# [1984] 2 S.C.R. 176

- **Citation:** [1984] 2 S.C.R. 176
- **Court:** Supreme Court of India
- **Decided:** 1983-12-16
- **Bench:** S. MuRTAZA FAZAL Au, Misra, M.P. Thak"Ar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1984-2-s-c-r-176-8532
- **Pages:** 24

## Headnote

Hindu la_w-Whether a Hindu on conversion to another religion loses the original
caste.
Convertee loses caste unless new religion accepts caste syste1n and pertnits
conveTtee tO retain his original cas~e and family laws.
During conversion or}ginal
caste remains u1ider eclipse_.:.Ec/iys€ Disappears on. reconversion' to original religion.
On reconversian to. old religion-Whether' the original caste revive~Factors which
determine revfral of odginal caste .
. Representation of the People Act-Person born of C!tristia1t parents-J!ducated
and known as Christian-Reconverted to HiTidtiism voluntarily-Married a· 1'zemher
of scheduled caste-Performed· shudhikaran · ceremony-Acc~pted and welccilned by
1ne1n_bers of· th"at con1n1unity as schedided caste-Whether sμch person can contest
state aSs~1nbly election as member 'o
sched11led ·caste·from constituency reserved
fof!·inembers of scheduled castes.
In the nomi.nation ·papers fiJed by the respondent· fOt contesting legislative
~ssembly elections in May. 1980 .from a constituency which wa• resentd for. sche- ·
duled castes, she descri.bed herself as belonging 'to the sCheduled caste 'Katia'.
Severai J?C"rsons raised objection that the respondent, being a'· Christian by birth,
could not b6 ·treafed as a member Of the Scheduled caste. The Rsturning Officer
rejected the objection <i.nd accepted her ~omillation papers. The respondent won
the electi_on defeating the appellant. The appellant having unsucce"ssfully challeng¢ the election Of the respondent ·in the High Court, aHeged in this appeai that
the respondent after being bOrn a Christian \Vas baptised according to .. Cb.ristian
ri_tes; her mother's name was "Eiizabetl\; ·her rnarriμ.ge· with Jai Prakash Shalwar,
Who be1ongcd.to Katia·castc, wa<> not valid a_nd even on m.rrriage her ·caste could
not reviVe because ca,ste was determined not by ma·rriage but by birth. The res-
·porident stated that she was never a- Christian nor was she bcirn a· Christian. She
.also averred that eVen her father or mother were not Christians. On the other
hand, she alwaYs remained a member of the Katia _caste and was accepted as such
by the members of that community because bet: .Qlarriage with Jlti Prakash Shalwar
was perfoi'med ac~ording to Hind~ rites· of Aryasa.maj sect arrd waS attended by
a n'um~er of 1nemb~rs of her c.istc and due ~ubliCity was given to the. marriag;e.
:nismissing the appeal,
HELD : It Cannot be said that at ihe time when the respondent filed her
nomi.nation papeFS, she was not a merpber of .the Ka~ia caste .. [199 OJ
'
A caste to which a Hindu belongs is essentially determined by birth and· if
a Hindu is conv~r~ed to Chri~tianity or any other religion which does not·recogtlise
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KAILASH SONKAR v. ,MAYA ,DEVI .
·177
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caste, the_ Conversion arnou.nts to a loss of the said caStc. Jn considering. whether
. on conversion the loss .of the casle is absolutc,.irrevocable so as 'not to revive ~ndcr
a~y circu~~.ie'nce .t?e guiding -princiPI_es_ ~r~ ·:
(a) ·where a persO_n· .be\Onging to
a scheduled caste in converted to Chnst1an1ty or. Islam, the ·same involves loss of
the caste unless the religion to· which he is converted is ·liberat e~1ough to permit
the c:Onvertec t~ retain his caste or the family· Jaws by 1,vhich he was originally
governed. There are a numb.er of cases.where men1hcrs belonging to a particular
caste having been converte'd. _tO Christia~ity-.or even to Islam rct3.:ined _th_eir caste
or family laws and .despite the new Order th~y wer~ permitted to be governed by
their old laws.
But this can happen only if the new religion is li.beral and tolerant
enough to permft.such a course or· action, ~nd (b) Jn all other _cases; COnversion
_to· Christianity or. Tslan1 Or any. oth~r religion Which docs not' accept the cas.te
system and "insist<; on re-linquishirig the ca<>te, -there is '.!- loss of caste on .. convcr.
sion. [190C-F; 191 B]
The nopns and condil;ons undf'·r which a caste could -re.vi

## Text

_Characters 0–39,922 of 63,109. This is a partial read: ask again with offset=39922 for what follows._

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KAILASH SONKAR
V .. .
SMT. MAYA DEVI
December 16, 1983
[S. MuRTAZA FAZAL Au, R.B. ,MISRA AND M.P. THAK"AR, JJ.J
Hindu la_w-Whether a Hindu on conversion to another religion loses the original
caste.
Convertee loses caste unless new religion accepts caste syste1n and pertnits
conveTtee tO retain his original cas~e and family laws.
During conversion or}ginal
caste remains u1ider eclipse_.:.Ec/iys€ Disappears on. reconversion' to original religion.
On reconversian to. old religion-Whether' the original caste revive~Factors which
determine revfral of odginal caste .
. Representation of the People Act-Person born of C!tristia1t parents-J!ducated
and known as Christian-Reconverted to HiTidtiism voluntarily-Married a· 1'zemher
of scheduled caste-Performed· shudhikaran · ceremony-Acc~pted and welccilned by
1ne1n_bers of· th"at con1n1unity as schedided caste-Whether sμch person can contest
state aSs~1nbly election as member 'o
sched11led ·caste·from constituency reserved
fof!·inembers of scheduled castes.
In the nomi.nation ·papers fiJed by the respondent· fOt contesting legislative
~ssembly elections in May. 1980 .from a constituency which wa• resentd for. sche- ·
duled castes, she descri.bed herself as belonging 'to the sCheduled caste 'Katia'.
Severai J?C"rsons raised objection that the respondent, being a'· Christian by birth,
could not b6 ·treafed as a member Of the Scheduled caste. The Rsturning Officer
rejected the objection <i.nd accepted her ~omillation papers. The respondent won
the electi_on defeating the appellant. The appellant having unsucce"ssfully challeng¢ the election Of the respondent ·in the High Court, aHeged in this appeai that
the respondent after being bOrn a Christian \Vas baptised according to .. Cb.ristian
ri_tes; her mother's name was "Eiizabetl\; ·her rnarriμ.ge· with Jai Prakash Shalwar,
Who be1ongcd.to Katia·castc, wa<> not valid a_nd even on m.rrriage her ·caste could
not reviVe because ca,ste was determined not by ma·rriage but by birth. The res-
·porident stated that she was never a- Christian nor was she bcirn a· Christian. She
.also averred that eVen her father or mother were not Christians. On the other
hand, she alwaYs remained a member of the Katia _caste and was accepted as such
by the members of that community because bet: .Qlarriage with Jlti Prakash Shalwar
was perfoi'med ac~ording to Hind~ rites· of Aryasa.maj sect arrd waS attended by
a n'um~er of 1nemb~rs of her c.istc and due ~ubliCity was given to the. marriag;e.
:nismissing the appeal,
HELD : It Cannot be said that at ihe time when the respondent filed her
nomi.nation papeFS, she was not a merpber of .the Ka~ia caste .. [199 OJ
'
A caste to which a Hindu belongs is essentially determined by birth and· if
a Hindu is conv~r~ed to Chri~tianity or any other religion which does not·recogtlise
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KAILASH SONKAR v. ,MAYA ,DEVI .
·177
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caste, the_ Conversion arnou.nts to a loss of the said caStc. Jn considering. whether
. on conversion the loss .of the casle is absolutc,.irrevocable so as 'not to revive ~ndcr
a~y circu~~.ie'nce .t?e guiding -princiPI_es_ ~r~ ·:
(a) ·where a persO_n· .be\Onging to
a scheduled caste in converted to Chnst1an1ty or. Islam, the ·same involves loss of
the caste unless the religion to· which he is converted is ·liberat e~1ough to permit
the c:Onvertec t~ retain his caste or the family· Jaws by 1,vhich he was originally
governed. There are a numb.er of cases.where men1hcrs belonging to a particular
caste having been converte'd. _tO Christia~ity-.or even to Islam rct3.:ined _th_eir caste
or family laws and .despite the new Order th~y wer~ permitted to be governed by
their old laws.
But this can happen only if the new religion is li.beral and tolerant
enough to permft.such a course or· action, ~nd (b) Jn all other _cases; COnversion
_to· Christianity or. Tslan1 Or any. oth~r religion Which docs not' accept the cas.te
system and "insist<; on re-linquishirig the ca<>te, -there is '.!- loss of caste on .. convcr.
sion. [190C-F; 191 B]
The nopns and condil;ons undf'·r which a caste could -re.vive on reconversion
to the old religion as laid down by·the authorities of the High Courts and this Court
.are; (1) where the .convertce exhibits by his 89tions and behaviour his
0
cle<tr inten- ·
tion of a~juring t~e ne\V r~ligion on hi.S:.ow.n volition\vithout·any persuasion· and
is not motivated by any benefit or gain, (2) where the community of the old .order
to which the convertee originally belonged is gracious eilongh tp ad1nit hiin to.
the original caste either ex:preSsly or by ·necessary intendiflent,.Und (3) Rules of
the new Order in per_mitting the c.onvcrte,e to join tho llC\.\'· caste. ·Unless the af6re:
said conditions are fulfil!cd the loss of caste on 'conversion is complete.and ~nnot
he_ revived.
But _having r~ard to. the present set~up and the circumstance.s pre- .
vaiHng in ouf'-rri.odern society; it will be .difficult to insist on the second condition,
viz., the ln-.istencc on the metnbers of the commuriity of the·. caste to admit th_e·
convertee on reconversion.to the original. caste bC:cause such a course of actiQn
may lead to dangerous co~~seciuence.and. ill-coricieved .ex:pl.oitation.· [191 CG]
G.M. Aru11wgr11n v. S. Ra}llgopa(& Ors., [1976] 3 S.C.R. 82; Sacred.Books·
of the ""East (VoL Vlfl) by F. Max Mu1!1:3r; Charlotte ·Abraha1n and Daniel Vincent
Abralta1l1 v. Francis Abrahani, 9 rvt.t.A. 199: Chat11rbh11} Vitha(das Jasani v. Moreshwar Par{ishrrun &-Ors., [1954] S.C.R .. 817;·S. A11ba/a/agn'v. B. Devarajan & : Ors.,
[1984] I.S.C.R. GOona Durgaprasada Rao &.Anr. i'. Goona Sudar:1·anaswa111i. & Ors.;
. ILR 1940 Madras· 653; G. Michael v. S. Venkateswaran, 'AIR 1952 .Madras 47_4;
Dippala Suri Dora v. V. V. Giri AIR 1958 A·.P. 724; Wilson Reade v. C.S. Booth&·
Ors. AIR 1_958.Assani 128; and B. Shya1ns1111der v. Shankar Deo Vedalankar & Ors.,
AIR 1960 .. MySore, 27 t\lferrcO· to.
S. Raj~1gopal v. C.M, An1111ga111 & Ors., [ l 969] J S.C:R. 254, distinguished.
The."1n·a,fn .tcSt for det.Crmi.ni1~g th~ reviv.a-1 o.f th~ o;iginal ~aste on reconversion
should be a genuine intention of the recOnvert to abj11rc his ricw religion' and con1pletely dissoCiate himsdf frotn it.
ft n1:iy be added here that this' docs not 1nean ·
that the reconversion should be only a ruse Or a prete'Xt or a cover to 'gain n1lH1d3ne
· woildly b~nefits so that the TeconverSion bcco1ne.s n1erely· a show for achieving a :
pa:rticular Purpose· Whereas the. real intention nlay be shfouded in mystery.
Th6.
reconvert n1ust'cxhibit a clear :~nd genuine intention to go back tO hiS.old fold and
adopt the· ci.istoms and·practices of the said fold y.rithout any protest fi;on1 merhbers
of his erst\.\_'hile ~ste. [ 192 C-El •
Ganpat v. Returning Officer & Ors., [1975] 4 S.C.R. 923, referred to. -
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[1984) 2 s.c.ll .
· When a child is born ·~eithe~ has ])e· an ' religion nor is he ~jJable of choOsing .
. one _until he reaches the age of diScretion _and acqu!res j,foper understanding of
t.he situation. Hence, the 1nere fact that the parents of a ~hild, who were Christians,
woul~ in ordinary course get _the_ usual baptisri1· certifiCate .·and perform o_ther cere~
monies With9ut the child knowing what is being _done but after thC child has grown
up an~ bec.omes. ft.illy 1!1a_ture.and abte io deeicte hiS future, he .ought.not tO_ be boUnd
~y w~at his parents. n1ay hav~ done.
The~efore, in SIJCh caSes, it is the irltention
of t\le convertee which would determine the revival of the -Caste. · If by his clear
and conclusive conduct the-person reconverts to his .old faith alld abjllres. the new -.. ..
~ -relikio"n in uneq!Jivoc~I terriis his ca~te automatically reviveS. [192_0.Jf; 193 A]
Anothef dominant factor to -determine the fevivii.I of the ·caste of a con Vert
from ChristianitY _to,.his old religion would be that in cases o"f election to the State
Assemblie~ or the Parliilmen"t wher~ under the Presidential Ordef a particula'r
constituency -is· reserved for .a 111ember of the scheduled caste ·o~ tribe and the·
'electo1:ate gives a majority verdict in his favou'r, then this woul. Pe dOubtless prOof
positive of the fact that- his. community has accepted him back to his old- fold and
this wOUld_result in·a i-evival of the Original .caste to_· which. the- Sai.d. Candidate ·
. belonged. [193 B-G]
·
When a person is.converted to Christianity or son1~ other reiigion th!! origina)
caste remains under eclipse' ahd as Sobn aS dur~rig hi_s/her life·tin1~. the persoh is
·reconverted tO the original religion·the cC1ipse 2lisapjJearS and the caste awtQn1atically
revives .. [l,93 DJ
·
Whether or not the revival of the caste dePends on the will" and' discretiotj. ·
of the melnbe.rs of the community of the caste is a· qu*estion on which we refrain
from gi°ving any;opirliOn beca"use in the .instant case there is overw~elmli1g ~vidence
,Ji,:
·to shOw that the' respondent was accepted _by the co_mn1unity of her original ·Katia
caste. Even so, if the.fact of the acce'ptance _. by ·the 1nembers of the c()n1rnunity is. •
: mtidC condition precedent"to the revival of -the caste, it \vould lead :to grave.
consequences and · un1.1et:esSary exp!Oitation, 'son1etirnes n1otiva1ed ·by political . ~
considerations. Of course, if.a·partfronr the oral view·s of. the c~n11nunity there is
~
_any tecognised doCumcntary proof qf a custom or code of Condt:icr or rule of law
binding On a particular caste, it may be necessary to_ insist on thC consent of the
members of the co1nmunity otherwise in -notlnal cifcu1nstances the caStc \Vould
: "r~vivf: py ar)plying .. the principles o(d~ct.rine of eclipse.
Jt may be .added that
't'.
·. ,vhere it appOars t~at the person reconverted .to the. old religion had been convCrted
· ...
to Christianity siilce· several generations, it_ n1iy be difficult io apply_ the doCtrine.
of~clipscto tl~Cieviv~l of Cas~e. (193 D·~] ·
·
In the
in~tat;J.t Case, on a full and comPlete appraisal of ~the oral and
docwncntary evidence, :the following conclusions are inevitable.·: (I)- that the respondent \Va~ born of Christian .parents and was· educated in various schoolS or
institutions \Vhere she was known,as- a Christian; (2) that 34 y{:ars before the
·election, the respondent was· reConverted to- Hiildμ_sim v_oluntarily ahd married
Jai. Prakash Shahvar, a·_ member. of the Katia .c'a'ste, and also perfonned the shudhi·
. karan ceremony; .(3). that she was not only _accep'ted- buf-<'!.lso \ve1comed by the
·impo.tiant members, -including the-PreS.idellt ~nd. Vice·Presiden~, of the 'cpmmunify;
(4) ·-there is no cvidCnce to show that there was any bar under the Christian religion
\vliich coUld ha-Ye prevented he~ f~om recOn\_'erting hersel~ to Hinduism; ahd (5) that
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KAILASHSONKAR '"MAYA DEVJ.(Faza/ Ali, J.)
· 119
-there _.,vas_no cvidCt1ce to sho\~· that cv~n her 'parent~ hqd b~c;1 €h1'l~tians from
generation lo gcnc_ration.
In thc~c circt.i1nslanccs, thercfo.rc; thiS ca5e fiilfils 'the
cOnditlons .required for being reconverted to Hii1duiSn1 f ron1. ·chrisiianity- ln order
to: revive the o'ri'ginal caste._' [198 G-ll; 199 A-D]_·
Clvt.L Al>l;E~LATE JURISDICTION : Civil Appeal No. 3118 0f 1981.
From the Judgment and Oi·der dated th~ 25th September, 1981
of the .Madhya Pradesh High. Court in ·E!ectioff Petit;on No.· 2 of
1980.
.
· U.R .. La/it and A.K. Sanghi for the Appellant.
. G.B. Pai and Vin~et Kumar. for th.e Respondent.;
The Judgmenf of the Court was delivered by
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FAZAL ALI, J:
By our Order dated October 20,.1983', .we had·
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d.ismissed the ·appeal. ·we· now proceed to give o11r reasons for the
·same.
•.
The victory of our long <lrawn struggle l'or freedom from the .
. British yJke came to us after one and a half century of perpetual
and constant efforts soaked in· cold
blood and dipped in S)lprem'e
sacrifice. The ·historical midnight of.August 15, 1947, which ushered
i'n -a n')W era,' .\vas merely a. _c.ompleti9n of a phas·c and no:t the. end 'of ·
an epJoh but only, the beg.ino.ing .of. the end.
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Scion thereafter the wise wizards and lhe f01.mding. fathers of
C0nstitution: set out to '.·devote their wholehearted atte;1tion' to
i
our
d)vis~. \Vay; a·nd ~~ans to _give to· Ollf stib~coritlncht a.·so}id . ·and
cJm:=ir.eh:!n~ivc Con?litution .Which ·.:t:nay· .solvC Jnu_ltifarious
and
m1nifold dilfbulties, fulfil the burning needs of the nation and· sort
'out c:Fnplex atld cJinplicatcd probleins \vhich.arose after our hardw
won freedom which must have oaffied our leaders.
There was the
qu,,tion ·of achieying a sec.uiar democracy, the largest ii1 the world;
F
b.tse.i on a socia\ist•paltern which·Wou!d take care of all sorts a·nd
--kinds of. p~oplc having ~1iffer~nt cult~1his,· languages
and ·rcli.gions;
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to c':>:1T:!r and guarantee flln<la1nent'al rights of cit_izens tliro.ugh mand1tory prcwisions, to lay down
directive principles ot"State. Policy ·
, which w.::te to b.:: the guiding Spirit of th~ ·Cl1nstitution, the ·question
~f achieving.ag.rarian refonns ·by. _displ~cing t~~ old British bureaucrafiC
·sy.,tem and su\3stitut!·itg a new order, the i~sue · 0f retoncilii1£. the ·
:H
irreConcifiablC and .variOus o~h~r thorny .and tricky lnatters. One
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SUPREME COURT REPORTS
[1984] 2_s.c.R.
of the important objectives to be translated into action was to take
special care· of the backward classes, members of the .schcdulrd casks
and tribes by bringing them. to the fore through pragfnatic reforms
and providing adequate opportunities for thei.r amelioration and
development, education, employment and the like .
As Mahatma Gandhi, father of the nation, said "India lives
in villages'' and so .do the backward classes,. hence the primary task·
-was to take constructive steps in order to boost up these classes .by
giving them adequate concessions, opportunities,
fadlities
ard
.representation in the serviCes and, last but net the least,. in the· electo.-·
rate so that their voices and vie,,;s, grievances·and needs. in the Parliament and State legislatures in .the country may be ··heard, felt and·
fulfilled.
In this election appeal which ha; bee~ filed against the Judgment
dated October 2·5, 19 81 of the High Co~rt of Madhya Pradesh, we
are really concerned with the last aspect mentioned al:iove. Despite
odds and ends our Constiution has made exhaustive provisions
for achieving these ends and how far. they have been implemented
is difficult to say, for this is really a herculean task and one cannot
expect miracles to be _performed within a span· of three decades which
in the history· of n~tions, is noi a very long pericd. The knotty and'
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difficult, puzzling and intricate issue with which we are faced is, to
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put it shortlv, 'what happens if a member of.a scheduled caste or ·tribe
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leaves his ·persent"fold (Hinduism) aqd rm braces Christianity or Ts lam .
or any other religion'-does this amot\_nt to a compkte "loss of the -j
original caste to which he belonged for ever and, if so, if he ·or his ' · . ,.
children choose to abjure the new religion and get reconverted to
the old .religion after performing the necessary rites• and ceremonies,
could . th.e original caste revive ? The serious question posed here
-rarose ai\d has formed the subject-matter of a large catena of decisions
starting from the year 1861, trav~rsing a period of about a century ,
and· a half,_and·culminating in a decision of this Co11rt in the case of
. G.X( Arumugam v. S. Rajagopal -& _Ors: <ll
. •
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"fhe Constitution has tried .to solve the problem to. a great
·extent by the Constitution (Scheduled Castes) Ofder J 950 (hereinafter
referred to as the '1950 Or,!er'} issued under Art. 341, which. fays
-.<lowil a list of various castes prevailing in the ccuntry and the noims
to determine the same. This Order has been amended from .time to
(1)[1976] 3 SCR 82.
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K:AILASH SONK:Ail. v. MAYA DEVI (Fazal Ali, J.)
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time.. In our opinion, despite a genuine att€mpt to solve the problem
the provisions do not provide a complete answer to the judicial .interpretation by this Court which lays dowll. the Jaw of the land .. It is
true that the controversy· has been narrowed d0wn to the minimum ..
by the decision in Arumugan's case (supra) still there are some vital
questions which remain unanswered.
Before dealing with the cases on the subject and starting the
chapter of the issues involved in t\lis case, it may be germane to give
a short history of the nature, character, origin. and· background of
the. controversy. To begin with, the .caste system actually came
into existence since the dawn of the ci.vilized races .in this country,
viz.~ Dravidian followed by Aryan civilization which through Hinduism divided by castes.into three clearcut sub-divisions which started
by virtue of the occupational pμrsuits followed by the various classes.
The priests- and the. scholars were known as the Bhrahmanas and
looked after religious
ceremonies, 'education, etc. This Class was
supposed to be the highest .C1'1<is or atleast ·respected and regarded.
as such.
Then ·came the Kshatriyas who ~ere the people .engaged in
fighting wars and ruling and
administering the States. 'Thirdy,
.. there were the Vaisa yas who carried on the occupation of tra~e and
commerce. The Sudras were added as the fourth Class after fusion
of the pre-Dravidian with. the Dravidian and Aryan. civilizations
which·formed the basic
0
fabric of Hinduism and the Hindu societ) ..
This Class wa_s treated as a little inferior and suffered from certain
disabilities.
•
In fact, it seems to us that our large sub-continent was inhabited
by a very large variety of peoples and races,indigenous and. olitsidersconsisting of Scythians, Yavanas, Kirathas, Kambhojas and Persians
· and others who. came to. India· in ancient times and got mixed. up with
. the old inhabitants of the. country and thus completely lost their
.identity. It appears to us that all these races entered the wide and
broad fold of Hindusim, whkh is not only a religion but also a way
or _poetry of life. a philosophy, an exhaustive and ethical code of
i;v;ng which adapts itself to all forms and cultures. In view of this
complex intermingling of various , kinds of people, as time wel)t by,
castes started multiplying, and in this· process the avocations and
occupations foflowed
by members of such .castes from ·generation
to generation were .labelled as a separate class to which the people
practising various professions belonged and this institution had come
to stay. The. origin, therefore of the fundamental basis of the castes
. has now disappeared and given rise. lo· individualism and
s~para
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tism .as a result of which it was duly recognised by all schools of
Hindu thoughr. that birth alone would determine the caste and this
. principle w~uld have to continue wiles"s the co.ricept of caste is banished
for ever. ·In other \VOrds, it is. l10w well settled-whether one accepts ·
it or not-that caste is the result of birt.h and not of choice or volition .
. .Without traversing. on any controversial i.ssue aild: coming back to ..
·the origin or'the caste system, we would like to ·refer to .\he, most
· authoritative
pronouncements ordained. bY Lord· Krishna in Shree ·
Bhagvadgita which would. demonstrate that tlie divis.ion of castes
was· riiade • purely on the basis of inherent qualities and a~ocations' .
· -of a· person· and hence the· question of' superiority b.etween one or
. tl;e other. lay not »on ·t~e na(ure of the caste but on their act.ions and
deeds .. This would be illustrated by a. refere.nce to· the actual text of
Sh:ri .Bhagvadgita as compiled . by F. Max MuUer in. his book entitled
'Sacred Books of the East (Vol' vmr and. we would like to extract
. some passages and. injunctions of .Lord Krishna illusfrating the vices
and virtues of·men where castes also figure .. In .Shloka 13, Chapter
4 of Bh~gvadri Geeta, Loh:! Krishiia clearly proclaimed that -"Four
Varnas, viz., lirahmanas,.Kshtriyas, Vaisyas ·and Sudras were created
by him on the basis of inllerent qualities and avo.cati~J\S of a particular
· indivi<iual''.
(Translated into English from the
original . text in
Hindi).'.
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· Further· said Lord Krishna to· the son of Kunti thus-:
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."Whatever yo ti do, O'Son' of KuHti .: Wh~tever . you cat,
. whatever sacrifies you make, ·whatever you give, whatever.-
penance you, do that. as offered. to me , .. l ani alike to all
beings; to .me none is hateful, norie· di'ar, ·But those· who
w.orship .me. with devotion· (dwell) in me, and I too in them ..
E,ven if a very ill-conducted man worships me, ·not wor-
. shipping any one else; he must certainly be deemed to be
good, for he has well resolved ....... (You· may) affirm, 0 son
of Kunti : that my ·devotee is never ruined. For, O son of
· .. Pritha .:. even- those lVho are·of sinful.birth, ll'Onien,· VaisyqS.:
and Sudras· likeivise, resortiltg to 111e, attain the supreme goal.
What then (need be said of) holy Brahmanas and royaf saints
wh.o. are (my) devotees?".
These passages clearly go to confirm the true pl1iiosoph'y of
Mahatma Gandhi that the .Sudras or the meri1ben; of the scheduled
H ·
, castes are Harijans and ·h<l~condemrted untouchability ai;id the habit
'of looking ·down· uf,on the scru;duled caste people merely because
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KAILASH SONKAR v. MAY!; DEVI (Faza/,j/i, i.)
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tliey belonged to .the Sudra. caste. Further, Lord Kri,l111a goes on to
ordain as follows : ·
· "The 'duties of Brahmanas, Kshatriyas .and Vaisyas, and of.
Sudras, too, 0 terror of your foes ! are-distinguished according to the qualities b()rn of nature. Tranquility, iestraiHl ·
of'the sens.es., penance, purity, forgiveness, s!lrai.ght forward'-
ness, .. also· knowledge,. experience, and belief (in a future
world), this is the natural duty of Brahmarias. Valom,
glory,· courage, dexterity,. not a slinking away from battle
gifts,· exercise of lord!~ power, this is the naturnl · dufy of
Kshatriyas .. Agriculture, , tending caitlc, trade, (this) is
the natural. duty of· Vaisyas. And the natural' duty ·of
Sudras, · ·too, coi1sists in service. (Ever¥) man intent on
hi,s own respective duties obtain's perfection._ ... Worshipping;
by (the performance of) his owri duty, him from whoin all
. things proceed, and by who in all this is p~rmeated, a man
obtains perfection."
,
·
In another chapter, Vidura fs quoted as saying ·thμs :
"I arn born of a. Sudra womb; and do not like to say·more ·
than what (! have said').· But _the intelligence of that youth,.,
I believe to be eternal. He who has come of a Brahmana
womb, even though he may proclaim a great mystery; does
.i10t thereby become Ha-ble to the.censure of the gods, Therefore do I say this to _you."
.
In view· of the revealed injuncti_ons in the Shree Bhagavadgiia
Mahatma Gandhi'& drea~ that .all distinctions of castes and creed
must disappear and ~an mnsf be known· by his action, to whatever
, . .caste he may belong, has been realised to som,e extent and, ,necessary
provisions io this effect have been made in the Constitution in order (O
safeguard the interests of the backward classes. and members of the
scheduled. castes and scheduled. tribes and perhaps, let us· hope, a
day comes. when the distinction. between caste and cree.d disappean;
completely,
·
One of ihe most puzzling qu_estion that arises in this case is :
'Is membership in a , caste or t~ib~ to , be determined
solely by birth or by allegience or by the opinion of its
members cir of the neighbourhood? Does one lose his caste
on converSioft ·or by· ex-Communicati'on ?
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SUPREME COURT REPORTS
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· :rhe decisions to which we ·would .refei· hereaf.ter have thrown
flood of Jight. on these questio;1s and the. generally accepted view
seems to be the one \vhich h&s been lai.d down in Charlotte'Abrahmit
aiul Daniel Vincent Abraham v. Franci.1· Abraham"·' where the ·Privy
Council observed thus :.
"li is plain that no rule as to. such use and enjoyment, which
the ance~tors may voluntarily have imposed on themselves,
could be of compulsory obligation on a descendant of theirs,
acquiring his own wealth. If a Hindoo in an undivided
· family may keep his own sole acquisitions separate, as he
undoubtedly may, 11 fortiori a Christian may do the same .. , .
If the spirit of an adopted religion improves those who become
conyerts. to ii, 'lnd they reject, from ·conscience; customs to
whicl\ their first converted ancestors adhered, must the
abandoned usages be treated by a sort of fictio juris as still
the enduring ciistoms of the family."
So far as this. Court is concerned., these questions were .clearly.
an.swered in Chaturbhuj Vitha/das Jasani v .. Mores!n!'ar Parashram &
Ors'.,cii (herei_nafter referred to as 'Jasaniis, case'~here· a triple test
was laid down thus :
"Looked a.t from the secular· point of view, there ar~ tl;ree
factors which have to be considerd :
(I) the reactions of tile old
body,
(2) the intentions
of the indiv.idllal himself
aod. ·(3)
the rules of the
new order. If the old order is taler.ant of the
new
faith and sees no
reason to. outcaste or ex-coi:nmuni'
cate the convert and
the individual' himself desires and·
· intends to retain his old social and political ties, the con-
. version is only .•110;l;nal for all practical purposes and when
·we have to conside1 the legal and political rights of th~ old
body the. views of the new faith hardly· matter .... On •the
other hand, if the convert has .shown by his conduct and
dealings that his break from the old order is so complete·
and final that he no longer regards himself as a member
. of the old body and rl•erc .is reconversion and readmittance
to the old .fold, it would be wrong to hold that he can
nevertheless claim 'temporal priv;Jeges and political advantai (I) 9 M. I. A. 199.
(2) [1954] S.C.R. 817
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SONKAR v. MAYA. DEVI (Fazal Ali, J.)
185
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ges which are special to the old order ... : ... Tlie only modiA
fication here is that itis not only h;s choice which must .tc
taken into account. but also the views of the body whose
religious tel)ets he has renounced, because here the right we
are consitjedng is the rigl;t of the old body, the right conferred on it as a special privilege to send a member of its
own fold to Parlhment.''
B
The obse.rvations cited above give the general test that· can
be applied in judging the question as to when a f!>ndu on conversion
loses his c.aste.
Although the .test laid down by this. case is · fully
supported by the original text of Hindu Law, it does not in so many
words answer"the other side of the picture, viz., if a Hindu after
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conversion to another religion· is reconverted to his original · fold,
could his caste revive ? In fact, the case cited above was not a case
of conversion from one religion to another religion or from one sect
to another sect. By and large, the test laid down ·in that case can
be usefully applied· with alterations an\! mocijfications .to suit the
facts of a particular case in· judging the. question whether on con-•
·n
version the caste is completely lost.
The next case which throws. some Jighi on ·the question is S.
Rajagopal v. C.M. Armugam Ors.'" In this case· what ha.ct happened
was that. the appellant (before othe Supreme Coui,t) had filed his
nomination papers for a constituency reserved for members, of the
E
scheduled· caste. mentioned under the 1950 Order but he was defeated
by respondent No. I of that case, whose petition. succeeded.
The
contention in the petition was tha·t the appellant was not: a Hindu
but a Christian and therefore not qualified to be a candidate for a
·constituency reserved for scheduled caste. The High ·Court found
as a fact that the appellant had become a Christian in 1949 and his
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later: reconversion to Hi11duisn1 ren;ained u.nprovcd. This Courts
agreeing with the High Court dismissed the appeal. One important
feature of this case may be noied which would at once di•tinguish
this ca~e from the facts of the present case. The question as to . ·
whether a Chdstian on being reconverted to Hinduism· would get
back his caste did not arise at· all in that case because on the facts
G
found, reconversion was not proved. Therefore, the question of
caste being acquired or being· revived on reconversion to Hindusim
did not fall for det~rmination and was left open. Even so, considering .Jasani's case and a number of other texts, Bhargava, J. made
H
(I) [19691 I S.C.R. 254 .
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SUPREM.E COURt REPORTS
[1984] 2 s:c.R.
·the following observations :
"Consider1ng the· question of entry into the caste,
.. Krishnaswami Ayyai1gar, J., held .. that, in matters affecting
the. well-be.ing or composition of a caste, tl1e caste itself is
the supreme judgec It was on this principle 'that a reconvert
to Hiridusim could become a member of the caste, if the.
caste itself .as th~ supreme judge accepted him as a full mem~
. ber of it."
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While holding that if a person is reeonve1·ted to Hinduism and
th~· commu'nity of the caste to· which he originally belonged accepts
him, his caste would revive; nevertheless the question was left open.
Rajagopal's case (supra) merely reiterates what was held in Jasani':I
case and does ·@t go .any further.
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. In .. our opinion: there is one ·~spect which does not. appear to.
have .been deal.I with 'by any of the cases. discussed. b)' ·us. Suppose,
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A, a lliember of the scheduled caste, is converted to Christianity
·and marries a Christian girl and· a dat1ghter is born.to .him who,
according to the tenets of Christian religion, is b_apiised ·and
educated. After she has attained the age of discretio1; ·she decides
of'h!'r own volition to re-embrace. \Jindusim, should in such a case
re·v.ival of the caste d~pend on the views of the 1neniber.s o\ the. com':
munity of the caste concerned or would it ·automatically revive on ·
her reconversion if the same is genuine and followed by the necessarri'
rites and ceremonies ? In ·other words, is· it ·not open for B (the .
. dirnih.ter) to. say that because she· was. born of Christian .parents
their religion cannot be thrust on her when after attaining the age
of discretion and gaining some knowledge .of the world affairs, she
d<;cides to revert to -her old religion. It was not her fault that she
was horn of Christian parents and baptised.at ·a time when she was still
a minor and· knew nothing ab.out the religion, Therefore, should
the r~vival of the caste. depend on the whim· or will of the members·
. of the community of her. original caste or. she would lose her caste
fat .ever merely because fo~tunately or unfortunately 'she ·was·· born
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in ·a Christian family ? With due respect, our confirmed opinion
. . . . is that although the.views of the members of the coni.mnnity w~uld •
. be an important fac!Or, ·their views .should not be allowed to a com-·
plete loss of the caste to which. B belo11gel Indeed, if too much stress
is ulid on the views of the members 'of the community the same' ma):
foad to dangerous ex plo;tation ... Perhaps, this factor was ·present
in the . inind of Bhagwati, J., who delivered the leading judgment
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187
in a later. decision of this Cci~rt ii> G.M. Arumugam v. S. Rajagopa' &
Ors.<''. where, speaking for the Court, he made
th~ following
· observations :
•
;,it is sufficient to :state, that originally .there 1'cre only
four inain castes; but gradually. castes and sub-castes niulti~ .
plied as 1he social fabric expanded with ihe absorption of
different groups of people belonoing' lo various cults and
professing different religious· faitl~s. The ·caste system in
,its early. stages was quite efasti~ but in course of time it.gradua.Jly hardened into a rigid .framework based upon heredity
...... But that' immediate'iv reises the question;. what is
. a caste. When we speak of a caste, we do not n1ean to refer.
in this context to the four primary castes, but to· the multi;
:.plicity of castes and sub-castes which disfigure the Indi'an
s.ocial scene ...... A caste is nwie a social combination than.·
a ~eligious group.
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But from that it does not necessarily follow as 'an invaD ·.
· riable rule that whenever a pe1'scin renounces: Hindusini and
embraces another
religious faith, he automatically- ceases
to be. a member of the caste in which he was born .and .to
which he belonged. prior to his .. conversion ...... If the. struc- ·
ture of the caste is 'such that its member must necessarily
belong to. Hindu religion, out .of the caste, because no 11011-
. Windu. can be inth.e caste according to its rules and regula-
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lions. Where, on the. other hand, ha~ing regard to its
structme, as it has evolved over the years. a caste '. may
C?nsist not only of perions professing Hindu religion ·but. · ·"
also persons ,professing some other religion as ,,;elt conver-.
sion from Hinduism to 'that othe.r religion may not involve ·
loss .of caste, because even persons ,professing such other
religion can be members of the caste ....... This i~ ifildeed ·
not an infrequent phc:aomenon 'in s,;uth India where; oin· ·
some of ·the castes, even after conversion tQ Christianity,
a 'person is re garde~ as
con(inuin~ to belong to . the
·caste.
· There are castes, particularly in South India, where ,this
consequence·. ·does not folIO\v On- conversion,· since ·stith
castes comprise both Hindus and Christians._
(I) [1976] 3 S.C.R. 82.
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These weighty observations.· support the view .. that after
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reconversion the caste will normally.revive. On the question whether
·the caste will revive if the members· of the: community accepts the
· reconvert, the. Judges are silent. ·Although Bhagwati, J. held that
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prima faci• on. conversion to Christianity the respondent would nor
cease to pelong to the Adi Dravida caste, yet he refrained from expressing· any final opinion on the point.
In a recent decision of this Court S. Ambalagan v. B. Devarajan &
Ors.<U (which was also an election case), a three-Judge Bench reiterated the. principles enunciated by Arumugan's case (supra) and observed
thus:.
·
"Unless the p~actice of the caste. makes it necessary·
no expiatory rites need be performed and, ordinarily,. he
regains his caste unless the community does not accept hinl ....
..
. . . . The practice of caste however .irrational it may appear
to our reason and however repugnant it may appear to ciur
moral and social sense, is so deep-rooted in the Indian· people
that its niark does not seem to disapper .on conversion to a ·
different. religion: If it disappears, it disappears only to
reapfiear on reconversion . . _ ..... .
In fact, this pi·ocess goes on continuously in India and ·
generation by generatiqn lost sheep appear to· return to
the castefold and are once · ngain assimilated in that fold.
This appears to ·be. particularly so in the case of members of.
the Schedulc!d Castes, who embrace other religions in their •
quest for liberation, buheturn to their old religion on finddini: th.at their disabilities have clung to them with g~eat
tenacity,
. (Emphasis ours)
The facts of .this case appears to be on· all fours with the facts
of the present ca•e.
•
· · A .number of Higlf Courts' have also takeri a .view similar t-0
.the one taken. i11 A.rumugam's case ·of 1976· (supra) basing. mainly
their. decjsions on the leading case of Jasani. In the case :of Goona
· Durgapr"s/Jda Rqo & Anr. v. Goo1ia Sudarsanaswaini & Ors./" a
Division Bench of the Madras High Court observed thus :.
(1) (1984] 1 S .. C.R.
(2). ItR 1940 Madras 653.
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189
. "It is hardly right. for the Court to erect a barrier which
the ·auionomy of th> caste does n,ot see fit to do, simply
because in some other caste or some other community· It
might be considered proper that ari expiatory
ceremony
should be performed. That· a Hindu h,aving reno.unced
Hinduism once can revert to it scarecely.admits of doubt.
'
A Similar view was expressed in G. Michael ·v. S. Venkat'e-·
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swaran"'. which may be extracted thus : ·
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"A member of one of the castes or sub-castes when he
is converted to Islam ceases to be a mem.ber of any c:aste.
He becomes jus~ a Mussalman find _his place iri Muslim
society is .not determined by. the caste to which he belonged
before his . conversion. Learned counsel also ·conceded
· that generally this is so even· when th.ere has been a conversion · ·
to Christianity. But he said that there were se.veral cases
in which a member of one of ihe lower
casl~s who has
c
been converted to Christianity has continued not only to
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consider himself as still being a member of the caste, but
has also been considered so by other men1bers of the caste
who had· not been converted ...... But these are all cases
of exception an~ the general rule is conversion operates as
a11 expulsion from the caste; in other words, a convert ceases
to have any caste:
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. ·Thus, it ·was clearly hinted that in some cases even converts to
Christianity could retain their original caste. Jn the case of Dippala
Suri D9ra v. V. V. (!iri'" a Division Bench of the Andhra Pradesh
High Court made the following observations :
"Even if they come within the fold of Hiliduism,
question would arise whether they have formed separate·
sect among themselves, or they would
bdong to the 4th
·class, or to 'the twice-born class .. , ... Jn ·order to prove
.that he ceased to be a member of that tribe, there should
·be. first of all,' evidence of intention, the reactions of the ·
old body and that .. of the new body. Viewed in t)le light
of these observations, the evidence discussed abovt, in our
opinion, falls short of the test ..
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(I) AIR J95i Madras 474.
(2) AIR 1958 A.P. 724.
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This casC'Jnercly lays down the. tri.plc test enunciated in Jasa;1i's
case.· To the same· effect are· the decisions ·in the cases· of Wilson .
Re~de ~: C.S. Booth & Oi·s., 11 ) and B. Shvainsunder v. Slwnkar 'Deo
.· Vedal~nkar: & Ors. tz)
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Qa ·a careful consideration of the au;horities referr;d to above .
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. a~d the principles enuncialed by them, ·the position that emerges.
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It fa. true tl)at a caste to which a:Hindu. beloμgs is essentially
. determin~d by birth and if [1 .Hindu is coverted to Christianity or .
. any. other religion which
does 110t recognise caste,. the conversion
amounts 'to a loss of.the said •caste,
·,
. Tl1~ question that arises for consideration is whc.ther the loss
of ihe caste is absolute, irrevocable so as 119t torevive under any
. ci~cumstafices? Tn _considering this· qucstiOn the courts. h·ave gGne
into the history. of.the caste system and have· formulated the following
guid.ing principles to .determine· this question.:~·
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(it) Where a
person. belonging to a scheduledcastc is converted to Christianity or Islam, the same involves. IOss of the caste .
. unless the religi~1i to which· tie is converted. is ll'beral enough to permit
the·convertee .to.·retain his caste or the family laws by whic]l he was
originally goveri\ed. There· are .. a number-of cases where members
belonging· to a paftiuclar caste havi~g been c<inverted to Christianity
. or· even to Islam retain their· caste or fan;ily laws and despite the ..
·new 9ider they ·were permitted· to be goVc.rned by their ·o.Jd Jaws.
·· B~t t1)is .can happen only if the new religion is liberal and tolerant
enough to -pBrrriit su~h a.