Dattaji Sakharam Shinde Vs. Premanand Vithal Awale - Court Judgment

Bharucha, J.

1. [After review of pleadings and appreciation of evidence His Lordship proceeds]. The burden of proving that the election) of a successful candidate is liable to be set aside lies heavily upon the petitioner and unless this is established, not by mere preponderance of probability, but by cogent and reliably evidence beyond any reasonable doubt, the petition must fail. (See Jagdev Singh v. Pratap Singh : [1964]6SCR750 .) Mr. Kamerkar submitted that these observations are appropriate in the context of an election petition alleging corrupt practice. He submitted that the same standard would not apply where the basis of the petition was not corrupt practice. I am unable to agree. The emphasis is on the fact that the election of a successful candidate should not be lightly set aside. The same responsibility that lies on the petitioner in an election petition alleging corrupt practice also lies upon him in a petition which challenges the election on other grounds.

2. Mr. Mehta drew my attention to the judgment of the Supreme Court in Chand-mal v. State of Rajasthan : 1976CriLJ679 . The Supreme Court observed that it is well settled that when a case rests entirely on circumstantial evidence the evidence must satisfy three tests. Firstly, the circumstances from which an inference is sought to be drawn, must be cogently and firmly established; Secondly, these circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused. Thirdly, the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the charge is established, that is to say, the circumstances should be incapable of explanation on any reasonable hypothesis save that sought to be drawn. The observations were made in the context of a criminal case but no doubt apply equally to an election petition which partakes of a quasi criminal character. My attention has also been drawn to a judgment of the Supreme Court wherein in an election petition resting entirely on circumstantial evidence, a similar approach was adopted. (See Ram Ram v. Smt. Prasanni : [1959]1SCR1403 ).

3. In this view of the matter and taking into account all that has been established, I cannot conclude that the petitioner has established beyond reasonable doubt that the first respondent was a Christian by birth and that he has remained so. It cannot be held that the circumstances which have been established unerringly point towards the fact that the petitioner was a Christian by birth nor can it be held that these circumstances form a chain so complete that there is no escape from this conclusion. The circumstances that have been established are not such as are incapable of explanation on any reasonable hypothesis save that the first respondent was a Christian by birth and remains so.

4. This is not to say that the four circumstances which I have held are established: do not raise the most grave suspicion, suspicion which remains unallayed. But, of course, suspicion however grave is not enough.

5. I proceed to consider the alternative submission on merits upon the assumption that I am wrong in concluding that the petitioner has not established that the first respondent is a Christian by birth and sacrament and remains so. The alternative submission is that, if it is held to be established that the first respondent was a Christian by birth and sacrament, the first respondent has been accepted by, and assimilated with, the Hindu Mang community as a person belonging to that community and, therefore, belongs to that community. Mr. Mehta placed great reliance upon four judgments of the Supreme Court to which I now refer.

6. In Punjabrao v. Dr. D. P. Meshram : [1965]1SCR849 , the Court was concerned with an election petition in regard to a constituency reserved for the scheduled castes. The first respondent was the successful candidate. The appellant challenged the election upon the ground that the first respondent, having embraced Buddhism, had ceased to be a member of a scheduled caste and was disentitled from being a candidate for the particular seat. The Court considered the evidence that had been led and came to the conclusion upon) three factors that the first respondent had ceased to be a Hindu and had accepted the Buddhist religion. The first factor was the first respondent's participation in the conversion of a Shiva temple into a Buddhist temple which the Court considered to be the strongest circumstance corroborating the evidence of eye-witnesses regarding conversion. The second factor was the issuance of a wedding invitation, subscribed by the first respondent wherein the picture of a Hindu deity had been substituted by that of Lord Buddha. The third factor was a declaration) made by the first respondent that he had ceased to belong to his old religion and had accepted another religion. The Court placed emphasis upon the use of the word 'profess' in the Constitution (Scheduled Castes) Order, 1950, and held that it appeared to have been! used in the sense of an open declaration or practice by a person of the Hindu or Sikh religion.

7. In S. Rajagopal v. C. M. Arumugam : [1969]1SCR254 , the Court was again concerned with a petition in respect of an election from a scheduled caste constituency. The objection was that the appellant, who was the successful candidate, was not a Adi Dravida Hindu but an Indian Christian. The original petitioner admitted that the appellant was originally born a Adi Dravida Hindu but alleged that he got himself converted to Christianity in the year 1949. This was met by the appellant pleading that he had never been converted to Christianity and that, even if it be held that he had once become a Christian, he was professing the Hindu religion at election time. The Court laid emphasis upon) the word 'profess' in the Constitution (Scheduled Castes) Order and observed that a declaration in such a way that it would be known to those whom it may interest that a person had ceased to belong to his old religion and had accepted another religion must be taken to mean that the person was professing that religion. In order to resume membership of his previous caste, a person must be reconverted to the Hindu religion and must be accepted by the caste in general as a member after reconversion. Referring to a Madras case the Court approved the dictum that in matters affecting the well-being or composition of a caste, the caste itself was the supreme judge and observed that it was on this principle that a reconvert to Hinduism could become a member of the caste, if the caste itself as the supreme judge accepted him as a full member of it. The Court however concluded by saying that it refrained from expressing an opinion as to whether the membership of a caste can be acquired by conversion to Hinduism or after reconversion to Hinduism because even upon that assumption the appellant before it had to fail.

8. The same parties went upto the Supreme Court again in respect of a later election. In C. M. Arumugam v. S. Rajagopal : [1976]3SCR82 , referring to the re-admission of a person into his original caste after he had been converted from Hinduism-and re-converted to Hinduism, the court observed that since a caste is a social combination of persons governed by its rules and regulations, it may, if its rules and regulations so provide, admit a new member just as it may expel an existing member. The rules and regulations of the caste may not have been formalised; they may not exist in black and white; they may consist only of practices and usages. If, according to the practices and usages of the caste, any particular ceremonies are required to be performed for re-admission to the caste, a reconvert to Hinduism would have to perform those ceremonies if he seeks re-admission to the caste. Among the factors the Court took into consideration in determining whether the first respondent in the case before them was accepted as a member of the Adi Dravida caste after his reconversion to Hinduism, was the circumstance that he had been invited to lay the foundation stone for the construction of a new wall of an Adi Dravida Hindu temple and to participate in a celebration at another such temple. It also took into account the fact that his children were registered in their school as Adi Dravida Hindus. On the facts before it the Court came to the conclusion that after his re-conversion to Hinduism the first respondent had been recognised and accepted as a member of the Adi Dravida caste by the other members thereof.

9. In The Principal, Guntur Medical College v. Y. Mohan Rao : [1976]3SCR1046 the question that arose for determination was: Whether a person whose parents belonged to a scheduled caste before their conversion to Christianity can, on re-conversion to Hinduism, be regarded as a member, of the scheduled caste. The parents of the respondent in that matter originally professed Hinduism and belonged to the Mediga caste, admittedly scheduled caste. They were converted to Christianity, It was agreed by counsel for the parties that the matter would be argued on the assumption that the respondent had been born after the conversion of his parents; in other words, that he was born of Christian parents. In Andhra Pradesh converts to Christianity are treated as belonging to the backward classes. The respondent applied to the Gandhi Medical College in Andhra Pradesh and: described himself as a member of the backward class. He did not succeed in getting admission. Thereupon he himself got converted to Hinduism. He stated that he had renounced Christianity and embraced Hinduism after going through, the Suddhi ceremony. He claimed that he was received back into the Magida caste on the strength of a certificate to that effect. He applied for admission to the Guntur medical college claiming to be a member of a scheduled caste. He was selected for admission. Later it was notified that his selection was cancelled upon, the basis of a notice applicable to medical college admissions which: proclaimed that no candidate could claim to belong to a scheduled caste except by birth. The respondent preferred a writ petition challenging the validity of the cancellation. The Supreme Court relied upon the decision in C. M. Arumugam v. 5. Rajagopal (supra) and held that the reasoning on which it proceeded was equally applicable to a case where the parents of a person are converted from Hinduism to Christianity, he is born after their conversion and on his subsequently embracing Hinduism, the members of the caste to which the parents belonged prior to their conversion accept him as a member within the fold. It was, the Court said, for the members of the caste to decide whether or not to admit a person within the caste. Since a caste is a social combination of persons governed by its rules and regulations, it may, if its rates and regulations so provide, admit a new member just as it may expel an existing member. The only requirement for admission of a person as member of the caste is the acceptance of the person by the other members of the caste. The Court quoted again with approval the observations of Krishnaswami Ayyangar J. in Durgaprasad Rao v. Sudarsana Swami A.I.R. [1940] Mad. 513, to the effect that 'in matters affecting the well-being or composition of a caste, the caste itself is the supreme judge.' The Court than observed:

It will therefore, be seen that on conversion to Hinduism, a person born of Christian converts would not become a member of the caste to which his parents belonged prior to their conversion to Christianity automatically or as a matter of course, but he would become such member if the other members of the caste accept him as a member and admit him within the fold.

10. Relying upon the aforesaid judgments Mr. Mehta submitted that he had led evidence to show that the first respondent had professed Hinduism and that he had been accepted as a member of the Hindu Mang Community subsequent to such profession. It was the submission of Mr. Kamerkar that the acceptance which the aforesaid authorities spoke of was a conscious acceptance. In other words, he submitted the caste must accept a person into the caste with the knowledge that he was not of it or had gone out of it.

11. In the Guntur Medical College case (supra) the Court said that it was for the members of the caste to decide whether or not to admit a person to the caste, and it depended upon the rules and regulations of the caste whether a new member could be admitted just as an existing member could be expelled; that the caste was the supreme judge: and that a re-convert would not automatically or as a matter o] course become a member of, the caste to which his parents belonged prior to their conversion but only if the other members of the caste accepted him as a member and admitted him within the fold. Those observations, in my view, make it very clear that the acceptance and admission of a person to the caste to which his parents belonged before their conversion from Hinduism must be with the knowledge that that person was not of the caste. It is for the caste to judge and decide whether that person who was then outside the caste should be accepted by and admitted into it.

12. It has always been the contention of the first respondent that he was a Hindu Mang. It was never his case that his parents had been converted to Christianity and that he had been born after their conversion. Such acceptance as there was of him by the members of the Mang community could, therefore, not have been with the knowledge that he was not a Hindu Mang. Thus, there never has been any occasion for the Mang caste to judge and decide whether the first respondent should be admitted into the Mang caste. No such occasion could in the circumstance at all arise.

13. That the members of the Mang community had no knowledge that the first, respondent was anything but a Hindu Mang is clear from the evidence of the first respondent's witnesses. One, Gavai is the editor of a weekly magazine called 'Samajkranti,' He deposed that he was a Hindu Mang who had been active on behalf of the Mangs. He deposed in cross-examination that he had not been told by anybody that the first respondent had been born a Christian. Another Hindu Mang worker who was examined by the first respondent was one Sathe. He deposed that he did not know that the first respondent's father was converted to Christianity. He was asked whether it could be correct to say that he called the first respondent a Mang because he had told him so. He replied in the negative; he said that he called the first respondent a Mang because a friend had told him so and also because the first respondent behaved in the Mang manner. Khilare, another Mang worker, deposed that he did not know that the first respondent had not been born a Hindu. Khavle, yet another Mang worker said that he did not want to suggest that the first respondent had been absorbed into the Mang community for the first respondent was born a Hindu. He had no idea whether the first respondent's father was a Hindu or a Christian. He had not assumed that the first respondent was born a Hindu but had ascertained that he had been born a Hindu Mang. He was sure that the first respondent was born a Hindu Mang. There had never been a discussion in the Maharashtra Matang Sabha as to whether the first respondent was born of Christian parents or a Hindu Mang. Apart from the first respondent's case, the evidence also, then is that the Mang community did not know that the first respondent was not a Hindu Mang; rather, they believed that he was a Hindu Mang and accepted him as one of themselves.

14. Such acceptance is not a deliberate acceptance or an admission into the caste-as contemplated by the aforesaid judgments. Hence, Mr. Mehta's argument that the first respondent was admitted into the Mang fold must fail at the outset.

15. [The rest of the judgment is not material to this report.]