KAILASH SONKAR v. SMT. MAYA DEVI

The Judgmenf of the Court was delivered by c

.. "1. FAZAL ALI, J: By our Order dated October 20,.1983', .we had· d.ismissed the ·appeal. ·we· now proceed to give o11r reasons for the ·same. • •. The victory of our long <lrawn struggle l'or freedom from the . . British yJke came to us after one and a half century of perpetual and constant efforts soaked in· cold blood and dipped in S)lprem'e sacrifice. The ·historical midnight of.August 15, 1947, which ushered i'n -a n')W era,' .\vas merely a. _c.ompleti9n of a phas·c and no:t the. end 'of · E an epJoh but only, the beg.ino.ing .of. the end.

- i \- Scion thereafter the wise wizards and lhe f01.mding. fathers of our C0nstitution: set out to '.·devote their wholehearted atte;1tion' to d)vis~. \Vay; a·nd ~~ans to _give to· Ollf stib~coritlncht a.·so}id . ·and cJm:=ir.eh:!n~ivc Con?litution .Which ·.:t:nay· .solvC Jnu_ltifarious and F ·'

m1nifold dilfbulties, fulfil the burning needs of the nation and· sort 'out c:Fnplex atld cJinplicatcd probleins \vhich.arose after our hardw won freedom which must have oaffied our leaders. There was the qu,,tion ·of achieying a sec.uiar democracy, the largest ii1 the world; b.tse.i on a socia\ist•paltern which·Wou!d take care of all sorts a·nd --kinds of. p~oplc having ~1iffer~nt cult~1his,· languages and ·rcli.gions; G to c':>:1T:!r and guarantee flln<la1nent'al rights of cit_izens tliro.ugh man- d1tory prcwisions, to lay down directive principles ot"State. Policy · , which w.::te to b.:: the guiding Spirit of th~ ·Cl1nstitution, the ·question ~f achieving.ag.rarian refonns ·by. _displ~cing t~~ old British bureaucrafiC ·sy.,tem and su\3stitut!·itg a new order, the i~sue · 0f retoncilii1£. the · :H irreConcifiablC and .variOus o~h~r thorny .and tricky lnatters. One

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!80 SUPREME COURT REPORTS [1984] 2_s.c.R. • . A of the important objectives to be translated into action was to take special care· of the backward classes, members of the .schcdulrd casks and tribes by bringing them. to the fore through pragfnatic reforms

•. and providing adequate opportunities for thei.r amelioration and development, education, employment and the like .

B 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, fadlities ard I

.representation in the serviCes and, last but net the least,. in the· electo.-·

- rate so that their voices and vie,,;s, grievances·and needs. in the Parlia- c ment and State legislatures in .the country may be ··heard, felt and· fulfilled.

In this election appeal which ha; bee~ filed against the Judgment dated October 2·5, 19 81 of the High Co~rt of Madhya Pradesh, we are really concerned with the last aspect mentioned al:iove. Despite D odds and ends our Constiution has made exhaustive provisions for achieving these ends and how far. they have been implemented is 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 n~tions, is noi a very long pericd. The knotty and' difficult, puzzling and intricate issue with which we are faced is, to .·'( E put it shortlv, 'what happens if a member of.a scheduled caste or ·tribe leaves his ·persent"fold (Hinduism) aqd rm braces Christianity or Ts lam . or any other religion'-does this amot\_nt to a compkte "loss of the -j original caste to which he belonged for ever and, if so, if he ·or his ' · . ,. children choose to abjure the new religion and get reconverted to the old .religion after performing the necessary rites• and ceremonies, F could .th.e original caste revive ? The serious question posed here -r- arose ai\d has formed the subject-matter of a large catena of decisions starting from the year 1861, trav~rsing a period of about a century , and· a half,_and·culminating in a decision of this Co11rt in the case of . G.X( Arumugam v. S. Rajagopal -& _Ors: <ll . • .

G "fhe Constitution has tried .to solve the problem to. a great ·extent by the Constitution (Scheduled Castes) Ofder J950 (hereinafter referred to as the '1950 Or,!er'} issued under Art. 341, which. fays -.<lowil a list of various castes prevailing in the ccuntry and the noims to determine the same. This Order has been amended from .time to H (1)[1976] 3 SCR 82. • •

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181 K:AILASH SONK:Ail. v. MAYA DEVI (Fazal ; . .Ali, J.) time.. In our opinion, despite a genuine att€mpt to solve the problem A the provisions do not provide a complete answer to the judicial .inter- pretation by this Court which lays dowll. the Jaw of the land .. It is true that the controversy· has been narrowed d0wn to the minimum .. by the decision in Arumugan's case (supra) still there are some vital questions which remain unanswered. B Before dealing with the cases on the subject and starting the chapter of the issues involved in t\lis 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 ci.vilized races .in this country, viz.~ Dravidian followed by Aryan civilization which through Hindu- ism divided by castes.into three clearcut sub-divisions which started by virtue of the occupational pµrsuits followed by the various classes. The priests- and the. scholars were known as the Bhrahmanas and c

looked after religious ceremonies, 'education, etc. This Class was supposed to be the highest .C1'1<is or atleast ·respected and regarded. as such. Then ·came the Kshatriyas who ~ere the people .engaged in fighting wars and ruling and administering the States. 'Thirdy, .. there were the Vaisa yas who carried on the occupation of tra~e and commerce. The Sudras were added as the fourth Class after fusion of the pre-Dravidian with. the Dravidian and Aryan. civilizations 0

which·formed the basic fabric of Hinduism and the Hindu societ) .. This Class wa_s 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. olitsiders- consisting of Scythians, Yavanas, Kirathas, Kambhojas and Persians ..., · and others who. came to. India· in ancient times and got mixed. up with F . 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 Hindusim, whkh is not only a religion but also a way or _poetry of life. a philosophy, an exhaustive and ethical code of i;v;ng which adapts itself to all forms and cultures. In view of this complex intermingling of various , kinds of people, as time wel)t by, G castes started multiplying, and in this· process the avocations and • occupations foflowed 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. lo· individualism and s~para­ ,.

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182 · SUPREME COUR.T RrPORTS [1984] 2 s.c.R.

tism .as a result of which it was duly recognised by all schools of Hindu thoughr. that birth alone would determine the caste and this . principle w~uld have to continue wiles"s the co.ricept of caste is banished for ever. ·In other \VOrds, it is. l10w well settled-whether one accepts · . ' it or not-that caste is the result of birt.h and not of choice or volition . . .Without traversing. on any controversial i.ssue aild: coming back to .. B ·the origin or'the caste system, we would like to ·refer to .\he, most · authoritative pronouncements ordained. bY Lord· Krishna in Shree · Bhagvadgita which would. demonstrate that tlie divis.ion of castes was· riiade •purely on the basis of inherent qualities and a~ocations' . . )

· -of a· person· and hence the· question of' superiority b.etween one or

- . tl;e other. lay not »on ·t~e na(ure of the caste but on their act.ions and c deeds .. This would be illustrated by a. refere.nce to· the actual text of Sh:ri .Bhagvadgita as compiled . by F. Max MuUer in. his book entitled 'Sacred Books of the East (Vol' vmr and. we would like to extract . some passages and. injunctions of .Lord Krishna illusfrating the vices and virtues of·men where castes also figure .. In .Shloka 13, Chapter 4 of Bh~gvadri Geeta, Loh:! Krishiia clearly proclaimed that -"Four D Varnas, viz., lirahmanas,.Kshtriyas, Vaisyas ·and Sudras were created by him on the basis of inllerent qualities and avo.cati~J\S of a particular · indivi<iual''. (Translated into English from the original . text in Hindi).'. . . .

· Further· said Lord . Krishna . . ' . . ·. . to· the son of Kunti thus-:

."Whatever yo ti do, O'Son' of KuHti .: Wh~tever . you cat, . whatever sacrifies you make, ·whatever you give, whatever.- penance you, do that. as offered. to me , .. l ani alike to all beings; to .me none is hateful, norie· di'ar, ·But those· who w.orship .me. with devotion· (dwell) in me, and I too in them .. F. E,ven if a very ill-conducted man worships me, ·not wor- . shipping any one else; he must certainly be deemed to be good, for he has well resolved ....... (You· may) affirm, 0 son of Kunti : that my ·devotee is never ruined. For, O son of · .. Pritha .:. even- those lVho are·of sinful.birth, ll'Onien,· VaisyqS.: and Sudras· likeivise, resortiltg to 111e, attain the supreme goal. -.. G What then (need be said of) holy Brahmanas and royaf saints wh.o. are (my) devotees?".

These passages clearly go to confirm the true pl1iiosoph'y of Mahatma Gandhi that the .Sudras or the meri1ben; of the scheduled H· , castes are Harijans and ·h<l~condemrted untouchability ai;id the habit ..... 'of looking ·down· uf,on the scru;duled caste people merely because .

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KAILASH SONKAR v. MAY!; DEVI (Faza/,j/i, i.) 183 . . tliey belonged to .the Sudra. caste. Further, Lord Kri,l111a goes on to A. J. ordain as follows : ·

· "The 'duties of Brahmanas, Kshatriyas .and Vaisyas, and of. Sudras, too, 0 terror of your foes ! are-distinguished accord- ing to the qualities b()rn of nature. Tranquility, iestraiHl · of'the sens.es., penance, purity, forgiveness, s!lrai.ght forward'- B ness, .. also· knowledge,. experience, and belief (in a future world), this is the natural duty of Brahmarias. Valom, glory,· courage, dexterity,. not a slinking away from battle gifts,· exercise of lord!~ power, this is the naturnl · dufy of

- - ~· Kshatriyas .. Agriculture, , tending caitlc, trade, (this) is the natural. duty of· Vaisyas. And the natural' duty ·of Sudras, · ·too, coi1sists in service. (Ever¥) man intent on hi,s own respective duties obtain's perfection._ ... Worshipping; by (the performance of) his owri duty, him from whoin all '~' .things proceed, and by who in all this is p~rmeated, a man obtains perfection." , · D In another chapter, Vidura fs quoted as saying ·thµs :

"I arn born of a. Sudra womb; and do not like to say·more · than what (! have said').· But _the intelligence of that youth,., I believe to be eternal. He who has come of a Brahmana womb, even though he may proclaim a great mystery; does .i10t thereby become Ha-ble to the.censure of the gods, There- E fore do I say this to _you."

.... . In view· of the revealed injuncti_ons in the Shree Bhagavadgiia Mahatma Gandhi'& drea~ that .all distinctions of castes and creed must disappear and ~an mnsf be known· by his action, to whatever , . .caste he may belong, has been realised to som,e extent and, ,necessary F provisions io this effect have been made in the Constitution in order (O safeguard the interests of the backward classes. and members of the scheduled. castes and scheduled. tribes and perhaps, let us· hope, a day comes. when the distinction. between caste and cree.d disappean; completely, ·

One of ihe most puzzling qu_estion that arises in this case is : .. G

'Is membership in a ,caste or t~ib~ to , be determined solely by birth or by allegience or by the opinion of its members cir of the neighbourhood? Does one lose his caste H on converSioft ·or by· ex-Communicati'on ? ' .• . .

• !84 SUPREME COURT REPORTS [1984] 2 S.C.R. •.

A · :rhe decisions to which we ·would .refei· hereaf.ter have thrown flood of Jight. on these questio;1s and the. generally accepted view seems to be the one \vhich h&s been lai.d down in Charlotte'Abrahmit aiul Daniel Vincent Abraham v. Franci.1· Abraham"·' where the ·Privy Council observed thus :.

B "li is plain that no rule as to. such use and enjoyment, which .. the ance~tors 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

c undoubtedly may, 11 fortiori a Christian may do the same .. , . If the spirit of an adopted religion improves those who become conyerts. to ii, 'lnd they reject, from ·conscience; customs to whicl\ their first converted ancestors adhered, must the abandoned usages be treated by a sort of fictio juris as still - the enduring ciistoms of the family."

So far as this. Court is concerned., these questions were .clearly. D an.swered in Chaturbhuj Vitha/das Jasani v.. Mores!n!'ar Parashram & Ors'.,cii (herei_nafter referred to as 'Jasaniis, case'~here· a triple test was laid down thus :

"Looked a.t from the secular· point of view, there ar~ tl;ree factors which have to be considerd : E • (I) the reactions of tile old body, (2) the intentions

- of the indiv.idllal himself aod. ·(3) the rules of the ~·· • new order. If the old order is taler.ant of the new - ( . faith and sees no reason to. outcaste or ex-coi:nmuni' cate the convert and the individual' himself desires and· F · intends to retain his old social and political ties, the con- . version is only .•110;l;nal for all practical purposes and when r ·we have to conside1 the legal and political rights of th~ 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· G and final that he no longer regards himself as a member • . of the old body and rl•erc .is reconversion and readmittance to the old .fold, it would be wrong to hold that he can nevertheless claim 'temporal priv;Jeges and political advanta-

H i (I) 9 M. I. A. 199. • (2) [1954] S.C.R. 817 • •

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KAILASH SONKAR v. MAYA. DEVI (Fazal Ali, J.) 185 • I• .

ges which are special to the old order ... : ... Tlie only modi- A fication here is that itis not only h;s choice which must .tc taken into account. but also the views of the body whose religious tel)ets he has renounced, because here the right we are consitjedng is the rigl;t of the old body, the right con- ferred on it as a special privilege to send a member of its own fold to Parlhment.'' B The obse.rvations cited above give the general test that· can be applied in judging the question as to when a f!>ndu on conversion loses his c.aste. 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 ' C 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 an\! mocijfications .to suit the facts of a particular case in· judging the. question whether on con-• ·n version the caste is completely lost.

The next case which throws. some Jighi on ·the question is S. Rajagopal v. C.M. Armugam Ors.'" In this case· what ha.ct happened was that. the appellant (before othe Supreme Coui,t) had filed his nomination papers for a constituency reserved for members, of the E scheduled· caste. mentioned under the 1950 Order but he was defeated by respondent No. I of that case, whose petition. succeeded. The contention in the petition was tha·t 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 F ·+ later: reconversion to Hi11duisn1 ren;ained u.nprovcd. This Courts agreeing with the High Court dismissed the appeal. One important feature of this case may be noied which would at once di•tinguish this ca~e from the facts of the present case. The question as to . · whether a Chdstian on being reconverted to Hinduism· would get back his caste did not arise at· all in that case because on the facts G found, reconversion was not proved. Therefore, the question of caste being acquired or being· revived on reconversion to Hindusim did not fall for det~rmination and was left open. Even so, consi- dering .Jasani's case and a number of other texts, Bhargava, J. made H .. (I) [19691 I S.C.R. 254 .

• 186 SUPREM.E COURt REPORTS [1984] 2 s:c.R.

A ·the following observations :

"Consider1ng the· question of entry into the caste, .. Krishnaswami Ayyai1gar, J., held .. that, in matters affecting the. well-be.ing or composition of a caste, tl1e caste itself is the supreme judgec It was on this principle 'that a reconvert B to Hiridusim could become a member of the caste, if the. caste itself .as th~ supreme judge accepted him as a full mem~ . ber of it." · '

- While holding that if a person is reeonve1·ted to Hinduism and th~· commu'nity of the caste to· which he originally belonged accepts him, his caste would revive; nevertheless the question was left open.

. and does ·@t . . Rajagopal's case (supra) merely reiterates what was held in Jasani':I case go ..any further.

D . · · . In.. our opinion: there is one ·~spect which does not. appear to. have .been deal.I with. 'by any of the cases. discussed. b)' ·us. Suppose, A, a lliember of the scheduled caste, is converted to Christianity .. .

·and marries a Christian girl and· a dat1ghter is born.to .him who, according to the tenets of Christian religion, is b_apiised ·and educated. After she has attained the age of discretio1; ·she decides of'h!'r own volition to re-embrace. \Jindusim, should in such a case re·v.ival of the caste d~pend on the views of the 1neniber.s o\ the. com': E munity of the caste concerned or would it ·automatically revive on · her reconversion if the same is genuine and followed by the necessarri' rites and ceremonies ? In ·other words, is· it ·not open for B (the . . dirnih.ter) 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 F d<;cides to revert to -her old religion. It was not her fault that she was horn of Christian parents and baptised.at ·a time when she was still a minor and· knew nothing ab.out the religion, Therefore, should the r~vival 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 fat .ever merely because fo~tunately or unfortunately 'she ·was·· born .. . G in ·a Christian family ? With due respect, our confirmed opinion . . . . is that although the.views of the members of the coni.mnnity w~uld• . be an important fac!Or, ·their views .should not be allowed to a com-· plete loss of the caste to which. B belo11gel Indeed, if too much stress is ulid on the views of the members 'of the community the same' ma): H foad to dangerous ex plo;tation ... Perhaps, this factor was ·present .. in the . inind of Bhagwati, J., who delivered the leading judgment •

KAILASH soNK:AR v. MAYA DEVI. (Fazal .Ali, J,) 187

in a later. decision of this Cci~rt ii> G.M. Arumugam v. S. Rajagopa' & A Ors.<''. where, speaking for the Court, he made th~ following · observations :

;,it is sufficient to :state, that originally .there 1'cre only four inain castes; but gradually. castes and sub-castes niulti~ . plied as 1he social fabric expanded with ihe absorption of B different groups of people belonoing' lo various cults and • professing different religious· faitl~s. The ·caste system in ,its early. stages was quite efasti~ but in course of time it.gra- dua.Jly hardened into a rigid .framework based upon heredity

- • ...... But that' immediate'iv reises the question;. what is . a caste. When we speak of a caste, we do not n1ean to refer. in this context to the four primary castes, but to· the multi; :.plicity of castes and sub-castes which disfigure the Indi'an s.ocial scene ...... A caste is nwie a social combination than.· c

a ~eligious group.

But from that it does not necessarily follow as 'an inva- D ·. · riable rule that whenever a pe1'scin renounces: Hindusini 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. struc- · • ture of the caste is 'such that its member must necessarily belong to. Hindu religion, out .of the caste, because no 11011- E . Windu. can be inth.e caste according to its rules and regula- • lions. Where, on the. other hand, ha~ing regard to its structme, as it has evolved over the years. a caste '. may C?nsist not only of perions professing Hindu religion ·but. · ·" also persons ,professing some other religion as ,,;elt conver-. sion from Hinduism to 'that othe.r religion may not involve · F loss .of caste, because even persons ,professing such other religion can be members of the caste ....... This i~ ifildeed ·

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• . not an infrequent phc:aomenon 'in s,;uth India where; oin· · some of ·the castes, even after conversion tQ Christianity, a 'person is re garde~ as con(inuin~ to belong to . the ·caste. G . ,

· There are castes, particularly in South India, where ,this consequence·. ·does not folIO\v On- conversion,· since ·stith castes comprise both Hindus and Christians._ H (I) [1976] 3 S.C.R. 82. ( ~ .

)SS SUPREME COURT REPOR'rS (1984] 2<s.i:;.R.

A . . 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 faci• on. conversion to Christianity the respondent would nor cease to pelong to the Adi Dravida caste, yet he refrained from ex- B pressing· any final opinion on the point.

In a recent decision of this Court S. Ambalagan v. B. Devarajan & • Ors.<U (which was also an election case), a three-Judge Bench reitera- ted the. principles enunciated by Arumugan's case (supra) and observed thus:. · "Unless the p~actice of the caste. makes it necessary· no expiatory rites need be performed and, ordinarily,. he • ... regains his caste unless the community does not accept hinl .... . . . . The practice of caste however .irrational it may appear to our reason and however repugnant it may appear to ciur r moral and social sense, is so deep-rooted in the Indian· people that its niark does not seem to disapper .on conversion to a · different. religion: If it disappears, it disappears only to reapfiear on reconversion . ._..... .

• In fact, this pi·ocess goes on continuously in India and · generation by generatiqn lost sheep appear to· return to the castefold and are once · ngain assimilated in that fold. This appears to ·be. particularly so in the case of members of. the Schedulc!d Castes, who embrace other religions in their •

. quest for liberation, buheturn to their old religion on find- dini: th.at their disabilities have clung to them with g~eat tenacity, F . (Emphasis ours) t The facts of .this case appears to be on· all fours with the facts of the present ca•e. •

· · A .number of Higlf Courts' have also takeri a .view similar t-0 • G .the one taken. i11 A.rumugam's case ·of 1976· (supra) basing. mainly • their. decjsions on the leading case of Jasani. In the case :of Goona · Durgapr"s/Jda Rqo & Anr. v. Goo1ia Sudarsanaswaini & Ors./" a Division Bench of the Madras High Court observed thus :.

H (1) (1984] 1 S..C.R. (2). ItR 1940 Madras 653.

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KAJLASll SONKAR l'. MAYA DEVI (foza/ Ali, J,) 189

) . "It is hardly right. for the Court to erect a barrier which A the ·auionomy of th> caste does n,ot see fit to do, simply because in some other caste or some other community· It might be considered proper that ari expiatory ceremony should be performed. That· a Hindu h,aving reno.unced Hinduism once can revert to it scarecely.admits of doubt. B ' A Similar view was expressed in G. Michael ·v. S. Venkat'e-· . _, swaran"'. 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 mem.ber of any c:aste. He becomes jus~ a Mussalman find _his place iri Muslim society is .not determined by. the caste to which he belonged before his . conversion. Learned counsel also ·conceded c · that generally this is so even· when th.ere has been a conversion · · to Christianity. But he said that there were se.veral cases in which a member of one of ihe lower casl~s who has been converted to Christianity has continued not only to D consider himself as still being a member of the caste, but has also been considered so by other men1bers of the caste who had· not been converted ...... But these are all cases of exception an~ the general rule is conversion operates as a11 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. Jn the case of Dippala Suri D9ra v. V. V. (!iri'" a Division Bench of the Andhra Pradesh High Court made the following observations : F "Even if they come within the fold of Hiliduism, question would arise whether they have formed separate· sect among themselves, or they would bdong to the 4th ·class, or to 'the twice-born class .. , ... Jn ·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 · G old body and that . of the new body. Viewed in t)le light .-\ of these observations, the evidence discussed abovt, in our . • opinion, falls short . . of the test .. .

(I) AIR J95i Madras 474. H (2) AIR 1958 A.P. 724.

... i90 ·"' .. [1984]2 S.~.R.

A This casC'Jnercly lays down the. tri.plc test enunciated in Jasa;1i's case.· To the same· effect are· the decisions ·in the cases· of Wilson . Re~de ~: C.S. Booth & Oi·s., 11 ) and B. Shvainsunder v. Slwnkar 'Deo .· Vedal~nkar: & Ors. tz) • .. •.

Qa ·a careful consideration of the au;horities referr;d to above . B . a~d the principles enuncialed by them, ·the position that emerges. ·... fnay be stat>d t[urn· : · .'

. It fa. true tl)at a caste to which a:Hindu. beloµgs is essentially . determin~d by birth and if [1 .Hindu is coverted to Christianity or . . any. other religion which does 110t recognise caste,. the conversion amounts 'to a loss of.the said •caste, ·, . Tl1~ question that arises for consideration is whc.ther the loss - of ihe caste is absolute, irrevocable so as 119t torevive under any . ci~cumstafices? Tn _considering this· qucstiOn the courts. h·ave gGne into the history. of.the caste system and have· formulated the following guid.ing principles to .determine· this question.:~· · ' .

(it) Where a person. belonging to a scheduledcastc is con- verted to Christianity or Islam, the same involves. IOss of the caste . . unless the religi~1i to which· tie is converted. is ll'beral enough to permit the·convertee .to.·retain his caste or the family laws by whic]l he was originally goveri\ed. There· are . a number-of cases where members belonging· to a paftiuclar caste havi~g been c<inverted to Christianity

F . or· even to Islam retain their· caste or fan;ily laws and despite the .. ·new 9ider they ·were permitted· to be goVc.rned by their ·o.Jd Jaws. · B~t t1)is .can happen only if the new religion is liberal and tolerant enough to -pBrrriit su~h a. course of action. Where the .ne"; religion, ·however does riofat alLaccept or believe in the caste . system. t];e less. - of the· caste: Would be fioal and complete. Jn ,; .large. area of South . and s0 me of the }forth-Eastern States it is ,;ot urtusualto fir.d pers.ons converted. to Ctiristianity ;et"~inini their ·original caste \v-itho~t viola~· 1

Ung· the tel).6ts of the ·new. Order which is donC. as a 1naitc~ of commo1_1 practi~e existing fro1n .times in11nemorial. .fn. slich a c3.tegory of G case·s~ ·it is ob.vj_ous that e;en_ if a person a~JureS hiS ·o)d rCligio~ anl · is. co·n.vcrted_ to a ·ne\v one,. there is no loss- 0f 1::aste. Moreover.. it --is ·a com:110n feature of n1a11)r· c;onverts .to" a ne\v religion to belie\ c 1 ..>- or have faith in the Saints belonging to other religions. For instance, a number of Hindus have faitl1 in the Muslim . .. Saints, Dargah5,. 1niatn- ·. H . . ·(J) AIIU958 Assam 12.8 (2) A!R.1960 .Mysore 27.

MAYA ~EV! 191 KAILASH SONKAR ~ v. .(Fazal Ali; .J.) .

badas which becomes ·a part of iheir. lives and some Hindus even adopt muslim names after the ..Saints but this does not mean~ that thay have discarded the old Order and gotthemselves converted to ~m .

(b) In all other cases, conversion to C]1ristia'nity .or· Islam : or any other ·religion which does not .accept the caste system· a.nd insists on relinquishing ihe caste, there. is a 'loss of caste on convefL. sion. ·

. The other. i1;portarit ·question which is to be answered and which is really the controversy in tlie present case is :if after a person

- . is converted to a new religion - in the irislant ease, Christianity - does hi; ~aste revive if he is reconverted to his old reiigion anci: if so, · ·under what circumstances? . As indfoated above, starting from .the Privy. Cotincil io ·the present-day, authorities of the High Courts. c

and this Court have laid down certain norms and conditions under which a caste could revive. These conditions are as follows :- D (1) ·where. the convcrtee ·exhibits by his actions and behaviour . ..his· clear intention of abjuring the new · religion on· his . .own volition· without any· persuasion _and-. is ·not_ motjVated b)' any benefit or gain, ·

' (2) • whe.re tiic co~muniiy of the old order to which the con- . vertee 0 riginally belongeil is ·gracious ·enough to .admit him to the miginal caste. either expresS"ly or' bf necessary intendment, and ·

· (3) Rules of the ne\v. Order in permitting the convertee to join the new caste. F

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,,ip and. the circumstances prevailing ...... in our modern ·society; it will be difficult to insist' on the second con- dition, vi.z., the insistence on .the members of the co.mmunity of the G caste to admit the co.nvertee on reconversion to the original faith · ·because such a course of actio~ may lead to da~gerous consequences and fll-conceived exploitatfon. The curse and cancer of untaucha- bility despite thirty years of social reforms still persist and no· quarter · should be given to.further persecution"of the. members -0f the sched).lled · H castes who, as. w~ ofteµ find, are subjected to all kinds of indignities,

I

192 slJPREM.E COURT REPORTS • [1984] 2 s.c.il.

A insuhs and arj lookeJ do\vn ~1pon as ~lavc;s or vassals, mcai;t n1er~ly to serve the members :of the higher caste. Jn' the case of Ganpa t v. Returniiig Officer & Oi·s. '1) this Court speaking through Alagiriswami, J. highlighted this particular aspect in the following words.;

'.'The monstro.us curse of untouchability has. got· to B ·be eradicated. It has got to. be eradicated .not merely by making constitutional. provisions or laws but also by .eradica- ting it from the minds and hearts of men. For that it is even more in1portant that 111e1nbers of comffiuni~ies who ·.are untouchable• shoµld assert their self-respect an.d fight for

- . their dignity than that. members of the other communities c should forget about it.

1n our ·opinion, the tTiain test shoul.d be a· genuine intention of the reconvert to ·abjure his new re1igion and completely dissociate himself from it. We must hasten to' add here that this does ·not mean that the reconversion should be 011\y a ruse or a pretext or ~ oover to D gain 'mundane worldly benefits' so that the reconversion ·becomes merely a show for achieving a particular vurpose whereas the real intention may be shrouded in mystery,. The reconvert must exhibit a clear and· genuine inteillion to go back to his old fold med adopt the cust~ms and practice; o( the said fold without any 'protest from . members· of his erstwhil~ caste. Jn order to judge this factor, it is E. not necessary ·that there should be a direct or conclusive proof of 'the expression, of the. vie"\VS of the con1munlty' "Of thC erst\vhilc Caste and it would be sufficient compliance of this condition it no exception : ·' or protest is lodged by the community members, in \Vhi.ch case the caste \Vould r~vive on the reconversion .of the· person lo his. old. religion. · F 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 un~~r­ standi;1g 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 cere1nci.nies \Vithout the· child knowing ·that is being done but after tlie 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 '~otild determine H (1),(1975] 2 S.<:;.R. 923.

KAILASH SONKAR V; MAYA DEVI (Fazal Ali, J.) 193

the revival of the caste .. If by his. clear· and conclusive conduct the· A petson reconverts to. his old faith and abjures the new rc\igio;, in nnequiyocal terms, his caste automatically rev.ives. . .

Another dominant factor to determine the revival of the caste of a convertfrom Christianity to his old rcligion·woul<l·be !bat in.· cases of election to the State Assemblies or the Parliament where· B qndef the. Presidential .Order ·a. particulat Constituency· is reserved. for a member of the scheduled caste m tribe a;1d th~ electorate gives a majority verdict in his favour, then this would be doubtless proof positive of the fact !hat his coi:nmunity has accepted him back to his o1d fold and t]lis would result in a revival of the original caste to which the said candidate belonged. c .In our opinipn, when a person is converted to Christianity or some other religion the original caste· remains under eclipse and as s:xlll as duriiig h1s/her lifi<-(ime the person is reconverted to the original religion the eclipse disappears and the caste auioinatically revives. · . Whether or llot the. revial of the caste depends on the will and discre- .D tion of the .members of the community of the· caste is a ·question on which· we refrain from givillg any opinion because in the fostallt case there is overwhelminz evidence to show that the respondent: was accopted by the ·community of.her orlgii:i:n· kati"a caste. Even ·so, if the fact of the acceptance by the membe"rs pf the community is made a condition precedent to the revivai of the caste, it· would lead · E to_ grave c<?nseQUence_s ;_and unnecessary . expJOiiation, Sometimes motivated by political• con;idcrations. Of course, if apart frcm \-• the oral views .of the community .there .is any ~ccogniscd documentary • proof of a custom or code of cm>dnct or rule of law· binding .on . a particular caste, it may be ·necessary to insist on .the consent of the memb~rs of the conlmunity, othet:\vise .in norm.af i£ircurnstances the caste would iovive by applying the principles of ,d.octrine of eclipse. We might pause here to add a rider to what \Ve have said", ·i.e.; where it appears tliat the person reconverted to the old religion had been c0t1verted 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. G ·Coming now to the facts and evidence of the present case the position.may be briefly stated-as.follows :

Th' appellant,· an M.A., LL.R from Ja.balpur University had contested election. from .the Madhya Pradesh Vidhan Sabha (here- ·

•

.·

194 .. SUPREME COURT REPORTS. .. [1984] 2 s.c.R.

A inafter referred to as. 'Yidhan Sabha) from Legislative · Assembly constitu1mcv No. 195.in the general election of 1977 as a Janata Party ·candidate which was reserved for S.cheduled "caste under Art. 332 of the .Constitution being item No. :l'O of Part IX-Madhya Pradesh of the 1950 Order: He was declared elected defeating his nearest rival. can!lidate, ·orie Rarnprasad Choudhary, a Congress candidate. B The Vidhan S~bha was, however, dissolved in February 1980 after which general elections for all the. constituencies were to be held afre.fu, as.notified in the Gazette, in the month of May 1980. The last date. for filing nomiuation 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.&0: In thi.s election, ·the appellant submitted ·his nomination papers as. an Independent candidate from constituency No. 195 (Jabalpur East) and was opposed by Smt. Maya Devi Shahvar j (hereinafter referred to as 'Maya Devi') who filed her nomination p~pers as a Congress (I) cadnidate. She described herself as belong- \ ing to the scheduled caste 'Katia' which is meniiol1ed.1t. seri~l No. 29 .Of Part IX-Madhya Pradesh of the 19SO Order. Jn view ofthe short D and narrow compass of this appeal we are not concerned with other candidates ..

Jt may be mentioned that. originally the C!\Ste 'Katia' was·. not included in the list ·.,r scllcduled castes \ill the year 1977 but by the Scheduled Castes and Scheduled Tl'ibes Order (Amendment) tj.ct, 1976 E (Act .No. 108 of 1976) the schedule was aniended and· replaced by a new Schedule in which· Kalfa ca;te was includded as a. schedukd

.. eagle.and· sh0wn at serial No. 29. ·

ft appC;rrs that at the ti~e of the scrutiny of the nomination papers of Maya Devi, several persons raised objection. that she, being 7 F a Cl1ristian by birth, could not be treated as a member of the .scheduled caste and therefor<!' her declaration as· a . ;cheduled caste candidate was. false 'which merited dismissaf of her nomina\ion papers. The Gase Of May~ Devi wns that she was a_n1e1nbe_r of the. scheduled Caste by birth and her husband·, Jai Prakash Shalwar, also be.longed to the. Katia caste. She denied that she was a Christian by birth .and averred G that her father"s name was not John Wesley as alleged by ,the appel- bnt. Her plea found favour with the Returning Officer who acceptrd her nomination papers. After the po!l, Maya Devi received ·majority of v·otes, having. secured 16,770 votes; and was declared·· elected, and the . appellant Jost the erection.. . • . H '-)

It· was furthecalleged by the appellant that Maya Devi. after

".

KAlLASH ·SONKAR V. MAYA DEVI (F"za/ Ali, 1.) J95

being· born a Christian. was baptised· according to Christian rites ·A and her mother's name was Elizabeth. The appellant als~ averred j that Maya Devi's marriage. with Jai Prakash Shalwar was not a re~ cognised form ef marriage and, therefore. not valid. A number of other pleas were also taken by the appellant in his petition but Mr. UR. Lalit, appearing on his behalf, confined his argumenfs to • two important. quest.i0ns1: · B (I) , whether Maya Devi havin.g. been born of Christian parents lost the. katia caste to \Vhich She or fier ancestors originally b~longed " and • .(2) that after being baptise<! she continued .. to be a Christian c and \vas shown as. such. in va·rious· documents.

'. ·In this view of the matter it was conten~ed thai even if. she .,,, • married Jai. Prakash Shalwar ·who belonged to Katia caste, her caste could 1iot revive because caste is· determined not by marriage but D by birth .

.In proof of his pleas, the appellant adduced both oral and dooumontary evidence. The allegations made by him were denied by th~ .resp~)nde11t who categoric8-lly- stated that she was nev_er a J Christian nl)r was shC· horn -a Christian. She ·aJSo averred that even .E her father or mother were not Christians. ·On the. other h.and:.-sl•e • al\vays reinained a 111e1nbe_r of.the Katia caste and \Vas accepted as ~u.ch by the meinbers of that com1n~nity because ·her _marring~ .wi_th . J\1i Prakash Shalwar \vas performed according to Hindu rites of Aryasamaj sect and was attended by a .number of inembers of her caste and due publicity \Vas given to the 1narriage. F Both th<> p:\rties have adduced evidence· in support of their • cases. One important fact which )llHY be noted here is that.the father of the r~spondent. - John \yeo.;Jey- who itccording "to Maya Devi was John W:sley Singh, in spite.of being cited' as· a witness did not enter ~ .the witn'" box to throw light on the origin of the religion qf the G respondent and a. huge Capital has been tnade of the non-appearance· of the· said \Vitncss. -;hi ch ac.cordii~·g·to the appellant is ,the strongest· ~ possible circumstance to· discredit the case of the respondent. . . It is true that the father of.the respondent was not examined as H. a witness . . but having regard to the naiure of the documents. produced .·

196 SUPREME COURT REPORTS [1984) 2 S.C.I\. '·

A by the par\j;s the m:ere fact that Johµ Wesley was not examined.as a witness is not sufficient to throw the case of '.the respondent abr.ard. \ .. It is also true that the respondent was ill-advised to· deny the 'entire· cnse .of the appellant by makihg 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 Chdstian parents. That B by itsel,f does not advanee the case of the appellant any further because. . if it is proved that she' was voluntarily recoriverted to l:linduism then according to th~ law referred to us and. applied to the facts of the .. present' case on reconversion her original. caste would automatiCaJly revive. ·We would.givS" a brief summary of ihe nature of the evidence. prod.uced b;,' the parties. dn this .limited question. · c To begin ~ith the appellant has relied· on the birth certificate (Ex. P-il) which.shows that a female child wa.s bom to John Wesley's . wife. on· 4.6.1947.' It is•also clearly mentioned ,thereir. that John Wesley was a Christian. This was followed by ~ baptism certificate ;Y which shows .that sh,c ·was baptised a~cording to the religious cere- • D .. monies of the Christians .. The appellant also .produced a Church mombership certificate to show. L'1at ·Maya· Isabella John Wesley (respondent) was baptised and admitted as a rne.mbcr of the City Mothodist Church in Southern Asia at Jabalpur, Madhya Pradesh. The school transfer certificate dated 6.G.1956 shows that Maya lrnbeJla John Wesley was a:Christian and. remained a student of Peeli Kothi J., E Qirls;Primary School, 1abalpur from 1.7.1952 to 30.4.1956, and her date of' birth iii this certificate has been shewn· as 4.6.J 947 which fully tallies with her 'birth cer:tificate. In view of the· overwhelming~ evidence: referred to ;bove; it is no'. necessary for :l's to consider ·the. t . oral and documentary evidence which cohclus1ve1y proves -(1) that the parents of the respondent were Christians.· and (2) that after her · birth' she got faptised and remained a Chr;stian, and therefore it a .cannot .be. de.nied that the respondent· was born .Christian andin -f 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 aJleging that slie. was ·never born of Christian parents or that her parents were not.Christians, ~ G a ·.fact. which is cornpletely falsified by the oral and. d<icuri]entary. evidence pro.duced by the appellant ..

Accepting, therefore, the evidence led by th.e appellant, the vital' 'question for determination in this. case remains as to .whether. H or not the respondent was' voluntarlly ·reconverted to Hinduism and thereupon her caste revived. There' 'is.~ clear and. unimpeachable · ...

KAiLASH SONKAR v. MAH D~VI (Fatal. Ali, J.) IQ? 0 evidence to show that the respondent .had reconverted herself to A Hinduism voluntarily and with full publicity, making no secret of this fact. · A Jetter, appearing ai page 22· of the Paperbook ,shows that she accepted Hindu religion with all its .customs and rites volun- .tarily. . . The relevant part· of .the letter. reads . thus . : • "I am. prepared to own Hindu religion with all sincerity B ai1d 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 extcrnal.intetforence exi.sts."

- 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· c . that the marriage of Maya Devi with Jai Prakash was• performed · on 6.11.76 in Arya Samaj Gorakhpur according to vedic rites; Another . certificjlte issued, by the .Secretary: of the Arya Samaj, Gorakhpur is also to the sa,;ne effect. .The aforesaid documents are amply corro- D borated by the oral evide11ce led by the respondent.

The evidence of Darshanlal Dharmak deserv~s special mention . because this witness was a prominent member and President of the Katia· community for the last two-and-a haJC years. The witness goes on" t~ state that the marriage was celebrated in the presenc~ of E . 80 persons of his community, including elderly people and his pre- \ - sence at Jhe marriage clearly indicates that the c.of!1munily had fuliy ... · accepted the respondent back to her caste. The marriage was followed by a reception 3-4 days later which was attei1ded by this witness also and at that .time nobodyraised any objection about Maya .as not ·""!- belonging to the Katia community. The witness further states that F he had. gone to the house of the. respondent and that members of the , community had come. fo celebrate the "birthday of her child.

It would appear from. the evidence of Bbaiyalal. Nag,• another witness j'Jrod!!ced by the respondent, tl\at there was "·Katia Samaj ~ Sanstha in Madhya Pr~desh which was registered under the ·societies ~ Registration Act 11nc\ the w_itness was the Vice' President of this orga- nisation ...He states that Jai Pra.kash 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 Organisaiiori '.\bout this marriage. H~ .further stated that. Maya Devi had been attendi~g number of H marriages· in his caste. He makes a very stark statement which is

198 SUPREME C~RT REPORTS · [1984 j 2 $.C.R. A fully supported by the Abhinandan Patra and his. statement may be · extracted thus :. ·

.• "We menti<,ned her in this Abhinandan · Patra as 0 bel_onging to Katia cas'te as we were proud as she was the first M.LA .. in our. caste. · · · B Ex. D-1.A is the· Abhinandan Patra given to Maya Devi some .,.. time in the year 1977-78-, i.e. 3 years before the elections. Furthermore, the.re is the evidence of Keshav Pfasad. Pathak which is rather impor- tant. 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 a·re married, if either of them . is not a Hir;du then he is first converted to Hinduism (Shudhikaran) . - by religio'us rites. performed in accordance with the Mya Samaj rites. He proves the applications. given by the respondent and her husba;1d 'f (Ex. P-8 and 9). He has further stated that the marriage ceremony' is usual:y performed before the members of the Execµtive C~mmittee ·o of the Arya Samaj: He further defines the term 'Shudhikaran to m2an '~Convert a non-Hindu to Hinduisn:i . He goes on to say that the marriage was celebrated .at the Arya Samaj according to vedic ceremony which included Sapla-padi and Haran, . '~ .. The appellant himself in his statement admitted that in Jabalpur E there are live-six thousands peopJe of katia caste, He further admitted that he .did not make any enquiries alioui .the parents Pf the placc-j of .residence 0 f Elizabeth, mother of the respondent. He further I ·admits at page 87 of the ·Pa:perbook ·that in 1978 he. was taken by Shri Dh.annak as Chief· Guest in the Conference of Katia Samaj. A suggestion was ·made to hirn .that he was· present when the Katia t° 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 Ka.tia community.

On a full and complete ·appraisal of .. the ~rat .and documentary "G evid~nce, the following conclusions are inevitable :

I) That the respondent• was b9;n of Christian parents and ' was educ•ted in various schools or institutions where. she was known. as a Christian, ·. • H 2) that 3-4' years before. the election, the . respondent was

.. KAILASH SONKAR v. MAYA DEVI (f'azal Ali, J.) !99

J.. reconverted to.Hinduisn1 and married Jai Prakash Shalwor, A a member of the katia caste,' and also performed tire Sh~d!1i- . karan ce~emo~y,

3) that she was not only accepted but also. welcomed by the important. members, including the Presidrnt and Vice- President, of the community, B • -!" ' . 4) tl-.,re is no evidence to show that there was any bar under .the Christian i·eligion which could have prevented her ~---......; · . from rec\111verting herself to Hinduism . ... 5) that there was no evidence ·t~ show that. even her parents c had been Christians from generation to generation. ·

In these circumstances,' therefore, thiS case fulfils the conditi0n~ required for being reconverted . to Hi11duism from Christianity . in order to revive the original caste. D 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 profc5S a religion different from the Hindu or the Sikh rpligion, and· · E ,._. (b) that the candidate is a member of scheduled caste as shown 'I in the schedules:

in the instant case, it is not disputed that the Katia caste · is mentioned as. a scheduled caste 1n part IX of the 1950 Order and shown at serial Numbet'.29. F Having .regard. to the circu1nstances diSci.lsscd above, it cannot be said that at the lime 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 G is affirmed and the appeal is dismissed but in the circumstances with,- out any order as to costs. •

H.S.K. Appeal dismisoed H

..