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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4870 OF 2015

Mohammad Sadique … Appellant

Versus

Darbara Singh Guru … Respondent

J U D G M E N T

Prafulla C. Pant, J.

This  appeal,  preferred  under  Section  116A  of  The  

Representation  of  the  People  Act,  1951,  is  directed  against  

judgment and order dated 07.04.2015, passed by High Court  

of  Punjab  and  Haryana  at  Chandigarh,  in  EP  No.  1/2012,  

whereby  Election  Petition  filed  by  respondent  has  been

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allowed,  and  election  of  the  appellant  from  102-Bhadaur  

(Scheduled Caste) Assembly Constituency in Punjab, has been  

set aside.

2. Brief  facts of  the case are that  General  Elections were  

held for Punjab Legislative Assembly, in January, 2012. Last  

date of filing of nomination papers was 12.01.2012. Date for  

scrutiny of  nomination papers was 16.01.2012.  And polling  

was held on 30.01.2012. The counting of votes was done on  

06.03.2012, in which appellant was declared elected.  

3. Election  Petitioner  (respondent  herein)  filed  his  

nomination papers as a candidate of Shiromani Akali Dal. The  

appellant  was  a  candidate  from  Indian  National  Congress.  

There were other 17 candidates in the fray. Seven independent  

candidates withdrew their candidature, as such, only 12 were  

left in the field. Since Bhadaur constituency was reserved for  

Scheduled Castes, only the candidates belonging to Scheduled  

Castes were qualified to contest the election under Section 5  

(a) of The Representation of the People Act, 1951 (hereinafter  

“RP Act”).

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4. It  appears  that  on  14.01.2012,  one  Badal  Singh  

complained to the Returning Officer,  Bhadaur Constituency,  

alleging  that  appellant  Mohammad  Sadique  was  a  muslim,  

and as such did not belong to any Scheduled Caste. He also  

filed Civil Writ Petition No. 985/2012 before the High Court  

which  was  dismissed  as  not  pressed,  since,  the  remedy  of  

challenging  the  election  through  Election  Petition  was  

available.

5. Total  1,13,233 votes,  including 83 Postal  Ballots,  were  

polled on 30.01.2012 in the Bhadaur Assembly Constituency.  

On counting  of  votes,  appellant  was found to have secured  

52,825 votes in his favour, and respondent got 45,856 votes,  

and  as  such  appellant  Mohammad  Sadique  was  declared  

elected  from  102-Bhadaur  (Scheduled  Caste)  Assembly  

Constituency on 06.03.2012.

6. Respondent  challenged  the  election  of  the  appellant  

pleading that, he (appellant), being a muslim, is not a member  

of  Scheduled  Caste,  and  as  such  he  was  not  qualified  to  

contest  the  election  from  any  constituency  reserved  for

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Scheduled  Castes.  It  was  specifically  pleaded  that  the  

appellant was born in a family which followed Islam, and his  

parents  and  others  members  of  the  family  also  professed  

Islam.  They  had  their  names  which  are  prevalent  amongst  

muslims, and they used to observe traditions of Islam. None of  

their family members add “Singh”, with their names, normally  

found  in  the  names  of  those  following  ‘Sikh’  religion.  It  is  

further pleaded by the election petitioner-respondent that in  

his  interview  in  the  book  titled  -  “Sada  Bahar  Gayak  –  

Mohammad  Sadique  :  Jeevan  Te  Geet”,  the  appellant  had  

confessed that  he  was  a  muslim.  It  was also  stated in  the  

election  petition  that  after  death  of  the  parents  of  the  

appellant, their bodies were buried as per muslim rites. It was  

further  alleged  that  the  Caste  certificate  issued  to  the  

appellant  showing  him to  be  member  of  community  “Doom  

(Marasi)”  by  Tehsildar,  Ludhiana  (West),  was  cancelled.  

Thereafter,  the appellant  obtained caste certificate  certifying  

his  cast  as  “Doom”  (i.e.  Scheduled  Caste)  on  25.08.2006.  

However,  the  Joint  Secretary,  Department  of  Welfare,  

Government of Punjab  vide memorandum No.1/32/2008-RS-

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1  dated  17.11.2008  issued  directions  to  all  the  Deputy  

Commissioners  in  State  of  Punjab that  a  person professing  

Islam  is not legally entitled to get Scheduled Caste certificate.  

Another communication dated 16.03.2009 stated to have been  

issued  by  the  State  Government  informing  the  Deputy  

Commissioners that such Scheduled Castes certificates issued  

on or after 01.01.1980 were liable to be cancelled.

7. Appellant  contested  the  election  petition,  and filed  his  

written statement. He pleaded that he professed Sikh religion,  

and is a member of “Doom” community which is a Scheduled  

Caste in the State of Punjab. He admitted that he was born in  

a  muslim  family,  but  never  offered  prayers  in  mosque  or  

observed Rozas. It is further pleaded that since childhood the  

appellant used to sing songs in the company of Sikh writers,  

artists and singers. He used to go to the Gurudwaras to pay  

obeisance and developed faith in Sikh religion. He followed the  

rites,  rituals  and  customs  of  Sikh  religion.  He  performed  

‘Sampath Path’ with Ragis at his residence for seven days in  

the year 2000, and his two daughters are married to Hindu

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boys. The appellant specifically stated in the written statement  

that he embraced Sikh religion formally on 13.04.2006, and a  

public notice to this effect was published in newspapers- ‘The  

Hindustan  Times’,  Chandigarh,  and  ‘Daily  Akali  Patrika’,  

Jalandhar,  dated 04.01.2007.  It  is  explained  in  the  written  

statement that  since the appellant was popular as a singer  

with name- Mohammad Sadique, therefore, he did not change  

his name even after embracing Sikh religion. On death of his  

wife Smt. Raffikan @ Seeto who died on 17.12.2007 though  

she was buried by followers of Islam, but appellant performed  

“Akhand  Path”  from 04.01.2008 to  06.01.2008 as  per  Sikh  

religion. It is further stated that Bhog of Akhand Path, Kirtan  

and Antim Ardas were held in Gurudwara at Ludhiana which  

was attended by prominent Sikh personalities. The appellant  

has explained in the written statement that his mother Smt.  

Parsanni Devi who died on 16.12.2009 was follower of Islam,  

and after  her death her body was buried but the appellant  

performed Akhand Path and Bhog on 27.12.2009 in Gurdwara  

Sahib at village Kupkalan. Name of the appellant’s father was  

Waliat  Ali.   The  appellant  denied  that  he  admitted  in  the

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interview that he was a muslim. It is alleged that since earlier  

he was issued caste certificate as ‘Doom Marasi’ by mistake,  

that is why he got issued fresh certificate of caste mentioning  

‘Doom’. It is also pleaded that the daughters of the appellant  

were also issued Scheduled Caste certificates. The appellant  

accepted  that  he  did  receive  a  notice  vide  letter  dated  

30.11.2006,  to  deposit  caste  certificate  issued  to  him  by  

19.12.2006 but denied that his certificate was ever cancelled  

or withdrawn by the Government.

8. The  High  Court,  on  the  basis  of  the  pleadings  of  the  

parties framed following issues:-

(1)  Whether the respondent being muslim was not  qualified to contest the election from 102-Bhadaur  Assembly Constituency reserved for the members of  the Scheduled Castes?  

(2)  Whether the respondent is a Sikh and professes  Sikh religion?

(3) Whether the election petition is not verified in  accordance with Order VI Rule 15 of the Code of  Civil Procedure, 1908? If so, its effect.

(4) Whether no material fact can be pleaded in the  replication after expiry of the period of limitation for  filing an election petition?

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(5)Whether paragraph Nos. 12 to 15, 22(vii)(viii)(ix) (x)(xiii)(xiv) and 27 to 28 of the election petition are  liable to be struck off on the ground mentioned in  the  Preliminary  Objection  No.1  of  the  written  statement?

(6) Relief.”

9. The High Court, after recording evidence of the parties,  

and hearing them, allowed the Election Petition and set aside  

the election of the appellant, holding that he was a muslim,  

and not a member of Scheduled Caste, as such not qualified  

to  contest  election  from 102  –  Bhadaur  (Scheduled  Caste)  

Assembly Constituency.

10.   Aggrieved by  the  above  order  of  the  High Court,  this  

appeal is preferred by the respondent in the Election Petition.

11.    Submissions and arguments advanced on behalf of the  

appellant:

11.1 In 1939, appellant was born in  ‘Doom’ caste in Punjab.  

The appellant’s parents were Muslims by birth.  However,  

the appellant even before his conversion to Sikhism, had

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complete inclination towards Sikhism and was a ‘Ragi’  

and used to perform Kirtan at Alamgir Sikh Gurdwara.

11.2 The appellant has throughout been raised as a Sikh.  He  

has  professed  the  Sikh  religion,  and  performed  the  

ceremonies, rituals and rites of Sikhism.

11.3 He has never offered prayer in a mosque, or kept Rozas,  

or  offered Namaz,  or  had  never  been to  Haj.   He has  

never lived nor considered himself a muslim, nor was he  

so considered by others.  

11.4 He started singing songs at a very early age and in due  

course became one of the most popular folk singers in  

Punjab.   He was associated with other  writers,  artists,  

singers and producers, who were all Sikhs, and used to  

visit Gurdwaras with them to pay obeisance, and had full  

faith in Sikh religion.  At every stage - show of his, the  

appellant  started  the  performance  by  singing  religious  

songs in praise of the Guru Sahibans.

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11.5 During 1989-1991, appellant’s daughters were all issued  

caste certificates mentioning ‘Doom’ as their caste, as per  

certificates  dated  01.08.1989,  and  16.04.1991.   These  

are still valid and not cancelled.

11.6 During  1999-2000,  appellant  was  going  through  a  

personal bad phase in his life.  On the advice of Sardar  

Pargat  Singh  Grewal,  the  appellant  got  performed  the  

‘Sampat Path’, which was performed by Sant Baba Sucha  

Singh  along  with  other  Ragis  of  Jawadi  Taksal  at  his  

residence in Ludhiana for seven days.   Thereafter, the  

appellant’s  condition  started  improving,  and  it  further  

strengthened his belief in Sikh religion.

11.7 During  2001-2002,  three  of  the  appellant’s  daughters,  

namely,  Naseem  Akhtar,  Shehnaz  Akhtar  and  Javed  

Akhtar were married into Hindu families.  The marriages  

were performed as per Hindu rites and ceremonies,  as  

desired by the respective husbands’ families.

11.8 Though the appellant had always been raised as a Sikh  

and had followed Sikhism, he formally embraced Sikhism

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on 13.04.2006.  He gave a public notice of this, which  

was published in leading newspapers namely Hindustan  

Times, Chandigarh and Daily Akali Patrika, Chandigarh  

on  04.01.2007.   Since  appellant  had  become  famous  

throughout Punjab and indeed all over India as a singer,  

he retained his muslim name and did not change it.   

11.9 On  13.07.2006,  appellant  got  his  application  and  

affidavit typed by a typist in Ludhiana for obtaining his  

caste certificate.   The appellant did not  read the same  

before signing and  Caste certificate was issued to the  

appellant mentioning his caste as ‘Doom’ (Marasi).  The  

appellant  at  this  stage  realized that  the  typist  had  by  

mistake in the application  wrongly mentioned his caste  

as ‘Doom’(Marasi) instead of caste ‘Doom’.

11.10    On  25.08.2006,  appellant  therefore  asked  the  

Tehsildar to cancel the wrong caste certificate and, on his  

asking,  re-applied with the  correct  caste  mentioned as  

‘Doom’.  Fresh caste certificate mentioning ‘Doom’ as the  

caste was issued to the appellant, which is still valid and

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has not been cancelled. ‘Doom’ is a Scheduled Caste in  

Punjab.

11.11 There was no objection from anyone to the appellant’s  

formally  embracing  Sikhism,  rather,  he  was  welcomed  

into  it.   Prominent  Sikh  personalities  such  as  Sant  

Shamsher  Singh  Jagera,  President  of  Sant  Sepahi  Dal  

and International Sant Samaj, honoured the appellant by  

presenting “Saropa” to him on 20.01.2007.  He was also  

welcomed  by  Sant  Kartar  Dass  Jee  at  his  Dera  and  

Sardar  Pargat  Singh  Grewal,  President,  Prof.  Mohan  

Singh Foundation.  

11.12 The appellant’s wife Rafikan @ Seeto passed away on  

17.12.2007.  Since she had been following Islam, she was  

buried.  However, since the appellant had been following  

Sikhism,  he  got  the  ‘Akhand  Path’  performed  in  

Gurdwara Shri Tegh Bahadur Satsang Sabha, Ludhiana  

from 04.01.2008 to 06.01.2008, and the bhog of Akhand  

Path  of  Sh.  Guru  Granth  Sahib  was  performed  on  

06.01.2008 at  his  residence  and thereafter  Kirtan and

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Antim Ardas was held on the same day followed by Guru  

ka  Langar  as  per  Sikh  rituals,  rites,  customs  and  

ceremonies.  The obituary to this fact was got published  

in  various  newspaper  namely  ‘Aj  Di  Awaj,  Jalandhar  

dated  05.01.2008    and   ‘Ajit   Jalandhar’   dated  

04.01.2008.    The  Kirtan  and  Antim  Ardas  of  the  

appellant’s wife was well publicised and widely attended,  

including  by  prominent  Sikh personalities.   The entire  

event  was  also  videographed  and  the  original  video  

recordings  were  produced  as  evidence  before  the  High  

Court.

11.13 The appellant’s mother Smt. Parsanni Devi passed away  

on 16.12.2009. Since she had followed Islam, she was  

buried.   However,  again,  since  the  appellant  was  

following  Sikhism,  he  got  performed  the  Akhand  Path  

and bhog of Akhand Path of Sri Guru Granth Sahib and  

Kirtan  and  Antim  Ardas  on  27.12.2009  in  Gurdwara  

Sahib  at  Village  Kupkalan,  Tehsil  Malerkotla  District

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Sangrur.  This was also attended by several prominent  

Sikh personalities.  

11.14  In  December  2011,  the  election  schedule  for  Punjab  

Legislative  Assembly  Elections  was  announced.  

Nomination  papers  were  to  be  filed  on  or  before  

12.01.2012. Scrutiny of papers was on 13.01.2012. The  

appellant  filed  his  nomination  papers  from  Indian  

National Congress Party for Bhadaur Constituency.  The  

respondent (Election Petitioner) filed his nomination from  

the  Shiromani  Akali  Dal  Party.   Bhadaur  constituency  

was  reserved  for  Scheduled  Castes  in  Punjab.  

Demographically, it is dominated by Sikhs who are the  

majority religious group in this constituency. Polling was  

held  on  30.01.2012.  On  06.03.2012,  results  were  

declared  and  the  appellant  emerged  as  the  successful  

candidate, winning by a wide margin.  

11.15 For the avoidance of  doubt,  on 11.08.2014, appellant  

made  a  declaration  as  per  Section  2(9)  of  the  Sikh  

Gurdwaras Act 1925 to the effect that he was a follower

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of Sikh religion. However, on 07.04.2015, the impugned  

order was pronounced by the High Court, which allowed  

the petition, holding that the appellant was not eligible to  

contest the election from Bhadaur.  The High Court held  

that since the appellant’s parents followed Islam, he was  

a  muslim  and  therefore  could  not  be  a  member  of  a  

Scheduled Caste.  It further held that appellant had not  

embraced Sikhism and even if he embraced Sikhism, he  

would  not  get  the  benefit  of  being  a  member  of  a  

Scheduled Caste.   

11.16 The impugned order is erroneous because it ignored the  

overwhelming evidence that the appellant had lived his  

life throughout as a Sikh.  Finding of High Court that the  

appellant is a muslim is incorrect, and the evidence has  

not  been  correctly  appreciated.   There  is  no  formal  

ceremony  or  procedure  required  to  embrace  Sikhism.  

The  fact  that  a  person  has  led  his  life  throughout  by  

following  Sikh  customs,  rituals,  rites  and  ceremonies,  

and that he has not followed the ceremonies, of any other

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religion,  leads  to  the  conclusion  that  the  person  is  a  

Sikh.  

11.17 Appellant had led his life throughout by following Sikh  

customs.  He used to pray in Gurdwaras.  He got the  

Akhand Path, bhog, kirtan and Antim Ardas performed  

after the death of his wife and his mother.  Three of his  

daughters are married into Hindu families.  He had given  

a public notice of his formally embracing Sikhism as far  

back as in 2006, which was not objected to by anyone.  

On the other hand, the evidence was clear that he had  

never observed any of the customs, rites, or ceremonies  

of Islam.  Thus, neither did appellant conduct himself as  

a muslim, nor did he regard himself as the one.  He was  

not perceived as a muslim by his near and dear ones,  

friends and acquaintances.  

11.18 The High Court erred in holding that  the declaration  

made by the  appellant  under  the  Sikh Gurdwaras Act  

1925  would  take  effect  only  from  the  date  of  the

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declaration.  It failed to note that the declaration, by its  

very nature, would be retroactive in operation.

11.19 The High Court erred in holding that the instant case  

was  one  of  conversion  from  Islam  to  Sikhism  and  

therefore the appellant could not claim to be a member of  

a Scheduled Caste.  The  High Court failed to appreciate  

that the appellant had been raised as a Sikh belonging to  

‘Doom’ caste from the very beginning and as such it was  

not a case of conversion.

11.20 The High Court has misconstrued the evidence of PW-2,  

PW-4 and PW-5.  All that was stated by these witnesses  

is  that  the  State  Government  had  issued  instructions  

that Scheduled Caste Certificates should not be issued to  

muslims,  even  if  they  indicated  their  caste  as  ‘Doom’.  

These instructions were not  specific  to the case of  the  

appellant since the appellant is not a muslim.  The Caste  

Certificate issued to the appellant remains valid even on  

date, and has never been cancelled.

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11.21 The High Court further erred in holding that since the  

appellant  did  not  wear  the  five  ‘kakkas’  i.e  Kachha,  

Karha, Kirpan, Kangha and Kesh, he could not be a Sikh.  

The High Court failed to note that the same is required  

only  of  Amritdhari  Sikhs,  and not  all  Sikhs,  and even  

among Amritdhari Sikhs it is not a universal practice.   

12. Submissions  and  arguments  advanced  on  behalf  of  

Respondent (Election Petitioner) :-

12.1 Constitution  (Scheduled  Castes)  Order,  1950  provides  

that no person who professes a religion different from the  

Hindu, the Sikh or the Buddhist shall be deemed to be a  

member of a Scheduled Caste. Thus a person professing  

Muslim religion cannot claim Scheduled Caste status.

12.2 Under section 5(a) of the Representation of the People Act  

1951,  the  qualification  to  be  elected  to  the  Legislative  

Assembly from a seat reserved for Scheduled Castes is  

that the candidate must belong to one of the Scheduled

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Castes specified for  the said State,  in the Constitution  

(Scheduled  Castes)  Order,  1950.  Since  the  Bhadaur  

Constituency was reserved for the Scheduled Castes in  

the State of Punjab, as such the appellant not being a  

member of Scheduled Caste was not qualified to contest  

election from said Constituency.

12.3  The  High  Court  has   correctly  evaluated  the  material  

available  on  record  to  find  out  as  to  whether  the  

appellant  had  taken  birth  in  the  family  of  Scheduled  

Caste as per the Constitution (Scheduled Castes) Order,  

1950  before  concluding  that  the  appellant  being  a  

muslim cannot derive any benefit of Scheduled Caste.

12.4 Even  if  it  is  presumed  that  the  appellant  belonged  to  

Doom community and embraced Sikhism, it  cannot be  

said that he was a member of Scheduled Caste and he  

would carry his ‘Doom’ Caste along with him at the time

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of  conversion.   It  is  apposite  to  mention  here  that  a  

muslim even  if  belonging  to  Scheduled  Caste  was  not  

eligible  to contest  the election,  and as such by merely  

embracing  Sikhism,  he  cannot  become  eligible  for  the  

same.  

12.5 A person embracing religion other than Hindu or Sikh  

does not carry his caste with him as a general rule.  No  

special  circumstances have been brought  on record so  

that  this  Court  may  presume  that  the  appellant  had  

carried his ‘Doom’ caste along with him after embracing  

Sikhism.  In fact, on the basis of the evidence led by both  

the  parties,  the  High  Court  was  rightly  not  convinced  

that the appellant had embraced Sikhism for the reason  

that  the  appellant  fairly  admitted  during  his  cross-

examination that his forefathers as well as his wife were  

following Islam.

12.6 Moreover, the declaration which is required to be verified  

by a Magistrate under Rule 3(b) of the Sikh Gurdwaras

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Rules, 1925 has been verified by the Oath Commissioner  

and not by the Magistrate, and hence it does not qualify  

to  be a legal  declaration and therefore,  its  not  a valid  

declaration.

12.7 By  an  application  dated  13.07.2006,  (Exh.  PF),  the  

appellant had applied for issuance of a Scheduled Caste  

certificate by claiming himself that he belonged to “Doom  

(Marasi)” caste, which was granted to him on the same  

date i.e.13.07.06 (Exh. PF6), under the orders of the then  

Tehsildar, Ludhiana (West).  When the said fact came to  

light,  the  then Commissioner,  Patiala  Division,  Patiala,  

ordered an inquiry and thereafter a direction was issued  

to  the  appellant  to  return  the  said  Scheduled  Caste  

certificate in the office of  the Tehsildar by 19.12.2006,  

but the same was not obeyed by the appellant and, as  

such,  the  Government  of  Punjab  vide  its  order  no.  

15/MC, dated 11.01.2007, cancelled the said certificate.  

In  the  meantime,  the  appellant  again  applied  on

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25.08.2006 (Exh.PG), for issuance of another Scheduled  

Caste certificate claiming himself to be a “Doom” caste  

only and a certificate (Exh. PG2), to that effect was issued  

on the same date i.e.  25.08.2006.  However,  the Joint  

Secretary, Welfare, Government of Punjab, vide his Memo  

No.1/32/2008-RS-1, dated 17.11.2008, issued directions  

to all the Deputy Commissioners in the State of Punjab,  

to the effect  that  a person belonging to Islam was not  

legally entitled to get a Scheduled Caste certificate.

12.8 A public notice claiming to declare the appellant a Sikh  

was  published  in  the  newspapers  –  The  Hindustan  

Times, Chandigarh and Daily Akali Patrika, Jalandhar on  

04.01.2007 but as admitted by his own witness RW 14 in  

the cross examination, the appellant was a Mohammedan  

before  the  advertisement  in  the  newspapers  on  

04.01.2007. As such the appellant is a born muslim, and  

continued  to  be  a  muslim  upto  the  date  of  filing  of  

nomination papers.

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12.9 The two Scheduled Caste Certificates dated 13.07.2006  

Exh.PF6  and  25.08.2006  Exh.PG2  got  issued  by  the  

appellant are not valid Scheduled Caste certificates.

12.10 Sub Section (9) of Section 2, of the Sikh Gurudwara Act,  

1925 defines a Sikh reads as follows-  

“(9) Sikh – “Sikh means a person who professes the  Sikh religion or in the case of a deceased person,  who professed the Sikh religion or was known to be  a Sikh during his life time.

If  any  question  arises  as  to  whether  any  living  person  is  or  is  not  a  Sikh,  he  shall  be  deemed  respectively to be or not to be a Sikh according as  he makes or refuses to make in such manner as the  State Govt. may prescribe the following declaration:  -

I solemnly affirm that I am a Sikh, that I believe in  the  Guru Granth Sahib,  that  I  believe in  the  ten  Gurus and that I have no other religion.”

12.11  In the Rules framed under Sikh Gurudwara Act, 1925,  

it  is  provided  that  a  declaration  shall  be  made  either  

orally in the presence of the authority by whom it is to be  

decided whether the person in question is a Sikh or not,

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or in writing and (i) if the declaration is made orally the  

authority in whose presence it is made shall record the  

making of it in writing and the record shall be attested by  

the signature or  thumb-mark of  the person making it,  

and (ii) if the declaration is made in writing it shall be  

signed by the person making it,  shall  be verified by a  

magistrate  and  shall  be  forwarded  in  original  to  the  

authority by whom it is to be decided whether the person  

in question is a Sikh or not.

12.12 For  ceremony of  Baptism and Imitation procedure in  

Art.  XXIV  is  required  to  be  followed,  which  is  not  

followed, as such High Court committed no error of law  

in setting aside election of the appellant.

12.13  In the above circumstances, the respondent deserves to  

be declared elected for remaining period from Assembly  

Constituency Bhadaur.

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13. We  have  considered  the  rival  submissions  of  learned  

counsel for the parties and perused the papers on record.

14. In the present case, the main issue before us is whether  

the High Court has erred in holding that the appellant was not  

a  member  of  Scheduled  Caste  on  the  date  of  filing  of  his  

nomination  papers  from  the  Assembly  Constituency  102  

Bhadaur (SC) in Punjab, as such he was not qualified, and his  

election from said constituency is bad in law.

15. Before further discussion we think it just and proper to  

understand what “caste” actually means.  The word “caste” is  

defined in Encyclopedia Americana, Vol. 5, as under: -

“Caste:  Caste  is  a  largely  static,  exclusive  social  class, membership in which is determined by birth  and involves particular customary restrictions and  privileges.   The word derives from the Portuguese  casta, meaning ‘breed’, ‘race’, or ‘kind’ and was first  used to denote the Hindu social classification on the  Indian subcontinent.  While this remains the basic  connotation,  the  word  ‘caste’  is  also  used  to  describe  in  whole  or  in  part  social  systems  that  emerged  at  various  times  in  other  parts  of  the  world….”

      According  to  Webster  Comprehensive  Dictionary  

(International Edition), ‘caste’ in relation to Hinduism means –

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any  of  the  four  social  divisions  namely  Brahmin  (Priests),  

Khshatriya (Warriors), Vaishya (agriculturists & traders) and  

Shudras (servants).

16. Now, we would like to examine the expression “Scheduled  

Caste”.   In  Guntur  Medical  College  v.  Y.  Mohan  Rao1,  

Constitution  Bench  of  this  Court  has  explained  the  term  

“Scheduled Castes” and made following observation: -

“3. ………… The expression ‘scheduled castes’ has  a  technical  meaning  given to  it  by  clause  (24)  of  Article 366 and it means -

‘such  castes,  races  or  tribes  or  parts  of  or  groups within such castes, races or tribes as  are deemed under Article 341 to be Scheduled  Castes for the purposes of this Constitution’.

The  President  in  exercise  of  the  power  conferred  upon  him  under  Article  341  has  issued  the  Constitution (Scheduled Castes) Order, 1950. Paras  (2) and (3) of this Order are material and they read  as follows:

“2. Subject  to  the  provisions  of  this  Order,  the castes, races or tribes or parts of or groups  within caste or tribes specified in Part I to XIII  of the Schedule to this Order shall, in relation  to the States to which these parts respectively  relate, be deemed to be scheduled castes so far  

1 (1976) 3 SCC 411

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as  regards  members  thereof  resident  in  the  localities specified in relation to them in those  Parts of that Schedule.

3. Notwithstanding  anything  contained  in  para  2,  no  person  who  professes  a  religion  different from the Hindu or the Sikh religion  shall  be  deemed  to  be  a  member  of  a  Scheduled Caste.

The schedule  to  this  order  in  Part  I  sets  out  the  castes, races or tribes or parts of or groups within  castes or tribes which shall in the different areas of  the  State  of  Andhra  Pradesh  be  deemed  to  be  scheduled castes. One of the castes specified there  is Madiga caste and that caste must, therefore, be  deemed to be a scheduled caste. But by reason of  clause  (3),  a  person  belonging  to  Madiga  caste  would not be deemed to be a member of a scheduled  caste unless he professes Hindu or Sikh religion at  the relevant time. It is not necessary that he should  have been born a Hindu or a Sikh…….”

        (Emphasis supplied)

17. In  S.  Anbalagan  v.  B.  Devarajan2,  which  is  a  case  

pertaining  to  election  from  Rasipuram  Parliamentary  

Constituency (reserved for Scheduled Castes),  a three-Judge  

Bench of this Court at the end of para 13 has observed as  

under: -

“13. ………….Now,  if  such a  Christian becomes a  Hindu, surely he will revert to his original caste, if  

2 (1984) 2 SCC 112

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he had lost it  at  all.  In fact this process goes on  continuously in India and generation by generation  lost sheep appear to return to the caste-fold and are  once again assimilated in that fold. This appears to  be  particularly  so  in  the  case  of  members  of  the  Scheduled Castes, who embrace other religions in  their  quest  for  liberation,  but  return  to  their  old  religion on finding that their disabilities have clung  to them with great tenacity. We do not think that  any  different  principle  will  apply  to  the  case  of  conversion  to  Hinduism  of  a  person  whose  forefathers had abandoned Hinduism and embraced  another religion from the principle applicable to the  case of reconversion to Hinduism of a person who  himself  had  abandoned  Hinduism  and  embraced  another religion.”

       (Emphasis supplied)

18. In  Kailash Sonkar v.  Maya Devi3, which arose out of  

election  from  a  reserved  Assembly  constituency  in  Madhya  

Pradesh, another three-Judge Bench of this Court examined  

the  question  –  whether  the  loss  of  the  caste  is  absolute,  

irrevocable so as not to revive under any circumstance.  After  

deriving  the  history  of  caste  system,  this  Court  observed  

following  guiding  principle  to  determine  the  question  in  

paragraph 28: -

“Where  a  person  belonging  to  a  scheduled  caste is converted to Christianity or Islam, the same  

3  (1984) 2 SCC 91

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involves  loss  of  the  caste  unless  the  religion  to  which he is  converted is  liberal  enough to permit  the convertee to retain his caste or the family laws  by  which  he  was  originally  governed.  There  are  number  of  cases  where  members  belonging  to  a  particular  caste  having  been  converted  to  Christianity or even to Islam retain their caste or  family  laws  and  despite  the  new order  they  were  permitted to be governed by their old laws. But this  can happen only if  the new religion is liberal and  tolerant enough to permit such a course of action.  Where  the  new  religion,  however,  does  not  at  all  accept or believe in the caste system, the loss of the  caste would be final and complete. In a large area of  South and some of  the North-Eastern States it  is  not  unusual  to  find  persons  converted  to  Christianity  retaining  their  original  caste  without  violating the tenets of the new order which is done  as a matter of common practice existing from times  immemorial.  In  such  a  category  of  cases,  it  is  obvious that even if a person abjures his old religion  and is converted to a new one, there is no loss of  caste.  Moreover,  it  is  a  common feature  of  many  converts to a new religion to believe or have faith in  the saints belonging to other religions. For instance,  a  number  of  Hindus  have  faith  in  the  Muslim  saints, Dargahs, Imambadas which becomes a part  of their lives and some Hindus even adopt Muslim  names after the saints but this does not mean that  they  have  discarded  the  old  order  and  got  themselves converted to Islam”.

19. In  above  Kailash  Sonkar  (supra)  this  Court  further  

discussed issue relating to reconversion into Hinduism by the  

members  of  the  community  whose  forefathers  converted  to

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other religions.  Applying the doctrine of  eclipse, this Court  

observed as under: -

“34. In our opinion,  when a person is converted to  Christianity or some other religion the original caste  remains  under  eclipse  and  as  soon  as  during  his/her  lifetime  the  person  is  reconverted  to  the  original religion the eclipse disappears and the caste  automatically revives. Whether or not the revival of  the caste depends on the will and discretion of the  members  of  the  community  of  the  caste  is  a  question  on  which  we  refrain  from  giving  any  opinion  because  in  the  instant  case  there  is  overwhelming evidence to show that the respondent  was accepted by the community of her original Katia  caste. Even so, if the fact of the acceptance by the  members  of  the  community  is  made  a  condition  precedent to the revival of the caste, it would lead to  grave consequences and unnecessary exploitation,  sometimes motivated by political considerations. Of  course,  if  apart  from  the  oral  views  of  the  community  there  is  any  recognised  documentary  proof of a custom or code of conduct or rule of law  binding on a particular caste, it may be necessary to  insist  on  the  consent  of  the  members  of  the  community, otherwise in normal circumstances the  case  would  revive  by  applying  the  principles  of  doctrine of eclipse. We might pause here to add a  rider to what we have said i.e. whether it appears  that the person reconverted to the old religion had  been  converted  to  Christianity  since  several  generations, it may be difficult to apply the doctrine  of  eclipse  to  the  revival  of  caste.  However,  that  question does not arise here.”  

(Emphasis supplied)

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20. In paragraphs 51 and 52 in Kailash Sonkar (supra), on  

the facts of said case, this Court gave following conclusions: -

“51. ……………

(1) That  the  respondent  was  born  of  Christian  parents and was educated in various schools  or  institutions  where  she  was  known  as  a  Christian,

(2)  That  3-4  years  before  the  election,  the  respondent was reconverted to Hinduism and  married Jai Prakash Shalwar, a member of the  Katia  caste,  and  also  performed  the  Shudhikaran ceremony,

(3) That  she  was  not  only  accepted  but  also  welcomed  by  the  important  members,  including the President and Vice-President, of  the community,

(4) There is no evidence to show that there was  any  bar  under  the  Christian  religion  which  could  have  prevented  her  from  reconverting  herself to Hinduism,

(5) That there was no evidence to show that even  her  parents  had  been  Christian  from  generation to generation.

52. In  these  circumstances,  therefore,  this  case  fulfils the conditions required for being reconverted  to Hinduism from Christianity in order to revive the  original caste.”

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21. In  K.P. Manu v.  Scrunity Committee for Verification  

of Community Certificate4, one of the questions examined by  

this  Court  is  –  whether  on re-conversion,  a person born to  

Christian  parents  could,  after  reconversion  to  the  Hindu  

religion, be eligible to claim the benefit of his original caste.  

Referring to various case laws, including those referred above,  

this Court disagreed with the finding of Scrutiny Committee  

that caste certificate issued to a person on the basis of the fact  

that though the great grandfathers of such person belonged to  

Pulaya  community  (i.e.  Scheduled  Caste),  but  he  was  born  

after  his  ancestors  embraced  Christianity  and  thereafter,  

reconverted  into  Hindu  religion  is  not  entitled  to  the  

Scheduled Caste certificate.   Constitution Bench decision in  

Guntur  Medical  College  (supra)  and  three-Judge  Bench  

decisions  in  S.  Anbalagan (supra)  and  Kailash  Sonkar  

(supra) are referred to and relied upon in K.P. Manu (supra).

22. In the case at hand, admittedly the appellant was born to  

muslim  parents.   However,  he  has  proved  that  his  family  

members though followed Islam but they belonged to “Doom”  4 (2015) 4 SCC 1

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community.   It  is settled law that  a person can change his  

religion and faith but not the caste, to which he belongs, as  

caste has linkage to birth.  It is proved on the record that the  

appellant was issued a caste certificate as he was found to be  

member  of  ‘Doom’  community  by  the  competent  authority,  

after he declared that he has embraced Sikhism, and he was  

accepted  by  the  Sikh  community.   It  is  not  disputed  that  

‘Doom’  in  Punjab  is  a  Scheduled  Caste  under  Constitution  

(Scheduled  Castes)  Order,  1950.   The  Scheduled  Caste  

Certificate No. 6149 dated 25.08.2006 (Exh PG/2) was issued  

to the appellant by the competent authority, and accepted by  

the returning officer.  Said certificate appears to have not been  

cancelled.  What is shown on behalf of the respondent is that  

vide  communication  dated  17.11.2008  (Ext.  PJ)  State  

authorities informed and clarified to the Deputy Commissioner  

that members following Islam are not entitled to the certificate  

of  Scheduled  Caste,  and  if  issued,  certificates  may  be  

cancelled.  But the certificate (PG/2) dated 25.08.2006 already  

issued  in  favour  of  appellant,  is  not  cancelled,  which  he  

obtained after his conversion to Sikhism.  It is proved on the

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record  that  the  appellant  embraced  Sikh  religion  on  

13.04.2006, and got published the declaration  on 04.01.2007  

in the newspapers Hindustan Times (English) Exh.RA, and Ajit  

(Punjabi)  Exh RB.  Nomination for  election in question was  

filed by him five years thereafter.  The appellant has further  

sufficiently explained that since he was popular as a singer  

with  the  name  –  ‘Mohammad  Sadique’  as  such  without  

changing his name, he accepted Sikhism and followed all rites  

and traditions of Sikh Religion.   

23. It is not essential for anyone to change one’s name after  

embracing a different faith.  However, such change in name  

can  be  a  corroborating  fact  regarding  conversion  or  

reconversion into a religion/faith in appropriate cases.  Also it  

is not necessary in law that entire family of a person should  

convert or reconvert to the religion to which he has converted.  

RW-5  Mohammad  Sadique  has  stated  that  he  not  only  

followed Sikh traditions, he never offered Namaz, nor observed  

Roza nor went to Haj.  It is also relevant to mention here that  

PW-7 Darbara Singh Guru (respondent-Election Petitioner) in

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his  cross-examination  admits  that  he  did  not  raise  any  

objection at the time when nomination papers were filed by the  

appellant.

24. In the above circumstances, we are inclined to hold that  

the High Court has erred in law, by ignoring the above facts on  

the record, and giving importance to form of declaration, and  

the interview said to have been given by appellant to PW 6  

Gulzar Singh Shaunki, author of book - “Sada Bahar Gayak –  

Mohammad Sadique : Jeevan Te Geet” (Exh.PK).  Statement of  

the  appellant  as  RW-5  regarding  conversion  to  Sikhism,  is  

fully corroborated by RW-11 Darshan Singh, Ex-Sarpanch of  

village  Kupkalan,  RW-6  Rachhpal  Singh,  Secretary  of  

Gurudwara  Sahib  Kupkalan,  RW-9  Ms.  Sukhjeet  Kaur,  co-

singer  in  Gurudwara,  and  RW-14  Sant  Shamsher  Singh  

Jageda, who presented ‘Saropa’ to the appellant.

25. Having re-appreciated the evidence on record, as above,  

and keeping in view the law laid down by this Court in Guntur  

Medical  College  v.  Y.  Mohan  Rao1,  S.  Anbalagan  v.  B.  

1 (1976) 3 SCC 411

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Devarajan2,  and  Kailash  Sonkar v.  Maya  Devi3,  in  our  

opinion,  the  impugned judgment  passed by  the  High Court  

cannot be upheld.

26. Accordingly,  the  appeal  is  allowed,  and  the  Election  

Petition filed by the respondent is dismissed.  No order as to  

costs.

 ……………………………..J.  [Ranjan Gogoi]

……………………………..J.

                    [Prafulla C. Pant]

New Delhi;

April 29, 2016.

2 (1984) 2 SCC 112 3  (1984) 2 SCC 91