K.P. Manu Versus Chairman, Scrutiny Committee for Verification of Community Certificate
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 7065 of 2008, Judgment Date: Feb 26, 2015
-
As we perceive, the controversy fundamentally has three arenas, namely, (1) whether on conversion and at what stage a person born to Christian parents can, after reconversion to the Hindu religion, be eligible to claim the benefit of his original caste; (ii) whether after his eligibility is accepted and his original community on a collective basis takes him within its fold, he still can be denied the benefit; and (iii) that who should be the authority to opine that he has been following the traditions and customs of a particular caste or not. -
From the aforesaid paragraph, it is plain as day that if the parents of a person are converted from Hinduism to Christianity and he is born after the conversion and embraces Hinduism and the members of the caste accept him, he comes within the fold of the caste. -
"In our opinion, when a person is converted to Christianity or some other religion the original caste remains under eclipse and as [pic]soon as during his/her lifetime 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 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 case 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. whether 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." -
In our considered opinion, three things that need to be established by a person who claims to be a beneficiary of the caste certificate are (i) there must be absolutely clear cut proof that he belongs to the caste that has been recognised by the Constitution (Scheduled Castes) Order, 1950; (ii) there has been reconversion to the original religion to which the parents and earlier generations had belonged; and (iii) there has to be evidence establishing the acceptance by the community. Each aspect according to us is very significant, and if one is not substantiated, the recognition would not be possible. -
The aforesaid reasoning is contrary to the decisions of this Court and also to what we have stated hereinbefore. As far as marriage is concerned, in our considered opinion, that should not have been considered as the central and seminal facet to deny the benefit. When the community has accepted and the community, despite the marriage, has not ex- communicated or expelled, the same would not be a disqualification. -
In the instant case, the appellant got married to a Christian lady and that has been held against him. It has also been opined that he could not produce any evidence to show that he has been accepted by the community for leading the life of a Hindu. As far as the marriage and leading of Hindu life are concerned, we are of the convinced opinion that, in the instant case, it really cannot be allowed to make any difference. The community which is a recognised organisation by the State Government, has granted the certificate in categorical terms in favour of the appellant. It is the community which has the final say as far as acceptance is concerned, for it accepts the person, on reconversion, and takes him within its fold. Therefore, we are inclined to hold that the appellant after reconversion had come within the fold of the community and thereby became a member of the scheduled caste. Had the community expelled him the matter would have been different. The acceptance is in continuum. Ergo, the reasonings ascribed by the Scrutiny Committee which have been concurred with by the High Court are wholly unsustainable. -
Consequently, the appeal is allowed and the judgment and order of the High Court, findings of the Scrutiny Committee and the orders passed by the State Government and the second respondent are set aside. The appellant shall be reinstated in service forthwith with all the benefits relating to seniority and his caste, and shall also be paid backwages upto 75% within eight weeks from today.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 7065 OF 2008
K.P. Manu ..... Appellant
Versus
Chairman, Scrutiny Committee for
Verification of Community Certificate ... Respondent
J U D G M E N T
Dipak Misra, J.
In this appeal, by special leave, the assail is to the judgment and
order dated 10th March, 2006 passed by the Division Bench of the High Court
of Kerala in M.F.A. No. 55 of 2006 wherein the High Court has accepted the
report of the Scrutiny Committee constituted under the Kerala (Scheduled
Castes and Scheduled Tribes) Regulation of Issue of Community Certificates
Act, 1996 (for short "the Act") wherein the caste certificate granted in
favour of K.P. Manu, the appellant herein, had been cancelled.
The facts giving rise to the present appeal are that one Shri S. Sreekumar
Menon invoked the jurisdiction of the Scrutiny Committee under Section
11(3) of the Act challenging the grant of caste certificate, namely, Hindu
Pulaya to the appellant on the ground that the said certificate had been
obtained by him on misrepresentation, and that apart the concerned
authority had issued the caste certificate in total transgression of law.
The Committee conducted an enquiry and eventually by its order dated 4th
February, 2006 had returned a finding that the appellant was erroneously
issued a caste certificate inasmuch as he was not of Hindu origin and
hence, could not have been conferred the benefit of the caste status. It
is not in dispute that the great grandfather of the appellant belonged to
Hindu Pulaya Community. His son Chothi embraced Christianity and accepted
a new name, that is, Varghese who married Mariam who originally belonged to
Hindu Ezhava community and later on converted to Christianity. In the
wedlock three sons, namely, Varghese, Yohannan and Paulose were born. The
father of the appellant, Paulose, got married to Kunjamma who was a
Christian. The appellant who was born on 03.01.1960 sometime in the year
1984 at the age of 24 converted himself to Hindu religion and changed his
name to that of K.P. Manu. On the basis of the conversion he applied for a
caste certificate to Akhila Bharata Ayyappa Seva Sangham. Be it stated,
the appellant after conversion had obtained a certificate from the
concerned community on 5th February, 1984. Eventually, the Tehsildar who
was authorised to issue the caste certificate had issued the necessary
caste certificate.
On the basis of the complaint made, the Scrutiny Committee embarked upon an
enquiry and recorded a finding holding, inter alia, that the appellant does
not belong to that caste. The report of the Scrutiny Committee appears to
have been influenced by two aspects, namely, that the appellant was born to
Christian parents, whose grandparents had embraced Christianity and second,
there is no material brought on record to show that the appellant after
conversion has been following the traditions and customs of the community.
To arrive at the second conclusion, emphasis has been laid on the fact that
the appellant after conversion, had married a Christian lady.
On the basis of the aforesaid report of the Scrutiny Committee, the State
Government took action and directed the employer of the appellant,
respondent No. 2 herein, to remove him from service and recover a sum of
Rs.15 lakhs towards the salary paid to him. The said report of the
Committee and the order in sequitur having the base on the report were the
subject matter of challenge before the High Court in appeal.
On a perusal of the order passed by the High Court it is perceptible that
it has affirmed the findings of the Committee on the basis that the
paternal as well as maternal grandfather of the appellant belonged to
Christian community and professed Christian faith; that the parents of the
appellant were born as Christians and they continued to profess
Christianity; that the appellant also was born as a Christian; that there
is no caste by name 'Pulaya convert'; that neither the state government nor
the revenue officials have the power to effect any alteration in the caste
name contrary to the Constitution (Scheduled Castes) Order, 1950 issued
under the authority of the Constitution of India; that the appellant
cannot claim the caste status of Pulaya merely on the ground that he had
embraced Hinduism at the age of 24; that his claim that he should be
treated as one belonging to scheduled caste community has been rightly
rejected by the Committee after considering all the relevant facts and the
law on the subject; and that neither the appellant nor his parents had
enjoyed the caste status of Pulaya. On the aforesaid basis, the High Court
opined that by embracing Hinduism at the age of 24, the appellant who was
born to Christian parents and professed Christian faith is not entitled to
claim that he is "Hindu-Pulaya." In the ultimate result, the writ
petition was dismissed.
Calling in question the legal propriety of the aforesaid order, it is
submitted by Mr. Naphade, learned senior counsel for the appellant that the
High Court has fallen into serious error in its understanding of the ratio
laid down by the Constitution Bench in the case of The Principal Guntur
Medical College, Guntur & Ors. v. Y. Mohan Rao[1], inasmuch as it has ruled
that benefit available to a Scheduled Caste can only be made available to a
person, if his parents were converted to Christianity and he has been
reconverted and further satisfies other conditions like following the
customs and traditions of the Caste after reconversion but would not be
applicable to a person if his grandparents had converted to Christianity.
Learned senior counsel would submit that the finding of the Scrutiny
Committee does not deserve acceptation inasmuch as the expert agency which
has been constituted under Section 9 of the Act to inquire into certain
aspects though has given a categorical finding that the appellant had
produced the requisite certificate, yet has fallaciously concluded that
after conversion he has not been following the traditions of Christian
religion, for he has entered into wedlock with a Christian woman. Learned
senior counsel has also placed reliance on a two-Judge Bench decision in
Kodikunnil Suresh @ J. Monian v. N.S. Saji Kumar & Ors.[2].
Resisting the submissions canvassed by Mr. Naphade, learned senior counsel
for the appellant, Ms. Liz Mathew, learned counsel for the respondent-State
submitted that the reasoning of High Court cannot be faulted inasmuch as
the Constitution Bench does not lay down that a person born as a Christian
whose grandparents had embraced Christianity can, on reconversion, come
back to the stream of his/her original caste on acceptance by the
community, and further the principle stated therein should not be stretched
to cover that arena. That apart, submits she, the onus is on the appellant
to adduce proof in respect of the fact that after conversion he has been
following the Hindu rites and customs that is meant for the caste and in
the case at hand the said burden has not been discharged.
As we perceive, the controversy fundamentally has three arenas, namely, (1)
whether on conversion and at what stage a person born to Christian parents
can, after reconversion to the Hindu religion, be eligible to claim the
benefit of his original caste; (ii) whether after his eligibility is
accepted and his original community on a collective basis takes him within
its fold, he still can be denied the benefit; and (iii) that who should be
the authority to opine that he has been following the traditions and
customs of a particular caste or not. We have enumerated the basic tests
and in course of our discussion, we shall delve into certain ancillary
issues regard being had to the area of analysis.
To appreciate the questions that we have formulated, it is necessary to
refer to the authorities in chronology. A three-Judge Bench in C.M.
Arumugam V. S. Rajgopal and others[3], while dealing with the concept of
caste, referred to the pronouncements in Coopoosami Chetty V. Duraisami
Chetty[4], Muthusami V. Masilamani[5] and G. Michael V. S. Venkateswaran[6]
and opined thus:
"It is no doubt true, and there we agree with the Madras High Court in G.
Michael case that the general rule is that conversion operates as an
expulsion from the caste, or, in other words, the convert ceases to have
any caste, because caste is predominantly a feature of Hindu society and
ordinarily a person who ceases to be a Hindu would not be regarded by the
other members of the caste as belonging to their fold. But ultimately it
must depend on the structure of the caste and its rules and regulations
whether a person would cease to belong to the caste on his abjuring
Hinduism. If the structure of the caste is such that its members must
necessarily belong to Hindu religion, a member, who ceases to be a Hindu,
would go 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 might
happen where caste is based on economic or occupational characteristics and
not on religious identity or the cohesion of the caste as a social group is
so strong that conversion into another religion does not operate to snap
the bond between the convert and the social group. 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. When an argument was[pic] advanced before the Madras
High Court in G. Michael case
"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",
Rajamannar, C.J., who, it can safely be presumed, was familiar with the
customs and practices prevalent in South India, accepted the position "that
instances can be found in which in spite of conversion the caste
distinctions might continue", though he treated them as exceptions to the
general rule."
[Emphasis supplied]
10. Thereafter, the Court referred to number of authorities of various
High Courts and ruled that it cannot be laid down as an absolute rule
uniformly applicable in all cases that whenever a member of caste is
converted from Hinduism to Christianity, he loses his membership of the
caste. It is true that ordinarily on conversion to Christianity, he would
cease to be a member of the caste, but that is not an invariable rule, and
it would depend on the structure of the caste and its rules and
regulations. The Court referred to certain castes, particularly in South
India, where this consequence could not follow by conversion since such
castes comprise both Hindus and Christians. Eventually, the Court opined
that:
"There is no reason either on principle or on authority which should compel
us to disregard this view which has prevailed for almost a century and lay
down a different rule on the subject. If a person who has embraced another
religion can be reconverted to Hinduism, there is no rational principle why
he should not be able to come back to his caste, if the other members of
the caste are prepared to readmit him as a member. It stands to reason that
he should be able to come back to the fold to which he once belonged,
provided of course the community is willing to take him within the fold. It
is the orthodox Hindu society still dominated to a large extent,
particularly in rural areas, by medievalistic outlook and status-oriented
approach which attaches social and economic disabilities to a person
belonging to a scheduled caste and that is why certain favoured treatment
is given to him by the Constitution. Once such a person ceases to be a
Hindu and becomes a Christian, the social and economic disabilities arising
because of Hindu religion cease and hence it is no longer necessary to give
him protection and for this reason he is deemed not to belong to a
scheduled caste. But when he is reconverted to Hinduism, the social and
economic disabilities once again revive and become attached to him because
these are disabilities inflicted by Hinduism. A Mahar or a Koli or a Mala
would not be recognised as anything but a Mahar or a Koli or a Mala after
reconversion to Hinduism and he would suffer from the same social and
economic disabilities from which he suffered before he was converted to
another religion. It is, therefore, obvious that the object and purpose of
the Constitution (Scheduled Castes) Order, 1950 would be advanced rather
than retarded by taking the view that on reconversion to Hinduism, a person
can once again become a member of the scheduled caste to which he belonged
prior to his conversion."
(Emphasis added)
11. The aforesaid pronouncement has to be understood from constitutional
and social perspective as the Court has viewed that there is no rational
principle why should a person, who has embraced another religion should not
be able to come back to his caste, and further the object and purpose of
the Constitution (Scheduled Castes) Order, 1950 would be advanced if, on
reconversion, to his original religion, he would become a member of his
original caste and not suffer from the same social and economic
disabilities.
12. Before the Constitution Bench, in Y. Mohan Rao (supra), the question
arose whether a person whose parents belong to a scheduled caste before
their conversion to Christianity can, on conversion or re-conversion to
Hinduism, be regarded as a member of the Scheduled Caste so as to be
eligible for the benefit of reservation of seats for scheduled castes in
the matter of admission to a medical college. The parents of the
respondent therein originally professed Hindu religion and belonged to
Madiga caste which is admittedly a caste deemed to be a scheduled caste in
the State of Andhra Pradesh as specified in Part I of the schedule to the
Constitution (Scheduled Castes) Order, 1950. The respondent was born after
the conversion, that is to say, he was born of Christian parents and he had
got himself converted to Hinduism on September 20, 1973 from Andhra Pradesh
Arunchatiya Sangham stating that he had renounced Christianity and embraced
Hinduism after going through Suddhi ceremony and he was thereafter received
back into Madiga caste of Hindu fold. On the strength of the certificate,
he had applied for admission in respect of the reserved seat to Guntur
Medical College. Initially he was provisionally selected for admission,
but his selection was cancelled as he was not Hindu by birth. On a writ
petition being filed, the High Court referred to the Constitution
(Scheduled Castes) Order, 1950 and opined that a candidate, in order to be
eligible for a seat reserved for scheduled caste, need not belong to a
scheduled caste by birth and when such a stipulation is made by the
Government Notification, it has travelled beyond the 1950 order. The view
expressed by the learned Single Judge in the writ petition was accepted by
the Division Bench. It was contended by the State before the larger Bench
that when the respondent was converted to Hinduism, he did not
automatically become a member of the Madiga caste, but it was open to the
members of the Madiga caste to accept him within their fold and it was only
if he was so accepted, that he could have claimed to have become a member
of the said caste. The Constitution Bench referred to the three-Judge
Bench in C.M. Arumugam (supra) and posed the issue in the following manner:
"Now, before we proceed to consider this contention, it is necessary to
point out that there is no absolute rule applicable in all cases that
whenever a member of a caste is converted from Hinduism to Christianity, he
loses his membership of the caste. This question has been considered by
this Court in C. M. Arumugam v. S. Rajgopal and it has been pointed out
there that ordinarily it is true that on conversion to Christianity, a
person would cease to be a member of the caste to which he belongs, but
that is not an invariable rule. It would depend on the structure of the
caste and its rules and regulations. There are some castes, particularly
in South India, where this consequence does not follow on conversion, since
such castes comprise both Hindus and Christians. Whether Madiga is a caste
which falls within this category is a debatable question. The contention
of the respondent in his writ petition was that there are both Hindus and
Christians in Madiga caste and even after conversion to Christianity, his
parents continued to belong to Madiga caste and he was, therefore, a member
of Madiga caste right from the time of his birth. It is not necessary for
the purpose of the present appeal to decide this question. We may assume
that, on conversion to Christianity, the parents of the respondent lost
their membership of Madiga caste and that the respondent was, therefore,
not a Madiga by birth. The question is: could the respondent become a
member of Madiga caste on conversion to Hinduism? That is a question on
which considerable light is thrown by the decision of this Court in C.M.
Arumugam (supra)."
Thereafter, the Court accepting the principle stated in C.M. Arumugam
(supra) proceeded to opine that the reasoning given in the said judgment
has to be accepted and made applicable to a case where the parents of a
person are converted from Hinduism to Christianity and he is born after
their conversion and has subsequently embraced Hinduism. In addition to
the conversion, he has to be accepted by the members of the caste and is
taken as a member within its fold. In that context, the Court ruled thus:
"The reasoning on which this decision proceeded is equally applicable in a
case where the parents of a person are converted from Hinduism to
Christianity and he is born after their conversion and on his subsequently
embracing Hinduism, the members of the caste to which the parents belonged
prior to their conversion accept him as a member within the fold. It is
for the members of the caste to decide whether or not to admit a person
within the caste. Since the caste is a social combination of persons
governed by its rules and regulations, it may, if its rules and regulations
so provide, admit a new member just as it may expel an existing member.
The only requirement for admission of a person as a member of the caste is
the acceptance of the person by the other members of the caste, for, as
pointed out by Kirshnaswami Ayyangar, J., in Durgaprasada Rao v.
Sudarsanaswami[7], "in matters affecting the well being or composition of a
caste, the caste itself is the supreme judge". (emphasis supplied). It
will, therefore, be seen that on conversion to Hinduism, a person born of
Christian converts would not become a member of the caste to which his
parents belonged prior to their conversion to Christianity, automatically
or as a matter of course, but he would become such member, if the other
members of the caste accept him as a member and admit him within the fold."
[underlining is ours]
13. From the aforesaid paragraph, it is plain as day that if the parents
of a person are converted from Hinduism to Christianity and he is born
after the conversion and embraces Hinduism and the members of the caste
accept him, he comes within the fold of the caste.
14. Mr. Naphade, learned senior counsel for the appellant would contend
that the reasoning that has been made applicable to the parents, there is
no reason or justification for not applying the said principle to the
grandparents. Learned counsel for the State, per contra, would contend
that the Constitution Bench has not laid down any principle as regards the
grandparents and the same is with the avowed purpose as it cannot cover
several generations. In this regard, we may profitably refer to a three-
Judge Bench decision in Kailash Sonkar V. Maya Devi[8]. In the said case,
the Court posed the issue thus:
"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 G.M. Arumugam v. S. Rajagopal."
15. The Court, after referring to several decisions including the
decision in C.M. Arumugam (supra), has held thus:
"31. 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.
32. 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 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."
16. What is important for our purpose is paragraph 34 of the said
decision, which is as follows:
"In our opinion, when a person is converted to Christianity or some other
religion the original caste remains under eclipse and as [pic]soon as
during his/her lifetime 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 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 case 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. whether 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."
[Emphasis added]
17. Learned counsel for the State has laid immense emphasis on the last
part of the aforequoted paragraph wherein the Court has observed that in a
case where 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 relevant caste. Mr. Naphade, learned senior
counsel would contend that the three-Judge Bench has not referred to the
Constitution Bench decision in Y. Mohan Rao (supra) and had that been
adverted to, in all possibility, the Court could have held if it could
travel to the immediate generation, there was no warrant or justification
not to take in its fold the grandparents. His further submission is in the
case at hand, it is not a case of several generations, but only the
grandparents.
18. In this context, a reference may be made to the authority in S.
Anbalagan v. B. Devarajan and others[9]. In the said case, the Court dwelt
upon the legal position in regard to the caste, their status on conversion,
or reconversion to Hinduism. After referring to various authorities,
namely, Administrator-General of Madras v. Anandachari[10], Muthusami
Mudaliar v. Masilamani (supra), Gurusami Nadar v. Irulappa Konar[11],
Rajagopal v. Armugam[12], Perumal Nadar v. Ponnuswami[13], Vermani v.
Vermani[14], Durgaprasada Rao (supra) and Chatturbhuj Vithaldas Jasani v.
Moreshwar Parashram[15], came to hold as follows:
"These precedents, particularly those from South India, clearly establish
that no particular ceremony is prescribed for reconversion [pic]to Hinduism
of a person who had earlier embraced another religion. 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.
In fact, it may not be accurate to say that he regains his caste; it may be
more accurate to say that he never lost his caste in the first instance
when he embraced another religion. 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. The mark of
caste does not seem to really disappear even after some generations after
conversion. In Andhra Pradesh and in Tamil Nadu, there are several
thousands of Christian families whose forefathers became Christians and
who, though they profess the Christian religion, nonetheless observe the
practice of caste. There are Christian Reddies, Christian Kammas, Christian
Nadars, Christian Adi Andhras, Christian Adi Dravidas and so on. The
practice of their caste is so rigorous that there are intermarriages with
Hindus of the same caste but not with Christians of another caste. Now, if
such a Christian becomes a Hindu, surely he will revert to his original
caste, if he had lost it at all. In fact this process goes on continuously
in India and generation by generation lost sheep appear to return to the
caste-fold 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. We do not think that any different principle will apply to the
case of conversion to Hinduism of a person whose forefathers had abandoned
Hinduism and embraced another religion from the principle applicable to the
case of reconversion to Hinduism of a person who himself had abandoned
Hinduism and embraced another religion."
[Underlining is ours]
Thus, in the aforesaid case the Court has ruled that there is no
reason that any different principle will apply to a person whose
forefathers had abandoned Hinduism.
19. In Puneet Rai v. Dinesh Chaudhary[16], S.B. Sinha, J. in his
concurring opinion has observed thus:
"30. In Caste and the Law in India by Justice S.B. Wad at p. 30 under the
heading "Sociological Implications", it is stated:
"Traditionally, a person belongs to a caste in which he is born. The caste
of the parents determines his caste but in case of reconversion a person
has the liberty to renounce his casteless status and voluntarily accept his
original caste. His caste status at birth is not immutable. Change of
religion does not necessarily mean loss of caste. If the original caste
does not positively disapprove, the acceptance of the caste can be
presumed. Such acceptance can also be presumed if he is elected by a
majority to a reserved seat. Although it appears that some dent is made in
the classical concept of caste, it may be noticed that the principle that
caste is created by birth is not dethroned. There is also a judicial
recognition of caste autonomy including the right to outcaste a person."
31. If he is considered to be a member of the Scheduled Caste, he has to be
accepted by the community."
20. In State of Kerala & Anr. v. Chandramohanan[17], the appellant had
lodged a complaint against the respondent alleging that he had taken one
eight year old girl to the classroom in Pattambi Government U.P. School
with an intent to dishonour and outrage her modesty. The said complaint
was treated as first information report under Section 509 of the I.P.C.
The Investigating Officer, during investigation, came to know that the
father of the victim belonged to Mala Aryan community, which is considered
to be a Scheduled Tribe in the State of Kerala and lodged another FIR
charging the respondent under Section 3(1)(xi) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, 'the 1989
Act') as well as under Section 509 of the I.P.C. Being aggrieved by the
said order, the respondent filed a petition under Section 482 of the Code
of Criminal Procedure, for quashing of the charges framed under Section
3(1)(xi) of the 1989 Act and the High Court took the view that since the
victim's parents had embraced Christianity, the victim had ceased to be a
member of the Scheduled Tribe and accordingly quashed the charges in
respect of the said offences. The three-Judge Bench referred to Article
342 of the Constitution, the object of the said Article which is meant 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, the Constitution (Scheduled Tribes) Order, 1950 made in terms
of the aforesaid provisions, The Customary Laws of Muda and Oraon by Dr.
Jai Prakash Gupta, Tribal India: A Profile in Indian Ethnology by K.L.
Bhowmik, the decisions in Nityanand Sharma v. State of Bihar[18], Puneet
Rai (supra), N.E. Horo v. Jahanara Jaipal Singh[19] and thereafter held
that:-
"Before a person can be brought within the purview of the Constitution
(Scheduled Tribes) Order, 1950, he must belong to a tribe. A person for the
purpose of obtaining the benefits of the Presidential Order must fulfil the
condition of being a member of a tribe and continue to be a member of the
tribe. If by reason of conversion to a different religion a long time back,
he/his ancestors have not been following the customs, rituals and other
traits, which are required to be followed by the members of the tribe and
even had not been following the customary laws of succession, inheritance,
marriage etc. he may not be accepted to be a member of a tribe. In this
case, it has been contended that the family of the victim had been
converted about 200 years back and in fact the father of the victim married
a woman belonging to a Roman Catholic, wherefrom he again became a Roman
Catholic. The question, therefore, which may have to be gone into is as to
whether the family continued to be a member of a Scheduled Tribe or not.
Such a question can be gone into only during trial."
21. After so holding, the Court referred to in extenso the decision in
C.M. Arumugam (supra) and came to rule thus:-
"18. The aforementioned decision is, thus, also an authority for the
proposition that upon conversion, a person may be governed by a different
law than the law governing the community to which he originally belonged
[pic]but that would not mean that notwithstanding such conversion, he may
not continue to be a member of the tribe.
19. Learned counsel for the appellant has drawn our attention to the
circulars issued by the State of Kerala with a view to show that the
members of the tribes are being treated in the same capacity despite
conversion. We are afraid that such circulars being not law within the
meaning of Article 13 of the Constitution of India, would be of no
assistance.
20. We, therefore, are of the opinion that although as a broad proposition
of law it cannot be accepted that merely by change of religion a person
ceases to be a member of the Scheduled Tribe, but the question as to
whether he ceases to be a member thereof or not must be determined by the
appropriate court as such a question would depend upon the facts of each
case. In such a situation, it has to be established that a person who has
embraced another religion is still suffering from social disability and
also following the customs and traditions of the community, which he
earlier belonged to. Under such circumstances, we set aside the order under
appeal and remit the same to the Sessions Court, Palakkad, to proceed in
accordance with law."
22. At this juncture, we are disposed to think that reference to certain
reports and articles would be profitable for the purpose of understanding
the ground reality and appreciate factual score in proper perspective. In
the article, namely, "Dalits in India" by James Massey, B.R. Ambedkar, as
is reflected from the said article, has devoted two long essays on the
subject under the title "Christianising the Untouchables" and "The
Condition of the Convert". Speaking about the general conditions of
Christians Dalits, Ambedkar had put a direct challenge by saying:
"It is necessary to bear in mind that Indian Christians are drawn chiefly
from the Untouchables (Dalits) and, to a much less extent from low ranking
Shudra castes. The social services of Missions must therefore be judged in
the light of the needs of these classes. What are those needs? The
services rendered by the Missions in the fields of education and medical
relief are beyond the ken of the Indian Christians. They go mostly to
benefit the high caste Hindu."
23. James Massey has analysed the reasons ascribed by Ambedkar by
stating:-
"What has Christianity achieved in the way of changing the mentality of the
convert? Has the Untouchable convert risen to status of the touchables?
Have the touchable and untouchable converts discarded caste? Have they
ceased to worship their old pagan gods and to adhere to their old pagan
superstitions? These are far-reaching questions. They must be answered
and Christianity in India must stand or fall by the answers it gives to
these questions."
24. James Massey, the learned author has referred to the observations of
Karnataka Backward Classes Commission, 1952. The relevant part is as
follows:-
"A Scheduled Caste (man) might have made some progress, or might have
embraced Islam or Christianity, and thereby the disabilities, under which
he suffered as a result of untouchability, might have, to some extent,
disappeared. But the fact remains that such castes, tribes and racial
groups still continue to suffer under other social, educational and
economic handicaps and taboos."
25. Archbishop George Zur, Apostolic Pro-Nuncio to India in his
inaugural address to the Catholic Bishops Conference of India, (CBCI) in
the meeting held in Pune during December 1991, made the following
observations:
"Though Catholics of the lower castes and tribes form 60 per cent of Church
membership they have no place in decision-making. Scheduled caste converts
are treated as low caste not only by high caste Hindus but by high caste
Christians too. In rural areas they cannot own or rent houses, however,
well-placed they may be. Separate places are marked out for them in the
parish churches and burial grounds. Inter-caste marriages are frowned upon
and caste tags are still appended to the Christian names of high caste
people. Casteism is rampant among the clergy and the religious. Though
Dalit Christians make 65 per cent of the 10 million Christians in the
South, less than 4 per cent of the parishes are entrusted to Dalit priests.
There are no Dalits among 13 Catholic bishops of Tamil Nadu or among the
Vicars-general and rectors of seminaries and directors of social assistance
centres."
26. Mandal Commission report of the Backward Classes Commission 1980,
speaking about the Indian Christians in Kerala had expressed thus:-
".... Christians in Kerala are divided into various denominations on the
basis of beliefs and rituals and into various ethnic groups on the basis of
their caste background .... even after conversion, the lower caste converts
were continued to be treated as Harijans by all sections of the society
including the Syrian Christians, even though with conversion the former
ceased to be Harijans and untouchables..... In the presence of rich Syrian
Christians, the Harijan Christians had to remove their head-dress while
speaking with their Syrian Christian masters. They had to keep their mouth
closed with a hand ........ It was found that the Syrian and Pulaya
members of the same Church conduct religious rituals separately in separate
buildings ... Thus lower caste converts to a very egalitarian religion
like Christianity, ever anxious to expand its membership, even after
generations were not able to efface the effect of their caste background."
27. A Church of South India Commission in 1964 investigating the
grievances of Dalit Christians, whether they split off or remain with the
Church of South India, wrote:-
"First and foremost is the feeling that they are despised, not taken
seriously, overlooked, humiliated or simply forgotten. They feel that
again and again affairs in the diocese are arranged as if they did not
exist. Caste appellations are still occasionally used in Church when they
have been abandoned even by Hindus. Backward class desires and claims seem
again and again to be put on the waiting list, while projects which they
feel aim chiefly at the benefit of the Syrian community seem to get
preferential consideration. In appointments, in distribution of charity,
in pastoral care and in the attitude shown to them, in disputes with the
authorities, the treatment they receive, when compared with that received
by their Syrian brothers, suggests a lack of sympathy, courtesy and
respect."
28. Chinappa Commission Report (1990) states:-
"By and large, the Christian community in Karnataka is an advanced
community except for SC and ST converts, whose position has not improved
very much for the better. Thanks to the all pervasive caste system which
has penetrated the barriers of religion also, SC and ST converts to
Christianity and their descendants continue, to a great degree, to be
victims of the same social injustice to which the SCs and STs are
subjects".
29. Dr. Y. Antony Raj, the author of "Social Impact of Conversion"
comments:
"The mass conversion from Christianity to Hinduism, Islam and Buddhism is
often explained as the frustration of the coverts to Christianity.
Devadason names the reason for such reconversion as 'disillusionment' among
the CSCO. "Till recently" says he, "the conversion to Christianity was
considered an attractive proposition. That trend has slowed down, if not
stopped. This was because of the disillusionment among the Harijan
converts, who discovered that they had carried with them their caste stigma
and that inter-caste marriage and other contacts continued to be as
difficult as before."
30. As per the analysis made by John C.B. Webster, in the book, "The
Dalit Christians: A History", in Chapter III titled "The Politics of
Numbers", Dr. Ambedkar, being aware of the continuing problems of Dalit
Christians had ruled out conversion to Christianity. To quote the learned
author:
"He was certainly aware of them. In what was probably the most perceptive
analysis of the Christian community from this period, Ambedkar noted that
caste Hindus were the chief beneficiaries of Christian educational and
medical work, that caste continued within the churches, and that Dalits
suffered from the same disabilities after as before conversion to
Christianity. More importantly, Christianity failed the political test.
For one thing, while Christianity may have inspired Dalit converts to
change their social attitudes, it had not inspired them to take practical
steps to redress the wrongs from which they suffered."
31. In this context, it will be fruitful to make a reference to the
authority in State of M.P. and Another v. Ram Kishna Balothia and
Another[20]. In the said case, the two-Judge Bench was called upon to deal
with the validity of the Scheduled Castes and Scheduled Tribes (Prevention
of Atrocities) Act, 1989, especially Section 18 that stipulates that
Section 438 of the CrPC will not apply to the persons committing an offence
under the said Act. While upholding the validity of the provisions and
annulling the judgment of the High Court of M.P., the learned Judges have
referred to the Statement of Objects and Reasons accompanying the Scheduled
Castes and Scheduled Tribes Bill, 1989 when it was introduced in the
Parliament. To quote:
"It sets out the circumstances surrounding the enactment of the said Act
and points to the evil which the statute sought to remedy. In the Statement
of Objects and Reasons it is stated:
"Despite various measures to improve the socio-economic conditions of the
Scheduled Castes and the Scheduled Tribes, they remain vulnerable. They are
denied number of civil rights. They are subjected to various offences,
indignities, humiliations and harassment. They have, in several brutal
incidents, been deprived of their life and property. Serious crimes are
committed against them for various historical, social and economic reasons
2. ... When they assert their rights and resist practices of untouch-
ability against them or demand statutory minimum wages or refuse to do any
bonded and forced labour, the vested interests try to cow them down and
terrorise them. When the Scheduled Castes and the Scheduled Tribes try to
preserve their self-respect or honour of their women, they become irritants
for the dominant and the mighty. Occupation and cultivation of even the
Government allotted land by the Scheduled Castes and Scheduled Tribes is
resented and more often these people become victims of attacks by the
vested interests. Of late, there has been an increase in the disturbing
trend of commission of certain atrocities like making the Scheduled Caste
persons eat inedible substances like human excreta and attacks on and mass
killings of helpless Scheduled Castes and Scheduled Tribes and rape of
women belonging to the Scheduled Castes and the Scheduled Tribes.... A
special legislation to check and deter crimes against them committed by non-
Scheduled Castes and non-Scheduled Tribes has, therefore, become
necessary."
The above statement graphically describes the social conditions which
motivated the said legislation. It is pointed out in the above Statement of
Objects and Reasons that when members of the Scheduled Castes and Scheduled
Tribes assert their rights and demand statutory protection, vested
interests try to cow them down and terrorise them. In these circumstances,
if [pic]anticipatory bail is not made available to persons who commit such
offences, such a denial cannot be considered as unreasonable or violative
of Article 14, as these offences form a distinct class by themselves and
cannot be compared with other offences."
32. We have referred to the aforesaid materials and the observations
singularly for the purpose that there has been detailed study to indicate
the Scheduled Castes persons belonging to Hindu religion, who had embraced
Christianity with some kind of hope or aspiration, have remained socially,
educationally and economically backward. The Constitution Bench in Y.
Mohan Rao (supra) has clearly laid down that if a person born to Christian
parents, who, belonging to Scheduled Caste had converted themselves to
Christianity, the said person on reconversion to his religion and on
acceptance by his community with a further rider that he would practise the
customs and traditions of the caste, would be treated as a member of the
said Scheduled Caste and if the said caste is one of the castes falling
within the Constitution (Scheduled Castes) Order, 1950, then he will be
treated as a Scheduled Caste.
33. As we understand the authority it does not lay down that it only
would apply to the parents and exclude the grandparents. At this stage,
two decisions are required to be properly understood. In Kailash Sonkar
(supra), the three-Judge Bench while applying the doctrine of eclipse to
the original caste and the principle of revival applying the said doctrine,
has observed whether to a situation where 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.
The Court, by way of abundant caution, has also proceeded to state that the
question did not arise there. That apart, it has not expressed any
opinion. Therefore, it cannot be treated as a precedent for the purpose
that it would only encompass the previous generation. In S. Anbalagan
(supra) which we have referred to in extenso earlier, has laid down that if
the caste disappears, it disappears only to reappear on reconversion and
the mark of caste does not seem to really disappear even after some
generations after conversion. As has been held therein, the process goes
on continuously in India and generation by generation last sheep to return
to their caste fold are once again assimilated to that fold. The three-
Judge Bench has commented that the members of the scheduled castes who had
embraced another religion in their quest for liberation, but return to
their old religion on finding that their disabilities have clung to them
with great tenacity; and thereafter stated that it does not think that any
different principle would apply to the case of conversion to Hinduism of a
person whose forefathers had abandoned Hinduism and embraced another
religion from the principle applicable to the case of reconversion to
Hinduism of a person who himself had abandoned Hinduism and embraced
another religion. This view, in our considered opinion, is in consonance
with the Constitution Bench in Y. Mohan Rao (supra) and does not run
counter to it. One may raise a question how does one find out about the
forefathers. There can be a false claim but that would be the subject
matter of inquiry. Therefore, the principle of "definitive traceability"
may be applied during the inquiry and the onus shall be on the person who
claims the benefit after reconversion. To elaborate, he has to establish
beyond a shadow of doubt that his forefathers belonged to the scheduled
caste that comes within the Constitution (Scheduled Castes) Order, 1950 and
he has been reconverted and his community has accepted him and taken him
within its fold.
34. In our considered opinion, three things that need to be established
by a person who claims to be a beneficiary of the caste certificate are (i)
there must be absolutely clear cut proof that he belongs to the caste that
has been recognised by the Constitution (Scheduled Castes) Order, 1950;
(ii) there has been reconversion to the original religion to which the
parents and earlier generations had belonged; and (iii) there has to be
evidence establishing the acceptance by the community. Each aspect
according to us is very significant, and if one is not substantiated, the
recognition would not be possible.
35. In the case at hand, as far as the first aspect is concerned, as we
have stated hereinbefore, there is no dispute. If a person who is born to
Christian parents who had converted to Christianity from the Scheduled
Caste Hindu can avail the benefit of the caste certificate after his
embracing Hinduism subject to other qualifications, there cannot be any
soundness of logic that he cannot avail the similar benefit because his
grandparents were converted and he was born to the parents who were
Christians. They must have belonged to that caste and after conversion the
community has accepted. Our view is fortified by the authority in S.
Anbalagan (supra). Thus, the reasoning as ascribed by the Scrutiny
Committee as well as by the High Court on this score is unacceptable.
36. As far as the community acceptance is concerned, Mr. Naphade has
drawn our attention to the enquiry report submitted by the expert agency,
conclusion of which reads thus:
"CONCLUSION
Thus, the anthropological study has revealed that the claimant K.P. Manu's
case father K.P. Paulose and his mother Kunjamma belong to Christian
Community of Pulayan origin. The investigation has revealed they still
profess Christianity.
In the Government Circular No. 18421/E2/87 SCSTDD dated 15.12.1987 it has
been made clear that the religious status of parents will not affect the
caste status of neo-converts provided they become major and copy of the
said GO is marked here as Document-7. So the claimant after becoming major
embraced Hinduism and revived his caste. The caste organisation to which
he belongs has also accepted his conversion. It has been found that he has
a registered marriage with Sylamma belonging to Christian community of
Pulayan origin. The claimant and his children do not follow Christian
religion."
37. The community certificate which was produced by the appellant is as
follows:
"AKHILA BHARTA AYYAPPA SEVA SANAGHOM
HEAD OFFICE - KOTTAYAM
At the request of Mr. K.P. JOHN and his family residing in Kanayannur
Taluk, Mulamthuruthy Village, Ward-VI, Kaniyamol House, the persons listed
below is converting today on behalf of Ayyappa Seva Sangham from Christian
Pulayan community to Hindu Pulayan community, after performing Sudhi Karma
according to the Hindu rites and customs.
The new names adopted are mentioned against the old names of the
persons listed below:
Kottayam - 5/2/1984
General Secretary
|No. |Old Name |New Name |Date of Birth |Age |
|1. |K.P. John |K.P. Manu |31.1.1960 |23 |
|2. |K.P. Thomas |K.P. Babu |20.4.1968 |15 |
For Akhila Bharata Ayyappa Seva Sangham
Sd/-
General Secretary"
38. Be it stated here that the said "Sangham" has been recognised as one
of the agencies by the Government of Kerala as a competent organisation to
issue the community certificate. There is no doubt that the appellant had
converted himself and thereafter was accepted by the community. He has
been taken within its fold.
39. At this juncture, certain findings recorded by the Scrutiny
Committee require to be reproduced:
"The Committee examined the aspect whether the aforementioned decisions can
have any application to the claimant's conversion to Hinduism in 1984. The
Committee noted that neither the claimant nor his parents was born as Hindu
and later converted to Christianity from Hinduism. In fact they are born
as Christians. Hence there is no element of re-conversion in the
claimant's case. Hence the question of reviving caste status as Pulayan
(SC) on the ground that some of his ancestors were having Pulayan (SC)
status does not arise. The claimant traces SC (Pulayan) status from
generations back despite the fact that his ancestors in the descending
generation, consistently opted to renounce Pulayan caste status and Hindu
religious status by converting to Christianity. Ordinarily one gets
his/her caste on the basis of his/her parents. In other words, one shall
be, on birth deemed to be belonging to the caste of his/her parents. In
the facts and circumstances of the claimant's case, the claimant and his
parents were devoid of any caste identity right from their birth. It is
significant to note that ten years after his conversion to Hinduism, the
claimant has contracted marriage with a Christian lady, as per Special
Marriage Act. Hence, the Committee found that the claimant's case does not
come under the ambit of aforementioned verdicts."
The said report has been given the stamp of approval by the High
Court. In the impugned order, the Division Bench, after referring to the
report, has held thus:
"The paternal as well as maternal grand father of the appellant belonged to
Christian community and professed Christian faith. Patents of the
appellant were born as Christians and they continued to profess
Christianity. The appellant also was born as a Christian. Annexure-I
Certificate shows that in the SSLC book he is shown as a person belonging
to Christian religion. As rightly found by the respondent there is no caste
by name 'Pulaya convert'. Neither the state government nor the revenue
officials have the power to effect any alteration in the caste name
contrary to the Presidential Order issued under the authority of the
Constitution of India. Appellant cannot claim the caste status of Pulayan
merely on the ground that he embraced Hinduism at the age of 24. His claim
that he should be treated as one belonging to scheduled caste community has
been rightly rejected by the respondent after considering all relevant
facts and the law on the subject. Neither the appellant nor his parents
had enjoyed the caste status of Pulayan. Hence by embracing Hinduism at
the age of 24, the appellant who was born to Christian parents and
professed Christian faith is not entitled to claim that he is Hindu-
Pulaya."
40. The aforesaid reasoning is contrary to the decisions of this Court
and also to what we have stated hereinbefore. As far as marriage is
concerned, in our considered opinion, that should not have been considered
as the central and seminal facet to deny the benefit. When the community
has accepted and the community, despite the marriage, has not ex-
communicated or expelled, the same would not be a disqualification.
41. The committee, as we find, has placed reliance on S. Swvigaradoss v.
Zonal Manager, F.C.I.[21] The said decision requires to be adverted to. In
the said case, the parents of the petitioner, initially belonged to Adi
Dravid by caste, hailing from Kattalai village in Tirunelveli District,
Tamil Nadu and they had, before his birth, converted into Christian
religion. The petitioner had filed a suit contending, inter alia, that
after he had become a major, he has continued as Adi Dravid. The suit was
decreed but eventually, it was reversed in second appeal. The Court
referred to Article 341(1) of the Constitution, decisions in B.
Basavalingappa v. D. Munichinnappa[22], Bhaiyalal v. Harikishan Singh[23],
Srish Kumar Choudury v. State of Tripura[24], Kumari Madhuri Patel v. Addl.
Commissioner, Tribal Development[25] and opined thus:
"The Courts, therefore, have no power except to give effect to the
notification issued by the President. It is settled law that the Court
would [pic]look into the public notification under Article 341(1) or
Article 342(1) for a limited purpose. The notification issued by the
President and the Act of Parliament under Scheduled Castes and Scheduled
Tribes Order (Amendment) Act, 1976 and the Schedules appended thereto can
be looked into for the purpose to find whether the castes, races or tribes
are (sic or) parts of or groups within castes, races or tribes shall be
Scheduled Castes for the purposes of the Constitution. Under the Amendment
Act, 1976, again Parliament has included or excluded from schedules
appended to the Constitution which are now conclusive. Schedule I relates
to Scheduled Castes and Schedule II relates to Scheduled Tribes. Christian
is not a Scheduled Caste under the notification issued by the President. In
view of the admitted position that the petitioner was born of Christian
parents and his parents also were converted prior to his birth and no
longer remained to be Adi-Dravida, a Scheduled Caste for the purpose of
Tirunelveli District in Tamil Nadu as notified by the President, petitioner
cannot claim to be a Scheduled Caste. In the light of the constitutional
scheme civil court has no jurisdiction under Section 9 of CPC to entertain
the suit. The suit, therefore, is not maintainable. The High Court,
therefore, was right in dismissing the suit as not maintainable and also
not giving any declaration sought for."
[Emphasis added]
42. The two principles that have been stated in the aforesaid paragraph
are (i) that a court can look into the Notification by the President and
the act of the Parliament under the Scheduled Castes and Scheduled Tribes
Order (Amendment) Act, 1976 and the schedule appended thereto for the
limited purpose to find whether the castes, races or tribes are parts or
groups within the caste, races or tribes, especially scheduled castes for
the purpose of Constitution, and it is because what has been included or
excluded therein are conclusive; and (ii) that a person born to Christian
parents, who initially belonged to the Scheduled Caste, even after his
reconversion cannot claim to be a Scheduled Caste. As far as first
proposition of law is concerned, there can be no cavil over the same and we
respectfully concur.
43. As far as the second principle is concerned, it is essential to note
that the authorities of larger Bench in Y. Mohan Rao (supra), Kailash
Sonkar (supra) and S. Anbalagan (supra) were not brought to the notice of
the Court. Irrefragably, the second principle runs contrary to the
proposition laid down in the Constitution Bench in Y. Mohan Rao (supra) and
the decisions rendered by the three-Judge Bench. When a binding precedent
is not taken note of and the judgment is rendered in ignorance or
forgetfulness of the binding authority, the concept of per incuria comes
into play. In A.R. Antulay v. R.S. Nayak[26], Sabyasachi Mukherji, J. (as
His Lordship then was) observed that:
"42. .... 'Per incuriam' are those decisions given in ignorance or
forgetfulness of some inconsistent statutory provision or of some authority
binding on the court concerned, so that in such cases some part of the
decision or some step in the reasoning on which it is based, is found, on
that account to be demonstrably wrong."
At a subsequent stage of the said authority, it has been held that:
"47. .... It is a settled rule that if a decision has been given per
incuriam the court can ignore it."
44. In Union of India and Others v. R.P. Singh[27], the Court observed
thus:
"In Siddharam Satlingappa Mhetre v. State of Maharashtra[28], while dealing
with the issue of "per incuriam", a two-Judge Bench, after referring to the
dictum in Young v. Bristol Aeroplane Co. Ltd[29]. and certain passages from
Halsbury's Laws of England and Union of India v. Raghubir Singh[30], had
ruled thus:
"The analysis of English and Indian Law clearly leads to the irresistible
conclusion that not only the judgment of a larger strength is binding on a
judgment of smaller strength but the judgment of a coequal strength is also
binding on a Bench of Judges of coequal strength. In the instant case,
judgments mentioned in paras 124 and 125 are by two or three Judges of this
Court. These judgments have clearly ignored a Constitution Bench judgment
of this Court in Sibbia case[31] which has comprehensively dealt with all
the facets of anticipatory bail enumerated under Section 438 CrPC.
Consequently, the judgments mentioned in paras 124 and 125 of this judgment
are per incuriam."
Tested on the aforesaid principles, it can safely be concluded that the
judgment in S. Swvigaradoss (supra), as far as the second principle is
concerned, is per incuriam.
45. In the instant case, the appellant got married to a Christian lady
and that has been held against him. It has also been opined that he could
not produce any evidence to show that he has been accepted by the community
for leading the life of a Hindu. As far as the marriage and leading of
Hindu life are concerned, we are of the convinced opinion that, in the
instant case, it really cannot be allowed to make any difference. The
community which is a recognised organisation by the State Government, has
granted the certificate in categorical terms in favour of the appellant.
It is the community which has the final say as far as acceptance is
concerned, for it accepts the person, on reconversion, and takes him within
its fold. Therefore, we are inclined to hold that the appellant after
reconversion had come within the fold of the community and thereby became a
member of the scheduled caste. Had the community expelled him the matter
would have been different. The acceptance is in continuum. Ergo, the
reasonings ascribed by the Scrutiny Committee which have been concurred
with by the High Court are wholly unsustainable.
46. Consequently, the appeal is allowed and the judgment and order of the
High Court, findings of the Scrutiny Committee and the orders passed by the
State Government and the second respondent are set aside. The appellant
shall be reinstated in service forthwith with all the benefits relating to
seniority and his caste, and shall also be paid backwages upto 75% within
eight weeks from today. There shall be no order as to costs.
............................................J.
[Dipak Misra]
............................................J.
[V. Gopala Gowda]
New Delhi
February 26, 2015.
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[1] (1976) 3 SCC 411
[2] (2011) 6 SCC 430
[3] (1976) 1 SCC 863
[4] ILR 33 Mad 57
[5] ILR 33 Mad 342; Mad I.J. 49
[6] AIR 1952 Mad. 474
[7] AIR 1940 Mad 513 : ILR 1940 Mad 653 : (1940) 1 MLJ 800
[8] (1984) 2 SCC 91
[9] (1984) 2 SCC 112
[10] ILR 9 Mad 342
[11] 1934 MLJ 389; AIR 1934 Mad 630
[12] (1969) 1 SCR 254
[13] (1971) 1 SCR 49
[14] AIR 1943 Lah 51: 205 IC 290
[15] 1954 SCR 817
[16] (2003) 8 SCC 204
[17] (2004) 3 SCC 429
[18] (1996) 3 SCC 576
[19] (1972) 1 SCC 771
[20] (1995) 3 SCC 221
[21] (1996) 3 SCC 100
[22] AIR 1965 SC 1269
[23] AIR 1965 SC 1557
[24] (1990) Supp SCC 220
[25] (1994) 6 SCC 241
[26] (1988) 2 SCC 602
[27] (2014) 7 SCC 340
[28] (2011) 1 SCC 694
[29] 1944 KB 718
[30] (1989) 2 SCC 754
[31] (1980) 2 SCC 565