⁄UÁ¡S≈˛UË ‚¢¯ «U˯ ∞‹¯ (∞Ÿ) Æy/ÆÆÆ|/wÆÆxóÆz
REGD. NO. D. L. (N) 04/0007/2003—05
Hkkjr fuokZpu vk;ksx
ubZ fnYyh] 13 flrEcj] 2011
vk-v- 159 -—yksd izfrfuf/Ro vf/fu;e] 1951 (1951
dk 43) dh /kjk 106 ds vuqlj.k esa Hkkjr fuokZpu vk;ksx] 2010
dh flfoy vihy la[;k 6391&6393@2010 esa Hkkjr ds loksZPp U;k;ky;
ds 12 ebZ] 2011 dk fu.kZ;@vkns'k ;gka izdkf'kr djrk gS A
(fu.kZ; vf/lwpuk ds vaxszth Hkkx esa Nik gS)
¹la- 82@dsjy&yks-l-@3]7]8@2009@2010º
vkns'k ls]
ril dqekj] iz/ku lfpo
ELECTION COMMISSION OF INDIA
New Delhi, the 13th September, 2011
O. N. 159 .—In pursuance of Section 106 of the
Representation of the People Act, 1951 (43 of 1951), the
Election Commission hereby publishes the judgment of
the Supreme Court of India dated 12th May, 2011 in Civil
Appeal Nos. 6391—6393 of 2010.
[No. 82/KL-HP/3,7,8/2009/2010]
3933 GI/2011
(269)
izkf/dkj ls izdkf'kr
PUBLISHED BY AUTHORITY
lkIrkfgd
WEEKLY
la- 29]
ubZ fnYyh, vDrwcj 30—uoEcj 5] 2011] 'kfuokj@dk£rd 8—dk£rd 14] 1933
No. 29]
NEW DELHI, OCTOBER 30—NOVEMBER 5, 2011, SATURDAY/KARTIKA 8—KARTIKA 14, 1933
bl Hkkx esa fHkUu i`"B la[;k nh tkrh gS ftlls fd ;g i`Fkd ladyu ds :i esa j[kk tk lds
Separate Paging is given to this Part in order that it may be filed as a separate compilation
Hkkx IIó[k.M 3ómi&[k.M (iii)
PART II—Section 3—Sub-section (iii)
dsUæh; vf/dkfj;ksa (la?k jkT; {ks=k iz'kkluksa dks NksM+dj) }kjk tkjh fd, x, vkns'k vkSj vf/lwpuk,a
Orders and Notifications Issued by Central Authorities (other than the Administrations of Union Territories)
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs. 6391—6393 OF 2010
Kodikunnil Suresh @ J. Monian
... Appellant
Versus
N. S. Saji Kumar, Etc. Etc.
. .. Respondents
JUDGMENT
A. K. PATNAIK, J.
This is an appeal under Section 116A of the
Representation of the People Act, 1951 (for short ‘the Act’)
against the common order dated 26-07-2010 of the Kerala
High Court in Election Petition Nos. 3 of 2009,7 of 2009
and 8 of 2009 declaring the election of the appellant to the
House of People from the Mavelikkara Parliamentary
Constituency reserved for the Scheduled Castes void
under Section 100 (1 )(a) and (d) (i) of the Act.
2. The facts very briefly are that No.16 Mavelikkara
Parliamentary Constituency is reserved for the Scheduled
Castes. Section 4 (a) of the Act provides that a person
shall not be qualified to be chosen to fill a seat in the
270
THE GAZETTE OF INDIA : NOVEMBER 5, 2011/KARTIKA 14, 1933
[PART II—SEC. 3(iii)]
House of the People unless in the case of a seat reserved
for the Scheduled Castes in any State, he is a member of
any of the Scheduled Castes, whether of that State or of
any other State and is an elector for any Parliamentary
Constituency. For elections to the Mavelikkara reserved
constituency in the year 2009, the appellant filed his
nominations before the Returning Officer on
23-03-2009 declaring in the nomination papers that he
belongs to the Hindu Cheramar Caste and filed alongwith
the nomination papers a caste certificate dated 12-03-2009
issued by the Tehsildar, Nedumangad that the Caste
Cheramar has been declared as a Scheduled Caste in
relation to the State of Kerala in Entry 54 in Part VIII of the
Schedule to the Constitution (Scheduled Castes) Order,
1950. Objections were filed before the Returning Officer
contending that the appellant was not a member of the
Scheduled Caste and instead he was a Christian. The
Returning Officer after examining the nomination papers
of the appellant rejected the objections and accepted the
nomination papers of the appellant under Section 36 of
the Act. Polling in the constituency took place on
16-04-2009 and after counting, the result of the election
was declared on 16-05-2009. The appellant secured 3,97,211
votes and the appellant was declared elected by a margin
of 48,048 votes over the defeated candidate who secured
3,49,163 votes.
3. The election of the appellant was challenged by
two voters of the Mavelikkara Parliamentary Constituency
in Election Petition Nos. 3 of 2009 and 8 of 2009 and by the
defeated candidate in Election Petition No.7 of 2009. The
ground of challenge in Election Petition Nos. 3 of 2009
and 8 of 2009 was that the appellant was a Christian and
under the Constitution (Scheduled Castes) Order, 1950
only a Hindu can be a Scheduled Caste and not being a
Scheduled Caste, he was not qualified to be chosen to fill
a seat in the House of the People under Section 4(a) of the
Act and accordingly his election was void under Section
100 (1) (a) of . the Act. In Election Petition No.7 of 2009
filed by the defeated candidate, besides the aforesaid
grounds, an additional ground was taken that the
nomination of the appellant was improperly accepted and
that the election of the appellant was void under Section
100(1)(d)(i) of the Act, inasmuch as the result of the election
so far as it concerned the returned candidate had been
materially affected by the improper acceptance of the
nomination of the appellant. The appellant pleaded in his
written statements filed in the three cases that his father
and mother were both Hindus, but due to their poverty
they had availed various reliefs from Christian Missionaries
and that is why his father was known as Joseph is further
case was that in 1978 he had undergone an expiatory
ceremony and had reconverted himself to Hinduism and
had also been accepted as a member of the Cheramar caste
and he was therefore qualified to contest the election from
the Mavelikkara Parliamentary Constituency reserved for
Scheduled Castes. The High Court framed issues in the
three cases, examined witnesses and admitted documents
and on consideration of the oral testimony and
documentary evidence declared the election of the
appellant void under Sections 100 (l)(a) and 100 (l)(d)(i) of
the Act by the impugned order.
4. The findings recorded by the High Court in the
impugned order are that the appellant was born to Christian
parents and due to conversion to Christianity the parents
of the appellant had lost their caste because. Christianity
did not admit any differentiation on the basis of castes.
The High Court further held that when the appellant
undertook the expiatory ceremony in 1978 to convert
himself to Hinduism, he had not attained the age of
discretion as he was under 18 years of age. The High
Court, however, held that though the appellant married a
Hindu and he professed Hindu religion from the time of
his admission in the law college at Thiruvananthapuram,
there was no acceptable evidence to prove that the
appellant was accepted as a member of the Cheramar Caste
after his re-conversion to Hinduism. Relying on the
decisions of this Court that without acceptance by the
Scheduled Caste community after re-conversion, the
reconvert does not get back to his original caste, held that
the appellant after his re-conversion did not become a
member of the Cheramar Caste and hence he was not
qualified to contest from the Mavelikkara reserved
constituency and his nomination was improperly accepted
and his election was void.
5. Mr. P. P. Rao, learned counsel for the appellant,
submitted that although the appellant pleaded in his
written statements and led evidence to show that his
father Kunjan and his mother Thankamma were Hindus,
the High Court unfortunately has observed in the
impugned order that the fact that his father was converted
to Christian religion was not seriously disputed at the
time of recording the evidence. He submitted that in his
written statements filed in the three cases the appellant
has denied that his parents were Christian and has
explained that his father came to be called as ‘Joseph’ by
the Christian Missionaries to whom his father went for
help. He submitted that the name of the mother of the
appellant was Thankamma, which is not a Christian name.
The case of the appellant was that his parents continued
to profess and practice Hinduism. He submitted that in
Ajit Datt Ethel Walters & Ors. [AIR 2001 Allahabad 109]
the Allahabad High Court has taken the view that
without baptism there can be no conversion. He submitted
that no documentary evidence had been produced by the
respondents to establish that the father of the appellant
was baptised and inducted into the Christian religion. He
argued that no clergyman or pastor or Christian priest or
any person from a Church has been examined to establish
that the father of the appellant was converted to Christian
religion by baptism. He referred to the evidence of PW-l
¹Hkkx IIó[k.M 3(iii)º
Hkkjr dk jkti=k % uoEcj 5] 2011@dk£rd 14] 1933
271
N. S. Saji Kumar, the petitioner in Election Petition No. 3 of
2009, to show that he had no knowledge about the family
of the appellant at all and had not made any inquiry to find
out the religion of the father of the appellant. He also
referred to the evidence of PW-2 P.K. Padmakaran, the
petitioner in Election Petition No.8 of 2009, to show that
he had not gone to Church to find out whether the father
of the appellant was Christian and all that he has said in
his evidence is that the appellant was born as a Christian.
He submitted that similarly PW -3 K. Prakash Babu, the
Chief Election Agent of the defeated candidate, has merely
stated in his evidence that when the appellant was born,
his father was a Christian. He submitted that the entire
case of the three Election Petitioners appears to be based
on the entries in the School Admission Register (Exhibit
P-9) in which the religion of the appellant is mentioned as
Christian, but the said entries were made on the basis of
the information furnished by Thomas, who did not really
know that the religion of the father of the appellant was
Hinduism and not Christianity. He cited M. Chandra v.
M. Thangamuthu [2010 (9) SCALE 145] in which this Court
has held that the burden of proving that the returned
candidate was a Christian and did not belong to a
Scheduled Caste as per the Presidential Order is on the
election petitioner. He also cited an unreported decision
of this Court delivered on 30-04-2009 in Ranjana v. State of
Maharashtra by which the case was remanded to the High
Court as there was no evidence to establish that the parents
of the returned candidate had converted to Christianity
before the returned candidate was born.
6. Mr. K. K. Venugopal, learned counsel appearing
for the respondent in Civil Appeal No. 6392 of 2010, on
the other hand, submitted that there was sufficient
evidence before the High Court to establish that the
parents of the appellant were Christian. In this connection,
he referred to Exhibits P4, P9 and P10 to show that the
religion of the appellant was Christianity and not Hinduism
as per his school records and School Leaving Certificate.
He submitted that the documents Exhibits P4, P9 and PI0
once admitted and marked as Exhibits, the contents of
these Exhibits are also admitted in evidence. He cited the
decision of this Court in P.C. Purushotham Reddiar v.
S. Perumal [(1972) 1 SCC 9] for the proposition that once a
document is properly admitted, the contents of that
document are also admitted in evidence though those
contents may not be ,conclusive evidence. Mr. Venugopal
submitted that if the case of the appellant was that the
entry in the School Admission Register (Exhibit P-9)
relating to the religion of the appellant was made by Thomas
who did not actually know the religion of the father of the
appellant, the appellant should have examined Thomas in
support of his case, but the appellant has not examined
Thomas in course of trial. He submitted that finding of the
High Court that the appellant was born to Christian parents
was, therefore, correct. Mr. V. Giri, learned counsel for the
respondent in Civil Appeal No.6391 of 2010, and Mr. C.
Rajendran, learned counsel for the respondent in Civil
Appeal No. 6393 of 2010, adopted the arguments of
Mr. Venugopal.
7. We may now look at the evidence on record. Exhibit
P-9 is part of the School Admission Register of the
Government Higher Secondary School and has been
proved through its Head Mistress. Exhibit P-9 indicates
that the name of the father of the appellant was ‘Joseph’
which was a Christian name and the religion of the
appellant was Christian and he was admitted to the School
on 7-6-1967. The School had standards I to VII and the
appellant left the School on 5-5-1975. Exhibit P-10 is part of
the Admission Register of Laxmi Vilasom High School,
Pothencode, proved through its Head Master (PW-6).
Exhibit P-10 shows that the appellant was admitted to this
School on 5-5-1975 into Standard VIII and his name was
entered as Monian J. (Joseph) and mother’s name was
shown as Thakkamma T. and religion of the appellant was
shown as Christian. The appellant left the School on
28-02-1978. Exhibit P-4 is his School Leaving Certificate
issued by the Head Master, Laxmi Vilasom High School,
Pothencode, in which the name of the appellant has been
shown as Monian J. (Joseph) and his religion has been
shown as Christian and the mother of the appellant is
shown as Thakkamma T. This School Leaving Certificate
was issued after the appellant completed his Standard X
in the School in 1977-78. This School Leaving Certificate
has been produced by PW-1, N.S. Saji Kumar, and is the
same as Exhibit R-2 produced by the appellant. The
appellant in his evidence (affidavit filed before the High
Court in Election Petition No.7 of 2009) has stated in para
5 that in Exhibits P-4, P-9 and P-10 and Exhibit R-2, his
religion is shown as Christian, but he did not profess
Christian religion at any point of time. In para 8 of the
affidavit, he has stated that in Exhibit P9 his father’s name
is Joseph and his father was called ‘Joseph’ by Christian
Missionaries because his father was visiting Christian
Missionaries to avail help and his father was actually
Kunjan and continued to be a Hindu and his alleged
conversion was only nominal. The appellant has explained
in his cross-examination that when he was admitted in the
School for the first time his father had gone for work and
his friend Thomas had taken him to School and as his
father was called by the Missionaries as ‘Joseph’, his name
was shown by Thomas as Joseph. The appellant has
stated in his affidavit that he decided to get himself
converted to Hinduism in 1978 and got himself converted
as a Hindu on 25-05-1978 and the Kerala Hindu Mission
has issued a certificate (Exhibit R-10) in proof of such
conversion and his name has been shown therein as
Suresh J.
8. Hence, this Court has to decide which of the two
versions is proved: whether the appellant was born to
Christian parents and was Christian during his childhood
or whether he was born to Hindu parents and was Hindu
272
THE GAZETTE OF INDIA : NOVEMBER 5, 2011/KARTIKA 14, 1933
[PART II—SEC. 3(iii)]
during his childhood. Sub-section (2) of Section 87 of the
Act states that the provisions of the Indian Evidence Act,
1872 shall, subject to the provisions of this Act, be deemed
to apply in all respects to the trial of an election petition.
Thus, we have to be guided by the relevant provisions of
the Indian Evidence Act to decide an issue of fact arising
in an election trial under the Act. Section 3 of the Indian
Evidence Act states that a fact is said to be proved
when,after considering the matters before it, the Court
either believes it to exist, or considers its existence so
probable that a prudent man ought, under the
circumstances of the particular case, to act upon the
supposition that it exists. Section 35 of the Indian Evidence
Act states that an entry in any public or other official
book, register or record, stating a fact in issue or relevant
fact, and made by a public servant. in the discharge of his
official duty, or by any other person in performance of a
duty specially enjoined by the law of the country in which
such book, register or record is kept, is itself a relevant
fact. Relying on Section 35 of the Indian Evidence Act,
this Court has held in Birad Mall Singhvi v. Anand Purohit
[1988 (supp.) SCC 604] that the entry contained in the
Admission Form or in the Scholar’s Register must be shown
to be made on the basis of information given by the parents
or a person having special knowledge about the date of
birth of the person concerned and if the entry is made on
the basis of the information given by a stranger or by
someone else who had no special means of knowledge of
the entry, such an entry will have no evidentiary value. In
the present case, on the other hand, we are called upon to
decide not the date of birth but the religion of a candidate
in an election. In Desh Raj v. Bodh Raj [(2008) 2 SCC 186]
where the caste of the candidate in an election was in
issue, this Court held that the residents of a village have
more familiarity with the ‘caste’ of a co-villager than the
date of birth of the co-villager and relied upon the evidence
of the co-villagers to record a finding on the caste of the
candidate. It can similarly be said that the residents of a
village have familiarity with the religion of the co-villagers
and the information furnished by them have probative
value and can be considered by the Court.
9. Thomas, who was a friend of the father of the
appellant, obviously must be familiar with the religion of
the father of the appellant as well as of the appellant during
his childhood. The entry in Ext. P-9 which is part of the
School Admission Register of the Government Higher
Secondary School with regard to the, Christian name of
the father of the appellant and the Christian religion of the
appellant had been admittedly made on the basis of the
information of Thomas. If the appellant’s case is that
Thomas had no knowledge of the religion of the appellant
and his father, he should. have examined Thomas as a
witness or should have explained why he was not examined.
The entry in Ext. P-9 regarding the religion of the appellant
having been made on the information of Thomas in 1967
during the childhood of the appellant several decades
before the appellant contested the election must be taken
to be a very relevant circumstance of great probative value
for coming to the conclusion that the appellant was a
Christian during his childhood. The entries in Ext. P-10
which is part of the Laxmi Vilasom High School,
Pothencode, have been made in 1975 on the basis of the
transfer certificate obtained from his previous school
and these also indicate the religion of the appellant as
Christian. The entry relating to the religion of the appellant
could have been corrected by the mother of the appellant
who has been shown in Ext.P-10 as his parent if the entry
was not correct. The entries in the School Leaving
Certificate (Exhibit P-4) issued in 1978 are on the basis of
information in Exhibit P-10 and these also indicate that the
appellant was a Christian. This entry relating to the religion
of the appellant could also have been corrected by his
mother in 1978 if his religion was not Christian. In Exhibit
R-10, a certificate issued by the Kerala Hindu Mission on
25-5-1978 with regard to the conversion of the appellant
to Hinduism, moreover, the appellant has been described
as a Cheramar Christian upto the age of 16 years. If he was
not a Christian till the age of 16 years, where was the need
of his converting to Hindu religion in 1978? On
consideration of all these facts and circumstances which
have come into evidence, the High Court, in our considered
opinion, was right in coming to the conclusion that the
fact that the appellant was born to Christian parents has
not been seriously disputed by the appellant. The
decisions of this Court in M. Chandra v. M. Thangamuthu
(supra) and in Ranjana v. State of Maharashtra (supra)
cited by Mr. Rao have no application to the facts of the
present case where the evidence clearly proves that the
appellant was born to Christian parents and that the
appellant was a Christian during his childhood upto the
age of 16 years.
10. Mr. Rao next contended that the finding of the
High Court that when the appellant undertook the
expiatory ceremony in 1978 to reconvert himself to
Hinduism, he had not attained the age of discretion as he
was under 18 years of age is not correct. He relied on
Section 2(o) of the Children Act, 1960 to submit that a boy
who is 16 years is no longer a child. He relied on the
decision of the Madras High Court in Aravamudha
Iyenger v. Ramaswami Bhattar & Anr. [AIR 1952 Madras
245] wherein it has been held that under the
Hindu Law minority comes to an end on the completion of
the 16th year. He submitted that this Court has held in
Kailash Sonkar v. Smt. Maya Devi [(1984) 2 SCC 91] that a
member of the Scheduled Caste, who is converted into
Christianity and after she attains the age of discretion,
can decide of her own volition to re-embrace Hinduism.
He cited the decision of this Court in S. Anbalagan v.
B. Devarajan & Ors. [( 1984) 2 SCC 112] in which this Court
observed that the precedents, particularly those
from South India, clearly establish that no particular
ceremony is prescribed for re-conversion to Hinduism of
¹Hkkx IIó[k.M 3(iii)º
Hkkjr dk jkti=k % uoEcj 5] 2011@dk£rd 14] 1933
273
a person who had earlier embraced another religion and
unless the practice of the caste makes it necessary, no
expiatory rites need be performed. He submitted that the
appellant was more than 16 years of age when he undertook
Shudhi Ceremony in 1978 for reconversion and it will be
clear from Ext. R-l 0, the certificate issued by the Kerala
Hindu Mission on 25-05-1978, and Ext. R-9, the notification
issued in the Kerala Gazette on 21-11-1978 that he
reconverted to Hinduism in 1978. He argued that the
evidence of appellant before the High Court and the
evidence of RW -4 would show that the appellant had in
fact abjured the Christian religion and was professing the
Hindu religion and his marriage was performed following
the ceremonies of Hindu religion with a Hindu named
Bindu. He submitted that in the Admission Register of
the Law College, Thiruvananthapuram (Ext. R-6) the
religion of the appellant has been shown to be Hindu
religion and the date of admission of the appellant is shown
as 09-10-1984. He submitted that after considering such
evidence, the High Court has in fact held that the appellant
has been professing Hinduism at least from the date of his
admission to the Law College, Thiruvananthapuram.
11. In reply, Mr. Venugopal relying on this Court's
decision in S. Nazeer Ahmed v. State Bank of Mysore &
Ors. [(2007) 11 SCC 75] submitted that the respondents
before this Court are entitled to support the impugned
judgment of the High Court by challenging any finding
that might have been rendered by the High Court against
the respondents in the impugned judgment. He submitted
that the respondents are therefore entitled to challenge
the finding of the High Court in the impugned judgment
that the appellant had been professing Hinduism at least
from the date of admission in the law college in 1978. He
vehemently argued that the appellant has not pleaded in
his written statements filed before the High Court that he
was a Christian during his childhood and he converted
himself to Hinduism on attaining majority and his plea in
the written statements was that his parents were Hindu
and that he was a Hindu even during his childhood and
therefore he cannot be allowed to contend that his
parents were Christian and during his childhood he was a
Christian and on attaining majority he re-converted
himself into Hinduism by abjuring a Christian religion. He
submitted that in Perumal Nadar (dead) by LRs. v.
Ponnuswami [1970 (1) SCC 605] this Court has held that a
mere theoretical allegiance to the Hindu faith by a person
born in another faith does not convert him into a Hindu,
nor is a bare declaration that he is a Hindu sufficient to
convert him to Hinduism but a bona fide intention to be
converted to the Hindu faith, accompanied by conduct
unequivocally expressing that intention may be sufficient
evidence of conversion, and no formal ceremony of
purification or expiation is necessary to effectuate
conversion. He submitted that in Kailash Sonkar v. Smt.
Maya Devi (supra) this Court has held that the main
test to determine whether there has been reconversion is
that there should be a genuine intention of the reconvert
to abjure his new religion and completely dissociate
himself from it and reconversion should not be only a ruse
or a pretext or a cover to gain mundane worldly benefits.
He argued that in the facts of the present case, no evidence
has been adduced to show that the appellant abjured
Christian religion and reconverted himself into Hindu and
the evidence only shows that the appellant went through
a formal reconversion to Hindu religion only with a view
to avail the benefits of reservation. Mr. Giri and Mr.
Rajendran adopted these contentions of Mr. Venugopal.
12. We have considered the submissions of the
learned counsel for the parties and we have found that in
Kailash Sonkar v. Smt. Maya Devi (supra) this Court has
held that even where a person has been a Christian during
his childhood, after he attains the age of discretion, he
may decide of his own volition to re-embrace Hinduism
and the test in such a case would be that such person had
a genuine intention of reconverting to Hinduism and to
abjure Christianity and completely dissociate himself from
it. In the aforesaid judgment this Court has not specifically
held as to what would be the age of discretion of a person
willing to reconvert himself to Hinduism. In Aravamudha
Iyenger v. Ramaswami Bhattar & Anr. (supra) the Madras
High Court has taken a view that minority as per Hindu
law comes to an end on completion of 16 years of age and
this rule applies to males and females. This view, however,
was expressed by the Madras High Court in the context of
the Hindu Law relating to adoption and not in the context
of reconversion and therefore does not apply to the facts
of this case. In our considered opinion, it is on the facts of
each case that the Court has to decide whether the child
had attained sufficient maturity to understand the
religious significance and the social consequences. of this
decision to reconvert to the Hindu religion. To quote Vivian
Bose, J. from his judgment delivered for the Court in
Chatturbhuj Vithaldas Jasani v. Moreshwar Parashram &
Ors. (1954 SCR 817) at page 837 cited by Mr. Giri:
"What we have to determine are the social and
political consequences of such conversions and
that, we feel, must be decided in a common sense
practical way rather than on theoretical and
theocratic grounds. "
13. We find that the appellant has pleaded in his
written statements that in May 1978 he underwent
ceremonies and he was given a Shudhi Certificate by the
Kerala Hindu Mission and he got rid of Christianity by
reconverting to Hinduism. Mr. Venugopal is thus not right
in his submission that the appellant has not taken a plea
of reconversion from Christianity to Hinduism in his
written statements. The appellant has stated in his evidence
(affidavit before the High Court) that he decided to get
himself converted to Hinduism in the year 1978 and
274
THE GAZETTE OF INDIA : NOVEMBER 5, 2011/KARTIKA 14, 1933
[PART II—SEC. 3(iii)]
accordingly on 25-5-1978, he approached the Kerala Hindu
Mission and reconverted to Hinduism and changed his
name as Suresh J. and published the fact of his conversion
into
Hinduism
in
the
notification
dated
21-11-1978 of the Kerala Gazette. The notification dated
21-11-1978 has been produced by him as Ext. R-9 and
Certificate No.107365 dated 25-5-1978 relating to the
conversion of the appellant issued by the Kerala Hindu
Mission has been produced before the High Court and
marked as Ext. R-10. The President of the Kerala Hindu
Mission (RW -3) has been examined before the High Court
and he has said that Ext. R-10 was issued by the Kerala
Hindu Mission and its counterfoil receipt is in the receipt
book produced by him. RW -3 has identified the signature
of the Secretary of the Kerala Hindu Mission,
Mr. Sudhakaran, in Ext. R-10. RW-3 has also stated before
the Court that a person to be converted must first go to
Hindu Temple and perform the ceremonies and thereafter
has to appear before the Kerala Hindu Mission alongwith
receipt and the Kerala Hindu Mission confirms the
performance of ceremonies from the temple over phone
and then issues a conversion certificate. RW-3 has also
stated that before issuing a certificate, the Kerala Hindu
Mission ascertains whether the person to be converted is
willing to be converted and is having belief in Hinduism
and only thereafter permits the conversion. The evidence
of the appellant (RW-1), President of the Kerala Hindu
Mission (RW -3) and the Certificate issued by the Kerala
Hindu Mission on 25-5-1978 (Ext. .R-10) clearly establish
that the appellant had on his own volition decided to
reconvert to Hinduism. We also find that Ext. R-I0 was
followed by the Gazette Notification (Ext. R-9). These two
documents are clear proof of the declaration of the
intention of the appellant to reconvert himself to Hinduism
from Christianity. This declaration of intention of the
appellant has also been accompanied by conduct
unequivocally expressing that the appellant has in fact
reconverted himself to Hinduism. The appellant has
produced before the High Court a certificate of marriage
issued under the Kerala Registration of Marriages
(Common) Rules, 2008, which is marked as Ext. R-14 and in
Ext. R-14, the date of marriage of the appellant is shown as
30-6-1994 and the name of the appellant is shown as
Kodikunnil Suresh and the wife of the appellant is shown
as Bindu Sekhar. The appellant has stated in his affidavit
before the High Court that Bindu is a member of
Scheduled Caste and is a Hindu and that during the
marriage there was tying of Tahali and that he garlanded
the bride in the marriage ceremony and his wife also
garlanded him. He has also stated that there was exchange
of rings and he gave pudava to her and the form of the
marriage was that of the Cheramar community. He has
further stated in the affidavit that he worshipped Dharma
Sastha in Sabarimala and that he also goes for worship to
Pazhavangadi Ganapathi Temple and he has two children,
elder one is named Aravind Suresh and younger one is
named Gayathri Suresh and that Ezhuthiniruthu of the elder
and the younger one took place at Mookambika Temple.
RW-4, who is a voter of Adoor Parliamentary Constituency
and who had been the Head Master of the Kulthupuzha
Government High School and the Deputy Director of
Education, Kollam, has been examined before the High
Court and he has stated that he was invited for the
marriage of the appellant at the Subramaniam Hall of
Trivandrum Club and the marriage was performed
following the ceremonies of Hindu religion and after
lighting the lamp in front of Nirapara, the bride and the
bridegroom were made to sit there and the marriage was
performed under the guidance of Sri. Krishnan Nair of
Kottarakkara and that the appellant had tied the Thali and
the bride and bridegroom exchanged garlands. Nothing
also has been brought out in the cross-examination of
either the appellant or RW-4 to disbelieve their evidence.
Nothing has been brought out in the cross-examination
of the appellant for the Court not to rely on his evidence
that he has been visiting the temples for worship. On a
consideration of the evidence led before the High Court,
we are thus of the opinion that the appellant had not only
unequivocally expressed the intention of reconverting to
Hinduism in 1978, but also conducted himself since 1978
in a manner true to the faith of Hindu religion by marrying
a Hindu in accordance with the ceremonies of the Hindu
religion and had been visiting Hindu temples for worship
of different idols and had in fact abjured the Christian
religion. In other words, the appellant had reconverted to
Hinduism in 1978 after fully realizing the religious
significance and social consequences of his decision to
reconvert to Hinduism. The High Court, therefore, was
not right in holding that the conversion of the appellant
under Ext. R-9 and R-10 at the age of 16 years was not a
valid conversion to Hinduism. In fact, the High Court has
realized the difficulty in the aforesaid finding and has at
the same time rendered a contradictory finding that the
respondent has been professing Hindu religion at least
from the time of his admission to the law college,
Thiruvananthpuram.
14. Mr. Rao finally challenged the findings of the
High Court that there was no acceptable evidence to prove
that.the appellant was accepted as a member of the
Cheramar caste or the Pulayan caste after his reconversion
to Hinduism. He submitted that the appellant had himself
stated on oath before the High Court that he belongs to
Cheramar caste and that the form of his marriage with Bindu
was the one to which the Cheramar community adheres.
He submitted that the Kerala Cheramar Sangham had
issued a certificate dated 25-10-1979 produced before the
High Court as Exhibit R-17 which would show that the
appellant was accepted and taken into the fold of Hindu
Cheramar community by its members. He referred to the
evidence of RW-7, the Ex-Secretary of Kerala Cheramar
Sangham, who has identified the signature of Sri
Rajaretnam the President of the Kerala Cheramar Sangham
¹Hkkx IIó[k.M 3(iii)º
Hkkjr dk jkti=k % uoEcj 5] 2011@dk£rd 14] 1933
275
in Exhibit R-17. He submitted that in Kerala the Cheramar
caste and the Pulayan caste are actually one and the same
caste. He referred to the evidence of RW-5, the General--
Secretary of Kerala Pulayan Mahasabha, that the appellant
participated in a rally of Kerala Pulayan Mahasabha at
Eranakulam in February, 2008. He submitted that the
Returning Officer in his proceedings dated 31-03-2009 has
considered the caste certificate dated 12-03-2009 issued
by the Tehsildar, Nedumangad, certifying that the appellant
belongs to the Hindu Cheramar caste and has accepted
the declaration of the appellant in the nomination papers
that he belongs to the Cheramar caste. The certificate
issued by the Tehsildar, Nedumangad, has also been
exhibited as Exhibit P-2. He also relied on the findings of
PW-8, Tehsildar, Kotarakkara that persons, who are known
as Cheramar in Kollam, are known as Pulayan in
Kotarakkara. He argued that the appellant has been elected
from the Adoor reserved constituency in the years 1989,
1991, 1996 and 1999 and this shows that he has been
accepted as a member of the Scheduled Caste by the voters
of the reserved constituency. He cited the decision of this
Court in S. Anbalagan v. B. Devarajan & Ors. (supra) and
Kailash Sonkar v. Smt. Maya Devi (supra) wherein the
circumstance that the voters of the Rasipuram .
Parliamentary Constituency reserved for the Scheduled
Castes elected a candidate to the Lok Sabha has been
treated as an outstanding circumstance to prove
acceptance of that candidate by the Scheduled Caste
community. He. submitted that the High Court was,
therefore, not at all right in recording the finding that the
appellant who was professing Hindu religion had not been
accepted by the members of the Cheramar caste or the
Pulayan caste.
15. In reply, Mr. Venugopal submitted that the fact
that the appellant was elected from a reserved constituency
in the earlier elections cannot prevent the disqualification
from being established in a subsequent election as each
election results in a fresh cause of action. He cited the
decisions of this Court in C.M. Arumugam v. S. Rajgopal
and others [(1976) 1 SCC 863] and Satrucharla Vijaya Rama
Raju v. Nimmaka Jaya Raju and others [(2006) 1 SCC 212]
in which it has been held that every election furnishes a
fresh cause of action for a challenge to that election and
adjudication on a prior election petition cannot be
conclusive in a subsequent proceeding. According to him,
therefore, the fact that the appellant on five earlier elections
had been elected from a constituency reserved for
Scheduled Caste is not a bar to the challenge to his election
in 2009 from a constituency reserved for Scheduled Caste
on the ground that he was not a member of the Scheduled
Castes. He submitted that in C. M. Arumugam v. S.
Rajgopal and others (supra) this Court considered whether
in fact S. Rajgopal was accepted as a member of Adi Dravida
caste after his reconversion to Hinduism and after
considering the various circumstances detailed in para 18
of the judgment as reported in the SCC came to the
conclusion that after his reconversion to Hinduism, S.
Rajgopal was recognized and accepted as a member of
Adi Dravida caste by the other members of that community.
He vehemently argued that in the facts of the present case
there is no circumstance to show that the appellant, if at
all has been reconverted to Hinduism, was accepted by
the Cheramar caste.
16. Mr. Giri, learned counsel for respondent in Civil
Appeal No.6391 of 2010, adopted the arguments of Mr.
Venugopal and further submitted that in the Constitution
(Scheduled Castes Order, 1950, Part VIII) relating to State
of Kerala, in Entry 54, Pulayan and Cheramar castes have
been shown as two separate castes. He submitted that
Pulayan and Cheramar castes are thus two separate and
distinct castes and onus is on the appellant to show that
after his reconversion he was accepted by either the
Pulayan. caste or the Cheramar caste. He argued that the
pleadings of the appellant and the evidence produced by
him would show that the appellant was not clear as to
which of the two castes he was accepted. He cited the
decision in S. Rajagopal v. C. M. Armugam & Ors. [1969 (1)
SCR 254] in which the law relating to acceptance of a person
by members of caste to which the appellant originally
belonged after his reconversion to Hinduism has been
laid down.
17. Mr. C. Rajendran, learned counsel for the
respondent in Civil Appeal No.6393 of 2010, relied on the
decisions of this Court in S. Rajagopal v. C.M. Armugam
& Ors. (supra) cited by Mr. Giri and C.M. Arumugam v. S.
Rajgopal & Ors. (supra) cited by Mr. Venugopal and
submitted that the appellant has not been able to prove
the kind of circumstances mentioned in the aforesaid
decisions. to show that he had been accepted into the
fold of Cheramar caste after his reconversion to Hinduism.
18. We have perused the decisions of this Court
cited by the learned counsel for the parties on the
acceptance of the reconvert by the members of the original
caste of the reconvert. In S. Rajagopal v. C. M. Armugam
& Ors. (supra) this Court agreed with the High Court that
Rajgopal, on conversion to Christianity, ceased to belong
to Adi Dravida caste but held that if the members of the
caste accept the reconversion of a person as a member of
their caste, it should be held that he does become the
member of that case, even though he may have lost
membership of that caste on conversion to another religion.
In the aforesaid decision, this- Court, however, held that
Rajgopal though married to a member of the Adi Dravida
caste, his marriage was not performed according to the
rites observed by members of that caste and the marriage
not being according to the system prevalent in the caste
itself, that marriage cannot therefore be proof of admission
of Rajgopal in the caste by members of the caste in general.
This Court further found in the aforesaid case that no
other evidence was given to show that at any subsequent
stage any step was taken by the members of the caste
276
THE GAZETTE OF INDIA : NOVEMBER 5, 2011/KARTIKA 14, 1933
[PART II—SEC. 3(iii)]
indicating that Rajgopal was being accepted as a member
of that caste. In C. M. Armugam v. S. Rajgopal & Ors.
(supra), this Court noted that in its earlier decision in
S. Rajgopal v. C. M. Armugam and others (supra) Rajgopal
had not produced evidence to show that after his
reconversion to Hinduism, any step had been taken by
the members of Adi Dravida caste indicating that he was
being accepted as a member of that caste. This Court,
however, found in this later case of C. M. Armugam v.
S. Rajgopal & Ors. (supra) that there were several
circumstances to show that Rajgopal was accepted as Adi
Dravida Hindu and these circumstances were: he had been
invited to lay the foundation stone for the construction of
a new wall of the temple at Jambakullam, which was
essentially a temple of. Adi Dravida Hindus; he was
requested to participate in Margazhi Thiruppavai
celebration at the Kannabhiran temple, which was also a
temple essentially managed by the Adi Dravida Hindus;
he was invited to preside at the Adi Krittikai festival at
Mariamman temple where the devotees are Adi Dravidas
or to start the procession of the deity at such festival; the
children of Rajgopal were registered in the school as Adi
Dravida Hindus and even he himself issued a certificate
stating that his son was a Scheduled Caste Adi Dravida
Hindu; he participated in the All India Scheduled Castes
Conference attended largely by Adi Dravida Hindus.
Considering all these circumstances, this Court held that
Rajgopal after his reconversion to Hinduism was
recognized and accepted as a member of Adi Dravida caste
by the other members of that caste.
19. We further find that in Kailash Sonkar v. Smt.
Maya Devi (supra), this Court observed that a dominant
factor to determine the revival of the caste of a convert
from Christianity to his old religion would be that in cases
of election to the State Assemblies or the Parliament where
under the Presidential Order a particular constituency is
reserved for a member of the scheduled caste or tribe and
the electorate gives a majority verdict in his favour, then
this would be doubtless proof positive of the fact that his
community has accepted him back to his old fold and this
would result in a revival of the original caste to which the
candidate belonged. Similarly, in S. Anbalagan v. B.
Devarajan & Ors. (supra) this Court observed that the
fact that the voters of the Rasipuram Parliamentary
Constituency reserved for the Scheduled Castes
accepted his candidature for the reserved seat and elected
him to the Lok Sabha twice was an outstanding
circumstance to show that he belongs to Adi Dravida
caste.
20. In the light of the aforesaid decisions of this
Court, we may now examine the facts of the present case.
The father of the appellant, it is not disputed, originally
was a member of the Cheramar caste which was admittedly
a Scheduled Caste in the State of Kerala. On conversion
to Christianity, the father of the appellant had ceased to
be a member of the Cheramar caste. This is because on
conversion to Christianity, a person ceases to belong to
his original caste as has been held by this Court in
S. Rajgopal v. C.M. Armuqam and others (supra). We
have already held that in 1978 the appellant reconverted
into Hinduism and continued to be a Hindu thereafter.
The appellant has stated in para 13 of his affidavit
(examination-in-chief) before the High Court that in 1979
he was actively working for the upliftment of the Cheramar
community and the Kerala Cheramar Sangham issued a
certificate dated 25-10-1979 produced and marked before
the High Court as Exhibit R-17. This certificate has been
signed by S. Rajaretnam, the then President of the Kerala
Cheramar Sangham, and it states that being a descendant
of Scheduled Caste convert and by the conversion the
appellant is accepted and admitted into the fold of Hindu
Cheramar Community by its members who are Cheramar
Hindus and by this fact has become a member of Cheramar
Community which is recognized as a Scheduled Caste.
This certificate dated 25-10-1979 has been issued ten years
prior to 1989 when the appellant for the first time contested
from the Adoor Parliamentary Constituency reserved for
the Scheduled Caste. In the years 1989, 1991, 1996 and
1999, the appellant contested and got elected from the
Adoor Parliamentary Constituency reserved for Scheduled
Caste. In between, in the year 1994, the appellant got
married to Bindu and his affidavit (examination-in-chief)
before the High Court states that the marriage was
performed in accordance with the form of Cheramar
community. All these circumstances clearly establish that
the appellant after his reconversion to Hinduism in 1978
had been accepted by the members of the Cheramar caste.
21. The Cheramar community and the Pulayan
community, however, appear to be two distinct castes as
per Entry 54 in Part VIII of the Schedule to the Constitution
(Scheduled Castes) Order, 1950 as has been contended by
Mr. Giri. From the written statements of the appellant and
from his evidence, however, it appears that the appellant
entertains a belief that the Cheramar caste and the Pulayan
caste are one and the same caste. Perhaps, because of this
belief he has married Bindu who belongs to the Pulayan
caste. The fact, however, remains that the appellant has
declared himself to be belonging to the Cheramar caste
in his nomination form and there was no declaration by
him that he belongs to the Pulayan caste. The Returning
Officer relying on the certificate Ext. P-2 issued by the
Tehsildar, Nedumangdu dated 12-03-2009 had come to the
conclusion that the appellant belongs to Cheramar caste
and had accordingly accepted his nomination. The relevant
findings of the Returning Officer in the proceedings dated
31-3-2009 (Ex.P-3) are quoted here:
‘‘The distinction between Hindu Cheramar and
Hindu Pulaya is very thin and the local usage confuses
even experts. Both are scheduled castes and these areas
which require a thorough enquiry by experts and
¹Hkkx IIó[k.M 3(iii)º
Hkkjr dk jkti=k % uoEcj 5] 2011@dk£rd 14] 1933
277
examination of witnesses on both sides are also required
which I was not supposed to do so as the Returning Officer.
These questions can be enquired into and decided only
by a court of competent jurisdiction perhaps in an election
petition. If the nomination of a candidate is refused on
grounds not established ignoring an authoritative
evidence he will be prejudiced in exercising his
constitutional right to contest an election and to establish
his claim before a court of law. If he is not eligible the other
candidates have a remedy by way of election petition which
will settle the issue finally. Therefore, I rely on the certificate
of the Tahsildar, Nedumangadu and decide that the
candidate is competent to contest in the election from the
reserved constituency. The nomination satisfies all the
legal requirements and it is valid in law. In the circumstance
the nomination is accepted.’’
The aforesaid findings of the Returning Officer
would show that he was of the view that the distinction
between Hindu Cheramar and Hindu Pulaya was very thin
and the local usage confuses even the experts and that
both were Scheduled Castes and the areas which require a
thorough enquiry by experts and examination of witnesses
on both sides are also required which he was not supposed
to do so as the Returning Officer. The evidence would
further show that ultimately the Returning Officer relied
on the certificate of Tehsildar, Nedumangad, according to
which the appellant belongs to the Hindu Cheramar caste
and decided that the appellant was competent to contest
the election from the reserved constituency and
accordingly accepted his nomination. According to us,
the appellant was required to plead and lead evidence that
he was a member of the Cheramar caste and after his
reconversion he was accepted by the members of the
Cheramar caste. So long as he has pleaded and adduced
reliable evidence to show that he was originally a member
of the Cheramar caste and after his conversion has been
accepted back as a member of the Cheramar caste, the
court cannot throw out his case only on the ground that
he, like the Retuming Officer, did not know the thin
distinction between the Cheramar and Pulayan castes. The
findings of the High Court, therefore, that there was no
acceptable evidence to prove that the appellant was
accepted as a member of the Cheramar caste after his
reconversion to Hinduism was contrary to the evidence
on record.
22. In the decisions of this Court in C. M. Arumugam
v. S. Rajgopal and others (supra) and Satrucharla Vijaya
Rama Raju v. Nimmaka Jaya Raju and others (Supra)
cited by Mr. Venugopal this Court has held that every
election petition furnishes a fresh cause of action for a
challenge to that election and adjudication on a prior
election petition cannot be conclusive in a subsequent
proceeding. These decisions have no application to the
facts of the present case. It is not the case of the appellant
that any decision in an election petition has. been rendered
by the court that the appellant was a member of the
Scheduled Caste and was therefore qualified to contest
the election for a constituency reserved for Scheduled
Caste and that such earlier decision of the Court
constitutes res judicata on this issue. The case of the
appellant is that in four earlier elections the voters of a
constituency reserved for Scheduled Castes have elected
him from the constituency and this conduct of the voters
show that the members of the Scheduled Castes have
accepted him back to the fold of his original cast, namely,
the Cheramar community. The fact that the appellant has
been elected four times from the Adoor Parliamentary
Constituency reserved for the Scheduled Caste is a very
strong circumstance to establish that he has been accepted
by the members of his caste after his reconversion to
Hinduism.
23. In the result, we set aside the impugned order of
the High Court and hold that the appellant was qualified
under Section 4(a) of the Act to be chosen to fill the seat in
the House of People from Mavelikkara Parliamentary
Constituency reserved for the Scheduled Castes and that
his nomination was not improperly accepted by the
Returning Officer and accordingly his election was not
void under Section 100 (l)(a) and 100 (l)(d)(i) of the Act.
The appeals are allowed and the three Election Petitions
of the respondents are dismissed. The appellant will be
entitled to the amount deposited by the respondents under
Section 117 of the Act as security deposit towards the
costs. The substance of this decision will be intimated to
the Election Commission and the Speaker of the House of
the People in accordance with Section 116-C (2) of the Act.
Sd.
...................................J.
(ALTAMAS KABIR)
Sd.
.....................................J.
(A. K. PATNAIK)
New Delhi,
May 12, 2011.
[No. 82/KL-HP/3, 7, 8/2009/2010]
By Order,
TAPAS KUMAR, Principal Secy.
Printed by the Manager, Government of India Press, Ring Road, Mayapuri, New Delhi-110064
and Published by the Controller of Publications, Delhi-110054.