Case: Kailash Sonkar Vs. Smt. Maya Devi

2. The victory of our long drawn struggle for freedom from the British yoke came to us after one and a half century of perpetual and constant efforts soaked in cold blood and dipped in supreme sacrifice. The historical midnight of August 15, 1947, which ushered in a new era, was merely a completion of a phase and not the end of an epoch but only the beginning of the end.3. Soon thereafter the wise wizards and the founding fathers of our Constitution set but to devote their whole-hearted attention to devise ways and means to give to out sub-continent a solid and comprehensive Constitution which may solve multifarious and manifold difficulties, fulfil the burning needs of the nation and sort out complex and complicated problems which arose after our hard-won freedom which must have baffled our leaders. There was the question of achieving a secular democracy, the largest in the world, based on a socialist pattern which would take care of all sorts and kinds of people having different cultures, languages and religions; to confer and guarantee fundamental rights of citizens through mandatory provisions, to lay down Directive Principles of State Policy which were to be the guiding spirit of the Constitution, the question of achieving agrarian reforms by displacing the old British bureaucratic system and substituting a new order, the issue of reconciling the irreconcilable and various other thorny and tricky matters. One of the important objectives to be translated into action was to take special care of the backward classes, members of the scheduled caste and tribes by bringing them to the fore through pragmatic reform and providing adequate opportunities of their amelioration and development, education, employment and the like.4. As Mahatma Gandhi, father of the nation, said "India lives in villages" and so do the backward classes, hence the primary task was to take constructive steps in order to boost up these clauses by giving them adequate concessions, opportunities, facilities and representation in the services and, last but not the least, in the electorate so that their voices and views, grievances and needs in the Parliament and state legislatures in the country may be heard, felt and fulfilled.5. In this election appeal which has been filed against the Judgment dated October 25, 1981 of the High Court of Madhya Pradesh, we are really concerned with the last aspect mentioned above. Despite odds and ends our Constitution has made exhaustive provisions for achieving these ends and how far they have been implemented is difficult to say, for this is really a Herculean task and one cannot expect miracles to be performed within a span of three decades which, in the history of nations, is not a very long period. The knotty and difficult, puzzling and intricate issue with which we are faced is, to put it shortly, what happens if a member of a scheduled caste or tribe leaves his present fold (Hinduism) and embraces Christianity or Islam or any other religion - does this amount to a complete loss of the original caste to which he belonged for ever and, if so, if he or his children choose to abjure the new religion and get reconverted to the old religion after performing the necessary rites and ceremonies, could the original caste revive ? The serious question posed here arose and has formed the subject-matter of a large catena of decisions starting from the year 1861, traversing a period of about a century and a half, and culminating in a decision of this Court in the case of G. M. Arumugham v. S. Rajagopal ((1976) 3 SCR 82   : (1976) 1 SCC 863  ).6. The Constitution has tried to solve the problem to a great extent by the Constitution (Scheduled Castes) Order, 1950 (hereinafter referred to as the 1950 Order) issued under Article 341, which lays down a list of various castes prevailing in the country and the norms to determine the same. This Order has been amended from time to time. In our opinion, despite a genuine attempt to solve the problem the provisions do not provide a complete answer to the judicial interpretation by this Court which lays down the law of the land. It is true that the controversy has been narrowed down to the minimum by the decision in Arumugham case ((1976) 3 SCR 82   : (1976) 1 SCC 863  ) still there a some vital questions which remain unanswered.

Reasoning: 17. In our opinion, there is one aspect which does not appear to have been dealt with by any of the case discussed by us. Suppose, A, a member of the scheduled caste, is converted to Christianity and marries a Christian girl and a daughter is born to him who, according to the tenets of Christian religion, is baptised and educated. After she has attained the age of discretion she decides of her own volition to re-embrace Hinduism, should in such a case revival of the caste depend on the views of the members of the community of the caste concerned or would it automatically revive on her reconversion if the same is genuine and followed by the necessary rites and ceremonies ? In other words, is it not open for B (the daughter) to say that because she was born of Christian parents their religion cannot be thrust on her when after attaining the age of discretion and gaining some knowledge of the world affairs, she decides to revert to her old religion. It was not her fault that she was born of Christian parents and baptised at a time when she was still a minor and knew nothing about the religion. Therefore, should the revival of the caste depend on the whim or will of the members of the community of her original caste or she would lose her caste for ever merely because fortunately or unfortunately she was born in Christian family ? With due respect, our confirmed opinion is that although the views of the members of the community would be an important factor, their views should not be allowed to (sic) a complete loss of the caste to which B belonged. Indeed, if too much stress is laid on the views of the members of the community the same may lead to dangerous exploitation. Perhaps, this factor was present in the mind of Bhagwati, J., who delivered the leading judgment in a later decision of this Court G. M. Arumugham v. S. Rajagopal ((1976) 3 SCR 82   : (1976) 1 SCC 863  ) where, speaking for the Court, he made the following observations : (SCC pp. 871, 872, 875; paras 9, 10 andis sufficient to state that originally there were only four main castes, but gradually castes and sub-castes multiplicity 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 .... 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 is more a social combination than a religious group.In our opinion, the main test should be a genuine intention of the reconvert to abjure his new religion and completely dissociate himself from it. We must hasten to add here that this does not mean that the reconversion should be only a ruse or a pretext or a cover to gain mundane worldly benefits so that the reconversion becomes merely a show for achieving a particular purpose whereas the real intention may be shrouded in mastery. The reconvert must exhibit a clear and genuine intention to go back to his old fold and adopt the customs and practices of the said fold without any protest from members of his erstwhile caste. In order to judge this factor, it is not necessary that there should be a direct or conclusive proof of the expression of the views of the community of the erstwhile caste and it would be sufficient compliance of this condition if no exception or protest is lodged by the community members, in which case the caste would revive on the reconversion of the person to his old religion.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 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.