1. Complaint regarding outraging modesty of a girl later found to belong to Scheduled Tribe — Charges under SC/ST Act. (Para 1 )
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2004 Supreme(SC) 108
Supreme Court Of India
V.N. KHARE, CJI., S.B. SINHA AND S.H. KAPADIA, JJ.
STATE OF KERALA AND ANOTHER - Appellants
Versus
CHANDRAMOHANAN -Respondent.
Criminal Appeal No. 240 of 1997,
Decided on January 28,2004
Advocates appeared
Ramesh Babu M.R., Advocate, for the Appellants;
Rajiv Shakdher, Ms Prasanthi Prasad, K.T.S. Lekha and Manoj Prasad, Advocates, for the Respondent;
Mathai Paikeday, Senior Advocate (Siby Sebastian and M.T. George, Advocates, with him) for the Intervenor.
Conversion to another religion does not automatically disqualify a person from being a member of a Scheduled Tribe; membership is a question of fact based on whether the person continues to adhere to tribal customs, traits, and customary laws.
Headnote:(A) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Section 3(1)(xi); Constitution of India - Articles 341 and 342 - Constitution (Scheduled Tribes) Order, 1950 - Determination of membership of a Scheduled Tribe post-conversion to another religion - Whether a person who has converted to another religion ceases to be a member of a Scheduled Tribe - Membership is essentially a question of fact - A person may remain a member of a tribe despite change in religion if they continue to follow tribal traits and customs, including customary laws of succession, inheritance, and marriage (Paras 5, 6, 16).
(B) Distinction between Scheduled Castes and Scheduled Tribes - Unlike provisions for Scheduled Castes, the Constitution (Scheduled Tribes) Order, 1950 does not specify that a person must profess a particular religion to be deemed a member of a Scheduled Tribe (Para 14).
Facts of the case:
A person was charged under Section 509 of the Indian Penal Code and Section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, for an offense against a girl child belonging to a notified tribe. The High Court quashed the charges under the special Act, holding that since the victim's parents had converted to another religion, the victim ceased to be a member of the Scheduled Tribe.
Findings of Court:
The determination of whether a person or family continued to be members of a Scheduled Tribe despite conversion to another religion is a question of fact that must be decided during the trial.
Issues: Whether conversion to another religion automatically results in the loss of status as a member of a Scheduled Tribe.
Ratio Decidendi: Conversion to another religion does not automatically result in the loss of membership of a Scheduled Tribe. If a person continues to follow the tribal traits, customs, and customary laws of succession, inheritance, and marriage, they may still be considered a member of the tribe. Since the Constitution (Scheduled Tribes) Order, 1950 contains no religious restrictions similar to those for Scheduled Castes, the issue of membership must be determined based on facts presented during the trial.
Result: Appeal allowed.
Legal Category Hierarchy
- constitutional law
- crime and sentencing
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practice and procedure
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criminal procedure
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quashing of charges
- under section 482 crpc (Para 1)
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quashing of charges
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criminal procedure
Table of Contents
2. Appellant argues conversion does not cease tribal status; Respondent argues conversion to Christianity removes Scheduled Tribe status. (Para 14 , 15 )
3. Whether a person remains a tribe member after conversion is a question of fact depending on continued observance of tribal traits. (Para 5 )
4. Membership of a Scheduled Tribe is determined by continued observance of tribal customs, not solely by religion or conversion. (Para 5 )
5. Appeal allowed — High Court order quashing charges set aside — matter remitted for trial to determine factual issue. (Para 1 , 2 )
6. Does conversion to another religion automatically cease membership of a Scheduled Tribe?
No, conversion does not automatically cease tribal membership. It depends on whether the person continues to follow tribal customs, rituals, and traditions. (Para 5 )
7. Is the question of whether a converted person remains a member of a Scheduled Tribe a question of law or fact?
It is essentially a question of fact that must be determined based on evidence of continued adherence to tribal traits and customs. (Para 5 )
8. What factors determine continued membership of a Scheduled Tribe after conversion to another religion?
Key factors include whether the person still follows tribal customs regarding succession, inheritance, marriage, worship, and is accepted by the tribe. (Para 13 )
9. Does the Constitution (Scheduled Tribes) Order, 1950 contain a bar similar to the Scheduled Castes Order regarding religion?
No, unlike the Scheduled Castes Order which excludes persons professing non-Hindu, non-Sikh, or non-Buddhist religions, the Scheduled Tribes Order contains no such bar. (Para 14 )
ORDER
1. One Ramachandran, who was the President of the Pattambi Congress Mandlam, lodged a complaint against the respondent alleging that on 24-10-1992, the respondent at 3.30 p.m. took one eight-year-old girl named Elizabeth P. Kora to the classroom in Pattambi Government D.P. School, with an intent to dishonour and outrage her modesty. On 11-11-1992, the said complaint was treated as a first information report under Section 509 of the Indian Penal Code. Subsequently on 21-11-1992, the investigating officer came to know that the father of the victim belonged to the Mala Aryan community, which is considered to be a Scheduled Tribe in the State of Kerala and lodged another first information report, charging the respondent under Section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "the Act"). On the basis of the said first information reports, the Chief Judicial Magistrate summoned the respondent taking cognizance against him under Section 3(1)(xi) of the Act as well as under Section 509 of the Indian Penal Code. Aggrieved, the respondent filed a petition under Section 482 of the Code of Criminal Procedure, for quashing the charges framed under Section 3(1 )(xi) of the Act. The High Court was of the view that since the victims parents have embraced Christianity, therefore, the victim ceased to be a member of the Scheduled Tribe. On this premise, the High Court quashed the charges framed against the respondent under Section 3(1)(xi) of the Act. It is against
432 SCC (2004) 3 see the said judgment, the State of Kerala has preferred this appeal, by way of special leave petition.
2. When the matter came up before a Bench of two learned Judges, they were of the view that this matter should be heard by a larger Bench. It is by this way, the matter has come up before us.
3. The question which has been raised at the Bar is not free from doubt.
The Constitution provides for declaration of certain castes and tribes as Scheduled Castes and Scheduled Tribes in terms of Articles 341 and 342 of the Constitution of India. Article 342 reads as under:
"342. Scheduled Tribes.-(1) The President may with respect to any State or Union Territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State or Union Territory, as the case may be.
(2) Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under clause (1) any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification."
4. The object of the said provision is to provide right for the purpose of grant of protection to the Scheduled Tribes having regard to the economic and educational backwardness wherefrom they suffer. For the aforementioned purpose only the President of India has been authorised to issue the notification to parts or groups within the tribes. It is not in dispute that the Constitution (Scheduled Tribes) Order, 1950 made in terms of the aforementioned provisions is exhaustive. The question which is required to be posed at the outset is what is a tribe?
"Tribe has been defined as a social group of a simple kind, the members of which speak common dialect, have a single government and act together for such common purposes as warfare. Other typical characteristics include a common name, a contiguous territory, a relatively uniform culture or way of life and a tradition of common f descent. Tribes are usually composed of a number of local communities e.g. bands, villages or neighbourhoods and are often aggregated in clusters of a higher order called nations. The term is
