Supreme Court of India
M. CHANDRAversusM. THANGAMUTHU & ANR.
- Citation
- 2010 INSC 578
- Decided
- 7 September 2010
- Disposal
- Appeal(s) allowed
- Bench
- D K JAIN
Holding
The burden of proof in an election petition lies on the petitioner; the appellant’s reconversion to Hinduism and acceptance by the community were proven, making her eligible for the reserved seat, and the High Court’s order was set aside.
Summary
The appellant, M. Chandra, was elected from a Tamil Nadu assembly seat reserved for Scheduled Castes, but the election petitioner challenged her eligibility on the ground that she was a Christian and not a member of the Hindu Pallan Scheduled Caste. The High Court shifted the burden of proof onto the appellant to demonstrate that she had renounced Christianity, held that she failed to do so, and declared her election void. The Supreme Court held that in an election petition the burden of proof remains on the petitioner to prove the returned candidate’s ineligibility, and that the appellant’s evidence of reconversion to Hinduism, acceptance by the community, and a valid community certificate satisfied the requirement. The Court accepted secondary evidence of the conversion certificate as admissible and rejected the petitioner’s reliance on school records, birth registers, and telephone applications as insufficient. Consequently, the High Court’s order was set aside and the appeal was allowed.
Issues considered
- The allocation of the burden of proof in an election petition concerning the returned candidate's caste and religious qualification.
- Whether the appellant, born to a Christian father, has validly reconverted to Hinduism and thus qualifies as a Scheduled Caste under the Constitution (Scheduled Castes) Order, 1950.
- The validity and procedural propriety of the community certificate issued to the appellant.
- The admissibility of secondary evidence, specifically a duplicate conversion certificate, to prove religious conversion.
- The relevance of school records, birth registers, and telephone application entries in establishing the appellant's professed religion.
- The adequacy of the election petition's pleadings under Sections 81, 100 and 125‑A of the Representation of the People Act, 1951.
Legislation cited
- Constitution of Indias. Article 341
- Constitution (Scheduled Castes) Order, 1950
- Indian Evidence Act, 1872s. 3, s. 65, s. 66
- Representation of the People Act, 1951s. 100, s. 125-A, s. 81, s. 83
Subjects
election lawreserved constituencyscheduled castereligious conversionburden of proofcommunity certificatesecondary evidenceRepresentation of the People Act
Judgment
[2010] 11 S.C.R. 38
A M. CHANDRA
v.
M. THANGAMUTHU & ANR.
(Civil Appeal No. 7284 of 2008)
SEPTEMBER 7, 2010
B
[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
c 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
D 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
E 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
F 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 F
the original through no fault of that party - Election laws_
The appellant was declared elected in the election to
the legislative assembly on a seat reserved for the
members.I of Scheduled Castes. The election petitioner- G
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
mean a declaration in such a way that it would be known
8
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; 74- F
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.
G
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
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-A-
C 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 A
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 B
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
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] [71-
E-H; 72-A-E]
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 F
material facts which the petitioner is to rely upon during
the trial, and it must reveal a clear and complete picture
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-A-
B; 0-G]
c 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.
D
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
F
(1975) 1 sec 589 referred to Para 8
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
AIR 1958 SC 255 referred to Para 11
B
(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 A
(2006) 1 sec 344 distinguished Para 49
(2008) 2 sec 186 distinguished Para 49
(1999) 2 SCR 99 referred to Para 53
B
1993 Supp (2) sec 229 relied on Para 55
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
7284 of 2008.
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.
E
The Judgment of the Court was delivered by
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
nomination papers claiming herself to be a member of a
F 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 siste1 's house and claims
1
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
52 SUPREME COURT REPORTS [2010] 11 S.C.R.
A 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
B 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
c 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
her two daughters so as to reveal her religion. She also asserts
0
that it is her brother Sudhakar Gnanaraj who had studied in
Government High School, Devathanampatty, which is a co-
educational institution and he assumed that the respondent
being her sister, would have studied in the same school, and
therefore, mentioned the same in the declaration filed along with
E 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,
F 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 B
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. c
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. D
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. E
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 F
Nadu in the election held on 8.5.2006.
To what other reliefs the petitioner is entitled to.
Findings of the High Court :
G
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
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
56 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.
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
B
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
c 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
D 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
E 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
F 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
Senior Counsel vehemently contends, that, there are two stages
H
M. CHANDRA v. M. THANGAMUTHU & ANR. 59
[H.L. DATTU, J.]
in appellant's life, namely, prior to conversion and after A
conversion. According to him, that in the reply filed in the
election petition, there is no ·pleading that she was Hindu by
birth and that till conversion she was professing Hinduism and
that there is no pleading that at any stage she was professing
Hinduism and or living Hindu way of life or believing in Hindu s
faith. Therefore, submits that the High Court was justified in
allowing the election petition filed by Election petitioner.
Definition of Scheduled Caste :
13. We may begin to dis,cuss this issue firstly by referring C
to weighty observations made by this Court in the case of
Ganpat vs. Returning Officer, 1975 (1) SCC 589. "The
monstrous course of untouchability has got to be eradicated.)t
has got be eradicated not merely by making constitutional
provisions or laws but also by eradicating it from the minds and D
hearts of men. For that it is even more important that members
of communities who are untouchables should assert their self-
respect and fight for their dignity than that members of the other
communities should forget about it.
E
14. In order to bring the lower castes on par with the upper
castes, there are special provisions in the Constitution to
ensure that equal opportunity was not just in word but also in
deed.
15. "Scheduled Castes" means such castes, races or F
tribes or parts of or groups within such castes, races or tribes
as are deemed under article 341 to be Scheduled Castes for
the purpose of the Constitution. For easy reference the said
provision is extracted:
G
"341. Scheduled Castes. - (1) The President may with
respect to any State or Union territory, and where it is a
State, after consultation with the Governor thereof, by
public notification, specify the castes, races or tribes which
shall for the purposes of this Constitution be deemed to H
•
60 SUPREME COURT REPORTS [201 OJ 11 S.C.R.
A be Scheduled Castes in relation tu that State or Union
territory, as the case may be.
(2} Parliament may by law include in or exclude from the
list of Scheduled Castes specified in a notification issued
under clause (1) any caste, race or tribe or part of or group
B
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."
16. Article 341 (1) of the Constitution was considered by
C this Court in the case of S. Swvigaradoss vs. Zonal Manager,
F. C. I. (1996) 3 sec 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
D 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
E
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
F 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 notification the caste, race or
tribe or parts or groups within castes, races or tribes which
G shall for the purposes of the Constitution be deemed to be
Scheduled Castes in relation to that State or Union
Territory."
17. Under these provisions, the Constitution (Scheduled
H Castes) Order was issued in 1950. It sets out the caste, races
M. CHANDRA v. M. THANGAMUTHU & ANR. '61
[H.L. DATTU, J.]
and tribes in each State of India and provides under para 2, A
that a person belonging to any of the caste 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 the Hindu, Sikh or Budhist B
religion shall be deemed to be a member of a Scheduled
Caste. Reading para 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 the
status of a Scheduled Caste, provided he/she professes c
Hinduism or one of the other religions specified in paragraph
3 of the Order.
18. The text of the Order is reproduced below :
"In exercise of the powers conferred by clause (1) of article D
341 of the Constitution of India, the President, after
consultation with the Governors and Rajpramukhs of the
States concerned, is pleased to make the following Order
namely:
E
1. This order may be called the Constitution (Scheduled
Castes) Order, 1950.
2. Subject to the. provisioAs of this Order, the castes, races
or tribes or parts, or groups within, castes or tribes
specified in (Parts to (XXll) of the Scheduled to this Order F
shall, in relation to the States to which those Parts
respectively related, be deemed to be Scheduled Castes
so far as regards member thereof resident in localities
specified in relation to them in those Parts of what
Schedule. G
3. Notwithstanding anything contained in paragraph 2, no
person who professes a religion different from the Hindu,
the Sikh or the Buddhists religion shall be deemed to be
a member of a Scheduled Caste.
H
62 SUPREME COURT REPORTS [201 OJ 11 S.C.R.
A 4. Any reference in this Order to a State or to a district or
other territorial division thereof shall be construed as a
reference to the State, district or other territorial division
as constituted on the 1st day of May, 1976."
19. Prior to amendment, Clause (3) of the Constitution
B
(Scheduled Castes) Order . 1950 came up for consideration
before 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
c 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
D 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
E 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
F in : as to profess Christ" is one which we have to bear in mi:id
while construing the aforesaid order because it is this which
bears upon religious belief and consequently also upon a
change in religious belief. It would thus follow that a declaration
of one's belief must necessarily mean a declaration in such a
G way that it would be known to those whom it may interest.
Therefore, 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 an open declaration it would be idle
to enquire further as to whether the conversion to another
H
M. CHANDRA v. M. THANGAMUTHU & ANR. 63
[H.L. DATTU, J.]
religion was efficacious. The word "profess" in the Presidential A
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 contrary, that
he has ceased to be a Hindu he cannot derive any benefit from
that Order". B
20. The way we understand the order 1950, and the
observation made by this court is, 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 professing a religion different C
from the Hindu, the Sikh or the Budhist.
Conversion of Religion - Burden of Proof :
21. It is not in dispute that Hindu Pallan Community is 0
notified under the Presidential Order as Scheduled Caste. The
appellant claims that though her father was a Christian, her
mother continued to profess the customs of Hindu Pallan
Community. It is her further case that her father deserted her
mother when she was still a child and her mother brought her E
up as Hindu and her community accepted her and her mother
as Hindu. Now the question is whether the appellant is
professing and practicing Hinduism. The appellant claims that
though her father is a Christian, her mother continues to profess
Hindu religion and it is her further case that she was born and F
brought up as a Hindu by her mother and she continues to
profess Hindu faith and in order to reaffirm her faith in Hinduism,
she has undergone rituals in Arya Samaj Madurai, and in proof
of it she has produced the duplicate copy of the certificate. At
the time of hearing of this appeal a lot of debate was generated
by both the sides pwith regard to certificate of conversion G
issued by the Arya Samaj. The appellant in 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
H
64 SUPREME COURT REPORTS [201 OJ 11 S.C.R.
A 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
B 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
c 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
D him to Hinduism. But a bona fide intention to be converted
to the Hindu faith, accompanied by conduct unequivocally
expressing that intention may be sufficient evidence of
conversion. No formal ceremony of purification or expiation
is necessary to effectuate conversion.
E
8. In Goona Durgaprasada Rao v. Goona
Sudarasanaswami Mockett, J., observed that no gesture
or declaration may change a man's religion, but when on
the facts it appears that a man did change his religion and
was accepted by his co-religionists as having changed his
F
religion and lived and died in that religion, absence of
some formality cannot negative what is an actual fact.
Krishnaswami Ayyangar, J., observed that a Hindu who
had converted himself to the Christian faith returned to
Hinduism and contracted a second marriage during the
G life-time of his first wife and remained and died a Hindu
having been accepted as such by the community and co-
religionists without +demur. Absence of evidence of rituals
relating to conversion cannot justify the Court in treating
him as having remained a Christian."
H
M. CHANDRA v. M. THANGAMUTHU & ANR. 65
[H.L. DATTU, J.]
22. In the case of Ganpat v. Returning Officer, (1975) 1 A
sec 589, it was observed:·
"11. In this connection it is necessary to remember that
Hinduism is a very broad based religion. In fact some
people take the view that it is not a religion at all on the B
ground that there is no one founder and no one sacred
book for the Hindus. This, of course, is a very narrow view
merely based on the comparison between Hinduism on the
one side and Islam and Christianity on the other. But one
knows that Hinduism through the ages has absorbed or C
accommodated many different practices, religious as well
as secular, and also different faiths. One of the witnesses
has described that he considered Buddha as the eleventh
Avtar ...... Hinduism is so tolerant and Hindu religious
practices so varied and eclectic that one would find it
· difficult to say whether one is practising or professing D
Hindu religion or not."
23. In Kothapalli Narasayya vs. Jammana Jogi AIR 1976
SC 937, it is stated:-
E
"These cases show that the consistent view taken in this
country from the time Administrator-General of Madras v.
Anandachari was decided, that is, since 1886, has been that
on reconversion to Hinduism, a person can once again become
a member of the caste in which he was born and to which he
belonged before conversion to another religion, if the members
F
of the caste accept him as a member. There is no reason either
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 G
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,
H
66 SUPREME COURT REPORTS [201 O] 11 S.C.R.
A 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
B 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
c belonged prior to his conversion. We accordingly agree with the
view taken by the High Court that on reconversion to Hinduism,
the first respondent could once again revert to his original Adi
Dravida caste if he was accepted as such by the other members
of the caste."
D 24. In S. Anbalagan vs. B. Devarajan and others (1984)
2 sec 112, it is observed:-
"These precedents, particularly those from South India,
clearly establish that no particular ceremony is prescribed
E for reconversion to Hinduism of a person who had earlier
embraced another religion. Unless the practice of the caste
makes it necessary, no expiatory rites need be performed
and, ordinarily, he regains his caste unless the community
does not accept him. In fact, it may not be accurate to say
F that he regains his caste; it may be more accurate to say
that he never lost his caste in the first instance when he
embraced another religion. The practice of caste however
irrational it may appear to our reason and however
repugnant it may appear to our moral and social sense, is
so deep-rooted in the Indian people that its mark does not
G
seem to disappear on conversion to a different religion. If
it disappears, it disappears only to reappear on
reconversion. The mark of caste does not seem to really
disappear even after some generations after conversion."
H 25. In Kai/ash Sankar vs. Smt. Maya Devi [(1984) 2 SCC
M. CHANDRA v. M. THANGAMUTHU & ANR. 67
[H.L. DATTU, J.]
91 ], this court speaking through FAZAL ALI, J. made the A
following observation.
"In our opinion, there is one aspect which does not appear
to have been dealt with by ~ny of the cases discussed by
us. Suppose, A, a membe~ of the scheduled caste, is
B
converted to Christianity and marries a Christian girl and
a daughter is born to him who, according to the tenets of
Christian religion, is baptised and educated. After she .has
attained the age of discretion she decides of her own
volition to re-embrace Hinduism, should in such a case C
revival of the caste depend on the views of the members
of the community of the caste concerned or would it
automatically revive on her reconversion if the same is
genuine and followed by the necessary rites and
ceremonies? In other words, is it not open for B (the
daughter) to say that because she was born of Christian D
parents their religion cannot be thrust on her when after
attaining the age of discretion and gaining some
knowledge of the world affairs, she decides to revert to her
old religion. It was not her fault that she was born of
Christian parents and baptised at a time when she was E
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 for ever merely because
fortunately or unfortunately she was born in a Christian F
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 G
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
H
68 SUPREME COURT REPORTS (2010] 11 S.C.R.
A 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
B 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 other hand, having regard to its structure,
as it has evolved over the years, a caste may consist not
only of persons professing Hindu religion but also persons
c professing some other religion as well, conversion from
Hinduism to that other religion may not involve loss of
caste, because even persons professing such other
religion can be members of the caste .... This is indeed not
an infrequent phenomenon in South India where, in some
of the castes, even after conversion to Christianity, a
D
person is regarded as continuing to belong to the caste."
26. In C.M. Arumugam vs. S. Rajgopal and Others (1976)
1 SCC 863; the following observation is made by this Court.
E "These. cases show that the consistent view taken in this
countri from the time Administrator-General of Madras v.
Anandachari was decided, that is, since 1886, has been
that on reconversion to Hinduism, a person can once
again, become a member of the caste in which he was
born and to which he belonged before conversion to
F
another religion, if the members of the caste accept him
as a member. There is no reason either on principle or on
authority which should compel us to disregard this view
which has prevailed for almost a century and lay down I
a
different rule on the subject. If a person who has embraced
G 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
H
M. CHANDRA v. M. THANGAMUTHU & ANR. 69
[H.L. DATTU, J.]
he once belonged, provided of course the community is A
willing to take him within the fold. It is the orthodox Hindu
society still dominated to a large extent, particularly in rural
areas, by medievalistic outlook and status-oriented
approach which attaches social and economic disabilities
to a person belonging to a scheduled caste and that is why B
certain favoured treatment is given to him by the
Constitution. Once such a person ceases to be a Hindu
and becomes a Christian, the social and economic
disab~lities arising because of Hindu religion cease and
hence it is no longer necessary to give him protection and c
for this reason he is deemed not to belong to a scheduled
caste. But when he is reconverted to Hinduism, the social
and economic disabilities once agair:i revive and become
attached to him because these are ,disabilities inflicted by
Hinduism." D
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 E
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 F
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 G
single founder, a single book, a singe church or even a single
way of fife. 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 H
70 SUPREME COURT REPORTS [201 OJ 11 S.C.R.
A due to reasons of public health and later, due to prejudices.
(copied in tits and bits from the book facets of Hinduism by Sri
Swami Harshananda).
29. It is a settled principle of law that to prove a conversion
from one religion to another, two elements need to be satisfied.
8
First, there has to be a conversion and second acceptance into
the community to which the person converted. It is obvious that
the need of a conversion cannot be altogether done away with.
30. The appellant had examined herself as RW3. In her
C examination in chief, she has categorically stated, that as a
Hindu, in her household they are celebrating festivals like
Pongal, Vinayaka-Chaturthi etc. She has also stated that since
her birth she has been living as a Hindu and following Hindu
customs and tradition and her relatives are also treating her
D as Hindu and all her relatives are Hindus. She has also stated
that she has not gone to any Church and she does not know
about Christianity and that form of worship. In her constituency
people knew her only as Chandra and not as Glory Chandra.
She has also stated that she contested in the elections held
E for Rajapalyam Panchayat Union Council from reserved
constituency and nobody raised any objection. It has also come
in her evidence that she wanted to reaffirm her faith in Hinduism
and therefore she approached Arya Samaj, Madurai and after
making her go through all the rituals, the Arya Samaj, Madurai
F issued a certificate of reconversion to Hinduism bearing Serial
No. E56 dated 27.8.1994 (Ex. R 13) and the same was received
by her uncle Santnakumar and it is only when the election
petition was filed, on her enquiry she was told that the original
certificate that was received by him has been lost and therefore
G she requested him to obtain duplicate copy of the certificate. It
has also come in her evidence that her marriage was performed
as per Hindu customs and her husband is Murugan, who also
. belongs to Hindu Pallan Community. She asserts that she lived
as Hindu and continue to live as Hindu by following Hindu
Customs and Traditions. She has faced a lengthy cross
H
M. CHANDRA v. M. THANGAMUTHU & ANR. 71
[H.L. DATTU, J.]
examination. The. learned senior counsel Sri Ramamurthy has A
taken us through the entire evidence. We are afraid that whether
anything worthwhile has been brought on record to discredit the
veracity of the evidence of the appellant and in fact whatever
suggestion that was put to falsify the conversion certificate
issued by Arya Samaj, Madurai, the witness has denied all B
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. c
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
0
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 E
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 the reasoning of the High Court. It is true that a party
who wishes to rely upon the contents of a document must F
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 copy, duplicate copy of a copy, by oral evidence G
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. It should be emphasized
that the exceptions to the rule requiring primary evidence are
designed to provide relief in a case where a party is genuinely H
72 SUPREME COURT REPORTS [2010] 11 S.C.R.
A unable to produce the original through no fault of that party. In
the instant case, it is 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 the rituals in
Arya Samaj only for the purpose of reaffirmation of Hindu faith
s and the conversion certificate issued by Arya Samaj was
received and acknowledged by her uncle Santnakumar who had
accompanied her. It is 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 fer her purpose. It is only
C · when the election petition was filed, it order to proof her case
of reaffirmation of her faith in Hinduism, she came to know that
her uncle has lost the certificate, which necessitated her to
obtain a duplicate copy of conversion certificate from Arya
Samaj, Madurai. This part of her evidence is not even
challenged by the petitioner. In fact the contents of the
D 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 Santriakumar that the original certificate
received by him in the year 1994 is lost by him. In our view, a
perusal of the conversion certificate (Ex. R13) would amply
E demonstrate that the appellant has successfully proved her
claim of re-affirmation of Hindu faith by undergoing rituals of
conversion in the Arya Samaj, Madurai.
31. The High Court has placed reliance on the decision
F of this court in the case of Satrucharla Vijaya Rama Raju v.
Nimmaka Jaya Raju and Ors. (AIR 2006 SC 543), to place
the burden of proof on the appellant itself. The relevant portion
of the judgment reads:-
"15. Learned senior counsel for the appellant made a
G
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
H
M. CHANDRA v. M. THANGAMUTHU & ANR. 73
[H.L. DATTU, J.]
did not belong to a Scheduled Tribe. Though in a prior A
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 Kanda B
Dora, the statement in the series of documents, pre-
constitution 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 c
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 described as a 'Kshatriya' in
his school leaving certificate and that uncle's son was also D
held to be a 'Kshatriya' on an enquiry made in that behalf.
Therefore, in our view, the trial judge was correct in holding
that the election petitioner had discharged the initial burden
placed on him and the burden shifted to the appellant to
establish that he belonged to the 'Kanda Dora' Tribe."
E
32. On a careful perusal of the judgment, it is possible to
distinguish the present case on the basis of the facts and
circumstances. In the above mentioned case, which the High
Court has relied upon, there was no conversion from one
religion to another. The question was whether the person F
belongs to Kshatriya Caste or a Scheduled Tribe. The question
relates to caste within a religion as opposed to the present
case, where there has been conversion from one religion to
another. Therefore the reasoning given by the·High Court to
reverse and discharge the burden of proof is erroneous and G
the burden of proof should lie on the election petitioner to prove
that the appellant still professes Christianity.
33. We, therefore express our disapproval to the findings
of the High Court on this issue.
H
74 SUPREME COURT REPORTS [2010) 11 S.C.R.
A 34. The appellant, in support of her case, has examined
Sengaiah alias Chinna Sangaiah-RW4, Rasu-RW5, Govindan-
RW6, Paulraj-RW7, and RW10-Surulimuthu.
35. Mr. Sengaiah (RW 4) belongs to the same village as
8 the appellant. He has deposed that he knows the appellant as
she was born and brought up in his village. It has also come in
his evidence that the family deity of the appellant is
Palichiamman. She also used to worship Hindu Gods from her
childhood in the village temples and the nearby
C Kamatchiamman temple. A ceremony was also performed on
the appellant reaching puberty according to their caste customs
and this was attended by his wife. The witness also states that
the appellant's betrothal ceremony also took place as per the
customs of the Hindu Pallan community. This was attended by
him. However he did not attend the marriage of the appellant.
D But he further deposes that the appellant used to attend several
family functions organized by him. In the cross-examination he
has admitted the suggestion that the marriage betweeri
Santhoshpackiam (appellant's mother) and Navakumar
(appellant's father) was performed as per Christian religion. In
E our view, the only admission made by this witness 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.
F 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.
G
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
H had the knowledge that the parties to the marriage were
M. CHANDRA v. M. THANGAMUTHU & ANR. 75
[H.L. DATTU, J.]
professing Christianity and later converted to Hinduism. He A
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 B
and the bridegroom proceeded towards the marriage pandal
near the house of the appellant's husband where the marriage
was performed. He also deposes that the appellant and her
husband worship the Sundaranatchiamman deity. He had
signed the marriage certificate along with one Mr. Govindan c
who had signed in his capacity as the Village Nattamai. He also
claims that before filing her nomination papers for the Assembly
elections in May 2006, the appellant and her husband came to
the Sundaranatchiamman temple and worshipped the deity.
This witness is cross-examined by the election petitioner, but
0
nothing useful is elicited. Therefore, his evidence goes
unchallenged.
37. Mr. Govindan was examined as RW 6. He states that
he attended the marriage of the appellant. He went on to
describe the rituals and the ceremonies that took place during E
the course of the marriage. He also mentions that he invited
the appellant to his house for his daughter's puberty ceremony
on account of her being a memt .. r of the community. Though
he was subjected to lengthy cross-examination, the election
petitioner could not elicit which discredit his evidence. F
38. Mr. S. Paulraj was examined as RW 7. In his evidence
he states that he belongs to Hindu Pallan Community. He also
asserts that the appellant also belongs to Hindu Pallan
Community. He has stated that he had attended the betrothal
G
ceremony of the appellant which was performed at her maternal
uncle Surulimuthu's house as per Hindu rites and customs. He
also stated that he had gone to the new house of the appellant.
According to him, at the entrance of her house at Thendral
Nagar, Rajapalayam, there is a picture of Lord Vinayaga printed
H
76 SUPREME COURT REPORTS [2010] 11 S.C.R.
A on a tile affixed on the wall. Her pooja room also also contains
pictures of many Hindu gods. He also stated that RW 4 -
Sengaiah did not attend the marriage of the appellant and it is
his wife and daughter who attended the marriage. The only
admission by him in the cross-examination was
B Santhoshpackiam married Navakumar and their marriage took
place in CSI School, Erumalainaickenpatti Village. In our view,
this so called admission would not assist the election petitioner
to prove that the appellant is a Christian and is continuing to
follow Christian faith.
c 39. Mr. Surulimuthu, the maternal uncle of the appellant was
examined as RW 10. He confirms that the marriage of the
parents of the appellant was performed as per Christianity. He
has confirmed that the appellant's father left the appellant, her
mother and her two younger brothers to marry another woman.
D He has also stated that the appellant, her mother and her
younger brothers were taken care of by his father ar:id 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
E Kaliamman. He also goes on to state that the appellant worships
Palichiamman, Vinayagar and Kamatchiamrnan in the village.
H.e 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
F 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
G 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 parents, appellant was not
even born and not even conceived in the womb of her mother
to overhear the conversation which was possible only in our
H Hindu mythology. Her statement that she has heard from her
M. CHANDRA v. M. THANGAMUTHU & ANR. 77
[H.L. DATTU, J.]
mother and her relatives and this admission, if we may so, A
cannot be put against the appellant that she is making false
assertion.
40. Election petitioner has examined himself as PW 1'. In
support of his allegations and assertions made in the election
8
petition he has examined T.P. Paulaswamy-PW2, Rajaiya-
PW3, Rajendran-PW4, Mrs. D. Jaymanorama-PW5 and
Arumugan-PW6. T. P Paulaswamy-PW2 is the Village
Secretary of DMK Party in Ganapathy Sundaranatchiyapuram.
Paulaswamy in his cross examination states that the father-in- C
law of the appellant is a member of Christian church. He also
goes on to state that the name of the appellant clearly indicates
that she professes Christianity. But later rather inexplicably, he
states "I do not know as to which religion the first respondent
no.1 and her family members are professing. At the instance
of the election petitioner, I have come as a witness today." He D
further states that he does not know the mother of the appellant
and has not visited the residence of the appellant. He further
states that he has never been to the residence of Murugan
(husband of the appellant) and does not know the father-in-law
of the appellant. He does however concede that Murugan works E
for Harijan Welfare Department of the Government. He further
states that he has not visited the church where Murugan's father
(appellant's father-in-law) was ti'"' Head of the church. He also
confesses he has no document to prove that Murugan's father
belonged to any church. It must be noted that in the testimony F
of Paulaswamy, he claims that Murugan is a Christian, but has
admitted that he contested in the bye election from Ward No.
3 in Rajapalayam Panchayat Union Council which was reserved
for candidates belonging to the Scheduled Castes, which fell
vacant when Murugan resigned from that seat. It is not clear to G
us how Murugan contested from this seat, if it was reserved for
Scheduled Castes, if, as Paulaswamy says, he was a Christian.
This is a clear contradiction in his testimony. He clearly
specifies in his deposition that he was unhappy that the second
respondent lost in the election.
H
78 SUPREME COURT REPORTS [2010] 11 S.C.R.
A 41. Rajaiya-PW3, in his evidence admits that he is a
member of the DMK Party. 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
B 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
c 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
D 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 that he knew
E no details about Mr. Navakumar (appellant's father).
42. Another important evidence which the Election
petitioner has taken aid of is the birth register of the children
of the appellant for the year 1997, where the name of the father
F of the child has been described as Soosaimanickam and the
name of the mother has been described as Glory and the ·
religion shows Christianity. All the relevant entries were listed
in Ex. P 10. In his testimony, Mr. M.K Rajendran, PW4, Deputy
Tahsildar, Periyakulam, Theni District clearly states that none
G of the entries in the Ex. P 10 register have been entered on
the reporting of births by the parents. This is a very important
admission on the part of the witness as this indicates that may
be not many people had the knowledge of the conversion of
the appellant and her husband. The entry cannot be relied upon
H
M. CHANDRA v. M. THANGAMUTHU & ANR. 79
[H.L. DATTU, J.]
by the respondent no.1 as it is mainly based on hearsay A
knowledge; because of the fact that the parents had themselves
not reported the birth of the child. In the present case, the child
birth was reported by the Village Head Nurse. She also states
that she knows neither Soosaimanickam nor Glory.
B
43. We now move over to the deposition of Mr. S.
Arumugan- PW6 presently working as Tahsildar, Rajapalayam.
According to his deposition, the husband of the appellant
applied for a permanent community certificate from Adi
Dravidar Welfare Department, vide application dated 27.3.1997 C
(Ex. P 13). The application was received by the Tahsildar's
office on 2.4.1997. He clearly states that he did not receive Ex.
P 13. At that point of time he was Junior Assistant at different
place. On the backside of the said application there are written
endorsements of the Village Administrative Officer,
Ayyankollkondan Revenue Inspector, Ayyankollkondan and D
Tahsildar, Rajapalayam. All the endorsements state that the
appellant is from the "Hindu Pallan" backward class. The
Village Administrative Officer had recorded the statement of
the witnesses which have been duly certified by him. The
respondent no.1 has pointed out to certain discrepancies in the E
grant of the community certificate. There has been reference
to the fact that the Tahsildar, Rajapalayam had not put his
signature to the endorsement of the Deputy Tahsildar where he
had written to the Revenue Inspector, Ayyankollkondan, asking
for proof with respect to the appellant's caste. Later no F
documents evidencing the community of tile 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 G
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 H
80 SUPREME COURT REPORTS [2010] 11 S.C.R.
A 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
B 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 the year 1999 by filing an
C application under the Right to Information Act. In Ex. R1, serial
no. 865, the voter's name has been mentioned as "Glory
Chandra". This fact is referred to by the respondent as being
a definite proof that the appellant is still professing Christianity.
However his own admission, it is not mentioned in Ex. R1 that
D the appellant is a Christian. He further states that he has not
denied in his counter that the marriage of the appellant was as
per Hindu customary rites. He also clarifies that he has not
stated anywhere that the marriage of the appellant took place
as per Christianity. He clearly states that he does not know
E much about any of the friends or the family of the appellant and
her husband.
45. We move over to the testimony of the K.V
Balasubrmaniam (R.W 2), who is the General Manager, Bharat
F Sanchar Nigam Limited, Virudhumagar Telecom District. The
Election petitioner has contended that the application of a
telephone connection made by the husband of the appellant
showed his name as Soosaimanickam. The application was
made in 27.4.1998. There was no name and photograph affixed
G to the application. More importantly, as per the deposition of
R.W 2 there is no column showing religion or caste of the
applicant. Also he has not seen the applicant put his signature
on the form. As clarified by him, there is no rule that only the
owner of the property can apply for the telephone connectioJl.
Even the tenant can apply for the telephone connection.
H
M. CHANDRA v. M. THANGAMUTHU & ANR. 81
[H.L. DATTU, J.]
Therefore it is possible that someone on behalf of the A
appellant's husband might have come to fill the application.
There is no bar against it as the customer service centre is
open to the general public for registering new telephone
connection.
B
46. After perusal of the deposition of witnesses of both
sides, the following relevant points emerge.
47. The contentions of the election petitioner is that parents
of the appellant are Christians and their marriage was
performed in a Church according to the traditions followed by C
Christians. This assertion of the election petitioner is denied
by the appellant both in her counter statement and in the
evidence. She has admitted that her father Navakumar was
Christian but her mother was Hindu throughout and the marriage
of her parents took place as per the customs prevailing in Hindu D
Pallan community. It is true that in the counter statement filed
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, E
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 F
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 G
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
H
82 SUPREME COURT REPORTS [201 O] 11 S.C.R.
A process. Hypertechnically requires to be eschewed and the
ground realities requires to be kept in view while deciding these
types of cases. We hasten to add, that this approach need not
be adopted when an election petition is filed on the grounds of
corruption, inciting people on the ground of particular r,eligion
B etc. In the instant case, merely because the appellant had
stated in her counter affidavit that she got converted into
Christian faith in the year 1994 in Arya Samaj, Madurai, after
following the required essential rituals, the learned Judge while
deciding the lis between the parties has shifted the burden of
c proof on the appellant to disprove 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 learned Judge runs counter
to the settled legal principles. We say so for the reason, that in
an election petition the burden of proof lies on the person who
0
accuses that the elected person who had the support of the
majority of the electorates still does not deseNe to represent
them in the State Assembly. We reiterate that in the present
case, the appellant candidly accepts that her father Navakumar
is a Christian, but her mother who is separated from him never
E practiced Christian faith but continued to follow Hindu religion
even after her marriage. The election petitioner has not
produced any acceptable evidence to disprove the evidence
adduced by the appellant and her witnesses. Therefore, issue
of parentage which was sought to be projected as a factor
F which would prove that the appellant is a Christian and brought
up as a Christian cannot be accepted. Reference can be
made to the decision of this Court in the case of Kai/ash
Sankar Vs. Mayadevi [(1984) 2 SCC 91]
G "32. Another aspect which one must not forget is that when
a child is born neither has he any religion nor is he capable
of choosing one until he reaches the age of discretion and
acquires proper understanding of the situation. Hence, the
mere fact that the parents of a child, who were Christians,
H would in ordinary course get the usual baptism certificate
M. CHANDRA v. M. THANGAMUTHU & ANR. 83
[H.L. DATTU, J.]
and perform other ceremonies without the child knowing A
what is being done but after the child has grown up and
becomes fully mature and able to decide his future, he
ought not to be bound by what his parents may have done.
Therefore, in such cases, it is the intention of the convertee
which would determine the revival of the caste. If by his B
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 C
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 D
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 E
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 F
declaration and therefore she was ineligible to contest from the
reserved constituency. The appellant in her counter affidavit and
also in her evidence has explained that the discrepancy in the
declaration form filled by her brother, who was assisting her in
filing the nomination papers. We have perused the stand of the
G
election petitioner and the evidence of the appellant. In our view,
the discrepancy pointed out by the election petitioner has been
properly explained by the appellant and in our view, this by itself
cannot be a ground to hold that the appellant was ineligible to
contest from the reserved constituency.
·H
84 SUPREME COURT REPORTS [2010] 11 S.C.R.
A 49. In so far as issuance of community certificate to the
appellant, in our view the evidence of PW6 amply demonstrates
that due procedure was followed while issuing the Community
Certificate. The High Court, in our considered view has not
properly appreciated PW6 evidence while doubting the
B genuineness of the Community Certificate produced by the
appellant. Therefore, we do not approve the reasoning of the
High Court on this issue. We also add that the learned senior
counsel for contesting respondent in this appeal relied on
certain observations made by this Court in the case of Kumari
c Madhuri Patil & Anr. Vs. Addi. Commissioner, Tribal
Development & Ors. (1994) 6 SCC 241; GM, Indian Bank Vs.
R. Rani & Anr. (2007) 12 SCC 796; R. Palanimutlw Vs.
Returning Officer & Ors. (1984) Supp. SCC 77; John
Valiamattom & Anr. Vs. Union of India (2003) 6 SCC 611;
D Meera Kanwaria Vs. Sunitha & Ors. (2006) 1 SCC 344;
Swagigar Doss Vs. Zonal Manager, FCI (supra), Desh Raj Vs.
Bodh Raj (2008) 2 SCC 186. In our considered view, these
decisions were rendered by this Court in different context
altogether. Reference to the facts in those cases and the law
laid down therein, in our opinion, we would be unnecessarily
E adding few more pages to this Judgment. We desist ourselves
from doing so.
50. Reliance placed on the birth records, entries in the
telephone application and voters list cannot be the sole ground
F for proving that the appellant is professing Christianity. As stated
above, the records could have been made by people other than
the appellant or her husband. As far as the birth register is
concerned, it is clear that the birth was reported not by the
parents, but the Village Head Nurse. Similarly, it is very likely
G that after her conversion, the appellant never went ahead and
changed the 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
H respondent no.2 are affiliated to the rival party DMK in some
M. CHANDRA v. M. THANGAMUTHU & ANR. 85
[H.L. DATTU, J.]
capacity or the other as opposed to the appellant who A
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_c.QnJinu~s
to profess Christianity. However the testimony of all the three
witnesses are highly contradictory and hearsay. All the three 8
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 C
professes Christianity.
Requirements of Petition under Representation of
Peoples Act :
51. Section 83 of the Representation of Peoples Act, 1951 o
deals with the contents of an election petition. Section 83 (1)
of the Act reads:-
"An election petition:-
(a) shall contain a concise statement of the material facts E
on which the petitioner relies;
(b) shall set forth full particulars of any corrupt practice that
the petitioner alleges, including as full a statement as
possible of the names of the parties alleged to have F
committed such corrupt practice and the date and place
of the commission of each such practice; and
(c) shall be signed by the petitioner and verified in the
manner laid down in the Code of Civil Procedure, 1908
for the verification of pleadings." G
52. 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 of the circumstances and H
86 SUPREME COURT REPORTS [2010] 11 S.C.R.
A should disclose a definite cause of action. In the absence of
the above, an election petition can be summarily dismissed.
To see whether material facts have been duly disclosed or
whether a cause of action arises, we need to look at the
averment and pleadings taken up by the party.
B 53. In the case of V. S Achutanandan v. P.J Francis [(1999)
2 SCR 99], it was held that failure to plead material facts is fatal
to the election petition and no amendment of the pleadings is
permissible to introduce such material facts after the time limit
prescribed for filing the election petition.
c
54. One cannot file an election petition based on frivolous
grounds. The facts presented must be clear, concise and
unambiguous. All the above cases and provisions, though do
not deal directly with the issues in this case, they go on to
o emphasize that an election result, where the people elect their
representatives cannot be taken lightly. For an election result
to be annulled, there must be positive evidence to prove
illegality of the election. The natural corollary is that the person
who files an election petition, must have a clear and definite
E case, to prove that the election was illegal. Therefore the burden
of proof shall lie on the petitioner filing the election petition.
55. An election petition challenging the election of a
returned candidate on the grounds of corrupt practices is not
a criminal proceeding; but it is no less than a criminal
F proceeding with regard to the proof required to be furnished
to the Court by the Petitioner [See J. Chandrashekara Rao v.
V. Jagapati Rao, 1993 Supp (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
G 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
H petitioner does not qualify the test laid down iri the Evidence
M. CHANDRA v. M. THANGAMUTHU & ANR. 87
[H.L. DATTU, J.]
Act, to make the evidence admissible. It does not inspire any A
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 B
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 evidenc.e
put forward by the appellant is consistent and reliable as it has
relied on the testimony of people who have actually visited the c
house of the appellant or attended her wedding or been in close
proximity with her and her husband's family.
57. Assuming for a moment that the High Court is justified
in shifting the burden of proof on the appellant, we are of the
view that the appellant by adducing cogent and reliable evidence D
has discharged the same. The appellant's testimony is
consistent with the documentary evidence produced by her. The
evidence of Shri Sengaiah (RW 4) and S. Paulraj (RW 7) also
support the facts stated by the appellant. The fact that the
appellant was a trustee of the Mayurarathaswamy Temple at E
Rajapalayam is supported by the testimonies of Shri. P.
Magesh (RW 8) and Shri. K. Paramasivam (RW 9). Though the
appellant has not produced the original conversion certificate,
there is no reason to disbelieve the duplicate that she has
submitted, as the petitioner has failed to provide a reasoned F
rebuttal to the evidence adduced by the appellant, to proof her
case.
Validity of community Certificate & Evidence Act :
58. There is nothing on record to show that the community G
certificate was issued illegally or in contravention of the valid
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 H
88 SUPREME COURT REPORTS [2010] 11 S.C.R.
A certificate is presumed unless 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 proof by
B way of documents or oral evidence was provided to show how
the certificate was granted and what procedure was followed.
It is also pertinent to mention that no one raised any objection
to the appellant filing her nomination for the Assembly elections
in 2006 from the reserved constituency. All the issues have
c been raised after the appellant won the election from the
Rajapalayam constituency. As pointed by the High Court, it is
not necessary to read too much into contributions made into
religious bodies and institutions as it is open for people outside
the particular community also. Hence based purely on the
evidence before this court and the observations made by us in
0
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.
E 59. In light of these findings, we need not go into the other
issues.
60. In the result we allow this appeal and set aside the
impugned order passed by the High Court. No order as to costs.
D.G. Appeal allowed.
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