‘Practising Christian, Not A Scheduled Caste Member’: Kerala High Court Annuls CPM MLA A Raja's Election From Reserved Constituency

The Kerala High Court on Monday declared CPM candidate A. Raja's 2021 election from the Devikulam Assembly constituency as void. 

Justice P. Somarajan said Raja is not a member of 'Hindu Parayan' within the State of Kerala and thus not qualified to be chosen to fill the Devikulam Assembly constituency that had been reserved for Scheduled Caste among Hindus.

Factual Matrix

The petitioner, D. Kumar, in 2020 challenged Raja's election on the ground that the constituency was reserved for Scheduled Caste among Hindus and the latter was not a person belonging to Scheduled Caste among Hindus within the State of Kerala, but was a Christian, thus violating Section 5 of the Representation of Peoples Act, 1951. 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 respondent's claim that he was a member of 'Hindu Parayan' community, it was pointed out by the petitioner that Hindu Parayan is a scheduled caste in relation to the State of Tamil Nadu in Part XVI of the Schedule to the Constitution (Schedule Castes) Order, 1950. Kumar thus submitted that the respondent could not claim to be a member of Scheduled Caste Hindu Parayan in relation to State of Kerala.

It was contended that the respondent's paternal grandparents were residents of Thirunelveli, 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. 

Raja in response argued that he belonged to Hindu Parayan Community in relation to the State of Kerala. He averred that as his grandparents had been issueless for a long period, they offered prayer in a nearby church, as a result of which his father had been 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 with respect to his own Baptism, and that he had married his wife as per Christian religious rites. 

The court first considered preliminary issues — firstly as to whether the election petition is liable to be dismissed at the threshold under Order VII Rule 11 C.P.C. due to want of cause of action; and secondly, as to whether it is barred by limitation, which had been considered and rejected by the Court earlier as per its Order dated March 10, 2022. 

It also considered other issues: i. Whether the returned candidate is a person belonging to Scheduled Caste among Hindus in the State of Kerala; ii. Whether the acceptance of nomination of returned candidate is proper; and iii. Whether the election of returned candidate is liable to be set aside. 

Findings of the Court

The court noted that although 'Parayan' is a Scheduled Caste in Order of 1950 both in Kerala and Tamil Nadu, the dispute herein was whether the respondent could claim the benefit of scheduled Caste in relation to State of Kerala when it had been admitted that his parents had migrated from Tamil Nadu.

As per Section 5 of the Act of 1951, in order 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 an elector for any Assembly Constituency in that State. 

The court said that the use of the phrases 'of that State', and 'in that State' in the provision mandates that the qualification of a particular person to fill a seat reserved for Scheduled Caste or Scheduled Tribe is based on the state-wise status that he should be an elector in that state and also that he should be a member of any such scheduled caste or scheduled tribe in that State.

Although the fact regarding the migration of the grandparents of the respondent from Tamil Nadu to Kerala had not been disputed, it was the year of migration that became the bone of contention, with the petitioner claiming that such migration occurred in the year 1951, while the respondent averred that his grandparents had migrated in the year 1940, prior to the commencement of the Order, 1950, as well as the formation of States on linguistic basis. 

The court noted that as per Articles 341 and 342 of the Constitution of India, the President may with respect to any State or Union Territory and in the case of State in consultation with Governor thereof by publication specify caste, race and tribes deemed to be Scheduled Caste or Tribes in relation to that State or Union Territory, as the case may be. This indicates that the same must be done on State-wise recognition (or in relation to any particular Union Territory as the case may be), after consultation with the Governor.

The court thus noted that provision makes the position clear that the same would be given effect to only with respect to that particular State alone.

"This would make the legal position clear that a Scheduled Caste or a Scheduled Tribe notified in relation to a particular State or Union Territory may not be a Scheduled Tribe or Scheduled Caste in relation to some other State or Union Territory," the court observed. 

The court thus discerned that it is here that the question would arise as to the status of a person belonging to a Caste or Tribe who has migrated to any other State from the State of his origin and whether such person could claim the benefit under Article 341 or 342 within the State of his migration. 

The Court thus took note of the Apex Court decision in Marri Chandra Shekhar Rao v. Dean, Seth G.S.Medical College & Ors. (1990), in which it had been observed that, "Treating the determination under Articles 341 and 342 of the Constitution to be valid for all over the country would be in negation to the very purpose and scheme and language of Article 341 read with Article 15(4) of the Constitution". 

It rejected the argument raised by the respondent that his grandparents had migrated prior to the commencement of the Order, 1950, and that a person who was a 'resident' of the State as on the date of its commencement would be covered under the Order.

The court perused the documents produced by him in that regard, and ascertained that none of those would indicate that actual migration to State of Kerala with all its intent. It noted that the respondent's grandparents were mere workers attached to Kundala Estate who came to Kerala for that purpose and accommodation was given to them by the Estate.

"In fact, there is no evidence to show any permanent address or place of residence to show the actual migration by acquisition of movable or immovable property for that purpose with the intent. The mere fact that they came to Kerala in Idukki District in connection with the work in Kundala Estate by itself will not cloth them with the sanctity of “migrated” unless there is evidence to show the contrary that they have actually settled in Kerala by putting up their own residence and by holding movable and immovable property within the State of Kerala. Mere residence in the accommodation provided to the workers attached with the Kundala Estate may not be sufficient to bring up a case of actual migration," it observed.

On the other hand, the court noted that the migration of the respondent's grandparents was effected only from the year 1970 onwards, as evidenced in their declaration for application for assignment of land. 

"Hence, they would stand bound by 1950 Order wherein Hindu Parayan though incorporated stands for those who are in the State of Kerala belonging to Hindu Parayan. The respondent and his predecessors were not Hindu Parayan within the State of Kerala as on the date of promulgation of 1950 Order, though they belonged to the same Community within the State of their origin – Tamil Nadu (Madras) and they can very well claim benefit, if any, conferred upon them in their State of origin and not from the State of Kerala," the Court observed, on finding the respondent not qualified to be chosen to fill a seat in the Legislative Assembly of the State of Kerala reserved for Scheduled Caste.

The Court also went on to peruse the Family Register, Baptism Register, and Burial Register kept by CSI Church, Kundala, and noted that there had been certain overwritings, corrections, and erasure of earlier entries. It observed that the photographs of the respondent's wedding resembled that of Christian marriage. 

"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. On that score also, the Returning Officer ought to have rejected his nomination. In short, on both the grounds, it is clear that the respondent is not a member of “Hindu Parayan” within the State of Kerala and not qualified to be chosen to fill a seat in the Legislative Assembly of the State of Kerala reserved for Scheduled Caste – the Legislative Assembly Seat of 088 Devikulam Legislative Constituency and hence the election of respondent as the returned candidate for the said Constituency (088 Devikulam Legislative Constituency) in the year 2021 (06/04/2021) is declared void under Section 98 of Representation of People Act, 1951," the court held while allowing the petition.

The petitioner was represented by Advocates M. Narendra Kumar and M.J. Sajitha.  Senior Advocate T.Krishnanunni, Advocate Commissioner K.S. Bharathan, Standing Counsel for Election Commission of India Deepu Lal Mohan and Advocate Raghuraj appeared on behalf of the respondents. 

Case Title: D. Kumar v. A. Raja 

Citation: 2023 LiveLaw (Ker) 146 

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