The burden of proof
Varghese K George, Hindustan Times
September 21, 2010First Published: 01:27 IST(21/9/2010)
Last Updated: 01:29 IST(21/9/2010)Share more...1 Comment
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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.
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