The use of religious symbols in election campaigning is prohibited under Section 123(3) of the R.P. Act, and the burden of proof lies on the petitioner to establish allegations of corrupt practices beyond reasonable doubt.

1. The petitioner and the 1st respondent, besides five others, contested the election held on 06.04.2021 to elect the member from 081-Thrippunithura Constituency to the Kerala Legislative Assembly. The result was declared on 02.05.2021. The 1st respondent, who was a candidate of the Indian National Congress, a constituent of the United Democratic Front (UDF), returned. The petitioner, who was a candidate of the Communist Party of India (Marxist), a constituent of Left Democratic Front (LDF), calls into question the election of the 1st respondent on the ground of corrupt practices.

2. The 1st respondent raised preliminary objections pointing out material defects in the election petition, want of cause of action to constitute corrupt practices and noncompliance of the provisions of Section 81 of the R.P. Act and Rule 212 of the Rules of the High Court of Kerala, 1973. Preliminary objections were considered by this Court as per order dated 29.03.2023 and sustained a part of the objection. The operative part of the said order reads:

“(1) the election petition on the basis of the allegations contained in paragraphs No. 10 to 14 and 20 to 28 of the Election Petition that:

(i) the 1st respondent committed corrupt practice since he, his election agent and other persons with his consent or his election agent induced the electors to vote for him and not to vote for the petitioner by publicising the messages that unless they do so, they will be rendered objects of divine displeasure coming within the meaning of Section 123(2)(a)(ii) of the R.P. Act.

(ii) appealed to the electors to vote for him and refrain from voting to the petitioner on the ground of religion coming within the purview of Section 123(3) of the R.P. Act, do not make out a cause of action. Therefore, the Election Petition as regards the said allegations is rejected under the provisions of Order VII, Rule 11 of the Code.

(2) The averments in paragraphs No. 16 to 21 of the Election Petition that the 1st respondent, his election agent and other persons with the consent of the 1st respondent and his election agent, used Hindu religious symbol by distribution of Annexure I to III and similar slips to electors, for the furtherance of the prospects of election of the 1st respondent and for prejudicially affecting the election of the petitioner, made out sufficient cause of action for a trial on the Election Petition in order to decide whether the election of the 1st respondent as a member of the Legislative Assembly from Thrippunithura Legislative Assembly constituency in the election held on 06.04.2021 is null and void. The Election Petition will be proceeded with in respect of the said aspect alone.”

3. The 1st respondent challenged the said order before the Apex Court by filing Civil Appeal No. 5975 of 2023. The Apex Court dismissed that appeal as per the order dated 12.02.2024. What remains for consideration is the allegations concerning corrupt practice by the use of religious symbol alone. The averments regarding the same are contained in paragraphs No. 16 to 21 in the election petition. Reference to the said allegations and the contentions of the 1st respondent in that regard alone require mention. The other respondents did not contest the petition.

4. The petitioner alleges as follows:

Sri. R. Venugopal was the election agent of the 1st respondent. He along with Sri. Anand Udayan and Sri. Naveender reached the houses of Sri. Sajil Raj, Sri. Shan, Sri. Sekharan, Sri. Rajesh, S/o Appu, Sri. Ranjith and Sri. Rajesh, S/o Mani and other residents of Thekkumbhagom, Thrippunithura on 04.04.2021 at about 7.00 a.m. and distributed election slips with wording “Ningalude vote Ayyappanu” and the picture of Lord Sabarimala Ayyappa, below which printed the election symbol of the 1st respondent with a request to vote for the 1st respondent. The slips contained particulars of the voter concerned, such as booth number, serial number, house number, name, age and house name, and polling station