1959

426 SUPREME COURT REPORTS [1960(1}]

SHRI V. V. GIRI

v.

DIPPALA SURI DORA AND OTHERS

(B. P. SINHA, JAFER IMAM, J. L. KAPUR,

P. B. GAJENDRAGADKAR and K. N. WANCHOO, JJ.)

Election-Double member constituency-Reserved seat-Sched­

uled Tribe candidate for reserved seat, if can be declared elected to

general seat--Provisions permitting sud• course, whether 11ltra vires

-Hindu Law-Member of Scheduled Tribo or Caste-Whcncan

attain higher caste--Representation of the People Act, I95I (43 of

I95I), s. 54(4)-Delimitation Commission Act, z952 (BI of z952). s. 8.

In a double member Parliamentary constituency one seat

was reserved for

the scheduled tribes and the other was general.

Four persons filed their nominations for the election, Gr and G 2

for the general seat and

Sr and Sz for the reserved seat. At

the polls the number of votes received by the candidates were

in

the following order:

Sr, Sz, G1 and Gz. In accordance with

the provisions of s. 54(4) of the Representation of the People Act,

1951, Sr was declared elected to the reserved seat and S2, who

had received

the largest number of votes out of the remaining

candidates, was declared elected to

the general seat. Gr filed

an election petition for a declaration

that the election of

S2 was

void and for a farther declaration that he had himself been duly

elected to

the general seat. The petition was based on three

grounds, viz.,

(i) that upon a proper. interpretation of s. 54(4) a

candidate who had filed his nomination for the reserved seat

could not be declared elected to the general

seat; (ii) that if the

interpretation be otherwise then s. 54(4) was

11/tra vires; and

(iii) that S2 had ceased to be a member of ··a scheduled tribe at

the relevant time and his nomination was improperly accepted.

Held,. (Kapur, J., dissenting) that, Sz was properly and

validly declared elected. The provisions of the Constitution and

of the Act show that the election in a double member constitu­

ency was held for the whole constituency and not for the seats

and a candidate who had filed nomination as a member of the

scheduled tribes was entitled to contest for both the seats. On

a fair and reasonable construction of s. 54(4) of the Act there

could be no doubt

that in a case like the present, after

S1 was

declared duly elected to the reserved seat,

the votes secured by

the remaining three candidates had to be considered before

de­

claring the election for the general seat. A member of the

scheduled tribe

or caste did not forego his right to seek

elec­

tion to the general seat merely because he availed himself of the

additional concession of standing for the reserved seat by making

the prescribed declaration for that purpose. It was not neces­

sary for him to file two nomination papers for the two seats.

Section 54(4)

of the Act did not offend Art. 14 or Art.

330 of

the Constitution and waii not uncon•titutional.

S.C.R. SUPREME COURT REPORTS 427

Held, further, that the appellant had failed to establish that z959

S2 had ceased to be a member of the scheduled tribe and had

become a Kshatriya. Whatever may have been the origin of v. V. Gfri

Hindu castes ,and tribes in ancient times, gradually castes came to "·

be based on birth alone. A person who belonged by birth to a Dippala Suri Dora

depressed caste or tribe wouid find it very .difficult, if not impos-and Others

sible, to attain the status of a higher caste by virtue of his volition,

education, culture and status. The caste status of a person had to

be determinedin the light of the recognition received by him from

the members of the caste into which he sought an

entry ; unilateral

acts of such a person asserting a higher status were not enough

to

establish the higher status. It is to be hoped that this position

will change,

and in course of time the cherished ideal of castless

society truly

b.ascd on social equality will be attained under the

powerful impact of the doctrine of social justice and equality pro-

claimed by the Constitution

and sought to be implemented by the

relevant statutes and as a result of the spread of secular education

and the growth of a rational outlook and of proper sense of social

values ;

but at present it would be unrealistic and utopian to ignore

the difficulties which a member

of the depressed tribe

or ai.ste

has to face in claiming a higher status amongst his co-religionists.

Per Kapur, J.-The election of S2 to the general seat was not

valid. When a member of the scheduled tribe or caste offered

himself for election

to a reserved seat he could be elected only to

that seat and not to the general seat. The provisions of the Cons­

titution

and of the Act show that the election in a constituency

was for filling

of a seat in the constituency and not for a consti­

tuency.

When a candidate offers himself for election in a consti­

tuency, he does so for election to fill a seat in the constituency.

Therefore, if a candidate wanted to contest both the seats he had

to

file two nomination papers one for the general seat and the

other for the reserved seat and he had to make two deposits.

Section

8(2) of the Delimitation Commission Act,

1952 destroyed

the effect of s.

54 of the Act.

Caste in Hinduism had

its origin not on the basis of birth but

of

gima, karma and subhavana (quality, actions and character).

Caste is nothing

but division of labour. Hinduism might

have

become static at one time; it is no longer so and it is wrong to

say

that caste is dependant upon birth and not on karma i.e.

action.

S. 2 had by his actions raised himself to the position of a

Kshatriya and he was no longer a member of the scheduled tribe

or caste.

CIVIL APPEI.LATE JURISDICTION: Civil Appeal

No. 539 of 1958.

Appeal

by special leave from the judgment and

order

dated March 13, 1958 of the Andhra Pradesh

High Court in Special Appeal No. 4of1957, arising out

of the judgment and order dated November 18, 1957,

428 SUPREME COURT REPORTS [1960(1)]

I959 of thll Election Tribunal, Hyderabad in Election Peti­

tion No. 83of1957.

Y. Y.Giri

v. N. 0. Chatterjee, A. N. Sinha and T. Satyanarayana,

DippalaSu'iD°'• for the appellant. ·

GM Others R nJi/., d ha . .

P. ama R~

11 an R. Ma lingaiyer, for respondent

No. I.

S.S. Shukla, for respondent No. 2.

1959. May 20. The judgmentofB. P. Sinha, Jafar

Imam, P. B. Ganjendragadkarand K.N. Wanchoo, JJ.

was delivered by P. B. Gajendragadkar, J. J. L.

Kapur, J. delivered a separate judgment.

G•jl'illl,•gadka,J. GAJENDRAGADKAR J.-This appeal by special leave

arises from

an election petition filed by

Mr. V. V. Giri

(hereinafter called

the appellant) in which the validity

of the. election of Mr. Dippala Suri Dora (hereinafter

called respondent

1)

w:Ls challenged. The Parliamentary

Constituency of Parvatipuram in the State of Andhra

Pradesh is a double-member constituency; one seat is

reserved for

the scheduled tribes and the other is

general.

In the General Election to the House of the

People held in 1957 four candidates had been

nomi­

nated from the said constituency. The appellant and

Mr. B. Satyanarayana Dora (hereinafter called res­

pondent 2) were adopted by the Congress Party, while

respondent 1

and Mr.

V. Krishnamoorthy Naidu

(hereinafter called respondent 3) were the candidates

of the Socialist Party. For this constituency polling

took place between

February 25 and March 19, 1957, and the counting of votes disclosed that the appellant

and the three respondents had securedl,24,039, 1,24,604,

1,26,792 and 1,18,968 votes respectively. The result

of the election was declared on March 19, 1957. It was

announced that respondent 2 had been elected to fill

the reserved seat and respondent I the general seat.

On April 16, 1957, the appellant filed the present elec­

tion petition No. 83of1957 challenging the validity

of respondent l's election. He alleged that respondent I

had offered himself as a candidate for the reserved

seat and as such he was not entitled to be elected for

the general seat. In the alternative he urged that

8.C.R. SUPREME COURT REPORTS

respondent 1 wa.s not a. member of the scheduled tribe zgsg

a.t the ma.teria.l time a.nd so the deola.ra.tion ma.de by

him in that beha.lf wa.s fa.lse. According to the appel-v. ~.Gin

la.nt respondent l's nomination ha.d, therefore, been Dippala S•ri Dor11

impropiirly a.ccepted a.nd it ha.d ma.teria.lly affected the ...a. 0111.rs

election. That is why the a.ppella.nt cla.imed a. two-.

fold decla.ra.tion. He wanted

the tribunal to decla.re

Ga1""''

11

'"""" J.

that the election of respondent 1 under the Representa.-

tion

of the People Act, 1951 {Act 43 of 1951) (herein-

after called

the Act)

wa.s void a.nd that he had himself

been

duly elected to the House of the People from the

Pa.rva.tipura.m Parlia.menta.ry Constituency for the

genera.I

a.nd non-reserved sea.t. These a.llega.tions were

denied by respondent

1.

Broadly

sta.ted the ma.in pa.rt of the a.ppella.nt's

case rested on two grounds. He relied on the fact

that both the Congress a.nd Socia.list Parties ha.d adopt­

ed two ca.ndida.tes ea.ch, one for the reserved sea.t-a.nd

the other for the genera.I seat. Respondent 1 had been

a.dopted for

the reserved

seat and in the nomination

forms filed on

his behalf he

ha.d ma.de the requisite

decla.ration

that he

was a member of the scheduled

tribe. He conducted his election campaign on

the be.sis tha.t he was a. candidate for the reserved seat a.nd

the voters must ha.ve voted for him on the sa.me basis.

If it is found that his rive.I candidate for the sa.id

reserved sea.t (respondent 2) secured a. larger number

of votes and so he wa.s decla.red elected to fill the said

sea.t, it is not open to respondent 1 to cla.im election

for

the genera.l seat. If

a candidate offers himself for

one seat, how can he claim to be elected for the other,

asks the appellant.

The appellant concedes

that the reservation of sea.ts

for the scheduled castes or tribes is

a. special concession

shown to

the members of the said castes and tribes in

view

of the

fa.ct that they a.re educationally socially ·

and financially very ba.ckwa.rd ; it is also conceded

that members of the scheduled castes or tribes a.re

entitled to contest election for the genera.I seat; but

the argument is that a member of a scheduled tribe

must make up his mind and decide which seat he wishes

to contest. If he wants to contest the general seat he

430 SUPREME COURT REPORTS [1960(1}]

z959 may do so and in that event he should not make the

. . prescribed declarations on his nomination form; on the

v. v. Gin other hand, if he wants to contest the reserved seat he

Dippala~uriDora should elect to do so, make the necessary declaration

and others and then concentrate his attention on the reserved

seat.

Having once made his election he cannot

subse­

Gajendragadk•r J. quently fall back upon his right to he elected for the

general seat. Thus presented the argument no doubt

appears to be plausible and even attractive.

Respondent

1, however, dispute the validity of this

contention. His case is that the reservation of seats

is intended as

an additional and special concession to

the

scheduled castes or tribes. That, however, does

not affect the right of the members of the said castes

or tribes to claim along with the other citizens of the

CYmtry the right to be elected to the general seat. In

other words, according to respondent 1, a member of

the scheduled tribe is entitled to claim election either

to the reserved seat or to the general seat in a double­

member constituency, where one seat is reserved for

the scheduled triues or castes. ·when a member of the

scheduled tribe makes a declaration about his status

on his nomination form it merely means that he claims

the additional benefit

of being eligible for election to

the reserved seat. If in the fight for the reserved

seat his rival candidate defeats him,

that cannot

de­

tract from, or affect, his right to claim election to the

general seat; and if the voters in the constituencies

have expressed their confidence in him

by putting him

at

the top amongst the remaining candidates, he is

entitled

to claim election to the said general seat. The

object of reserving seats obviously is to create

confid­

ence in the minds of the hackward castes and tribes

and

to give them an assurance about their welfare and

future in the political set up of the country. This

object necessarily implies that the members of the said

castes

and tribes should have a double opportunity of

seeking election from a double-member constituency.

B,espondent

1 does not concede that he contested the

election solely for the reserved seat. It is admitted on

his behalf that he did make the necessary declaration

and he may have brought it to the notice of the voters

S.C.R. SUPREME COURT REPORTS 431

-

that he was a member of the scheduled tribe. That .r959

was inevitable since he was claiming to be elected for

the reserved seat. It is, however, urged that if in law v. v~.Giri

election took place for the constituency as a whole, DippalaSuriDora

and not for separate seats, the fact that his nomina-and Others

tion paper referred to " the reserved constituency" -

d

f

' · t t d · th f ·h. Gajendragadkar J

an some o ms sta emen s urmg e course o is ·

election campaign mentioned the fact that he was ~~

member of the scheduled tribe would not prcjurliciaJly

affect his

right to claim election for the general seat.

·

Incidentally respondent 1 claimed that the declaration

of his election to the general seat in fully consistent.

with

the express provisions of s. 54(4) of

the Act,

whereas

the appellant pleaded in reply that the con-

struction sought to be placed upon the provisions of

s. 54(4) by respondent 1 was unreasonable and if not

the said provision was

ultra. vires.

On the three major points which thus arose for deci­

sion in the present election petition the Election

Tribunal at Hyderabad and the High Court of Andhra.

Pradesh have differed. The Tribunal upheld the

appellant's contentions, mad0 the two declarations

claimed

by him and allowed his election petition

w·ith

costs. On appeal to the High Court the point.s made

by respondent 1 have been accepted,

the findings ma.de

by the tribunal and the declarations granted by it

have been reversed and the

appellant.'s election peti­

tion dismissed with costs throughout. The appellant's

application for a certificate was dismissed by

the High

Court. Thereupon he applied to this Court and

obtained special leave to appeal. That is how this

appeal has come before us.

What then is the true constitutional and legal

posi­

tion with regard to the election to the House of the

People from a double-member constituency where one

seat is reserved for

the members of the scheduled

tribes

or castes ? The answer to this question would

depend upon

the effect of the relevant provisions of

the Constitution and the Act respectively. Let us

first examine

the relevant articles of the constitution.

Article 325 provides

that there shall be one general

electoral roll for

every territorial constituency for

432 SUPREME COURT REPORTS [1960(1)]

-

1959 election to either House of Parliament and that no

. . person shall be ineligible for inclusion

in

any such roll

v. Y. Gin or claim to be included in any such electoral roll for

DippaJav~vriDora any such constituency on grounds only of' religion,

.,;,, Others ra.ce, caste, sex or any of them. Article 326 which

dee.ls inter alia with the elections to the House of the

Gajfflllracadkar J. People la.ys down tha.t the said elections shall be on

the basis

of adult suffrage, that is to say, every person

who is a citizen

of India

and who is not less than

21 years of .age at the relevant date and is not other­

wise disqualified under the Constitution or any law

made

by the appropriate Legislature on the grounds

specified shall be entitled to be registered

as a voter at

any such election. It is thus clear that the electoral

roll is prepared on a purely secular basis without any

reference to religion, race, caste or sex and that the

qualification for being included as a voter on the said

electoral roll is likewise wholly secular and of general

application

to all citizens in the country.

Let us then refer to

the articles that

deal with the

composition of the House of the People and qualifica­

tion for membership of Parliament. Article 81 (1)

provides that subject to the provisions of Art. 331 the

House of the People shall consist inter alia of not more

than 500 members chosen by direct election from

territorial constituencies

in the States. This article

contemplates the division

of the States into territorial

contituencies

and it provides for the election of

500

members from these constituencies to the House of

the People. Article 84 deals with the question of

qualification and it provides that a person shall not be

qualified to be chosen to fill a seat in the Parliament

unless he is (a) a citizen of India, (b) in the case of a

seat in the House of the People not less than 25 years

of age, and (c) possesses such other qualifications as

may be prescribed in that behalf by or under any law

made by Parliament.

It is by virtue of Art. 84(c) that the Parliament has

passed the two relevant statutes. They are the Re­

presentation of the People Act, 1950 (Act 43 of 1950)

and the Act. We will presently refer to the relevant

provisions

of the Act. Meanwhile we would like to

S.C.R. SUPREME COURT REPORTS 433

refer

to another article of the Constitution which is

i9

5

9

very important. It is Art. 330. It occurs in Pt. XVI v. v. Giri

of the Constitution which deals with special provisions v.

relating to certain classes. It provides for the reserva. Dippala. Suri Dora

tion of seats for scheduled castes and scheduled tribes and Others

in the House of the Pe?ple. Article 331 lays down that Gajend-;;:;;.dkar J.

seats shall be reserved m the House of the People for

the three categories enumerated in (a), (b) and (c). In

the present case we are concerned with the second

category which deals with

the scheduled tribes.

Article

330(2) provides inter alia that the number of

seats reserved in any State for the scheduled tribes

under sub-Art.(l) shall bear as nearly as may be

the same proportion fo the total number of seats allot-

ted to that State in the House of the People as the

population of the scheduled tribes in the State or part

of the State as the case may be in respect of which

sea.ts

are so reserved bears to the population of the

State. In providing for the members of the scheduled

tribes

the special concession by way of reservation of

seats the Constitution has adopted the fair, just and

equitable method of fixing the number of the said

reserved seats on

the basis of the proportion mentioned

in Art.

330(2). Whilst we a.re referring to this article

we

may incidentally mention Art. 334 which provides

that the reservation of seats provided by Art.

330 shall

cease to have effect on the expiration of a period of ten

years from the commencement of the Constitution

subject

to the proviso.

Thus it is clear that election to the House of the

People even from

a,, double-member constituency where

one seat is reserved for

the members of the scheduled

tribes

in one,

and though the Constitution shows just

anxiety to afford necessary protection to the members

of the scheduled tribes, it deliberately refused to adopt

the system of separate ele<'torates. The constituency is

one

and election is held to the said constituency from

one joint electoral roll prepared on

the basis of

qualifi­

cations which are of general and uniform application.

In regard to. double-member constituencies like

Parvatipuram the Constitution has not even adopted

the course of providing for a special constituency

5~

434 SUPREME COURT REPORTS [1960(1)]

'959 confined to the members of the scheduled tribe. All that

is done is to provide for the reservation of seats for the

v. v~.Giri members of the said tribes or castes in the manner

Dippala Suri Dora already indicated. Even for the reserved seat all

and Othm voters in the constituency are entitled to vote. The

reservation of a seat in a double-member constituency

Gajendr•gadkar J. cannot, therefore, affect the main basic position that

the constituency is one and for returning representa­

tives to the House of the People it is the same joint

electorate that goes to the poll.

Let us now proceed to consider the position under

the relevant provisions of the Act. It is necessary to

begin with the definitions of parliamentary constituency

and election. Section 2(f) of the Representation of the

People Act, 43 of 1950, defines a "parliamentary

constitutency" as meaning a constituency provided by

law for the purpose of elections to the House of the

People; whereas s. 2(d) of the .A:ct defines "election"

to mean an election to fill a seat or seats inter alia in

House of Parliament. These definitions show that it

is a parliamentary constituency that sends the represen­

tatives to fill the seats in the House of the People.

Elections are held from such constituencies and

candidates declared duly elected fill the seats in the

House of Parliament to which they are elected. Section 4

prescribes qualification for membership

of the House

of the

People. Section 4(b) provides that a person

shall

not be qualified to be chosen to fill a seat in the

House of the

People unles~ in the case of a seat reserv­

ed for the scheduled tribes he is a member of any of

the scheduled tribes and is an elector for any parlia­

mentary constituency. This section expressly provides

what was clearly implicit in the relevant articles of the

Constitution that before a person can claim to be elect­

ed to fill a seat reserved for the scheduled tribes he

must be a member of the said tribes besides being an

elector for the parliamentary constituency in question.

Section 32 deals with the nomination of candidates for

election

and it provides that any person

may be nomin­

ated as a candidate for election to fill a seat if he is

qualified

to be chosen to fill a seat under the

provi­

sions of the Constitution ;i,nd the Act. The next section

..

S.C.R. SUPREME COURT REPORTS 435

to consider is s. 33. It deals with the presentation of r959

nomination papers and prescribes the requirements for v v c· .

a valid nomination. Section 33(2) is relevant for our · ~. •ti

purpose. It provides that any constituency where any Dippala Suri Dora

seat is reserved a candidate shall not be deemed to be and Others

qualified to be chosen to fill that seat unless his nomin-, -

ation

paper contains a declaration by him specifying

Ga;endragadkar J.

the particular tribe of which he is a member and the

area in relation to which the tribe is a scheduled tribe

of the State. Section 33(6) lays down that nothing in

this section shall prevent any candidate from being

nominated

by more than one nomination paper for

election in

the same constituency. The effect of s. 33(2)

is that unless a member of the scheduled tribe makes

the required declaration he would not be entitled to

claim election to the reserved seat. In other words, if

a member of the scheduled tribe does not want to be

considered for election to

the reserved seat he need

not make the said declaration; and in that case he

would be entitled to contest

the election only for the

general seat. But it does not follow that if a schedul-

ed tribe candidate makes the said declaration he forfeits

his right

to contest for the general seat. It is necessary

to point out at this stage that the prescribed nomin-

ation paper

(F'orm 24) is common to all the candidates.

In regard to the candidates contesting for the reserved

seat, however,

the form prescribes the declaration

which

they are required to make. In the matter of

deposits required by s. 34 another concession is made in

favour

of the members of the scheduled castes or

tribes ; whereas in the case of an election from a

parliamentary constituency a candidate is required

to

make a deposit of Rs.

500 the amount is fixed at

Rs. 250 in the case of members of scheduled castes or

tribes.

It is significant that this concession is not

confined to members of the scheduled tribe contesting

the election only for the reserved seat. It is available

to them even if they want to contest only for the

general seat.

Section 35 requires a notice of nomina-

tions

and a time and place for their scrutiny to be

published ;

and s. 38 requires a list of contesting candi-

dates

to be published. The two prescribed forms for

436 SUPREME COURT REPORTS [1960(1)]

'959 the said notices are Forms 3A and 4 ; they make no

reference to the two respective seats and give the

V. V. Giri

v. particulars about all the candidates in the respect-

Dippala St1ri Dora ive columns. It is true that in col. (6) of ]'orm

and Otilers 3A particulars of caste or tribe of candidates belonging

G . -k to scheduled castes or tribes are required to be men-

•J•naragad •r f. tioned. That is consistent with the requirement of

s. 33(2). It would thus be seen that the scheme of the

relevant provisions of the Act, like the scheme of the

relevant articles of the Constitution, is clear. The

election to the House of the People from a double­

member constituency is held as an election from the

whole of the constituency as such. It is on that basis

that the nomination papers are required to be filed.

The notifications about the nominations are published

and the list of the validly nominated candidates is

announced on

the same basis. The counting of votes

is similarly made

by reference to all the candidates.

It is only when the result of the election is prepared

for declaration that the votes of candidates who have

made the prescribed declarations are first taken into

account

and the result of the election in respect of the

reserved seat is first determined, and then the votes

secured

by the remaining candidates are ta.ken into

account and the result of the election for the other

general seat is determined and declared.

Section 63 of the Act would also assist us in deci­

ding the point in dispute between the parties. Sec­

tion 63 ( 1) pro".ides for the method of voting and it

lays down that in plural-member constituencies other

than Council constituencies every elector shall have

as many votes as there are members to be elected but

no member shall give more than one vote to any one

candidate.

It is not disputed that voters in a

double­

member constituency are not bound to vote in refer­

ence to the two seats. If the Act had intended that

the election in such a consituency should take place

by reference to the two respective seats, it would have

provided for voting by the electors on that basis, and

would have required the voters to cast their two votes

respectively

by reference to the two seats.

Section

63(1) on the other hand allows voters to cast their two

S.C.R. SUPREME COURT H.EPORTS 437

votes to any two candidates of their choice whether · r959

both of them claim to be elected to the general seat or

I

V. V. Giri

to the reserved seat or one of t iem claims one seat v.

and other claims the other. This method of voting is Dippala Suri Dora

inconsistent with the appellant's case that the election and Others

to the double-member constituency is held· seat.wise. -

. h . ll b , h .

Gajendragadkar ], Sect10n 54(4) emp atwa y rmgs out t e same posi-

tion. Section 54 (1) provides that it shall apply in

relation to any election in a constituency where

the

seats to be filled include one or more seats reserved

for

the scheduled castes or scheduled tribes.

Sub­

section (4) reads thus:-

" If the n~mber of contesting candidates quali­

fied to be chosen to fill the reserved seats exceeds

the number of such seats, and the total number of

contesting candidates also exceeds the total number

of seats to be filled, a poll shall be taken ; and after

the poll has been taken,

the returning officer shall

first declare those who, being qualified

to be chosen

to fill the reserved seats, have secured the largest

number

of votes, to be duly elected to fill the

reser­

ved seats, and then declare such of the remaining

candidates as have secured

the largest number of

votes to be duly elected to fill the remaining seats."

On a fair and a reasonable construction of this provi­

sion there can be no doubt that in a case like the

present, after respondent 2 was declared duly elected

to the reserved seat, the votes secured by the remaining

three candidates

had to be considered before

decla­

ring the election for the unreserved scat and that is

precisely what the returning officer has done when he

declared

that respondent I had been duly elected to

the said seat. The illustration to this sub-section

makes this position absolutely clear. This is how

the

illustration reads:-

" At an election in a constituency to fill four

seats

of which two are reserved there are six

contesting candidates

A, B,

0, D, E an4 P, and they

secure votes in descending order, A securing the

largest number, B, C and D are qualified to be

chosen

to fill the reserved seats, while A, E and

.I!'

438 SUPREME COURT REPOR'l'S [1960(1)]

z959

V. V. Giri

are not so qualified. The returning officer will first

declare B

and

C duly elected to fill the two reserved

seats,

and then declare A and D (not A and E) to

Dippala

v~uri Dora fill the remaining two seats."

and Others In our opinion s. 54(4) and the illustration are wholly

. - consistent with the relevant provisions of the Con­

Ga;endragadkar J. stitution and of the Act.

Whilst we

a.re dealing with s. 54 we may incidentally

refer

to the appellant's argument based on s. 6(2) (c) of

the Delimitation Commission Act, 1952 (81 of 1952)

which provides

that in every two-member constituency

one seat shall be reserved either for

the scheduled

castes

or for the scheduled tribes, and the other seat

shall

not be so reserved. It is urged that in view of this

provision the case contemplated by the illustration to

s. 54 (4) is not likely to occur any more and in that

sense the illustration has become otiose. That may be

true.

But .even so the significance of the illustration

lies in

the fact that it clarifies and explains concretely

how

the reservation of seats for the depressed castes

and. tribes will actually work

out in elections in the

relevant constituencies.

There is another argument which

may be noticed.

It was faintly suggested by the

·appellant that s. 54 (4)

is ultra vires since it is inconsistent with Arts. 14

and 330 of the Constitution. One has merely to recall

the provisions of Art. 15 (3) and·(4) to reject the argu­

ment thats. 54(4) offends against Art. 14. As regards

Art 330 it is obvious that the reservation of seats as

therein specified is intended

to guarantee a minimum

number

of seats to the scheduled castes and tribes;

there­

fore if members of the said castes and tribes secure

additional seats by election

to general unreserved

seats there would be no repugnancy

at all. There is

no substance

in the contention that s. 54 (4) is ultra

vires.

There is one more section of the Act to which

refe­

rence must be made. It is s. 55. For the avoidance

of doubt this.section declares that a member of the

scheduled castes or scheduled tribes shall not be dis­

qualified to hold the seat not reserved for members

of those castes or tribes if he is otherwise qualified to

S.C.R SUPREME COURT REPORTS 439

hold such seat under the Constitution and the Act. r959

If the appellant's contention is upheld then the provi-v v a· .

sions of s. 55 would be inapplicable to a member of · ~ "'

the scheduled tribe solely because he has made the Dippala s~ri Dora

prescribed declaration in his nomination form in order and Others

to claim the benefit of the concession of the reserved

seat in his constituency. We see no justification for

Gajendragadkar J.

adopting such an artificial and restricted construction

of s. 55. In our opinion s. 55, like s. 54(4), is consist-

ent with the other relevant provisions of the

Constitu-

tion and the Act. A member of the scheduled tribe is

entitled

to contest for the reserved seat and for that

purpose he can and must make the prescribed declara-

tion; but it does not follow that because he claims the

benefit of the reserved seat and conforms to the statu-

tory requirement in that behalf, he is precluded from

contesting

the election, if necessary, for the general

seat. Once

it is realised that the election is from the

constituency

ljl.S a whole and not by reference to two

separate

and distinct seats there would be no difficulty

in accepting the view taken

by the returning officer

when he declared respondent 1

to have been duly

elected for

the general seat.

It is true that some articles of the Constitution and

some sections of the Act refer to seats in connection

with election

to the House of the People.

]'or instance,

when Art.

81 (2) (b) provides for the same ratio

throughout the

State between the population of each

constituency

and the number of seats allotted to it, it

does refer to seats, but in the context the use of the

word

" seats" was inevitable. Similarly Art. 84

which lays down

the qualification for the members of

Parliament begins by saying that a person shall not be

qualified

to be chosen

" to fill a seat" in Parliament

unless he satisfies

the tests prescribed by its els. (a),

(b) and (o). Here again the expression

"to fill a seat"

had to be used in the context. The same comment

can be made

about the use of the 'word

" seat " in

Arts. 101 (2) and in 330. There is no doubt that when

a candidate is duly elected from

any constituency to

the House of the People he fills a seat in the House as an elected representative of the said constituency ;

440 SUPREME COURT REPORTS [1960(1)]

'959 and. so the expression "filling the seat " is naturally

used whenever the context so requires.

v. v~.Giri The position in regard to the sections of the Act

DippalaSuriDora which.use the word "seat" or the expression "fill the

am! others seat" is exactly similar. Section 32 of the Act says

-

that any person may be nominated as a candidate for

Gajendragadkar J. election to

"fill a seat" if he is qualified in that behalf.

This section does

not mean that the nomination of a

person as a. candidate for election is for a

seat; such

nomination is for

the constituency. After the election

is over

the elected candidate

is qualified to fill a seat

in

the House of the

People to which he is elected. It

is in that sense that the .expression " a candidate for

election to fill a seat" is used in this section. The use

of the same expression in ss. 33(2), 53(2), 54, and 55

bears

the same interpretation. The use of the said

expression

or the reference to

"seat" in some of the

articles of the Constitution or the sections of the Act

does not, therefore, mean

that election to the. House

of the

People from a double-member constituency is

held

not for the constituency as a whole but by

refer­

ence to the two seats.

There is no

doubt that in the case of double-member

constituencies recognised political parties usually

adopt

two candidates, one for the general seat an.d the other

for the reserved seat; and it does appear that under

the relevant statutory order issued by the Election

Commission the symbol reserved for the

party is

allotted to

both such candidates with the only

differ­

ence that the symbol allotted to the scheduled caste or

the scheduled tribe candidate of the party is the

particular symbol enclosed within a thick black circle.

This order has been issued for convenience in order to

enable the very large number of illiterate and unedu­

cated voters to identify the political affiliations of the

candidates for election; and to show which of the

candidates are eligible for the reserved seat; but the

said order cannot affect the nature of the election nor

does it purport to do so. Similarly a candidate who

has made

the prescribed declaration under s. 33 may

withdraw his candidature under s. 37 which would

mean

that he is no longer contesting any seat in the

S.C.R. SUPREME COURT REPORTS 441

constituency ; but that again cannot justify the infer- z95f

ence that his candidature was in regard to a reserved

seat for which election was seperately intended

to be v.

~.Girl

held. In fact, in regard to a double-member con-DippalaSuriDora

stituency election recognises no compartments at all ; and Others

it is one general election with reservation of seats ;

that is all. Gajmdraiadkar J.

It was then contended by the appellant that even if

it may be open to a member of the scheduled tribe to

seek election either for the reserved seat or failing that

for the general seat he ought to file two nomination

papers in

that behalf. In our opinion this contention

is

not wellfounded. It is conceded that there

is no

provision for

the presentation of two nomination

papers for two different-seats

in the same

constituency.

Indeed such an assumption would be inconsistent with

the basic character of the election from a double­

member constituency. In our opinion, the true posi­

tion is'that a. member of a scheduled caste or tribe

does

not forego his right to seek election to the

general seat merely

because he avails himself of the

additional concession of the reserved seat by making

the prescribed declaration for that purpose. The claim

of eligibility for the reserved seat does not exclude the

claim for the general seat ; it is an additional claim ;

and both the claims have to be decided on the basis

that there is one election from the double-member

constituency.

In this connection we may refer by way of analogy

to the provisions made in some educatio'nal institutions

and universities whereby in addition to the prizes and

scholarships awarded on general competition amongst

all

the candidates, some prizes and scholarships are

reserved for candidates belonging

to backward

commu­

nities. In such cases, though the backward candidates

may try for the reserved prizes and scholarships, they

a.re not precluded from claiming the genera.I prizes and

scholarships by competition with the rest of the candi­

dates. We are, therefore, satisfied that the High

Court was right in rejecting the appellant's contention

that respondent 1 could not have been validly elected

56

442 SUPREME COURT REPORTS [1960(1)]

r959 for the general seat from the constituency of Parvati-

v v G'. puram.

· · '" That takes us to the alternative contention raised

Dippala~uriDora by the appellant against the validity of respondent l's

and others election. That contention is that respondent 1 had

ceased to be a member of the scheduled tribe at the

Gajendragadkar J. material time because he had become a kshatriya. In

dealing with this contention jt would be essential to

bear in mind the broad and recognised features of the

hierarchical social structure prevailing amongst the

Hindus. It is not necessary for our present purpose

to trace the origin and growth of the caste system

amongst

the Hindus. It would be enough to state

that whatever may have been the origin of Hindu

castes and tribes in ancient times, gradually castes

came

to be based on birth alone. It is wellknown that

a person who belongs by birth to a depressed caste or

tribe would find it very difficult, if not impossible, to

attain the status of a higher caste amongst the Hindus

by virtue of his volition, education, culture and status.

The history

of social reform for the last century and

more has shown how difficult it is to break or even to

relax the rigour of the inflexible and exclusive

charac­

ter of the caste system. It is to be hoped that this

position will change, and in course of time the

cherished ideal of casteless society truly based on social

equality will be

attained under the powerful impact of

the doctrine of social justice and equality proclaimed by

the Constitution and sought to be implemented by the

relevant statutes and as a result of the spread of

secular education and the growth of a rational outlook

and

of proper sense of social values; but at present it

would be unrealistic and utopian to ignore the

difficul­

ties which a member of the depressed tribe or caste

has

to

face in claiming a higher status amongst his co.

religionists.

It is in the light of this background that

the alternative plea of the appellant must be considered.

The evidence adduced

by respondent 1 shows that

all the documents from 1885 to 1928 consistently

described him

as a Mukka Dora or a member of the

scheduled tribe. The appellant has, however, produced

documentary evidence which indicates

that from 1928

S.C.R. SUPREME COURT REPOR.TS 443

onwards respondent 1 has described himself and the r959

members of his family as beloncting to the kshatriya G' ·

I!> • v. v. '"

caste. Oral evidence led by the appellant is intended v.

to show that respondent 1 has for some years past Dippala Suri Dora

adopted the customs and the rituals of the kshatriya and Others

caste. It shows that marriages in the family of -

respondent 1 are celebrated as

they would be amongst

Gajmaragaakar f.

the kshatriyas, and homa is performed on such .occa-

sions. It is also attempted to be shown that the family

of respondent 1 is connected by marriage ties with

some kshatriya families,

that a Brahmin priest officiates

at the religious ceremonies performed by respondent 1,

and that he wears a sacred thread. The High

Court

has held that even if the documentary and oral

evidence adduced

by the appellant is accepted at its

face value,

it falls far short of establishing his plea

that respondent 1 had become a kshatriya at the

material time. The caste-status

of

a person in the

context would necessarily have to be determined in the

light of the recognition received by him from the

members of the caste into which he seeks an entry.

There is no evidence on this point

at all. Besides the

evidence produced by the appellant merely shows some

acts by respondent 1 which no doubt were intended to

assert a higher status; but unilateral acts of this

character cannot be easily taken to prove that the

claim for

the higher status which the said acts purport

to make is established. That is the view which the

High

Court has taken and in our opinion the High

Court is absolutely right. Therefore the alternative

plea made

by the appellant cannot succeed.

In the result the appeal fails and is dismissed with

costs in favour

of respondent 1.

KAPUR J.-I regret I am unable to agree with the Kapur J.

judgment prepared by my learned brother Gajendra-

gadkar and I shall proceed to give my reasons for my

dissent.

In an election for Parliament the candidate asks for

the votes uf the electors by offering himself for a seat

in a parliamentary constituency and it is a funda-_

mental principle of elections that the voters exercise

their suffrage

in favour of

a candidate who is standing

I959

V. V. Giri

444 SUPREME COURT REPORTS [1960(1))

for a particular seat in a single or in a two ,member

constituency. The language used in

the Constitution as

well

as in the Election Laws tends to show that the elec­

Dippaza"suri Dor• tion though in a constituency is for the filling of a seat

• .a Others and it is for the filling of that sea.t tha. t the voters in a

Kapur].

constituency exercise their right to vote. The Constitu­

tion itself shows that the election is for filling a sea.t in

a coJJ.stituency.

The scheme of the Constitution itself when it deals

with Parliament a.nd election to Parliament supports

this view. Pa.rliament, its composition and qualifi­

cation for membership of Parliament are dealt with

in Chapter II of Part V of the Constitution. Article 81

deals with the composition of the House of the People.

Sub-cl. (a) of cl. (1) of Art. 81 lays down that there

shall be

not more than

500 Members chosen by direct

election from territorial constituencies

and not more

than

20 Members to represent Union territories.

Clause

(2) of Art. 81 provides that to each

State shall

be allotted a certain number

of seats in the House of

the

People in such manner that the ratio between the

number and population of the State is the same for

all States and sub-cl. (b) provides that the State shall

be divided

into territorial constituencies in such manner

that the ratio between the population of each

consti­

tuency and the number of seats allotted to it is the

same throughout the State. Article 84 provides for the

qualifications of persons to be chosen to fill a seat in

Parliament and in cl. ( c) it is laid down that the

qualifications shall be such as may be prescribed by an

Act of Parliament.

Part XV deals with Elections. Under Art. 324 there

is one general electoral roll for every territorial consti­

tuency and there is no exclusion from such roll on the

ground only of religion, race, caste, creed, sex or any

of them. Article 327 confers on Parliament the power

to make provision with respect to elections to Legisla­

tures. Part XVI of the Constitution make special

·provision relating to certain classes and under Art. 330

seats are reserved in the House of the People for

Scheduled Castes a.nd Scheduled Tribes and it also pro­

vides for the proportion that these sea.ts shall bear to the

S.C.R. SUPREME COURT REPORTS 445

total number of seats allotted to any State and the z959

reservation of seats and special representation are to ..

cease after 10 yea.rs (Art. 334). These provisions show v. v. Gm

that the emphasis is on seats. The. nu~ber seats is Dippala~uriDor•

fixed so also reserved seats and elect10n is to fill a seat and Others

and for that purpose qualifications of candidates are

prescribed by Parliamentary legislation. Kapur J.

A perusal of those various articles mentioned above

shows

that there is no separate electoral roll and. that

the elections are on the basis of joint electorate.

Although there is reservation of seats for

the

Schedul­

ed castes there is no exclusion of Scheduled Castes

or Scheduled Tribes from what are called general seats

and every citizen without any consideration of caste,

creed

or sex is entitled to vote as well as stand for

election provided he is otherwise qualified. The

reserva­

tion of of seats was a concession given to the Scheduled

Castes

and Tribes because of their social and educational

backwardness and

it had to have only

a temporary

existence

and it must be conceded that although there

is a reservation

of a certain number of seats for the

Scheduled

Castes and Tribes the members of these castes

or tribes .are not excluded from contesting general

seats.

In order to carry out the intention of the

Constitu­

tion in regard to elections two Acts were enacted by

the Parliament. The Representation of People's Act,

1950, (43 of 1950) (hereinafter called the 1950 Act) and

the Representation of People's Act 1951, {43 of 1951),

(hereinafter called the

1951 Act). The object of the 1950 Act was to provide for allocation of seats and

delimitation of constituencies for election and the

object of the 195l Act was to provide for· the conduct

of elections to the Houses of Parliament etc. and the

qualifications and disqualifications for membership.

In s. 2{f) of the 1950 Act a Parliamentary constituency

is defined as a constituency provided for the purpose of

election to the House of the People. In Part II of that

Act provision is made for the allocation of sea.ts in the

House of the People and for reservation of sea.ts in

that House for Scheduled Castes and Tribes for filling

up of sea.ts in that House and all these provisions

446 SUPREME COURT REPORTS (1960(1))

I9$9 show that the seats in the House of the People allotted

to the various States have to be filled by direct elec-

v. :.Giri tions. It is significant that in all these provisions the

Dippal4 suriDora word used is 'seat' and the election is to fill a seat.

att4 Olhers Coming to the 1951 Act, election is defined in s. 2(d)

Kapur J.

to mean an election to fill a seat or seats in either

House

of Parliament ........... In s. 2(e) an elector

means

the person whose name is entered in the electoral

roll

of a constituency. Section 4 of the 1951 Aot lays

down

the qualifications for membership of the House

of the

People and a person is not qualified to be chosen

to fill a reserved seat in the House unless he is a mem­

ber of a Scheduled Caste or Tribe and he is an elector

for

any Parliamentary constituency. In the case of

any other seat the only qualification required is that he is an elector in a Parliamentary constituency. Part V

of 1951 Act deals with nomination of candidates.

Section

31 provides for public notice of elections and

s. 32 for nomination of candidates for election.

Under

this section no person may be nominated as a candi­

date for election to fill a seat unless he is qualified to

fill that seat. Section 33 deals with presentation of

nomination papers and the requirements for a valid

nomination. Under sub-s. (1) a nomination paper

completed in the prescribed form and signed as·requir­

ed under that provision· has to be presented to the

Returning Officer and under sub-s. (2) where in a

constituency any seat is reserved the candidate is not

qualified to be chosen to fill that seat unless his nomi­

nation papers contain a declaration by him specifying

the caste or tribe to which he belongs and sub-s. (6)

provides that a candidate can file more than one

nomination

paper for election in the

same constituency.

Under s. 34 for a valid nomination for election a

deposit has to be made which ill the case of members

of Scheduled Castes or Tribes is Rs. 250 and in other

cases Rs. 500.

The contention. raised on behalf of the appellant

was that these various provisions of the 1951 Act show

that the election is for filling a seat and therefore when

a member of the Seheduled Caste or Tribe contests an

election he has to make a choice as to which seat he is

S.C.R. SUPREME COURT REPORTS 447

r959 contesting. There is no prohibition against his stand­

ing for election for the general constit.uency but if he

d h h

. d h l h

v.

V.Giri

wants to o so e as to m icate to t e e ectors t at v.

he is so standing because when the electors vote they DippalaSuriDora

vote for the election of the candidate to that particular and Others

seat and to no other. This is made further clear by

the fact that only one vote out of the two which every

elector has the right to cast can be polled in favour

of

one candidate.

Every candidate has to have a symbol the necessity

for which arises because

of the illiteracy of the general

electorate. Each

party has allotted to it a symbol. In

the present case the successful candidate Mr. Dippala

Suri Dora was standing for

the reserved seat on behalf

of the Socialist Party and had been allotted the symbol

of a tree which was his party symbol. In the case of

a reserved seat the distinguishing feature is the black

circle round

the symbol so that the electors would

know where to cast their vote in

the case of a

Schedul­

ed Caste or Tribe candidate. It is true that the

Form 2A is the same whether the candidate is contest­

ing a reserved seat or a general seat but in the case of

a person contesting a reserved seat there is a further

declaration

to be made that he belongs to Scheduled Caste or Tribe. It is also true that in F'orm 3A when

notice

of nomination is given the

:Form used is the same

for

both the seats but in column (6) of this

:Form the

particulars

of the caste or tribe are to be given

presum­

ably to show which of the candidates belongs to a

Scheduled Caste or Tribe otherwise indicating the caste

is meaningless. Similarly in F'orm 7 A which is for

the final list of contesting candidates after withdrawals

have taken place the names

of candidates are given

a.long with their addresses

and symbols allotted to them

but candidates belonging to members of the Scheduled

Castes or Tribes are distinguished by separate special

marks against their names. All these distinguishing

features have been provided

so that electors when they

ca.st votes for the various candidates know which of

them is contesting the reserved seat and which is

contesting

the general seat. If that is not the object

the giving of the caste would be meaningless, if not

against the idea.I of castelessness.

.

Kapur].

448 SUPREME COURT REPORTS [1960(1)]

1959 It was contended that s. 32 only deals with nomi-

nations for election

to fill

a seat but it has nothing to

v. :.Giri do with qualifications which are la.id down ins. 33 and

Dippala Suri Dora that sub-ss. (2) and (6) of s. 33 showed that the election

and Oth4rs was for a constituency and not for a seat but this

argument ignores the definition of election which means

Kapur J. election to fill a seat and therefore where the word

' election '

in

a constituency is used it is to be construed

as election to fill a seat in a constituency. Besides

sub-s. 2

of s. 33 makes it clear that a candidate cannot

be qualified to be chosen to fill a reserved seat in

a

constituency unl~ss he makes a particular declaration.

The emphasis is again on a seat.

It is true that

a

candidate has to make a deposit for due nomination

for election from a constituency but here again the

word ' election ' must be read as election to fill a seat

from a constituency. These various sections indicate

therefore

and particularly the definition of the word

election in s. 2(d) of the 1951 Act that when

a candi­

date offers himself for election in a constituency he

does so

to fill

a particular seat in a constituency.

At a pole every elector can cast one vote in favour

of one candidate and another in favour of another.

It was contended that it was open to an elector to cast

both his votes in favour of the two candidates standing

for a general seat or the two candidates for the reserved

seat

or one for. the general seat and the other for

reserved

seat and that there was no law which enjoins

an elector to cast one vote for the general seat and the

other for

the reserved seat. But this will lead us

nowhere because

if there are only four candidates as

they were in the present case two belonging to

Sche­

duled Castes or Tribes and two non-Scheduled Caste

candidates then the voter who casts both his voteR

one for one Scheduled Caste and the other for the

other or one for the non-Scheduled Caste and the other

for the other non-Scheduled Caste candidate would be

wasting his votes. One

has to presume that the elector

when he

takes the trouble of going to the polling

booth

and to vote is not going to waste his votes.

S.C.R. SUPREME COURT REPORTS 449

I95f

In the present case the party which set up

Mr. Dippala Suri Dora set him up as a candidate for

1 d C

. h h . I f v. v. Giri

the Schedu e aste constituency w ic is c ear rom v.

the application on behalf of the party setting him up. Dippala Suri Dora

The final list of candidates for Parliament Ext.P3(c) atttl 011tm

also shows that Mr. Dippala Suri Dora was a candidate

for

the reserved seat in Parvatipuram double-member

constituency.

The nomination papers filed by him

also show

that he was being nominated for election

from

the

~arvatipuram reserved parliamentary consti-

tuency.

Thus as

far as Mr. Dippala Suri Dora was

concerned he

had made it quite clear to the electorate

that he was seeking their suffrage for filling

a reserved

seat in the constituency and in this view of the matter

as far as he and the electors were concerned the contest

was for

the reserved seat and not the general seat and

the people voted for him for filling the reserV'ed seat

and not the general seat. Counsel for the ·respondent Mr. Dippaia Suri Dora

submitted

that the mere fact that that respondent

filed his nomination papers in a particular manner

does

not give a different interpretation to the various

provisions

of the law and if under the law a nomination

like

that of the respondent Mr. Dippala

Suri Dora was

a. nomination for both the sea.ts the mere fact that he

had filled his form differently would make no difference.

This contention is correct

but as I have indicated

above

the election is to fill

a seat in the constituency

and the nomination must be taken to fill that seat

and no other.

Reliance was

next placed on ss. 53, 54 and 55 of the

1951 Act to support the case put forward on behalf of

the respondent Mr. Dippala

Suri Dora. No doubt in

sub-s.(4) of s. 54 it is laid down that in a case where

the number of contesting candidates qualified to be

chosen

to fill the reserved seat

exceeds the number of

such seats and the total also exceeds the total number

of seats to be filled, then after the poll has been taken

the qualified candidate receiving the largest number

of votes for the reserved seat has to be declared elected

and then such of the remaining candidates as have

secured the largest number of votes have to be declared

57

Kapvr ].

450 SUPREME COURT REPORTS [1960(1)]

z959 elected to fill the remaining seats and there is an illust-

ration added

to the section which supports the case of

v.

v~.Giri the respondent .. BYt. in view of s. 8 of the Delimitation

mppala s.,; Do'a Commission Act, 1952, which makes provisions for

and Othm readjustments and delimitations it is doubtful if the

provisions of s. 54(4) retain their efficacy. Under

Kapur f. s. 8 cl.(2) of Delimitation Act it is provided that all

constituencies

have to be single

mrmher constituencies

or two member corntituencies and whl'rever practic­

able seats may be reserved for Scheduled Caste or

Tribe in a single member constituency but in every

two memb~r constituencv one seat has to be reserved for

Scheduled Caste or Trib~. This provision destroys the

effect of s. 54. If in a single member constituency a seat

can be reserved which means that only· a Scheduled

Caste candidate can be elected to that seat the effect of

reservation of seat in the double member constituency

will also be

that when a member of the

Scheduled

Caste offers himself for election to a reserved seat he

can be elected only to that seat and to no other. This

is also supported

by the definition of electoral rights

in s. 79 of the 1951 Act which is defined as a right of

a. person to stand or

not to stand as a candidate at an

election, i.e., an election to fill a seat in either House of

Parliament. The electoral right which a citizen has is

to stand for election to fill a seat and a successful

candidate is one who is elected

by securing the largest

number

of votes cast for that seat. This necessarily leads

to the conclusion that the respondent Mr. Dippala

Suri Dora who offered himself for election to fill a

reserved seat could only be elected

to that seat and

not to the general seat.

The

next

content.ion raised on behalf of the appellant

was that if a member of the Scheduled Caste or Tribe

wants to contest both the seats, i.e., general and

reserved he would have to file two nomination papers

and pay two deposits. In view of what has been said

above

and in view of ss. 32 and 33 and the definition

of the word ' election' such candidate has to file two

nomination papers one for the general seat and the

other for the reserved seat setting out the necessary

qualifications which

are required under the law

S.C.R. SUPREME COURT REPORTS 451

Similarly he will have to make two deposits under

s. 34 for

the same reason.

I959

Y. V. Girl

A question of some importance has been raised as to v.

whether a member of Scheduled Caste or Scheduled Dippala Suri Dora

Tribe can by his own act transform himself into a and Otllers

different and higher caste. That depends upon the

view one takes of the caste system and whether caste

is dependent upon

birth or it varies as a consequence

of Guna, Karma and Subhavana that is merit or

qualities, actions

and character. In Hinduism caste

had its origin in vocation and was not dependent upon

birth.

Birth as the sole criterion of caste

h1 a much

later development and caste became rigid and here-

ditary when vocations became hereditary. Caste was

nothing

but division of labour. There is a high

authority to support the view that in Hinduism caste

was dependent upon actions

and not on birth. In

Bhagwat Gita in the fourth Discourse it is stated :

"Th!" four castes were created by me in accordance

with their

aptitude and actions; know me the author

of these castes, though I am actionless and

in­

exhaustible."

There are Verses in the Mahabharta also which go to

support this. One such Verse is given as follows:-

" Truth, Charity, fortitude, good conduct, gentle­

ness, austerity and compassion-he in whom these

are observed is a Brahmana. If these marks exist

in a Sudra and are not found in a twice-born, the

Sudra is not a Sudra nor the Brahmana a Brahmana"

(Teaching given by Yudhisthira)

Even in Bhagwata Purana it is stated :-

" One becomes a Brahmana by his deeds and not

by his family or birth ; even a Chandala is a Brah­

mana, if he is of pure character".

In the Chandogya Upanisad there is the interesting

incident of Satyakama who was raised to the position

of a Brahmana because he had spoken the truth. Thus

it was his character and not his birth which deter­

mined his caste. Amongst the Hindus many !,.ave

raised themselves to the position of Brahmana by

their good qualities and one such instance is of Sage

Kapur J.

452 SUPREME COURT REPORTS [1960(1))

x959 Malanga who was a Ohandala. Vishva Mitra was a.

v G'. Kshtriya and became a Brahman. Hinduism might

· : '" have become static at one stage but its modern history

Dippala ~"''Do,. shows that this is not so now and it would not be

•Kd Othm wrong to say that caste in Hinduism is not dependent

upon

birth but on actions. The whole theory of karma K•P..• J. is destructive of the claim of caste being dependent

upon birth..

I959

May ar.

In.my opinion Mr. Dippala Suri Dora had by his

actions raised himself

to the position of Kshtriya and

he was no longer a member of the

Scheduled Caste or

Tribe and on that ground also his election cannot be

supported.

I would therefore allow

this appeal, set aside the

order of the High

Court and restore that of the Tribu­

nal. The appellant will be entitled to costs of this

Court as well as of the Courts below.

ORDER.

In view of the majority judgment of the Court the

appeal is dismissed with costs in favour of Respondent

No. I.

.A.:p:pe,al, diBrnissed.

KRISHAN KUMAR

v.

THE UNION OF INDIA

(JAFER IMAM and J. L. KAPUR, JJ.)

Criminal Trial-Misappropriation-Servant receiving goods

but failing to account to master-Proof of conversion, if necessary­

F alse explanaJ.ion by servant, whether can be taken into consi.Iera·

tion-Prevention of Cormption, r947 (II of r947), s. 5(r)(c).

The appellant was employed as an Assistant Store Keeper

in the Central Tractor Organisation, Delhi. He took delivery of

a consignment of iron

and steel received by rail for the

Organisa­

tion and removed them from the railway siding. The goods did

not reach

the Organisation. The appellant absented himself

from

duty on the following days and when he was called he gave

a false explanation

that he had not taken delivery of the goods.

The appellant was tried for misappropriation of the goods, under

s. 5(1)(c} of the Prevention of Corruption Act, 1947. At the