Kailash Sonkar Vs. Smt. Maya Devi
[1983] INSC 205 (16 December 1983)
FAZALALI, SYED MURTAZA FAZALALI, SYED MURTAZA
MISRA, R.B. (J) THAKKAR, M.P. (J)
CITATION: 1984 AIR 600 1984 SCR (2) 176 1984
SCC (2) 91 1983 SCALE (2)1211
CITATOR INFO :
R 1984 SC1260 (16)
ACT:
Hindu law-Whether a Hindu on conversion to
another religion loses she original caste. Convertee loses caste unless new
religion accepts caste system and permits convertee to retain his original
caste and family laws.
During conversion original caste remains
under eclipse- Ecliyse Disappears on reconversion to original religion. On
reconversion to old religion-Whether the original caste revives-Factors which
determine revival of original caste.
Representation of the People Act-Person born
of Christian parents-Educated and known as Christian- Reconverted to Hinduism
voluntarily-Married a member of scheduled caste-Performed shudhikaran
ceremony-Accepted and welcomed by member of that community as scheduled caste-
Whether such person can contest state assembly election as member o scheduled
caste from constituency reserved for members of scheduled castes.
HEADNOTE:
In the nomination papers filed by the
respondent for contesting legislative assembly elections in May, 1980 from a
constituency which was reserved for scheduled castes, she described herself as
belonging to the scheduled caste 'Katia'. Several persons raised objection that
the respondent, being a Christian by birth, could not be treated as a member of
the scheduled caste. The Returning Officer rejected the objection and accepted
her nomination papers.
The respondent won the election defeating the
appellant. The appellant having unsuccessfully challenged the election of the
respondent in the High Court, alleged in this appeal that the respondent after
being born a Christian was baptised according to Christian rites; her mother's
name was Elizabeth; her marriage with Jai Prakash Shalwar, who belonged to
Katia caste, was not valid and even on marriage her caste could not revive
because caste was determined not by marriage but by birth. The respondent
stated that she was never a Christian nor was she born a Christian. She also
averred that even her father or mother were not Christians.
On the other hand, she always remained a
member of the Katia caste and was accepted as such by the members of that
community because her marriage with Jai Prakash Shalwar was performed according
to Hindu rites of Aryasamaj sect and was attended by a number of members of her
caste and due publicity was given to the marriage.
Dismissing the appeal,
HELD: It cannot be said that at the time when
the respondent filed her nomination papers, she was not a member of the Katia
caste. [199 G] A caste to which a Hindu belongs is essentially determined by
birth and if a Hindu is converted to Christianity or any other religion which
does not recognise 177 caste, the conversion amounts to a loss of the said
caste.
In considering whether on conversion the loss
of the caste is absolute, irrevocable so as not to revive under any
circumstance the guiding principles are: (a) Where a person belonging to a
scheduled caste in converted to Christianity or Islam, the same involves loss
of the caste unless the religion to which he is converted is liberal enough to
permit the convertee to retain his caste or the family laws by which he was
originally governed. There are a number of cases where members belonging to a
particular caste having been converted to Christianity or even to Islam
retained their caste or family laws and despite the new order they were
permitted to be governed by their old laws. But this can happen only if the new
religion is liberal and tolerant enough to permit such a course of action, and
(b) In all other cases, conversion to Christianity or Islam or any other religion
which does not accept the caste system and insists on relinquishing the caste,
there is a loss of caste on conversion. [190C-F; 191 B] The norms and
conditions under which a caste could revive on reconversion to the old religion
as laid down by the authorities of the High Courts and this Court are: (1)
where the convertee exhibits by his actions and behaviour his clear intention
of abjuring the new religion on his own volition without any persuasion and is
not motivated by any benefit or gain, (2) where the community of the old order
to which the convertee originally belonged is gracious enough to admit him to
the original caste either expressly or by necessary intendment, and (3) Rules
of the new Order in permitting the convertee to join the new caste. Unless the
aforesaid conditions are fulfilled the loss of caste on conversion is complete
and cannot he revived. But having regard to the present set-up and the
circumstances prevailing in our modern society, it will be difficult to insist
on the second condition, viz., the insistence on the members of the community
of the caste to admit the convertee on reconversion to the original caste
because such a course of action may lead to dangerous consequence and ill-
concieved exploitation. [191 C-G] G.M. Arumugam v. S. Rajagopal & Ors.,
[1976] 3 S.C.R. 82; Sacred Books of the East (Vol. VIII) by F. Max Muller;
Charlotte Abraham and Daniel Vincent Abraham
v. Francis Abraham, 9 M.I.A. 199: Chaturbhuj Vithaldas Jasani v. Moreshwar
Parashram & Ors., [1954] S.C.R. 817; S. Anbalalagn v. B. Devarajan &
Ors., [1984] I.S.C.R. Goona Durgaprasada Rao & Anr. v. Goona Sudarsanaswami
& Ors., ILR 1940 Madras 653; G. Michael v. S. Venkateswaran, AIR 1952
Madras 474; Dippala Suri Dora v. V.V. Giri AIR 1958 A.P. 724; Wilson Reade v.
C.S. Booth & Ors. AIR 1958 Assam 128; and B. Shyamsunder v. Shakar Deo
Vedalankar & Ors., AIR 1960 Mysore, 27 referred to.
S. Rajagopal v. C.M. Armugam & Ors.,
[1969] 1 S.C.R. , distinguished.
The main test for determining the revival of
the original caste on reconversion should be a genuine intention of the
reconvert to abjure his new religion and completely dissociate himself from it.
It may be added here that this does not mean that the reconversion should be
only a ruse or a pretext or a cover to gain mundane worldly benefits so that
the reconversion becomes merely a show for achieving a particular purpose
whereas the real intention may be shrouded in mystery. The reconvert must
exhibit a clear and genuine intention to go back to his old fold and adopt the
customs and practices of the said fold without any protest from members of his
erstwhile caste.[192C-E] Ganpat v. Returning Officer & Ors., [1975] 2
S.C.R. 923, referred to.
178 When a child is born neither has he an
religion nor is he capable of choosing one until he reaches the age of
discretion and acquires proper understanding of the situation. Hence, the mere
fact that the parents of a child, who were Christians, would in ordinary course
get the usual baptism certificate and perform other ceremonies without the
child knowing what is being done but after the child has grown up and becomes
fully mature and able to decide his future, he ought not to be bound by what
his parents may have done. Therefore, in such cases, it is the intention of the
convertee which would determine the revival of the caste. If by his clear and
conclusive conduct the person reconverts to his old faith and abjures the new
religion in unequivocal terms his caste automatically revives. [192 G-H; 193 A]
Another dominant factor to determine the revival of the caste of a convert from
Christianity to his old religion would be that in cases of election to the
State Assemblies or the Parliament where under the Presidential Order a
particular constituency is reserved for a member of the scheduled caste or
tribe and the electorate given a majority verdict in his favour, then this
would be doubtless proof positive of the fact that his community has accepted
him back to his old fold and this would result in a revival of the original
caste to which the said candidate belonged.
[193 B-C] When a person is converted to
Christianity or some other religion the original caste remains under eclipse
and as soon as during his/her life-time the person is reconverted to the
original religion the eclipse disappears and the caste automatically revives.
[193 D] Whether or not the revival of the caste depends on the will and
discretion of the members of the community of the caste is a question on which
we refrain from giving any opinion because in the instant case there is
overwhelming evidence to show that the respondent was accepted by the community
of her original Katia caste. Even so, if the fact of the acceptance by the
members of the community is made condition precedent to the revival of the
caste, it would lead to grave consequences and unnecessary exploitation,
sometimes motivated by political considerations. Of course, if apart from the
oral views of the community there is any recognised documentary proof of a
custom or code of conduct or rule of law binding on a particular caste, it may
be necessary to insist on the consent of the members of the community otherwise
in normal circumstances the caste would revive by applying the principles of
doctrine of eclipse. It may be added that where it appears that the person
reconverted to the old religion had been converted to Christianity since
several generations, it may be difficult to apply the doctrine of eclipse to
the revival of caste.
[193 D-G] In the instant case, on a full and
complete appraisal of the oral and documentary evidence, the following
conclusions are inevitable: (1) that the respondent was born of Christian
parents and was educated in various schools or institutions where she was known
as a Christian; (2) that 3- 4 years before the election, the respondent was
reconverted to Hinduism voluntarily and married Jai Prakash Shalwar, a member
of the Katia caste, and also performed the shudhikaran ceremony; (3) that she
was not only accepted but also welcomed by the important members, including the
President and Vice-President, of the community; (4) there is no evidence to
show that there was any bar under the Christian religion which could have
prevented her from reconverting herself to Hinduism; and (5) that 179 there was
no evidence to show that even her parents had been Christians from generation
to generation. In these circumstances, therefore, this case fulfils the
conditions required for being reconverted to Hinduism from Christianity in
order to revive the original caste [198 G-H; 199 A-D]
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 3118 of 1981.
From the Judgment and Order dated the 25th
September, 1981 of the Madhya Pradesh High Court in Election Petition No 2 of
1980.
U.R. Lalit and A.K. Sanghi for the Appellant.
G.B. Pai and Vineet Kumar for the Respondent.
The Judgment of the Court was delivered by
FAZAL ALI. J. By our Order dated October 20, 1983, we had dismissed the appeal.
We now proceed to give our reasons for the same.
The victory of our long drawn struggle for
freedom from the British Yoke came to us after one and a half century of
perpetual and constant efforts soaked in cold blood and dipped in supreme
sacrifice. The historical midnight of August 15, 1947, which ushered in a new
era, was merely a completion of a phase and not the end of an epoch but only
the beginning of the end.
Soon thereafter the wise wizards and the
founding fathers of our Constitution set out to devote their wholehearted
attention to devise ways, and means to give to our sub-continent a solid and
comprehensive Constitution which may solve multifarious and manifold
difficulties, fulfil the burning needs of the nation and sort out complex and
complicated problems which arose after our hardwon freedom which must have
baffled our leaders. There was the question of achieving a secular democracy,
the largest in the world, based on a socialist pattern which would taken care
of all sorts and kinds of people having different cultures, languages and
religions; to confer and guarantee fundamental rights of citizens through
mandatory provisions, to lay down directive principles of State Policy which
were to be the guiding spirit of the Constitution, the question of achieving
agrarian reforms by displacing the old British bureaucratic system and substituting
a new order, the issue of reconciling the irreconcilable and various other
thorny and tricky matters. One 180 of the important objectives to be translated
into action was to take special care of the backward classes, members of the
scheduled castes and tribes by bringing them to the fore through pragmatic
reforms and providing adequate opportunities for their amelioration and
development, education, employment and the like.
As Mahatma Gandhi, father of the nation, said
"India lives in villages" and so do the backward classes, hence the
primary task was to take constructive steps in order to boost up these classes
by giving them adequate concessions, opportunities, facilities and
representation in the services and, last but not the least, in the electorate
so that their voices and views, grievances and needs in the Parliament and
State legislatures in the country may be heard, felt and fulfilled.
In this election appeal which has been filed
against the Judgment dated October 25, 1981 of the High Court of Madhya
Pradesh, we are really concerned with the last aspect mentioned above. Despite
odds and ends our Constitution has made exhaustive provisions for difficult to
say, for this is really a herculean task and one cannot expect miracles to be performed
within a span of three decades which in the history of nations, is not a very
long period. The knotty and difficult, puzzling and intricate issue with which
we are faced is, to put it shortly, 'what happens if a member of a scheduled
caste or tribe leaves his present fold (Hinduism) and embraces Christianity or
Islam or any other religion'-does this amount to a complete loss of the
original caste to which he belonged for ever and, if so, it he or his children
choose to abjure the new religion and get reconverted to the old religion after
performing the necessary rites and ceremonies, could the original caste revive
? The serious question posed here arose and has formed the subject-matter of a
large catena of decisions starting from the year 1861, traversing a period of
about a century and a half, and culminating in a decision of this Court in the
case of G.M. Arumugam v. S. Rajagopal & Ors.(1) The Constitution has tried
to solve the problem to a great extent by the Constitution (Scheduled Castes)
Order 1950 (hereinafter referred to as the '1950 Order') issued under Art. 341,
which lays down a list of various castes prevailing in the country and the
norms to determine the same. This Order has been amended from time to 181 time.
In our opinion, despite a genuine attempt to solve the problem the provisions
do not provide a complete answer to the judicial interpretation by this Court
which lays down the law of the land. It is true that the controversy has been
narrowed down to the minimum by the decision in Arumuga's case (supra) still
there are some vital question which remain unanswered.
Before dealing with the cases on the subject
and starting the chapter of the issues involved in this case, it may be germane
to give a short history of the nature, character, origin and background of the
controversy. To begin with, the caste system actually came into existence since
the dawn of the civilized races in this country, viz., Dravidian followed by
Aryan civilization which through Hinduism divided by castes into three
clear-cut sub- divisions which started by virtue of the occupational pursuits
followed by the various classes. The priests and the scholars were known as the
Bhrahmanas and looked after religious ceremonies, education, etc. This Class
was supposed to be the highest Class or atleast respected and regarded as such.
Then came the Kshatriyas who were the people engaged in fighting wars and
ruling and administering the States. Thirdly, there were the Vaisayas who
carried on the occupation of trade and commerce. The Sudras were added as the
fourth Class after fusion of the pre-Dravidian with the Dravidian and Aryan
civilizations which formed the basic fabric of Hinduism and the Hindu society.
This Class was treated as a little inferior and suffered from certain
disabilities.
In fact, it seems to us that our large
sub-continent was inhabited by a very large variety of peoples and races-
indigenous and outsiders-consisting of Scythians, Yavanas, Kirathas, Kambhojas
and Persians and others who came to India in ancient times and got mixed up
with the old inhabitants of the country and thus completely lost their
identity. It appears to us that all these races entered the wide and broad fold
of Hinduism, which is not only a religion but also a way or poetry of life, a
philosophy, an exhaustive and ethical code of living which adapts-itself to all
forms and cultures. In view of this complex intermingling of various kinds of
people, as time went by, castes started multiplying, and in this process the
avocations and occupations followed by members of such castes from generation
to generation were labelled as a separate class to which the people practising
various professions belonged and this institution had come to stay.
The origin, therefore of the fundamental
basis of the castes has now disappeared and given rise to individualism and
separa- 182 tism as a result of which it was duly recognised by all schools of
Hindu thought that birth alone would determine the caste and this principle
would have to continue unless the concept of caste is banished forever. In
other words, it is now well settled-whether one accepts it or not-that caste is
the result of birth and not of choice or volition.
Without traversing on any controversial issue
and coming back to the origin of the caste system, we would like to refer to
the most authoritative pronouncements ordained by Lord Krishna in Shree
Bhagvadgita which would demonstrate that the division of castes was made purely
on the basis of inherent qualities and avocations of a person and hence the
question of superiority between one or the other lay not on the nature of the
caste but on their actions and deeds. This would be illustrated by a reference
to the actual text of Shri Bhagvadgita as compiled by F. Max Muller in his book
entitled 'Sacred Books of the East (Vol. VIII)' and we would like to extract
some passages and injunctions of Lord Krishna illustrating the vices and
virtues of men where castes also figure. In Shloka 13, Chapter 4 of Bhagvada
Geeta, Lord Krishna clearly proclaimed that "Four Varnas, viz., Brahmanas,
Kshtriyas, Vaisyas and Sudras were created by him on the basis of inherent
qualities and avocations of a particular individual". (Translated into
English from the original text in Hindi).
Further said Lord Krishna to the son of Kunti
thus:
"Whatever you do, O'Son of Kunti:
Whatever you eat, whatever sacrifices you make, whatever you give,
whatever-penance you, do that as offered to me...I am alike to all beings; to
me none is hateful, none dear.
But those who worship me with devotion
(dwell) in me, and I too in them. Even if a very ill-conducted man worships me,
not worshiping anyone else, he must certainly be deemed to be good, for he has
well resolved.. (You may) affirm, O son of Kunti: that my devotee is never
ruined. For, O son of Pritha: even those who are of sinful birth, women,
Vaisyas; and Sudras likewise, resorting to me, attain the supreme goal. What
then (need be said of) holy Brahmanas and royal saints who are (my) devotees
?" These passages clearly go to confirm the true philosophy of Mahatma
Gandhi that the Sudras or the members of the scheduled castes are Harijans and
he condemned untouchability and the habit of looking down upon the scheduled
caste people merely because 183 they belonged to the Sudra caste. Further, Lord
Krishna goes on to ordain as follows:
"The duties of Brahmanas, Kshatriyas and
Vaisyas, and of Sudras, too, O terror of your foes ! are distingushed according
to the qualities born of nature.
Tranquility, restraint of the senses, penance,
purity, forgiveness, straight forwardness, also knowledge, experience, and
belief (in a future world), this is the natural duty of Brahmanas. Valour,
glory, courage, dexterity, not a slinking away from battle gifts, exercise of
lordly power, this is the natural duty of Kshatriyas. Agriculture, tending
cattle, trade, (this) is the natural duty of Vaisyas. And the natural duty of
Sudras, too, consists in service. (Every) man intent on his own respective
duties obtains perfection....Worshipping, by (the performance of) his own duty,
him from whom all things proceed, and by whom all this is permeated, a man
obtains perfection." In another chapter, Vidura is quoted as saying thus:
"I am born of a Sudra womb, and do not
like to say more than what (I have said'). But the intelligence of that youth,
I believe to be eternal. He who has come of a Brahamana womb, even though he
may proclaim a great mystery, does not thereby become liable to the censure of
the gods. Therefore do I say this to you." In view of the revealed
injunctions in the Shree Bhagavadgita Mahatma Gandhi's dream that all
distinctions of castes and creed must disappear and man must be known by his
action, to whatever caste he may belong, has been realised to some extent and
necessary provisions to this effect have been made in the Constitution in order
to safeguard the interests of the backward classes and members of the members
of the scheduled castes and scheduled tribes and perhaps, let us hope, a day
comes when the distinction between caste and creed disappears completely.
One of the most puzzling question that arises
in this case is:
'Is membership in a caste or tribe to be
determined solely by birth or by allegiance or by the opinion of its members or
of the neighbourhood? Does one lose his caste on conversion or by
ex-communication ? 184 The decisions to which we would we would refer hereafter
have thrown flood of light on these questions and the generally accepted view
seems to be the one which has been laid down in Charlotte Abraham and Daniel
Vincent Abraham v. Francis Abraham(1) where the Privy Council observed thus:
"It is plain that no rule as to such use
and enjoyment, which the ancestors may voluntarily have imposed on themselves,
could be of compulsory obligation on a descendant of theirs; acquiring his own
wealth. If a Hindoo in an undivided family may keep his own sole acquisitions
separate, as he undoubtedly may, a fortiori a Christian may do the same ....If
the spirit of an adopted religion improves those who become converts to it, and
they reject, from conscience, customs to which their first converted ancestors
adhered, must the abandoned usages be treated by assort of fictio Juris as
still the enduring customs of the family." So far as this Court is
concerned, these questions were clearly answered in Chaturbhuj Vithaldas Jasani
v. Moreshwar Parashram & Ors.,(2) (hereinafter referred to as 'Jasani's,
case' where a triple test was laid down thus:
"Looked at from the secular point of
view, there are three factors which have to be considered:
(1) the reactions of the old body, (2) the
intentions of the individual himself and (3) the rules of the new order. If the
old order is tolerant of the new faith and sees no reason to outcaste or
ex-communicate the convert and the individual himself desires and intends to
retain his old social and political ties, the conversion is only nominal for
all practical purposes and when we have to consider the legal and political
rights of the old body the views of the new faith hardly matter...On the other
hand, if the convert has shown by his conduct and dealings that his break from
the old order is so complete and final that he no longer regards himself as a
member of the old body and there is reconversion and readmittance to the old
fold, it would be wrong to hold that he can nevertheless claim temporal
privileges and political advanta- 185 ges which are special to the old
order.... The only modification here is that it is not only his choice which
must be taken into account but also the views of the body whose religious
tenets he has renounced, because here the right we are considering is the right
of the old body, the right conferred on it as a special privilege to send a
member of its own fold to Parliament." The observations cited above give
the general test that can be applied in judging the question as to when a Hindu
on conversion loses his caste. Although the test laid down by this case is
fully supported by the original text of Hindu Law, it does not in so many words
answer the other side of the picture, viz., if a Hindu after conversion to
another religion is reconverted to his original fold, could his caste revive ?
In fact, the case cited above was not a case of conversion from one religion to
another religion or from one sect to another sect. By and large, the test laid
down in that case can be usefully applied with alterations and modifications to
suit the facts of a particular case in judging the question whether on
conversion the caste is completely lost.
The next case which throws some light on the
question is S. Rajagopal v. C.M. Armugam Ors.(1) In this case what had happened
was that the appellant (before the Supreme Court) had filed his nomination
papers for a constituency reserved for members of the scheduled caste mentioned
under the 1950 Order but he was defeated by respondent No. 1 of that case,
whose petition succeeded. The contention in the petition was that the appellant
was not a Hindu but a Christian and therefore not qualified to be a candidate
for a constituency reserved for scheduled caste. The High Court found as a fact
that the appellant had become a Christian in 1949 and his later reconversion to
Hinduism remained unproved. This Courts agreeing with the High Court dismissed
the appeal. One important feature of this case may be noted which would at once
distinguish this case from the facts of the present case. The question as to
whether a Christian on being reconverted to Hinduism would get back his caste
did not arise at all in that case because on the facts found, reconversion was
not proved. Therefore, the question of caste being acquired or being revived on
reconversion to Hinduism did not fall for determination and was left open.
Even so, considering Jasani's case and a
number of other texts, Bhargava, J. made 186 the following observations:
"Considering the question of entry into
the caste, Krishnaswami Ayyangar, J., held that, in matters affecting the
well-being or composition of a caste, the caste itself is the supreme judge. It
was on this principle that a reconvert to Hinduism could become a member of the
caste, if the caste itself as the supreme judge accepted him as a full member
of it." While holding that if a person is reconverted to Hinduism and the
community of the caste to which he originally belonged accepts him, his caste
would revive;
nevertheless the question was left open.
Rajagopal's case (supra) merely reiterates what was held in Jasani's case and
does not go any further.
In our opinion, there is one aspect which
does not appear to have been dealt with by any of the cases discussed by us.
Suppose, A, a member of the scheduled caste, is converted to Christianity and
marries a Christian girl and a daughter is born to him who, according to the
tenets of Christian religion, is baptised and educated. After she has attained
the age of discretion she decides of her own volition to re-embrace Hinduism,
should in such a case revival of the caste depend on the views of the members
of the community of the caste concerned or would it automatically revive on her
reconversion if the same is genuine and followed by the necessary rites and
ceremonies ? In other words, is it not open for B (the daughter) to say that
because she was born of Christian parents their religion cannot be thrust on
her when after attaining the age of discretion and gaining some knowledge of
the world affairs, she decides to revert to her old religion. It was not her
fault that she was born of Christian parents and baptised at a time when she
was still a minor and knew nothing about the religion. Therefore, should the
revival of the caste depend on the whim or will of the members of the community
of her original caste or she would lose her caste for ever merely because
fortunately or unfortunately she was born in a Christian family ? With due respect,
our confirmed opinion is that although the views of the members of the
community would be an important factor, their views should not be allowed to a
complete loss of the caste to which B belonged. Indeed, if too much stress is
laid on the views of the members of the community the same may lead to
dangerous exploitation. Perhaps, this factor was present in the mind of
Bhagwati, J., who delivered the leading judgment 187 in a later decision of
this Court in G.M. Arumugam v. S. Rajagopal & Ors.(1) where, speaking for
the Court, he made the following observations:
"It is sufficient to state that
originally there were only four main castes, but gradually castes and
sub-castes multiplied as the social fabric expanded with the absorption of
different groups of people belonging to various cults and professing different
religious faiths. The caste system in its early stages was quite elastic but in
course of time it gradually hardened into a rigid framework based upon
heredity......But that immediately raises the question;
what is a caste. When we speak of a caste, we
do not mean to refer in this context to the four primary castes, but to the
multiplicity of castes and sub- castes which disfigure the Indian social
scene.....A caste is more a social combination than a religious group.
But from that it does not necessarily follow
as an invariable rule that whenever a person renounces Hinduism and embraces
another religious faith, he automatically ceases to be a member of the caste in
which he was born and to which he belonged prior to his conversion.. . If the
structure of the caste is such that its member must necessarily belong to Hindu
religion, out of the caste, because no non- Hindu can be in the caste according
to its rules and regulations.
Where, on the other hand, having regard to
its structure, as it has evolved over the years, a caste may consist not only
of persons professing Hindu- religion but also persons professing some other
religion as well, conversion from Hinduism to that other religion may not
involve loss of caste, because even persons professing such other religion can
be members of the caste......... This is indeed not an infrequent phenomenon in
South India where, in some of the castes, even after conversion to
Christianity, a person is regarded as continuing to belong to the caste.
There are castes, particularly in South
India, where this consequence does not follow on conversion, since such castes
comprise both Hindus and Christians.
188 These weighty observations support the
view that after reconversion the caste will normally revive. On the question
whether the caste will revive if the members of the community accepts the
reconvert, the Judges are silent.
Although Bhagwati, J. held that prima facie
on conversion to Christianity the respondent would not cease to belong to the
Adi Dravida caste, yet he refrained from expressing any final opinion on the
point.
In a recent decent decision of this Court S.
Ambalagan v. B. Devarajan & Ors.(1) (which was also an election case), a
three-Judge Bench reiterated the principles enunciated by Arumugan's case
(supra) and observed thus:
"Unless the practice of the caste makes
it necessary no expiatory rites need be performed and, ordinarily, he regains
his caste unless the community does not accept him.........The practice of
caste however irrational it may appear to our reason and however repugnant it
may appear to our moral and social sense, is so deep-rooted in the Indian
people that its mark does not seem to disappear on conversion to a different
religion. If it disappears, it disappears only to reappear on
reconversion........
In fact, this process goes on continuously in
India and generation by generation lost sheep appear to return to the castefold
and are once again assimilated in that fold. This appears to be particularly so
in the case of members of the Scheduled Castes, who embrace other religions in
their quest for liberation, but return to their old religion on finding that
their disabilities have clung to them with great tenacity.
(Emphasis ours) The facts of this case
appears to be on all fours with the facts of the present case.
A number of High Courts have also taken a
view similar to the one taken in Arumugam's case of 1976 (supra) basing mainly
their decisions on the leading case of Jasani. In the case of Goona
Durgaprasada Rao & Anr. v. Goona Sudarsanaswami & Ors.,(2) a Division
Bench of the Madras High Court observed thus:
189 "It is hardly right for the Court to
erect a barrier which the autonomy of the caste does not see fit to do, simply
because in some other caste or some other community it might be considered
proper that an expiatory ceremony should be performed. That a Hindu having
renounced Hinduism once can revert to it scarcely admits of doubt.
A Similar view was expressed in G. Michael v.
S. Venkateswaran(1) which may be extracted thus:
"A member of one of the castes or
sub-castes when he is converted to Islam ceases to be a member of any caste. He
becomes just a Mussalman find his place in Muslim society is not determined by
the caste to which he belonged before his conversion. Learned counsel also
conceded that generally this is so even when there has been a conversion to
Christianity. But he said that there were several cases in which a member of
one of the lower castes who has been converted to Christianity has continued
not only to consider himself as still being a member of the caste, but has also
been considered so by other members of the caste who had not been
converted........But these are all cases of exception and the general rule is
conversion operates as an expulsion from the caste; in other words a convert
ceases to have any caste.
Thus, it was clearly hinted that in some
cases even converts to Christianity could retain their original caste.
In the case of Dippala Suri Dora v. V.V.
Giri(2) a Division Bench of the Andhra Pradesh High Court made the following
observations:
"Even if they come within the fold of
Hinduism, question would arise whether they have formed separate sect among
themselves, or they would belong to the 4th class, or to the twice-born
class......In order to prove that he ceased to be a member of that tribe, there
should be first of all, evidence of intention, the reactions of the old body
and that of the new body.
Viewed in the light of these observations,
the evidence discussed above, in our opinion, falls short of the test.
190 This case merely lays down the triple
test enunciated in Jasani's case. To the same effect are the decisions in the
cases of Wilson Reade v. C.S. Booth & Ors.,(1) and B Shyamsunder v. Shankar
Deo Vedalankar & Ors.(2) On a careful consideration of the authorities
referred to above and the principles enunciated by them, the position that
emerges may be stated thus:
It is true that caste to which a Hindu
belongs is essentially determined by birth and if a Hindu is converted to
Christianity or any other religion which does not recognise caste, the
conversion amounts to a loss of the said caste.
The question that arises for consideration is
whether the loss of the caste is absolute, irrevocable so as not to revive
under any circumstances ? In considering this question the courts have gone
into the history of the caste system and have formulated the following guiding
principles to determine this question:- (a) Where a person belonging to a
scheduled caste is converted to Christianity or Islam, the same involves loss
of the caste unless the religion to which he is converted is liberal enough to
permit the convertee to retain his caste or the family laws by which he was
originally governed.
There are a number of cases where members
belonging to a particular caste having been converted to Christianity or even
to Islam retain their caste or family laws and despite the new Order they were
permitted to be governed by their old laws. But this can happen only if the new
religion is liberal and tolerant enough to permit such a course of action.
Where the new religion however does not at all accept or believe in the caste
system, the loss of the caste would be final and complete. In a large area of
South and some of the North-Eastern States it is not unusual to find persons
converted to Christianity retaining their original caste without violating the
tenets of the new Order which is done as a matter of common practice existing from
times immemorial. In such a category of cases, it is obvious that even if a
person abjures his old religion and is converted to a new one, there is no loss
of caste. Moreover, it is a common feature of many converts to a new religion
to believe or have faith in the Saints belonging to other religions.
For instance a number of Hindus have faith in
the Muslim Saints, Dargahs, Imam- 191 badas which becomes a part of their lives
and some Hindus even adopt muslim names after the Saints but this does not mean
that they have discarded the old Order and got themselves converted to Islam
(b) In all other cases, conversion to Christianity or Islam or any other
religion which does not accept the caste system and insists on relinquishing
the caste, there is a loss of caste on conversion.
The other important question which is to be
answered and which is really the controversy in the present case is if after a
person is converted to a new religion - in the instant case, Christianity -
does his caste revive if he is reconverted to his old religion and, if so,
under what circumstances ? As indicated above, starting from the Privy Council
to the present-day, authorities of the High Courts and this Court have laid
down certain norms and conditions under which a caste could revive. These
conditions are as follows:- (1) where the convertee exhibits by his actions and
behaviour his clear intention of abjuring the new religion on his own volition
without any persuasion and is not motivated by any benefit or gain, (2) where the
community of the old order to which the convertee originally belonged is
gracious enough to admit him to the original caste either expressly or by
necessary intendment, and (3) Rules of the new Order in permitting the
convertee to join the new caste.
Unless the aforesaid conditions are fulfilled
to the loss of caste on conversion is complete and cannot be revived. In our
opinion having regard to the present set-up and the circumstances prevailing in
our modern society, it will be difficult to insist on the second condition,
viz., the insistence on the members of the community of the caste to admit the
convertee on reconversion to the original faith because such a course of action
may lead to dangerous consequences and ill-conceived exploitation. The curse
and cancer of untouchability despite thirty years of social reforms still
persist and no quarter should be given to further persecution of the members of
the scheduled castes who, as we often find, are subjected to all kinds of
indignities 192 insults and are looked down upon as slaves or vassals, meant
merely to serve the members of the higher caste. In the case of Ganpat v.
Returning Officer & Ors (1) this Court speaking through Alagiriswami, J.
highlighted this particular aspect in the following words:
"The monstrous curse of un-touchability
has got to be eradicated. It has got to be eradicated not merely by making
constitutional provisions or laws but also by eradicating it from the minds and
hearts of men. For that it is even more important that members of communities
who are untouchable should assert their self-respect and fight for their
dignity than that members of the other communities should forget about it.
In our opinion, the main test should be a
genuine intention of the reconvert to abjure his new religion and completely
dissociate himself from it. We must hasten to add here that this does not mean
that the reconversion should be only a ruse or a pretext or a cover to gain
mundane worldly benefits so that the reconversion becomes merely a show for
achieving a particular purpose whereas the real intention may be shrouded in
mystery. The reconvert must exhibit a clear and genuine intention to go back to
his old fold and adopt the customs and practices of the said fold without any
protest from members of his erstwhile caste. In order to judge this factor, it
is not necessary that there should be a direct or conclusive proof of the
expression of the views of the community of the erstwhile caste and it would be
sufficient compliance of this condition if no exception or protest is lodged by
the community members, in which case the caste would revive on the reconversion
of the person to his old religion.
Another aspect which one must not forget is
that when a child is born neither has he any religion nor is he capable of
choosing one until he reaches the age of discretion and acquires proper
understanding of the situation. Hence, the mere fact that the parents of a
child, who were Christians, would in ordinary course get the usual baptism
certificate and perform other ceremonies without the child knowing that is
being done but after the child has grown up and becomes fully mature and able
to decide his future he ought not to be bound by what his parents may have
done. Therefore, in such cases, it is the intention of the convertee which
would determine 193 the revival of the caste. If by his clear and conclusive
conduct the person reconverts to his old faith and abjures the new religion in
unequivocal terms, his caste automatically revives.
Another dominant factor to determine the
revival of the caste of a convert from Christianity to his old religion would
be that in cases of election to the State Assemblies or the Parliament where
under the Presidential Order a particular constituency is reserved for a member
of the scheduled caste or tribe and the electorate gives a majority verdict in
his favour, then this would be doubtless proof positive of the fact that his
community has accepted him back to his old fold and this would result in a
revival of the original caste to which they said candidate belonged.
In our opinion, when a person is converted to
Christianity or some other religion the original caste remains under eclipse
and as soon as during his/her life- time the person is reconverted to the
original religion the eclipse disappears and the caste automatically revives.
Whether or not the revial of the caste
depends on the will and discretion of the members of the community of the caste
is a question on which we refrain from giving any opinion because in the
instant case, there is overwhelming evidence to show that the respondent was
accepted by the community of her original katia caste. Even so, if the fact of
the acceptance by the members of the community is made a condition precedent to
the revival of the caste, it would lead to grave consequences and unnecessary
exploitation, sometimes motivated by political considerations. Of course, if
apart from the oral views of the community there is any recognised documentary
proof of a custom or code of conduct or rule of law binding on a particular
caste, it may be necessary to insist on the consent of the members of the
community, otherwise in normal circumstances the caste would revive by applying
the principles of doctrine of eclipse. We might pause here to add a rider to
what we have said, i.e., where it appears that the person reconverted to the
old religion had been converted to Christianity since several generations, it
may be difficult to apply the doctrine of eclipse to the revival of caste.
However, that question does not arise here.
Coming now to the facts and evidence of the
present case the position may be briefly stated as follows:
The appellant, an M.A., LL.B. from Jabalpur
University had contested election from the Madhya Pradesh Vidhan Sabha (here-
194 inafter referred to as 'Vidhan Sabha) from Legislative Assembly
constituency No. 195 in the general election of 1977 as a Janata Party
Candidate which was reserved for Scheduled Caste under Art. 332 of the
Constitution being item No. 30 of Part IX-Madhya Pradesh of the 1950 Order. He
was declared elected defeating his nearest rival candidate, one Ramprasad
Choudhary, a Congress candidate. The Vidhan Sabha was, however, dissolved in
February 1980 after which general elections for all the constituencies were to
be held afresh, as notified in the Gazette, in the month of May 1980. The last
date for filing nomination papers was 2.5.1980, the date of scrutiny was 3.5.80
and the polling took place on 31.5.80. The results were declared on 2.6.80.
In this election, the appellant submitted his
nomination papers as an Independent candidate from constituency No. 195
(Jabalpur East) and was opposed by Smt. Maya Devi Shalwar (hereinafter referred
to as 'Maya Devi') who filed her nomination papers as a Congress (I) candidate.
She described herself as belonging to the scheduled caste 'Katia' which is
mentioned at serial No. 29 of Part IX-Madhya Pradesh of the 1950 Order. In view
of the short and narrow compass of this appeal we are not concerned with other
candidates.
It may be mentioned that originally the caste
'Katia' was not included in the list of scheduled castes till the year 1977 but
by the Scheduled Castes and Scheduled Tribes Order (Amendment) Act, 1976 (Act
No. 108 of 1976) the schedule was amended and replaced by a new Schedule in
which Katia caste was included as a scheduled caste and shown at serial No.29.
It appears that at the time of the scrutiny
of the nomination papers of Maya Devi, several persons raised objection that
she, being a Christian by birth, could not be treated as a member of the
scheduled caste and therefore her declaration as a scheduled caste candidate
was false which merited dismissal of her nomination papers. The case of Maya
Devi was that she was a member of the scheduled caste by birth and her husband,
Jai Prakash Shalwar, also belonged to the Katia caste. She denied that she was
a Christian by birth and averred that her father's name was not John Wesley as
alleged by the appellant. Her plea found favour with the Returning Officer who
accepted her nomination papers. After the poll, Maya Devi received majority of
votes, having secured 16,770 votes, and was declared elected, and the appellant
lost the election.
It was further alleged by the appellant that
Maya Devi after 195 being born a Christian was baptised according to Christian
rites and her mother's name was Elizabeth. The appellant also averred that Maya
Devi's marriage with Jai Prakash Shalwar was not a recognised form of marriage
and, therefore, not valid. A number of other pleas were also taken by the
appellant in his petition but Mr. U.R. Lalit, appearing on his behalf, confined
his arguments to two important questions:
(1) Whether Maya Devi having been born of
Christian parents lost the katia caste to which she or her ancestors originally
belonged ? and (2) that after being baptised she continued to be a Christian
and was shown as such in various documents.
In this view of the matter it was contended
that even if she married Jai Prakash Shalwar who belonged to Katia caste, her
caste could not revive because caste is determined not by marriage but by
birth.
In proof of his pleas, the appellant adduced
both oral and documentary evidence. The allegations made by him were denied by
the respondent who categorically stated that she was never a Christian nor was
she born a Christian. She also averred that even her father or mother were not
Christians.
On the other hand, she always remained a
member of the Katia caste and was accepted as such by the members of that
community because her marriage with Jai Prakash Shalwar was performed according
to Hindu rites of Aryasamaj seet and was attended by a number of members of her
caste and due publicity was given to the marriage.
Both the parties have adduced evidence in
support of their cases. One important fact which may be noted here is that the
father of the respondent John Wesley who according to Maya Devi was. John
Wesley singh, in spite of being cited as a witness did not enter the witness
box to throw light on the origin of the religion of the respondent and a huge
capital has been made of the non-appearance possible circumstance to discredit
the case of the respondent.
It is true that the father of the respondent
was not examined as a witness but having regard to the nature of the documents
produced 196 by the parties the mere fact that John Wesley was not examined as
a witness is not sufficient to throw the case of the respondent aboard. It is
also true that the respondent was ill-advised to deny the entire case of the
appellant by making an averment that she was not born of Christian parents at
all. We would, therefore, take it as established that the respondent was
undoubtedly born of Christian parents. That by itself does not advance the case
of the appellant any further because if it is proved that she was voluntarily
reconverted to Hinduism then according to the law referred to us and applied to
the facts of the present case on reconversion her original caste would
automatically revive. We would give a brief summary of the nature of the
evidence produced by the parties on this limited question.
To begin with the appellant has relied on the
birth certificate (Ex. P-21) which shows that a female child was born to John
Wesley's wife on 4.6.1947. It is also clearly mentioned therein that John
Wesley was a Christian. This was followed by a baptism certificate which shows
that she was baptised according to the religious ceremonies of the Christians.
The appellant also produced a Church membership certificate to show that Maya
Isabella John Wesley (respondent) was baptised and admitted as a member of the
City Methodist Church in Southern Asia at Jabalpur, Madhya Pradesh. The school
transfer certificate dated 6.6.1956 shows that Maya Isabella John Wesley was a
Christian and remained a student of Peeli Kothi Girls Primary School, Jabalpur
from 1.7.1952 to 30.4.1956, and her date of birth in this certificate has been
shown as 4.6.1947 which fully tallies with her birth certificate. In view of
the overwhelming evidence referred to above, it is not necessary for us to
consider the oral and documentary evidence which conclusively proves-(1) that
the parents of the respondent were Christians and (2) that after her birth she
got baptised and remained a Christian, and therefore it cannot be denied that
the respondent was born a Christian and in this view of the matter the moment
she entered the fold of Christianity, her original caste was completely lost.
The respondent in her anxiety to succeed has overstated her case by wrongly
alleging that she was never born of Christian parents or that her parents were
not Christians, a fact which is completely falsified by the oral and
documentary evidence produced by the appellant.
Accepting, therefore, the evidence led by the
appellant, the vital question for determination in this case remains as to
whether or not the respondent was voluntarily reconverted to Hinduism and
thereupon her caste revived.
There is clear and unimpeachable 197 evidence
to show that the respondent had reconverted herself to Hinduism voluntarily and
with full publicity, making no secret of this fact. A letter appearing at page
22 of the Paperbook shows that she accepted Hindu religion with all its customs
and rites voluntarily. The relevant part of the letter reads thus:
I am prepared to own Hindu religion with all
sincerity and to follow all its customs and rites.
Today, on 6.11.76 I am fully major. Hence the
above decision is of my own wherein no external interference exists."
Immediately thereafter she was married to one Jai Prakash Shalwar and the
marriage certificate dated 14.11.76 fully corroborates this fact (page 24 of
the Paperbook). The Marriage certificate states that the marriage of Maya Devi
with Jai Prakash was performed on 6.11.76 in Arya Samaj Gorakhpur according to vedic
rites. Another certificate issued by the Secretary of the Arya Samaj, Gorakhpur
is also to the same effect. The aforesaid documents are amply corroborated by
the oral evidence led by the respondent.
The evidence of Darshanlal Dharmak deserves
special mention because this witness was a prominent member and President of
the Katia community for the last two-and-a half years. The witness goes on to
state that the marriage was celebrated in the presence of 80 persons of his
community, including elderly people and his presence at the marriage clearly
indicates that the community had fully accepted the respondent back to her
caste. The marriage was followed by a reception 3-4 days later which was
attended by this witness also and at that time nobody raised any objection
about Maya as not belonging to the Katia community. The witness further states
that he had gone to the house of the respondent and that members of the
community had come to celebrate the birthday of her child.
It would appear from the evidence of
Bhaiyalal Nag, another witness produced by the respondent, that there was a
Katia Samaj Sanstha in Madhya Pradesh which was registered under the Societies
Registration Act and the witness was the Vice-President of this organisation.
He states that Jai Prakash was known to him and belonged to his caste and that
he was married to Maya Devi. He further states that no objection was raised in
the Organisation about this marriage. He further stated that Maya Devi had been
attending number of marriages in his caste. He makes a very stark statement
which is 198 fully supported by the Abhinandan Patra and his statement may be
extracted thus:
"We mentioned her in this Abhinandan
Patra as belonging to Katia caste as we were proud as she was the first M.L.A.
in our caste.
Ex. D-1A is the Abhinandan Patra given to
Maya Devi sometime in the year 1977-78, i.e. 3 years before the elections.
Furthermore, there is the evidence of Keshav Prasad Pathak which is rather
important. His evidence shows that a joint application was made by the
respondent and her husband regarding their consent to the marriage. He further
stated that before the parties are married, if either of them is not a Hindu
then he is first converted to Hinduism (Shudhikaran) by religious rites
performed in accordance with the Arya Samaj rites. He proves the applications
given by the respondent and her husband (Ex. P-8 and 9). He has further stated
that the marriage ceremony is usually performed before the members of the
Executive Committee of the Arya Samaj. He further defines the term 'Shudhikaran
to mean "Convert non-Hindu to Hinduism. He goes on to say that the
marriage was celebrated at the Arya Samaj according to vedic ceremony which
included Sapta-padi and Havan.
The appellant himself in his statement
admitted that in Jabalpur there are five-six thousand people of katia caste.
He further admitted that he did not make any
enquiries about the parents or the place of residence of Elizabeth, mother of
the respondent. He further admits at page 87 of the Paperbook that in 1978 he
was taken by Shri Dharmak as Chief Guest in the Conference of Katia Samaj. A
suggestion was made to him that he was present when the Katia community
honoured the respondent on her victory in the election.
Reading in between the lines of his evidence
it is clear that he was fully aware that the respondent had been reconverted to
Hinduism and had been accepted by the Katia community.
On a full and complete appraisal of the oral
and documentary evidence, the following conclusions are inevitable:
(1) That the respondent was born of Christian
parents and was educated in various schools or institutions where she-was known
as a Christian, (2) that 3-4 years before the election, the respondent was 199
reconverted to Hinduism and married Jai Prakash Shalwar, a member of the katia
caste, and also performed the Shudhikaran ceremony, (3) that she was not only
accepted but also welcomed by the important members, including the President
and Vice-President, of the community, (4) there is no evidence to show that
there was any bar under the Christian religion which could have prevented her
from reconverting herself to Hinduism.
(5) that there was no evidence to show that
even her parents had been Christians from generation to generation.
In these circumstances, therefore, this case
fulfils the conditions required for being reconverted to Hinduism from
Christianity in order to revive the original caste.
Under cl. (3) of the 1950 Order only two
conditions are required for being eligible for election to a reserved
constituency- (a) that the candidate should not profess a religion different
from the Hindu or the Sikh religion, and (b) that the candidate is a member of
scheduled caste as shown in the schedules.
In the instant case, it is not disputed that
the Katia caste is mentioned as a scheduled caste in part IX of the 1950 Order
and shown at serial Number 29.
Having regard to the circumstances discussed
above, it cannot be said that at the time when the respondent filed her
nomination papers, she was not a member of the Katia caste.
For the reasons given above, the judgment of
the High Court is affirmed and the appeal is dismissed but in the circumstances
without any order as to costs.
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