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The burden of proof

delhi Updated: Sep 21, 2010 01:29 IST
Varghese K George
Varghese K George
Hindustan Times
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Religious conversions are a political action in many cases – sometimes a revolt against restrictive social situations; sometimes a shot at relatively better material surroundings.

In many cases, conversions are prompted by extraneous influences –where the convert is a docile, ill-informed participant. And at least in some cases, conversions happen due to allurement.

The circumstances may differ, but many cases, the issue turns into a political hot potato – leading to bad blood, litigation and, in extreme cases, to violence and loss of lives.

So what happens if a Dalit who had converted to, say Christianity, returns to the Hindu fold? Under what conditions can he/she claim reservations again? Though the matter had been thought to have been settled by the apex court over the last decades, the fine print of conversions and the burden of proof remain unresolved.

Since many Dalits are renouncing Christianity -as Christians cannot claim reservations, and reconversions to Hinduism is part of creating a Hindu political identity - the SC judgment of September 7 has implications for policy and politics. "Legal and social situations prompt Dalits into adopting a dual identity. They may participate in rituals or caste festivals to claim entitlements. They may also attend church for spiritual succour," says Paul Diwakar, general secretary of National Campaign for Dalit Human Rights.

What the Supreme Court said: A 1950 presidential notification under Article 341 of the Constitution says, "No person who professes a religion different from the Hindu, the Sikh or the Buddhist religion shall be deemed" scheduled castes. The SC judgment emphasised on the word "profess" to interpret who is eligible for reservations.

"…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…The way we understand the order 1950…in order to claim the benefits of reservations…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 …. from the Hindu, the Sikh or the Buddhist," the SC said.

Therefore, M. Radha, born a Christian, but 'professed' Hinduism and lived by her caste, was eligible to be elected from a constituency reserved for SCs, ruled the apex court.

Whether one is professing a particular religion would be decided by her acceptance in the community, said the apex court, overturning the judgment of the Madras HC, which had disqualified her.

Kerala HC's view: Weeks before the SC judgment, the Kerala High Court, in the election petition against five-time MP Kodikkunnil Suresh, interpreted the provisions along the same lines, but put the onus of proof on Suresh.

Suresh, too, was born a Christian, but had converted to Hinduism. The HC concluded that evidence presented before it did not prove that Pulaya/Cheramar community had accepted Suresh as one of their own. "Usually, the onus of proving the allegations is with the petitioner, but since Suresh's school records showed him to be a Christian, the HC shifted the onus to him," said K Harialal, Suresh's lawyer.

In the Radha case, the Madras HC had put the onus on her to prove her caste and religion, but the SC ruled that it was for her opponents to prove that she was still a Christian.

In other words, the person who charges another with not being a scheduled caste must prove that point, and not the person who is charged.

So, who's a Hindu?

In the absence of a central religious authority or codified, universal religious practice, the legal definition of being a Hindu has been subject to various interpretations.

In its latest judgment, the SC has suggested an answer. “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 Hinduism, and he does all that is required by the practices of Hinduism in the region or by the caste to which he belongs, and he is accepted as a Hindu by all… persons around him.”


A matter of interpretation

“...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 of the caste accept him as a member. A Mahar or a Koli or a Mala would not be recognised as anything but a Mahar or a Koli or a Mala after reconversion to Hinduism and he would suffer from the same social and economic disabilities from which he suffered before he was converted to another religion.” — Supreme Court order dated September 7, 2010 quoting from its own 1976 judgment.


But proving conversion still remains a grey area. Sample this:
CASE 1
On July 27, 2010, Kerala HC set aside the election of AICC secretary K. Suresh “Prove your SC status” : The Kerala HC set aside the election of AICC Secretary Kodikkunnil Suresh to the current Lok Sabha from Mavelikkara constituency, reserved for Scheduled Caste (SC). The court said Suresh had failed to prove that he was an SC Pulaya/Cheramar as claimed in his caste certificate. School records showed his religion as Christian. Suresh argued that his parents’ religion, Christianity, was thrust on him and after coming of age, he had converted to Hinduism and announced it through a notification. He said his parents had been SC before conversion and so, he should also be considered an SC on conversion to Hinduism. The HC asked him to prove his claims, by shifting the burden of proof from the petitioner who challenged Suresh’s SC status.

CASE 2
On September 7, 2010, SC upheld election of M. Chandra of AIADMK “What you practice is your caste and religion”: On September 7, the SC upheld the 2006 election of M Chandra of AIADMK from Rajapalayam assembly constituency in TN, which was set aside by Madras High Court. Her schools records showed her as Christian, but Chandra claimed she converted from Christianity to Hinduism and claimed that she was a Pallan Scheduled Caste. The Madras High Court said she failed to prove her claims. The SC ruled that the burden of proof should not have been on her. The petitioner who challenged her SC status and alleged that she continued to be Christian should have been asked to prove his claims.