G.M. ARUMUGAM versus S. RAJGOPAL & OTHERS

G.M.ARUMUGAM

S. RAJGOPAL & OTHERS

December 19, 1975

!Y. V. CHANDRACHUD, P. N. BHAGWATI AND R. S. SARKAR!A, JJ.]

Constitution (Scheduled Castes) Order, 1950, Paras 2 and 3-Adi Dravida, l·o111'ertcd to Clnislia11ity and reconverted to Hinduisn1-lf and wlu'n could be treated as Adi Dravida.

When conversion affects caste.

Code of Civil Procedure (Act 5 of 1908) s. .iboiil caste of candidat€ in one ell·ction petition ari5es in another later election.

11-Res judicata-Dec1sio11 if res~judicata lVhen question

In the 1967 election to the State Legislative Assembly, the appellant and the 1st respondent clai1ning to be Adi Dravidas, stood as candidates for seat reserved for Scheduled Castes. The respondent was declared elected. The ap-pellant's election petition challenging the election was allov-'ed by the High Court. This Court dismissed the respondent's appeal holding, (I) that the res· pon<lent \Vas converted to Christianity in 1949, (2) that on such conversion he ceased to be an Adi Dravidn, ( 3) that he \Vas reconverted to Hinduism but ( 4) assuming that membership of caste can be acquired on conversion or recon-versiL1n to Hinduism, the respondent had frtiled to establish lhat he became member of the Adi Dravida caste after reconversion. In the 1972 elections, the appellant and respondent again filed their nomi-nations as Adi Dravidas for the seat reserved for Scheduled Castes. On ob-jection by the appellant, the lleturning Officer rejected the nomination of the respondent on the view that on conversion to Christianity. he ceased t•J be an Adi Dravida and that on reconversion, he could not claim the benefit of the Constitution (Scheduled Castes) Order, 1950. The appellant was declared elected. The respondent challenged the election and the 1-ligh Court held thrit the question (a) whether the respondent embraced Christi<Jnity in 1949, (bl whether on such conver<;ion he ceased to be nn Adi Dravida, and ( c) whether he was reconverted to Hindtlism, were concluded by the decision of this Court in the earlier case. In fact, the respondent so conceded on the first tv-'o ~tspects. The High Court, however, held that the respondent had established twelve cir-circustanccs, which happened subsequent to the earlier election showing thrtt he \Vas accepted intq their fold by the members· of the .1\di Dravida caste, that he was, therefore, at the material time, an Adi Dravida professing Hindu religion ns required by paragraphs 2 and 3 of the Constitution /Scheduled Cnstes) Order, and that therefore, his nomination wa~ impr·operly rejected.

Dismissing the appeal to this Court,

HELD: (1) The question whether :he respondent abandoned Hinduism and embraced Christianity in 1949 is essentially question of fact. Tflc respondent, having conceded before the High Court, that in view of the decision of this Court in the earlier case, the question did not survive for consideration ;.1nd the High Court, having acted on that concession, the respondent could not be pern1itted to raise an argument thnt the evidence did not establish that he en1braced Chris-tianity in 1949. l89 D-F]

r2) Similarly. the question \Vhcther the respondent was reconverted to H-indu-ism stands concluded by the decision of this Court in the eariier case and it mu~t be held that since prior to January 1967. the respondent \\'<lS re-converted to Hinduism, he was, at the material time. professing the Hindll religion so as to satisfy the requirement of para 3 of the Constitution (Scheduled Castes) Order.

(3) The High Court was right in the view that on r:_ecoversion to Hinduis~, the respondent could once again reconvert to his original Adi Dravida ~aste tf he was accepted, as such, by the other members of that caste; _and that, in fact, the respondent after his reconversion to Hinduism, was recognised and accep~ed ·1s member of the Adi Dravida caste by the other members of that community. ' [97 A-B, 98 G]

(a) Since caste is social combination of person governed by its rules and regulations, it may, if its rules and regulations so provide, admit ~ew member just as it may expel an existing member. The rules and regulations of the caste may not have· been formalised-they may not exist i~ black and \vhite : they n1ay consist only of practices and usages. If, according to the practice and u-;age o~ the caste any particular ceremonies. are. required to be per-formed for readmission to the caste, reconvert to H1ndu1sm would have to perform those ceremoni~s if he seeks readmission to the. c~ste. But, if no rites or ceremonies nre required to be performed for readm1ss1on of person as 1nember of the caste, the only thing necessary would be the acceptance of the person concerned by the other n1embers of the caste. [95 C-F]

(b) The consistent view taken by the Courts from tha time of the decision in Adniinistrator General of Madras v. Anandachari (ILR 9 Mad. 466), that is, since 1886, ha~ been that on reconversion to Hinduism, person can once again become member of the caste in which h6 was born and to which he belonged before conversion to another religion if the members of the caste accept him as member. If person who has embraced another religion can be recon-verted to Hinduism, there is no rational principle why he should not be able to come back to his caste, if the other members of the caste are prepared to re-admit him as member. It stands to reason that he should be able to come back to the fold to '\Vhich he once belonged, provided the community is willing to take him within the fold. [96 C-Rl

Nathu v. Keshwaji I.L.R. 26 Born. 174; Guruswami Nadar v. lrulappa Konar, A.LR. 1934 ]\.fad. 630 and Durgaprasada Rao v. Sudarsanaswami, AIR 1940 :\·tad. 513, referred to.

(c.) It is the orthodox Hindu Society, still dominated to large extent, parti-cularly in rural areas, by medievalistic outlook and status-oriented approach \Vhich attaches social and economic disabilities to person belonging to Sche-duled Caste and that is why, certain favoured treatment -is- given to him by the Constitution. Once such person ceases to be Hindu and becomes Christian, the social and economic disabilities arising because of Hindu religion cease and hence, it is no longer necessary to give him protection; and for this reason, he is deemed n0t to belong to Scheduled Caste. But, when he is reconverted to Hinduism, the social and economic disabilities once again revive and become attached to him, because, these are disabilities inflicted by Hinduism. Therefore. the object and purpose of the Constitution (Scheduled Castes) Order Would be advanced rather than retarded by taking the view that on reconversion to Ifindu-ism, person can once again become member of the Scheduled Caste to which he belonged prior to his conversion. [96 F-97 A](d) Out of the 12 circumstances relied on by the High Court, 5 are not of importance, namely, (i) that the respondent celebrated the marriages of his younger brothers in the Adi Dravida manner; (ii) that the respondent was looked upon as peace-maker among the Adi Dravida Hindlls of the locality· (iii) that the funeral ceremonies of the respondent's father were performed according to the Adi Dravida Hindu rites; (iv) that he participated in the first annual death ceremonies of another Adi Dravida; and (v) that the respon-dent participated in an All India Scheduled Castes Conference. The other seven circumstances, however, establish that the respondent \\'as accepted and treated as member of the Adi Dravida community, namely, (i) that be was invited to lay the foundation stone for the construction of the wall of an Adi Dravida temple; (ii) that he was asked to take part in the celebrations connected with an Adi Dravida temple; (iii) that he was asked to preside at festival con-nected with an Adi Dravida temple; (iv) that he was member of the Exe~ cutivc Committee of the Scheduled Caste Cell in the organisation of the Ruling

Congress; (v) that his children were registered in school as Adi Dravidas and that even the appellant had given certificate that the respondent's son was an Adi Dravida; (vi) that he V.'as treated as member of the Adi Dravida caste and was never diso\vned by the members of the caste; and (vii) that Scheduled Caste Conference \Vas held in the locality with the object of re-admitting the respondent into the fold of Adi Dravida Caste and that not only was the puri-ficatory ceremony performed on him at the Conference with view to clearing the doubt which had been cast on his membership of the Adi Dravida caste by the earlier decision of this Court, but also an address \Vas presented to him feli-fl citating him on the occasion. [97 C-98 F]

( 4) (a) The question whether on conversion to Christianity the respondent ceased to be member of the Adi Dravida caste is mixed question of law and fact and concession made by him in the High Court on that question does not prec_iude him from re-agitating it in the appeal before this Court. r:~9 0-H]

(b) Further, the decision given in the earlier case relating to the 1967 elections on the basis of the evidence led in that case, cannot operate as res judicata in the present case which relates to the 1972-election and \vhere fresh evidence· has been adduced by the parties and moreover, when all the parties in the present case are not the same as those in the earlier case. l89 H-90 B] (c) When 'caste' is referred to in modern times, the reference is not to the 4 primary castes. but to the innumerable castes and sub-castes that prevail in Hindu society. The general rule is that conversion operates as an expulsion from the caste, that is, convert ceases to have any caste, because. caste is pre-dominantly feature of Hindu Society and ordinarily person, '"ho ceases to be Hindu, would not be regarded by the other members of the caste as belonging to their fold. But it is not an invariable rule that \vhenever person renounces Hinduism and embraces another religious faith, he automatically ceases to be me1nber of the caste in which he was born and to which he be· longed prior to his conversion. Ultimately, it must depend on the struchJre of the caste and its rules and regulations whether person would cease to belong to the caste on his abjuring Hinduism. If the structure of the caste is such that its members, n1ust necessarily belol)g to Hindu religion, member, who ceases to be Hindu, would go out of the_caste, because, no non-Hindu can he in the caste according to its rules and regulations. Where, on the other hand, having regard to its structure, as. it has evolved over the years, caste may consist not only of persons professing Hinduism but also persons professing some other religion as well, conversion from Hinduism to that other religion may not involve loss of caste, because, even persons professing that other religion can be members of the caste. This might happen where caste is based on economic or occupational characteristics and not o.n religious identity, or the cohesion of the caste as social group is so strong that conversion into another religion does not operate to snap the bond between the convert and the social group. This is ~ndeed not an infrequent phenomenon in South India, where, in some of the castes, even after conversion to Christianity, person is regarded as continuing to belong to the caste. What is,_ therefore, material to consider is how the caste looks at the question of conversion. Does it outcaste or ex-communicate the convert or does it still treat him as continuing within its fold despite his conversion. If the convert desires and intends to continue as ;:i me1nhec of the caste and the caste also continues to treat him as member not\vithstanding his conversion, he v..·ould continue to be n1ember of the caste, and the views of the new faith hardly matter. Paragraphs 2 and 3 of the Constitutio_n (Scheduled Castes) Order, read together. also recognise th::it there may be castes specified as Scheduled Castes which comprise persons belonging to reli-gion different from Hindu or Sikh religion. In such cast~s, conversion of person from Hinduism cannot have the effect of putting hin1 out of the caste, though, by reason of para 3, he would be deemed not to be member of the· Scheduled Caste. [90 F; 91 B-G; 93 C-E. F-H]

Cooppoosan1i Clietty v. Duraisami Chetty, I.L.R. 33 Mad. 67: Mutl1usa1ni v. Masilarnani, I.L.R. 33 Mad. 342; G. Michael v. S. Venkateswara11, AIR 1952 Mad. 474: Kothapalli J'v'arasayya v. Ja1nn1ana Jogi, 30 E.L.R. 199; K. Nara-sin1ha Reddy v. G. Bhupathi, 31 E.L.R. 211; Gangat v. Returning Officer, [1975]

AIR 1952 K. Nara-

1. S.C.C. 589 and Chatturbhuj Vithafdas Jasani v. Moreshwar Prasahran1, [1954] S.C.R. 817, referred to.

[It would, therefore, prilna facie, seem that on conversio~ to C~ristianity, the respondent did not automatically cease to. belong to the Adi prav1da caste; bu~ in view of the decision that on reconversion he ":'as ~eadm1tted to the AdL Dravida faith, no final opinion was expresesd on this point.] [94 B-C]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1171 of 1973.

From the judgment and order dated the I 9th July, I 973 of the Mysore High Court at Bangalore in Election Petition No. 3 of 1972 .

. M. N. Phadke, M/s. N. M. Ghatate and S. Balakrishnan for the appellant.

A. K. Sen, G. L. Sanghi, M/s. M. Veerappa and Altai Ahmed for the respondents.

The Judgment of the Court was delivered by

BHAGWATI, J.-This appeal under s. 116-A of the Representation of People Act, 1951 is directed against an orde.r made by the Hi~h Court of Mysore setting aside the election of the appellant on the ground that the nomination paper of the 1st respondent was improperly rejected by the Returning Officer. This litigation does not stand in isolation. It has history and that is necessary to be noticed in order to appreciate the arguments which have been advanced on behalf of both parties in the appeal.

The appellant and the !st respondent have been opponents in the electoral battle since long time. The constituency from which they have been standing as candidates is 68 KGF Constituency for election to the Mysore Legislative Assembly. They opposed each other as candidates from this constituency in 196 7 General Election to the Mysore Legislative Assembly. Now, the seat from this constituency was seat reserved for Scheduled Castes and, therefore, only members of Scheduled Castes could stand as candidates from this constituency. The expression "Scheduled Castes" has technical meaning given to I it by cl. (24) of Art. 366 of the Constitution and it means "such castes, races or tribes or parts of or groups within such castes or tribes as are deemed under Art. 341 to be Scheduled Castes for the purpose of the Constitution". The President, in exercise of the power conferred upon him under Art. 341 issued the Constitution (Schedul-ed Castes) Order, 1950. Paragraphs 2 and 3 of this Order are material and, since the amendment made by Central Act 63 of 1956, they are in the following terms :

"2. Subject to the provisions of this Order, the castes, races or tribes or parts of, or groups within castes or tribes specified in Part I to XIII of the Schedule to · this Order shall, in relation to the States to which those parts respec-tively relate, be deemed to be scheduled castes so far as regards members thereof resident in the localities specified in relation to them in those Parts of that Schedule.

3. Notwithstanding anything contained in paragraph 2, no persou who professes religion different from the Hindu or the Sikh religion shall be deemed to be member of Scheduled Castes."

The Schedule to this Order in Part VIII sets out "the castes, races or tribes or parts of or groups within castes or tribes" which shall in the different areas of the State of Mysore be deemed to be Scheduled Castes. We are concerned with cl. (I) of Part VIII as the area of 68 KGF Constituency is covered by that clause. One of the castes specified there is Adi Dravida and that caste must, therefore, for the purpose of election from 68 KGF Constituency, be deemed to be Scheduled Caste. The appellant was admittedly, at the date when he filccl his nomination paper for the 1967 election from 68 KGF Constituency, an Adi Dravida professing Hindu relig10n and was consequently qualified to stand as candidate !or the reserved scat from this constituency. The 1st respondent also claimed to be an Adi Dravida professing Hindu religion and on this basis, filed his nomination from the same constituency. The appellant and the 1st respondent were thus rival candidates-in fact they were the only two contesting candidates- and in straight contest, the 1st respon-drnt defeated the appellant and was declared elected. The appellant thereupon filed election petition No. 4 of 1967 in the Mysore High Court challenging the election of the 1st respondent on t11c ground that the !st respondent was not an Adi Dravida pro-fessin~ Hindu religion at the date when he filed his nomination and was, therefore, not qualified to stand as candidate for the reserved scat from 68 KGF Constituency. The Mysore High Court, by an orJcr da:ed 30th August, 1967, held that the 1st respondent was converted to Christianity in 1949 and on such conversion, he ceased to be an Adi Dravida and, therefore, at the material date, he could not be said to be member of s,heduled Caste, nor did he profess Hindu religion, and he was consequently not eligible for being chosen as candidate for election from reserved constituency. The l st responJcnt being aggrieved by the order setting aside his election, preferred C.A. No. 1553 of 1967 to this Court under s. 116A of the Representation of People Act, 1951. This Court addressed itself to four question, namely, first, whether the 1st respondent had become convert to Christianity in 1949; secondly, whether, on such conver-sion, he ceased to be member of Adi Dravida caste; thirdly, whether he had reverted to Hinduism and started professing Hindu religion at the date of filing his nomination, and lastly, whether on again pro-G fessing the Hindu religion, he once again became member of Adi Dravida caste. So far as the first question was concerned, this Court, on consideration of the evidence, held that the 1st respondent was converted to Christianity in 1949 and in regard to the second ques-tion, this Court observed that it must be held that when the 1st res-pondent embraced Christianity in 1949, he ceased to belong to Adi Dravida caste. This Court then proceeded to consider the third question and held that having regard to the seven circumstances enu-merated in the judgment, it was clear that at the relevant time in 1967. that is in January-February 1967, the !st respondent was professing

Hindu religion. That led to consideration of the last question as to the effect of reconversion of the !st respondent to Hinduism. This Court referr<d to 1mmber of decisions of various High Courts which laid down the principle that "on reconversion to Hinduism, person can become member of the same caste in which he was born and to which he belonged before havin_g been converted to another reli-gion", and pointed out that the main basis on which these decisions proceeded was that "if the members of the caste accept the recon-version of person as member, it should be held that he docs become member of that caste, even though he may have lost membership of that caste on conversion to another religion". This Court, however, did not consider it necessary to express any opinion on the correctness of these decisions, as it found that even if the principle enunciated in these decisions was valid, the !st respondent did not give evidence to satisfy the requirements laid down by this principle and "failed to establish that he became member of the Adi Dravida Hindu caste after he started professing the Hindu religion". This Court observed that "whether the membership of caste can be acquired by con-version to Hinduism or after reconversion to Hinduism is question on which we have refrained from expressing our opinion, because on the assumption that it can be acquired, we have arrived at the con-clusion that the appellant", that is, the !st respondent in the present case, "must fail in this appeal". This Court accordingly upheld the decision of the High Court and dis1nissed the appeal. ([1]) This decision was given by Bench consisting of two judges on 3rd May, 1968. In the three or four years that followed certain events happened to which we shall refer little later. Suffice it to state for the present that, according to the 1st respondent, these events showed that the members of the Adi Dravida caste accepted him as member and regarded him as belonging to their fold. The next General Election to the Mysore Legislative Assembly took place in 1972. There was again contest from 68 KGF Constituency which was reserved for candidates from Scheduled Castes. T)le appellant filed his nomination as candidate from this constituency and so did the !st respondent. The nomination of the 1st respondent was, however, objected by the appellant on the ground that the 1st res-pondent was not an Adi Dravida professing Hindu religion at the date of filing his nomination and he was, therefore, not qualified to stand as candidate for the reserved seat from this constituency. The !st respondent rejoined by saying that he was never converted to Christianity and that in any event, even if it was held that he had be-come Christian, he was reconverted to Hinduism since long and was accepted by the members of the Adi Dravida caste as belonging to their fold and was, therefore, an Adi Dravida professing Hindu reli-gion at the material date and hence qualified to stand as candidate. The Returning Officer, by an order dated 9th February, 1972, up-held the objection of the appellant and taking the view that, on con-version to Christianity, the 1st respondent ceased to be an Adi Dravida and thereafter on reconversion, he could not claim the benefit of the Constitution (Scheduled Castes) Order, 1950, the Returning Officer

rejected the nomination of the 1st respondent. The election there-after took place without the !st respondent as candidate and the appeliaut, having obtained the highest number of votes, was declared elected.

The !st respondent filed Election Petition No. 3 of 1972 in the High Court of Mysore challenging the election of the appellant on 8 the £round that the nomination of the 1st respondent was improperly rejected. This was ground under s. 100 ( 1) ( c) of the Act and if well founded, it would be sufficient, without more, to invalidate the election. The poirit which was, therefore, seriously debated before the High Court was whether the nomination of the 1st respondent was improperly rejected and that in its turn depended on the answer to the question whether the 1st respondent was an Adi Dravida professing Hindu religion at the date of filing his nomination. There were four as-pects bearing on this question which arose for consideration and they were broadly the same as in the earlier case (supra), namely, whether the !st respondent embraced Christianity in 1949, whether on his con-version to Christianity he ceased to belong to Adi Dravida caste, whether he was reconverted to Hinduism and whether on such re-conversion, he was accepted by the members of the Adi Dravida caste as belonging to their fold. So far as the first three aspects were con-cerned, the High Court took the view that they must be taken to be concluded by the decision of this Court in the earlier case (supra) and the discussion of the question must, therefore, proceed on the established premise that the 1st respondent was born an Adi Dravcda Hindu, he was converted to Christianity in 1949 and on such conver-sion he lost his capacity as an Adi Dravida Hindu and at least by the year 1967, he had once again started professing Hindu religion. Vis-a-vis the fourth aspect, the High Court observed : "It is settled law. that reconversion to Hinduism does not require any formal ceremony or rituals or expiratory ceremonies, that reconvert to Hinduism can revert to i).is original Hindu caste on acceptance by the members of that caste and that the quantum and degree of proof of acceptance depends on the facts and circumstances of each case, according to the established customs prevalent in particular locality amongst the caste there", and on this view of the law, the High Court proceeded to examine the evidence led on behalf of the parties and pointed out that this evidence established twelve important circumstances subse-quent lo January-Febrnary 1967 which clearly showed that the 1st respondent was accepted into their fold by the members of the Adi Dravida caste and he was, therefore, at the material time, an Adi Dravida professing Hindu religion as required by Paragraphs 2 and 3 of the Constitution (Scheduled Caste) Order, 1950. The High Court, in this view, held that the nomination of the !st respondent was im-properly rejected by the Returning Officer and. that invalidated. the election under s. 100(1) (c) of the Act. The High Court accordmgly set aside the election of the appellant and declared it to be void. This judgment of the High Court is impugned in the present appeal under s. ll 6A of the Act.

Now before we deal with the contentions urged on behalf of the aprcllant in support of the appeal, it would be convenient first to

refer to two grounds which were held by the High Court against the 1st respondent. The 1st respondent contended that these two grounds were wrongly decided against him and even on these two grounds, he was entitled to claim that, at the material time, he was an Adi Dravida professing Hindu religion. The first ground was that he was never converted to Christianity and the second was, that, on such conversion, he did not cease to be an Adi Dravida. The appel-lant disputed the clainr of the 1st respondent to agitate these two grounds in the appeal before us. The reason given was that the !st respondent had not pressed them in the course of the arguments before the High Court and had conceded that, in view of the judg-ment of this Court in the earlier case, Issue No. 3, which raised the question: "Whether the petitioner having abandoned Hinduism und embraced Christianity in the year 1949 had lost the membership of the Adi Dravida Hindu caste and incurred the disqualification under Paragraph 3 of the Constitution (Scheduled Castes) Ori!er, 1950" and "Is this issue concluded against the petitioner by virtue of the judgment of the High Court in Civil Appeal 1553 of 1967", did not survive for consideration. There can be no doubt that so far as the first of these two grounds is concerned, there is force in the objection raised 0n behalf of the appellant.

The question wh~ther the 1st respondent abandoned Hinduism and embraced Christianity in 1949 is essentially question of fact and if, at the stage of the. arguments before the High Court, the 1st respondent conceded that, in view of the decision of this Court in the earlier case, this question did not survive for consideration and the High Court, acting on the concession of the 1st respondent, refrained from examining the question on merits and proceeded on the basis that it stood concluded by the decision of this Court in the earlkr case, how could the 1st respondent be now permitted to re-agitate this question at the hearing. of the appeal before this Court ? The 1st respondent. mnst be held bound by the concession made by him on question of fact before the High Court. We cannot, there-fore, permit the 1st respondent to raise an argument that the evidence <Jn record does not establish that he embraced Christianity in 1949. We must proceed on the basis that he was converted to Christianity in that year.

The position is, however, different when we turn to the question whe:her, on conversion to Christianity, the 1st respondent ceased to be member of the Adi Dravida caste. That question is mixed question of law and fact and we do not think that concession made by tk 1st r~spondent on snch question at the stage of argument before the High Court, can preclude him from reagitating it in the .appea1 before this. Court, when it formed the subject matter of an issue before the High Court and full and complete evidence in reoard to su-:h issue was led by both parties. It is true that this Court held in the earlier case that, on embracing Christianity in 1949, the l st respondent ceased to be member of the Adi DraVida caste but this decision given in case relating to 1967 General Election on' the basis of the eyidence led in that case, cannot ?e res judicata in the present case wh,ch relates to 1972 General Elecl!on and where fresh evidence

has been adduced on behalf of the parties, and more so, when all the parties in the present case are not the same as those in the earlier case. It is, tlierefore, competent to us to consider whether, ou the evidence on record in the present case, it can be said to have been established that, on conversion to Christianity in 194?, the 1st res-pondent ceased to belong to Adi Dravida caste.

It is matter of common knowledge that the institution of caste is peculiarly Indian institution. There is consider-able controversy amongst scholars as to how the caste system originated in this country. It is not necessary for the purpose of this appeal to go into this highly debatable question. It is sufficient to state that originally there were only four main caste~ but gradual-ly castes and sub-castes multiplied as the social fabric e,ipanded with the absorption of different groups of people belonging to various cults and professing different religious faiths. The caste system in its early stages was quite elastic but in course of time it gradually hardened into rigid framework based upon heredity. Inevitably it gave rise to gradation which resulted in social inequality and put premium on snobbery. The caste system tended to develop, as it were, group snobbery, one caste looking down upon another. Thus there came into being social hierarchy and stratification resulting in perpetration of social and economic injustice by the so-called higher castes on the lower castes. It was for this reason that it was thought necessary by the Constitution makers to accord favoured treatment to the lower castes who were at the bottom of the scale of social values and who were afllicted by social and economic disabilities and the Constitu-tion makers accordingly provided that the President may specify the castes and these would obviously be the lower castes which had suffer-ed centuries of oppression and exploitation-which shall be deemed to be Scheduled Castes and laid down the principle that seats should be reserved in the legislatnre for the Scheduled Castes as it was be-lieved and rightly, that the higher castes would not properly represent the mterest of these lower castes.

But that immediately raises the question : what is caste? When we speak of caste, we do not mean to refer in this context to the four primary castes, but to the multiplicity of castes and sub-castes which disfigure the Indian social scene. "A caste'', as pointed out by the High Court of Madras in Cooppoosami Chetty v. Duraisami Chet-ty( ') "is voluntary association of persons for certain purposes." It is well defined yet fluctuating group of persons governea by their own rules and regulations for certain internal purposes. Sir H. Risley has shown in his book on People of India how castes are formed based not only on community of religion, but also on community of functions. It is also pointed out by Sankaran Nair, J., in Muthusami v. Masilamani([2 ]) : "-a change in the occupation sometimes creates new caste. common occupation sometimes combines members of different castes into distinct body which becomes new caste. Migration to another place makes sometimes new caste". caste is more social combination than religious group. But since, as (!) I. L. R. 33 Mad. 67. (2) I. L. R. R. 33 Mad. 342. 342.

(2) I. L. R. R. 33 Mad. 342. 342.

pointed out by Rajamannar, C.J., in C. Michael v. S. Venkateswa-A ran (1), ethics provides the standard for social life and it is founded ultimately on religious beliefs and doctrines, religion is inevitably mixed up with social conduct and that is why caste has become an integral feature of Hindu society. But from that it does not necessari-ly follow as an invariab.le rule that whenever person renounces Hinduism and embraces another religious faith, he automatically ceases to be member .of the caste in which he was born and to which he belonged prior to his conversion. It is no doubt true; and there we agree with the Madras High Court in C. Michael's case (supra) that the general rule is that conversion operates as an expulsion from the caste, or, in other words, the convert ceases to have any caste, be-cause caste is predominantly feature of Hindu society and ordinarily person who ceases to be Hindu would not be regarded by the other member> of the caste as belonging to their fold. But ultimately it must depend on the structure of the caste and its rules aud regula-tions whether person would cease to belong to the caste on his abjuring Hinduism. If the structure of the caste is such that its mem-bers must necessarily belong to Hindu religion, member, who ceases to be Hindu, would go out of the caste, because no non-Hindu can be in the caste according to its rules and regulations. Where, on the other hand, having regard to its structure, as it has evolved over the years, caste may consist not only of persons pro-fessing Hindu religion but also persons professing some other religion as well, conversion from Hinduism to that other religion may not involve loss of caste, because even persons professing such other religion can be members of the caste. This might happen where caste is based on economic or occupational characteristics and not on religious identity or the cohesion of the caste as social group is so strong that conversion into another religion does not operate to snap the bond between the convert and the social group. This is indeed not an infrequent phenomenon in South India where, in some of the castes, even after conversion to Christianity, person is regarded as continuing to belong to the caste. When an argument was advanced before the Madras High Court in G. Michael's case (supra) "that there were several cases in which member of one of the lower castes II who has been converted to Christianity has continued not only to con-sider himself as still being member of the caste, but has also been considered so by other members of the caste who had not been con-verted," Rajamannar, C.J., who, it can safely be presumed, was familiar with the customs and practices prevalent in South India, accepted the position "that instances can be found ill which in spite of conversion the caste distinctions might continue", though he treated them as exceptions to the general rule.

_ The High Court of Andhra Pradesh also affirmed in Kothapalli Narasayya v. Jammana Jogi(') that "notwithstanding conversions, the converts whether an individual or family or group of converts, may like to be governed by the law by which they were g,averned before they became converts-and the community to which they originally

(1)- A.l.R. 1952 Mad. 474.

(2) 30 EL. R. I.

belonged may also continue to accept them within their fold notwith-standing conversion", and proceeded to add :

"While tendency to divide into sects and division to form new sects with their own religious and social observances is characteristic feature of Hinduism-it should be remem-bered that sects were formed not only on community of reli-gions but also community of functions. Casteism which has taken deep roots in Hinduism for some reason or other may not therefore cease its existence even after conversion. May be that the religion or faith to which conversion takes place, on grounds of policy or otherwise, does not take exception to this social order which does not interfere with its spiri-tual or theological aspect which is the main object of the religion. That is why we find several members of lower castes converted to Christianity in Madras State-still c011·· tinue to the members of their castes-Thus conversion docs not necessarily result in extinguishment of caste and notwithstanding conversion, convert may enjoy the pri-vileges social and political by virtue Of his being member of the community with its acceptance."

The elected candidate in this case was held to continue to belong to the Mala Andhra Caste which was Scheduled Caste, despit.e his conversion to Christianity. It was again reiterated by the High Court of Andhra Pradesh in subsequent decision reported in K. Narasimha Reddy v. G. Bhupathi(l) that survival of caste after conversion to Christianity is not an unfamiliar phenomenon in this part of the country and it was held that, even after his conversion ,to Christia-nity, the elected candidate, who belonged to Bindla caste, specified as Scheduled Caste, continued to retain his caste, since he never abjured his caste nor did his caste people ostracize or excommunicate. him. The caste system is indeed so deeply ingrained in the Indian mind that, as pointed out by this Court in Ganpat v, Returning Offi-cer,(') "for person who has grown up in Indian society, it is very difficult to get out of the coils of the caste system·· and, therefore, even conversion to another religion like Christianity, has in some cases no impact on the membership of the caste and the other men,. bers continue to regard the convert as still being member of the caste. This Court pointed out in Ganpat's case (supra) that "to this day one sees matrimonial advertisements which want Vellala Chris-tian bride or Nadar Christian bride" which shows that Vellala and Nadar comprise both Hindus and Christians.

It seems that the correct test for determining this question is the one pointed out by this Court in Chatturbhuj Vithaldas Jasani v. Moreshwar Prasahram.(") Bose, J., speaking on behalf of the Court in this case pointed out that when question arises whether conver-sion operates as break away from the caste "what we have to

(1) 31 E.L.R.211. (2) [197511 S.C.C. 589.

(3) [19541S.C.R.817.

determine are the social and political consequences of such conversion that, we feel, must be decided in common sense practical way rather than on theoretical and theocratic grounds". The learned Judge then proceeded to add :

The learned Judge

"Looked at from the secular point of view, there are three factors which have to be considered : ( 1) the reac-tions of the old body, (2) the intentions of the illilividua[ himself and (3) the rules of the new order. If the old order is tolerant of the new faith and sees no reason to outcaste or ex-communicate the convert and the individual himself desires and intends to retain his old social political ties, the conversion is only nominal for all practical purposes and when we have to consider the legal and political rights of the old body, the views of the new faith hardly matter."What is, therefore, material to consider is how the caste looks at the question of conversion. Does it outcaste or ex-communicate the convert or does it still treat him as continuing within its fold despite his conversion ? If the convert desires and intends to continue as member of the caste and the caste also continues to treat him as member, notwithstanding his conversion, he would continue to be member of the caste and, as pointed out by this Court "the views of the new faith hardly matter". This was the principle on which it was decided by the Court in Chatturbhuj Vithaldas Jasani's case (supra) that Gangaram Thaware, whose nomination as Scheduled Caste candidate was rejected by the Returning Officer, continued to be Mahar which was specified as Scheduled Caste, despite his conversion to the Mahanubhav faith.

Paragraphs 2 and 3 of the Constitution (Scheduled Castes) Or-der, 1950 also support the view that even after conversion, person may continue to belong to caste which has been specified in the Schedule to that Order as Scheduled Caste. Paragraph 2 provides that the castes specified in the Schedule to the Order shall be deemed to be Scheduled Castes but Paragraph 3 declares that, notwithstanding anything contained in Paragraph 2, that is, notwithstanding that per-son belongs to caste specified as Scheduled Caste, he shall not be deemed to be member of the Scheduled Caste, if he profess reli-gion different from Hindu or Sikh religion. Paragraphs 2 and 3 read together thus clearly recognise that there may be castes specified as Scheduled Castes which comprise persons belonging to religion dif· ferent from Hindu or Sikh religion and if that be so, it must follow fortiori, that in such castes, conversion of person from Hinduism cannot have the effect of putting him out of the caste. though by reason of Paragraph 3 he would be deemed not to be member of Scheduled Caste.

It cannot, therefore, be laid down as an absolute rule uniformly applicable in all cases that whenever member of caste is converted from Hinduism to Christianity, he loses his membership of the caste. It is true that ordinarily on conversion to Christianity, he would cease to member of the caste, but that is not an invariable rule. It

would depend on the structure of the caste and its rules and regula-tions. There are castes, particularly in South India, where this consequence does not follow on conversion, since such castes com-prise both Hindus and Christians. Whether Adi Dravida is caste which falls within this category or not is question which would have to be determined on the evidence in this case. There is on the record evidence of Kakkan (PW 13) J.C. Adimoolam (RW 1) and K. P. Arumugam (RW 8), the last two being witnesses examined on behalf of the appellant, which shows that amongst Adi Dravidas, there are both Hindus and Christians and there are inter-marriages. bet-ween them. It would, therefore, prima facie seem that, on conver-sion to Christianity, the 1st respondent did not cease to belong to Adi Dravida caste. But in the view we are taking as regards the last contention, we do not think it necessary to express any final opinion on this point.

The third question in controversy between the parties was whet-her the 1st respondent was reconverted to Hinduism. This question stands concluded by the decision of this Court in the earlier case and it must be held. for the reasons set out in that decision, that at any rate since prior to January-February 1967, the 1st respondent was reconverted to Hinduis!Il and, therefore, at the material time, he was professing the Hindu religion, so as to satisfy the requirement of Paragraph 3 of the Constitution (Scheduled Castes) Order, 1950.The last contention, which formed the subject matter o[ contro-versy between the parties, raised the issue whether on reconversion to Hinduism, the !st respondent could once again become member of the Adi Dravida caste, assuming that he ceased to be such on conversion to Christianity. The argument of the appellant was that once the 1st respondent renounced Hinduism and embraced Christia-nity, he could not go back to the Adi Dravida caste on reconversion to Hinduism. He undoubtedly became Hindu, but he could no longer ·claim to be member of the Adi Dravida caste. This argu-ment is not sound on principle and it also runs counter to long line of decided cases. Ganapathi Iyer, distinguished scholar and jurist, pointed out as far back as 1915 in his well known treatise on 'Hindu Law' :

"~ - - caste is s«;ial combination, the members of which are enlisted by birth and not by enrolment. People do not join castes or religious fraternities as matter of choice (in one respect); they belong to them as matter of neces-sity; they are born in their respective .castes or sects. It cannot be said however that membership by caste zs deter-mined only b/ birth and not by anything else." (emphasis

supplied) .. "I · · l · Chandravarkar, J., observed in Nathu v. Keshwa11([1]) : • t. is w1.t i~n the power of caste to admit into its fold mei: n?l born ~n 1t as 11 1s within the power of club to admit an)'.one 1t hkes as its .men:iber. To hold that the membership of caste 1s detcrmmed by birth 1s to

hold that the caste cannot, if it likes, mix with another caste and form both into one caste. That would be striking at the very root of caste autonomy." Sankaran Nair, J., made observations to the same effect in Muthusami's case (supra) and concluded by saying : "It is, of course, open to community to admit any person and any marriage performed between him and any member would in my opinion, be valid". Ganapathi Iyer, after referring to these two decisions, proceeded to add : "Of course it is open to person to change his caste by entering another caste if such latter caste will admit him-in this sense there is nothing to prevent person from giving up his caste or community just as the caste may re-admit an expel-led person or an outcasted person if he conforms to the caste obser-vances." Since caste is social combination of persons governed by its rules and regulations, it may, if its rules and regulations so provide, admit new member just as it may expel an existing mem-ber. The rules and regulations of the caste may not have been for-malised : they may not exist in black and white : they may consist only of practices and usages. If, according to the practices and usages of the caste any particular ceremonies are required to be per-formed for readmission to the caste, reconvert to Hinduism would have to perform those ceremonies if he seeks readmission to the caste. That is why Parker, J., dealing with the possible readmission of Ieconvert to Brahminism observed in Administrator-General of Mad-ras v. Anandchari([1]) :

"His conversion to Christianity according to the Hindu law, rendered him an outcaste and degraded. But accorcl· ing to that law, the degradation might have been atoned for, and the convert readmitted to his status as Brahmin, had he at any time during his life renounced Christianity and performed the rites of expiation enjoined by his caste." The rites of expiation were referred to by the learned Judge because they were enjoined by the Brahmin caste to· which the reconvert wanted to be readmitted. But if no rites or ceremonies are required to be performed for readmission of person as member of the caste, the only thing necessary for readmission would be the accept-ance of the person concerned by the other members of the caste. This was pointed out by Varadachariar, J., in Gurusami Nadar v. Iru/appa Konar('); where after referring to the aforesaid passage from Admi-nistrator-General of Madras v. Anandchari (supra), the learned Judge said :

"The language used in 9 Mad 466 merely refers to the expiatory ceremonies enjoined by the practice of the com· munity in question; and with reference to the class of people we are now concerned with, uo suggestion has anywhere been made in the course of the evidence that any particular expiatory ceremonies am observed amongst them. No parti-cular ceremonies are prescribed for them by the Smriti wri-ters nor have· they got to perform any Homas. One has therefore only to look at the sense of the community and

(2) A. I. R. 1934 Mad. 630.

(1) I. L. R. 9 Mad. 466.

from that point of view it is of particular significance that the community was prepared to receive Vedanayaga and defendant 5 as man and wife and their issue as legitimate.'"

The.se observations of Varadachariar, J., were approved by Mockett, J., 111 Durgaprasada Rao v. Sudarsanaswami( [1]) and he pointed out that in the case before him, there was no evidence of the existence of any ceremonial in Vada Baligi fishermen community of Gopalpur for readmission to that community. Krishnaswami Ayyangar, J., also observed in the same case that "in matters affecting the wBII being or composition of caste, the caste itself is the supreme judge". (em-phasis supplied). The same view has also been taken in number of decisions of the Andhra Pradesh and Madras High Courts in election petitions arising out of 1967 General Election. These decisions have been set out in the judgment of this Court in Rajagopal v. C.R. Aru-mugam (supra).

These cases show that the consistent view taken in this country from the time Administrator-General of Madras v. Anandachari (supra) was decided, that is, since 1886, has been that on recon-D version to Hinduism, person can once again become member of the caste in which he was born and to which he belonged before con-version to another religion. if the members of the caste accept him as member. There is no reason either on principle or on authority which should compel us to disregard this view which has prevailed for almost century and lay down different rule on the subject. If person who has embraced another religion can be reconvened to Hinduism, there is no rational principle why he should not be able to come back to his caste, if the other members of the caste are pre-pared to readmit him as member. It stands to reason that he should be able to come back to the fold to which he once belonged. provided of course the community is willing to take him within the· fold. It is the orthodox Hindu society still dominated to large extent, particularly in rural areas, by medievalistic outlook and status-F oriented approach which attaches social and economic disabilities to person belonging to Scheduled Caste and that is why certain favoured treatment is given to him by the Constitution. Once such person ceases to be Hindu and becomes Christian, the social and economic disabilities arising because of Hindu religion cease and hence it is no longer necessary to give him protection and for this reason he is deemed not to belong to Scheduled Caste. But when he is reconverted 10 Hinduism, the social and econon1ic disabilities once aQain revive and become attached to him because these are disabili-ties inflicted by Hinduism. Mahar or Koli or Mala would not be recognised as anything but Mahar or Kali or Mala aft~r reconversion to Hinduism and he would suffer from the same social and economic disabilities from which he suffered before he was con-verted to another religion. It is, therefore, obvious that the ob.iect and puroose of the Constitution (Scheduled Castes) Order. 1950 would be advanced rather than retarded by taking the view that on.reconversion to Hinduism, person can once again become mem-ber of the Scheduled Caste to which he belonged prior to his conver-sion. We accordingly agree with the view taken by the High Court that on reconversion to Hinduism, the !st respondent could once again revert to his original Adi Dravida caste if he was accepted as such by the other members of the caste.

That takes us to the question whether in fact the !st respondent was accepted as member of the Adi Dravida caste after his recon-version to Hinduism. This Court in the earlier decision between the parties found that the !st respondent had not produced evidence to show that after his reconversion to Hinduism, any step had been taken by the members of the Adi Dravida caste indicating that he was being accepted as member of that caste. The !st respondent, therefore, in the present case, led considerable orai as well as documentary evi-dencc tending to show that subsequent to January-February 1967, the !st respondent had been accepted as member of the Adi Dravida caste. The High Court referred to twelve circumstances appearing from the evidence and held on the basis of these twelve circumstances, that the Adi Dravida caste had accepted the l st respondent as its member and he accordingly belonged to the Adi Dravida caste at the material time. Now, out of these twelve circumstances, we do not attach any importance to the first circumstance which refers to the celebrations of the marriages of his younger brother Govindaraj and Manickam by the I st respondent in the Adi Dravida m~nner, be-cause it is quite natural that if Govindaraj and Manickam were Adi Dravida Hindus, their marriages woukl be celebrated according to Adi Dravida rites and merely because the I st respondent, as their elder brother, celebrated their marriages, it would not follow that he was also an Adi Dravida Hindu. The scccud circumstance that the !st respondent was looked upon as peace-maker among the Adi Dravida Hindus of K.G.F. cannot also be regarded as of much signi-ficance, because, if the !st respondent was recognised leader, it is quite possible that the Adi Dravida Hindus of K.G.F. might go to him for resolution of their disputes, even though he himself might not be an Adi Dravida Hindu. But the third, fourth and fifth cir-cumstances are of importance, because, unless the 1st respondent was recognised and accepted as an Adi Dravida Hindu. he would not have been invited to lay the foundation stone for the construction of the new wall of the temple of J ambakullam. which was essentially temple of Adi Dravida Hindus, nor would he have been requested to participate in the Maroazhi Thiruppavai celebration at the Kanna-bhiran Temple situate at II! Line, Kennedy Block, K.G.F., which was also temple essentially maintained by the Adi Dravida Hindus and equally, he would not have been invited to preside at the Adi Krittikai festival at Mariamman Temple in I. Post Office Block, Marikuppam, K.G.F. where the devotees are Adi Dravidas or to start the procession of the Deity at such festival. These three circumstances are strongly indicative of the fact that the lst respondent was accept-ed and treated as member by the Adi Dravida community. So also does the sixth circumstance that the !st respondent was member of the Executive Committee of the Scheduled Caste Cell in the organi-sation of the Ruling Congress indicate in the same direction. The

seventh and eighth circumstances are again of neutral cha~acter. The funeral ceremonies and obsequies of the father of the !st respon-dent would naturally be performed according to the Adi Dravida Hindu rites if he was an Adi Dravida Hindu and that would not mean that the 1st respondent was also an Adi Dravida Hindu. Similarly, the fact that the !st respondent participated in the first annual ceremonies of the late M. A. Vadivelu would not indicate that the !st respondent was also an Adi Dravida Hindu like late M. A. Vaidivelu. But the ninth circumstance is again very important. It is significant that the children of the 1st respondent were registered in the school as Adi Dravida Hindus and even the appellant himself issued certificate stating that R. Kumar, the son of the !st respondent, was Sche-duled Caste Adi Dravida Hindu. The tenth circumstance that the first respondent participated in the All India Scheduled Castes Confer-c ence at New Delhi on 30th and 31st August, 1968 may not be regarded as of any particular importance. It would merely indicate his intention and desire to regard himself as member of the Adi Dravida Caste. The eleventh circumstance is, however, of some importance, because it shows that throughout the !st respondent was treated as member of the Adi Dravida Caste and· he was never dis-owned by the members of that caste. They always regarded him as an Adi Dravida belonging to their fold. But the most important of all these circumstance is the twelfth, namely, the Scheduled Caste Conference held at Skating Rink, Nundydroog Mine, K.G.F. on 11th August, 1968. The High Court has discussed the evidence in regard to this conference in some detail. We have carefully gone through the evidence of the witnesses on this point, but we do not find any-thing wrong in the appreciation of their evidence by the High Court. We are particularly impressed by the evidence of Kakkan (PW 13). The cross-examination of J. C. AdimOQ!am (RW 1) is also quite re-vealing. We find ourselves completely in agreement with the view taken by the High Court that this conference, attended largely by Adi Dravida Hindus, was held on 11th August, 1968 inter alia with the object of re-admitting the !st respondent into the fold of Adi Dravida caste and ant only was purificatory ceremony performed on the !st respondent at this conference with view to clearing the doubt which had been cast on his membership of the Adi Dravida caste by the decision of this Court in the earlier case but an address Ex. P-56 was also presented to the !st respondent felicitating him on this occasion.

It is clear from these circumstances, which have been discussed .G and accepted by us, that after his reconversion to Hinduism, the !st respondent was recognised and accepted J!S member of the ~di Dra-, vida caste by the other members of that commumty. The High Court ~ was, therefore, right in coming to the concfosion t~at at the material . time the 1st respondent belonged to the Adi Drav1da caste so as to · fall within the category of Scheduled Castes under Paragraph 2 of the Constitution (.Scheduled Castes) Order, 1950.

Jn the result the appeal fails and is dismissed with costs.