Supreme Court Issues Notice On CPI(M) Leader M Swaraj's Plea Challenging Election Of Congress MLA K Babu

Swaraj, a candidate for the Tripunithura Assembly Constituency, had alleged that the respondent distributed election slips with the wording 'ningalude vote Ayyappanu' (your vote for Ayyappan) and the picture of Lord Sabarimala Ayyappa, amounting to appeal based on religion which is a corrupt practice as per Section 123(3) of the Representation of the Peoples Act.

At the commencement of the proceedings, the Court questioned as to what was wrong with the Judgment of the High Court and added "He (High Court Judge) has written such a beautiful judgment. He has (done) such a commendable hard work." After stating that all the evidence whether oral or document has been appreciated, Justice Kant said that the judgment was "excellent" and that the High Court judge had done "very good hard work." 

At this, Senior Advocate PV Dinesh, appearing for Swaraj, agreed that it is a "beautiful judgment", however, he submitted that the part containing appreciation of evidence contained errors.

Though the Court was not inclined to issue the notice at first, however, it ultimately acceded and issued notice. 

It may be mentioned that previously the Supreme Court had also dismissed the petition filed by K Babu, challenging the maintainability of the election petition. The Court observed that the objections raised by Babu against the petition have no merits.

“...once the High Court opined that a triable issue under Section 123(3) of the Act of 1951(Representation of the People Act) is made out, we find no grounds to interfere therewith.,” opined Justices Aniruddha Bose and PV Sanjay Kumar.

In its final verdict, a single judge Bench of the High Court opined that the charges levelled by the petitioner, in election petitions, must be proved beyond reasonable doubt. Thus, there is a heavy onus to prove the allegations which rests on the petitioner.

“Just as in a criminal case, so in an election petition, the respondent against whom the charge of corrupt practice is leveled, is presumed to be innocent unless proved guilty. A grave and heavy onus therefore, rests on the accuser to establish each and every ingredient of the charge by clear, unequivocal and unimpeachable evidence beyond reasonable doubt” said the court.

Regarding the evidence submitted, the court remarked that the petitioner has to prove that the election slips distributed to the electors in the constituency by the respondent or his agent or by any person with the consent of the respondent or his election agent to establish the charge of corrupt practice.

The court also took note of the lack of details in the complaint, such as the non-mentioning of the picture of Lord Sabarimala Ayyappa, stating that “Ayyappan is a common name. Hence, appealing that 'One vote for Ayyappan' without the picture of Lord Ayyappa would not amount to an appeal using a religious symbol or in the name of God. When it is not stated in Ext.X1 that the slips contained the picture of Lord Sabarimala Ayyappa, it becomes all the more difficult to say that the said complaint was related to Exts.P1 to P3 slips”.

The court also pointed out the lack of complaints regarding the distribution of slips to cVIGIL, a portal of the Election Commission for complaining against election malpractices.

Against this background, the High Court had dismissed the petition.