PETITIONER:
G. M. ARUMUGAM
Vs.
RESPONDENT:
S. RAJGOPAL & OTHERS
DATE OF JUDGMENT19/12/1975
BENCH:
BHAGWATI, P.N.
BENCH:
BHAGWATI, P.N.
CHANDRACHUD, Y.V.
SARKARIA, RANJIT SINGH
CITATION:
1976 AIR 939 1976 SCR (3) 82
1976 SCC (1) 863
CITATOR INFO :
R 1976 SC1904 (5,6)
E 1984 SC 41 (8)
R 1984 SC 600 (5,6,17,19,21)
ACT:
Constitution (Scheduled Castes) order, 1950, Paras 2
and 3 Adi Dravida, converted to Christianity and reconverted
to Hinduism-If and when could be treated as Adi Dravida.
When conversion affects caste.
Code of Civil Procedure (Act 5 of 1908) s. 11-Res
judicata-Decision about caste of`a candidate in one election
petition if res-judicata when question arises in another
later election.
HEADNOTE:
In the 1967 election to the State Legislative Assembly,
the appellant and the 1st respondent claiming to be Adi
Dravidas, stood as candidates for a seat reserved for
Scheduled Castes. The respondent was declared elected. The
appellant`s election petition challenging the election was
allowed by the High Court. This Court dismissed the
respondent’s appeal holding, (1) that the respondent was
converted to Christianity in 1949, (2) that on such
conversion he ceased to be an Adi Dravida, (3) that he was
reconverted to Hinduism but 4) assuming that membership of a
caste can be acquired on conversion or reconversion to
Hinduism, the respondent had failed to establish that he
became a member of the Adi Dravida caste after reconversion.
In the 1972 elections, the appellant and respondent
again filed their nominations as Adi Dravidas for the seat
reserved for Scheduled Castes. On objection by the
appellant, the Returning officer rejected the nomination of
the respondent on the view that on conversion to
Christianity, he ceased to be an Adi Dravida and that on
reconversion, he could not claim the benefit of the
Constitution (Scheduled Castes) order, 1950. The appellant
was declared elected. The respondent challenged the election
and the High Court held that the question (a) whether the
respondent embraced Christianity in 1949, (b) whether on
such conversion be ceased to be an Adi Dravida, and (c)
whether he was reconverted to Hinduism, were concluded by
the decision of this Court in the earlier case. In fact, the
respondent so conceded on the first two aspects. The High
Court, however, held that the respondent had established
twelve cir circumstances, which happened subsequent to the
earlier election showing that he was accepted into their
fold by the members of the Adi Dravida caste, that he was,
therefore, at the material time, an Adi Dravida professing
Hindu religion as required by paragraphs 2 and 3 of the
Constitution (Scheduled Castes) order, and that therefore,
his nomination was improperly rejected.
Dismissing the appeal to this Court,
^
HELD: (1) The question whether the respondent abandoned
Hinduism and embraced Christianity in 1949 is essentially a
question of fact. The respondent having conceded before the
High Court, that in view of the decision of this Court in
the earlier case, the question did not survive for
consideration and the High Court, having acted on that
concession, the respondent could not be permitted to raise
an argument that the evidence did not establish that he
embraced Christianity in 1949. [89 D-F]
(2) Similarly. the question whether the respondent was
reconverted to Hinduism stands concluded by the decision of
this Court in the earlier case and it must be held that
since prior to January 1967, the respondent was reconverted
to Hinduism, he was, at the material time, professing the
Hindu religion so as to satisfy the requirement of para 3 of
the Constitution (Scheduled Castes) order
[94C-D]
83
(3) The High Court was right in the view that on
reconversion to Hinduism, A the respondent could once again
reconvert to his original Adi Deavida caste if he was
accepted, as such, by the other members of that caste; and
that, in fact, the respondent after his reconversion to
Hinduism, was recognised and accepted as a member of the Adi
Dravida caste by the other members of that community
[97A-B, 98G]
(a) Since a caste is a social combination of person
governed by its rules and regulations, it may, if its rules
and regulations so provide, admit a new B. member just as it
may expel an existing member. The rules and regulations of
the caste may not have been formalised they may not exist in
black and white: they may consist only of practices and
usages. If, according to the practice and usage of the caste
any particular ceremonies are required to be performed for
readmission to the caste, a reconvert to Hinduism would have
to perform those ceremonies if he seeks readmission to the
caste. But, if no rites or ceremonies are required to be
performed for readmission of a person as a member of the
caste, the only thing necessary would be the acceptance of
the person concerned by the other members of the caste. [95
C-F] C
(b) The consistent view taken by the Courts from the
time of the decision in Administrator General of Madras v.
Anandachari (ILR 9 Mad. 466), that is, since 1886, has been
that on reconversion to Hinduism, a person can once again
become a member of the caste in which he was born and to
which he belonged before conversion to another religion if
the members of the caste accept him as a member. 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 re-admit 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 the community is
willing to take him within the fold. [96 C-R]
Nathu v. Keshwaji I.L.R. 26 Bom. 174. Guruswami Nadar
v. Irulappa Konar A.I.R. 1934 Mad. 630 and Durgaprasada Rao
v. Sudarsanaswami, AIR 1940 Mad. 513, referred to.
(c) 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. Therefore, the object
and purpose of the Constitution (Scheduled Castes) order
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. [96 F-97 A]
(d) out of the 12 circumstances relied on by the High
Court, 5 are not of A importance, namely, (1) that the
respondent celebrated tho marriages of his younger brothers
in the Adi Dravida manner; (ii) that the respondent was
looked upon as a peace-maker among the Adi Dravida Hindus of
the locality; (iii) that the funeral ceremonies of the
respondent’s father were performed ” according to the Adi
Dravida Hindu rites; (iv) that he participated in the first
annual death ceremonies of another Adi Dravida; and (v) that
the respondent participated in an All India Scheduled Castes
Conference. The other seven circumstances, however,
establish that the respondent was accepted and treated as a
member of the Adi Dravida community, namely, (1) that he was
invited to lay the foundation stone for the construction of
the wall of an Adi Dravida temple: (ii) that he was asked to
take part in the celebrations connected with an Adi Dravida
temple. (iii) that he was asked to preside at a festival
connected with an Adi Dravida temple; (iv) that he was a
member of the Executive Committee of the Scheduled Caste
Cell in the organisation of the Ruling
84
Congress; (v) that his children were registered in school as
Adi Dravidas and that even the appellant had given a
certificate that the respondent’s son was an Adi Dravida.
(vi) that he was treated as a member of the Adi Dravida
caste and was never disowned by the members of the caste;
and (vii) that a Scheduled Caste Conference was held in the
locality with the object of re-admitting the respondent into
the fold of Adi Dravida Caste and that not only was the
purificatory ceremony performed on him at the Conference
with a view to clearing the doubt which had been cast on
his membership of the Adi Dravida caste by the earlier
decision of this Court, but also an address was presented to
him felicitating him on the occasion. [97 C-98 F]
(4)(a) The question whether on conversion to
Christianity the respondent ceased to be a member of the Adi
Dravida caste is a mixed question of law and fact and a
concession made by him in the High Court on that question
does not preclude him from re-agitating it in the appeal
before this Court. r[89 G-H]
(b) Further, the decision given in the earlier case
relating to the 1967 elections on the basis of the evidence
led in that case, cannot operate as res judicata ill the
present case which relates to the 1972-election and where
fresh evidence has been adduced by the parties and moreover,
when all the parties in the present case are not the same as
those in the earlier case. [89 H-90 B]
(c) When a ‘caste’ is referred to in modern times, the
reference is not to the 4 primary castes. but to the
innumerable castes and sub-castes that prevail in Hindu
society. The general rule is that conversion operates as an
expulsion from the caste, that is, a convert ceases to have
any caste, because, caste is pre-dominantly 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 it is not an
invariable rule that whenever a person renounces Hinduism
and embraces another religious faith, he automatically
ceases to be a member of the caste in which he was born and
to which he be longed prior to his conversion. 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 Hinduism 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 that other religion ca 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. What is, therefore, material to
consider is how the caste looks at the question of
conversion. Does it outcaste or excommunicate the convert or
does it still treat him as continuing within its fold
despite his conversion. If the convert desires and intends
to continue as a member of the caste and the caste also
continues to treat him as a member notwithstanding his
conversion, he would continue to be a member of the caste,
and the views of the new faith hardly matter. Paragraphs 2
and 3 of the Constitution (Scheduled Castes) order. read
together. also recognise THAT there may be castes specified
as Scheduled Castes which comprise persons belonging to a
religion different from Hindu or Sikh religion. In such
castes, conversion of a person from Hinduism cannot have the
effect of putting him out of the caste, though. by reason of
para 37 he would be deemed not to be a member of the
Scheduled Caste. [90 F; 91 B-G; 93 C-E, F-H]
Cooppoosami Chetty v. Duraisami Chetty, I.L.R. 33 Mad.
67; Muthusami v. Masilamani, I.L.R. 33 Mad. 342. G. Michael
v. S. Venkateswaran. AIR 1952 Mad. 474. Kothapalli
Narasayya v. Jammana Jogi, 30 E.L.R. 199; K. Narasimha
Reddy v. G. Bhupathi, 31 E.L.R. 211; Gangat v. Returning
Officer, [1975
85
1. S.C.C. 589 and Chatturbhuj Vithaldas Jasani v. Moreshwar
Prasahram, [1954] A S.C.R. 817, referred to.
[It would therefore, prima facie, seem that on
conversion to Christianity, the respondent did not
automatically cease to belong to the Adi Dravida caste; but
in view of the decision that on reconversion he was
readmitted to the Adi Dravida faith, no final opinion was
expressed on this point.] [94 B-C]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1171 of
1973. B
From the judgment and order dated the 19th July, 1973
of the Mysore High Court at Bangalore in Election Petition
No. 3 of 1972.
M. N. Phadke, M/s. N. M. Ghatate and S. Balakrishnan
for the appellant.
A. K. Sen, G. L. Sanghi, M/s. M. Veerappa and Altaf
Ahmed for the respondents.
The Judgment of the Court was delivered by
BHAGWATI, J.-This appeal under s. 116-A of the
Representation of People Act, 1951 is directed against an
order made by the High Court of Mysore setting aside the
election of the appellant on the ground that the nomination
paper of the 1st respondent was improperly rejected by the
Returning officer. This litigation does not stand in
isolation. It has a history and that is necessary to be
noticed in order to appreciate the arguments which have been
advanced on behalf of both parties in the appeal.
The appellant and the 1st respondent have been
opponents in the electoral battle since a long time. The
constituency from which they have been standing as
candidates is 68 KGF Constituency for election to the Mysore
Legislative Assembly. They opposed each other as candidates
from this constituency in 1967 General Election to the
Mysore Legislative Assembly. Now, the seat from this
constituency was a seat reserved for Scheduled Castes and,
therefore, only members of Scheduled Castes could stand as
candidates from this constituency. The expression “Scheduled
Castes” has a technical meaning given to it by cl.(24) of
Art. 366 of the Constitution and it means “such castes,
races or tribes or parts Of or groups within such castes or
tribes as are deemed under Art. 341 to be Scheduled Castes
for the purpose of the Constitution”. The President, in
exercise of the power conferred upon him under Art. 341
issued the Constitution (Scheduled Castes) order, 1950.
Paragraphs 2 and 3 of. this order are material and, since
the amendment made by Central Act 63 of 1956, they are in
the following terms:
“2. Subject to the provisions of this order, the
castes, races or tribes or parts of, or groups within
castes or tribes specified in Part I to XIII of the
Schedule to this order shall, in relation to the States
to which those parts respectively relate, be deemed
to be scheduled castes so far as regards members
thereof resident in the localities specified in
relation to them in those Parts of that Schedule.
86
3. Notwithstanding anything contained in paragraph
2, no person who professes a religion different from
the Hindu or the Sikh religion shall be deemed to be a
member of a Scheduled Castes.”
The Schedule to this order in Part VIII sets out ”the
castes, races or tribes or parts of or groups within castes
or tribes” which shall in the different areas of the State
of Mysore be deemed to be Scheduled Castes. We are concerned
with cl. (1) of Part VIII as the area of 68 KGF Constituency
is covered by that clause. One of the castes specified there
is Adi Dravida and that caste must, therefore, for the
purpose of election from 68 KGF Constituency, be deemed to
be a Scheduled Caste. The appellant was admittedly, at the
date when he Filed his nomination paper for the 1967
election from 68 KGF Constituency, an Adi Dravida professing
Hindu religion and was consequently qualified to stand as a
candidate for the reserved seat from this constituency. The
1st respondent also claimed to be an Adi Dravida professing
Hindu religion and on this basis, filed his nomination from
the same constituency. The appellant and the 1st respondent
were thus rival candidates-in fact they were the only two
contesting candidates-r-and in a straight contest, the 1st
respondent defeated the appellant and was declared elected.
The appellant thereupon filed election petition No. 4
of 1967 in the Mysore High Court challenging the election of
the 1st respondent on the ground that the 1st respondent was
not an Adi Dravida professing Hindu religion at the date
when he filed his nomination and u-as, therefore, not
qualified to stand as a candidate for the reserved seat from
68 KGF Constituency. The Mysore High Court, by an order
dated 30th August, 1967, held that the 1st respondent was
converted to Christianity in 1949 and on such conversion, he
ceased to be an Adi Dravida and, therefore, at the material
date, he could not be said to be a member of a Scheduled
Caste, nor did he profess Hindu religion and he was
consequently not eligible for being chosen as a candidate
for election from a reserved constituency. The 1st
respondent being aggrieved by the order setting aside his
election, preferred C.A. No. 1553 of 1967 to this Court
under s. 116A of the Representation of People Act, 1951.
This Court addressed itself to four question, namely, first,
whether the 1st respondent had become a convert to
Christianity in 1949; secondly, whether, on such conversion,
he ceased to be a member of Adi Dravida caste; thirdly,
whether he had reverted to Hinduism and started professing
Hindu religion at the date of filing his nomination, and
lastly, whether on again professing the Hindu religion, he
once again became a member of Adi Dravida caste. So far as
the first question was concerned, this Court, on a
consideration of the evidence, held that the 1st respondent
was converted to Christianity in 1949 and in regard to the
second question, this Court observed that it must be held
that when the 1st respondent embraced Christianity in 1949,
he ceased to belong to Adi Dravida caste. This Court then
proceeded to consider the third question and held that
having regard to the seven circumstances enumerated in the
judgment, it was clear that at the relevant time in 1967.
that is in January-February 1967, the 1st respondent was
professing
87
Hindu religion. That led to a consideration of the last
question as to the effect of reconversion of the 1st
respondent to Hinduism. This Court referred to a number of
decisions of various High Courts which laid down the
principle that reconversion to Hinduism, a person can
become a member of the same caste in which he was born and
to which he belonged before having been converted to another
religion” , and pointed out that the main basis on which
these decisions proceeded was that “if the members of the
caste accept the reconversion of a person as a member,`
it should be held that he does become a member of that
caste, even though he may have lost membership of that caste
on conversion to another religion”. This Court, however,
did not consider it necessary to express any opinion on the
correctness of these-decisions, as it found that even if the
principle enunciated in these decisions was valid, the 1st
respondent did not give evidence to t satisfy the
requirements laid down by this principle and “failed to
establish that he became a member of the Adi Dravida Hindu
caste after he started professing the Hindu religion”. This
Court observed that “whether the membership of a caste can
be acquired by con version to Hinduism or after reconversion
to Hinduism is a question on which we have refrained from
expressing our opinion, because on the assumption that it
can be acquired, we have arrived at the conclusion that the
appellant”; that is, the 1st respondent in the present ,
case must fail in this appeal”. This Court accordingly
upheld the decision of the High Court and dismissed the
appeal.(1)
This decision was given by a Bench consisting of two
judges on 3rd May, 1968. In the three or four years that
followed certain events happened to which we shall refer a
little later. Suffice it to state for the present that,
according to the 1st respondent, these events showed that
the members of the Adi Dravida caste accepted him as a
member and regarded him as belonging to their fold. The next
General Election to the Mysore Legislative Assembly took
place in 1972. There was again a contest from 68 KGF
Constituency which was reserved for candidates from
Scheduled Castes. The appellant filed his nomination as a
candidate from this constituency and so did the 1st
respondent. The nomination of the 1st respondent was,
however, objected by the appellant on the ground that the
1st respondent was not an Adi Dravida professing Hindu
religion at the date of filing his nomination and he was,
therefore, not qualified to stand as a candidate for the
reserved seat from this constituency. The 1st respondent
rejoined by saying that he was never converted to
Christianity and that in any event, even if it was held that
he had be” come a Christian, he was reconverted to Hinduism
since long and was accepted by the members of the Adi
Dravida caste as belonging to their fold and was, therefore,
an Adi Dravida professing Hindu religion at the material
date and hence qualified to stand as a candidate. The
Returning officer, by an order dated 9th February, 1972 up
held the objection of the appellant and taking the view
that, on con version to Christianity, the 1st respondent
ceased to be an Adi Dravida and thereafter on reconversion,
he could not claim the benefit of the Constitution
(Scheduled Castes) order, 1950, the Returning officer
(1) S. Rajagopal v. C.M. Arumugam, [1959] 1 S.C.R. 254.
7-L390 SCI/76
88
rejected the nomination of the 1st respondent. The election
thereafter took place without the 1st respondent as a
candidate and the appeliant, having obtained the highest
number of votes, was declared elected.
The 1st respondent filed Election Petition No. 3 of
1972 in the High Court of Mysore challenging the election of
the appellant on the ground that the nomination of the
1st respondent was improperly rejected. This was a ground
under s. 100(1)(c) of the Act and if well founded, it would
be sufficient, without more, to invalidate the election. The
point which was, therefore, seriously debated before the
High Court was whether the nomination of the 1st respondent
was improperly. rejected and that in its turn depended on
the answer to the question whether the 1st respondent was an
Adi Dravida professing Hindu religion at the date of filing
his nomination. There were four aspects bearing on this
question which arose for consideration and they were broadly
the same as in the earlier case (supra)., namely, whether
the 1st respondent embraced Christianity in 1949, whether on
his conversion to Christianity he ceased to belong to Adi
Dravida caste, whether he was reconverted to Hinduism and
whether on such reconversion, he was accepted by the members
of the Adi Dravida caste as belonging to their fold. So far
as the first three aspects were concerned, the High Court
took the view that they must be taken to be concluded by the
decision of this Court in the earlier case (supra) and the
discussion of the question must, therefore, proceed on the
established premise that the Ist respondent was born an Adi
Dravida Hindu, he was converted to Christianity in 1949 and
on such conversion he lost his capacity as an Adi Dravida
Hindu and at least by the year 1967, he had once again
started professing Hindu religion. Visa-vis the fourth
aspect, the High Court observed: “It is settled law that
reconversion to Hinduism does not require any formal
ceremony or rituals or expiratory ceremonies, that a
reconvert to Hinduism can revert to his original Hindu caste
on acceptance by the members of that caste and that the
quantum and degree of proof of acceptance depends on the
facts and circumstances of each case, according to the
established customs prevalent in a particular locality
amongst the caste there”, and on this view of the law, the
High Court proceeded to examine the evidence led on behalf
of the parties and pointed out that this evidence
established twelve important circumstances subsequent to
January-February 1967 which clearly showed that the 1st
respondent was accepted into their fold by the members of
the Adi Dravida caste and he was, therefore, at the material
time, an Adi Dravida professing Hindu religion as required
by Paragraphs 2 and 3 of the Constitution (Scheduled Caste)
order, 1950. The High Court, in this view, held that the
nomination of the 1st respondent was improperly rejected by
the Returning officer and that invalidated the election
under s. 100(1)(c) of the Act. The High Court accordingly
set aside the election of the appellant and declared it to
be void. This judgement of the High Court is impugned in the
present appeal under s. 116A of the Act.
Now before we deal with the contentions urged on behalf
of the appellant in support of the appeal, it would be
convenient first to
89
refer to two grounds which were held by the High Court
against the A 1st respondent. The 1st respondent contended
that these two grounds were wrongly decided against him and
even on these two grounds, he was entitled to claim that, at
the material time, he was an Adi Dravida professing Hindu
religion. The first ground was that he was never converted
to Christianity and the second was, that, on such
conversion, he did not cease to be an Adi Dravida. The
appellant disputed the claim’ of the 1st respondent to
agitate these two grounds in the appeal before us. The
reason given was that the 1st respondent had not pressed
them in the course of the arguments before the High Court
and had conceded that, in view of the judgment of this Court
in the earlier case, Issue No. 3, which raised the question:
“Whether the petitioner having abandoned Hinduism and
embraced Christianity in the year 1949 had lost the
membership of the Adi Dravida Hindu caste and incurred the
disqualification under Paragraph of the Constitution
(Scheduled Castes) Order, 1950″ and “Is this issue concluded
against the petitioner by virtue of the judgment of the High
Court in Civil Appeal 1553 of 1967″, did not survive for
consideration. There can be no doubt that so far as the
first of these two grounds is concerned, there is force in
the objection raised on behalf of the appellant.
The question whether the 1st respondent abandoned
Hinduism and embraced Christianity in 1949 is essentially a
question of fact and if, at the stage of the arguments
before the High Court, the 1st respondent conceded that, in
view of the decision of this Court in the earlier case, this
question did not survive for consideration and the High
Court, acting on the concession of the 1st respondent,
refrained from examining the question on merits and
proceeded on the basis that it stood concluded by the
decision of this Court in the earlier case, how could the
1st respondent be now permitted to reagitate this question
at the hearing of the appeal before this Court ? The 1st
respondent must be held bound by the concession made by him
on a question of fact before the High Court. We cannot,
therefore, permit the 1st respondent to raise an argument
that the evidence on record does not establish that he
embraced Christianity in 1949. We must proceed on the basis
that he was converted to Christianity in that year
The position is, however, different when we turn to the
question whether, on conversion to Christianity, the 1st
respondent ceased to be a member of the Adi Dravida caste.
That question is a mixed question of law and fact and we do
not think that a concession made by the 1st respondent on
such a question at the stage of argument before the High
Court, can preclude him from reagitating it in the appeal
before this Court, when it formed the subject matter of an
issue before the High Court and full and complete evidence
in regard to such issue was led by both parties. It is true
that this Court held in the earlier case that, on embracing
Christianity in 1949, the 1st respondent ceased to be a
member of the Adi Dravida caste, but this decision given in
a case relating to 1967 General Election on the basis of the
evidence led in that case, cannot be res judicata in the
present case which relates to 1972 General Election and
where fresh evidence
90
has been adduced on behalf of the parties, and more so, when
all the parties in the present case are not the same as
those in the earlier case. It is, therefore, competent to us
to consider whether, on the evidence on record in the
present case, it can be said to have been established that,
on conversion to Christianity in 1949, the 1st respondent
ceased to belong to Adi Dravida caste.
It is a matter of common knowledge that the institution
of caste is a peculiarly Indian institution. There is
considerable controversy amongst scholars as to how the
caste system originated in this country. It is not necessary
for the purpose of this appeal to go into this highly
debatable question. It is sufficient to state that
originally there were only four main castes, but gradually
castes and sub-castes multiplied as the social fabric
expanded with the absorption of different groups of people
belonging to various cults and professing different
religious faiths. The caste system in its early stages was
quite elastic but in course of time it gradually hardened
into a rigid framework based upon heredity. Inevitably it
gave rise to graduation which resulted in social inequality
and put a premium on snobbery. The caste system tended to
develop, as it were, group snobbery, one caste looking down
upon another. Thus there came into being social hierarchy
and stratification resulting in perpetration of social and
economic injustice by the so-called higher castes on the
lower castes. It was for this reason that it was thought
necessary by the Constitution makers to accord favoured
treatment to the lower castes who were at the bottom of the
scale of social values and who were afflicted by social and
economic disabilities and the Constitution makers
accordingly provided that the President may specify the
castes and these would obviously be the lower castes which
had suffered centuries of oppression and exploitation-which
shall be deemed to be Scheduled Castes and laid down the
principle that seats should be reserved in the legislature
for the Scheduled Castes as it was believed and rightly,
that the higher castes would not properly represent the
interest of these lower castes.
But that immediately raises the question: what is a
caste? When we speak of a caste, we do not mean to refer in
this context to the four primary castes but to the
multiplicity of castes and sub-castes which disfigure the
Indian social scene. “A caste”, as pointed out by the High
Court of Madras in Cooppoosami Chetty v. Duraisami Chetty
(1) “is a voluntary association of persons for certain
purposes.” It is a well defined yet fluctuating group of
persons governed by their own rules and regulations for
certain internal purposes. Sir H. Risley has shown in his
book on People of India how castes are formed based not only
on community of religion, but also on community of
functions. It is also pointed out by Sankaran Nair, J., in
Muthusami v. Masilamani(2): “a change in the occupation
sometimes creates a new caste. A common occupation sometimes
combines members of different castes into a distinct body
which becomes a new caste. Migration to another place makes
sometimes a new caste”. A caste is more a social combination
than a religious Group. But since, as
(1) I. L. R. 33 Mad. 67. (2) l. L. R. 33 Mad. 342.
91
pointed out by Rajamannar, C.J., in C. Michael v. S.
Venkateswaran (1), ethics provides the standard for social
life and it is founded ultimately on religious beliefs and
doctrines, religion is inevitably mixed up with social
conduct and that is why caste has become an integral feature
of Hindu society. But from that it does not necessarily
follow as an invariable rule that whenever a person
renounces Hinduism and embraces another religious faith, he
automatically ceases to be a member of the caste in which he
was born and to which he belonged prior to his conversion.
It is no doubt true; and there we agree with the Madras High
Court in C. Michael’s case (supra) 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 advanced before the Madras High Court
in G. Michael’s case (supra) “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.
The High Court of Andhra Pradesh also affirmed in
Kothapalli Narasayya v. Jammana Jogi(2) that
“notwithstanding conversions, the converts whether an
individual or family or group of converts, may like to be
governed by the law by which they were governed before they
became converts-and the community to which they originally H
(1) A.I.R. 1952 Mad. 474. (2) 30 L. R. 1.
92
belonged may also continue to accept them within their fold
notwithstanding conversion”, and proceeded to add:
“While tendency to divide into sects and division
to form new sects with their own religious and social
observances is a characteristic feature of Hinduism-it
should be remembered that sects were formed not
only on community of religions but also community of
functions. Casteism which has taken deep roots in
Hinduism for some reason or other may not therefore
cease its existence even after conversion. May be that
the religion or faith to which conversion takes place,
on grounds of policy or otherwise, does not take
exception to this social order which does not interfere
with its spiritual or theological aspect which is the
main object of the religion. That is why we find
several members of lower castes converted to
Christianity in Madras State-still continue to the
members of their castes-Thus a conversion does not
necessarily result in extinguishment of caste and
notwithstanding conversion, a convert may enjoy the
privileges social and political by virtue of his being
a member of the community with its acceptance.”
The elected candidate in this case was held to continue to
belong to the Mala Andhra Caste which was a Scheduled Caste,
despite his conversion to Christianity. It was again
reiterated by the High Court of Andhra Pradesh in a
subsequent decision reported in K. Narasimha Reddy v. G.
Bhupathi(1) that survival of caste after conversion to
Christianity is not an unfamiliar phenomenon in this part
of the country and it was held that, even after his
conversion to Christianity, the elected candidate, who
belonged to Bindla caste, specified as a Scheduled Caste,
continued to retain his caste, since he never abjured his
caste nor did his caste people ostracize or excommunicate
him. The caste system is indeed so deeply ingrained in the
Indian mind that, as pointed out by this Court in Ganpat v.
Returning Officer ,(2) “for a person who has grown up in
Indian society, it is very difficult to get out of the coils
of the caste system” and, therefore, even conversion to
another religion like Christianity, has in some cases no
impact on the membership of the caste and the other members
continue to regard the convert as still being a member of
the caste. This Court pointed out in Ganpat`s case (supra)
that “to this day one sees matrimonial advertisements which
want a Vellala Christian bride or Nadar Christian bride”
which shows that Vellala and Nadar comprise both Hindus and
Christians.
lt seems that the correct test for determining this
question is the one pointed out by this Court in Chatturbhuj
Vithaldas Jasani v. Moreshwar Prasahram.(J) Bose, J.,
speaking on behalf of the Court in this case pointed out
that when a question arises whether conversion operates
as a break away from the caste “what we`have to
(1) 31E.L.R.211. (2) [1975] 1 S.C.C. 589.
(3) [1954] S.C.R. 817.
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determine are the social and political consequences of such
conversion h that, we feel, must be decided in a common
sense practical way rather than on theoretical and
theocratic grounds”. The learned Judge then proceeded to
add:
“Looked at from the secular point of view, there
are “ three factors which have to be considered: (1)
the reactions of the old body, (2) the intentions of
the individual himself and (3) the rules of the new
order. If the old order is tolerant of the new faith
and sees no reason to outcaste or ex-communicate the
convert and the individual himself desires and intends
to retain his old social political ties, the conversion
is only nominal for all practical purposes and when we
have to consider the legal and political rights of the
old body, the views of the new faith hardly matter.”
What is, therefore, material to consider is how the caste
looks at the question of conversion. Does it outcaste or ex-
communicate the convert or does it still treat him as
continuing within its fold despite his conversion ? If the
convert desires and intends to continue as a member of the
caste and the caste also continues to treat him as a member,
notwithstanding his conversion, he would continue to be a
member of the caste and, as pointed out by this Court “the
views of the new faith hardly matter”. This was the
principle on which it was decided by the Court in
Chatturbhuj Vithaldas Jasani’s case (supra) that Gangaram
Thaware, whose nomination as a Scheduled Caste candidate was
rejected by the Returning officer, continued to be a Mahar
which was specified as a Scheduled Caste, despite his
conversion to the Mahanubhav faith.
Paragraphs 2 and 3 of the Constitution (Scheduled
Castes) order, 1950 also support the view that even after
conversion, a person may continue to belong to a caste which
has been specified in the Schedule to that order as a
Scheduled Caste. Paragraph 2 provides that the castes
specified in the Schedule to the order shall be deemed to
be Scheduled Castes but Paragraph 3 declares that,
notwithstanding anything contained in Paragraph 2, that is,
notwithstanding that a per son belongs to a caste specified
as a Scheduled Caste, he shall not be deemed to be a member
of the Scheduled Caste, if he profess a religion different
from Hindu or Sikh religion. Paragraphs 2 and 3 read
together thus clearly recognise that there may be castes
specified as Scheduled Castes which comprise persons
belonging to a religion different from Hindu or Sikh
religion and if that be so, it must follow a fortiori, that
in such castes, conversion of a person from Hinduism cannot
have the effect of putting him out of the caste. though by
reason of Paragraph 3 he would be deemed not to be a member
of a Scheduled Caste. It cannot, therefore, be laid down as
an absolute rule uniformly applicable in all cases that
whenever a member of a 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 a member of the caste, but that is not an
invariable rule. It
94
would depend on the structure of the caste and its rules and
regulations. There are castes, particularly in South India,
where this consequence does not follow on conversion, since
such castes com prise both Hindus and Christians. Whether
Adi Dravida is a caste which falls within this category or
not is a question which would have to be determined on the
evidence in this case. There is on the record evidence of
Kakkan (PW 13) J. C. Adimoolam (RW 1) and K. P Arumugam (RW
8), the last two being witnesses examined on behalf of the
appellant, which shows. that amongst Adi Dravidas, there are
both Hindus and Christians and there are intermarriages
between them. It would, therefore, prima facie seem that, on
conversion to Christianity, the 1st respondent did not
cease to belong to Adi Dravida caste. But in the view we are
taking as regards the last contention, we do not think it
necessary to express any final opinion on this point.
The third question in controversy between the parties
was whet her the 1st respondent was reconverted to Hinduism.
This question stands concluded by the decision of this Court
in the earlier case and it must be held, for the reasons set
out in that decision, that at any rate since prior to
January-February 1967, the 1st respondent was reconverted to
Hinduism and, therefore, at the material time, he was
professing the Hindu religion, so as to satisfy the
requirement of Paragraph 3 of the Constitution (Scheduled
Castes) order, 1950.
The last contention, which formed the subject matter of
controversy between the parties, raised the issue whether on
reconversion to Hinduism, the 1st respondent could once
again become a member of the Adi Dravida caste, assuming
that he ceased to be such on conversion to Christianity. The
argument of the appellant was that once the 1st respondent
renounced Hinduism and embraced Christianity, he could not
go back to the Adi Dravida caste on reconversion to
Hinduism. He undoubtedly became a Hindu, but he could no
longer claim to be a member of the Adi Dravida caste. This
argument is not sound on principle and it also runs
counter to a long line of decided cases. Ganapathi Iyer, a
distinguished scholar and jurist, pointed out as far back as
1915 in his well known treatise on ‘Hindu Law’: -
“- caste is a social combination, the members of
which are enlisted by birth and not by enrolment.
People do not join castes or religious fraternities as
a matter of choice (in one respect); they belong to
them as a matter of necessity ; they are born in their
respective castes or sects. lt cannot be said, however,
that membership by caste is deter. mined only by birth
and not by anything else,” (emphasis supplied)
Chandravarkar, J., observed in Nathu v. Keshwaji(1): “It is
within the power of a caste to admit into its fold men not
born in it as it is within the power of a club to admit
anyone it likes as its member. To hold that the membership
of a caste is determined by birth is to
(1) I. L. R. 26.Bom. 174.
95
hold that the caste cannot, if it likes, mix with another
caste and form both into one caste. That would be striking
at the very root of caste autonomy.” Sankaran Nair, J., made
observations to the same effect in Muthusami`s case (supra)
and concluded by saying: “It is, of course, open to a
community to admit any person and any marriage performed
between him and any member would in my ” opinion, be valid”.
Ganapathi Iyer, after referring to these two decisions,
proceeded to add: Of course it is open to a person to change
his caste by entering another caste if such latter caste
will admit him-in this sense there is nothing to prevent a
person from giving up his caste or community just as the
caste may re-admit an expelled person or an outcasted person
if he conforms to the caste observances.” Since a 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 rules and regulations of the caste may not have
been formalised.: they may not exist in black and white:
they may consist only of practices and usages. If, according
to the practices and usages of the caste any particular
ceremonies are required to be per formed for readmission to
the caste, a reconvert to Hinduism would have to perform
those ceremonies if he seeks readmission to the caste. That
is why Parker, J., dealing with the possible readmission of
a reconvert to Brahmanism observed in Administrator-General
of madras v. Anandchari(1) :
“His conversion to Christianity according to the
Hindu law, rendered him an outcaste and degraded. But
according to that law, the degradation might have
been atoned for, and the convert readmitted to his
status as a Brahmin, had he at any time during his life
renounced Christianity and performed the rites of
expiation enjoined by his caste.”
The rites of expiation were referred to by the learned Judge
because they were enjoined by the Brahmin caste to which the
reconvert wanted to be readmitted. But if no rites or
ceremonies are required to be performed for readmission of a
person as a member of the caste, the only thing necessary
for eradication would be the acceptance of the person
concerned by the other members of the caste. This was
pointed out by Varadachariar, J., in Gurusami Nadar v.
Irulappa Konar(2); where after referring to the aforesaid
passage from Administrator-General of Madras v. Anandchari
(supra), the learned Judge said:
“The language used in 9 Mad 466 merely refers to
the expiatory ceremonies enjoined by the practice of
the community in question; and with reference to the
class of people we are now concerned with, no
suggestion has anywhere been made in the course of the
evidence that any particular expiatory ceremonies are
observed amongst them. No particular ceremonies are
prescribed for them by the Smriti writers nor have
they got to perform any Homas. One has therefore only
to look at the sense of the community and
(1) I. L. R. 9 Mad. 466. (2) A. I. R. 1934 Mad. 630 .
96
from that point of view it is of particular
significance that the community was prepared to receive
Vedanayaga and defendant 5 as man and wife and their
issue as legitimate.”
These observations of Varadachariar, J., were approved by
Mockett, J., in Durgaprasada Rao v. Sudarsanaswami(1) and he
pointed out that in the case before him, there was no
evidence of the existence of any ceremonial in Vada Baligi
fishermen community of Gopalpur for readmission to that
community. Krishnaswami Ayyangar, J., also observed in the
same case that “in matters affecting the well being or
composition of a caste, the caste itself is the supreme
judge”. (emphasis supplied). The same view has also been
taken in a number of decisions of the Andhra Pradesh and
Madras High Courts in election petitions arising out of 1967
General Election. These decisions have been set out in the
judgment of this Court in Rajagopal v. C. R. Arumugam
(supra).
These cases show that the consistent view taken in this
country from the time Administrator-General of Madras v.
Anandachari (supra) was decided, that is, since 1886 has
been that on reconversion to Hinduism, a person can once
again become a member of The caste in which he was born and
to which he belonged before con version to another religion,
if the members of the caste accept him as a member. 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 pre pared 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
(1) A.I.R. 1940 Mad. 513.
97
reconversion to Hinduism, a person can once again become a
member of the Scheduled Caste to which he belonged prior to
his conversion. We accordingly agree with the view taken by
the High Court that on reconversion to Hinduism, the 1st
respondent could once again revert to his original Adi
Dravida caste if he was accepted as such by the other
members of the caste.
That takes us to the question whether in fact the 1st
respondent was accepted as a member of the Adi Dravida caste
after his reconversion to Hinduism. This Court in the
earlier decision between the parties found that the 1st
respondent had not produced evidence to show that after his
reconversion to Hinduism, any step had been taken by the
members of the Adi Dravida caste indicating that he was
being accepted as a member of that caste. The 1st
respondent, therefore, in the present case, led considerable
oral as well as documentary evidence tending to show that
subsequent to January-February 1967, the 1st respondent had
been accepted as a member of the Adi Dravida caste. The High
Court referred to twelve circumstances appearing from the
evidence and held on the basis of these twelve
circumstances, that the Adi Dravida caste had accepted the
1st respondent as its member and he accordingly belonged to
the Adi Dravida caste at the material time. Now, out of
these twelve circumstances, we do not attach any importance
to the first circumstance which refers to the celebrations
of the marriages of his younger brother Govindaraj and
Manickam by the 1st respondent in the Adi Dravida manner,
because it is quite natural that if Govindaraj and Manickam
were Adi Dravida Hindus, their marriages would be celebrated
according to Adi Dravida rites and merely because the 1 st
respondent, as their elder brother, celebrated their
marriages, it would not follow that he was also an Adi
Dravida Hindu. The second circumstance that the 1st
respondent was looked upon as a peacemaker among the Adi
Dravida Hindus of K.G.F. cannot also be regarded as of much
significance, because, if the Ist respondent was a
recognised leader, it is quite possible that the Adi Dravida
Hindus of K.G.F. might go to him for resolution of their
disputes, even though he himself might not be an Adi Dravida
Hindu. But the third, fourth and fifth circumstances
are of importance, because, unless the 1st respondent was
recognised and accepted as an Adi Dravida Hindu, he would
not have been invited to lay the foundation stone for the
construction of the new wall of the temple of Jambakullam,
which was essentially a temple of Adi Dravida Hindus, nor
would he have been requested to participate in the Maroazhi
Thiruppavai celebration at the Kannabhiran Temple situate at
III Line, Kennedy Block, K.G.F., which was also a temple
essentially maintained by the Adi Dravida Hindus and
equally, he would not have been invited to preside at the
Adi Krittikai festival at Mariamman Temple in I, Post office
Block, Marikuppam, K.G.F. where the devotees are Adi
Dravidas or to start the procession of the Deity at such
festival. These three circumstances are strongly indicative
of the fact that the 1st respondent was accepted and treated
as a member by the Adi Dravida community. So also does
the sixth circumstance that the 1st respondent was a member
of the Executive Committee of the Scheduled Caste Cell in
the organisation of the Ruling Congress indicate in the same
direction. The
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seventh and eighth circumstances are again of a neutral
character The funeral ceremonies and obsequies of the father
of the 1st respondent would naturally be performed
according to the Adi Dravida Hindu rites if he was an Adi
Dravida Hindu and that would not mean that the 1st
respondent was also an Adi Dravida Hindu. Similarly, the
fact that the 1st respondent participated in the first
annual ceremonies of the late M. A. Vadivelu would not
indicate that the 1st respondent was also an Adi Dravida
Hindu like late M. A. Vadivelu. But the ninth circumstance
is again very important. It is significant that the children
of the 1st respondent were registered in the school as Adi
Dravida Hindus and even the appellant himself issued a
certificate “ stating that R. Kumar, the son of the 1st
respondent, was a Scheduled Caste Adi Dravida Hindu. The
tenth circumstance that the first respondent participated
in the All India Scheduled Castes Conference at
New Delhi on 30th and 31st August, 1968 may not be regarded
as of any particular importance. It would merely indicate
his intention and desire to regard himself as a member of
the Adi Dravida Caste. The eleventh circumstance is,
however, of some importance, because it shows that
throughout the 1st respondent was treated as a member of the
Adi Dravida Caste and he was never disowned by the members
of that caste. They always regarded him as an Adi Dravida
belonging to their fold. But the most important of all these
circumstance is the twelfth, namely, the Scheduled Caste
Conference held at Skating Rink, Nundydroog Mine, K.G.F. On
11th August. 1968. The High Court has discussed the evidence
in regard to this conference in some detail. We have
carefully gone through the evidence of the witnesses on this
point, but we do not find anything wrong in the appreciation
of their evidence by the High Court. We are particularly
impressed by the evidence of Kakkan (PW 13). The cross-
examination of J. C. Adimoolam (RW 1) is also quite
revealing. We find ourselves completely in agreement with
the view taken by the High Court that this conference,
attended largely by Adi Dravida Hindus, was held on 11th
August, 1968 inter alia with the object of re-admitting the
1st respondent into the fold of Adi Dravida caste and not
only was a purificatory ceremony performed on the 1st
respondent at this conference with a view to clearing the
doubt which had been cast on his membership of the Adi
Dravida caste by the decision of this Court in the earlier
case but an address Ex. P-56 was also presented to the 1st
respondent felicitating him on this occasion.
It is clear from these circumstances, which have been
discussed and accepted by us, that after his reconversion
to Hinduism, the 1st respondent was recognised and accepted
as a member of the Adi Dravida caste by the other members of
that community. The High Court was, therefore, right in
coming to the conclusion that at the material time the 1st
respondent belonged to the Adi Dravida caste so as to fall
within the category of Scheduled Castes under Paragraph 2 of
the Constitution (Scheduled Castes) order, 1950.
In the result the appeal fails and is dismissed with
costs.
V.P.S. Appeal dismissed.
99