Case: C. M. Arumugam Vs. S. Rajgopal and Others

2. The appellant and the first 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 clause (24) of Article 366 of the Constitution and it meanssuch castes, races or tribes or parts of or groups within such castes or tribes as are deemed under Article 341 to be Scheduled Castes for the purpose of the Constitution.The President, in exercise of the power conferred upon him under Article 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 caste or tribes specified in Parts 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.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 Caste.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 clause (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 first 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 first respondent were thus rival candidatesin fact they were the only two contesting candidatesand in a straight contest, the first respondent defeated the appellant and was declaredschedule 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 clause (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 first 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 first respondent were thus rival candidatesin fact they were the only two contesting candidatesThis decision was given by a Bench consisting of two judges on May 3, 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 first 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 him nomination as a candidate from this constituency and so did the first respondent. The nomination of the first respondent was, however, objected by the appellant on the ground that the first 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 first respondent rejoined by saying that he was never converted to Christianity and that in any event, even if it was held that he had become 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 February 9, 1972, upheld the objection of the appellant and taking the view that, on conversion to Christianity, the first 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 rejected the nomination of the first respondent. The election thereafter took place without the first respondent as a candidate and the appellant, having obtained the highest number of votes, was declared elected.5. The first 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 first respondent was improperly rejected. This was a ground under Section 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 first respondent was improperly rejected and that in its turn depended on the answer to the question whether the first 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 first 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 first 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.the fourth aspect, the High Court observed :It is settled law that reconversion to Hinduism does not require any formal ceremony or rituals or expiatory 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 to1967, which clearly showed that the first 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 first respondent was improperly rejected by the Returning Officer and that invalidated the election under Section 100(1)(c) of the Act. The High Court accordingly set aside the election of the appellant and declared it to be void. This judgment of the High Court is impugned in the present appeal under Section 116A of the Act.

Reasoning:
The first 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 first 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.8. The position is, however, different when we turn to the question whether, on conversion to Christianity, the first respondent ceased to be a members 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 first 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 theof 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 first 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 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 first respondent ceased to belong to Adi Dravida caste.9. 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 andmultiplied 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 gradation 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 thehigher castes on the lower castes. It was for this reason that it was thought necessary by theto 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 theaccordingly provided that the President may specify the castes and these would obviously be the lower castes which had suffered centuries of oppression and exploitationwhich 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.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 be a member of the caste, but that is not an invariable rule. It 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 comprise both Hindus and Christians. Whether Adi Dravida is a caste which falls within this category or not is 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 arebetween them. It would, therefore, prima facie seem that, on conversion to Christianity, the first 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 thisargument 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. It cannot be said, however, that membership by caste is determined only by birth and not by anything else.These cases show that the consistent view taken in this country from the timeof Madras v. Anandachari 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 conversion 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 prepared to readmit him as a member. It stands to reason that he should be able to come back to the fold to which he once belonged, provided of course the community is willing to take him within the fold. It is the orthodox Hindu society still dominated to a large extent, particularly in rural areas, by medievalistic outlook andapproach which attaches social and economic disabilities to a person belonging to a scheduled caste and that is why certain favoured treatment is given to him by the Constitution. Once such a person ceases to be a Hindu and becomes a Christian, the social and economic disabilities arising because of Hindu religion cease and hence it is no longer necessary to give him protection and for this reason he is deemed not to belong to a scheduled caste. But when he is reconverted to Hinduism, the social and economic disabilities once again revive and become attached to him because these are disabilities inflicted by Hinduism. A Mahar or a Koli or a Mala would not be recognised as anything but a Mahar or a Koli or a Mala after reconversion to Hinduism and he would suffer from the same social and economic disabilities from which he suffered before he was converted to another religion. It is, therefore, obvious that the object and purpose of the Constitution (Scheduled Castes) Order, 1950 would be advanced rather than retarded by taking the view that on reconversion to Hinduism, a person can once again become a member of the scheduled caste to which he belonged prior to his conversion. We accordingly agree with the view taken by the High Court that on reconversion to Hinduism, the first respondent could once again revert to his original Adi Dravida caste if he was accepted as such by the other members of theCourt in the earlier decision between the parties found that the first 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 first respondent, therefore, in the present case, led considerable oral as well as documentary evidence tending to show that subsequent to1967, the first respondent has 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 first respondent as its members 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 brothers Govindaraj and Manickam by the first 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 first respondent, as their elder, celebrated their marriages, it would not follow that he was also an Adi Dravida Hindu. The second circumstance that the first respondent was looked upon as aamong the Adi Dravida Hindus of KGF cannot also be regarded as of much significance, because, if the first respondent was a recognised leader, it is quite possible that the Adi Dravida Hindu of KGF might go to him for resolution of their disputes, even thought he himself might not be an Adi Dravida Hindu. But the third, fourth and fifth circumstances are of importance, because, unless the first 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 at Jambakullam, which was essentially a temple of Adi Dravida Hindus, nor would he have been requested to participate in the Margazhi Thiruppavai celebration at the Kannabhiran Temple situate at III Line, Kennedy Block, KGF, 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, KGF where the devotees are Adi Dravida or to start the procession of the deity at such festival. These three circumstances are strongly indicative of the fact that the first respondent was accepted and treated as a member by the Adi Dravida community. So also does the sixth circumstance that the first 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 seventh and eighth circumstances are again of a neutral character. The funeral ceremonies and obsequies of the father of the first 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 first respondent was also an Adi Dravida Hindu. Similarly, the fact that the first respondent participated in the first annual ceremonies of the late M. A. Vadivelu would not indicate that the first respondent was also an Adi Dravida Hindu like the late M. A. Vadivelu. But the ninth circumstance is again very important. It is significant that the children of the first 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 first 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 August on 30 and 31, 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 first 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, KGF on August 11, 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). Theof 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 August 11, 1968 inter alia with the object of readmitting the first respondent into the fold of Adi Dravida caste and not only was a purificatory ceremony performed on the first respondent at this conference with a view to clearing the doubt which had been case on his membership of the Adi Dravida caste by the decision of this Court in the earlier case but an address Ex.was also presented to the first respondent felicitating him on this occasion.19. It is clear from these circumstances, which have been discussed and accepted by us, that after his reconversion to Hinduism, the first 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 first 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.