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
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
