PETITIONER: GANPAT Vs. RESPONDENT: RETURNING OFFICER & ORS. DATE OF JUDGMENT04/12/1974 BENCH: ALAGIRISWAMI, A. BENCH: ALAGIRISWAMI, A. SARKARIA, RANJIT SINGH CITATION: 1975 AIR 420 1975 SCR (2) 923 1975 SCC (1) 589 CITATOR INFO : F 1976 SC 939 (11) R 1984 SC 600 (29) ACT: Election-Member of Scheduled Caste-Allegation that returned candidate became a convert to Buddhism-proof. HEADNOTE: In the election to the State Legislative Assembly to fill Lip a seat reserved for members of the scheduled castes from Nagpur, the second respondent was declared elected. The appellant challenged the election. on the ground, inter 'Ilia, that the second respondent ceased to be a Hindu having been converted to Buddhism. The High Court dismissed the election petition. Dismissing the appeal to this Court, HELD : (1) The second respondent was a well known Doctor in Nagpur, the appellant belonged to Nagpur and they belonged to scheduled castes before the second respondent's alleged conversion to Buddhism. And yet, the appellant has not given the date, the place or the circumstances under which the second respondent became a convert to Buddhism. Nor did the appellant object at the time of the scrutiny of the nomination papers. that the second respondent was not a member of the scheduled caste. [925 G-926 B, F-G] (2) The second respondent was born a Hindu and was married according to Hindu rites. He went to England on a Government scholarship given to members of scheduled castes to study Medicine. If he was not a member of a scheduled caste he had run a risk of prosecution when he so claimed for getting the scholarship, and also ran a similar risk for perjury in the present case. [926 G-H] (3) Merely because the nieces of the second respondent were married according to Buddhist rites, the invitation for their marriage was in the Buddhist form, the second respondent's name was printed as one of those joining in the invitation, at the time of the marriage the pictures of Dr. Ambedkar and the Buddha were garlanded, and a Buddhist Bhiku officiated at the marriage, It could not be held that the second respondent was a Buddhist. [927 A-D, E. G] (a) The evidence shows that there is very little difference between a wedding according to Buddhist rites and one according to Hindu rites. Moreover, Buddhist's rites are followed even where one of the parties to the marriage is a non-Buddhist, and there is no evidence that the Hindu partner does not continue to profess Hinduism thereafter. [927 D-E, 928 D-E] (b) The names of brothers are included in wedding invitations under the lead "With best compliments of", very often without their permission. [927 B-C] (c) The picture of Dr. Ambedkar might have been garlanded beCAUSE he was held in great veneration by the Scheduled castes. Therefore, merely because of the garlanding and the Buddhist Bhiku officiating at the marriage. the wedding could not be considered to be according to Buddhist rites. [928 A- B] (4) When one is born a Hindu the fact that he goes to a Buddhist temple or a Church or Durga cannot be said to show that he is no more a Hindu and that he had changed his religion. [929 C-D] (5) Also, from the fact that Dr. and Mrs. Ambedkar and a large number of people openly got themselves converted to Buddhism it does not follow that all the members of the scheduled castes followed in their foot steps. [929 B] (6) Religion is essentially a highly personal matter and Hinduism is so tolerant and Hindu religious practices so varied and eclectic that one would find it difficult to say whether a person is practising or professing Hindu religion or not In such a matter, the open assertion by a person, especially in 924 educated member of society. about the religion he professes should be given considerable weight over the interested testimony of others based upon stray instances. [929 C, 930 F-G] JUDGMENT:
CIVIL APPELLATE JURISDICTION :Civil Appeal No. 348 of 1973.
Appeal from the judgment and order dated the 10th November,
1972 of the Bombay High Court (Nagpur Bench) in Election
Petition No. 1 of 1972.
L. M. Singhvi, M. C. Rajkarna,S. N. Ponikar, A. G. Maneses,
K. J. John and J. B. Dadachanji, for the appellant.
G. L. Sanghi, S. B. Wad, B. U. Wahano and Jayashree Wad,
for respondent No. 2.
K. L. Hathi and M. N. Shroff, for respondents Nos. 21 and
22.
The Judgment of the Court was delivered by
ALAGIRISWAMI, J. In the election to the Maharashtra Legis-
lative Assembly held in March 1972 to fill up a seat from
the North Nagpur constituency reserved for members of the
Scheduled Caste, the 2nd respondent was declared elected.
The appellant filed an election petition questioning the
election. That petition having been dismissed by the High
Court of Bombay (Nagpur Bench) this appeal has been filed by
the appellant.
In that election as many as 19 persons filed their
nomination papers. Nine of them withdrew leaving
respondents 2 to 10 and the appellant in the field. One of
them who withdrew was the 11th respondent, Ranjit Mesbram,
with whom we will have to deal later. It the election the
2nd respondent obtained 22,993 votes, the appellant obtained
21,135 votes, the 6th respondent obtained 16,123 votes and
the 9th respondent 2,590 votes. It is unnecessary to refer
to the other respondents or the votes obtained by them
because the argument before this Court have been confined to
respondents 2, 6 and 9. At many as 14 issues were framed for
decision of which, as far as the arguments before this Court
are concerned, only issues 9 and 1 survive. They are set
out below :
“9. (a) Was the notice of withdrawal
(document No. 5) tendered by the respondent
No. 11 to the Returning officer a valid one ?
(b) Did the notice of withdrawal (document
No. 6) tendered by Shri S. P. Ukey in the
prescribed form cure the defect, if any, in
the notice of withdrawal (document No. 6)) ?
(c) Can these notices be said to lie legally
tendered as required by section 37 of the
Representation of the People Act, 1951 ?
(d) If not, its effect ?
(e) Has the acceptance of the withdrawal of
the respondent No. 11 materially changed the
election results ?
925
10. (a) Are the- respondents 2 and 4 to IO
converts to Buddhism and have they embraced
and professed Buddhism and ceased to be Hindus
?
(b) If so, were they eligible to contest the
election from the Reserve Constituency ?
(c) If not eligible, what is the effect ?
(d) Did the candidature of the respondent
No. 6, if he was disqualified on account of
the conversion to Buddhism, materially affect
and after the election results ?
(e) What is the effect of not raising the
objection about the eligibility of the
candidate at the time of scrutiny of the
nominations ?
It may be necessary to notice issue 13 also because the
appellant had prayed not only for setting aside the election
of the 2nd respondent but also for his being declared
elected from the constituency. Issue 9 relates to the
question of withdrawal by Ranjit Meshram to whom reference
has already been made. Issue 10 relates to the question as
to whether respondents 2 and 4 to 10 could be said to be
members of the Scheduled Castes so as to be eligible to
stand for election from this constituency. Though in the
petition the question was raised about respondents 2 and
4 to 10, even in the High Court only the question relating to
respondents 2, 6 and 9 was considered. Before this Court
Dr. Singhvi appearing for the appellant concentrated his atten
tion regarding the case of respondents 2 and 6 and
preferred to leave the case of respondent 9 alone. This is
because next to the respondent 2 and the appellant,
respondent 6 has got the largest number of votes. Even the
question regarding respondent 6 is only important from the
point of view of the prayer in the election petition for
declaring the appellant elected after setting aside the
election of the 2nd respondent. If the 2nd respondent is
found not to belong to a Scheduled Caste no further question
will survive. It is only if the 2nd respondent is found to
belong to a Scheduled Caste that the question whether
respondent 6 also is of is not a member of a Scheduled Caste
and the appellant could be declared elected would arise at
all. We shall first deal with issue 10 because that is
concerned with the most important question.
We must first of all notice the fact that when the
nominations were scrutinized the appellant did not object to
the nomination papers of respondents 2, 6 and 9 being
accepted on the ground that they were not members of the
Scheduled Castes. Though legally there is no bar to the
appellant raising that question in the election petition
questioning the election of the 2nd respondent his
allegation that respondents 2, 6 and 9 are not members of
the Scheduled Castes would be considerably weakened because
of his failure to object at the time of the scrutiny of the
nomination papers. All the candidates belong to the Nagpur
City and all of them belong to the Scheduled Castes,
ignoring for the present the question whether they were
Buddhists. Respondents 2, 6 and 9 are not ordinary members
of the Scheduled Castes. Res-
926
pondent 2 is a doctor married to another doctor and
practising in Nagpur City. He sees 60 to 70 patients daily.
Respondent 6 is in advocate and as is seen from the result
he is popular enough to get 16,123 votes and his wife is a
doctor. Respondent 9 is also a doctor. They must,
therefore, be well-known figures in Nagpur or at least among
members of the Scheduled Castes. The appellant should cer-
tainly have known them personally or at least heard of them.
He should have also heard whether they were Hindus or
Buddhists. He must have known about their political
activity. This is one point of view from which the evidence
let in on behalf of the appellant should be considered.
The second point is that the movement for members of the
Scheduled Castes becoming Buddhists in order to get out of
the Hindu society, of which untouchability is an important
constituent, seems to have been started by Dr. Ambedkar in
1956 in which year a large number of members of the
Scheduled Castes, including Dr. Ambedkar and his wife,
publically embraced Buddhism. There is a Bhiku Niwas in
Nagpur and Buddhist Vandana is held every Sunday. The
appellant could not have been unaware of all this. All the
parties are persons who must have been born many years
before 1956 and so they must have been formally converted.
There is no allegation and there is no evidence as to when,
where and by whom respondents 2, 6 and 9 were converted to
Buddhism.
Thirdly, the instances relied on were in the case of the
2nd respondent the part he played in the marriage of his two
nieces, Usha and Sushil, whose marriages are said to have
been celebrated according to Buddhist rites. He is also
alleged to have visited the Bhiku Niwas and taken part in
Buddist Vandana. As regards the 6th respondent the
instances given are only that of his own marriage and the
marriage of his sister Vimal, both of which are said to have
been performed according to Buddhist rites. The question
regarding the namkaran ceremonies of the children of the
respondents was not argued-.
Fourthly, we have, got to consider this question in the
context of Indian society and the place of religious
observance in so far as they show what religion they
profess.
Taking first the case of the 2nd respondent, the date, the
place or the circumstances under which he became a convert
to Buddhism is not given in the election petition, nor is
there any allegation that he himself was married according
to the Buddhist rites. He asserts that wife is a Hindu, his
wife is a Hindu and they were married according to Hindu
rites. He is a medical graduate who went to England on a
scholarship provided by the Maharashtra Government on the
ground that he was a member of the Scheduled Castes. If he
was not a member of the Scheduled Castes he certainly ran a
serious risk in claiming to be a member of the Scheduled
Castes and getting a fairly valuable scholarship enabling
him to go to England and there is an equal risk in declaring
himself to be, a member of the Scheduled Castes even for the
purpose of election if he were not one. He further runs the
risk of being prosecuted for prejury in giving evidence in
the petition
927
claiming to be a member of the Scheduled Castes. It has not
been alleged that his marriage was according to the Buddhist
rites and we must, therefore, take his assertion that his
marriage was according to Hindu form at its face value. As
regards his part in the marriage of his nieces he says he
was standing outside and receiving guests while the marriage
ceremonies went on inside. The invitation card is, of
course, in the form which one would expect a Buddhist to
issue. The marriage was of the 2nd respondent’s nieces, not
of his own daughters and the invitation was issued by his
brother. The 2nd respondent’s name is printed there as one
of those joining in the invitation. But it-is well known
that the names of brothers are usually included in wedding
invitations under the head “with the best compliments of”.
People do not take the permission of those whose names are
included in the wedding invitations under that category and
it is but natural that the father of the bride should
include the name of his brother who as a doctor would be
considered to be a prominent member of the community to
which the parties belonged. It is true that the second
respondent has said that his brother was also a Hindu but on
that ground the 2nd respondent’s claim that he is a Hindu
could not be impugned.
There is also one curious feature about these marriages.
What exactly constitutes a proper Buddhist wedding is not
very clear from the evidence. The extract from the booklet
‘Boudcharya Vidhi’ marked as Ext.100-B refers, apart from
recitation of the mantaras, to the husband and wife being
made either to wear rings or some Sindhur being applied on
the head and of tying the sacred thread. But almost all the
witnesses also mentioned that the mangal sutra is tied which
is a Hindu custom. It also appears from the evidence that
at the time of these marriages according to Buddhist rites
the pictures of Dr. Ambedkar and Buddha are garlanded. One
witness for the petitioner has said that Buddhism is against
idol worship which really shows the extent of his ignorance.
The garlanding of Dr. Ambedkar’s photo graph cannot
certainly be a religious part of the ceremony. Even
according to the Buddhists marriage is said to be one of the
ten Sanskars. Therefore, except perhaps for the garlanding
of the, pictures of Dr. Ambedkar and Buddha there is very
little difference between a wedding according to Buddhist
rites and a wedding according to Hindu rites. The mantras
which are in Pali or in Sanskrit are not likely to be
understood by the majority of the persons present. Indeed
it is doubtful whether they would recognise the language as
Pali or Sanskrit. As regards persons officiating in such
marriages, it is said that there are two Bhikus in Nagpur,
Dr. Kausalayan and Medhankar. A Bhiku is a sanyasi and at
feast in the Hindu society a sanyasi never officiate.-, as a
priest in a wedding. So any officiation by a Bhiku in a
wedding in apparently something new which the new Buddhists
in Nagpur or Maharashtra might have adopted. The importance
given to Dr. Ambedkar is very significant in this context.
He was a great scholar, the chief architect of the
Constitution, but also a politician. He seem-, to have been
held in great veneration by the Scheduled Castes particu-
larly in Maharashtra at least by Mahars among them, he
himself having been born a Mahar. That the Scheduled Castes
in general and Mahars in particular should have been very
proud that he belonged
928
to their community is natural enough and the respect and the
veneration shown to him is also natural. But on that ground
we find it difficult to accept that any marriage in which
his photograph was garlanded or even a Buddhist Bhiku
officiated should be considered to be a wedding according to
Buddhist rites. Curiously Medhankar has not been examined
in this case. What we say in this respect applies to a
considerable extent to the marriages of the 6th respondent
as we I as his sister.
As regards the 2nd respondent visiting the Bhiku Niwas, the
explanation given by the 2nd respondent appears to be
reasonable enough. His dispensary is near the Bhiku Niwas.
He says that he has gone there either as a medical man or.
on social occasions. His joining the Buddhist Vandana is
spoken to only by one of the witnesses, Ramesh Vaidya and we
are not prepared to hold on his,solitary evidence that the,
2nd respondent was taking part in the Vandana. We find the
2nd respondent’s evidence on this point as more acceptable.
As far as the 6th respondent is concerned there is no
evidence about his visiting the Bhiku Niwas or joining the
Buddhist Vandana. The evidence is only about his marriage
and that of his sister being performed according to the
Buddhist rites.
This matter has also to be looked at from another point of
view. There is evidence in this case that persons who still
continue to be Hindus marry persons who have become
Buddhists and that in such cases the officiating Bhiku asks
them to become Buddhist on the occasion of the marriage.
Again this might explain the resort to the Buddhist rites
being followed in these marriages even where one of the
parties to the marriage is a non-Buddhist. There is no
evidence that in such cases the Hindu partner does not
profess Hinduism thereafter. There is also evidence that
even some Hindu Mahars celebrate their marriages according
to Buddhist rites-See P.W.25’s evidence regarding his
nephew’s marriage. It is very difficult therefore to rely
upon such evidence alone to hold that either the 2nd
respondent or the 6th respondent are Buddhists. It should
also be noted that the 6th respondent also denies that he
became a Buddhist. We consider, therefore, that the
evidence in this case does not satisfactorily establish that
either the 2nd respondent or the 6th respondent ceased to
profess Hinduism, they having been undoubtedly born as
Hindus.
In this connection it is necessary to remember that Hinduism
is a very broad based religion. In fact some people take
the view that it is not a religion at all on the ground that
there is no one founder and no one sacred book for the
Hindus. This, of course, is a very narrow view, merely
based on the comparison between Hinduism on the one side and
Islam and Christianity on the other. But one knows that
Hinduism through the ages has absorbed or accommodated many
different practices, religious as well as secular, and also
different faiths. One of the witnesses has described that
he considered Buddha as the 11th Avtar. Indeed there are
historians and sociologists who take the view that Buddhism
disappeared from India not by any other means but by being
absorbed into Hinduism. Therefore, if a certain community
in a spirit of protest says that they would give up Hinduism
and adopt
929
Buddhism it is not likely to make much change either in
their beliefs or in their practices. Centuries of habit and
custom cannot be wiped out overnight. While in the case of
highly educated members who have chosen the new religion the
change might make a difference in their attitude and perhaps
in their habits and customs, to the vast majority it is
likely to make very little difference. Merely because in a
public meeting Dr. Ambedkar and Mrs. Ambedkar and a large
number of people openly got themselves converted to Buddhism
it does not automatically follow that all the members of the
Scheduled Castes followed them in their footsteps. It does
not even mean that all Mahars, who seem to form the largest
element among the new Buddhists, became Buddhists. Hinduism
is so tolerant and Hindu religious practices so varied and
eclectic that one would find it difficult to say whether one
is practising or professing Hindu religion or not.
Especially when one is born a Hindu the fact that he goes to
a Buddhist temple or a church or a durgah cannot be said to
show that they are no more Hindus unless it is clearly
proved that they have changed their religion from Hinduism
to some other religion. In Tamil nadu in Nagapatnam there
is a Muslim Durgah the majority of pilgrims to which are
Hindus. In the same, town there is a church Vellankanni
called Lourdes of the East after the famous Lady of the
Lourdes in France. In Andhra Hindus have names like Mastan
Ayya or. Hussain Amma named after Muslim saints whose durgah
are near their places.
For a person who has grown up in Indian society it is very
difficult to get out of the coils of the caste system.
There are many castes among the Scheduled Castes. Though
all of them are tainted with untouchability, some among them
claim to be higher than some others. One knows of instances
of “high caste” members of the Scheduled Castes addressing a
“low caste” member of the Scheduled Castes in the same way
as the ordinary high caste Hindu would address a member of
the Scheduled Castes. The Urdu speaking Muslims in the
South would rarely inter-marry with Tamil speaking Muslims.
We know that the Punjabi Muslims used to look down upon the
Bengali Muslims. Till recently Muslims, Hindus and Sikhs
used to call themselves as Rajput Muslims, Rajput Sikhs,
Muslim Jats and Hindu Jats. Because of the Punjab
legislation preventing alienation of agricultural land many
Muslims described themselves as agricultural tribes. At
least in the South of India till recently there were
churches where places were separately reserved for Schduled
Caste Christians. To this day one sees matrimonial
advertisements which want a Vellala Christian bride or Nadar
Christian bride. All this is merely to indicate the
difficulty of persons getting out of the caste customs and
the mentality genertad thereby. The monstrous curse of
untouchability 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 commanities should forget about it. Fortunately
things are changing in cities and bigger towns it can be
said to have almost disappeared. One rarely knows whether
the other person he meets is or is not a member
930
of the Scheduled Castes and no one bothers about it these
days. The oppression which we read of sometimes in
newspapers of the Scheduled Castes by the higher castes in
villages are really manifestation of the conflict between
agricultural labour or the agricultural serfs, as the
members of the Scheduled Castes mostly are, on the one side
and the land-holding class on the other. It is wrong to
describe them as oppression of the Scheduled Castes by the
higher castes. If in these circumstances some members of
the Scheduled Castes in their protest against the system of
untouchability resort to desperate measures to erase the
indignity of untouchability one cannot blame them. But
whether it produces any result is a different question,
however well-meaning such efforts may be. There may be
other members of the community equally educated and equally
conscious of the indignity of their being branded as
untouchables who might still feel that the way to remove
untouchability is not by changing one’s religion. We have
evidence in this case that people who claim themselves to
have become Buddhists have taken advantage of scholarships
and other facilities granted by Government to members of
Scheduled Castes. Whether such concession to members of
Scheduled Castes should also be extended to members of those
castes who have changed their religion is a different
question. Whether the Scheduled Castes Order should also
describe; such persons as members of the Scheduled Castes is
very relevant to the present question. We are of opinion
that the Scheduled Castes Order proceeds on a sound basis.
The attempt of persons who have changed their religion from
Hinduism to Buddhism, who still claim the concessions and
facilities intended for Hindus only shows that otherwise
these persons might get a vested interest in continuing to
be members of the Scheduled Castes. In course of time
vested interests are created in continuing to be members of
Schduled Castes as in continuing to be members of Backward
Classes. It is from the point of view of discouraging that
tendency that the provision of the Scheduled Castes Order
seems to be a proper one.
We have said all this merely to show that this is not a case
of black and white but a grew area where customs and habits
of centuries along with some new ideas co-exist and it is
difficult to say from a man’s attitude in respect of certain
questions whether he is a Hindu or a Buddhist. Religion is
essentially a highly personal matter and there the open
assertion by a person especially an educated member of the
society about the religion he professes should be given
considerable weight over the interested testimony of others
based on stray instances. We would, therefore, in agreement
with the High Court hold that the respondents-2, 6 and 9 are
not Buddhists but continue to be members of the Scheduled
Castes.
As regards the question of withdrawal by Ranjit Meshram the
evidence of R.W. 2, the Returning Officer, shows that he
knew Ranjit Meshram and that Ranjit gave the withdrawal
letter, Ext. 70. As regards Ext. 69, of course, he is not
quite sure. But his evidence that be knew Ranjit Meshram
and that Ranjit Meshram himself gave the withdrawal letter
Ext. 70 stands unrebutted. He is not able to remember
clearly the circumstances under which he made the endorse-
931
ment in Ext. 69 that it was given by Ranjit Meshram. It
does not affect his evidence regarding Ext. 70. No mala
fides have, been imputed to him and we see no reason why we
should not accept his evidence. In view of this and our
finding that it has not, been established that respendents
2, 6 and 9 are not professing Hinduism it is unnecessary to
discuss the prayer regarding declaring the appellant
elected.
In the result the appeal is dismissed with the costs of the
2nd respondent to be paid by the appellant.
Appeal dismissed
V. P. S.
932