of Community Certificate (2015) 4 SCC 1, 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 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 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 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 law that entire family of a person should
convert or reconvert to the religion to which he has converted.
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.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4870 OF 2015
Mohammad Sadique … Appellant
Versus
Darbara Singh Guru … Respondent
Dated;April 29, 2016.
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.
2. Brief facts of the case are that General Elections were
held for 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”). Page 3
Page 3 of 36
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 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 forPage 4
Page 4 of 36
Scheduled Castes. It was 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 add “Singh”, with their names, normally
found in 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 was also stated in the
election petition that after death of the parents of the
appellant, their bodies were buried as per muslim rites. It was
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-Page 5
Page 5 of 36
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 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 since childhood the
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 HinduPage 6
Page 6 of 36
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 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 thePage 7
Page 7 of 36
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 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?Page 8
Page 8 of 36
(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 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, hadPage 9
Page 9 of 36
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
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.Page 10
Page 10 of 36
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 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 SikhismPage 11
Page 11 of 36
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 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 andPage 12
Page 12 of 36
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 him 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 Sh. Guru Granth Sahib was performed on
06.01.2008 at his residence and thereafter Kirtan andPage 13
Page 13 of 36
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 DistrictPage 14
Page 14 of 36
Sangrur. This was also attended by several prominent
Sikh personalities.
11.14 In December 2011, the election schedule for Punjab
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 followerPage 15
Page 15 of 36
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 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 otherPage 16
Page 16 of 36
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 public notice of his formally embracing 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 thePage 17
Page 17 of 36
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 as such it was
not a case of conversion.
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.Page 18
Page 18 of 36
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 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 ScheduledPage 19
Page 19 of 36
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 not being 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 his ‘Doom’ Caste along with him at the timePage 20
Page 20 of 36
of conversion. It is apposite to mention here that a
muslim even if belonging to Scheduled Caste was not
eligible to contest the election, and 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 crossexamination
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 GurdwarasPage 21
Page 21 of 36
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.
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 onPage 22
Page 22 of 36
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 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 of
nomination papers.Page 23
Page 23 of 36
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 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,Page 24
Page 24 of 36
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 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.
12.13 In the above circumstances, the respondent deserves to
be declared elected for remaining period from Assembly
Constituency Bhadaur. Page 25
Page 25 of 36
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….”
According to Webster Comprehensive Dictionary
(International Edition), ‘caste’ in relation to Hinduism means –Page 26
Page 26 of 36
any of the four social divisions namely Brahmin (Priests),
Khshatriya (Warriors), 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 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
1
(1976) 3 SCC 411Page 27
Page 27 of 36
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
2
(1984) 2 SCC 112Page 28
Page 28 of 36
he had lost it at all. In fact this process goes on
continuously in India and generation by generation
lost sheep appear to return to the caste-fold and are
once again assimilated in that fold. This appears to
be particularly so in the case of members of the
Scheduled Castes, who embrace other religions in
their quest for liberation, but return to their old
religion on finding that their disabilities have clung
to them with great tenacity. We do not think that
any different principle will apply to the case of
conversion to Hinduism of a person whose
forefathers had abandoned Hinduism and embraced
another religion from the principle applicable to the
case of reconversion to Hinduism of a person who
himself had abandoned Hinduism and embraced
another religion.”
(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
3
(1984) 2 SCC 91Page 29
Page 29 of 36
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 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 issue relating to reconversion into Hinduism by the
members of the community whose forefathers converted toPage 30
Page 30 of 36
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
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)Page 31
Page 31 of 36
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,
(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 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”
4
(2015) 4 SCC 1
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 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 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 law that entire family of a person should
convert or reconvert to the religion to which he has converted.
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 as 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, cosinger
in Gurudwara, and RW-14 Sant Shamsher Singh
Jageda, who presented ‘Saropa’ to the appellant.
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.
1
(1976) 3 SCC 411Page 36
Page 36 of 36
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.
2
(1984) 2 SCC 112
3
(1984) 2 SCC 91
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