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Tuesday, May 10, 2016

Elections - Conversion to Sikh Community - keeping old name for the purpose of Identification - conversion of entire family not necessary to consider a person as a converted person in to other religion = 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. = 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 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, co-singer in Gurudwara, and RW-14 Sant Shamsher Singh Jageda, who presented ‘Saropa’ to the appellant. 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.

                        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.

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”).

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  for  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-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 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
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 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 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  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 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  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 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  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  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 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 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 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 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 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.

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) :-

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 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  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  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, 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 cross-examination  that
his forefathers as well as his wife were following Islam.



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.



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 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.



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, 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.

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 – 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 Rao[1], 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  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. Devarajan[2], 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 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 Devi[3], 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  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 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  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,

(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
Certificate[4], 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.

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, co-singer 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.  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

[4]    (2015) 4 SCC 1

1      (1976) 3 SCC 411
2      (1984) 2 SCC 112
3       (1984) 2 SCC 91


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