A. RAJA versus D. KUMAR

Summary

The Kerala High Court had declared void the appellant's election from the Scheduled Caste-reserved Devikulam constituency, finding that he was not a Hindu Parayan of Kerala and had been baptised a Christian. The Supreme Court reversed, holding that an election petitioner must plead and prove such a charge beyond reasonable doubt, that the evidence of conversion was unreliable and mere observance of rituals is not professing another religion, that a caste or community certificate issued under the Kerala (Scheduled Castes and Scheduled Tribes) Regulation of Issue of Community Certificates Act, 1996, a complete code, cannot be assailed in an election petition, and that the words in any trial in Section 10 of that Act do not extend to an election petition.

Issues

1. Whether the appellant belonged to the Hindu Parayan Scheduled Caste in relation to the State of Kerala and retained that caste, as a member of the Hindu religion, when he contested the election.
2. On whom the burden of proof lies in an election petition alleging that the returned candidate is not a member of a Scheduled Caste, and what standard of proof applies.
3. Whether Section 10 of the Kerala (Scheduled Castes and Scheduled Tribes) Regulation of Issue of Community Certificates Act, 1996 places the burden on the candidate in an election petition by virtue of the words in any trial.
4. Whether a caste or community certificate issued under a statute can be challenged in an election petition under the Representation of the People Act, 1951.
5. What is meant by professing a religion under the Constitution (Scheduled Castes) Order, 1950.

Provisions considered

• Sections 100(1)(a), 100(1)(d)(i), 81, 116-A and 116-C(2), Representation of the People Act, 1951The High Court had declared the election void under Section 100(1)(a) and (d)(i); the appeal lay under Section 116-A. Section 81 and the decisions in M. Chandra and Kalyan Singh Chouhan require the election petitioner to plead material facts specifically and prove them beyond reasonable doubt; the petition fell short of these standards. The Registry was directed to act under Section 116-C(2). (¶¶ 1, 15, 32, 55, 56, 57, 58, 61)
• Article 341; Constitution (Scheduled Castes) Order, 1950 (paragraph 3 and Part VIII), Constitution of IndiaThe 1950 Order issued under Article 341(1) lists Parayan as a Scheduled Caste for Kerala. To claim its benefit the twin conditions are membership of the Hindu Parayan caste and permanent residence, personally or through ancestors, in the State on the date of the Order. The term professes in the Order signifies an open declaration or practice of a religion (Punjabrao v. D.P. Meshram); mere observance of a ritual of another religion does not amount to giving up one's religion unless the belief is made explicit. (¶¶ 2, 29, 30, 31, 34, 35, 36, 50)
• Section 10; also Sections 3, 5, 8, 11, 12, 13, 14, 21 and 24, Kerala (Scheduled Castes and Scheduled Tribes) Regulation of Issue of Community Certificates Act, 1996Section 10 places the burden of proving caste on the claimant in an application to the Competent Authority, in enquiries by the Competent Authority, Expert Agency or Scrutiny Committee, or in any trial or offence under the Act. Applying noscitur a sociis and ejusdem generis and reading the Act harmoniously (Special Courts under Section 21, ouster of civil courts under Section 24, issuance, verification, cancellation, appeal and revision provisions), the Court held that in any trial refers only to a trial under the Act and does not include an election petition; the Act is a complete code. (¶¶ 18, 19, 39, 40, 41, 45, 47, 53)
• Rule 4, Kerala (Scheduled Castes and Scheduled Tribes) Regulation of Issue of Community Certificates Rules, 2002Rule 4 requires the Competent Authority to conduct such enquiry as it deems fit before issuing a community certificate; this prescribed procedure, with the civil-court powers under Section 14 of the Act, distinguishes a community certificate from a certificate of citizenship by registration. (¶ 53)
• Section 5(1)(c), Citizenship Act, 1955Hari Shanker Jain v. Sonia Gandhi held that citizenship could be examined in an election petition despite a certificate of registration under Section 5(1)(c). The Court distinguished it: a registration certificate is granted by the Central Government without the enquiry that precedes a community certificate under the Kerala Act, so that view does not apply to a candidate holding a community certificate issued after due process. (¶¶ 51, 52, 53, 54)
• Article 142, Constitution of IndiaThe Madhuri Patil guidelines were issued under Article 142; such powers are not exercised in conflict with an express statutory provision (Supreme Court Bar Assn. v. Union of India). Where a State statute governs caste certificates it prevails; absent one, the Madhuri Patil guidelines as modified in Dayaram apply, under which a caste certificate cannot be challenged in an election petition. (¶¶ 37, 38, 45, 64)

Held

• To claim the benefit of the 1950 Order in relation to Kerala, a person must satisfy twin conditions: being of the Hindu Parayan caste and being, personally or through ancestors, a permanent resident of the State on the date of the Order. There was no dispute, and sufficient evidence, that the appellant's grandparents were Hindu Parayans who had migrated from Tamil Nadu to Travancore-Cochin before 1950; the contested question was whether the appellant retained that caste as a Hindu when he contested. (¶¶ 30, 31)
• Election petitions, including those not alleging corrupt practices, are to be treated akin to criminal proceedings and the election petitioner must prove the charges beyond reasonable doubt (J. Chandrasekhara Rao; M. Chandra). The church registers relied on did not name the appellant and did not match his siblings' names and ages, and the pastor who claimed to have baptised his parents in 1982 was, on his own evidence, only fourteen years old then, which is unbelievable. (¶¶ 32, 33)
• Mere observance or performance of a ritual associated with a religion does not ipso facto mean that a person professes that religion; the term professes in the 1950 Order denotes an open declaration or practice of a religion (Punjabrao), and adherence to some ritual of another religion does not amount to giving up one's original religion unless that belief is made explicit. The evidence did not establish that the appellant professes Christianity, and his caste certificates, never set aside, hold the field. Photographs of rituals or marriage rites cannot take the place of proof. (¶¶ 34, 35, 36, 50)
• Once a competent legislature has enacted a statute governing caste certificates, that statute and not the Madhuri Patil guidelines governs the field (Maharashtra Adiwasi Thakur Jamat Swarakshan Samiti); the Kerala Act therefore assumes special relevance. (¶¶ 37, 38)
• The words in any trial in Section 10 of the Kerala Act refer only to a trial under that Act. The words preceding and following them, and the opening and closing references to the Act, confine their meaning (noscitur a sociis; ejusdem generis), and a harmonious reading of the whole Act, which establishes Special Courts and ousts civil jurisdiction, does not permit the conclusion that the legislature intended an election petition to be covered. Section 10 does not shift the burden to the returned candidate. (¶¶ 40, 41, 42, 43, 44, 45)
• A caste or community certificate cannot be assailed in an election petition. The only exception is a legislative carve-out in the State concerned permitting such a challenge; absent any governing statute, the Madhuri Patil guidelines as modified in Dayaram apply, under which the challenge lies before the Scrutiny Committee and thereafter in writ proceedings. Article 142 powers are not exercised in conflict with what a statute expressly provides. (¶¶ 45, 64)
• Paragraph 11 of Sobha Hymavathi Devi v. Setti Gangadhara Swamy, which treated a community certificate as merely a piece of evidence in an election petition, proceeded on Section 3 of the Andhra Pradesh Act without examining that statute as a whole, although it mirrors the Kerala Act which is a complete code; the observation was rendered sub silentio and has no precedential value (Municipal Corpn. of Delhi v. Gurnam Kaur). (¶¶ 46, 47, 48, 49)
• Hari Shanker Jain v. Sonia Gandhi, permitting the question of citizenship to be tried in an election petition despite a certificate of registration under Section 5(1)(c) of the Citizenship Act, does not apply where the candidate holds a community certificate issued after the enquiry prescribed by statute: unlike registration by the Central Government, the Competent Authority under the Kerala Act, which has civil-court powers, must follow the prescribed procedure before issuing a certificate. (¶¶ 51, 52, 53, 54)
• The High Court erred in shifting the burden onto the appellant to disprove the allegations, and accepted the respondent's case despite material lacunae in the pleadings and evidence, including fabrications and corrections in the register entries that it had itself noticed. The Competent Authority which issued the caste certificate was not examined and no prayer was made to set the certificate aside. The election petition fell short of the standards in M. Chandra and Kalyan Singh Chouhan, and the appellant retained the Hindu Parayan caste as a Hindu when he contested. (¶¶ 50, 55, 57, 58)
• No opinion was expressed on the legality of the appellant's caste or community certificates, which may be challenged in accordance with law on their own merits; the question of any constitutional bar of the kind noted in Lillykutty was left to the precedents referred to in Union Territory of Ladakh v. J&K National Conference. (¶¶ 62, 63, 65)

Result

Appeal allowed; High Court judgment dated 20.03.2023 set aside and Election Petition No. 11 of 2021 dismissed; appellant entitled to all consequential benefits as a Member of the Legislative Assembly for the entire period from the date of oath; no order as to costs; Registry to act forthwith under Section 116-C(2) of the Representation of the People Act, 1951; pending applications consigned to records.