TaxTMI 
TaxTMI 
1993 (2) TMI 333
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.... can be reserved in favour of a particular tribe far in excess of its population. My answer to both the questions is in the negative. 2. These cases relate to the constitution of Legislative Assembly of Sikkim which merged with India in 1975. They were instituted as writ petitions under Article 226 of the Constitution before the Sikkim High Court and have been later transferred to this court. The main case being Writ Petition No. 4 of 1980 registered as Transfer Case No. 78 of 1982 after transfer to this Court was filed by the petitioner R.C. Poudyal in person and he was conducting this case himself, and will be referred to as the petitioner or the writ petitioner in this judgment. During the course of the hearing of the case, Mr. R.K. Jain assisted the Court as amicus curiae and pressed the writ petition on his behalf. Transfer Case No. 84 of 1982 was filed by Somnath Poudyal as Writ Petition No. 12 of 1980 in the High Court, taking a similar stand as in writ petition No. 4 of 1980. The third case being Writ Petition No. 15 of 1990 filed by Nandu Thapa, also challenging the impugned reservations, is Transfer Case No. 93 of 1991. During the hearing, however, the stand taken by his....
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....uring the British days, was a princely State under a hereditary monarch called Chogyal, subject to British paramountcy. The Chogyal, also described as Maharaja, was a member of the chamber of Princes entitled to gun salute of 15. The provisions of the Government of India Act, 1935 were applicable and Sikkim thus did not have any attribute of sovereignty of its own. On the independence of India in 1947 there was a public demand in Sikkim for merger with India which was resisted by the Rulers. The statements made in paragraph 3 (v) in the counter affidavit of the Union of India, respondent No. 1, sworn by the Deputy Secretary, Ministry of Home Affairs, is illuminating. It has been inter alia said that there was a strong and clearly expressed sentiment on the part of the people of Sikkim favouring closer relations with India and' growth of genuine democratic institutions which led to large scale agitations demanding merger with India. However, the Government of India did not favour an immediate change in Sikkim's status, and, therefore, only a treaty was entered into between Sikkim and the Government of India whereunder the latter assumed the responsibility with respect to the....
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.... his own. Another Proclamation which was issued in 1957 again maintained the parity of 6 seats each for Bhutia-Lepchas and Nepalis. By a further Proclamation dated 16.3.1958, there was an addition of 2 more seats to the Council, one described as Sangha seat earmarked for religious Budhist Monasteries run by Monks who arc Lamas, and another declared as general seat. Thus, for the first time in 1958 Chogyal, by creating a general seat took note of the presence of the immigrants who were neither Bhutia- Lepchas nor Nepalis and were mostly Indians. He also introduced the Lamas in the Council as he was sure of their support for him, as will be seen later. Appended to the Proclamation, there was a Note of the Private Secretary to the Chogyal which has been referred to by the respondents in their arguments in support of the impugned reservations. The Note is in three sub-paras dealing with the Sangha seat, the general seat and the question of parity between the Bhutia-Lepchas and the Nepalis. It has been mentioned in the first sub-para (a) that the Sangha constituted a vital and important role in the life of the community in Sikkim and had played a major part in taking of decisions by the....
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....s further said that with a view to achieve this objective, the Chogyal as well as the representatives of the people had requested the Government of India to take necessary steps. The first paragraph dealing with the Basic Rights declared that the people of Sikkim would enjoy the right of election on the basis of adult suffrage to give effect to the principle of one man one vote. Another provision of this agreement which is highly important for decision of the issues in the present case is to be found in the 5th paragraph which reads as follows:- "The system of elections shall be so organised as to make the Assembly adequately representative of the various sections of the population. The size and composition of the Assembly and of the Executive Council shall be such as may be prescribed from time to time, care being taken to ensure that no single section of the population acquires a dominating position due mainly to its ethnic origin, and' that the rights and interests of the Sikkimese Bhutia Lepcha origin and of the Sikkimese Nepali, which includes Tsong and Scheduled Caste origin, are fully protected." Strong reliance has been placed on the above paragraph on behalf of the ....
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....me into force in February 1975. On the 10th of April, 1975 the Sikkim Assembly passed another momentous resolution abolishing the institution of Chogyal and declaring that Sikkim would henceforth be a constituent unit of India, enjoying a democratic and fully responsible government. A request was made in the resolution to the Government of India to take the necessary measures. Accordingly the Constitution was further amended by the Constitution (Thirty-Sixth Amendment) Act, 1975 which became effective in May, 1975. As a result of this constitutional amendment Sikkim completely merged in the Union of India. 11. By the Thirty-Fifth Amendment of the Constitution, Sikkim was, as mentioned earlier, merely associated with the Union of India by insertion of Article 2A on the terms and conditions set out separately in a schedule added as the Tenth Schedule. Certain amendments were made in Articles 80 and 81 also. By the Thirty-Sixth Amendment of the Constitution, a full merger of Sikkim with Union of India was effected by adding Sikkim as Entry 22 in the First Schedule of the Constitution under the heading "1. The State'. Further, some special provisions were made in a newly added Art....
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....tially directed to follow the position immediately before the merger under the Thirty-Sixth Amendment of the Constitution, and later amendments were made in this regard in the Delimitation of Parliamentary and Assembly Constituencies Order, 1976. The amended provisions of sub-section (3) of section 7 dealt with (besides dealing with Arunachal Pradesh) this matter. These special provisions have been challenged by the writ petitioner on various grounds. 13. The first objection taken on behalf of the respondents is to the maintainability of the writ petitions on the ground that the dispute raised by the petitioner is of political nature and the issues are not justiciable. The argument proceeds thus. To acquire fresh territories is an inherent attribute of sovereignty and this can be done by conquest, treaty or otherwise on such conditions which the sovereign considers necessary. Any question relating thereto entirely lies within the political realm and is not amenable to the court's jurisdiction. Referring to Articles 2 and 4 of the Constitution it has been urged that the admission into the Union of India is permissible without a constitutional amendment and the terms and conditi....
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....the Status, thus bestowed on Sikkim then, was mentioned as Associate, it could not be treated as a mere protectorate of India. The protectorateship had been there in existence from before under the earlier treaties and by Article 2A read with Tenth Schedule something more was achieved. This, however, was short of Statehood. Consequently Sikkim was not enjoying all,he benefits available under the Constitution of India. By the Thirty- Sixth Amendment there came a vital change in the Status of Sikkim. It was included as the 22nd Entry in the list of the States in the First Schedule without any reservation. Article 2A. the Tenth Schedule and other related provisions included in the Constitution by the Thirty-Fifth Amendment, were omitted from the Constitution. Thus, as a result of the Thirty-Sixth Amendment Sikkim became as much a State as any other. Considered in this background, the objection to the maintainability of the writ petitions cannot be upheld. Further, the challenge by the writ petitioner is to the amendments introduced in the Representation of the People Acts by the Central Act 8 of 1980 as being unconstitutional and not protected by Article 371F(f) and this point again h....
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....t under Art. 3?" "There can be no doubt that foreign territory which after acquisition becomes a part of the territory of India under Art. 1 (3) (c) is included in the last clause of Art. 3 (a) and that such territory may, after its acquisition, be absorbed in the new State which may be formed under Art. 3 (a). Thus Art. 3 (a) deals with the problem of the formation of a new State and indicates the modes by which a new State can be formed." Dealing with the nature of the power of ceding a part of the territory, it was held that such a power cannot be read in Article 3 (c) by implication, and in the case of a part of the Union Territories there can be no doubt that Article 3 does not cover them. The conclusion arrived at was that this was not possible by a law under Article 3 and an amendment of the Constitution was essential. It is true that in case of acquisition Article 2 comes into play but that is only at the initial stage when the new territory joins and becomes the territory of India under Article 1 (3)(c). In the present case the power under Article 2 was not exercised at any point of time. Initially, as pointed out earlier, Sikkim joined India as an Associate State....
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....o the assumption that there is only one process available in such a situation and that is by way of a complete merger under our Constitution, as has been adopted in the case of Sikkim, by the Thirty- Sixth Amendment. The plea ignores other alternatives which may be adopted, for example, by forming a confederation. However, this question is highly hypothetical and is surely political in nature and I do not think it is necessary to answer it in precise terms. 19. The maintainability of the writ petitions has also been questioned by Mr. Attorney General and Mr. Nariman on similar grounds. I have considered the plea of unjusticiability of the dispute raised in the light of all the arguments addressed before us, but since I do not find any merit therein, I hold that the courts are not only vested with the jurisdiction to consider and decide the points raised in the writ petitions, but are under a duty to do so. 20. On the merits of the writ petitions let us first consider the position with respect to Sangha seat. It is not in dispute that the reserved seat is earmarked for the representative of a number of Buddhist Monasteries to be elected by an electoral college of Lamas in which th....
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....ally entitled to exercise the right being considerably very small (about 30 only). their share works out to be disproportionately very high. 21. In reply Mr. Parasaran contended that Sangha has played a vital role in the life of the community for a long time in the past, and a body consisting of Lamas and laity Lhade- Medi has contributed towards cultural, social and political development of the people of Sikkim. The Sangha seat was, therefore, introduced in order to provide for their representation. Their interest is synonymous with the interest of the minority communities and this reservation, which is coming from the time of Chogyal, should be maintained. He quoted from the Book 'the Himalayan Gateway' by George Kotturan, dealing with the history and culture of Sikkim, which states that the author found the monasteries everywhere looking after the spiritual needs of a small community. The Chogyal also allowed the Lamas to play a role in the administration and this arrangement is, therefore, not fit to be disturbed. The learned counsel explained the position in his own way as asserting that in substance the reservation is not in favour of a religious body and it is not b....
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....er 1887-1908" by J.C. White, C.I.E. (Political Officer of Sikkim 1889-1908) indicates that 'as a rule the Lamas are ignorant, idle and useless, living at the expense of the country, which they are surely dragging down. There are, of course, exceptions to every rule and I have met several lamas" who appeared to be thoroughly capable, 'but I am sorry to say that such men were few and far between. The majority generally lead a worldly life and only enter the priesthood as, a lucrative profession and one which entails no trouble to themselves". Another book 'The Himalaya Aspects of Change, 1981' by J.S. Lall (Dewan of Sikkim, 1949-1952) mentions at pages 228-229 that 'Though Lamaist Buddhism continues to be the official religion, it is professed mainly by the Butias, Lepchas and Newars, along with a few of the other tribal groups such as Tamangas, and the Buddhistic overlay wears thin in Dzongu where nun traditions survive". It is further mentioned that the influence of the Monasteries was diminishing and fewer and fewer young boys were being sent by their families as novices for the priesthood. The last Chogyal, who was himself an incarnate Lama was greatly concer....
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.... Marwaris, the aristocracy and some of the Lamas. 23. Another intervenor which placed its case is Sikkim Tribal Welfare Association, a registered Organisation for the purpose of inter alia "to effectively and efficiently establish and promote a strong and healthy Organisation of the Bhutias, Lepchas and Sherpas of Sikkim at Gangtok, and subsequently to build up similar organisations in the four districts of Sikkim". In its written argument very long excerpts have been given from a book by Joseph Dalton Hooker who visited Sikkim in 1848 (the book was published in 1854), giving detailed descriptions of the features, habits, customs et cetera of the Lepchas which are certainly very interesting but, of little relevance in the present cases. The intervenor has relied on this book for showing that the Lepchas were inhabiting Sikkim earlier than the arrival of the Nepalis who were inducted by the British rulers and others. The customs followed by them, as mentioned in the book, indicate that "their existence was primitive in nature so much so that every tribe had a priest doctor; who neither knew or practised the healing art, but was a pure exorcist; all bodily ailments being deemed the ....
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....igious institutions. What the respondents have tried to suggest is that although basically the Monasteries are religious in nature, they form a separate section of the society on account of the social services they have been rendering mainly to the Bhutia-Lepcha section of the population. Further emphasis has been laid on the fact that they were participating in the administration by the blessings of the Chogyals for about 17 years yes, only 17 years as the, seat in their favour was created for the first time in 1958 before the merger with India. The argument is that in this background they should not be treated as merely religious institutions for the purposes of reservation, and in any event religion is not the only basis for putting them in a separate group. The classification, therefore, is not unconstitutional. I do not find. myself in a position to agree with the respondents. The Buddhist, Monasteries are religious in nature out and out, and, besides taking care, of the spiritual needs of the people and looking after the ritual side of the Buddhist religion, they are also trying to do all what their religion expects, from them. The concern for the people and the society stand....
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....g the expression 'religion' in its pure and true sense spreading universal compassion and love, but in the ordinary concept as it is popularly understood today and accepted by the general man in the modern time, sometimes as a spiritual experience, sometimes as customary rituals but most of .he time as a social and political influence on one segment of the population or other, bringing with it (although not so intended) mutual distrust between man and man, and hostility amongst different religious groups. In .his process the very welfare of the society, which is of prime consideration becomes the casualty. 27. It has to be remembered that if the Constitution is so interpreted as to permit, by an amendment a seat to be reserved in the legislature for a group of religious institutions like the Buddhist Monasteries, it will follow that such a reservation would be permissible for institutions belonging to other religions also. There will not be any justifiable reason available against a similar provision for the Christian Missionary institutions in the country on the ground of their services, to the cause of upliftment of Adivasis, their contribution in the field of education,....
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....rged that these provisions do not render the Constitution undemocratic or illegal. He also referred to the Statesman's Year Book (containing statistical and historical annual of the States of the world for the year 1985-86) showing that the population of the Christian community following Greek- Orthodox Church was in 1983, 5,28,700 but was allotted only 70% of the seats in the legislature, and the Turkish Muslims with a population of only 1,22,900, the remaining 30% of seats. In other words the Muslims forming only about 20% of the total population., were allotted 30% of the seats. The fallacy in the argument of the learned counsel is the erroneous assumption that fundamental features of all constitutions are same or similar. The basic philosophy of a constitution is related to various elements including culture and tradition, social and political conditions, and the historical background. If the partition of India had not taken place in 1947 and the people belonging to all the religious communities had decided to agree on some arrangement like the people of Cyprus. by adopting a constitution providing for sharing of power on religious basis, the Constitution of Cyprus could ha....
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....establishment of the British rule, the Hindus and the Muslims were working together, and the combination was proving to be dangerous to the foreigners, and in 1857 the Empire had to face a serious threat. That in this background the principles of divide and rule was adopted and an atmosphere of distrust and hatred between the main communities of the country on the basis of religion was created, are undisputed facts of history. The people, who made exemplary sacrifices, unfortunately failed in their fight for independence of the undivided nation and were left with no alternative but to be reconciled with partition of the country. These were the people who proceeded to frame the present Constitution, and despite the Net back they had suffered, they reiletrated their firm belief in a democratic republic where religion has no role to play. All this is what has been described as 'Enacting History,' by jurists and is available as aid to the interpretation of the Constitution. 31. If we proceed to consider the entire Constitution harmoniously along with all the other materials, relevant in law for this purpose including the 'Enacting History, there is no escape from the concl....
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.... II, p. 412] I think that the Advisory Committee was right in suggesting that the decision against separate electorates was absolutely decisive for all times to come. Sardar Patel, after referring to the suffering and the heavy penalty the nation had to pay on this count, expressed his satisfaction "that there has been unanimity on the point that there should be no more separate electorates and we should have joint electorates hereafter. So this is a great gain". Replying to the Debate Sardar Patel expressed his views in the following words :- "I had not the occasion to hear the speeches which were made in the initial stages when this question of communal electorates was introduced in the Congress; but there are many eminent Muslims who have recorded their views that the greatest evil in this country which has been brought to pass is the communal electorate. The introduction of the system of communal electorates is a poison which has entered into the body politic of our country. Many Englishmen who were responsible for this also admitted that. But today, after agreeing to the separation of the country as a result of this communal electorate, I never thought that that proposition....
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....ightage for the Muslims. The occasion was provided by the demand of the separate electorate for the Muslims by a deputation headed by Aga Khan presented to the then, Viceroy, Lord Minto, in 1906. Lord Minto not only supported him but added that in view of the service that the Muslims had rendered to the Empire, their position deserved to "be estimated not merely on "their" numerical strength but in respect of the political importance of "the" community and the service that it had rendered to the Empire". The demand was accepted in 1909 by Minto Morley Reforms. The matter was again considered in 191.9 by the Montague-Chenisford Committee. Their report disapproved the idea of separate electorates by stating that such electorates "were opposed to the teaching of history : that they perpetuated class division : that they stereotyped existing relations; and that they constituted a very serious hindrance to the development of the self-governing principle". Sardar Patel was, in his reply, presumably referring to these expressions and similar other opinions: Unfortunately, however, the principle of communal electorates was adopted for the Muhammadans in the country and in Punjab for Sikhs.....
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....unds only of religion, race, caste, sex or any or them." 36. During the hearing it was also contended that if the Constitution permits nominations to be made in the legislatures how can the creation of a separate electorates for the Sangha seat be objected to. I do not find any parallel between the two. After the establishment of a democratic government at every level in the country in one from or the other, nomination under the Constitution amounts to exercise of a power to induct a member in the legislature by an authority, who ultimately represents the people, although the process of the representation may be a little involved. So far a handful of the Buddhist Monasteries in Sikkim are concerned, they cannot be said to represent the people of Sikkim in any sense of the term. Allotting a seat in the legislature to represent these religious institutions is bad enough by itself; and then, to compound it by vesting the exclusive right in them to elect their representative to occupy the reserved seat is to aggravate the evil. I do not think this can be compared with any of the provisions in the Constitution relating to nominations. From the entire scheme of the Constitution, it is ....
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....s passed, which came into force on 4.7.1974, the following provision was included in section 7:- "7. (1) For the purpose of elections to the Sikkim Assembly Sikkim shall be divided into constituencies in such manner as may be determined by law. (2) The Government of Sikkim may make rules for the purpose of providing that the Assembly adequately represents the various sections of the population, that is to say, while fully protecting the legitimate rights and interests of Sikkimese of Lepcha or Bhutia origin and of Sikkimese of Nepali origin and other Sikkimese, including Tsongs and Scheduled Castes no single section of the population is allowed to acquire a dominating position in the affairs of Sikkim mainly by reason of its ethnic origin.' In these circumstances the Thirty-Fifty Amendment of the Constitution of India was made which became effective from 23.2.1975 and Sikkim was thus Associated with the Union of India. The Thirty-Sixth Amendment of the Constitution inserting the new Article 371F was thereafter made with clause (f) which reads as follows:- "(f) Parliament may, for the purpose of protecting the rights and interests of the different sections of the populat....
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....istration grew stronger, the Chogval adopted the line of appeasement by establishing a Council where initially 12 members were divided half and half (vide the Proclamation of 28th December, 1952) between the Bhutia-Lepchas on the one hand and the Nepalis on the other. But soon he appreciated that unless he reserved to himself the right to induct some more nominees of his own, his position would be jeopardised. He, therefore, hurriedly issued another Proclamation within 3 months, on the 23rd March, 1953, declaring that 6 more members would be included in the Council to be nominated by him in his discretion including the President of the Council. In Article 26 he expressly declared that notwithstanding the provisions of the other Articles he would be retaining his power to veto any decision made by the Council and substitute his own decision therefore. 40. The steps taken by the Chogyal could not control the demand for democracy and the public agitation gathered more support. Ultimately the people came out victorious, not only in getting rid of the Chogyal, but also in their demand for democracy to be established on the lines as in India. The Chogyal, of course, in his vain attempt ....
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.... of the Agreement it was emphasised that the Government of India was solely responsible for the defence and territorial integrity of Sikkim and for the conduct and regulation of the external relations whether political, economic or financial, and necessary powers for carrying out these responsibilities were reaffirmed. A perusal of the document clearly indicates that the spirit of the Indian Constitution pervaded through out the entire Agreement and the terms thereof were drafted respecting the main principles embodied in our Constitution. It must, therefore, be held that an interpretation cannot be given to the Agreement which will render it as deviating from the constitutional pattern of the Indian Constitution. 41. A question may be raised that since the Agreement included paragraph (5) which has been quoted earlier, does that inject in this Agreement an element incompatible with the Indian Constitution. In my opinion the answer is in the negative. The safeguard under the scheme envisaged in paragraph (5) was capable of being provided by the Indian Constitution. Many provisions in the different parts of the Constitution including Part III are relevant in this regard. Their repr....
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....vident by reported cases. The necessary consequence of assuming otherwise would be to hold that under the Constitution applicable to the rest of the country, the minorities here have no protection again the "dominance of the majority, and our stand about the rule of law and equality of status to all in this country is an empty claim made before the world. 42. The further point is as to whether the provisions of clause (f) of Article 371F envisage and authorise the Parliament to exercise its power only in such a manner which would be consistent with the relevant provisions of the Constitution applicable to the rest of the country if the same is capable of achieving the object with reference to the special conditions of Sikkim; or, that they allow the Parliament to take any decision in this regard, including such measures which would perpetuate the situation obtaining in Sikkim in the past, on the ground of historical background. For the reasons indicated earlier, I am of the view that clause (f) permits the Parliament to take only such steps which would be consistent with the provisions of the Constitution coming from before, so that Sikkim could completely merge with India and be ....
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....cle was considered necessary only the limited purpose to meet the special circumstances and needs of Sikkim. The question is whether a provision for granting a disproportionately higher representation of the Bhutia-Lepchas in the State legislature was necessary. If it was not, clause (f0 of Article 371F must be construed as not protecting the impugned statutory amendments. 44. If we examine the different clauses of Article 371F, we find that several additional provisions deviating from the original, have been incorporated in the Constitution, in view of the special circumstances peculiar to Sikkim. By Article 170 the minimum size of the Assembly of the States .is fixed at 60 seats which was too large for a small State like Sikkim with a total population of only three lacs. This was a special feature which distinguished it from the other States. The ratio of the number of the representatives to the population did not justify a House of 60 and, therefore, by clause (.a) the minimum number was fixed only at 30. For obvious reasons clauses (c) and (e) had to be inserted in the Article as the appointed day with reference to Sikkim could not have been the same as the appointed day with ....
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....esentation of the People Act, 1.950 and section 5A in the Representation of the People Act, 1951 and other related amendments. They being violative of the constitutional provisions including those in Article 371F (f) are ultra vires. 45. The next point is as to whether clause (f) of Article 371F will have to be struck down on the ground of violation of the basic features of the Constitution, if it is interpreted as suggested on behalf of the respondents. 46. The Preamble of the Constitution of India emphatically declares that. we were giving to ourselves the Constitution with a firm resolve to constitute a sovereign, democratic, republic; with equality of status and of opportunity to all its citizens. The issue which has direct bearing on the question under consideration is as to what is the meaning of 'democratic republic'. The expressions 'democracy' and 'democratic' have been used in varying senses in different countries and in many places have been subjected to denote the state of affairs which is in complete negation of the meaning in which they are understood. During the present century it progressively became more fashionable and profitable to frequ....
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....90% reserved seats the basic flaw going to the root of the matter is not cured. The choice of the candidate and the right to stand as a candidate at the election arc inherent in the principle of adult suffrage, that is, one-man-one-vote. By telling the people that they have a choice to elect any of a select group cannot be treated as a free choice of the candidate. This will only amount to lip service, to thinly veiled to conceal the reality of an oligarchy underneath. It will be just an apology for democracy, a subterfuge; and if it is permitted to cross the limit so as to violate the very core of the principle of one-man-one-vote, and is not controlled by the constitutional safeguards as included in clause (3) of Article 332 (see paragraph 12 above) of the Constitution it will amount to a huge fraud perpetrated against the people. So far the Sangha seat is concerned even this transparent cloak has been shed off. It has to be appreciated that the very purpose of providing reservation in favour of a weaker class is to aid the elemental principle of democracy based on one-man-one-vote to succeed. The disproportionately excessive reservation creates a privileged class, not brought to....
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.... relevant in the present context, because that did not shake their faith in democracy where every person is to be treated equal, and with this firm resolve, they proceeded to make the Constitution. An examination of the provisions of the Constitution does not leave room from any doubt that this idea has been kept as the guiding factor while framing the Constitution. 'Democracy' and 'republic' have to be understood accordingly. Let us now examine the Constitution in this light. 48. As explained by the Preamble the quality of democracy envisaged by the Constitution does not only secure the equality of opportunity but of status as well, to all the citizens. This equality principle is clearly brought out in several Articles in the different parts of the Constitution, including Part III dealing with Fundamental Rights, Part IV laying down the Directive Principles of State policy and Part XVI having special provisions relating to certain classes. The spirit pervades through the entire document as can be seen by the other provisions too. When the question of the qualification for election as President arises, all classes of citizens get same treatment by Articles 58 and 5....
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....he war of independence; and they undo what has been achieved by the Constitution. This is clearly violative of the basic features of the Constitution. I hold that if clause (f) of Article 371F is so construed as to authorise the Parliament to enact the impugned provisions it will be violative of the basic features of the Constitution and, therefore, void. 49. The views expressed above are adequate for the disposal of the present cases, but it may be expedient to examine the matter from one more angle before concluding the judgment. It was very strongly contended by the learned advocates for the respondents that the impugned provisions should be upheld and the writ petitions dismissed by reason of the historical background of Sikkim. It was repeatedly emphasised that in view of the 5th term of the Tripartite Agreement and in view of the fact that the Sangha seat was created by Chogyal as far back as in 1958, the arrangements agreed upon by the parties are not liable to be disturbed. Reference was made to the several Proclamations of Chogyal by the counsel for the different respondents and intervenors one after the other. In my view the impact of the historical background on the int....
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....a vires the Constitution including Article 371F (f). Consequently the present Sikkim Assembly constituted on the basis of the election, held under the impugned provisions has to be declared illegally constituted. Therefore, the concerned authorities must take fresh and immediate steps under the law consistent with the Constitution as applied to the rest of the country. The writ petitions are accordingly allowed with costs payable to the writ petitioners. 51. Before finally closing, I would like to say a few words in the light of the opinion of my learned Brothers as expressed in the majority judgment disagreeing with my conclusions. In view of this judgment all the petitions have now to be dismissed, but I want to emphasize that what has been held therein is that the Parliament has not exceeded its Constituent and Legislative Powers in enacting the impugned provisions and consequently the writ petitions have to be dismissed. This does not mean that the Parliament is bound to give effect to the discriminatory provisions by reason of the historical background in which Sikkim joined India. It is within the 'wisdom' (to borrow the expression from paragraph 30 of the majority j....
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....r special status as members of separate groups and classes and not to join the mainstream of the nation and be identified as Indians. It is', therefore, absolutely essential that religion, disguised by any mask and concealed within any cloak must be kept out of the field exclusively reserved for the exercise of the State powers. To my mind the message has been always dear and loud and now it remains for the nation to pay heed to and act through its elected representatives. VENKATACHALIAH, J. 52. These petitions under Article 226 of the Constitution of India -- which where originally filed in the High Court of Sikkim and now withdrawn by and transferred to this Court under Article 139-A -- raise certain interesting and significant issues of the constitutional limitations on the power of Parliament as to the nature of the terms and conditions that it could impose under Article 2 of the Constitution for the admission of the new States into the Union of India. These issues arise in the context of the admission of Sikkim into the Indian Union under the Constitution (36th Amendment) Act, 1975 as the 22nd State in the First Schedule of the Constitution of India. 53. Earlier, in pur....
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....e from Kham in Tibet during the 15th and 16th centuries. These people of Tibetan origin are called Bhutias - said to be a derivative from the word "Bod" or "Tibet" - and as the tradition has it took refuge in the country after the schism in Tibet in 15th and 16th centuries. One of their Chieftains was crowned the 'Chogyal' of Sikkim in 1642. It would appear that Sikkim was originally quite an extensive country but is stated to have lost large chunks of its territories to Nepal and Bhutan and finally to the British. Lepchas and Bhutias are Buddhists by religion. Sikkim was a British protectorate till 1947 when the British paramountancy lapsed whereafter under a Treaty of the 3rd December, 1950 with India, Sikkim continued as a protectorate of India. Over the past century there was large migration into Sikkim of people of Nepalese origin. The influx was such that in the course of time, Sikkimese of Nepalese origin constituted almost 2/3rd of Sikkim's population. There has been, accordingly, a clamour for protection of the original Bhutias-Lepchas now an ethnic majority from the political voice and expression being sub- merged by the later immigrants from Nepal. 56. Thes....
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....democratic government." Pluralist societies are the result of irreversible movements of history. They cannot be washed away. The political genius of a people should be able to evolve within the democratic system, adjustments and solutions. 57. Pursuant to Article 371-F and the corresponding consequential changes brought about in the Representation of the People Act, 1950, Representation of the People Act, 1951, as amended by the Election Laws (Extension to Sikkim) Act, 1976 and the Representation of the People (Amendment) Act, 1980, 12 out of the 32 seats in the Sikkim Assembly are reserved for the Sikkimese of "Bhutia-Lepcha" origin and one seat for the "Sangha", Buddhist Lamaic monasteries the election to which latter being on the basis of a separate Electoral roll in which only the "Sanghas" belonging to the Lamaic monasteries recognised for the purposes of elections held in Sikkim in April, 1974, are entitled to be registered. These reservations of seats for the ethnic and religious groups are assailed by the petitioners who are Sikkimese of Nepali origin as violative of the fundamentals of the Indian constitutionalism and as violative of the principles of republicanism and ....
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....es as under 1. Bhutia-Lepchas 7 2. Sikkimese Nepalese 7 3. The Sanghas 1 4. Scheduled Caste 1 5. Tsong 1 6. General seat 1 7. Nominated by the Chogyal 6 Total = 24 59. The year 1973 saw the culmination of a series of successive political movements in Sikkim towards a Government responsible to the people. On 8th May, 1973, a tripartite agreement was executed amongst the Ruler of Sikkim, the Foreign Secretary to the Government of India and the political parties representing the people of Sikkim which gave expansion to the increasing popular pressure for self-Government and democratic institutions in Sikkim. This tripartite agreement envisaged the right of people of Sikkim to elections on the basis of adult suffrage. It also contemplated the setting up of a Legislative Assembly in Sikkim to be re-constituted by election every four years. The agreement declared a commitment to free and fair elections to be overseen by a representative of the Election Commission of India. Clause 5 of the Tripartite agreement said : "(5) The system of elections shall be so organised as to make the Assembly adequately representative of the various sections of ....
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.... The Assembly which the has been formed as a result of the elections held in Sikkim in April, 1974, shall be deemed to be the first Assembly duly constituted under this Act, and shall be entitled to exercise the powers and perform the functions conferred on the Assembly by this Act." 61. Article 2A of the Constitution introduced by the Constitution (35th Amendment) Act, 1974 was the Indian reciprocation of the aspirations of the Sikkimese people and Sikkim was given the status of an "Associate State" with the Union of India under terms and conditions set out in the 10th Schedule inserted in the Constitution by the said Constitution (35th Amendment) Act, 1974. 62. The year 1975 witnessed an uprising and dissatisfaction of the people against the Chogyal. The Sikkim Assembly, by an unanimous resolution, abolished the institution of "Chogyal" and declared that Sikkim shall thenceforth be "a constituent unit of India enjoying a democratic and fully responsible Government". The resolution also envisaged an opinion-poll the matter. Its resolution was endorsed by the people of Sikkim in the opinion-poll conducted on 14.4.1975. The Constitution (36th Amendment) Act, 1975 came to be passed....
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....1-A). Notwithstanding anything contained in sub-s. (1), the total number of seats in the Legislative Assembly of the State of Sikkim, to be constituted at anytime after the commencement of the Representation of the People (Amendment) Act 1980 to be filled by persons chosen by direct election from assembly constituencies shall be thirty-two, of which (a) twelve seats shall be reserved for Sikkimese of Bhutia Lepcha origin; (b) two seats shall be reserved for the Scheduled Caste of that State; and (c) one seat shall be reserved for the Sanghas referred to in Section 25-A. Explanation : In this sub-s. 'Bhutia' includes Chumbipa, Dopthapa, Dukpa, Kagatey, Sherps, Tibetan, Tromopa and Yolmo." Section 5-A was also introduced in the Representation of the People Act, 1951. Sub-section (2) of Section 5A provides : "5A (2) Notwithstanding anything contained in Section 5, a person shall not be qualified to be chosen to fill a seat in the Legislative Assembly of the State of Sikkim, to be constituted at any time after the commencement of the Representation of the People (Amendment) Act, 1980 unless (a) in the case of a seat reserved for Sikkimese of BhutiaLepcha origin, he....
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.... sections of population of Sikkim and for the number of seats in the Legislative Assembly which may be filled by the candidates belonging to such sections, the impugned provisions provide for one section alone, namely, the Bhutias-Lepchas. (f) Whether, at all events in view of the Constitution (Sikkim) Scheduled Tribes Order, 1978 declaring Bhutias and Lepchas as a Schedule Tribe, the extent of reservation of seats is disproportionate and violative of Article 332(3) of the Constitution which requires that the number of seats to be reserved shall bear as nearly as may be, the same proportion to the total number of the seats in the Assembly as the population of the Scheduled Tribe in the State bears to the total population of the State. (g) Whether the reservation of one seat for Sangha to be elected by an Electoral College of Lamaic monasteries is based purely on religious distinctions and is, therefore, unconstitutional as violative of Articles 15(1) and 325 of the Constitution and as violative of the principle of secularism? Re Contention (a) 64. The territory of Sikkim was admitted into the Indian Union by an act of voluntary cession by the general consent of its inhabitant....
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....s bearing on the effect of the provisions of the Administration Act and the Regulation, it is necessary to reiterate a well-settled legal position that when a new territory is acquired in any manner - be it by consent, annexation or cession following upon a treaty - the new " sovereign" is not bound by the rights which the residents of the conquered territory had against their sovereign or by the obligations of the old sovereign towards his subjects. The rights of the residents of a territory against their state of sovereign come to an end with the conquest, annexation or cession of that territory and do not pass on to the new environment. The inhabitants of the acquired territory bring with them no rights which they can enforce against the new State of which they become inhabitants. The new state is not required, by any positive assertion or declaration, to repudiate its obligations by disowning such rights. The new state may recongnise the old rights by re-granting them which, in the majority of cases, would be a matter of contract or of executive action; or, alternatively, the recognition of old rights may be made by an appropriate statutory provisions whereby rights which were ....
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....should be treated exactly similar to the States as at the time of the commencement of the Constitution? If not, what is the extent of the permissible departure and latitude and do the conditions in clause (f) of Article 371-F and as expressed in the electoral laws as applicable to Sikkim go beyond these constitutionally permissible limits? These are some of the questions. 66. The learned Attorney-General for the Union of India and Sri Parasaran sought to contend that the terms and conditions of admission of a new territory into the Union of India are eminently political questions which the Court should decline to decide as these questions lack adjudica- tive disposition. This political thickets doctrine as a restraint on judicial power has been the subject of forensic debate, at once intense and interesting, and has evoked considerable judicial responses. 67. In "The Constitution of the United States of America" (Analysis and Interpretation; Congressional Research Service: Library of Congress 1982 Edn. at p.703), the following statement of the law on the subject occurs: " It may be that there will be a case assuredly within the Court's jurisdiction presented by the parties wi....
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....as well. In Japan Whaling Ass'n v. American Cetacean Society, 478 [1986] US 221 the American Supreme Court said "We address first the Japanese petitioners' contention that the present actions are unsuitable for judicial review because they involve foreign relations and that a federal court, therefore, lacks the judicial power to command the Secretary of Commerce, an Executive Branch official, to dishonor and repudiate an international agreement. Relying on the political question doctrine, and quoting Baker v. Carr., 369 US 186, 217 7 L Ed. 2d 663, 82 S Ct. 691 (1969) the Japanese Petitioners argue that the danger of "embarrassment from multifarious pronouncements by various departments on one question" bars any judicial resolution of the instant controversy." (Page 178) "We disagree. Baker carefully pointed out that not every matter touching on politics is a political question, id., at 209, 7 L Ed. 2d 663, 82 S.Ct. 691, and more specifically, that it is "error to suppose that every case of controversy which touches foreign relations lies beyond judicial cognizance." Id., at 211, 7 L Ed. 2d 663, 82 S Ct. 691. The political question doctrine excludes from judicial review t....
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.... courts are in sharp conflict. The result, more or less, is that in America the phrase "political question' has become 'a little more than a play of words". There is further recognition of the limitation of this doctrine in the pronouncement of this Court in Madhav Rao v. Union of India, [1971] 3 SCR 9 and State of Rajasthan v. Union of India, [1978] 1 SCR 1. 70.It is urged for the respondents that Article 2 of the Constitution empowers the Parliament, by law, to admit into the Union new States "on such terms and conditions as it finds fit" and that these considerations involve complex questions of political policy and expedience; of international-relations; of security and defence of the realm etc. which do not possess and present judicially manageable standards. Judicial response to these questions, it is urged, is judicial restraint. The validity of clause (f) of Article 371 F introduced by the Constitution (36th Amendment) Act, 1975 is assailed on the ground that the said clause provides for a reservation which violates 'one person one vote' rule which is essential to democracy which latter is itself a basic feature of the Constitution. The power to admit new....
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....itions stipulated in a law made under Article 2 read with clause (f) of Article 371F go beyond the constitutionally permissible latitudes, that law can be questioned as to its validity. The contention that the vires of the provisions and effects of such a law are non- justiciable cannot be accepted. Contention (a) requires to be and is rejected. Re : Contentions (b), (c) and (d) 71. The objection of non-justiciability thus out of their way, he petitioners urge that the provisions in clause (f) of Article 371F enabling reservation of seats for sections of the people and law made in exercise of that power providing reservation of seats to Bhutias-Lepchas violate fundamental principles of democracy and republicanism under the Indian Constitution and violate the 'one person one vote' rule which, it is urged, is a basic to the republican principle found in Article 170(2) of the Constitution. Sri R.K. Jain, learned senior counsel for the petitioners said that apart from the invalidity of the power itself the exercise of the power in the matter of the extent of the reservations made for Bhutias-Lepchas has the effect of whittling down, correspondingly, the value of the votes o....
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....hat it had jurisdiction in the matter of huge disparities in the value of citizens' votes. it did so, significantly, by referring to the Fourteenth Amendment, which guarantees equal protection of the laws." (Page 55) 72. The concept of political equality underlying a democratic system. is a political value. Perfect political equality is only ideological. Indeed, a, Rodney Brazier points out in his "Constitutional Reform: Reshaping the British Political System" : "Inextricably linked in the voting system with unfairness is the supremacy of decisiveness over representativeness. The first-past-the-post system has developed into a mighty engine which can be relied on to produce a government from one of the two principal parties. But in that development the purpose of gathering a House of Commons which is broadly representative of the electorate has rather faded. This would be possibly not be as important as it is if the elective function worked on the basis of a majority of voters conferring a parliamentary majority on the winning party. Patently, however, it does not do so. Mrs. Thatcher's 144-seat landslide majority in 1983, and her huge 102-seat majority in 1987, were ach....
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.... rural depopulation and increasing urbanisation. In the work "Legislative Apportionment : Key to Power" (Howard D. Hamilton) the learned author says : "But even the right to vote, and its exercise does not in itself insure equal voice in the affairs of government. Today--more than 175 years after the nation was founded the votes of millions of citizens are worth only one-half, one quarter and even one-one hundredth the value of votes of others because of the unfair formulas by which we elect the Unites States Congress and the legislatures of the forty-eight states. As our population grows and moves continuously toward urban centres, the ballots of millions become less and less equal to the votes of others. Our system of representative government is being sapped at its roots." "Who are the second-class citizens in this under represented majority? They are the millions living in our towns and cities, says the United States Conference of Mayors, pointing to the fact that the 59 per cent of all Americans who were living in urban centers in 1947 elected only 25 percent of the state legislators." (Page 74) Gordon E. Baker writing on "One Person, One Vote : "Fair and Effective Rep....
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....nts, or citizens, or voters. Mathematical exactness or precision is hardly a workable constitutional requirement." (p.536) "... So long as the divergences from a strict population standard are based on legitimate considerations incident to the effectuation of a rational state policy some deviations from the equal-population principle are constitutionally permissible with respect to the apportionment of seats in either or both of the two houses of a bicameral state legislature." (p.537) (emphasis supplied) 74. Section 24 of the Australian Constitution requires that "the House of Representatives shall be composed of members directly chosen by the people of Commonwealth". The High Court of Australia considered the principle of Reynolds v. Sims, (supra) somewhat inapposite in the Australian context. In Attorney General (CTH) Ex. Rel Mckinlay v. The Commonwealth,[1975] 135 CLR 1 at p.22 Barwick CJ observed : "It is, therefore, my opinion that the second paragraph of s.24 cannot be read as containing any guarantee that there shall be a precise mathematical relationship between the number of members chosen in a State and the population of that State or that every person in Australia....
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....at Article 371-F(f) and the electoral laws in relation to Sikkim seek to provide, it is urged, is to maintain this balance in the peculiar historical setting of the development of Sikkim and its political institutions. 77. So far as the 'Sangha' is concerned it is urged that though it was essentially a religious institution of the Buddhists, it however occupied a unique position in the political, social and cultural fife of the Sikkimese society and the one seat reserved for it cannot, therefore, be said to be based on considerations 'only' of religion. In the counter-affidavit filed by the Sikkim Tribal Welfare Association, certain special aspects of the position of the 'Sangha' in Sikkim's polity are emphasised. Reference to and reliance has been placed on the extracts from "The Himalayan Gateway' (History and Culture of Sikkim) in which the following passages occur: "The reservation for the Sangha is the most unique feature of the political set up in the State. It is a concession to continuity and is admittedly short term. Before the revolution the Buddhist Sangha of the Lamas wielded immense power, both religious and political. The people have....
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....lergymen who managed the affairs of the state in collaboration with Kazis." (p. 18, 19) 78. As is noticed earlier Article 2 gives a wide latitude in the matter of prescription of terms and conditions subject to which a new territory is admitted. There is no constitutional imperative that those terms and conditions should ensure that the new State should, in all respects, be the same as the other States in the Indian Union. However, the terms and conditions should not seek to establish a form or system of Government or political and governmental institutions alien to and fundamentally different from those the Constitution envisages. Indeed, in "Constitutional Law of India", [Edited by Hidayatullah, J. published by the Bar Council of India Trust], it is observed "Foreign territories, which after acquisition, become a part of the territory of India under Article 1(3) (c) can be admitted into the Union of India by a law passed under Article 2. Such territory may be admitted into the Union of India or may be constituted into new States on such terms and conditions as Parliament may think fit. Such territory can also be dealt with under clause (a) or (b) of Article 3. This means that....
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....atical proportionality of representation is not a declared basic requirement in each and every part of the territory of India. Accommodations and adjustments, having regard to the political maturity, awareness and degrees of political development in different parts of India, might supply the justification for even non-elected Assemblies wholly or in part, in certain parts of the country. The differing degrees of political development and maturity of various parts of the country, may not justify standards based on mathematical accuracy. Articles 371A, a special provisions in respect of State of Negaland, 239A and 240 illustrate the permissible areas and degrees of departure. The systemic deficiencies in the plenitude of the doctrine of fun and effective representation has not been understood in the constitutional philosophy as derogating from the democratic principle. Indeed the argument in the case, in the perspective, is really one of violation of the equality principle rather than of the democratic principle. The inequalities in representation in the present case are an inheritance and compulsion from the past. Historical considerations have justified a differential treatment. A....
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....his purpose even one person or group of persons can be a class. Professor Willis says in his Constitutional Law p.580 "a law applying to one person or one class of persons is constitutional if there is sufficient basis of reason for it....... And if after reorganisation of States and integration of the Pepsu Union in the State of Punjab, different laws apply to different parts of the State, that is due to historical reasons, and that has always been recognised as a proper basis of classification under Article 14." In State of Madhya Pradesh v. Bhopal Sugar Industries Ltd., [1964] 6 SCR 846 at 850 this court said: The Legislature has always the power to make special laws to attain particular objects and for that purpose has authority to select or classify persons, objects or transactions upon which the law is intended to operate. Differential treatment becomes unlawful only when it is arbitrary or not supported by a rational relation with the object of the statute........ where application of unequal laws is reasonably justified for historical reasons, a geographical classification founded on those historical reasons would be upheld." We are of the view that the impugned provisi....
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....9;Sangha' which is Bhuddhist Lamaic religious monasteries, is one purely based on religious considerations and is violative of Articles 15(1) and 325 of the Constitution and offends its secular principles. The reservation of one seat for the 'Sangha', with a special electorate of its own, might at the first blush appear to resuscitate ideas of separate electorates considered pernicious for the unity and integrity of the country. The Sangha, the Buddha and the Dharma are the three fundamental postulates and symbols of Buddhism. In that sense they are religious institutions. However, the literature on the history of development of the political institutions of Sikkim adverted to earlier tend to show that the Sangha had played an important role in the political and social life of the Sikkimese people. It had made its own contribution to the Sikkimese culture and political development. There is material to sustain the conclusion that the 'Sangha' had long been associated itself closely with the political developments of Sikkim and was inter- woven with the. social and political life of its people. It view of this historical association, the provisions in the matter....
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....ed to as the '1976 Act') and the Representation of the People (Amendment) Act, 1980 (Act No. 8 of 1080) (hereinafter referred to as the '1980 Act'), whereby (i) twelve seats out of thirty-two seats in the Legislative Assembly of Sikkim have been reserved for Sikkimese of Bhutia-Lepcha origin; and (ii) one seat has been reserved for Sanghas and election to the seat reserved for Sanghas is required to be conducted on the basis of a separate electoral roll in which only the Sanghas belonging. to monasteries recognised for the purpose of elections held in Sikkim in April, 1974 for forming the Assembly for Sikkim are entitled to be registered. 87. For a proper appreciation of the questions that arise for consideration, it is necessary to briefly refer to the historical background in which the impugned provisions were enacted. 88. Sikkim is mainly inhabited by Lepchas, Bhutias and Nepalese. Lepchas are the indigenous inhabitants. Bhutias came from Kham in Tibet some time during fifteenth and sixteenth centuries and one of the chieftains was crowned Chogyal, or religious and secular ruler, in 1642. Lepchas and Bhutias are Buddhists. By the end of the last century, Sikkim....
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....eral Constituency was to comprise the whole of Sikkim and the Sangha Constituency was to comprise the Sanghas belonging to the monasteries recognised by the Sikkim Darbar. It was also declared that, besides the President who was to be appointed by the Chogyal, the Sikkim Council was to consist of twenty-four members out of which seven were to be Bhutia-Lepcha and seven were to be Sikkimese Nepali who were to be elected from five territorial constituencies; three members were to be elected from the general constituency out of which one seat was to be a General seat, the second from the Scheduled Castes as enumerated in the Second Schedule annexed to the Proclamation, and the third from Tsongs; and the Sangha Constituency was to elect one member through an electoral college of the Sanghas. Six seats were to be filled in by nomination made by the Chogyal at his discretion. 91. On May 8, 1973, a tripartite agreement was entered into by the Chogyal of Sikkim the Foreign Secretary to the Government of India and the leaders of the political parties representing the people of Sikkim, whereby it was agreed that the people of Sikkim would enjoy the right of election on the basis of adult su....
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....Assembly thus elected, passed the Government of Sikkim Bill, 1974, and after having received the assent of the Chogyal of Sikkim the said Bill was notified as the Government of Sikkim Act, 1974. As stated in the Preamble, the said Act was enacted to provide "for the progressive realisation of a fully responsible Government in Sikkim and for further strengthening its close relationship with India". Section 7 of the said Act relating to elections to the Sikkim Assembly gave recognition to paragraph 5 of the tripartite agreement dated May 8, 1973 in sub-s. (2) wherein it was provided: "(2) The Government of Sikkim may make rules for the purpose of providing that the Assembly adequately represents the various sections of the population, that is to say, while fully protecting the legitimate rights and interests of Sikkimese of Lepcha or Bhutia origin and of Sikkimese of Nepali origin and other Sikkimese, including Tsongs and Scheduled Castes no single section of the population is allowed to acquire a dominating position in the affairs of Sikkim mainly by reason of its ethnic origin". 94. Section 30 of the said Act made provision for association with the Government of India for speedy....
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....to the State of Sikkim were made. By virtue of Clause (b) of Article 371-F the Assembly of Sikkim formed as a result of the elections held in Sikkim in April 1974 was to be deemed to be the Legislative Assembly of the State of Sikkim duly constituted under the Constitution and under Clause (c) the period of five years for which the Legislative Assembly was to function was to be deemed to have commenced on the date of commencement of the Constitution (Thirty-Sixth Amendment) Act, 1975. Clause (f) of Article 371-F empowers Parliament to make provision for reservation of seats in the Legislative Assembly of the State of Sikkim for the purpose of protecting the rights and interests of the different sections of the population of Sikkim. 99. Thereafter Parliament enacted the 1976 Act to provide for the extension of the 1950 Act and the 1951 Act to the State of Sikkim and introduced certain special provisions in the 1950 Act and the 1951 Act in their application to Sikkim. Many of those provisions were transitory in nature being applicable to the Sikkim Assembly which was deemed to be the Legislative Assembly of the State of Sikkim under the Indian Constitution. The only provision which ....
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....s chosen by direct election from assembly constituencies shall be thirty-two, of which (a) twelve seats shall be reserved for Sikkimese of Bhutia-Lepcha origin; (b) two seats shall be reserved for the Scheduled castes of that State; and (c) one seat shall be reserved for the Sanghas referred to in Section 25-A. Explanation : In this sub-s. 'Bhutia' includes Chumbipa, Dopthapa, Dukpa, Kagatey, Sherpa, Tibetan, Tromopa, and Yohmo". 103. Similarly, the following provision was inserted in Section 5-A of the 1951 Act : "(2) Notwithstanding anything contained in Section 5, a person shall not be qualified to be chosen to fill a seat in the Legislative Assembly of the State of Sikkim, to be constituted at any time after the commencement of the Representation of the People (Amendment) Act, 1980 unless (a) in the case of a seat reserved for Sikkimese of BhutiaLepcha origin, he is a person either of Bhutia or Lepcha origin and is an elector for any assembly constituency in the State other than the constituency reserved for the Sanghas; (b) in the case of a seat reserved for the Scheduled Castes, he is a member of any of those castes in the State of Sikkim and is an elect....
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.... matters in issue being political in nature are not justiciable. It has been urged that admission of Sikkim as a State of Indian Union constitutes acquisition of territory by cession in international law and the terms and conditions on which the said cession took place as contained in Article 371-F, are intended to give effect to the tripartite agreement dated May 3, 1973 which was political in nature. It is further urged that under Article 2 of the Constitution, Parliament is empowered by law to admit into Union of India and establish new States on such terms and conditions as it thinks fit and that Article 371-F prescribing the terms and conditions on which the State of Sikkim was admitted into the Union of India is a law under Article 2 of the Constitutions and merely because it was introduced in the Constitution by the Constitution (Thirty- sixth Amendment) Act enacted under Article 368 of the Constitution. by way of abundant caution, is of no consequence and that it does not alter the true character of the law. The submission is further that since the terms and conditions on which Sikkim was admitted in Union of India, are political in nature, the said terms and conditions can....
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....m multifarious pronouncements by various departments on one question. Unless one of these formulations is inextricable for the case at bar, there should be no dismissal for non-justiciability on the ground of a political question's presence'. (p. 217) 109. In Powell v. McCormack, 395 US 490, after reiterating the observations of Brennan, J. In Baker v. Carr (Supra),Warren, CJ has stated "In order to determine whether there has been a textual commitment to a co-ordinate department of the Government, we must interpret the Constitution. In other words, we must first determine what power the Constitution confers upon the House through Art. I, 5, before we can determine to what extent, if any, the exercise of that power is subject to judicial review. ...If examination of 5 disclosed that the Constitution gives the House judicially unreviewable power to set qualifications for memebership and to judge whether prospective members meet those qualifications, further review of the House determination might well be barred by the political question doctrine. On the other hand, if the Constitution gives the House power to judge only whether elected members possess the three standing q....
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....#39;. Rejecting the said contention, Shah, J. (as the learned Chief Justice then was) speaking for the majority, observed "The functions of the State are classified as legislative, judicial and executive: the executive function is the residue which does not fall within the other two functions. Constitutional mechanism in a democratic policy does not contemplate existence of any function which may qua the citizens be designated as political and orders made in exercise whereof are not liable to be rested for their validity before the lawfully constituted courts" (p.75) Similarly, Hedge, J. has stated "There is nothing like a political power under our Constitution in the matter of relationship between the executive and the citizens. Our Constitution recognises only three powers viz. the legislative power, the judicial power and the executive power. It does not recognise any other power. (p.169) 112. In State of Rajasthan v. Union of India, [1978] 1 SCR 1, Bhagwati, J. as the learned Chief Justice then was, has observed : "It will, therefore, be seen that merely because a question has a political colour, the Court cannot hold its hands in despair and declare judicial hands off.....
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....Indian Union. 116. It is, however, urged that a law made under Article containing the terms and conditions on which a new State is admitted in the Indian Union is, by its very nature, political involving matters of policy and, therefore, the terms and conditions contained in such law are not justiciable. In this context, emphasis is laid on the words "on such terms and conditions as it thinks fit" in Article 2 and it is contended that Parliament has complete freedom to lay down the terms and conditions for admission of a new State in the Indian Union and such terms and conditions are outside the scope of judicial review. I find it difficult to subscribe to this proposition. It is no doubt true that in the matter of admission of a new State in the Indian Union, Article 2 gives considerable freedom to Parliament to prescribe the terms and conditions on which the new State is being admitted in the Indian Union. But at the same time, It cannot be said that the said freedom is without any constitutional limitation. In may view the power conferred on Parliament under Article 2 is circumscribed by the overall constitutional scheme and Parliament, while prescribing, the terms and conditio....
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.... Constitution, and is not power to override the constitutional scheme". P. 112 118. In this context, it may also be mentioned that Article 2 of the Constitution is modelled on Section 121 of the Commonwealth of Australia Constitution Act which provides : "S. 121 The Parliament may admit to the Commonwealth or establish new States, and may upon such admission or establishment make or impose such terms and conditions, including the extent of representation in either House of Parliament, as it thinks fit." This provision has not yet been used and there has been no occasion for the Courts to construe this provision. A learned Commentator on the Australian Constitution has, however, expressed the view that under Section 121 "no terms and conditions could be imposed which are inconsistent with the provisions of the Constitution, e.g., nothing could be done to prevent the Judicature chapter of the Constitution from applying to the new State' (R.D. Lumb : The Constitution of the Commonwealth of Australia (1986) 4th Ed. p. 736) 119. I am, therefore, of the view that while admitting a new State in the Union, Parliament, while making a law under Article 2, cannot provide for terms a....
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....onsistent with the Constitutional scheme and in that sense, the said power is not very different from the amending power under Article 368, which does not extend to altering any of the basic features of the Constitution. The non-obstante clause in Article 371-F, has therefore, to be so construed as to conform to the aforesaid limitations or otherwise Article 371-F would be rendered unconstitutional. A construction which leads to such a consequence has to be eschewed. This means that as a result of the non-obstante clause in Article 371-F, clauses (a) to (p) of the said Article have to be construed to permit a departure from other provisions of the Constitution in respect of the matters covered by clauses (a) to (p) provided the said departure is not of such a magnitude as to have the effect of' altering any of the basic features of the Constitution. In order to avail the protection of Article 371-F, it is necessary that the law should not transcend the above mentioned limitation on the scope of the non-obstante clause. 121. This takes me to the question whether the impugned provisions contained in the 1976 Act and the 1980 Act make such a departure from he provisions of the Co....
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....e, the aforesaid reservation of twelve seats for Bhutias and Lepchas is violative of Clause (3) of Article 332 of the Constitution. Shri Jain has contended that the said provision for reservation is destructive of Democracy which is a basic feature of the A Constitution. In support of the aforesaid submission, Shri Jain has placed reliance on the decision of the U.S. Supreme Court in Reynolds v. Sims, 19641 377 US 533. 123. In my view, both these contentions of Shri Jain cannot be accepted. The reservation of seats for Bhutias and Lepchas is necessary because they constitute a minority and in the absence of reservation they may not have any representation in the Legislative Assembly. Sikkimese of Nepali origin constitute the majority in Sikkim and on their own electoral strength they can secure representation in the Legislative Assembly against the unreserved seats. Moreover, Sikkimses of Bhutia and Lepcha origin have a distinct culture and tradition which is different from that of Sikkimese of Nepali origin. Keeping this distinction in mind Bhutias and Lepchas have been declared as Scheduled Tribes under Article 342 of the Constitution. The said declaration has not been questione....
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....and sixteenth centuries and they follow the same faith (Budhism). They have a culture which is distinct from that of Nepalese and others who migrated to Sikkim much later. Since the proportion of Nepalese in the population of Sikkim was much higher than that of Bhutias and Lepchas, it became necessary to provide for reservation of seats for Bhutias and Lepchas in the State Council of Sikkim when representative element through elected members was introduced in the administration of Sikkim in 1952. Ever since then, till Sikkim was admitted as a new State in the Indian Union, there was reservation of seats for Bhutias and Lepchas in the Sikkim Council which later became the Sikkim Assembly. Since the Ruler of Sikkim was of Bhutia origin following the Budhist faith, there was reservation of seats in the Sikkim Council and Sikkim Assembly for Sikkimese of Nepali origin on the same lines as Bhutias and Lepchas and in such reservations a parity was maintained between the seats reserved for Sikkimese of Bhutia-Lepcha origin on the one hand and Sikkimese of Nepali origin on the other. On the date when Sikkim was admitted in the Indian Union, Sikkim Assembly was consisting of thirty-two elec....
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.... that Parliament may, while protecting the rights and interests of the different sections of the population of Sikkim (which would include Sikkimese of Bhutia-Lepcha origin), deviate from the provisions of the Constitution, including Article 332. 126. The principle of one man, one vote envisages that there should be parity in the value of votes of electors. Such a parity though ideal for a representative democracy is difficult to achieve. There is some departure in every system following this democratic path. In the matter of delimitation of constituencies, it often happens that the population of one constituency differs from that of the other constituency and as a result although both the constituencies elect one member, the value of the vote of the elector in the constituency having lesser population is more than the value of the vote of the elector of the constituency having a larger population. Take the instance of Great Britain. There a statutory allocation of seats between England, Scotland, Wales and Northern Ireland whereunder Scotland is to have not less than 71 seats; Wales not less than 35 and Northern Ireland 17. It has been found that Scotland is over represented to t....
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....xx xx "...So long as the divergences from a strict population standard are based on legitimate considerations incident to the effectuation of a rational state policy, some deviations from the equal-population principle are constitutionally permissible with respect to the apportionment of seats in either or both of the two houses of a bicameral state legislature". (p.579) Variance to the extent of 16% has been upheld by the Court. (See: Mahan v. Howell, 410 US 315. 128. The High Court of Australia, in Attorney General (CTH) Ex. Rel. Mckinlay v.. The Commonwealth, [1975] 135 CLR 1 has considered the issue in the context of Section 24 of the Australian Constitution which provides that "the House of Representatives shall be composed of members directly chosen by the people of the Commonwealth". It was argued that the words "chosen by the people of Commonwealth" required each electoral division within a State so far as practicable to contain the same number of people or, alternatively, the same number of electors. The said contention was rejected and it was held (by Majority of six to one) that Section 24 of the Constitution did not require the number of people or the number of elec....
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....d (d) relate to location of constituencies in which seats are reserved for Scheduled Castes and Scheduled Tribes. This shows that population, though important, is only one of the factors that has to be taken into account while delimiting constituencies which means that there need not be uniformity of population and electoral strength in the matter of delimitation of constituencies. In other words, there is no insistence on strict adherence to equality of votes or to the principle one vote-one value. 130. In clause (3) of Article 332, the words "as nearly as may be" has been used. These words indicate that even in the matter of reservation of seats for Scheduled Castes and Scheduled Tribes it would be permissible to have deviation to some extent from the requirement that number of seats reserved for Scheduled Castes or the Scheduled Tribes in the Legislative Assembly of any State shall bear the same proportion. to the total number of seats as the population of the Scheduled Castes or the Scheduled Tribes in the State in respect of which seats are so reserved, bears to the total population of the State. The non-obstante clause in Article 371-F read with clause (f) of the said Articl....
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....1) of the Constitution inasmuch as by reserving one seat for Sanghas (Budhist Lamas), the State has discriminated against a person who is not a Budhist on the ground only of religion. Shri Jain has also urged the provisions contained in S.25-A of the 1950 Act and S.5-A(2)(c) of the 1951 Act are violative of Article 325 of the Constitution inasmuch as these provisions provide for election to the seat reserved for Sanghas on the basis of a separate electoral roll in which Sanghas alone are entitled to be registered and exclude others from being registered as electors on that electoral roll on the ground only of religion. The submission of Shri Jain is that these provisions are inconsistent with the concept of secularism which is a basic feature of the Constitution. 133. The reservation of one seat for Sanghas and election to the same through a separate electoral roll of Sanghas only has been justified by Shri Parasaran on the basis of historical reasons. He has argued that the Sangha has played a vital role in the life of community since the earliest known history of Sikkim and have also played a major part in deciding important issues in the affairs of the State. It has been pointe....
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.... and local authorities Cl. (a), graduates of universities Cl. (b), and teachers Cl. (c). They do not provide for preparation of separate electoral rolls on the ground of religion. The question for consideration is whether the impugned provisions providing for reservation of one seat for Sanghas, preparation of a special electoral roll for the Sangha constituency in which Sanghas alone can be registered as electors and a person who is an elector in the said electoral roll alone being eligible to contest for the Sangha seat, can be held to be violative of the provisions of Articles 15(1) and 325 on the ground that in relation to one seat reserved for Sanghas in the Legislative Assembly of the State of Sikkim a person who is a non-Budhist is being discriminated on the ground of religion only and similarly in the preparation of the special electoral roll for Sangha constituency a person who is a non-Budhist is rendered ineligible for inclusion in the said electoral roll on the ground only of religion. For this purpose it is necessary to construe the words "on grounds only of religion..." in Articles 15(1) and 325. In this context, it may be pointed out that sub-s.(1) of s.298 of the Go....
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....ommunities for no fault of his except that he was a Brahmin and not a member of the said communities, could not but be regarded as made on ground only of his caste. (p.532) 137. The validity of the impugned provisions has, therefore, to be considered by applying the aforesaid test of effect of operation of the said provisions. 138. It is not disputed that Sangha, (Budhist order' or congregation of monks) has an important place in Budhism. Sangha together/with the Buddha and Dharma (sacred law) constituted the three Jewels which were the highest objects of worship among the Buddhists and a monk at the time of his ordination had to declare solemnly that he had taken refuge in Buddha, Dharma and Sangha. [B.K. Mukherjea on The Hindu Law of Religious and Charitable Trusts', Tagore Law Lectures : Fifth Ed. (1983), p.181. In Sikkim, Lamaistic Buddhism was the official religion and Sanghas (Bhudhist Lamas) staying in the Budhist monasteries played an important role in the administration. Since only a Budhist can be a Sangha, the effect of the reservation of a seat for Sanghas and the provision for special electoral roll for the Sangha constituency wherein only Sanghas are entitle....
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....visions from the provisions of Articles 15(1) and 325 of the Constitution is permitted by Article 371-F of the Constitution. It has already been pointed out that Article 371-F, whether it is treated as having been inserted in the Constitution by way of an amendment under Article 368 or by way of terms and conditions on which Sikkim was admitted into the Indian Union under Article 2, does not permit alteration of any of the basic features of the Constitution. Although the expression 'Secular' did not find a place in the Constitution prior to its insertion in the Preamble by Constitution (Forty-Second Amendment) Act, 1976, but the commitment of the leaders of our freedom struggle during the course of freedom movement which find,,, expression in the various provisions of the Constitution leaves no room for doubt that secularism is one of the basic features of the Constitution. It was so held in the Kesavananda Bharati case, [1973] Supp. SCR 1 [Sikri, CJ. at pp. 165-6; Shelat and Grover, JJ. at p.280; Hegde and Mukharjea, JJ. at p.314 and Khanna J. at p.685] and in Smt. Indira Gandhi v. Raj Narain [1976] 2 SCR 347 [Mathew, J. at p.503 and Chandrachud, J. at p. 6591. The matter ....
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....l life. It seems specially necessary to avoid these dangers in the new political conditions that have developed in the country and from this point of view the arguments against separate electorates seem to us absolutely decisive. We recommend accordingly that all elections to the Central and Provincial Legislatures should be held on the basis of joint electorates." [Shiva Rao, Framing of India's Constitution, Select Documents, Vol.II, p.412] 144. When the report of the Advisory Committee came up for consideration before the Constituent Assembly, Shri Muniswami Pillai, expressing his satisfaction with the report, said : "One great point, Sir, which I would like to tell this house is that we got rid of the harmful mode of election by separate electorates. It has been buried seven fathom deep, never more to rise in our country." [Constituent Assembly Debates, Vol. V p. 2021 145. An amendment was moved by Shri B. Pocker Sahib Bahadur belonging to Muslim League to the effect that all the elections to the Central and Provincial Legislatures should, as far as Muslims are concerned, be held on the basis of separate electorates. The said amendment was opposed by most of the memb....
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....as Article 325. 148. This would show that. Article 325 is of crucial significance for maintaining the secular character of the Constitution. Any contravention of the said provision cannot but have an adverse impact on the secular character of the Republic which is one of the basic features of the Constitution. The same is true with regard to the provisions of clause (1) of Article 15 which prohibits reservation of seats in the legislatures on the ground only of religion. 149. It is no doubt true that the impugned provisions, relate to only one seat out of 32 seats in the Legislative Assembly of Sikkim. But the potentialities of mischief resulting from such provisions cannot be minimised. The existence of such provisions is bound to give rise to similar demands by followers of other religions and revival of the demand for reservation of seats on religious grounds and for separate electorates which was emphatically rejected by the Constituent Assembly. It is a poison which, if not eradicated from the system at the earliest, is bound to eat into the vitals of the nation. It is, therefore, imperative that such provision should not find place in the statute book so that further mischi....
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....ticles 15(1) and 325 of the Constitution and are not saved by Article 371-F of the Constitution. The said provisions, in my view, are however, severable from the other provisions which have been inserted in the 1950 Act and the 1951 Act by the 1976 Act and the 1980 Act and the striking down of the impugned provisions does not stand in the way of giving effect to the other provisions. 152. I would, therefore, strike down s.25-A inserted in the 1950 Act by the Act 10 of 1976 and the provisions contained in clause (c) of sub-s.(1-A) which has been inserted in Section 7 of the 1950 Act by Act 8 of 1.980, the words "other than the constituency reserved for the Sanghas" in clause (a) of sub-s.(2) as well as clause (c) of sub-s.(2) inserted in Section 5-A of the 1951 Act by Act 8 of 1980 as being unconstitutional. 153. In Transferred Cases Nos. 93 and 94 of 1991, Shri K.N. Bhatt and Shri K.M.K. Nair, the learned counsel appearing for the petitioners therein have not assailed the validity of the provisions with regard to reservation of seats for Sikkimese of Bhutia and Lepcha origin. They have. however, urged that Clause (f) of Article 371-F imposes an obligation on Parliament to make pr....