Page No.1
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4870 OF 2015
Mohammad Sadique … Appellant
Versus
Darbara Singh Guru … Respondent
J U D G M E N T
Prafulla C. Pant, J.
This appeal, preferred under Section 116A of The
Representation of the People Act, 1951, is directed against
judgment and order dated 07.04.2015, passed by High Court of
Punjab and Haryana at Chandigarh, in EP No. 1/2012, whereby
Election Petition filed by respondent has been allowed, and
election of the appellant from 102-Bhadaur (Scheduled Caste)
Assembly Constituency in Punjab, has been set aside.
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2. Brief facts of the case are that General Elections were held
to Punjab Legislative Assembly, in January, 2012. Last date of
filing of nomination papers was 12.01.2012. Date for scrutiny of
nomination papers was 16.01.2012. And polling was held on
30.01.2012. The counting of votes was done on 06.03.2012, in
which appellant was declared elected.
3. Election Petitioner (respondent herein) filed his nomination
papers as a candidate of Shiromani Akali Dal. The appellant was
a candidate from Indian National Congress. There were other 17
candidates in the fray. Seven independent candidates withdrew
their candidature, as such, only 12 were left in the field. Since
Bhadaur constituency was reserved for Scheduled Castes, only
the candidates belonging to Scheduled Castes were qualified to
contest the election under Section 5 (a) of The Representation of
the People Act, 1951 (hereinafter “RP Act”).
4. It appears that on 14.01.2012, one Badal Singh complained
to the Returning Officer, Bhadaur Constituency, alleging that
appellant Mohammad Sadique was a muslim, and as such did
not belong to any Scheduled Caste. He also filed Civil Writ
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Petition No. 985/2012 before the High Court which was
dismissed as not pressed, since, the remedy of challenging the
election through Election Petition was available.
5. Total 1,13,233 votes, including 83 Postal Ballots, were
polled on 30.01.2012 in the Bhadaur Assembly Constituency. On
counting of votes, appellant was found to have secured 52,825
votes in his favour, and respondent got 45,856 votes, and as
such appellant Mohammad Sadique was declared elected from
102-Bhadaur (Scheduled Caste) Assembly Constituency on
06.03.2012.
6. Respondent challenged the election of the appellant
pleading that, he (appellant), being a muslim, is not a member of
Scheduled Caste, and as such he was not qualified to contest the
election from any constituency reserved for Scheduled Castes. It
is specifically pleaded that the appellant was born in a family
which followed Islam, and his parents and others members of the
family also professed Islam. They had their names which are
prevalent amongst muslims, and they used to observe traditions
of Islam. None of their family members use “Singh”, in their
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names, normally found with the names of those following ‘Sikh’
religion. It is further pleaded by the election
petitioner-respondent that in his interview in the book titled -
“Sada Bahar Gayak – Mohammad Sadique : Jeevan Te Geet”, the
appellant had confessed that he was a muslim. It is also stated in
the election petition that after death of the parents of the
appellant, their bodies were buried as per muslim rites. It is
further alleged that the Caste certificate issued to the appellant
showing him to be member of community “Doom (Marasi)” by
Tehsildar, Ludhiana (West), was cancelled. Thereafter, the
appellant obtained caste certificate certifying his cast as “Doom”
(i.e. Scheduled Caste) on 25.08.2006. However, the Joint
Secretary, Department of Welfare, Government of Punjab vide
memorandum No.1/32/2008-RS-1 dated 17.11.2008 issued
directions to all the Deputy Commissioners in State of Punjab
that a person professing Islam is not legally entitled to get
Scheduled Caste certificate. Another communication dated
16.03.2009 stated to have been issued by the State Government
informing the Deputy Commissioners that such Scheduled
Castes certificates issued on or after 01.01.1980 were liable to be
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cancelled.
7. Appellant contested the election petition, and filed his
written statement. He pleaded that he professed Sikh religion,
and is a member of “Doom” community which is a Scheduled
Caste in the State of Punjab. He admitted that he was born in a
muslim family, but never offered prayers in mosque or observed
Rozas. It is further pleaded that from the childhood appellant
used to sing songs in the company of Sikh writers, artists and
singers. He used to go to the Gurudwaras to pay obeisance and
developed faith in Sikh religion. He followed the rites, rituals and
customs of Sikh religion. He performed ‘Sampath Path’ with
Ragis at his residence for seven days in the year 2000, and his
two daughters are married to Hindu boys. The appellant
specifically stated in the written statement that he embraced
Sikh religion formally on 13.04.2006, and a public notice to this
effect was published in newspapers- ‘The Hindustan Times’,
Chandigarh, and ‘Daily Akali Patrika’, Jalandhar, dated
04.01.2007. It is explained in the written statement that since
the appellant was popular as a singer with name- Mohammad
Sadique, therefore, he did not change his name even after
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embracing Sikh religion. On death of his wife Smt. Raffikan @
Seeto who died on 17.12.2007 though she was buried by
followers of Islam, but appellant performed “Akhand Path” from
04.01.2008 to 06.01.2008 as per Sikh religion. It is further
stated that Bhog of Akhand Path, Kirtan and Antim Ardas were
held in Gurudwara at Ludhiana which was attended by
prominent Sikh personalities. The appellant has explained in the
written statement that his mother Smt. Parsanni Devi who died
on 16.12.2009 was follower of Islam, and after her death her
body was buried but the appellant performed Akhand Path and
Bhog on 27.12.2009 in Gurdwara Sahib at village Kupkalan.
Name of the appellant’s father was Waliat Ali. The appellant
denied that he admitted in the interview that he was a muslim. It
is alleged that since earlier he was issued caste certificate as
‘Doom Marasi’ by mistake, that is why he got issued fresh
certificate of caste mentioning ‘Doom’. It is also pleaded that the
daughters of the appellant were also issued Scheduled Caste
certificates. The appellant accepted that he did receive a notice
vide letter dated 30.11.2006, to deposit caste certificate issued to
him by 19.12.2006 but denied that his certificate was ever
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cancelled or withdrawn by the Government.
8. The High Court, on the basis of the pleadings of the parties
framed following issues:-
(1) Whether the respondent being muslim was not
qualified to contest the election from 102-Bhadaur
Assembly Constituency reserved for the members of
the Scheduled Castes?
(2) Whether the respondent is a Sikh and professes
Sikh religion?
(3) Whether the election petition is not verified in
accordance with Order VI Rule 15 of the Code of Civil
Procedure, 1908? If so, its effect.
(4) Whether no material fact can be pleaded in the
replication after expiry of the period of limitation for
filing an election petition?
(5)Whether paragraph Nos. 12 to 15, 22(vii)(viii)(ix)(x)
(xiii)(xiv) and 27 to 28 of the election petition are liable
to be struck off on the ground mentioned in the
Preliminary Objection No.1 of the written statement?
(6) Relief.”
9. The High Court, after recording evidence of the parties, and
hearing them, allowed the Election Petition and set aside the
election of the appellant, holding that he was a muslim, and not
a member of Scheduled Caste, as such not qualified to contest
election from 102 – Bhadaur (Scheduled Caste) Assembly
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Constituency.
10. Aggrieved by the above order of the High Court, this appeal
is preferred by the respondent in the Election Petition.
11. Submissions and arguments advanced on behalf of the
appellant:
11.1 In 1939, appellant was born in ‘Doom’ caste in Punjab.
The appellant’s parents were Muslims by birth. However,
the appellant even before his conversion to Sikhism, had
complete inclination towards Sikhism and was a ‘Ragi’ and
used to perform Kirtan at Alamgir Sikh Gurdwara.
11.2 The appellant has throughout been raised as a Sikh. He
has professed the Sikh religion, and performed the
ceremonies, rituals and rites of Sikhism.
11.3 He has never offered prayer in a mosque, or kept Rozas, or
offered Namaz, or had never been to Haj. He has never lived
nor considered himself a muslim, nor was he so considered
by others.
11.4 He started singing songs at a very early age and in due
course became one of the most popular folk singers in
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Punjab. He was associated with other writers, artists,
singers and producers, who were all Sikhs, and used to visit
Gurdwaras with them to pay obeisance, and had full faith in
Sikh religion. At every stage - show of his, the appellant
started the performance by singing religious songs in praise
of the Guru Sahibans.
11.5 During 1989-1991, appellant’s daughters were all issued
caste certificates mentioning ‘Doom’ as their caste, as per
certificates dated 01.08.1989, and 16.04.1991. These are
still valid and not cancelled.
11.6 During 1999-2000, appellant was going through a personal
bad phase in his life. On the advice of Sardar Pargat Singh
Grewal, the appellant got performed the ‘Sampat Path’,
which was performed by Sant Baba Sucha Singh along with
other Ragis of Jawadi Taksal at his residence in Ludhiana
for seven days. Thereafter, the appellant’s condition
started improving, and it further strengthened his belief in
Sikh religion.
11.7 During 2001-2002, three of the appellant’s daughters,
namely, Naseem Akhtar, Shehnaz Akhtar and Javed Akhtar
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were married into Hindu families. The marriages were
performed as per Hindu rites and ceremonies, as desired by
the respective husbands’ families.
11.8 Though the appellant had always been raised as a Sikh and
had followed Sikhism, he formally embraced Sikhism on
13.04.2006. He gave a public notice of this, which was
published in leading newspapers namely Hindustan Times,
Chandigarh and Daily Akali Patrika, Chandigarh on
04.01.2007. Since appellant had become famous
throughout Punjab and indeed all over India as a singer, he
retained his muslim name and did not change it.
11.9 On 13.07.2006, appellant got his application and affidavit
typed by a typist in Ludhiana for obtaining his caste
certificate. The appellant did not read the same before
signing and Caste certificate was issued to the appellant
mentioning his caste as ‘Doom’ (Marasi). The appellant at
this stage realized that the typist had by mistake in the
application wrongly mentioned his caste as ‘Doom’(Marasi)
instead of caste ‘Doom’.
11.10 On 25.08.2006, appellant therefore asked the Tehsildar
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to cancel the wrong caste certificate and, on his asking,
re-applied with the correct caste mentioned as ‘Doom’.
Fresh caste certificate mentioning ‘Doom’ as the caste was
issued to the appellant, which is still valid and has not been
cancelled. ‘Doom’ is a Scheduled Caste in Punjab.
11.11 There was no objection from anyone to the appellant’s
formally embracing Sikhism, rather, he was welcomed into
it. Prominent Sikh personalities such as Sant Shamsher
Singh Jagera, President of Sant Sepahi Dal and
International Sant Samaj, honoured the appellant by
presenting “Saropa” to the appellant on 20.01.2007. He
was also welcomed by Sant Kartar Dass Jee at his Dera and
Sardar Pargat Singh Grewal, President, Prof. Mohan Singh
Foundation.
11.12 The appellant’s wife Rafikan @ Seeto passed away on
17.12.2007. Since she had been following Islam, she was
buried. However, since the appellant had been following
Sikhism, he got the ‘Akhand Path’ performed in Gurdwara
Shri Tegh Bahadur Satsang Sabha, Ludhiana from
04.01.2008 to 06.01.2008, and the bhog of Akhand Path of
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Sh. Guru Granth Sahib was performed on 06.01.2008 at his
residence and thereafter Kirtan and Antim Ardas was held
on the same day followed by Guru ka Langar as per Sikh
rituals, rites, customs and ceremonies. The obituary to this
fact was got published in various newspaper namely ‘Aj Di
Awaj, Jalandhar dated 05.01.2008 and ‘Ajit Jalandhar’
dated 04.01.2008. The Kirtan and Antim Ardas of the
appellant’s wife was well publicised and widely attended,
including by prominent Sikh personalities. The entire event
was also videographed and the original video recordings
were produced as evidence before the High Court.
11.13 The appellant’s mother Smt. Parsanni Devi passed away
on 16.12.2009. Since she had followed Islam, she was
buried. However, again, since the appellant was following
Sikhism, he got performed the Akhand Path and bhog of
Akhand Path of Sri Guru Granth Sahib and Kirtan and
Antim Ardas on 27.12.2009 in Gurdwara Sahib at Village
Kupkalan, Tehsil Malerkotla District Sangrur. This was
also attended by several prominent Sikh personalities.
11.14 In December 2011, the election scheduled for Punjab
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Legislative Assembly Elections was announced. Nomination
papers were to be filed on or before 12.01.2012. Scrutiny of
papers was on 13.01.2012. The appellant filed his
nomination papers from Indian National Congress Party for
Bhadaur Constituency. The respondent (Election Petitioner)
filed his nomination from the Shiromani Akali Dal Party.
Bhadaur constituency was reserved for Scheduled Castes in
Punjab. Demographically, it is dominated by Sikhs who are
the majority religious group in this constituency. Polling
was held on 30.01.2012. On 06.03.2012, results were
declared and the appellant emerged as the successful
candidate, winning by a wide margin.
11.15 For the avoidance of doubt, on 11.08.2014, appellant
made a declaration as per Section 2(9) of the Sikh
Gurdwaras Act 1925 to the effect that he was a follower of
Sikh religion. However, on 07.04.2015, the impugned order
was pronounced by the High Court, which allowed the
petition, holding that the appellant was not eligible to
contest the election from Bhadaur. The High Court held
that since the appellant’s parents followed Islam, he was a
Page No.14
muslim and therefore could not be a member of a
Scheduled Caste. It further held that appellant had not
embraced Sikhism and even if he embraced Sikhism, he
would not get the benefit of being a member of a Scheduled
Caste.
11.16 The impugned order is erroneous because it ignored the
overwhelming evidence that the appellant had lived his life
throughout as a Sikh. Finding of High Court that the
appellant is a muslim is incorrect, and the evidence has not
been correctly appreciated. There is no formal ceremony or
procedure required to embrace Sikhism. The fact that a
person has led his life throughout by following Sikh
customs, rituals, rites and ceremonies, and that he has not
followed the ceremonies, of any other religion, leads to the
conclusion that the person is a Sikh.
11.17 Appellant had led his life throughout by following Sikh
customs. He used to pray in Gurdwaras. He got the
Akhand Path, bhog, kirtan and Antim Ardas performed after
the death of his wife and his mother. Three of his
daughters are married into Hindu families. He had given a
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public notice of his formally embrasing Sikhism as far back
as in 2006, which was not objected to by anyone. On the
other hand, the evidence was clear that he had never
observed any of the customs, rites, or ceremonies of Islam.
Thus, neither did appellant conduct himself as a muslim,
nor did he regard himself as the one. He was not perceived
as a muslim by his near and dear ones, friends and
acquaintances.
11.18 The High Court erred in holding that the declaration made
by the appellant under the Sikh Gurdwaras Act 1925 would
take effect only from the date of the declaration. It failed to
note that the declaration, by its very nature, would be
retroactive in operation.
11.19 The High Court erred in holding that the instant case was
one of conversion from Islam to Sikhism and therefore the
appellant could not claim to be a member of a Scheduled
Caste. The High Court failed to appreciate that the
appellant had been raised as a Sikh belonging to ‘Doom’
caste from the very beginning and such it was not a case of
conversion.
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11.20 The High Court has misconstrued the evidence of PW-2,
PW-4 and PW-5. All that was stated by these witnesses is
that the State Government had issued instructions that
Scheduled Caste Certificates should not be issued to
muslims, even if they indicated their caste as ‘Doom’. These
instructions were not specific to the case of the appellant
since the appellant is not a muslim. The Caste Certificate
issued to the appellant remains valid even on date, and has
never been cancelled.
11.21 The High Court further erred in holding that since the
appellant did not wear the five ‘kakkas’ i.e Kachha, Karha,
Kirpan, Kangha and Kesh, he could not be a Sikh. The
High Court failed to note that the same is required only of
Amritdhari Sikhs, and not all Sikhs, and even among
Amritdhari Sikhs it is not a universal practice.
12. Submissions and arguments advanced on behalf of
Respondent (Election Petitioner) :-
12.1 Constitution (Scheduled Castes) Order, 1950 provides that
no person who professes a religion different from the Hindu,
the Sikh or the Buddhist shall be deemed to be a member of
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a Scheduled Caste. Thus a person professing Muslim
religion cannot claim Scheduled Caste status.
12.2 Under section 5(a) of the Representation of the People Act
1951, the qualification to be elected to the Legislative
Assembly from a seat reserved for Scheduled Castes is that
the candidate must belong to one of the Scheduled Castes
specified for the said State, in the Constitution (Scheduled
Castes) Order, 1950. Since the Bhadaur Constituency was
reserved for the Scheduled Castes in the State of Punjab, as
such the appellant being not a member of Scheduled Caste
was not qualified to contest election from said Constituency.
12.3 The High Court has correctly evaluated the material
available on record to find out as to whether the appellant
had taken birth in the family of Scheduled Caste as per the
Constitution (Scheduled Castes) Order, 1950 before
concluding that the appellant being a muslim cannot derive
any benefit of Scheduled Caste.
12.4 Even if it is presumed that the appellant belonged to Doom
community and embraced Sikhism, it cannot be said that
he was a member of Scheduled Caste and he would carry
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his ‘Doom’ Caste along with him at the time of conversion.
It is apposite to mention here that a muslim even if
belonging to Scheduled Caste was not eligible to contest the
election, as such by merely embracing Sikhism, he cannot
become eligible for the same.
12.5 A person embracing religion other than Hindu or Sikh does
not carry his caste with him as a general rule. No special
circumstances have been brought on record so that this
Court may presume that the appellant had carried his
‘Doom’ caste along with him after embracing Sikhism. In
fact, on the basis of the evidence led by both the parties, the
High Court was rightly not convinced that the appellant had
embraced Sikhism for the reason that the appellant fairly
admitted during his cross-examination that his forefathers
as well as his wife were following Islam.
12.6 Moreover, the declaration which is required to be verified by
a Magistrate under Rule 3(b) of the Sikh Gurdwaras Rules,
1925 has been verified by the Oath Commissioner and not
by the Magistrate, and hence it does not qualify to be a legal
declaration and therefore, its not a valid declaration.
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12.7 By an application dated 13.07.2006, (Exh. PF), the
appellant had applied for issuance of a Scheduled Caste
certificate by claiming himself that he belonged to “Doom
(Marasi)” caste, which was granted to him on the same date
i.e.13.07.06 (Exh. PF6), under the orders of the then
Tehsildar, Ludhiana (West). When the said fact came to
light, the then Commissioner, Patiala Division, Patiala,
ordered an inquiry and thereafter a direction was issued to
the appellant to return the said Scheduled Caste certificate
in the office of the Tehsildar by 19.12.2006, but the same
was not obeyed by the appellant and, as such, the
Government of Punjab vide its order no. 15/MC, dated
11.01.2007, cancelled the said certificate. In the meantime,
the appellant again applied on 25.08.2006 (Exh.PG), for
issuance of another Scheduled Caste certificate claiming
himself to be a “Doom” caste only and a certificate (Exh.
PG2), to that effect was issued on the same date i.e.
25.08.2006. However, the Joint Secretary, Welfare,
Government of Punjab, vide his Memo No.1/32/2008-RS-1,
dated 17.11.2008, issued directions to all the Deputy
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Commissioners in the State of Punjab, to the effect that a
person belonging to Islam was not legally entitled to get a
Scheduled Caste certificate.
12.8 A public notice claiming to declare the appellant a Sikh was
published in the newspapers – The Hindustan Times,
Chandigarh and Daily Akali Patrika, Jalandhar on
04.01.2007 but as admitted by his own witness RW 14 in
the cross examination, the appellant was a Mohammedan
before the advertisement in the newspapers on 04.01.2007.
As such the appellant is a born muslim, and continued to
be a muslim upto the date of filing nomination papers.
12.9 The two Scheduled Caste Certificates dated 13.07.2006
Exh.PF6 and 25.08.2006 Exh.PG2 got issued by the
appellant are not valid Scheduled Caste certificates.
12.10 Sub Section (9) of Section 2, of the Sikh Gurudwara Act,
1925 defines a Sikh reads as follows-
“(9) Sikh – “Sikh means a person who professes the
Sikh religion or in the case of a deceased person, who
professed the Sikh religion or was known to be a Sikh
during his life time.
If any question arises as to whether any living person
is or is not a Sikh, he shall be deemed respectively to
be or not to be a Sikh according as he makes or
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refuses to make in such manner as the State Govt.
may prescribe the following declaration: -
I solemnly affirm that I am a Sikh, that I believe in the
Guru Granth Sahib, that I believe in the ten Gurus
and that I have no other religion.”
12.11 In the Rules framed under Sikh Gurudwara Act, 1925, it
is provided that a declaration shall be made either orally in
the presence of the authority by whom it is to be decided
whether the person in question is a Sikh or not, or in
writing and (i) if the declaration is made orally the authority
in whose presence it is made shall record the making of it in
writing and the record shall be attested by the signature or
thumb-mark of the person making it, and (ii) if the
declaration is made in writing it shall be signed by the
person making it, shall be verified by a magistrate and shall
be forwarded in original to the authority by whom it is to be
decided whether the person in question is a Sikh or not.
12.12 For ceremony of Baptism and Imitation procedure required
in Art. XXIV is required to be followed, which is not
followed, as such High Court committed no error of law in
setting aside election of the appellant.
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12.13 In the above circumstances, the respondent deserves to be
declared elected for remaining period from Assembly
Constituency Bhadaur.
13. We have considered the rival submissions of learned
counsel for the parties and perused the papers on record.
14. In the present case, the main issue before us is whether the
High Court has erred in holding that the appellant was not a
member of Scheduled Caste on the date of filing of his
nomination papers from the Assembly Constituency 102
Bhadaur (SC) in Punjab, as such he was not qualified, and his
election from said constituency is bad in law.
15. Before further discussion we think it just and proper to
understand what “caste” actually means. The word “caste” is
defined in Encyclopedia Americana, Vol. 5, as under: -
“Caste: Caste is a largely static, exclusive social class,
membership in which is determined by birth and
involves particular customary restrictions and
privileges. The word derives from the Portuguese
casta, meaning ‘breed’, ‘race’, or ‘kind’ and was first
used to denote the Hindu social classification on the
Indian subcontinent. While this remains the basic
connotation, the word ‘caste’ is also used to describe
in whole or in part social systems that emerged at
various times in other parts of the world….”
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According to Webstar Comprehensive Dictionary
(International Edition), ‘caste’ in relation to Hinduism means –
any of the four social divisions namely Brahmin (Priests),
Khshatriya (Warriers), Vaishya (agriculturists & traders) and
Shudras (servants).
16. Now, we would like to examine the expression “Scheduled
Caste”. In Guntur Medical College v. Y. Mohan Rao1
,
Constitution Bench of this Court has explained the term
“Scheduled Castes” and made following observation: -
“3. ………… The expression ‘scheduled castes’ has a
technical meaning given to it by clause (24) of Article
366 and it means -
‘such castes, races or tribes or parts of or groups
within such castes, races or tribes as are deemed
under Article 341 to be Scheduled Castes for the
purposes of this Constitution’.
The President in exercise of the power conferred upon
him under Article 341 has issued the Constitution
(Scheduled Castes) Order, 1950. Paras (2) and (3) of
this Order are material and they read as follows:
“2. Subject to the provisions of this Order, the
castes, races or tribes or parts of or groups
within caste or tribes specified in Part I to XIII of
1
(1976) 3 SCC 411
Page No.24
the Schedule to this Order shall, in relation to the
States to which these 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.
3. Notwithstanding anything contained in para
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 Caste.
The schedule to this order in Part I 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
Andhra Pradesh be deemed to be scheduled castes.
One of the castes specified there is Madiga caste and
that caste must, therefore, be deemed to be a
scheduled caste. But by reason of clause (3), a person
belonging to Madiga caste would not be deemed to be a
member of a scheduled caste unless he professes
Hindu or Sikh religion at the relevant time. It is not
necessary that he should have been born a Hindu or a
Sikh…….”
(Emphasis supplied)
17. In S. Anbalagan v. B. Devarajan2
, which is a case
pertaining to election from Rasipuram Parliamentary
Constituency (reserved for Scheduled Castes), a three-Judge
Bench of this Court at the end of para 13 has observed as under:
-
“13. ………….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
2 (1984) 2 SCC 112
Page No.25
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.”
(Emphasis supplied)
18. In Kailash Sonkar v. Maya Devi3
, which arose out of
election from a reserved Assembly constituency in Madhya
Pradesh, another three-Judge Bench of this Court examined the
question – whether the loss of the caste is absolute, irrevocable
so as not to revive under any circumstance. After deriving the
history of caste system, this Court observed following guiding
principle to determine the question in paragraph 28: -
“Where a person belonging to a scheduled caste
is converted to Christianity or Islam, the same involves
loss of the caste unless the religion to which he is
converted is liberal enough to permit the convertee to
retain his caste or the family laws by which he was
originally governed. There are number of cases where
members belonging to a particular caste having been
converted to Christianity or even to Islam retain their
3 (1984) 2 SCC 91
Page No.26
caste or family laws and despite the new order they
were permitted to be governed by their old laws. But
this can happen only if the new religion is liberal and
tolerant enough to permit such a course of action.
Where the new religion, however, does not at all accept
or believe in the caste system, the loss of the caste
would be final and complete. In a large area of South
and some of the North-Eastern States it is not unusual
to find persons converted to Christianity retaining
their original caste without violating the tenets of the
new order which is done as a matter of common
practice existing from times immemorial. In such a
category of cases, it is obvious that even if a person
abjures his old religion and is converted to a new one,
there is no loss of caste. Moreover, it is a common
feature of many converts to a new religion to believe or
have faith in the saints belonging to other religions.
For instance, a number of Hindus have faith in the
Muslim saints, Dargahs, Imambadas which becomes a
part of their lives and some Hindus even adopt Muslim
names after the saints but this does not mean that
they have discarded the old order and got themselves
converted to Islam”.
19. In above Kailash Sonkar (supra) this Court further
discussed regarding reconversion into Hinduism by the members
of the community whose forefathers converted to other religions.
Applying the doctrine of eclipse, this Court observed as under: -
“34. In our opinion, when a person is converted to
Christianity or some other religion the original caste
remains under eclipse and as 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
Page No.27
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 supplied)
20. In paragraphs 51 and 52 in Kailash Sonkar (supra), on
the facts of said case, this Court gave following conclusions: -
“51. ……………
(1) That the respondent was born of Christian
parents and was educated in various schools or
institutions where she was known as a Christian,
(2) That 3-4 years before the election, the respondent
was reconverted to Hinduism and married Jai
Prakash Shalwar, a member of the Katia caste,
and also performed the Shudhikaran ceremony,
Page No.28
(3) That she was not only accepted but also
welcomed by the important members, including
the President and Vice-President, of the
community,
(4) There is no evidence to show that there was any
bar under the Christian religion which could
have prevented her from reconverting herself to
Hinduism,
(5) That there was no evidence to show that even her
parents had been Christian from generation to
generation.
52. In these circumstances, therefore, this case fulfils
the conditions required for being reconverted to
Hinduism from Christianity in order to revive the
original caste.”
21. In K.P. Manu v. Scrunity Committee for Verification of
Community Certificate4
, one of the questions examined by this
Court is – whether on re-conversion, a person born to Christian
parents could, after reconversion to the Hindu religion, be eligible
to claim the benefit of his original caste. Referring to various
case laws, including those referred above, this Court disagreed
with the finding of Scrutiny Committee that caste certificate
issued to a person on the basis of the fact that though the great
grandfathers of such person belonged to Pulaya community (i.e.
Scheduled Caste), but he was born after his ancestors embraced
4 (2015) 4 SCC 1
Page No.29
Christianity and thereafter, reconverted into Hindu religion is not
entitled to the Scheduled Caste certificate. Constitution Bench
decision in Guntur Medical College (supra) and three-Judge
Bench decisions in S. Anbalagan (supra) and Kailash Sonkar
(supra) are referred to and relied upon in K.P. Manu (supra).
22. In the case at hand, admittedly the appellant was born to
muslim parents. However, he has proved that his family
members though followed Islam but they belonged to “Doom”
community. It is settled law that a person can change his
religion and faith but not the caste, to which he belongs, as caste
has linkage to birth. It is proved on the record that the appellant
was issued a caste certificate as he was found to be member of
‘Doom’ community by the competent authority, after he declared
that he has embraced Sikhism, and he was accepted by the Sikh
community. It is not disputed that ‘Doom’ in Punjab is a
Scheduled Caste under Constitution (Scheduled Castes) Order,
1950. The Scheduled Caste Certificate No. 6149 dated
25.08.2006 (Exh PG/2) was issued to the appellant by the
competent authority, and accepted by the returning officer. Said
certificate appears to have not been cancelled. What is shown on
Page No.30
behalf of the respondent is that vide communication dated
17.11.2008 (Ext. PJ) State authorities informed and clarified to
the Deputy Commissioner that members following Islam are not
entitled to the certificate of Scheduled Caste, and if issued,
certificates may be cancelled. But the certificate (PG/2) dated
25.08.2006 already issued in favour of appellant, is not
cancelled, which he obtained after his conversion to Sikhism. It
is proved on the record that the appellant embraced Sikh religion
on 13.04.2006, and got published the declaration on 04.01.2007
in the newspapers Hindustan Times (English) Exh.RA, and Ajit
(Punjabi) Exh RB. Nomination for election in question was filed
by him five years thereafter. The appellant has further
sufficiently explained that since he was popular as a singer with
the name – ‘Mohammad Sadique’ as such without changing his
name, he accepted the Sikhism and followed all rites and
traditions of Sikh Religion.
23. It is not essential for anyone to change one’s name after
embracing a different faith. However, such change in name can
be a corroborating fact regarding conversion or reconversion into
a religion/faith in appropriate cases. Also it is not necessary in
Page No.31
law that entire family of a person should convert or reconvert to
the religion to which he has gone. RW-5 Mohammad Sadique
has stated that he not only followed Sikh traditions, he never
offered Namaz, nor observed Roza nor went to Haj. It is also
relevant to mention here that PW-7 Darbara Singh Guru
(respondent-Election Petitioner) in his cross-examination admits
that he did not raise any objection at the time when nomination
papers were filed by the appellant.
24. In the above circumstances, we are inclined to hold that the
High Court has erred in law, by ignoring the above facts on the
record, and giving importance to form of declaration, and the
interview said to have been given by appellant to PW 6 Gulzar
Singh Shaunki, author of book - “Sada Bahar Gayak –
Mohammad Sadique : Jeevan Te Geet” (Exh.PK). Statement of
the appellant RW-5 regarding conversion to Sikhism, is fully
corroborated by RW-11 Darshan Singh, Ex-Sarpanch of village
Kupkalan, RW-6 Rachhpal Singh, Secretary of Gurudwara Sahib
Kupkalan, RW-9 Ms. Sukhjeet Kaur, co-singer in Gurudwara,
and RW-14 Sant Shamsher Singh Jageda, who presented
‘Saropa’ to the appellant.
Page No.32
25. Having re-appreciated the evidence on record, as above, and
keeping in view the law laid down by this Court in Guntur
Medical College v. Y. Mohan Rao1
, S. Anbalagan v. B.
Devarajan2
, and Kailash Sonkar v. Maya Devi3
, in our
opinion, the impugned judgment passed by the High Court
cannot be upheld.
26. Accordingly, the appeal is allowed, and the Election Petition
filed by the respondent is dismissed. No order as to costs.
……………………………..J.
[Ranjan Gogoi]
……………………………..J.
[Prafulla C. Pant]
New Delhi;
April 29, 2016.
1 (1976) 3 SCC 411
2 (1984) 2 SCC 112
3 (1984) 2 SCC 91
