PETITIONER:
KAILASH SONKAR
Vs.
RESPONDENT:
SMT. MAYA DEVI
DATE OF JUDGMENT16/12/1983
BENCH:
FAZALALI, SYED MURTAZA
BENCH:
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.
254, 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]
JUDGMENT:
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 for ever. 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 any one 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:
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“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.
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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-
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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
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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 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 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 the 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
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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
some time 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 thousands 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.
H.S.K. Appeal dismissed
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