G. Mehrotra, J.@mdashThis is an appeal under the Representation of the People Act against the decision of the District Judge, Lower Assam Districts - Member Election Tribunal, dismissing the Election petition filed by the Appellant. The Appellant filed a petition u/s 81 of the Representation of the People Act, seeking a declaration that the election of Jormanik - Respondent No. 3, to the Assam Legislative Assembly from the Nongpoh Constituency in the last general election, be held void.
The Nongpoh constituency is within the autonomous district of Khasi and Jaintia Hills and the seat is reserved for a member of the scheduled tribe of that district. On 20-1-1957 or sometime before that, nominations were filed for that seat on behalf of the Appellant Wilson Reade, Aroon Aley, Respondent No. 2 and Jormanik Respondent No. 3.
The Appellant was the nominee of the political party called the Eastern India Tribal Union, Respondent No. 2 was the Congress nominee and the Respondent No. 3, who is the present Siem of Mylliem State was an independent candidate. The scrutiny of the nomination papers was held on 1-2-1957 and on that date, the nomination paper of the Appellant was rejected on the ground that the Appellant was an Anglo-Indian within the meaning of the word as defined in Article 366(2) of the Constitution and was thus not a member of the scheduled tribe and was not entitled to be nominated as a candidate for the reserved seat for the members of the tribe.
Thereupon, the elections were held and Respondent No. 3 was declared duly elected. The present petition was then filed challenging the election of the Respondent No. 3 on the ground that the nomination paper of the Appellant was wrongfully rejected. The said petition was forwarded to the District Judge, Lower Assam Districts, as the Member of the Tribunal for disposal. The Tribunal held that the Appellant was not a member of the Khasi tribe and thus his nomination was rightly rejected. The main issue decided by the Tribunal was that the Petitioner was not a member of the scheduled tribe.
2. Article 332 of the Constitution provides as follows:
(1) Seats shall be reserved for the Scheduled castes and the Scheduled Tribes, except the Scheduled Tribes in the tribal areas of Assam, in the Legislative Assembly of every State. (2) Seats shall be reserved also for the autonomous districts in the Legislative Assembly of the State'' of Assam.
Sub-section (4) of Article 332 deals with the number of seats reserved for an autonomous district in the Legislative Assembly of the State of Assam and provides that it shall bear to the total number of seats in that Assembly a proportion not less than the population that the district bears to the total population of the State.
Sub-section (5) provides that the constituencies for the seats reserved for any autonomous district of Assam shall not comprise any area outside that district except in the case of the constituency comprising the cantonment and municipality of Shillong. Sub-section (6) provides that no person who is not a member of a Scheduled Tribe of any autonomous district of the State of Assam shall be eligible for election to the Legislative Assembly of the State from any constituency of that district except from the constituency comprising the cantonment and municipality of Shillong.
These sub-sections therefore make it clear that for the seats reserved for the autonomous districts of Assam, persons who are members of the Scheduled Tribe are eligible to seek election. Article 342 then provides as to which of the Tribes will be regarded as Scheduled Tribe. The said article reads as follows:
The President may, with respect to any State, and where it is a State specified in Part A or Part B of the First Schedule, after consultation with the Governor or Rajpramukh thereof, by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State.
In the exercise of the powers conferred by Article 342, the President issued an order known as the Constitution (Scheduled Tribes) Order, 1950. In the Schedule attached to this order in part I Assam Autonomous Districts, the following tribes were notified as the Scheduled Tribes: (1) Dimasa (Kachari), (2) Garo, (3) Hajong, (4) Khasi and Jaintia, (5) Any kuki tribes, (6) Lakher, (7) Any Lushai (Mizo) tribes, (8) Mikir, (9) Any Naga tribes and (10) Synteng.
There has been a subsequent amendment in the schedule, but for the purpose of this case, it is not necessary to refer to that amendment by which certain other tribes have been included. We are however, concerned with the Khasi and Jaintia tribes as the Appellant claims to be a member of the Khasi tribe and as such entitled to seek election to the reserved seat. The Khasi tribe has nowhere been defined.
Under the Constitution, the Khasi tribe has been notified as the tribe entitled to a reservation of seat under Article 342. The only question therefore to be considered is whether the Appellant has established by evidence on record that he is a member of the Khasi tribe. If he is, his nomination obviously was wrongfully rejected. It should be at this stage pointed out that the sole ground on which the Returning (Juicer decided that the Appellant was not entitled to claim a right to be nominated for the reserved seat for Khasi tribe was that the Appellant got himself enrolled in the Auxiliary Force in the allegation that he was a British descent in the male line and thus calling himself an Anglo-Indian.
According to the Returning Officer, as the Appellant called himself an Anglo-Indian and thus got himself enlisted in the Auxiliary Force, he was debarred from claiming himself to be a member of the Khasi tribe. In our opinion, the entire approach to the question by the Returning Officer as well as the Tribunal has been falacious.
3. The only question which had to be determined was whether the Appellant could be regarded a member of the Khasi tribe under the Constitution. That is a question of fact depending upon the evidence produced in the case. It will have to be inferred from the totality of circumstances. It is an admitted fact that the father of the Appellant late James Alfred Reade was an English man who married late Ka Lainshap Phanwar a Khasi woman.
The Appellant had never seen his father. He has, from his childhood, lived among the Khasis and excepting a daughter of his, who has married a Bengali and another who married an American, all his children are married to Khasis. He alleges that one of his sons has married the daughter of Siem of Cherra. The Appellant himself has married a Khasi woman. He also asserts that his wife and Respondent No. 3 were born of the same father.
He has further alleged that under the practice prevalent among the Khasi Tribal people, any one who was born of a Khasi mother was regarded as a member of the Khasi tribe. The Appellant occupied an important position among the Khasis and was a founder-member of a political organisation called the "Khasi National Durbar", which came into existence on the 4th September, 1923.
He was also a member of the executive Committee of the said Durbar. He was the President of the said Durbar at the time when the case was decided by the Tribunal. He is also a member and treasurer of the District Tribal Union which is a branch of the Eastern India Tribal Union and was a member of the delegation that gave evidence before the State Re-organisation Commission.
He was also an elector and treasurer of the Federation of the Khasi States. He was also a candidate both for the Parliament and the State Legislative Assembly of Assam as a member of the Khasi tribe and had filed his nomination in the last election, which was accepted. On these facts, he has contended that it has been amply proved by the materials on the record that he is a member of the Khasi Tribe, and could validly seek election to the reserved seat for the members of Khasi Tribe.
4. The Tribunal came to certain findings of facts and before examining the evidence ourselves, it will be necessary to refer to those findings. The counsel for the Appellant had contended before the Tribunal that the Khasis being matriarchal in descent, the Appellant acquired the domicile of his mother by birth as a legal incident and he continued to retain that domicile in the matter of personal law.
The Tribunal was in substance right in holding that the question of the Petitioner''s domicile was by itself not enough to confer any particular status on him. But it is certainly an element in determining the fact as to whether the Petitioner was regarded as a member of the Khasi tribe or not. After examining the law on the point, the Tribunal came to the finding that although it could not be said that the Khasi tribe being matriarchal, the Appellant necessarily acquired the mother''s domicile at birth to the total obliteration of the domicile of his patriarchal father, still the Petitioner could claim his mother''s domicile at birth.
He also held that according to the Khasi customary law, mere living as husband and wife constituted a valid marriage and that the marriage between late James Alfred Reade, the father of the Petitioner and late Ka Lainshap was a valid one. He also concluded that the intention that the children should take the domicile of the father was absent in this case and it was open to the Petitioner to claim that "at birth it was the domicile of his mother that clung to him."
Having held that the Tribunal seems to think that the Appellant, after attaining majority, made some sort of choice & claimed descent from European British subject in the male line and thus he forfeited his rights to claim the domicile of his mother. His finding seems to be based entirely on the consideration that from 1918 till about 194C, the Petitioner was enjoying the privileges of an Anglo Indian or a British subject of European descent in the male line; but even so, though an Anglo Indian, the Petitioner clearly falls within the sub-group - Anglo-Khasi.
After having held that, it is difficult to follow what he means by saying that though an Anglo Khasi, in the matters of personal law, he is still governed by the Khasi law and usage. There is no sub-division of a Khasi clan called an Anglo-Khasi. An Anglo-Khasi is an expression which in a common parlance, indicates a mixture of blood. There may be a marriage between a Khasi and an European and the children born of such a marriage, may be called Anglo-Khasi; but that by itself is not enough to exclude them from the membership of the Khasi tribe. Whether they can be regarded as Khasi tribal, will be determined by the evidence produced in the case.
5. The Tribunal has attempted to draw a distinction between the civil status of a man and his political status, which according to him, will govern his electoral rights. According to the Tribunal, the political status once acquired cannot be given up and the choice of the individual will be of no consequence in determining such a status what probably he implies to mean is that the political status is a creation of law and it is not a matter of choice of the party.
What is the political status of an individual and what electoral rights he possesses have no doubt to be determined in accordance with the provisions of the Constitution; but the mistake into which the Tribunal has fallen is that he has assumed that when the Constitution and the order issued under the provisions of the Constitution uses the word ''Khasi-tribe'', it only means a Khasi of pure blood. The right to seek election for the reserved seat has been conferred on a member of the Khasi tribe.
The question whether an individual who is seeking election for the reserved seat is or is not a member of the Khasi tribe will have to be determined by the Courts when they are required to adjudicate upon that question and in the absence of any definition of the word ''Khasi-tribe''. in the Constitution or in the law, the test which will determine the membership of that individual will not be only the purity of blood, but his own conduct in following the customs and the way of life of the tribe, the way in which he was treated by the community and the practice amongst the tribal people in the matter of dealing with persons whose mother was a Khasi and father was an European.
The whole object of reserving a seat for the Khasi tribe is to afford the community as a whole a right of representation and to give the community as a whole a protection. The question therefore of the membership of a particular individual of that community cannot be considered divorced from the very object of the legislation.
The conduct of the community which has been given a right of special representation, the manner and how the community regarded the particular individual and whether the community as a whole intended to take the individual within its fold are all matters which will be relevant for consideration of the question as to whether within the meaning of the Constitution, the Appellant could or could not be regarded as a member of the Khasi clan.
The whole reasoning of the Tribunal appears to be that a positive test to ascertain that a person is a Khasi tribe - is only the purity of his blood and that if the Appellant in spite of his not having pure Khasi blood, asserts that he is a member of the tribe, he has to establish a custom to that effect which will have the force of law - namely that it is ancient.
He has secondly held that the Petitioner being an Anglo Indian as defined in the Constitution, cannot be permitted to claim a double privilege. He has also held that in the past, the Petitioner-Appellant having got himself enrolled into the Auxiliary Force on the ground that he was an Anglo Indian, he cannot go back upon his own assertion and now claim to be a member of the Khasi clan
We do not think that the purity of blood is the only criterion to judge whether a particular individual is a member of the Khasi community or not. If that is the only element which will have to be considered in determining whether the Appellant is a member of the Khasi clan, it will be hardly possible to find a dozen people who can be said to possess racial purity in that restricted sense.
The counsel for the Respondents has admitted that in the past, there have been cases where the Khasis brought slave girls from outside and married them and their progeny were regarded as members of the Khasi clan. The girls brought from outside, were taken in the Khasi fold and their children were regarded as Khasis. This goes to establish that the clan has gradually developed and brought within its fold people who - applying this strict test, could not be regarded as Khasis.
As regards the contention that the Appellant having got admitted into the Auxiliary Force and some of his children having got admitted in to the Medical College on the basis that they were of European descent in the male line and as such they were Anglo Indians and therefore they cannot claim to be members of the Khasi clan, it is enough to point out that the word ''Anglo Indian'' was not defined in the Auxiliary Force Act. Section 4(b) of the Auxiliary Force Act provides that the persons claiming to be a British subject of European descent in the male line can be enrolled in the Auxiliary Force. It is not denied that the Petitioner-Appellant was enrolled as a member of that Force.
But there is nothing in the Act which lays down that a person who claims to be a British subject of European descent in the male line cannot be a Khasi or that by claiming to be of European descent in the male line, he forfeits his right to continue to be a member of the Khahi clan. There is no apparent contradiction between the two positions. There is no legal bar under the provisions of the Act to a person to be a Khahi and yet claim the right to be admitted to the Auxiliary Force u/s 4(b) of the Auxiliary Force Act.
A person may fulfil the conditions - necessary for being enrolled as a member of the Auxiliary Force as required u/s 4(b) of the Act and yet be a member of the Khasi clan. It was very strenuously contended by the counsel for the Respondent that on the same date when the Auxiliary Force Act came into force, another Act was passed which was known as the Territorial Force Act and the intention of the two Acts was that the persons who were of European descent could be members of the Auxiliary Force while the Indians could be enlisted as members of the Territorial Force.
The Petitioner-Appellant having got himself admitted into the Auxiliary Force, necessarily made his choice of possessing the status of a Non-Indian and as such it is not now open to him to say that he is a Khasi and thus an Indian. It is also emphasised that his making that choice is his conduct which is indicative of the fact that the Petitioner never intended or in fact ever became a member of the Khasi clan.
This argument appears to have weighed very strongly with the Tribunal as well as with the Returning Officer. But we see no substance in this contention. There were certain qualifications laid down for persons who wished to join the Auxiliary Force and some different qualifications were laid down for persons who wished to join the Territorial Force. There was an express prohibition for those who claimed to be British subjects of European descent by the male line from being enlisted as members of the; Territorial Force.
But that to our minds, does not indicate that by getting himself enlisted in the Auxiliary Force on the basis that he was of European descent in the male line, he ceased to be an Indian and thus a member of the Khasi tribe. At that time there was no recognition of the Khasi (sic) as a separate or distinct entity having certain privileges and rights, different from those possessed by persons of European descent in the male line.
Therefore no assistance can be drawn from the circumstances that the Petitioner-Appellant got himself enrolled in the Auxiliary Force on the basis that he was of European descent in the male line in determining the question at issue. On the same reasonings, the fact that some of the children of the Appellant got admitted into the Medical College cannot establish that the Appellant is a non-Khasi.
The other reasoning of the Court below is that a person cannot be allowed a double privilege. At the time when the Petitioner was enlisted in the Auxiliary Force, there was no question of the Petitioner enjoying any double privilege. Even under the Constitution, there is no bar to a person who is an Anglo Indian within the definition of the word under Article 366 being a member of the Khasi Tribe.
A person may be an Anglo Indian and yet may be member of the Khasi clan. The question of enjoying double privilege also does not arise. If the Appellant had chosen to be a member of the Legislature from the reserved seat for Anglo-Indians, even if he was elected for the reserved constitutency for Khasis, he would have had to resign from one of the seats and thus could not avail of any double privilege. Being an Anglo Indian is no inherent disqualification for being a member of the Khasi clan.
6. In this case, much assistance cannot be drawn from authorities. The question essentially is one of fact; but as some cases have been cited at the bar, it is necessary to refer to some of them.
7. In the case of
By joining that Panth, he ceased to be a member of Mahar caste. This objection was rejected on that ground and in that connection it was observed as follows at page 245 on this evidence:
After considering the historical material placed before us, we conclude that conversion to this sect imports little beyond an intellectual acceptance of certain ideological tenets and does not alter the convert''s caste status, at any rate, so far as the householder section of the Panth is concerned.... Considering Gangaram Thaware the individual we find that he was twice married and both occasions to Mahar girls who were not Mahanubhavas at the time of their respective marriage. His first wife was never converted. His second wife was converted after her marriage. The witnesses say he was still regarded as a Mahar after his conversion and always looked upon himself as a Mahar and identified himself with the caste.... The evidence also discloses that Gangaram Thaware led Mahar agitations and processions as a member and leader of the Mahar caste.
In 1936 he contested the election for the Provincial Assembly as a Mahar candidate. No one appears to have questioned his competency. And lastly he declared himself to be a Mahar in the verification to his nomination form in the present election as also in an affidavit filed before the Returning Officer who rejected his nomination.
On these facts, the Tribunal''s finding that he was a member of the Mahar community was upheld. This case thus lays down that in considering the question whether a person is a member of a particular community, the fact that he used to consider himself as a member of the community, he observed the customs of the community and his assertion in the earlier declaration were all material factors to be considered.
8. In the case of Muthusami Mudaliar v. Masilmani Mudaliar ILR 33 Mad 342 (B), a question arose whether a marriage contracted according to Hindu rites by a Hindu with Christian woman who, before marriage, is converted to Hinduism, is valid or not. It was held in that case that a marriage contracted according to Hindu rites by a Hindu with a Christian is valid when such marriages are common among and recognised as valid by the custom of the caste. Where the caste accepts a marriage as valid and treats the parties thereto as members of the caste, the Court will not declare such a marriage as null and void.
9. It is not uncommon process for a class or tribe outside the pale of caste to enter the pale and if the other communities recognise their claim, they are treated as of that class or caste. The process of adoption into the Hindu heirachy through caste is common both in the North and in the Southern India. As we have already pointed out in past, there have been cases where people who judged from purity of blood could not be Khasis were taken into their fold, orthodoxy did not stand in the way of their assimilation into the Khasi community.
10. At page 353 of the Madras case, it was observed as follows:
It appears to me, therefore, that the Hindu Law to be administered by the Courts consists of the Shastras which claim divine sanction and are followed by the Brahmins generally and also of the usages or approved habitual practices, of these communities, whose caste status depends upon the degree of conformity of their usages to the Shastras and if according to the usage of the community a marriage is valid or the community recognizes a marriage as valid, then, in the absence of any statutory prohibition, I fail to see why it should not be recognized as valid, even without the requisites of a valid custom in derogation of what may be styled the ordinary Hindu Law unless it offends against rules which would render any other marriage invalid.
In the case of
All this would seem to involve a plenary acceptance of Muhammadanism and in fact the Respondents'' objection is to the Ahmcdiyan additions to it and their alleged inconsistency with it. But I have in my opinion been shown no distinct authority as to which doctrines of Islam are regarded as fundamental or the extent to which additions to them, deviations from them or inconsistencies with them are permitted.
...That private judgment and analogical deduction are in appropriate circumstances and to a greater or less extent, (sic) methods of ascertaining the law is recognised in the text books; and we have not been shown how they are not also legitimate to theology so long as fundamental principles are maintained and the question is only of the development, to which every creed must be subject, so long as retains life and growth and adapts itself to altered conditions.
11. The Appellant produced 12 witnesses. James Joy Mohan Roy, Petitioner''s witness No. 1 has stated that he was a Khasi and that the Petitioner is a Khasi Anglo Indian. The Petitioner''s mother was a Khasi and the witness knew about the Khasi custom according to which a child born of a Khasi mother would be recognized by the Khasis as a Khasi. This witness is a man of status.
He was a member of the Assam Legislative Assembly and a Minister of the Government of Assam. He has also stated that the Petitioner was a candidate for the Assam Legislative Assembly during the General Election held in 1951 from the Nongpoh constituency and also for the Lok Sabha from the Shillong and Mikir Hills constituency, which was a reserved seat for the scheduled tribe. His evidence has been challenged on two grounds by the counsel for the Respondents.
It is firstly urged that he has a common political purpose with the Petitioner. Both of them belong to a common tribe of Anglo-Khasi who wished to establish a separate State for Khasis. He is thus interested in the Petitioner and secondly that he has no special knowledge of the Khasi customs. Because the witness and the Petitioner have common political objective and they belong to one political party is no ground to reject his evidence. He is a man of status, has himself been taken into Khasi fold and has lived amongst the Khasis for sufficient time to have knowledge of their usages.
12. The next witness is the Petitioner himself. He has stated that he was a Khasi, he lived among them, followed their custom and was regarded by the members of that community as a member of their fold.
13. The third witness - Sri Rokendra Diengdoh states that he was Secretary of the Khasi National Durbar since 1954 and a member of that Durbar earlier. The Petitioner - Wilson Reade is a Khasi. The Khasi society is matriarchal and a Khasi takes his said from his mother, in the matter of inheritance, succession devolves on the mother''s line. This witness has only given his own opinion and has tried to prove certain proceedings of the meetings of the Khasi Durbar.
He then speaks of the marriage among the Khasi community. Sri Bromendra Roy, - witness No. 4 was a member of the Shillong Bar before he, became a magistrate in the court of the Subordinate District Council Court. According to him under the Khasi customary law, children born of an European father and a Khasi mother are Khasia and not Anglo Indians. About the Petitioner, he says that he was known to him and according to his opinion he was a Khasi and the Khasis treated him as such.
Attempt has been made in the cross-examination to discredit his testimony on the ground that he also was associated with the Khasi National Durbar with which the Petitioner was associated arid that he had no special opportunity to know the Khasi custom.
14. As I have already pointed out mere fact that the Petitioner-Appellant and the witness were both associated with the Khasi National Durbar is no grounds to discredit his testimony. His association with the Khasi National Durbar rather makes him a competent witness and he was thus in a position to know about the Khasi customs and also the manner in which the Petitioner was treated by the Khasi community.
In the cross examination, an attempt has been made to show that he had no special knowledge of the Khasi customs inasmuch as he had during his entire period of practice never handled cases involving Khasi custom nor had he studied Khasi customary law in his Law Classes. He comes from the Southern part of the Khasi Hills and his village is Nongjeri. He had therefore means to know the Khasi customs and also the manner in which the Khasi community treated the Petitioner and the fact that he had no occasion to handle cases involving the questions of Khasi customary law does not detract from the value of his evidence.
15. The next witness is Peter Liengdoh, Election Officer, Shillong. He has only proved the nomination paper filed by the Petitioner in 1951 for the Autonomous Districts Parliamentary Constituency and also the declaration accompanying the aforesaid nomination. In the declaration, he had affirmed that he was a member of the Khasi tribe.
He has further proved that the Petitioner contested the Parliamentary seat in 1951 and in the declaration accompanying the nomination paper for the said seat, he had affirmed himself to be a member of the Khasi tribe. The effect of this declaration will be considered by me later.
16. The next witness Mr. David Roy is a retired Extra Assistant Commissioner. He served in the Assam Civil Service for about 33 years and was posted at Shillong as a Magistrate and Political Assistant to the Deputy Commissioner for about 15 years. He had occasion to handle cases involving the Khasi customs. He has stated that he is a Khasi himself; his mother was a Khasi and his father was also a Khasi.
The Petitioner - Wilson Reade is his uterine step brother and according to this witness the Petitioner - Wilson Reade is a Khasi both according to the Khasi custom and that he has been accepted as such by the Khasis. According to this witness, a person born of a Khasi mother and a non-Khasi father is entitled to all the privileges of a Khasi and he is considered by the community as a Khasi tribal.
The Petitioner went after his marriage to the house of his wife who is a Khasi as she was the only daughter of her parents. In his Statement-in-chief, he has stated that children born of a Khasi mother take clan name of their mother. The clan name of the, Petitioner is Kharphanwar; but the Khasis do not use any surname, but only the clan name. It was argued by the counsel for the Respondent relying upon this statement that if the Petitioner was treated as a Khasi, he would have adopted the clan-name of his mother and would not have taken his father''s surname as Reade.
To my mind, this is not of much consequence. Retention of the surname of the father does not necessarily imply that the Petitioner ceased to be a Khasi and that he could not be regarded as a member of the Khasi tribe and that he was not treated as such by the members of that community. Nothing particular has been brought out in the cross-examination of this witness as to why his testimony should not be accepted.
It was pointed out by the counsel for the Respondent that when this witness was asked about the essentials of the Khasi customs, he stated that heredity was the only criterion of the Khasi custom. That statement proves that he had no correct idea of the ingredients of valid and binding customs in law and consequently his deposition about the existence of any custom cannot be accepted. Obvious fallacy in this argument is that it assumes that usage or practice is the same thing as custom in law.
The existence of a practice is different from the usage having the force of law. The witness could only depose about certain prevalent practice. What are the legal ingredients of a valid custom is not a matter which any witness is expected to know. Whether a certain practice prevails amongst the community is the only matter about which the witness can depose and if he was competent to depose about such a practice having regard to his own association with the community and position amongst the members of the community, there is no reason to discredit'' his testimony on the ground that he does not know the essentials of the valid custom in law.
It is clear that the witness is himself a Khasi and lived among them and was thus in a position to know about their way of life. He also could know that the Petitioner was treated by the community as one of their fold.
16-a. Emphasis was then laid by the counsel for the Respondent on his statement that he deposed in favour of the Petitioner as he was also a member of the same clan. This statement only emphasises the fact that the witness was in a position to know the customs of the Khasi tribe and particularly the manner in which the Petitioner was treated by the Khasi community.
Persons who were intimately connected with the Petitioner and also were members of the Khasi community are the best persons to know the fact as to whether the Petitioner was regarded to be a member of the Khasi community by the community. The testimony of this witness therefore cannot be challenged on this ground.
16-b. The next witness is Sri Don Nihon Singh Wahlong. His son was a member of the Lok Sobha. This witness states that he is a Khasi and knows the Petitioner Wilson Reade. He treated the Petitioner as a Khasi and not as an Anglo Indian. He has also deposed that the other Khasis also treat him as such. Nothing particularly has been brought out in the cross-examination to discredit his testimony.
16-c. The next witness is Sri Brojo Mohan Roy, who retired from Government service in 1950 and the last office he held was that of the Additional Deputy Commissioner. He had in that capacity to try cases involving Khasi law and custom and he has stated that in the matter of succession among the Khasis, the succession devolves to the youngest daughter.
He has also stated that the fact that the Khasi does not take the name of his mother, does not necessarily disentitle him from being a member of that community and about the petitioner he has stated that he is governed by the Khasi customs and he is regarded as such by the other members of the community. The cross-examination was only directed towards showing that he was also a member of the Tribal Union and had common political objective with the Petitioner.
16-d. The next witness is Sri Theodore Cajee, who is the Joint Secretary of the Eastern India Tribal Union and has stated that the qualifications of the members of that Union were described in Article 2 of the Constitution. According to the Constitution any one who is interested in the welfare of the Tribals can be a member of that Union.
17. He has also stated that he has taken the name of his mother''s clan - Cajee, his wife belongs to Nongrum clan and as such his children have also taken the clan name - Cajee. He was thus a Khasi and deposed that the Petitioner was treated as a Khasi by him and the other members of the community. It was further stated by this witness that the children born of a Khasi mother are treated as Khasis though their fathers may be non-Khasis; it does not make any difference if the non-Khasi father is a European even.
18. The next witness is Sri B.M. Pugh, witness No. 10 for the Petitioner. He is a Khasi. Both of his parents were Khasis. He has stated that he had known the Petitioner all along to be a Khasi and the members of that community treated him as such. The next witness, who has stated about the custom and status of the Petitioner, is Lebanon Myntri, Myntri, Mylliem Durbar. He has stated about the settlement of certain shop with the Petitioner.
This witness has been produced to show that certain house was settled with the Petitioner which could only be settled with the Khasis. It is not necessary to go in detail into his testimony. Attempt has been made to discredit his evidence; but as his testimony is not of much importance, it is not necessary to scrutinise it, in detail.
19. The Respondent has produced some witnesses and it will be necessary to examine their evidence. The first witness for the Respondent is Capt. Surjaman Rai. He has only stated that he was in the Army. In the Regiment to which he was attached, he did not see even an Anglo-Indian. All the ranks were British. This witness has been called only to establish the fact that the Petitioner having got entrance into the Army on the representation that he was an Anglo-Indian could not claim to be a Khasi.
20. The next witness is Sri Amulya Chandra Choudhury. He has also stated that Assam Valley Light Horse was exclusively meant for Europeans and Anglo Indians. He has stated that he knew Mr. Reade as an Anglo Indian. Major S.C. Dutta is the third witness for the Respondent. He has also deposed that the M.B. course was open to all. But the I.M.D. course, only the Anglo Indians and Europeans could join.
He has been produced to show that a son of the Petitioner having been admitted to the I.M.D. course, the Petitioner cannot claim to be a Khasi. On the representation that he was an Anglo Indian, he obtained a privilege. This witness did not say anything about the custom and the manner in which the Petitioner was treated by the members of the Khasi community. Obviously he had no knowledge of it.
21. The next witness for the Respondent is Dr. Keatingson Tham, who also speaks to the effect that only the Anglo Indians could join the I.M.D. course. The next witness - Bnik Sing Shabong has stated that Mr. David Roy was known to him. David Roy''s father Rai Shabong belonged to his clan. This witness states that he was a Khasi and that David Roy was also a Khasi. About the Petitioner however, he has stated that he is a Shiteng Jaid which means an Anglo Indian. The children born of a Khasi mother and a European father are known as Shiteng Jaid.
He has also stated that only Anglo Indians can be Military Volunteers. According to this witness, if a father is an Indian and the mother is a Khasi, the children take the mother''s clan. They are also considered as pucca Khasi. Only in case of a European father, the children are not considered as pucca Khasi. A son born of a Khasi'' mother and a non-Khasi father cannot marry in the jaid of his mother, according to the Khasi custom. This witness, to our mind, does not destroy the value of the evidence produced by the Petitioner to establish that he was regarded as a Khasi and that there was a custom under which the persons born of a Khasi mother were regarded as members of the Khasi tribal community.
On the other hand, this witness goes to the extent of proving the fact that if the father is an Anglo Indian and the mother is a Khasi, the children born of such parents are regarded as pucca Khasi. There is no reason, therefore, to believe that an exception has only been made in the case of an European father and a Khasi mother.
22. The entire premiss of the judgment of the Tribunal is that the membership of the Khasi community depends only on the purity of blood. This theory has been negatived by the statement of this witness himself. There is no Justification for introducing a number of subdivisions in the community such as Anglo-Khasis, Khasis, who are born of Indian father and Khasi mother and are regarded as pucca Khasis and persons born of the European father and a Khasi mother. The next witness is Drowellson Nongkhlaw. He has also stated about the fact that Wilson Reade was then a member of the British Auxiliary Force and that only the Europeans and Anglo Indians could join that Force.
In cross-examination, he has however stated that a son of a Khasi mother is a Khasi, provided his father is also a Khasi; but he could not say that if the father is a Khasi and the mother is a non-Khasi, whether the children born of such parents will be Khasis or non-Khasis. He was very clear that if the father is a European and the mother a Khasi, the children will be Anglo Indians. Such an Anglo Indian cannot be a Khasi as well. He has however further deposed that he does not claim to know anything about the Khasi custom.
23. The evidence produced by the Respondent, therefore, in our opinion, does not in any manner negative the custom set up by the Petitioner and also does not establish that the Petitioner could not be treated to be a member of the Khasi community. The evidence produced by the Respondent supports the contention of the Appellant that purity of the blood is not the only basis on which a person can be regarded as a member of the Khasi community. Persons not having pure Khasi blood have also been recognised as members of the community under the usage of the community.
24. The Petitioner''s evidence therefore clearly establishes the fact that the Petitioner was regarded as a member of the Khasi community and that in accordance with the usage prevalent among the community, a person born of a Khasi mother, though of a non-Khasi father, was in course of time assimilated in the community and was regarded as a member of the Khasi community.
It is also a circumstance in. favour of the Petitioner that in the year 1951, he declared himself to be a member of the Khasi community and on that declaration sought election to both the Parliamentary and the State Legislative Assembly seals. This declaration of his went unchallenged. The evidence produced by the Respondent does not negative the evidence of the Petitioner and gives support to the Petitioner''s contention that the purity of blood is not the only criterion on which the membership of an individual of the community can be judged.
Great emphasis has however been laid by the Tribunal and the counsel for the Respondent on the fact that the Petitioner got himself admitted into the Assam Valley Light Horse on a representation that he was an European British subject or a British subject of the European descent in the male line and thus he cannot go back upon that representation and now claim to be a member of the Khasi community.
The fact that the children of the Petitioner were admitted in I.M.D. course has also been emphasised on a similar ground. The contention as regards this circumstance on behalf of the Respondent is two-fold. It is argued by him firstly that this amounts to the conduct of the Petitioner which is relevant in considering the fact whether he is a member of the Khasi community or not.
Secondly it is contended that the Petitioner having admitted to be an Anglo-Indian and the word ''Anglo-Indian'' having been defined in the Constitution as a distinct community, the Petitioner cannot take up the inconsistent position and claim to be a member of the Khasi community. There are two answers to the first contention. Firstly there is no act of the petitionei which will go to show that he made any representation that he was an Anglo-Indian and not a Khasi.
No document in the nature of a declaration on application form has been filed - signed by the Petitioner in which he has asserted that he is a non-Khasi and an Anglo-Indian. The conduct of the Petitioner cannot be inferred from the mere fact that he was admitted into the Assam Valley Light Horse Division. The argument in substance is that the provisions of the Auxiliary Force Act require that only an European British subject or a British subject of European descent in the male line could be admitted into the Force the Petitioner having been admitted into that Force, must necessarily have represented himself to be a British subject of European descent and thus a non-Khasi.
This argument cannot be held to be sound. His being a member of the Auxiliary Force by itself cannot be regarded as his conduct by which he claimed to be a non-Khasi. Secondly by merely getting admittance into the Auxiliary Force on the factual representation that he was born of a European father is no evidence of the fact that he was a non-Khasi.
25. Coming to the other part of the argument of the Respondent, the Constitution has defined Anglo-Indian in Article 366(2) as follows:
An Anglo-Indian means a person whose father or any of whose other male progenitors in the male line is or was of European descent but who is domiciled within the territory of India and is or was born within such territory of parents habitually resident therein and not established there for temporary purposes only.
Even assuming that the Petitioner fulfils the definition of an Anglo-Indian, it does not necessarily mean that he cannot be a member of the Khasi community. The Khasi community has nowhere been defined under the Constitution. In the absence of any definition which will show that an Anglo Indian cannot be a member of the Khasi community, there is no reason to hold that because the Petitioner fulfils the definition of an Anglo Indian, he is necessarily a non-Khasi. It is nowhere laid down in the Constitution that a person who is an Anglo Indian cannot be a member of the Khasi community. The Tribunal itself has held that the Petitioner can be called an Anglo Indian Khasi - a term which nowhere is to be found in the Constitution. Whether he is an Anglo Indian Khasi or an Indian Khasi or a European Khasi, he is primarily a Khasi and a member of that community. The definition of the word ''Anglo Indian'' in the Constitution does not exclude, the possibility of an Anglo Indian being a member of any other community. Whether an Anglo Indian Khasi can be regarded as a member of the Khasi community within the meaning of the Order issued under the Constitution will depend upon the factors which we have already indicated and there is nothing in the Constitution which debars an Anglo-Indian from being a member of the Khasi community. It was also contended by the counsel for the Petitioner that the Petitioner is not an Anglo Indian as defined under Article 366(2).
26. The Petitioner''s father, no doubt, was of a European descent and he is domiciled in the territory of India and was born within such territory; but not necessarily of parents habitually residents therein and not established there for temporary purposes only. His father did not habitually reside in India. It has been found from the evidence that he used to go to England during holidays. This argument is tried to be countered by the Respondent on the ground that according to the provisions of the General Clauses Act, the word parents in Article 366(2) will include mother and as admittedly the mother of the Petitioner was habitually a resident of India, he is covered by the definition. In the view which we have taken earlier, it is not necessary to go into this question in great detail and decide it. It may however be reasonably contended that having regard to the context, the word parents should necessarily mean male parent and will not include the mother. Having considered carefully the evidence on the record, we are of opinion that the Petitioner has fully established that he was a member of the Khasi community, and thus his nomination paper was wrongfully rejected and he must succeed. Section 100(a), (b) and (c) of the Representation of the People Act read as follows:
(1) Subject to the provisions of Sub-section (2), if the Tribunal is of opinion-
(a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act; or
(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or
(c) that any nomination has been improperly rejected.
the Tribunal shall declare the election of the returned candidate to be void.
This section clearly provides that if it is found-that the nomination of the Petitioner has been wrongfully rejected, that by itself is a valid ground for declaration of the election of the returned candidate to be void, and it is necessarily to be held that the results of the election have been materially affected by such a wrongful rejection.
27. In the result, therefore, we allow this appeal with costs and declare the election of Shri Jormanik to be void.
28. The amount of costs we assess at Rs. 300/-. The cost will be paid by the contesting Respondent.
H. Deka, J.
29. I have had the privilege of carefully reading the judgment prepared by my learned brother and I fully agree with and endorse the findings arrived at by him, namely to the effect that the Appellant Wilson Reade was a member of the Khasi community as contemplated under the Constitution of India. My learned brother has dealt with the evidence in detail and the arguments addressed by the parties concerned. I would only like to add a few words in this connection. Even though we are not prepared to agree with the finding arrived at by the learned member of the Election Tribunal, I must say that the judgment by the learned member was prepared with great care and after taking a good deal of pains. What strikes me however, is that the learned member of the Tribunal paid greater attention to the theoretical approach in judging the point at issue rather than in the matter of deciding as to whether on the evidence on record the Appellant could be said to be a member of the Khasi community. The Supreme Court in its judgment reported in
What we have to determine are the social and political consequences of such conversions and that, we feel, must be decided in a common-sense practical way rather than on theoretical and theocratic grounds.
Applying this formula to the present case, in my opinion, we should also try to decide the thing in a commonsense practical way rather than on an examination of the point of domicile, which to my mind does not directly arise in this case.
30. Much of the facts in this case are admitted, and the point that arises for decision is, - as to whether on those set of facts we might consider the Appellant Wilson Reade to be a member of the Khasi Tribe. The word ''tribe'' itself is nowhere defined in the Constitution and it is more or less an anthropological concept rather than anything else.
One of the authorities on anthropology - W.H.R. Rivers - M.A., M.D., D.Sc. L.L.D., F.R.S. - in his famous book ''Social Organization'' (Edited by W.J. Perry, M.A., Reader in Cultural Anthropology in the University of London, - third impression - at page 32) says-
The tribe shades off into groups of a more complex kind such as the nation, and its exact definition is not easy. It may however be described as follows: ''A tribe is a social group of a simple kind the members of which speak a common direct, have a single government, and act together for such common purpose as warfare'' ...On the other hand, it is more or less indogamous: its members usually marry within the group, but not rigorously enough to make it possible to use the practice as an essential feature of the definition....
One point must, however be insisted on, namely that the tribe is, in the main, a political rather than a domestic group - with common speech as its main characteristic.
31. In the present set of things we need not examine all the aspects of this definition except to say that taking this as a good definition of the word ''tribe'', whether we can say that Wilson Reade is a member of the Khasi tribe within this definition. It is both parties'' evidence that he had been living in the social group of Khasis, has inter-married, speaks their direct which he calls his mother tongue, - and has identified himself with the tribe in various social and political activities for its welfare or upliftment.
There is no denial of these traits in his character or his way of life. It has been further the evidence of both parties that an individual born of a Khasi mother is considered a Khasi according to the practice prevalent and it has been recognised for a long time past. In the instant case Respondent No. 2 Mr. A. Alley at whose objection the nomination paper of the Appellant was rejected, is a member of the Khasi tribe by virtue of his mother being a Khasi lady, even though his father was a Muhammadan and a stranger or outsider to the Khasi community.
What has been sought to be distinguished in the case of the Appellant is that hit father was a European subject with a foreign domicile and not a Hindu or a Muhammadan in whose case the children born of them of a Khasi mother would be admittedly accepted as a member of the Khasi tribe. It is evident from the evidence on record that the Appellant had been living with the Khasi people, had married in a distinguished Khasi family, his wife being a step sister of Respondent No. 3 - Jormanik himself - the Siem of Khyrim.
It is further in evidence that his children also got married to the Khasis and he has married out his daughters to some of the Khasi gentlemen, one of whom Mr. Cotton is a member of the Legislative Assembly representing the Khasi tribe. Therefore the only point is whether a son born of a British father or a European father of a Khasi woman, could be discriminated from other Khasis of mixed blood.
In case this objection namely that one born of a British father could not be distinguished from children born of other fathers and Khasi women, the Appellant should necessarily be considered to be eligible to get such rights as other children of mixed blood would enjoy as a member of the Khasi community. Mr. Jorinanik or Mr. Alley does not come to the dock to depose that the Appellant could not be considered to be a member of the Khasi community.
There are only two witnesses examined on behalf of the Respondents on this particular point - the other D.Ws. speaking about the Appellant or his son enjoying certain privileges given to the Anglo-Indian Community. Dr. Keatingson Tham D.W. 4 is a medical graduate of the Calcutta University. He came to depose that the son of the Petitioner had enjoyed certain privileges reserved for the Anglo-Indians and he read the I.M.D. course.
D.Ws. 1, 2 and 3 speak about the Petitioner being a member of the Assam Valley Light Horse to which only the Europeans and Anglo-Indians were taken. D.W. 4 says as follows:
I cannot say to which jaid (clan) a boy born of a Khasi woman and a non-Khasi father, would belong. The Khasi society is matriarchal and the descent is through the mother''s side. But it certainly matters who the father is. The sons take the mother''s clan, not of the father, amongst the Khasis.
31a. He further stated that he knew Aroon Alley and his father was known to be a non-Khasi, but Aroon Alley was treated as a Khasi. As a matter of fact, - there has been no dispute that Aroon Alley was eligible to seek election as a Khasi which he in fact did. The other witness was Mr. Enik Sing Shabong (D.W. 5). What he deposes is that "If the father is an Indian and the mother is a Khasi, the children take the mother''s clan. They are also considered to be pucca Khasi. Only in the case of a European father, the children are not considered as pucca Khasi."
32. Therefore according to him Wilson Reade is not a ''pucca Khasi'', but it cannot be said that he is not a Khasi at all. He must be considered to be a Khasi with mixed blood. The Respondents have brought in no evidence to show that in case of a European father there lies some distinction either by custom or by usage. This witness further says: "The mother of the ''Petitioner'' was a Khasi. According to the Khasi custom, he cannot marry in his mother''s jaid. I know the Petitioner very well. I do not know if a son of his has married a daughter of the Siem of Khyrim."
33. D.W. 6 Drowellson Nongkhlaw makes a very significant statement-
A Khasi takes the mother''s jaid. I am also not clear what would be the status of a child born of a Khasi mother and a non-Khasi father, I am, however, very clear that if the father is a European and the mother a Khasi, the children will be Anglo Indians. Such an Anglo Indian cannot be a Khasi as well.
This is the sort of defence evidence that we have to examine and assess. As a matter of fact there is nothing in the evidence to hold that in case of a son of a British father or a European father, - who lives and identifies with his mother''s community, - there can be any discrimination from the stand-point of the Khasis, from other children of non-Khasi fathers born of Khasi-mothers.
Therefore even taking the Defendants'' case as such, we find no logical basis to discriminate as between Aroon Alley, Respondent No. 2 and the Appellant Wilson Reade, both of whom were born of Khasi mothers and non-Khasi fathers, as to their being members of the Khasi tribe.
34. The only other point that has been argued is that the Appellant having enjoyed at a certain stage of his life some privileges given only to the members of the Anglo Indian community, cannot now come and say that he is a member of the Khasi tribe. My learned brother has dealt at good length on this point and we find nothing in the Constitution to say that one even though an Anglo Indian as defined under Article 366 of the Constitution, cannot claim the privileges of the Khasi tribe or cannot count himself to be a member of the tribe.
There is a volume of evidence on behalf of the Petitioner, Appellant and some of the witnesses very respectable persons - who depose that the Appellant was considered to be a member of the Khasi tribe and had been enjoying the privileges of that community and had been identifying himself whole-heartedly with the community trying his level best for its welfare all throughout.
In the case of
Applying these tests to the case of the present Appellant we find that he had been an earnest and sincere member of the Khasi National Durbar where he played important role and tried to acquire certain privileges and political advantages for the Khasi community of which the Respondent Jormanik himself was one of the sponsors.
Wilson Reade is a man of education. He was the Headmaster of Mowkhar Christian School, he worked in combination with the distinguished Khasi leaders, he was a treasurer of the District Tribal Union amongst the Khasis and he was President of the Khasi National Durbar for a time. He says that his vernacular is Khasi and his children are married to Khasis except one and his son also married the daughter of the Siem of Cherra.
In 1951 General Election he was a candidate for the House of the People from the Autonomous Tribal seat and also the Assam Legislative Assembly from the Nongpoh Reserved constituency to which there was no challenge. Therefore taking all these facts into consideration it can easily be construed by applying the common-sense and practical view that he was a member of the Khasi community and his nomination paper was wrongly rejected.
The inevitable result thereof is, as provided u/s 100(1)(c) of the Representation of the People Act - a fresh election - on declaration that the election of Respondent No. 3 as a Member of the Assam Legislative Assembly must be held to be void from the reserved constituency of Nongpoh.
35. It may be further noted that it is doubtful whether the Appellant is an Anglo-Indian as defined under Article 366(2) of the Constitution, - since it is not in evidence that his father James Alfred Reade used to live in India on a. permanent basis and not as a temporary resident established for temporary purpose only. The evidence is that the Appellant used to live with his mother from his childhood and his father practically faded out of his memory.
The learned member of the Tribunal was of the view that strictly speaking the Appellant was an Anglo-Khasi - a term for which there is no sanction in the Indian Constitution. If an Anglo-Indian is primarily an Indian, - an Anglo-Khasi must be primarily a Khasi. The enjoyment of certain privileges before the Constitution came into force - as an Anglo-Indian, - cannot convert the status of the Appellant to an Anglo-Indian, - if he otherwise satisfies the test of a Khasi, which he does in our opinion.
36. I do not feel called upon to discuss other points which have been so elaborately dealt with by my learned brother. I therefore agree with the order proposed by my learned brother.
H. Deka and G. Mehrotra, JJ.
37. An application under Article 132 of the Constitution for leave to file an appeal to the Supreme Court has been made but as in our view the case does not involve any interpretation of the Constitution itself, the prayer is rejected.
