer. First respondent has been living as Christian and participating in various Christian religious programmes in the Churches and also functions in Manjoor and other places. Pulayan community never accepted first respondent as a member of that community. First respondent in fact conceded on several occasions that he lives as a Christian. Therefore his election is to be declared void. First respondent is a Christian, by birth. In Christianity there is no caste. There is no Christian Scheduled Caste. Even if a Christian is converted into Hinduism, he cannot claim the status of a Scheduled Caste. Scheduled Caste belong to Hindu religion only by birth and there cannot be conversion to a Scheduled Caste. E.P.2/2009 6 As first respondent was born as a Christian and lived as a Christian, he is disqualified to contest the election in a reserved Constitutency for Scheduled Caste. The caste certificate issued to the first respondent and accepted by the Returning Officer to prove his caste is invalid in law. First respondent claimed in the nomination paper that he belongs to Pulayan. In the Gazette Notification, he claimed that he is a Cheramar. Under the Constitution (Scheduled Castes) Order, if a person falls in a particular caste, he cannot change from one caste shown in that order to the other. If first respondent claims that he is a Pulayan, he cannot be a Hindu Cheramar, as Cheramar caste and Pulayan caste are distinct and separate castes under the presidential order and cannot be inter-changed as one likes. As there is no caste as Christian Cheramar, under the Presidential Order, no Christian can declare that he has converted himself to Hindu as Pulayan. As first respondent claimed as Pulayan and produced certificate to show that he is a Cheramar, he is E.P.2/2009 7 ineligible to contest the election. In addition, first respondent played a fraud on the Constitution and members of the Scheduled Castes, as he robbed genuine members of the Scheduled Caste, an opportunity to contest the elections. Even during the election, he was canvassing for votes claiming that he is a Christian so as to influence large number of Christian voters in the Constituency and to corner their votes. The votes obtained by first respondent shall be treated as void. At any rate, a substantial portion of the same is to be declared invalid and if those votes are declared invalid, second respondent, the candidate who secured the next highest number of votes, is to be declared elected. 3. First respondent in the written statement contended that at the time when the nominations were scrutinized neither the petitioner nor respondents 2 to 9 raised any objection that first respondent is not a member of the Scheduled Caste or that he is not qualified to fill a seat reserved for that community. Returning Officer accepted the E.P.2/2009 8 nomination of the first respondent because he was qualified to contest the election as a candidate reserved for Scheduled Caste. The allegations raised in the election petition are not correct. First respondent, was a member of Scheduled Caste on the date of submission of the nomination paper and his election is not liable to be declared void or set aside. At the time of the birth of the first respondent his father was a converted Christian. He was converted to Christianity from Cheramar caste. Mother of the first respondent belongs to Pulaya community. First respondent was not shown as a Christian in the school records or the S.S.L.C book as alleged. He was admitted in Standard I on 31.5.1979 in S.N.V.L.P School, Manjoor. The admission register shows that he belongs to a Hindu Pulaya. From 21.5.1983 to 1.4.1989 he studied in V.K.V.M N.S.S High School, Manjoor in Std. V to X. The school records clearly show that he belongs to Hindu Pulaya community. In the S.S.L. C book the religion of the first respondent is shown as Hindu and Caste is Pulaya, E.P.2/2009 9 Scheduled Caste. There is no basis for the contrary allegations. Attempt is to destabilise the mandate of the people of the Constituency without any basis. The Caste certificate was not obtained exerting political clout or influence or pressurizing the Tahsildar. Village Officer, Manjoor on 26.6.1979 issued a community certificate stating that first respondent belongs to Hindu Pulaya Community. On 4.6.1991 Tahsildar, Vaikom had issued a caste certificate that he belongs to Hindu Pulaya community. Those certificates were issued by the authorities after proper enquiries. The caste certificate obtained by first respondent and produced before the Returning Officer was also issued after due enquiry. First respondent has never attended any Church. He and his family have been living as Hindu Pulaya. They never attended in the Church. The pleadings in the election petition are vague and names of the Churches or the dates are not disclosed. Pulaya community accepted the first respondent as a member of that community. The contrary allegations are false. E.P.2/2009 10 Eventhough father of first respondent is a converted Christian, he lived as a Hindu Pulaya. All the members of the family of the first respondent including his father are members of Kerala Pulaya Mahasabha, Branch No.1368 of Manjoor. His father died on 20.9.2008. The burial was conducted in accordance with the formalities of Pulaya community, as per Hindu rites. The body was buried in the burial place owned by Pulaya community. Having brought up as a member of Pulaya community and having accepted by the community as a member of that caste, as the mother of the first respondent belongs to Pulaya community, first respondent has been living as a Hindu Pulaya a Scheduled Caste in the same Village, to which family of his mother belongs. The marriage of the sister of the first respondent was held on 11.7.1999 at Manjoor Government High School observing all formalities of Pulaya community. Her husband is also a Pulaya. Kerala Pulaya Mahasabha issued a certificate on 11.7.1999 with regard to that marriage. First respondent has been brought up E.P.2/2009 11 as a member of Hindu Pulaya Community and he was subjected to the same disabilities and disadvantages attached to Scheduled Caste. Under Explanation to Section 2 of Hindu Succession Act, any child legitimate or illegitimate, one of whose parents is a Hindu and is brought up as a member of the community, group or family to which such parent belongs or belonged is also a Hindu and as first respondent was brought up as a member of Hindu Pulaya Community, he is a Hindu as provided under Explanation (b) of Section 2 of Hindu Succession Act. The grandfather of the first respondent converted from Cheramar caste to Christianity. Still he lived as a member of Pulaya community. That community accepted him as a member of that community. In 2008 first respondent’s father reconverted into Hinduism in order to complete the legal requirement. First respondent was born and brought up as a member of Hindu Pulaya community. He was accepted by the members of that caste. As his father belonged to Cheramar Christian community, first respondent caused to make a E.P.2/2009 12 notification in the gazette to eradicate any doubt which may linger in the minds of the public that he may be a Chermar Christian, though in the eye of law such a notification is not warranted as he was born and brought up as a Pulaya. When parents or one of the parents are converted from Hinduism to Christianity and a child was born after their conversion, when they subsequently embrace Hinduism and members of the caste, to which the parents belonged prior to that conversion, accept them as a member within the fold, it cannot be questioned. Cheramar and Pulaya are one and the same caste included in Entry 54 of Part VII Constitution (Scheduled Castes) Order 1950. The contrary allections are not correct. First respondent has not played any fraud as alleged. The candidature of the first respondent in Alathur Constituency was known to the public as it was published in the media that he is a probable candidate and no objection was raised by any member of that caste. His election is not void and cannot be declared invalid or set aside. E.P.2/2009 13 4. Only second respondent appeared through a counsel and respondents 3 to 9 did not appear. Even second respondent did not file written statement. 5. ISSUES: On the pleadings the following issues were framed. 1) Whether first respondent is a member of Pulaya Caste and whether he is qualified to represent the Parliamentary Constituency under section 4 (a) of Representation of the People Act? 2) Whether election of the first respondent to Alathur Parliamentary Constituency is liable to be declared void and set aside. 3) Whether second respondent is entitled to get declared as duly elected from Alathur Parliamentary Constituency? E.P.2/2009 14 EVIDENCE: Petitioner was examined as PW1. He examined then District Collector, who was the Returning Officer as PW2 and then Tahsildar who issued the Caste Certificate as PW5 and the Village Officer who submitted the report based on which the Caste certificate was issued by the Tahsildar, as PW6. In addition the Vicar of St.Xavier's Church, Mannarappara was examined as PW3 and a native of Manjoor who was the President of Manjoor Mandalam Congress Committee and a member of Grama Panchayat, was examined as PW4. Exts.P1 to P4 and Exts.X1(a) to X1(c) were marked. On the side of the first respondent, he was examined as RW1. His mother was examined as RW2. The President of Manjoor Sakha of Kerala Pulaya Mahasabha was examined as RW3 and a resident of Manjoor belonging to Pulaya Caste was examined as RW4. The Headmistress of S.N.V.L.P. School was examined as RW5 to prove the admission register of S.N.V.L.P. School, where he was admitted to the first standard. The Headmistress of V.K.V..M.N.S.S High School was examined as RW6 to prove the admission E.P.2/2009 15 register extract of the first respondent.The Tahsildar, Vaikom who issued a caste certificate to the first respondent in 1991 was examined as RW7. The Secretary of Manjoor Branch of Kerala Pulaya Maha Sabha was examined as RW8. The President of Manjoor Edayoram Branch of Kerala Pulaya Maha Sabha was also examined as RW9. CONTENTIONS: Case of the petitioner is that the parents of the first respondent were christians and first respondent was born as a christian and therefore he cannot be a member of scheduled caste and he is not qualified to stand for election in a Constituency reserved for scheduled caste. Petitioner contended that under section 4(a), a person shall not be qualified to be chosen to fill a seat in the House of the People, unless he is a member of any of the Scheduled Castes whether of that State or any other State, in case the seat is reserved for scheduled caste. Under clause (24) of Article 366 of Constitution of India, Scheduled Castes means such castes, races or tribes or parts of or groups within such castes, races or tribes as E.P.2/2009 16 are deemed under article 341 to be Scheduled Castes for the purpose of the Constitution and Part VIII of the Constitution (Scheduled Caste) Order 1950 under Entry 54, nine separate castes are shown which are scheduled castes under the said entry and each such caste is distinct and separate. The contention is that Pulayan and Cheramar are two different castes, though both are scheduled castes and if a person is Pulayan, he cannot be a Cheramar and if he is a Cheramar, he cannot be a Pulayan. According to the learned senior counsel appearing for the petitioner, no court is competent to add or subtract or make an inquiry regarding the entries in the Presidential Order as it is final and when the Presidential Order shows Pulaya caste is distinct from Pulayan Caste and Cheramar Caste, first respondent cannot raise a contention that Pulayan Cheramar and Pulaya are one and the same caste and no evidence could be let in and court is incompetent to hold that Pulayan, Cheramar and Pulaya are all different names of one and the same caste. When first respondent was born to E.P.2/2009 17 Christian parents, after they were converted as christians, by birth he is a christian and therefore he cannot claim the status of a scheduled caste. Eventhough Ext.P1 caste certificate issued to the first respondent shows that he is a member of the Pulaya caste, Ext.P1 caste certificate is void as it was obtained fraudulently and therefore it cannot be relied on. When the State of Kerala promulgated an order providing a forum and a procedure for issuing caste certificate that one belongs to a scheduled caste, a scheduled caste certificate can be issued only in accordance with the provisions of Kerala (Scheduled Caste/Scheduled Tribe Regulation of Issuing Community Certificate) Act, 1996. Such certificate can be issued only if an application in the prescribed form was submitted and that too after a due inquiry as provided therein and can be issued only in the prescribed form. Ext.P1 caste certificate was not issued by PW5 as admitted by him under the provisions of the said Act and admittedly no application was submitted in the prescribed form provided therein. E.P.2/2009 18 It was issued only under political pressure, without any inquiry. When Ext.P1 shows that it was issued based on Ext.X1(b) Suddhi certificate and Ext.P2 Gazette Notification, which show that first respondent claimed only that he is a Cheramar, no certificate could have been issued to the effect that he is a member of Pulaya community and on that sole reason, the caste certificate is to be ignored. It is also contended that when Ext.P2 Gazette Notification shows that, on the date of publication of the Gazette, first respondent was living as a Cheramar Christian, he cannot be heard to contend that he was born or lived as a Hindu Pulaya and in any event if first respondent claims that he belongs to Cheramar caste he cannot be a pulaya and if that be so, first respondent is disqualified to contest the election as a Hindu Pulaya. The contention is that under sub section (2) of Section 33, a candidate is not qualified to stand for election in a Constituency where the seat is reserved for scheduled castes, unless his nomination paper contains a declaration by him E.P.2/2009 19 specifying the particular caste of which he is a member and the area in relation to which that caste is a scheduled caste and when the nomination paper was submitted claiming that he belongs to Pulaya, a scheduled caste and Ext.P1 was produced in support of the claim, Ext.R1(a) and Ext. P2 based on which Ext.P1 caste certificate was issued show that first respondent claimed that he is a Cheramar and not Pulaya, his nomination paper could not have been accepted as conditions provided under sub section (2) of Section 33 is not fulfilled. It is contended that PW2 the Returning Officer on his own admission did not verify the Presidential Order to find out whether the caste claimed by the first respondent is a scheduled caste as provided thereunder or suddhi certificate and the Gazette Notification relied on in Ext.P1 caste certificate to find out whether first respondent belongs to Pulaya caste is correct or not and no proper inquiry was conducted as provided under section 36 of Representation of the People Act,1951 and therefore the nomination paper E.P.2/2009 20 submitted by the first respondent should not have been accepted and in any case as first respondent is not qualified to be a candidate for a Constituency reserved for Scheduled Caste, his election is to be declared void and hence it is to be set aside. Learned senior counsel argued that the evidence of PW2 establishes that he did not conduct an inquiry as provided under section 36 of Representation of the People Act and whether anybody raised an objection or not, it is for the Returning Officer as provided under section 36, to find out whether first respondent was qualified to stand for the election in Alathur Constituency reserved for Scheduled Caste and for that purpose PW2 was bound to consider whether first respondent belongs to Pulaya caste as claimed and if PW2 had made an inquiry as contemplated under section 36, it would have been revealed that first respondent does not belong to Pulaya caste as provided under the Presidential Order and claimed by the petitioner and when he has claimed only to be a member of Cheramar caste, the nomination paper E.P.2/2009 21 should not have been accepted. It is also contended that when first respondent is a christian by birth and no valid conversion was proved, even if there is conversion when there is no evidence to prove that Pulaya community has accepted first respondent as a member of that caste and hence he is not qualified to be a candidate in a Constituency reserved for scheduled caste and on that ground the election is to be set aside. Learned senior counsel argued that whether there was a conversion and if so whether it is valid and whether he was accepted by the community are all matters within the exclusive knowledge of the first respondent and so burden of proof is on him to establish these facts and when there is no evidence to prove a valid conversion and acceptance by the Pulaya community to their caste, first respondent cannot claim to be a member of scheduled caste and hence he is not qualified to be a candidate and therefore