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SUPREME COURT OF INDIA
S. MURTAZA FAZAL ALI, R.B. MISRA AND M.P. THAKKAR, JJ.
Kailash Sonkar, Appellant
Versus
Smt. Maya Devi. Respondent.
Civil Appeal No. 3118 of 1981
Decided on 16-12-1983.
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. [Para 4
The puzzling issue is: '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, 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, could the original caste revive?
The Constitution has tried to solve the problem to a great extent by the Constitution (Scheduled Castes) Order, 1950 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 time.
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.
The controversy has been narrowed down to the minimum by the decision in Arumugam's case, still there are some vital questions which remain unanswered. [Paras 5 & 6
The main question in the present case is whether a Christian on being reconverted to Hinduism would get back his caste? [Para 17
This question can be explained by an example. Suppose A, a member of the scheduled caste, is converted to Christianity and marries Christian girl and a daughter is born to him who, according to the tends 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 recon version if the same is genuine and followed by the necessary rites and ceremonies? In other words, it is 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?
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. AIR 1984 SC 411 & (1970) 3 SCR 82 relied on. (1969) 1 SCR 254 & 1954 SCR 817 discussed. ILR (1940) Mad. 653, AIR 1952 Mad. 474, AIR 1958 Andhra Pra. 724, AIR 1958 Assam 128 & AIR 1960 Mys. 27 noticed. [Paras 17-20
(2) Constitution (Scheduled Castes) Order, 1950-cl. (3)-serial No.29 [as amended by Scheduled Castes and Scheduled Tribes Order (Amendment) Act, 1976]-recon version of a member of Katia caste to the original fold of Hinduism-revival of the initial caste-when takes place-theory of eclipse.
(3) Scheduled Caste and Scheduled Tribes Order (Amendment) Act, 1976-new schedule-serial No. 29-effect of recon version from Christianity to Hindu religion-under what conditions the original caste of Katia is revived-theory of eclipse
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 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. [Para 33
On appraisal of evidence the following facts emerge as proved:-
(1) That Maya Devi was born of Christian parents and was educated in various schools or institutions where she was known as a Christian;
(2) that 2-4 years before the election, the respondent was 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. [Para 49
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. [Para 51
Under these circumstances, it cannot be said at the time when Maya Devi filed her nomination papers, she was not a member of the Katia caste. [Para 53
JUDGMENT
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.
2. 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 epoch but only the beginning of the end.
3. 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 hard-won 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 take 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 reform 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 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.
4. As Mahatma Gandhi, father of the nation, and "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.
5. 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 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 snail 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, 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 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 C. M. Arumugam v. S. Rajagopal. (1976) 3 SCR 82.
6. 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 sam
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