Supreme Court Reserves Judgment On CPI(M) MLA A. Raja's Appeal Against Kerala HC Annulling His Election In 2021 Assembly Polls
The Supreme Court today (September 26) reserved judgment on a plea by Kerala CPI(M) MLA A. Raja challenging the March 23, 2023 order of the Kerala High Court which annulled his elections on grounds that he was not a member of the Scheduled Caste to contest from a seat reserved for SC category. The challenge to Raja's election was raised by D. Kumar before the High Court in an election...
The Supreme Court today (September 26) reserved judgment on a plea by Kerala CPI(M) MLA A. Raja challenging the March 23, 2023 order of the Kerala High Court which annulled his elections on grounds that he was not a member of the Scheduled Caste to contest from a seat reserved for SC category. The challenge to Raja's election was raised by D. Kumar before the High Court in an election petition.
A bench comprising Justices Abhay S. Oka, Ahsanuddin Amanullah and Augustine George Masih heard the matter.
On April 29, 2023, the Supreme Court stayed the order of the Kerala High Court and allowed Raja to participate in the proceedings of the Legislative Assembly. However, he would not be entitled to vote on any motion and shall not be entitled to receive any allowance or monetary benefits as a member of the Legislative Assembly.
Issues raised before Supreme Court
The main issue raised before the Supreme Court is whether Raja's election could be declared void on alleged conversion to Christianity.
What has transpired so far?
On the last few hearings, the Court pointed out that the caste certificate of the petitioner had not been challenged. It questioned how the High Court annulled his elections when it did not even go into the validity of caste certificates. It also wondered if the caste certificate would be challenged without hearing the competent authority who issued the certificate.
While Senior Advocate V. Giri (for Raja) argued that the relevant certificates including birth certificates, school admission register, caste certificates and extract of the birth register wherein the religion of his father and mother are shown as Hindu was produced before the High Court in the election petition, the respondent (D. Kumar) did not challenge the authenticity of those.
He further raised an issue the High Court judgment did not even refer to those certificates and still declared him not a member of Scheduled Caste. On this, he referred to M. Chandra v. M. Thanka Muthu (2011) in which the Supreme Court said: "The validity of the issuance of community certificate is presumed unless shown otherwise..."
Further, Giri also stated that Raja's paternal grandparents started residence in the erstwhile Travancore State long prior to 1950 and they were employees of the Kundala Estate. He also pointed out that the paternal grandparents and parents belonged to the Scheduled Caste 'Hindu Parayan' of Tamil Nadu and the same was added in the 1950 Order for both Tamil Nadu and the State of Kerala.
The distinction attempted to be made out between Hindu Parayan community of Tamil Nadu and that of Kerala is not at all relevant.
Giri also cited S. Anbalagan vs. B. Devarajanand Ors (1984) wherein it was stated that mere undergoing the rituals of baptism will not make a person “Christian” unless he professed Christianity after he came of age.
Whereas, Senior Advocate Narendra Hooda (for D. Kumar) argued that the appellant's paternal grandparents, who belonged to Parayan caste, had migrated from Tirunelveli in Tamil Nadu to Idukki, Kerala after 1951. He stated that the parents of the appellant are Christian baptized by CSI Church, Kundala Division of Idukki District in 1982. The appellant, born in 1984, was also baptized.
Hooda also argued that Hindu Parayan is a Scheduled Caste in relation to Tamil Nadu but they cannot be claim to be a member of the Scheduled Caste in relation to Kerala. He also submitted that Raja married in 2013 in accordance with rites and rituals of the Christian community.
He referred to Marri Chandra v. Dean, Seth GS Medical College(1990) and then on Action Committee v. UOI (1994) on issue of Scheduled Caste certificate where it was said held: "considerations for specifying a particular caste or tribe or class for inclusion in the list of Scheduled Castes/Scheduled Tribes or backward classes in a given state would depend on the nature and extent of disadvantages and social hardships suffered by that caste,tribe or class in the State which may be totally non est in another state to which persons belonging thereto may migrate. Coincidentally it may be that a caste or tribe bearing the same nomenclature is specified in two states but the considerations on the basis of which they have been specified may be totally different."
Both counsels argued back and forth on the definition of 'residents' under the 1950 Order. It was orally settled that 'resident' could mean permanent resident based on material fact and conduct. The Court was wondering about this issue because they wondered if someone comes to Kerala one day prior to the 1950 Order, will they be considered as residents in terms of the 1950 Order or will they remain 'migrants'.
Background
On March 23, 2023, Justice P. Somarajan of the Kerala High Court declared A. Raja's 2021 election void on the grounds that he is not a member of 'Hindu Parayan' within the State of Kerala. Thus, he was not qualified to be chosen to fill the Devikulam Assembly constituency that had been reserved for Scheduled Caste among Hindus.
Before the High Court, D. Kumar challenged Raja's election for violating Section 5 of the Representation of Peoples Act, 1951. As per Section 5 of the Act of 1951, to be able to contest or fill a seat in the Legislative Assembly reserved for the Scheduled Caste or Scheduled Tribe, such person has to be a member of any of the Scheduled Caste or Tribe in that State, and such person also has to be elected for any Assembly Constituency in that State.
It was contended that Raja's paternal grandparents were residents of Tirunelveli, Tamil Nadu, who had migrated to Kerala in 1951, and his parents had been baptized by the CSI Church in 1992, and that the respondent himself was a baptized Christian, who had married as per Christian religious rites.
It was pointed out that the objection raised by the petitioner before the Returning Officer against the acceptance of nomination was rejected without assigning any valid reason, and the respondent was declared elected by a margin of 7848 votes after the election.
Contrary to the claim that he was a member of the 'Hindu Parayan' community, it was pointed out by the petitioner that Hindu Parayan is a scheduled caste with the State of Tamil Nadu in Part XVI of the Schedule to the Constitution (Schedule Castes) Order, 1950.
Raja in response argued that he belonged to the Hindu Parayan Community in the State of Kerala. He averred that as his grandparents had been issueless for a long period, they offered prayer in a nearby church, resulting in his father being given a Christian name. He further contended that his mother's name was not Esther but Easwari and that both his parents were Hindus who had never converted to Christianity. He also disputed the allegations made for his Baptism, and that he had married his wife as per Christian religious rites.
Kerala High Court's findings
Contrary to Raja's claim that his grandparents were residents of Kerala as of the date of commencement of the Presidential Order, 1950, the High Court had observed that the documents on record did not indicate an actual migration of Raja's grandparents to Kerala with all its intent, before the commencement of the Order.
The Court had also perused the Family Register, Baptism Register, and Burial Register kept by CSI Church, Kundala, Kerala and noted that there had been certain overwritings, corrections, and erasure of earlier entries. It also observed that the photographs of Raja's wedding resembled that of a Christian marriage. The High Court remarked: "All these would sufficiently show that the respondent was actually professing Christianity at the time when he had submitted his nomination and converted to Christianity long before its submission. As such, after the conversion, he cannot claim as a member of Hindu religion.” The high court had observed in its March 2023 order."
Case details: A. RAJA v. D. KUMAR C.A. No. 2758/2023
Appearances: Senior Advocate V. Giri (A Raja) and Senior Advocate Narender Hooda (D. Kumar)