# M. CHANDRA v. M. THANGAMUTHU & ANR

- **Citation:** [2010] 11 S.C.R. 38
- **Court:** Supreme Court of India
- **Decided:** 2010-09-07
- **Case number:** Civil Appeal No. 7284 of 2008
- **Bench:** D.K. Jain, H.L. Datiu
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/m-chandra-v-m-thangamuthu-anr-26373
- **Pages:** 51

## Headnote

Election laws: Election on a seat reserved for Scheduled
Caste -
Challenged on the ground that the returned
candidate was a Christian and not belonging to the Hindu
Pallan Community - High Court shifting the burden on the
returned candidate to prove that she had renounced
Christianity and was practicing Hindu faith; and holding the
election as void on the ground that returned candidate failed
to discharge the burden placed on her - Propriety of - Held:
In an election petition, the burden lies on the election
petitioner to prove the charges made against the returned
candidate - High Court erred in shifting the burden of proof
on the returned candidate - Election petitioner failed to
disprove the evidence adduced by the returned candidate -
Birth records, entries in the telephone application and voters
list not relevant for proving that the returned candidate was
professing Christianity - Though the returned candidate did
not produce the original conversion certificate, there was no
reason to disbelieve the duplicate that she had submitted, as
the petitioner failed to provide a. reasoned rebuttal to the
evidence adduced by the returned candidate to prove her
cas,e -
There was nothing to show that the community
certificate was issued illegally or in contravention of the valid
G
procedure - The evidence produced by election petitioner was
c;ontradictory and smacked of political rivalry - The order of
High Court set aside -
Constitution (Scheduled Castes)
Order, 1950 - Constitution of India, 1950 - Article 341 -
Evidence - Burden to prove.
H
38
M. CHANDRA v. M. THANGAMUTHU & ANR.
39
Constitution (Scheduled Castes) Order, 1950:
A
Paras 2 and 3 - 'Profess' a religion - Held: ff a public
declaration is made by a person that he has ceased to belong
to his old religion and has accepted another religion, he will
be taken as professing the other religion -: In order to claim
B
the benefits of reservation under the Presidential Order, a.
person must establish that the caste to which he belongs is
notified in the Presidential Order and he is 'not professing a
different religion - Constitution of India, 1950 - Article 341.
Conversion of religion - Held: To prove conversion from
C
one religion to another, two elements to be satisfied are that
there has to be a conversion and acceptance into the
community to which the person converted - Evidence_
Evidence: Secondary evidence - A party who wishfJS to
0
rely upon the contents of a document must adduce primary
evidence of the contents, and only in the exceptional cases
will secondary evidence be admissible -
However,\ if
secondary evidence is admissible, it may be adduced in any
form in which it may be available, whether by production of a
E
_copy, duplicate copy of a copy, by oral evidence of the
i contents or in another form - The secondary evidence· must
be authenticated by foundational evidence that the alleged
'copy is in fact a true c;opy of the original - The exceptions to
the rule requiring primary evidence are designed to provide
lrelief in a case where a party is genuinely unable to produce
the original through no fault of that party - Election laws_
F
The appellant was declared elected in the election to
the legislative assembly on a seat reserved for the
members. of Scheduled Castes. The election petitionerG
I
respondent no.1 questioned the election of the appellant
before the High Court on the ground that the appellant
belonged to Christian Pallan Community and had made
false declarations relating to her community status and
school education in her nomination papers. The High
H
40
SUPREME COURT REPORTS
[2010] 11 S.C.R.
A Court placed the burden on the appellant to prove that
she renounced Christianity and held that the appellant did
not satisfactorily discharge the burden of proof placed on
her. It declared the election of the appellant as void on
the ground that the circumstances in which the
B community certificate was granted was highly
suspicious, as it was issued within two day

## Text

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[2010] 11 S.C.R. 38
M. CHANDRA
v.
M. THANGAMUTHU & ANR.
(Civil Appeal No. 7284 of 2008)
SEPTEMBER 7, 2010
[D.K. JAIN AND H.L. DATIU, JJ.)
Election laws: Election on a seat reserved for Scheduled
Caste -
Challenged on the ground that the returned
candidate was a Christian and not belonging to the Hindu
Pallan Community - High Court shifting the burden on the
returned candidate to prove that she had renounced
Christianity and was practicing Hindu faith; and holding the
election as void on the ground that returned candidate failed
to discharge the burden placed on her - Propriety of - Held:
In an election petition, the burden lies on the election
petitioner to prove the charges made against the returned
candidate - High Court erred in shifting the burden of proof
on the returned candidate - Election petitioner failed to
disprove the evidence adduced by the returned candidate -
Birth records, entries in the telephone application and voters
list not relevant for proving that the returned candidate was
professing Christianity - Though the returned candidate did
not produce the original conversion certificate, there was no
reason to disbelieve the duplicate that she had submitted, as
the petitioner failed to provide a. reasoned rebuttal to the
evidence adduced by the returned candidate to prove her
cas,e -
There was nothing to show that the community
certificate was issued illegally or in contravention of the valid
G
procedure - The evidence produced by election petitioner was
c;ontradictory and smacked of political rivalry - The order of
High Court set aside -
Constitution (Scheduled Castes)
Order, 1950 - Constitution of India, 1950 - Article 341 -
Evidence - Burden to prove.
H
38
M. CHANDRA v. M. THANGAMUTHU & ANR.
39
Constitution (Scheduled Castes) Order, 1950:
A
Paras 2 and 3 - 'Profess' a religion - Held: ff a public
declaration is made by a person that he has ceased to belong
to his old religion and has accepted another religion, he will
be taken as professing the other religion -: In order to claim
B
the benefits of reservation under the Presidential Order, a.
person must establish that the caste to which he belongs is
notified in the Presidential Order and he is 'not professing a
different religion - Constitution of India, 1950 - Article 341.
Conversion of religion - Held: To prove conversion from
C
one religion to another, two elements to be satisfied are that
there has to be a conversion and acceptance into the
community to which the person converted - Evidence_
Evidence: Secondary evidence - A party who wishfJS to
0
rely upon the contents of a document must adduce primary
evidence of the contents, and only in the exceptional cases
will secondary evidence be admissible -
However,\ if
secondary evidence is admissible, it may be adduced in any
form in which it may be available, whether by production of a
E
_copy, duplicate copy of a copy, by oral evidence of the
i contents or in another form - The secondary evidence· must
be authenticated by foundational evidence that the alleged
'copy is in fact a true c;opy of the original - The exceptions to
the rule requiring primary evidence are designed to provide
lrelief in a case where a party is genuinely unable to produce
the original through no fault of that party - Election laws_
F
The appellant was declared elected in the election to
the legislative assembly on a seat reserved for the
members. of Scheduled Castes. The election petitionerG
I
respondent no.1 questioned the election of the appellant
before the High Court on the ground that the appellant
belonged to Christian Pallan Community and had made
false declarations relating to her community status and
school education in her nomination papers. The High
H
40
SUPREME COURT REPORTS
[2010] 11 S.C.R.
A Court placed the burden on the appellant to prove that
she renounced Christianity and held that the appellant did
not satisfactorily discharge the burden of proof placed on
her. It declared the election of the appellant as void on
the ground that the circumstances in which the
B community certificate was granted was highly
suspicious, as it was issued within two days of the
receipt of the application. It further held that the original
conversion certificate was not produced by the appellant
and only a duplicate copy was produced and, therefore1
c her claim for conversion cannot be accepted.
In the instant appeal, it was contended for the
appellant that her father was a Christian, but, her mother
separated from her father and never practiced Christian
faith and continued to follow Hindu religion and the
D appellant was brought up as a Hindu; and that she had
undergone rituals of conversion to Hinduism in Arya
Samaj Mandir in 1994, and a conversion certificate was
issued and was collected by her uncle which was,
however, lost and, therefore, a duplicate certificate was
E obtained and submitted.
Allowing the appeal, the Court
HELD: 1. "Scheduled Castes" means such castes,
races or tribes or parts of or groups within such castes,
F races or tribes as are deemed under Article 341 to be
Schedul,ed Castes for the purpose of the Constitution.
Under the said provision, the Constitution (Scheduled
Castes) Order was issued in 1950. It sets out the caste,
races and tribes in each State of India and provides under
G para 2, that a rerson belonging to any of the castes
specified therein be deemed to be a Scheduled Caste for
the purpose of the Constitution. Para 3 contains a proviso
to the effect that notwithstanding anything contained in
para 2, no person who professes a religion different from
H the Hindu, Sikh or Budhist religion shall be deemed to be
M. CHANDRA v. M. THANGAMUTHU & ANR.
41
a member of a Scheduled Caste. Reading para 2 and 3 A
of the Presidential Order would show that if a person
belongs to a caste which is notified in the Schedule to
the Presidential Order, he/she would have the status of
a Scheduled Caste, provided he/she professes Hinduism
or one of the other religions specified in paragraph 3 of B
the Order. It is not in dispute that Hindu Pallan Community
is notified under the Presidential Order as Scheduled
Caste. [Paras 15, 17, 21] [59-F; 60-H; 61-A-C; 63-D]
Punjab Rao v. D.P. Mesh Ram and others (1965) 1 C
SLR.849, relied on.
Peruma/ Nadar v.Ponnuswamy (1970) 1 SCC 605;
Gangapal v. Returning Officer (1975) 1 SCC 589; Chandra
Shekhar Rao v. V. Jagapathi Rao 1993 Supp. (2) SCC 229;
Harikrishna Lal v. Babula/ Marandi (2003) 8 SCC 613; Razik D
Ram v. ,/aswant Singh (1975) 4 SCC 769; Gajanan
Krishnaji Bapat v. Dattaji Raghobaji Megha (1995) 5 SCC
347; Regu Mahesh v. Rajendra Pratap Bhany Dev (2004) 1
SCC 46; Jeet Mohinder v. Harminder Singh (1999) 9 SCC
386; Raghunathi & Anr. v. Raju Ramappa Shetty (1991) E
Supp. (2) SCC 267; Standard Chartered Bank v. Andhra Bank
Financial Services Ltd. & Ors. (2006) 6 SCC 94; Duggi Veera
Venkata Gopala Satyanarayana v. Sakata Veera Raghavaiah
& Anr. (1987) 1 SCC 254; Sri Venkataramana Devaru & Ors.
v. State of Mysore & Ors. AIR 1958 SC 255; Gajanan
F
Krishnaji Bapat & Anr. v. Dattaji Raghobaji Meghe & Ors.
(1995) 5 SCC 347; Abubakar Abdul lnamdar (dead) by LRs
& Ors. v. Harun Abdul lnamdar & Ors. AIR 1996 SC 112;
Gu/abrao Balawantrao Shinde & Ors. v. Chhabubai
Ba/awantrao Shinde & Ors. (2003) 1 SCC 212; Bondar Singh G
& Ors. v. Nihal Singh & Ors. (2003) 4 SCC 161; S.
Swvigaradoss v. Zonal Manager, F.C.I. (1996) 3 SCC 100;
Punjabrao v. D.P. Meshram (1965) 1 SCR 849; Karwade v.
Shambhakar AIR 1958 Born 296; Kothapalli Narasayya v.
H
42
SUPREME COURT REPORTS
[2010] 11 S.C.R.
A
Jammana Jogi AIR 1976 SC 937; S. Anbalagan v. B.
Oevarajan and others (1984) 2 SCC 112; C.M. Arumugam
v. S. Rajgopal and Others (1976) 1 SCC 863, referred to.
2. A declaration of one's belief must necessarily
8
mean a declaration in such a way that it would be known
to those whom it may interest. If a public declaration is
made by a person that he has ceased to belong to his old
religion and has accepted another religion, he will be
taken as professing the other religion. In the face of such
C an open declaration, it would be idle to enquire further as
to whether the conversion to another religion was
efficacious. The word "profess" in the Presidential Order
appears to have been used in the sense of an open
declaration or practice by a person of the Hindu (or the
Sikh) religion. Where, therefore, a person says, on the
D contrary, that he has ceased to be a Hindu, he cannot
derive any benefit from that Order. In order to claim the
benefits of reservation under the Presidential Order, a
person must establish that the caste to which he belongs
is notified in the Presidential Order and he is not
E
professing a religion different from the Hindu, the Sikh or
the Budhist. [Paras 19, 20] [62-F; 63-A-C]
3. Hinduism is not a religion with one God or one
Holy Scripture. The practices of Hindus vary from region
F
to region, place to place. The Gods worshipped, the
customs, traditions, practice, rituals etc, they all differ, yet
all these people are Hindus. The determination of the
religious acceptance of a person must not be made on
his name or his birth. When a person intends to profess
G Hinduism, he does all that is required by the practices of
Hinduism in the region or by the caste to which he
belongs, and he is accepted as a Hindu by all persons
around. him. It is a settled principle of law that to prove a
conversion from one religion to another, two elements
need to be satisfied. First, there has to be a conversion
H
M. CHANDRA v. M. THANGAMUTH,U & ANR.
43
and second acceptance into the community to which the A
person converted. Th,e appellant not only in her
pleadings but also in tier evidence stated that her father
separated from her mot~er and her mother continued to
profess Hindu religion and the Hindu Pallan Community
accepted her as such. The pleadings and the evidence B
adduced in support of the same was required to be read
conjointly. The hyper-technical approach need not be
adopted when an election petition is filed on the grounds
of corruption, inciting people on the ground of particular
religion etc. The High Court while deciding the lis between 0
the parties shifted the burden of proof on the appellant
to prove that she is not a Christian but a person
practicing Hindu faith and the community has accepted
her as a person belonging to Hindu Pallan Community.
This reasoning of the High Court runs counter to the 0
settled legal principles. In an election petition the burden
of proof lies on the person who accuses that the elected
person who had the support of the majority of the
electorates still does not deserve to represent them in the
State Assembly. In the instant case, the election petitioner
did not produce any acceptable evidence to disprove the E
evidence adduced by the appellant and her witnesses.
Therefore, issue of parentage which was sought to be
projected as a factor which would prove that the appellant
is a Christian and brought up as a Christian cannot be
accepted. [Paras 27, 28, 29, 35, 47] [69-D-H; 70-A-B; 74F
B-F; 81-D-H; 82-A-F]
Kai/ash Sankar v. Mayadevi (1984) 2 SCC 91; Ganpat
v. Returning Officer (1975) 1 SCC 589, relied on.
4. As regards the discrepancy pointed out by the
election petitioner in the school record, the same was
properly explained by the appellant and, this by itself
cannot be a ground to hold that the appellant was
ineligible to contest from the reserved constituency. In so
G
H
44
SUPREME COURT REPORTS
[2010] 11 S.C.R.
A
far as issuance of community certificate to the appellant,
the evidence of PW6 working as Tahsildar amply
demonstrated that due procedure was followed while
issuing the Community Certificate. The High Court did not
properly appreciate evidence of PW6 while doubting the
B
genuineness of the Community Certificate produced by
the appellant. Reliance placed on the birth records,
entries in the telephone application and voters list cannot
be the sole ground for proving that the appellant is
professing Christianity. [Paras 48, 49, 50) [83-G-H; 84-AC B; F]
Kumari Madhuri Patil & Anr. v. Addi. Commissioner,
Tribal Development & Ors. (1994) 6 SCC 241; GM, Indian
Bank v. R. Rani & Anr. (2007) 12 SCC 796; R. Palanimuthu
v. Returning Officer & Ors. (1984) Supp. SCC 77; John
D
Valiamattom & Anr. v. Union of India (2003) 6 SCC 611;
Meera Kanwaria v. Sunitha & Ors. (2006) 1 SCC 344; Desh
Raj v. Bodh Raj (2008) 2 SCC 186, distinguished.
5. It is true that a party who wishes to rely upon the
E
contents of a document must adduce primary evidence
of the contents, and only in the exceptional cases will
secondary evidence be admissible. However, if
secondary evidence is admissible, it may be adduced in
any form in which it may be available, whether by
F
production of a copy, duplicate copy of a copy, by oral
evidence of the contents or in another form. The
secondary evidence must be authenticated by
foundational evidence that the alleged copy is in fact a
true copy of the original. The exceptions to the rule
G requiring primary evidence are designed to provide relief
in a case where a party is genuinely unable to produce
the original through no fault of that party. In the instant
case, it was the specific case of the appellant that in the
year 1994, that is, much before the Assembly elections
which was held in the year 2006, she had undergone all
H the rituals in Arya Samaj only for the purpose of
M. CHANDRA v. M. THANGAMUTHU & ANR.
45
reaffirmation of Hindu faith and the conversion certificate
issued by Arya Samaj was received and acknowledged
by her uncle who had accompanied her. It was also her
specific case that she did not take back the certificate
from her uncle, since she was of the view the same may
not be required for her purpose. It was only when the
election petition was filed, it order to prove her case of
reaffirmation of her faith in Hinduism, she came to know
that her uncle has lost the certificate, which necessitated
A
B
her to obtain a duplicate copy of conversion certificate
from Arya Samaj, Madurai. That part of her evidence was c
not even challenged by the petitioner. In fact the contents
of the documents would clearly establish that it was
issued for the second time on the request made by the
appellant, after she was told by her uncle that the original
certificate received by him in the year 1994 is lost by him.
0
A perusal of the conversion certificate would amply
demonstrate that the appellant successfully proved her
claim of re-affirmation of Hindu faith by undergoing rituals
of conversion in the Arya Samaj, Madurai. [Para 30] [71E-H; 72-A-E]
Satrucharla Vijaya Rama Raju v. Nimmaka Jaya Raju
and Ors. AIR 2006 SC 543, distinguished.
6.1. It is a settled legal position that an election
petition must clearly and unambiguously set out all the
material facts which the petitioner is to rely upon during
the trial, and it must reveal a clear and complete picture
E
F
of the circumstances and should disclose a definite
cause of action. In the absence of the above, an election
petition can be summarily dismissed. For an election
G
result to be annulled, there must be positive evidence to
prove illegality of the election. Therefore, the burden of
proof shall lie on the petitioner filing the election petition.
An election petition challenging the election of a returned
candidate on the grounds of corrupt practices is not a
H
46
SUPREME COURT REP,ORTS
[2010) 11 S.C.R.
A criminal proceeding; but it is no less than a criminal
proceeding with regard to the proof required to be
furnished to the court by the petitioner. Though, in the
instant case, the charges are not those of corrupt
practices, they are not any lesser in terms of seriousness;
B hence the burden of proof is on the election petitioner to
prove beyond reasonable doubt the charges he has
made. This is done so that the purity of the election
process is maintained. [Paras 52, 54, 55] [85-G-H; 86-AB; 0-G]
c
D
J. Chandrashekara Rao v. V. Jagapati Rao 1993 Supp
(2) sec 229, relied on.
V.S Achutanandan v. P.J Francis (1999) 2 SCR 99,
referred to.
6.2. The testimony of the witnesses for the election
petitioner does not qualify the test laid down in the
Evidence Act, to make the evidence admissible. It does
not inspire any confidence. The evidence is clearly
E hearsay. The opinion of the High Court was heavily relied
on the fact that the burden of proof was shifted to the
appellant to prove that she had indeed renounced
Christianity. The reasoning of the High Court was not
correct. The burden of proof lay squarely on the election
F petitioner to show that the appellant indeed practiced and
professed Christianity. In any event, the evidence put
forward by the appellant was consistent and reliable as
it relied on the testimony of people who have actually
.
!
visited the house of the appellant or attended her
wedding or been in close proximity with her and her
G husband's family. Even assuming that the High Court
was justified in shifting the burden of proof on the
appellant, she, by adducing cogent and reliable evidence,
hacf discharged the same. Her testimony was consistent
with the documentary evidence produced by her. Though
H the appellant did not produce the original conversion
M. CHANDRA v. M. THANGAMUTHU & ANR.
47
certificate, there was no reason to disbelieve the A
duplicc.te that she had submitted, as the petitioner has
failed to provide a reasoned rebuttal to the evidence
adduced by the appellant to prove her case. There was
nothing on record to show that the community certificate
was issued illegally or in contravention of the valid B
procedure. The election petitioner should have examined
the person in charge while the certificate was being
issued to bring to light any alleged malpractice in the
issuance of the said certificate. The validity of the
issuance of the community certificate is presumed unless c
shown otherwise by the respondent no.1, who clearly
failed to do so. It is also baffling to note that the
conversion certificate from the Arya Samaj was not
examined in detail by the respondents inspite of the High
Court making a strong observation in this regard. No 0
proof by way of documents or oral evidence was
provided to show how the certificate was granted and
what procedure was followed. The evidence produced is,
contradictory and smacks of political rivalry. [Paras 56,
57, 58] [86-H; 87-A-H; 88-A-D]
E
Case Law Reference:
(1965) 1 SLR.849
relied on
Para 8
(1970) 1 sec 605
referred to
Para 8
(1975) 1 sec 589
referred to
Para 8
F
1993 Supp. (2) SCC 229 referred to
Para 9
(2003) s sec 613
referred to
Para 9
(1975) 4 sec 769
referred to
Para 9
G
(1995) 5 sec 347
referred to
Para 9
(2004) 1 sec 46
referred to
Para 9
(1999) 9 sec 386
referred to
Para 9
H
48
SUPREME COURT REPORTS
[2010] 11 S.C.R.
A
(1991) Supp. (2) SCC 267 referred to
Para 10
(2006) 6 sec 94
referred to
Para 10
(1987) 1 sec 254
referred to
Para 11
B
AIR 1958 SC 255
referred to
Para 11
(1995) 5 sec 347
referred to
Para 11
AIR 1996 SC 112
referred to
Para 11
(2003) 1 sec 212
referred to
Para 11
c
(2003) 4 sec 161
referred to
Para 11
1915 (1) sec 589
referred to
Para 13
(1996) 3 sec 100
referred to
Para 16
D
(1965) 1 SCR 849
referred to
Para 18
AIR 1958 Born 296
referred to
Para 19
1910 (1) sec 605
referred to
Para 21
E
(1975) 1 sec 589
referred to
Para 22
AIR 1976 SC 937
referred to
Para 23
(1984) 2 sec 112
referred to
Para 24
(1984) 2 sec 91
referred to
Para 25
F
(1976) 1 sec 863
referred to
Para 26
(1970) 1 sec 605
referred to
Para 30
AIR 2006 SC 543
distinguished
Para 31
G
(1984) 2 sec 91
relied on
Para 47
(1994) 6 sec 241
distinguished
Para 49
(2001) 12 sec 796
distinguished
Para 49
H
(1984) Supp. sec 11
distinguished
Para 49
M. CHANDRA v. M. THANGAMUTHU & ANR.
49
(2003) 6 sec 611
distinguished
Para 49
(2006) 1 sec 344
distinguished
Para 49
(2008) 2 sec 186
distinguished
Para 49
(1999) 2 SCR 99
referred to
Para 53
1993 Supp (2) sec 229 relied on
Para 55
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
7284 of 2008.
A
B
From the Judgment & Order dated 02.12.2008 of the High C
Court of Judicature at Madras in Election Petition No. 7 of
2006.
K. Ramamoorthy, Gurukrishna Kumar, Subramonium
Prasad, Jay Kishor Singh, N. Sundareshan, K. Dhanasekaran,
D
Srikala Gurukrishan Kumar, U.M. Ravichandran, G. Ananda
Selvam, K. Mail Sawhney, R. Satish Kumar, S. Nanda Kumar,
Satish Kumar, Achin Goel, P.V. Yogeswaran, Jaimon Andrews
for the appearing parties.
The Judgment of the Court was delivered by
E
H.L. DATTU, J.
Facts :
1. In the election to Tamil Nadu Legislature Assembly held
F
in May 2006, Rajapalayam constituency was reserved for
members of the Scheduled Castes. Appellant, respondent No.
1, and eleven others had contested the elections. The appellant
was declared elected. Respondent No. 1 filed election petition
inter alia questioning the election of the appellant. The election
G
petition having been allowed by the High Court of Madras, this
appeal is filed by the appellant.
2. The Nominations for the Rajapalyam assembly
constituency were scrutinized on 21.04.2006 and after scrutiny
H
50
SUPREME COURT REPORTS
[2010] 11 S.C.R.
A
of the nominations, there were 13 candidates in the fray
including the appellant and the respondent no.1. The appellant
contested as a candidate from the AIADMK party and was
allotted the "two leaves" symbol. The respondent no.1 contested
the election as an independent candidate and was allotted the
B
"Finger Ring" symbol. The election for the said constituency was
held on 08.05.2006. The result of the election was declared on
11.05.2006 and the appellant was declared as the successful
candidate in the elections having secured the highest number
of votes.
c
3. The respondent no.1 [Election Petitioner] challenged the
result of the election by filing election petition under Section 81
read with Section 5(a), 100 (1)(a) and 125-A of the
Representation of the Peoples Act, 1951. His prayer was for
declaration of the election of the returned candidate as void and
D to declare the candidate with the next highest number of votes
as the successful candidate.
Contention of the Election Petitioner :
E
4. The contention is that, the Rajapalayam assembly
constituency is a reserved constituency and only candidates
belonging to the Scheduled Caste are eligible to contest the
elections from such constituency. According to the petitioner,
the respondent No.1 (appellant in this appeal) filed her
F
nomination papers claiming herself to be a member of a
Scheduled Caste by filing false declaration and suppressing
material facts. According to him, the appellant professes
Christianity and her actual name is Glory Chandra and she is
born to Christian parents. He claims that the husband of the
appellant is Soosaimanickam and he too professes
G Christianity. He alleges that she studied in CSI High School,
Batlagundu and not in Government High School,
Devathanampatty as claimed in her nomination paper and as
per school records, she belongs to Christian Pallan community.
He also claims that the community certificate issued by the
H Tahsildar, Rajapalayam was procured by her, by exercising
M. CHANDRA v. M. THANGAMUTHU & ANR.
51
[H.L. DATTU, J.]
political clout and suppressing material facts and the said A
certificate was issued to the appellant w:thin two days of the
receipt of the application. He further asserts that even after the
alleged conversion of the respondent, the voters list published
for the year 1999, showed her name to be Glory Chandra. He
also places reliance on the fact, that, the husband of the
B
appellant made an application dated 27.4.1998, to the Bharat
Sanchar Nigam Limited for a new phone connection, where his
name is stated as Soosaimanickam. The petitioner also relies
on the entries in original Birth Register of 1997, pertaining to
the births in Erumalainaickenpatti Village and they refer to the c
birth of a girl child to the respondent, whose then name is
referred as Glory Chandra and the child's father's name is
referred as Soosaimanickam and their religion referred to as
Christianity. Therefore, it is asserted that the respondent No. 1
is Christian by birth and continues to profess Christianity and
0
therefore could not have contested from a reserved
constituency.
Contention of the contesting respondent/appellant: .
5. The respondent states that she war:; born to a Christian
E
father and Hindu mother. Her father subseq~ently remarried. Her
father deserted her and her mother when ~he was a child. She
was brought up by her mother at her siste11's house and claims
to have severed all ties with her father. Sh~ claims that she was
converted to Hinduism in the Arya Samaj rn the year 1994. On
F
23.01.1995 she married one Murugan (w~o had converted to
Hinduism in the year 1975) who belonged to Pallan caste. The
respondent has stated that her marriage, with Murugan took
place as per the custom and practice in the Hindu Pallan
Community at her husband's house in the presence of village G
Nattamai, who took the Tali and gave it to her husband to tie it
around lhe neck of the respondent and at the time of marriage,
a sum of Rs. 250/- was given by the respondent's husband's
family to the community known as Devendrakula Velalar
Samooham. She claims that her community members are the
H
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52
SUPREME COURT REPORTS
[2010] 11 S.C.R.
members of Devendrakula Velalar Samooham. She obtained
a community certificate in 1997, certifying the fact that she
bGlonged to the Hindu Pallan community. She specifically states
that she did not find it necessary to inform the electorate of her
conversion as she was born and brought up as a Hindu and
practiced Hinduism. She states that she used to worship Hindu
gods since childhood in the village temples and the nearby
Kamatchiamman temple. When she attained puberty, the
requisite ceremonies were performed according to Hindu
customs. She also contested and won the Panchayat Ward
no.3 election held in the year 2001. In the said elections no one
filed any objection to the nomination filed by her. She clarifies
that a daughter was born to her on 20.6.1997 and not the date
mentioned in the Birth Register for the year 1997. She also
denies that she intentionally did not file the Birth Certificate of
0
her two daughters so as to reveal her religion. She also asserts
that it is her brother Sudhakar Gnanaraj who had studied in
Government High School, Devathanampatty, which is a coeducational institution and he assumed that the respondent
being her sister, would have studied in the same school, and
E
F
therefore, mentioned the same in the declaration filed along with
the nomination papers, and the appellant came to Virudhunagar
only on the morning of 20.4.2006 which was the last day for
submitting the nomination papers and everything was done in
a hurry. Her brother Sudhakar Gnanaraj informed her that he
prepared the nomination papers and it is enough if she signs,
and she signed the declaration in a hurry because she had no
reason to suspect that any mistake would have occurred. She
further states that it was an inadvertent error that had crept in
and does not help the election petitioner in any manner. She
also claims that the averments in the election petition are false
G and have been brought about by the defeated candidate at the
instigation of the rival DMK party. In sum and substance she
would assert that she belongs to scheduled caste and has
been accepted by the community as such.
H
M. CHANDRA v. M. THANGAMUTHU & ANR.
53
[H.L. DATTU, J.]
6. The High Court had framed six issues for its
A
consideration and decision. They are:-
Whether the First respondent/Returned candidate
suppressed the material fact that she belongs to
Indian Christian Pallan Community as per her
school records.
Whether the First respondent/Returned candidate
made a false declaration relating to her community
status and school education in her nomination as
belonging to scheduled caste.
Whether the First respondent/Returned candidate
converted herself to Hinduism in 1994 through the
Arya Samaj, Madurai and whether the same was
accepted by the Hindu Pallan Community.
Whether the Election petitioner is entitled for a
declaration that the election of the First respondent/
Returned candidate is void on the ground that she
was not qualified to contest the election in the
Reserved Constituency.
Vl/hether the Election petitioner is entitled for a
further declaration as duly elected as a member of
the Tamil Nadu Legislative Assembly from No. 209,
Rajapalayam (SC) Assembly Constituency, Tamil
Nadu in the election held on 8.5.2006.
To what other reliefs the petitioner is entitled to.
Findings of the High Court :
7. The High Court has observed that in the normal
circumstance the burden of proof in an election petition lay on
the petitioner, but, in view of the admission of the respondent,
the appellant herein, that she was a Christian before converting
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G
to Hinduism in the year 1994, the burden of proof is shifted and· H
54
SUPREME COURT REPORTS
[2010] 11 S.C.R.
A it is for the appellant to show that she had renounced
Christianity. The High Court after appreciating the evidence,
both oral and documentary adduced by the respondent/Election
petitioner is of the view that the circumstances in which the
community certificate was granted was highly suspicious, as it
B was issued within two days of the receipt of the application. The
court has further stated that it was likely that the appellant used
her political influence to get the certificate issued in her favour.
The High Court also has taken strong exception to the fact that
the original conversion certificate was not produced by the
c appellant and only a duplicate copy of the same was produced.
Though in her testimony, the appellant had stated that the
original conversion certificate was issued in the evening on
27.08.1994 and it was received by her uncle Santhakumar from
Arya Samaj, Madurai and remained in his custody. The
0
Certificate was not delivered to her and after the filing of the
election petition, she asked her uncle Santhakumar to hand over
the certificate to her. Thereafter, being informed by her uncle
about the loss of the original certificate, she requested him to
obtain a duplicate copy of the certificate and accordingly
Santhakumar obtained Ex.R.13-duplicate copy of conversion
E certificate. Agreeing with most of the contentions of the election
petitioner, the High Court has come to the conclusion that the
burden of proof placed on appellant was not discharged
satisfactorily. In conclusion, the Court has held that the appellant
belongs to Pallan Christian Community and she could not have
F contested the Assembly elections from reserved constituency
and, therefore, declared her election. as void. However with
regard to declaring the next candidate as successful, the High
Court has stated that the election law in this country does not
recognize such a recourse to be adopted.
G
Submissions of the learned counsel for the appellant:
8. The learned counsel Sri Guru Krishna Kumar would
submit, that, a person belonging to a caste enlisted in the
Constitution (Scheduled Castes) Order, 1950, would be treated
H
M. CHANDRA v. M. THANGAMUTHU & ANR.
55
[H.L. DATTU, J.]
as a person belonging to such caste if he professes Hinduism.
A
It is contended that the High Court has wrongly placed the
burden of proof on the appellant contrary to the settled law. The
appellant having been issued a community certificate in due
course in accordance with law which remains in tact, it was not
open to the High Court to ignore the same. It is further B
submitted that the impugned order is liable to be set aside for
ignoring relevant evidence and for wrongly construing the
evidence contrary to settled principles and is as such perverse.
It is also contended that the Arya Samaj ceremony that the
appellant went through is a reiteration of the appellant that she c
would continue to profess the Hindu faith. While elaborating
these contentions, the learned counsel would submit that the
Constitution (Scheduled Castes) Order, 1950, sets out the
castes, races and tribes in each State of India and provides
that a person belonging to any of the castes specified therein 0
be deemed to !::e a schedule caste for the purpose of the
constitution. Paragraph 3 contains a proviso to the effect that
notwithstanding anything contained in para 2, no person who
professes a religion different from the Hindu, Sikh or Buddhist
religion shall be deemed to be a member of the scheduled
E
caste and a combined reading of paras 2 and 3 of the
Presidential Order would show that if a person belongs to a
caste which is notified in the schedule to the presidential order,
he/she would have status of a Schedule Caste, provided he/
she professes Hinduism or one of the other religions specified
in paragraph 3 of the order. It is further contended that the
F
expression 'Profess' occurring in paragraph 3 of the
Presidential order has been considered by a Constitution
Bench in the case of Punjab Rao Vs. D. P. Mesh Ram and
others (1965) 1 SLR.849. Therefore, the sine qua-non for a
person to be treated a Scheduled Caste is that he must G
practice the Hindu religion. Reliance is also placed on the
decision of this court in the case of Perumal Nadar Vs.
Ponnuswamy (1970) 1 SCC 605 and Gangapal Vs. Returning
Officer (1975) 1 SCC 589.
H
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SUPREME COURT REPORTS
[201 OJ 11 S.C.R.
A
9. While elaborating the contention that the High Court has
wrongly placed the burden of proof on the appellant contrary to
the well established legal principles, the learned counsel would
submit, that, the burden of proof is on the election petitioner in
an election petition and it is his duty to establish his case
B
beyond reasonable doubt. However, the High Court in its
impugned order has erred in holding that it is on the appellant
to prove the allegation and assertions made by the election
petitioner and since the appellant failed to prove the negative,
the prayer made in the election petition requires to be granted.
C
In aid of this submission, the learned counsel relies on the
decision of this Court in the case of J. Chandra Shekhar Rao
Vs. V. Jagapathi Rao 1993 Supp. (2) SCC 229, Harikrishna
Lal Vs. Babula/ Marandi (2003) 8 SCC 613, Razik Ram Vs.
Jaswant Singh (1975) 4 SCC 769, Gajanan Krishnaji Bapat
D
Vs. Dattaji Raghobaji Megha (1995) 5 SCC 347, Regu
Mahesh Vs. Rajendra Pratap Bhany Dev (2004) 1 SCC 46
and Jeet Mohinder Vs. Harminder Singh (1999) 9 SCC 386.
10. The learned counsel also contends that the appellant
having been issued with a Community Certificate in due course
E
in accordance with law, which is not yet cancelled by any
competent authority, it was not open to the High Court to ignore
the same. It is also submitted that the judgment and order
passed by the High Court requires to be set aside for ignoring
relevant evidence, and for wrongly construing the evidence on
F
record contrary to settled principles. It is submitted that the High
Court was not justified in disbelieving the certificate issued by
Arya Samaj and further ought not to have come to the
conclusion that the appellant failed to prove that there was
conversion from Christianity to Hindu faith. It is also contended
G that it is settled law that once the parties have been permitted
to produce evidence in support of their respective cases and
if it is not their grievance that any evidence was shut out, the
question of burden of proof looses significance and remains
only academic. In aid of his submission, our attention was
H
invited to the decision of this Court in the case of Raghunathi
M. CHANDRA v. M. THANGAMUTHU & ANR.
57
[H.L. DATTU, J.]
& Anr. Vs. Raju Ramappa Shetty (1991) Supp. (2) SCC 267;
A
Standard Chartered Bank Vs. Andhra Bank Financial
Services Ltd. & Ors. (2006) 6 SCC 94.
Submission of the learned counsel for Respondent No.
1:-
B
11. The learned Senior Counsel Sri K. Rama Moorthy,
appearing for Respondent no. 1 would submit that the name
of the appellant is Glory Chandra and her name itself suggests
that she is Christian and professes Christian faith and this is
further fortified by the fact that she is born to Christian parents. C
It is further submitted that the appellant studied in CSI High
School, Batlagundu and as per her school records, she belongs
to Christian religion and this fact was suppressed by the
appellant in the nomination papers filed by her. It is further
submitted that the parents of the appellant are professing D
Christianity and the appellant was brought up as a Christian and
further the marriage of the appellant was as per the Christian
religion and the husband of the appellant is a member of a
Church called Thuya Sahaya Annai Alayam. The learned Senior
Counsel submitted that the appellant does not belong to E
Scheduled Caste, but by using her political clout has procured
community certificate from Tahsildar, Rajapalayam, as if she
belongs to Scheduled Caste Community. It is also submitted
that in the absence of specific pleadings, in written statement
on an issue, no evidence can be looked into in relation thereto.
F
Our attention was invited to the decisions of this Court in the
case of Duggi Veera Venkata Gopa/a Satyanarayana Vs.
Saka/a Veera Raghavaiah & Anr. (1987) 1 SCC 254; Sri
Venkataramana Devaru & Ors. Vs. State of Mysore & Ors.
AIR 1958 SC 255; Gajanan Krishnaji Bapat & Anr. Vs. Dattaji G
Raghobaji Meghe & Ors. (1995) 5 SCC 347; Abubakar Abdul
lnamdar (dead) by LRs & Ors. Vs. Harun Abdul lnamdar &
Ors. Al R 1996 SC 112, Gu/abrao Balawantrao Shin de & Ors.
Vs. Chhabubai Balawantrao Shinde & Ors. (2003) 1 SCC 212
and Bandar Singh & Ors. Vs. Nihal Singh & Ors. (2003) 4
H
sec 161.
58
SUPREME COURT REPORTS
[2010] 11 S.C.R.
A
Submission of the learned counsel for Respondent No.
2.
B
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F
12. Shri R. Balasubramaniam, the learned Senior Counsel
for Respondent No. 2, submitted that the election petitioner by
specific pleadings in the election petition has discharged his
initial burden that the appellant was born to Christian parents
and her parents continues to profess Christian faith and even
her school records would reveal that she belongs to Indian
Christian Pallan Community and further that she was born and
brought up as Christian and till date she professed Christianity
and these assertions are not denied by the appellant and in fact
that there are specific admissions that she was born and
brought up as a Christian, since she was born to Christian
parents and ii is only in the year 1994, she converted herself
to Hindu faith/Hinduism and if she was a Hindu throughout, then
there was no reason for her to have gone through yet another
ritual for her reaffirmation of Hindu faith in Arya Samaj and it is
also contended that the intention of the convertee would be a
relevant factor in deciding the truth or otherwise of the
conversion, though the appellant pleaded that her ancestors
were Hindus belonging to Pallan Community, there was
conversion in to Christianity due to various reasons, but later
she renounced Christianity and converted Hinduism and in the
absence of supporting evidence to those pleadings, it must be
held that the appellant is the first time convertee from Christianity
into Hinduism. It is further contended that even the husband of
the appellant was a Christian and continues to profess
Christianity and ii is only in the year 1975 he claims to have
changed his religion to Hinduism. It is also contended that the
appellant though claims she has converted into Hinduism
G
through Arya Samaj, Madurai, she has failed to prove her
conversion by leading cogent and acceptable evidence and
therefore the High Court was justified in disbelieving her
evidence. It was also contended that the appellant failed to
prove that her marriage was as per Hindu religion. The learned
H
Senior Counsel vehemently contends, that, there are two stages
M. CHANDRA v. M. THANGAMUTHU & ANR.
59
[H.L.