Proof Beyond Reasonable Doubt Indispensable In Election Petitions: Kerala High Court Dismisses Plea Moved By CPI(M) Candidate M Swaraj

The Kerala High Court dismissed the election petition moved by CPI(M) leader and former MLA M. Swaraj challenging the election of Congress candidate K. Babu from the Tripunithura constituency.

Justice PG Ajithkumar highlighted that the critical nature of election petitions requires proof beyond reasonable doubt and as such, 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” observed the court.

The petitioner, CPI(M) candidate M Swaraj, alleged that voter slips containing religious symbols were distributed by the respondent on the 4th of April 2021 for the election that was to be conducted on the 6th of April 2021.

The petitioner alleged that the 1st respondent had distributed election slips with the wording 'ningalude vote Ayyappanu' (your vote for Ayyappan) and the picture of Lord Sabarimala Ayyappa along with the election symbol of the 1st respondent and a request to vote for him. The slips contained particulars of the voter concerned, such as booth number, serial number, house number, name, age and house name, and polling station.

The petitioner added that the agents of the 1st respondent had also frightened voters by saying that there would be divine displeasure or spiritual censure if they did not vote for the 1st respondent. The petitioner submitted that the slips did not contain details as to the printer and publisher as mandated under Section 127A of the Representation of the People Act. As the majority of voters in the Thripunithara Assembly Constituency are believers of Lord Sabarimala Ayyappa, the petitioner argued that by distributing such slips, the respondent furthered their election prospects.

A complaint was filed on the 5th of April by Sri P Vasudevan (PW6), who was the Secretary of the Area Committee of the Communist Party of India (Marxist) to the Circle Inspector of Police, Hill Palace Police Station arguing that by distributing such slips and making use of the same to win the election, the 1st respondent and his election agent had committed corrupt practice as defined in Section 123(3) of the Representation of the People Act. Therefore, the election of the 1st respondent is liable to be set aside.

The 1st respondent countered that no persons named in the petition or anyone else distributed slips containing any religious symbol on behalf of the 1st respondent. The respondent also pointed out that the majority of voters in the Tripunithara Assembly Constituency are devotees of Lord Poornathrayeesa and not Lord Sabarimala Ayyappa as the petitioner claimed.

The respondent also rejected claims that they had printed the election slips, arguing that those are creations of the petitioner himself for the purpose of the election petition. The respondent claimed that as there was high likelihood of the 1st respondent's victory, the petitioner anticipating defeat in the election had submitted a complaint to the Circle Inspector of Police, Thripunithara Police Station, to create false evidence to support the prospective election petition.

Regarding the question of whether the election slips that had been distributed to the voters in the Thripunithara Constituency contained a religious symbol, the court referred to the Supreme Court decision in Kantaru Rajeevaru v. Indian Young Lawyers Association through its General Secretary and ors. which stated that “devotees of Lord Ayyappa do not constitute a separate religious denomination, but Hindus in common”.

As such, the court held that the deity of Lord Sabarimala Ayyappa is a Hindu religious symbol. The court also pointed out the decision in Shubnath Deogam v. Ram Narain Prasad in which the court held that a leaflet with a picture of a rooster and an appeal to vote amounted to the use of a religious symbol for the furtherance of prospects in the election due to the religious belief among a particular sect. The court in that case reasoned that it is not merely the use of a religious object but the use of an object of religious importance with an appeal to vote which amounts to an appeal in the name of a religious symbol.

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 1st respondent or his agent or by any person with the consent of the 1st respondent or his election agent to establish the charge of corrupt practice.

The petitioner had sought to prove the distribution of slips to the electors in the constituency through the oral evidence tendered by PW1, PW2, PW3, PW4, PW5 and PW6. The counsel for the petitioner also relied on the complaint lodged by PW6 to corroborate the oral evidence tendered by the witnesses PW2 to PW5 regarding the distribution of slips. The counsel also added that their assertion regarding the distribution of slips by the respondent was not challenged.

The court referred to the decision in Arikala Narasa Reddy v. Venkata Ram Reddy Reddygari, which held that the statutory requirements relating to election law have to be strictly adhered to for the reason that an election dispute is a statutory proceeding unknown to the common law and thus, the doctrine of equity, etc. does not apply in such disputes.

The court also highlighted the non-submission of the slip along with the complaint which they said “creates doubt about the allegation of corrupt practice”.

“Therefore, lack of evidence regarding printing of the slips does not adversely affect the case of the petitioner. Only that, the evidence regarding printing of the slips by the 1st respondent or on his behalf, which might have helped the petitioner to support the oral evidence he brought on record regarding the distribution of slips, is lacking” said the court.

The court also took note of the lack of details in the complaint, such as the non-mentioning about 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 lack of complaints regarding the distribution of slips to cVIGIL, a portal of the Election Commission for complaining against election malpractices, was also pointed out by the court.

As such, the election petition was dismissed.

Citation: 2024 LiveLaw (Ker) 239

Case title: Adv. M. Swaraj V K. Babu

Case number: El.Pet. 8/ 2021

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