Can HC Hold That Candidate's SC Status Was Wrong When Caste Certificate Wasn't Challenged In Election Petition? Supreme Court Asks

The Supreme Court today (September 4) heard a plea by Kerala CPI(M) MLA A. Raja challenging the March 23, 2023 order of the Kerala High Court which annulled the elections from the Devikulam Assembly constituency.

During the hearing, the Court wondered it the High Court could have made a finding on his caste status when the caste certificate was not challenged.

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.

On April 29, 2023, the Supreme Court stayed the order of the Kerala High Court.

Today's proceedings

A bench comprising Justices Abhay S. Oka, Ahsanuddin Amanullah and Augustine George Masih heard the matter.

During the hearing, Justice Oka asked the respondent(the election petitioner in HC)

: "Nobody questioned the caste certificate?...Unless there is a challenge to caste certificate, can we go into the question whether he belonged to a particular caste in a State of Kerala? There is no pleading on the invalidity of the caste certificate... Nobody has challenged the certificate. Can we say he belonged to that caste? Can we say that?"

Respondent's counsel Senior Advocate Narender Hooda responded that the material fact pleaded in the election petition is that the family of A Raja was there in Tamil Nadu on the date of the Presidential Order. However, the court again asked about the challenge to the caste certificate.

Justice Oka pointed out that Raja must have filed a caste certificate while filing his nomination for the election. He asked how can there be no challenge to his caste certificate.

The court then perused the caste certificate and stated that the respondent would have to first cross the hurdle of disproving the veracity of the caste certificate. It added that whether the caste certificate was given on the mother's status is irrelevant because the same is issued by authorities in Kerala.

Justice Oka said: "Where is the challenge to the caste certificate? There is challenge made on the ground that there is no enquiry made for the caste certificate [before the authorities]....Whenever you can [that he is not a Scheduled Caste], you have to challenge the caste certificate.

Hooda submitted that the challenge to the caste certificate may be implied for the purpose of the election petition. He said that under Section 83 of the Representation Act, the party has to plead material facts and not the particulars and therefore, no specific challenge was made to the caste certificate.

Justice Oka said: "Please show us the record of the High Court that there was an argument made that caste certificate needs to be ignored...It should have been pleaded before the High Court that caste certificate does not need to be relied upon...If rules require that he should produce caste certificate in election nomination, whether in election petition without saying the caste certificate is illegal or it has been issued by authority which has no authority to issue it, can the Court make an adjudication on caste? Ultimately, this is evidence on caste. Show us the law on the point that the caste of the elected candidate is challenged by ignoring the caste certificate can the court independently record a finding he did not belong to that caste."

Background : Case in HC

The petitioner before the High Court , D. Kumar, 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 converted 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 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 Raja'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.

Kerala High Court's findings

The High Court had considered whether Raja 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 High Court had observed in this regard.

Contrary to Raja's claim that his grandparents were residents of Kerala as on the date of commencement of the 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, prior to 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