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TMI Blog2010 (9) TMI 946X X X X Extracts X X X X X X X X Extracts X X X X ..... this appeal and set aside the impugned order passed by the High Court. Hence based purely on the evidence before this court and the observations made by us in this regard, the Election petitioner has not been able to prove conclusively that the appellant professes Christianity. The evidence produced is, contradictory and smacks of political rivalry. - APPEAL NO. 7284 OF 2008 - - - Dated:- 7-9-2010 - JAIN, D.K. AND DATTU, H.L. , JJ. JUDGMENT H.L. Dattu, J. Facts : 1) In the election to Tamil Nadu Legislature Assembly held 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 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 of the nominations, there were 13 candidates in the fray including the appellant and the respondent no.1. The appellant contested as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r also relies on the entries in original Birth Register of 1997, pertaining to the births in Erumalainaickenpatti Village and they refer to the 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 therefore could not have contested from a reserved constituency. Contention of the contesting respondent/appellant: 5) The respondent states that she was born to a Christian father and Hindu mother. Her father subsequently remarried. Her father deserted her and her mother when she was a child. She was brought up by her mother at her sister s house and claims to have severed all ties with her father. She claims that she was converted to Hinduism in the Arya Samaj in the year 1994. On 23.01.1995 she married one Murugan (who 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed caste and has been accepted by the community as such. 6) The High Court had framed six issues for its 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. Whether 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. Findin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the Constitution (Scheduled Castes) Order, 1950, would be treated as a person belonging to such caste if he professes Hinduism. 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 intact, it was not open to the High Court to ignore the same. It is further 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 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 be deemed to be a schedule caste for the purpose of the constitution. Paragraph 3 contains a proviso to the effect that notwithstanding anythin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt requires to be set aside for ignoring relevant evidence, and for wrongly construing the evidence on 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 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 invited to the decision of this Court in the case of Raghunathi Anr. Vs. Raju Ramappa Shetty (1991) Supp. (2) SCC 267; Standard Chartered Bank Vs. Andhra Bank Financial Services Ltd. Ors. (2006) 6 SCC 94. Submission of the learned counsel for Respondent No. 1:- 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 it 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subsequent notification. 16) Article 341(1) of the Constitution was considered by this Court in the case of S. Swvigaradoss Vs. Zonal Manager, F.C.I. (1996) 3 SCC 100. In that case, this Court held as under :- Article 341(1) empowers the President of India to specify, in consultation with the Governor of the State, with respect to the State or Union Territory, or for a part of the State, District or region by public notification specify castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of the Constitution be deemed to be Scheduled Castes in relation to the State or Union Territory as the case may be. Clause (2) of Article 341 empowers Parliament by law to include in or exclude from the list of Scheduled Castes specified in the notification issued under Clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification. In other words, the constitutional mandate is that it is the President who is empowered, in consultation with the Governor of the State, to specify by a public notif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e this court in the case of Punjabrao v. D.P. Meshram, [(1965) 1 SCR 849], wherein this court has observed, what Clause (3) of the Constitution (Scheduled Castes) Order, 1950, contemplates is that for a person to be treated as one belonging to a Scheduled Caste within the meaning of that, he must be one who professes either Hindu or Sikh religion. The High Court, following its earlier decision in Karwade v. Shambhakar [AIR1958Bom296] has observed, that the meaning of the phrase "professes a religion" in the aforementioned provision is "to enter publicly into a religious state" and that for this purpose a mere declaration by person that he has ceased to belong to a particular religion and embraced another religion would not be sufficient. The meanings of the word "profess" have been given thus in Webster's New Word Dictionary : "to avow publicly; to make an open declaration of; ....... to declare one's belief in : as, to profess Christ. To accept into a religious order." The meanings given in the Shorter Oxford Dictionary are more or less the same. It seems to us that the meaning "to declare one's belief in : as to profess Christ" is one which we have to bear in mind while constr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n support her view in her evidence has stated the various rituals she followed in the Arya Samaj to reaffirm her faith in Hindu faith, the reason why she is not in a position to produce the original certificate issued and the necessity for production of duplicate certificate. Since this forms the fulcrum of the case, the learned counsel for the respondents pointed out so called various discrepancies in the certificate and to say the least, the length, breadth, borders, dates, signature in the certificate. We will refer to these, when we discuss the veracity of the certificate produced by the appellant to reaffirm her faith in Hindu religion which she claims has professed right from her childhood. Before we do that, it is desirable to notice certain observation made by this court in the case of Perumal Nadar v. Ponnuswami, [1970 (1) SCC 605. This court observed : 6. A person may be a Hindu by birth or by conversion. A mere theoretical allegiance to the Hindu faith by a person born in another faith does not convert him into a Hindu, nor is a bare declaration that he is a Hindu sufficient to convert him to Hinduism. But a bona fide intention to be converted to the Hindu faith, acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r on principle or on authority which should compel us to disregard this view which has prevailed for almost a century and lay down a different rule on the subject. If a person who has embraced another religion can be reconverted to Hinduism, there is no rational principle why he should not be able to come back to his caste, if the other members of the caste are prepared to readmit him as a member. It stands to reason that he should be able to come back to the fold to which he once belonged, provided of course the community is willing to take him within the fold.... A Mahar or a Koli or a Mala would not be recognised as anything but a Mahar or a Koli or a Mala after reconversion to Hinduism and he would suffer from the same social and economic disabilities from which he suffered before he was converted to another religion. It is, therefore, obvious that the object and purpose of the Constitution (Scheduled Castes) Order, 1950 would be advanced rather than retarded by taking the view that on reconversion to Hinduism, a person can once again become a member of the Scheduled Caste to which he belonged prior to his conversion. We accordingly agree with the view taken by the High Court t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tised at a time when she was still a minor and knew nothing about the religion. Therefore, should the revival 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 forever merely because fortunately or unfortunately she was born in a Christian family? With due respect, our confirmed opinion is that although the views of the members of the community would be an important factor, their views should not be allowed to (sic) a complete loss of the caste to which B belonged. Indeed, if too much stress is laid on the views of the members of the community the same may lead to dangerous exploitation. But from that it does not necessarily follow as an invariable rule that whenever a person renounces Hinduism 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 structure of the caste is such that its members must necessarily belong to Hindu religion, a member, who ceases to be a Hindu, would go out of the caste, because no non-Hindu can be in the caste according to its rules and regulations. Where, on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es inflicted by Hinduism. 27) We must remember, as observed by this Court in Ganpat s case, Hinduism is not a religion with one God or one Holy Scripture. The practices of Hindus vary from region 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 be not be made on his name or his birth. When a person intends to profess Hinduism, and 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. 28) Hinduism appears to be very complex religion. It is like a centre of gravity doll which always regain its upright position however much it may be upset. Hinduism does not have a single founder, a single book, a singe church or even a single way of life. Hinduism is not the caste system and its hierarchies, though the system is a part of its social arrangement, based on the division of labour. Hinduism does not preach or uphold untouchability, though the Hindu Society has practiced it, firstly due to reasons of public health an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Arya Samaj, Madurai, the witness has denied all those suggestions. The learned counsel for the appellant contended that it is well settled that there is no requirement in law of producing any clinching evidence on any formal ceremony of conversion to Hinduism. Our attention in drawn to the observations made by this Court in Perumal Nadar vs. Ponnuswamy (1970) 1 SCC 605; Per contra, the learned senior counsel for respondents 1 and 2 would contend that the appellant has not proved her claim of reconversion to Hinduism by producing primary evidence viz., the original conversion certificate issued by Arya Samaj. The High Court while considering this issue has noticed that the appellant failed to produce the original certificate issued by Arya Samaj, Madurai and further has not examined Santnakumar, who was supposed to have received and retained the original certificate issued by the Arya Samaj and the original records have not been summoned from Arya Samaj and no steps have been taken to summon the responsible person from Arya Samaj to prove that the appellant underwent conversion. Therefore, the claim made by her about her reconversion cannot be accepted. We do not agree with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... self. The relevant portion of the judgment reads:- 15. Learned senior counsel for the appellant made a strenuous attempt to contend that the learned Judge of the High Court had wrongly placed the burden of proof in the case. We cannot agree. The trial judge has rightly proceeded on the basis that the initial burden was on the election petitioner to establish his plea that the appellant did not belong to a Scheduled Tribe. Though in a prior statement, an assertion in one's own interest, may not be evidence, a prior statement, adverse to one's interest would be evidence. In fact, it would be the best evidence the opposite party can rely upon. Therefore, in the present case, where the appellant is pleading that he is a Konda Dora, the statement in the series of documents, preconstitution and post constitution, executed by his ancestors and members of his family including himself describing themselves as 'Kshatriyas', would operate as admissions against the interest of the appellant in the present case. These admissions also strengthened the admission of the appellant that in his school leaving certificate also, he is described as a 'Kshatriya' and his paternal uncle's son is also d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss in his evidence would not tilt the balance in favour of the election petitioner. It is the case of the appellant also that her father was a Christian and her mother was a Hindu. May be at the instance of her father, marriage could have been performed in a Church. As we have already observed, the appellant not only in her pleadings but also in her evidence states that her father separated from her mother and her mother continued to profess Hindu religion and the Hindu Pallan Community accepted her as such. 36) Mr. Rasu was examined as RW 5. He was the poojari in the Sundaranatchiamman temple situated in the Ayyankollakondan village. He knew the husband of the appellant as he was the native of the same village. He clarifies that he had the knowledge that the parties to the marriage were professing Christianity and later converted to Hinduism. He deposes that the marriage of the appellant took place in front of her husband s house as per Hindu customs. On the day of the marriage, the appellant and her husband came to the temple carrying garlands and pooja to the deity was conducted by RW 5 After this, the plate of garlands was returned and the bride and the bridegroom proceeded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anity. He has confirmed that the appellant s father left the appellant, her mother and her two younger brothers to marry another woman. He has also stated that the appellant, her mother and her younger brothers were taken care of by his father and lived in their household. He has stated that from childhood the appellant practiced Hinduism, visited temples, etc. He states that his family deity is Palichiamman and the community deity is Kaliamman. He also goes on to state that the appellant worships Palichiamman, Vinayagar and Kamatchiamman in the village. He stated that it was he who took the appellant to the Arya Samaj to change her name to Chandra. He also conducted the marriage of the appellant in Ayyankollakondan village as per the customs and traditions prevailing in Hindu Pallan Community. This witness in the cross-examination has again stated that the marriage of the appellant s parents was performed as per Christianity. The admission of this witness is put against the appellant by contending that the appellant in her evidence has made a false statement, that the marriage of her parents was performed as per Hindu customs. In our view, at the time of the marriage of her pare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. He has stated that the appellant contested the election in the name of Glory Chandra. He has further stated that the name of the appellant s husband is Soosaimanickam and he was invited to the wedding of the appellant. He attended the reception which according to him took place in a church near the appellant s husband s house. First he testifies that the father-in-law of the appellant was a Nattamai of the church (village head) and then states that he does not know exactly about the religious practice according to which the marriage of the appellant took place. According to him, the name of the mother of the appellant is Mrs. Baikkam who is a Christian Pallan. But then he states that he has not seen any certificate which shows her to be a Christian. Prior to the appellant coming to his village for her marriage, he had no knowledge about the appellant. Before that he had no knowledge about her schooling or the place or manner of living of the appellant or her parents. He does not have any proof to state that the appellant professes Christianity. He further asserts that in the region, conversion from Hinduism to Christianity and vice versa happens frequently. He further stated t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. Later no documents evidencing the community of the appellant were produced. In these circumstances, it would have been worthwhile to call the then Tahsildar, Rajapalayam and examine him as a witness and also the Village Administrative Officer. The Election petitioner also contends that the certificate was issued on 4.4.1997 within 2 days of receipt which was enough to raise doubts as to the veracity of the said certificate. Also as per the deposition of the present Tahsildar, there is no prescribed format for the issuance of a community certificate. In such a situation it will be difficult to establish whether there has been any discrepancy in the issuance of the certificate. There was no cancellation endorsement on the application for the certificate. It has not been brought on record by the Election petitioner by way of evidence or by questioning the relevant authorities, as to whether there was proper enquiry before the endorsement was made by the revenue authorities. 44) Mr. V.P Ranjan-RW1 (the original respondent no.2) was also examined as a witness. He is also member of the rival DMK party. He had obtained a copy of the voters list for Andipatty assembly constituency for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led she has stated that though she was following Hindu customs, traditions, ceremonies and the other customs prevailing in Hindu Pallan Community in order to reaffirm her faith in Hinduism, she went through various rituals in Arya Samaj, Madurai on 27.08.1994. Apart from this, she has also stated that her husband Murugan got converted into Hinduism in the year 1975 and their marriage took place in the year 1995 according to Hindu tradition and custom. It looks to us that an honest and true statement made by the appellant that she has undergone the rituals in the Arya Samaj for the re-affirmation of her faith in Hindu religion has put her in a black spot and the same has persuaded the learned Judge who decided the lis between the parties to shift the burden of proof. In our view, the pleadings and the evidence adduced in support of the same requires to be read conjointly and not by applying the hypertechnical approach of reading between the lines to arrive at a finding against a candidate in an election petition who has support of the majority of the people in the constituency. This approach in our opinion would defeat the entire election process. Hypertechnically requires to be esc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the convertee which would determine the revival of the caste. If by his clear and conclusive conduct the person reconverts to his old faith and abjures the new religion in unequivocal terms, his caste automatically revives. 33. Another dominant factor to determine the revival of the caste of a convert from Christianity to his old religion would be that in cases of election to the State Assemblies or the Parliament where under the Presidential Order a particular constituency is reserved for a member of the scheduled caste or tribe and the electorate gives a majority verdict in his favour, then this would be doubtless proof positive of the fact that his community has accepted him back to his old fold and this would result in a revival of the original caste to which the said candidate belonged. 48) The other minor issue which was argued was that in the school records, it is recorded that the appellant belongs to Indian Christian Pallan community and she studied in CSI School, Baltagundu but in the declaration filed along with nomination papers, it is stated that she studied in Govt. High School, Devathananpatti and, therefore, she has made false declaration and therefore she wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... name appearing in the voter s list. Also it is not mentioned in the voter s list as to what religion the appellant professes. There is a common pattern arising that all the witnesses of the Election petitioner as well as the original respondent no.2 are affiliated to the rival party DMK in some capacity or the other as opposed to the appellant who represented the AIADMK party. The Election petitioner has relied heavily on the testimony of the witnesses Mrs. Deivathai, T.P Paulasamy and Rajaiya to prove that the appellant continues to profess Christianity. However the testimony of all the three witnesses are highly contradictory and hearsay. All the three witnesses have come to know about the religion of the appellant and her husband from other people. Admittedly, none of them have come in close contact with the appellant, appellant s husband and both their families in any form. They have not produced any proof or document to prove that the appellant professes Christianity. Requirements of Petition under Representation of Peoples Act : 51) Section 83 of the Representation of Peoples Act, 1951 deals with the contents of an election petition. Section 83 (1) of the Act reads:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p (2) SCC 229]. Though, in the present case, the charges are not those of corrupt practices, they are not any lesser in terms of seriousness; hence the burden of proof is on the election petitioner to prove the charges he has made beyond reasonable doubt. This is done so that the purity of the election process is maintained. 56) 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 hearsay. As stated above, the opinion of the High Court is heavily relied on the fact that the burden of proof had been discharged and shifted to the appellant to prove that she had indeed renounced Christianity. We do not approve with the reasoning of the High Court to adopt this line of thinking. The burden of proof lay squarely on the Election petitioner to show that the appellant indeed practiced and professed Christianity. In any event, the evidence put forward by the appellant is consistent and reliable as it has relied on the testimony of people who have actually visited the house of the appellant or attended her wedding or been in close proxi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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