TaxTMI 
TaxTMI 
1993 (2) TMI 333
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....e elected by them, and (ii) whether seats 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 t....
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....before and after its merger with India. Sikkim, during 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 latt....
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.... to veto any decision by the Council and to substitute it by 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 Sikk....
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....asis of the principle of one man one vote." (emphasis supplied) It was 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 pro....
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....ch made Sikkim associated with the Union of India on certain terms and conditions. The amendment came 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 ....
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....rting section 5A in the Representation of the People Act, 1951. The extent of each constituency and the reservation of seats were initially 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 i....
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....as conferred on Sikkim by Article 2A read with Tenth Schedule but, without amending the list of the States in the First Schedule. Although 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 Represent....
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.... and 4 were examined and the question was concluded thus:- "The crux of the problem, therefore, is: Can Parliament legislate in regard to the Agreement 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). ....
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...., and in the process, of eliminating the unnecessary tension which is causing grave concern internationally. If I may say so, the fallacy lies in this line of thought due to 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....
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....ic structure of the Constitution of India, and is not permissible after Sikkim joined India as a full-fledged State. It is further contended that the number of the persons actually 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 ....
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....has. Some passages from other books have also been quoted in the written argument and what is stated at page 15 of 'Sikkim and Bhutan Twenty-One years on the North- East Frontier 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 ....
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..... The Lamas did not confine their participation only to the administration but also controlled the electorate. At page 78 it is stated that the major portion of the trans-Himalayan trade was in the hands of 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, indic....
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....ich the Article begins. 26. Let us first consider Article 15 which prohibits discrimination on the ground of religion. The Buddhist Monasteries, which are the beneficiaries of the reservation, are admittedly religious 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....
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....perceptions is vital and far-reaching in effect, and generally one view or the other has been accepted as national commitment, not subject to a change. When I proceed to examine the issue further I will not be using 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 reas....
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....y. There is a division even at the highest level, the President always to be a Greek Christian and the vice-president a Muslim Turk. Mr. Nariman emphasised on the separate electorate provided by Cyprus Constitution and urged 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 belo....
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.... convinced that this tragedy was the direct result of the policy of the British rulers to divide the people on the basis of the religion and give them differential political treatment. During their earlier resistance to the 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 t....
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.... 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." (emphasis added) [Shiva Rao's Vol. 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....
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....i Pillai, to recall briefly the developments during the British Rule relevant to this aspect. 33. In order to break the united front of the Indians against foreign domination, one of the most effective steps taken on behalf of the regime was to introduce separate electorates with weightage 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....
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.... roll for every territorial constituency for election to either House of Parliament or to the House of either House of the Legislature of a State and no person shall be ineligible for inclusion in any such roll or claim to be included in any special electoral roll for any such constituency on grounds 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....
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....i, which includes Tsong and Scheduled Caste origin, are fully protected." It is further said that in view of this Tripartite Agreement the Proclamation dated 5.2.1974 was made reserving 16 constituencies out of the total number of 32 in favour of Bhutia-Lepchas, and when the Government of Sikkim Act, 1974 was 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 f....
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....e arriving on the scene. The BhutiaLepchas, who were following the Buddhist religion, were paying high respect for the Lamas who were enjoying the patronage of Chogyal. Appreciating their usefulness the Chogyal later earmarked a seat for them on the basis of a separate electorate in 1958. When public demand for effective participation in the administration 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....
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....f Executive to help and achieve the State's objectives. A firm decision was taken to hold fair and free elections under the supervision of a representative of the Election Commission of India. The Chief Executive was to be nominated by the Government of India and it was only the passing of the formal order in this regard which was left to the Chogyal. Towards the end 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 e....
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....t cannot be legitimately contended that the safeguard in this regard under the Indian Constitution is in any way inadequate. If at all, the minority in this country are in certain matters enjoying special benefits not available to the majority'.and this is the reason that repeated attempts have been and are being made by various groups to claim minority status, as is evident 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....
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.... article containing the provisions considered necessary to meet the special circumstances and needs of Sikkim." (emphasis added) 43. The intention was clear that the people of Sikkim, by a near unanimous verdict, decided to join India as a full-fledged State with the aspiration of participating in the affairs of the country on the same terms applicable to the rest of India. The decision to insert a new Article 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 lac....
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....n 1978 when the Presidential Order was issued under Article 342 of Part XVI. The interpretation of Article 371.F (f), as suggested on behalf of the respondents, is inconsistent with the issuance of the said Order. 1, therefore, hold that the object of clause (f) was not to take care of this problem and it did not authorise the Parliament to pass the Amendment (Act 8 of 1980) inserting section 7(1A) (a)- in the Representation 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 consider....
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....ull vote, others have to be content with only a fraction. If there is 90% reservation in the seats of a House in favour of 10% of the population in the State, and only the remaining 10% of the seats are left to the majority population, then the principle of adult suffrage as included in Article 326 is sacrificed. By permitting the 90% of the population to vote not only for 10% seats available to them, but also for the 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 Constitut....
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....raisal, we cannot afford to forget our motto of the entire world being one big family (Vasudhaiva Kutumbkam) and consequent commitment to the cause of unity which made the people suffer death, destruction and devastation on an unprecedented scale for replacing the foreign rule by a democratic government on the basis of equal status for all. The fact that they lost in their effort for a untitled independent country is not 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 t....
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....ing, paving the way for new election, the people get a clean slate before them. The excessive reservation in this situation will bring in an imbalance-of course of another kind-but defeating the cause of equal status all the same. The pendulum does not stand straight it swings to the other side. The casualty in both cases is the equality clause. Both situations defeat the very object for which the democratic forces waged the 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....
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....feguards of the Indian Constitution were adequate for taking care of this aspect. This is a complete answer to such an argument. The history, so far it may be relevant, condemns in no uncertain terms the excessive reservation in favour of the Bhutia-Lepchas and the Sangha. The Thirty-Sixth Amendment in the Constitution has to be understood in this light. 50. My conclusion, therefore, is that the impugned provisions are ultra 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 i....
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....ightage can be granted, by including express provisions instead of leaving the matter to be dealt with by subsequent enactments limitations both by putting a ceiling on the reservation of seats in the legislatures and excluding religion as the basis of discrimination. To ignore these limitations is to encourage small groups and classes which are in good number in our country on one basis or the other to stick to and rely on their 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 cons....
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....of this mountainous land is lost in the mists of time. But it is said that in 1642, Phuntsog Namgyal became the first Chogyal, the spiritual and temporal Ruler in the Namgyal dynasty which ruled Sikkim till it joined the mainstream of Indian polity in 1975. The main inhabitants of Sikkim are the Lepchas, the Bhutias and the later immigrants from Nepal. The Lepchas were the original indigenous inhabitants. The Bhutias are said to have come 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 protector....
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....nd prominent characteristic of non-Western politics is the breakdown of democracy. After the initial optimism concerning the democratic prospects of the newly independent countries, based largely on the democratic aspirations voiced by their political leaders, a mood (if disillusionment has set in. And, according to many observers, there is a direct connection between the two fundamental features of non-Western politics: a plural society is incapable of sustaining a 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 ....
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....epalese; and, (c) Five members nominated by His Highness the Maharaja in his discretion." In 1958, the strength of the council was increased to 20. The break up of the its composition was as under : (1) Seats reserved for Bhutia & Lepchas 6 (2) Seats reserved for Nepalis 6 (3) General seat 1 (4) Seat reserved for the Sangha 1 (5) Nomination by His Highness 6 By the "Representation of Sikkim Subjects Regulation, 1966" dated 21.12.1966 promulgated by the then Chogyal, the State Council was to consist of territorial constituencies 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 expans....
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.... Sikkim may (a) request the Government of India to include the planned development of Sikkim within the ambit to the Planning Commission of India while that Commission is preparing plans for the economic and social development of India and to appropriately associate officials from Sikkim in such work; (b) request the Government of India to provide facilities for students from Sikkim in institutions for higher learning and for the employment of people from Sikkim in the public services of India (including All India Services), at par with those available to citizens of India; (c) seek participation and representation for the people of Sikkim in the political institutions of India." 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 th....
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....n such manner as may be directed by the Election Commission, in consultation with the Government of Sikkim." By the "Representation of the People (Amendment) Ordinance, 1979" promulgated by the President of India on 11.9.1979, amendments were introduced to the Representation of the People Act, 1950 and the Representation of the People Act, 1951 to enable fresh elections to the Sikkim Assembly on certain basis considered appropriate to and in conformity with the historical evolution of the Sikkim's political institutions. the Ordinance was later replaced by Representation of the People Amendment) Act, 1980 by which subsection (1-A) was inserted in Section of the Representation of the People Act, 1950. That sub-section provides: "(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; (....
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.... (Amendment) Act, 19801 providing for reservation of 12 seats, out of 32 seats in the Sikkim Legislative Assembly in favour of Bhutias-Lepachas, are unconstitutional as violative of the basic features of democracy and republicanism under the Indian Constitution? (d) Whether the aforesaid provisions and the reservations made thereunder are violative of Article 14,170(2) and 332 of the Constitution? Whether they violate 'one person one vote' rule? Or are these differences justified in the historical background of Sikkim and are incidental to the political events culminating in the cession of Sikkim? (e) Whether the reservation of 12 seats out of 32 seats reserved for Bhutias-Lepchas is ultra vires of clause (f) of Article 371-F in that while that provision enabled the protection of the rights and interests of different' 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....
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....cession that it must be ratified by a plebiscite." [See : Substance of Public International Law Western and Eastern : A.K. Pavithran First Edition, 1965 at pp. 281-21] Sri Parasaran urged that the rights of the inhabitants of a territory becoming part of India depend on the terms subject to which the territory is admitted and Article 2 confers wide powers on the Parliament. Sri Parasaran urged that the considerations that guide the matter are eminently political and are outside the area of justiciability. Sri Parasaran said that the inhabitants of a territory can claim and assert only those rights that the succeeding sovereign expressly confers on them. Sri Parasaran relied upon the following observations of Chief Justice Chandrachud in Vinod Kumar Shantilal Gosalia v. Gangadhar Narsingdas Agarwal & Ors., [1982] 1 SCR 392: "Before considering the merits of the respective contentions 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....
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..... or establish, new States on such terms and conditions as it thinks fit." "4. (1) Any law referred to in article 2 or article 3 shall contain such provisions for the amendment of the First Schedule and the Fourth Schedule as may be necessary to give effect to the provisions of the law and may also contain such supplemental, incidental and consequential provisions (including provisions as to representation in Parliament and in the Legislature or Legislatures of the State or States affected by such law) as Parliament may deem necessary. (2) No such law as aforesaid shall be deemed to be an amendment of this Constitution for the purpose of article 368. Can the Parliament in imposing terms and conditions in exercise of power under Article 2 stipulate and impose conditions inconsistent with the basic and fundamental principles of Indian Constitutionalism? Or is it imperative that the newly admitted State 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 ....
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.... the Supreme Court of the United States in Baker v. Carr, 369 US 186 the cases challenging the distribution of political power through apportionment and districting, weighed-voting, and restrictions on political action were held to present non- justiciable political questions. The basis of this doctrine was the "seeming conviction of the courts that the issues raised were well beyond the judicial responsibility". In Baker v. Carr, the Court undertook a major rationalisation and formulation of the 'political question doctrine' which led to considerable narrowing of its application. The effect Baker v. Carr., and the later decision in Poweel v. McCormack, 395 US 486 is that in the United States of America certain controversies previously immune from adjudication were held justiciable and decided on the merits. The rejection of the political thickets arguments in these cases marks a narrowing of the operation of the doctrine in other areas 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 r....
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...., and we cannot shirk this responsibility merely because our decision may have significant political overtones." (PP. 178-9) (emphasis supplied) 69.Our Court has received and viewed this doctrine with a cautious reservation. In A.K Roy v. Union of India, [1982] 2 SCR 272 at 296-7, Chief Justice Chandrachud recognised that the doctrine, which was essentially a function of the separation of powers in America, was to be adopted cautiously and said "It must also be mentioned that in the United States itself, the doctrine of the political question has come under a cloud and has been the subject matter of adverse criticism. It is said that all that the doctrine really means is that in the exercise of the power of judicial review, the courts must adopt a 'prudential' attitude, which requires that they should be wary of deciding upon the merit of any issue in which claims of principle as to the issue and claims of expediency as to the power and prestige of 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 limit....
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....ith the foundational principles and basic features of the Constitution. Whether clause (f) has the effect of destroying a basic feature of the Constitution depends, in turn, on the question whether reservation of seats in the legislature based on ethnic group is itself destructive of democratic principle. Whatever the merits of the contentions be, it cannot be said the issues raised are non-justiciable. In Mangal Singh & Anr. v. Union of India, [1967] 2 SCR 109 at 112 this Court said : "... Power with which the Parliament is invested by Arts. 2 and 3, is power to admit, establish, or form new States which conform to the democratic pattern envisaged by the Constitution; and the power which the Parliament may exercise by law is supplemental, incidental or consequential to the admission, establishment or formation of a State as contemplated by the Constitution, and is not power to override the constitutional scheme". Even if clause (f) of Article 371 F is valid, if the terms and conditions 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 ....
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....m a strict achievement of this ideal. The system has the merit of preponderance of "decisiveness" over "representativeness". Commenting on this phenomenon Keith Graham in "The Battle of Democracy. Conflict, Consensus and the Individual" says : "This, in existing systems where voters are electing representatives, examples of gross inequality between the powers of different votes occur, either because of disparities in constituency size or because of the anomalies produced in a first-past-the-post system. There was, for instance, an occasion when one Californian State Senator represented six million electors and another one fourteen thousand electors (Portter 1981:114); in February, 1974 constituencies in England varied from 96,380 to 25,007 electors (Hansard Society Commission 1976:7); and in the United Kingdom between 1945 and 1976 nine out of ten of the elected governments acquired more than 50 per cent of the seats, but none acquired 50 per cent of the votes cast (ibid.:9). When the United States Supreme Court asserted that it had jurisdiction in the matter of huge disparities in the value of citizens' votes. it did so, significantly, by referring to the Fourteent....
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....he British understand it. The present system also underspins elective dictatorship in a way that different electoral rules, Which would return more MPs from third (and perhaps fourth) parties, would undermine. And we speak of 'majority governments' by reference to seats won in the House, but no government has been returned with a majority of the popular vote since 1935." (Page 191) Arend Lijphart in "Democracy in Plural Societies" observes "Formidable though the classic dangers are of a plurality of sovereign states, these have to be reckoned against those inherent in the attempt to contain disparate communities within the framework of a single government. In the field of peace research, there is a similar tendency to frown on peace which is achieved by separating the potential enemies-- significantly labeled "negative' peace--and to strive for peace based on fraternal feeling within a single integrated and just society: "positive" peace. (P. 47) The problem of equality of the value of votes is further complicated by a progressive rural depopulation and increasing urbanisation. In the work "Legislative Apportionment : Key to Power" (Howard D. Ham....
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....ected by voters, not farms or cities or economic interests. As long as ours is a representative form of government, and our legislatures are those instruments of government elected directly by and directly representative of the people, the right to elect legislators in a free and unimpaired fashion is a bedrock of our political system." "And, if a State should provide that the votes of citizens in one part of the State should be given two times, or five times, or 10 times the weight of votes of citizens in another part of the State, it could hardly be contended that the right to vote of those residing in the disfavored areas had not been effectively diluted. It would appear exordinary to suggest that a State could be constitutionally permitted to enact a law providing that certain of the State's voters could vote two, five or 10 times for their legislative representatives, while voter s living elsewhere could vote only once." Even so, Chief Justice Warren observed ".... We realize that it is a practical impossibility to arrange legislative districts so that each one has an identical number of residents, or citizens, or voters. Mathematical exactness o....
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....in these petitions are sought to be justified by the respondents on grounds that first, a perfect arithmetical equality of value of votes is not a constitutionally mandated imperative of democracy and, secondly, that even if the impugned provisions make a departure from the tolerance limits and the constitutionally permissible latitudes, the discriminations arising are justifiable on the basis of the historical considerations peculiar to and characteristic of the evolution of Sikkim's political institutions. This, it is urged, is the justification for the special provisions in clause (f) which was specifically intended to meet the special situation. It is sought to be pointed out that throughout the period when the ideas of responsible- Government sprouted in Sikkim, there has been a vigilant political endeavour to sustain that delicate balance between Bhutias-Lepchas on the one hand and the Sikkimese of Nepalese origin on the other essential to the social stability of that mountain-State. Clause (f) of Article 371F was intended to prevent the domination of the later Nepali immigrants who had, in course of time, outnumbered the original inhabitants. What Article 371-F(f) and th....
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....ost of the prominent hilltops of the country are crowned with a monastery shrine or a temple. Apart from these at every village there is a Gompa or a village monastery with a resident lama looking after the spiritual needs of a small community. Frequently, Chorten, the lamaist version of the original Buddhist stupa, are also seen." (pp. 112-3) "Life in the countryside centres round the monastery of the Buddhist monks, the lamas. Birth, death, sickness all are occasions for the lamas to be called in for the performance of appropriate ceremonies. Just putting up a prayer flag even needs the attendance of lamas."(p. 115) Since the rulers were also monk-incarnates constantly in transaction with the high Lamas of Tibet and the DebRaja of Bhutan, these monks were used as emissaries, medioators, and settlers of various state affairs. In internal administration also, the monks held important positions. They were appointed to the State Council, they managed the monastery estates, administered justice and even helped the laity in fighting against the enemies. Though economically dependent, they were very much influential both in the court and in public life. In fact, it was....
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....roach appropriate to a Constitution, a learned author speaking of another federal document says (The Australian Law Journal, Vol. 43 at p.256) : "A moment's reflection will show that a flexible approach is almost imperative when it is sought to regulate the affairs of a nation by powers which are distributed, not always in the most logical fashion, among two or more classes of political agencies. The difficulties arising from this premise are much exacerbated by the way in which the Australian Constitution came to be formed : drafted by many hands, then subjected to the hazards of political debate, where the achievement of unanimity is often bought at the price of compromise, of bargaining and expediency." 80. An examination of the constitutional scheme would indicate that the concept of 'one person one vote' is In its very nature considerably tolerant of imbalances and departures from a very strict application and enforcement. The provision in the Constitution indicating proportionality of representation is necessarily a broad, general and logical principle but not intended to be expressed with arithmetical precision. Articles 332 (3A) and 333 are illustrat....
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....for the maintenance of social equilibrium. The political and social maturity and of economic development might in course of time enable the people` of Sikkim to transcend and submerge these ethnic apprehensions and imbalances and might in future -- one hopes sooner -- usher-in a more egalitarian dispensation. Indeed, the impugned provisions, in their very nature, contemplate and provide for a transitional phase in the political evolution of Sikkim and are thereby essentially transitional in character. It is true that the reservation of' seats of the kind and the extent brought about by the impugned provisions may not, if applied to the existing States of the Union, pass the Constitutional muster. But in relation to a new territory admitted to the Union, the terms and conditions are not such as to fall outside the permissible constitutional limits. Historical considerations and compulsions do justify in equality and special. treatment. In Lachhman Dass etc. v. State of Punjab & Ors., AIR 1963 SC 222 this court said "The law is now well settled that while Article 14 prohibits discriminatory legislation directed against one individual or class of individuals, it does n....
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....kim Scheduled Tribes] Order, 1978 and that the extent of the reservation in their favour would necessarily be governed by the provisions of Article 332(2) 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 seats in the Assembly as the population of the Schedule Tribes in the State bears to the total population of the State. But, in our opinion, clause (f) of Article 371F is intended to enable, a departure from Art. 332(2). This is the clear operational effect of the non obstante clause with which Article 371F opens. Sri Jain pointed out with the help of certain demographic statistics that the degree of reservation of 38% in the present case for a population of 20%, is disproportionate. This again has to be viewed in the historical development and the rules of apportionment of political power that obtained between the different groups prior to the merger of the territory in India. A parity had been maintained all through. We are of the opinion that the provisions in the particular situation and the permissible latitudes, cannot be said to be unconstitutional. Re : Contention ....
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....nd the provisions in regard to the seat reserved admit to being construed as a nomination and the Sangha itself being assigned the task of and enabled to indicate the choice of its nominee. The provision can be sustained on this construction. Contention (g) is answered accordingly. 84.For the foregoing reasons, all the petitions are dismissed without any order as to costs. S.C. AGRAWAL, J. 85. With due deference to my learned brethren for whom I have the highest regard, I regret my inability to concur fully with the views expressed in either of these judgments. It has, therefore, become necessary for me to express my views separately on the various questions that arise for consideration. 86. These cases arise out of Writ Petitions which were originally filed under Article 226 of the Constitution in the High Court of Sikkim and have been transferred to this Court for disposal under Article 139A of the Constitution. They involve challenge to the validity of the provisions inserted in the Representation of the People Act, 1950 (hereinafter referred to as the '1950 Act') and the Representation of the People Act, 1951 (hereinafter referred to as the '1951 Act'....
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....tate Council consisting of eighteen members (a President to be nominated and appointed by the Maharaja twelve elected members and five nominated members). Out of the elected members six were to be either Sikkimese Bhutia or Lepcha and the remaining six were to be Sikkimese Nepalese. By Proclamation dated March 16, 1958, the strength of the Council was raised to twenty. The six seats for nominated members were retained and while maintaining the reservation of six seats for Bhutias and Lepchas and six seats for Nepalese, it was provided that there shall be one general seat and one seat shall be reserved for the Sangha. It was provided that voting for the seat reserved for the Sangha will be through an electoral college of the Sanghas belonging to monasteries recognised by the Sikkim Darbar (Ruler of Sikkim). 90. Certain adaptations and modifications in the laws relating to election to and composition of the Sikkim Council were made by the Proclamation dated December 21, 1966 (known as the Representation of Sikkim Subjects Regulation, 1966) issued by the Chogyal (Ruler) of Sikkim. Under the said Proclamation, for the purpose of election to the Sikkim Council, Sikkim was divided int....
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...., 1954 issued by Chogyal of Sikkim. The said Proclamation known as the Representation of Sikkim Subjects Act, 1974, provided that for the purpose of election to the Sikkim Assembly, Sikkim would be divided into thirty-one territorial constituencies and one Sangha constituency and the Sangha constituency would comprise the Sanghas belonging to monasteries recognised by the Chogyal of Sikkim. The Assembly was to consist of thirty-two elected members. Sixteen Constituencies were to be reserved for Sikkimese of Bhutia-Lepcha origin, out of which one was reserved for the Sangha. The remaining sixteen constituencies were to be reserved for Sikkimese of Nepali, including Tsong and Scheduled Caste, origin out of which one constituency was to be reserved for persons belonging to the Scheduled Castes notified in the Schedule annexed to the Proclamation. The elections to the thirty-one territorial constituencies were to be held on the basis of adult suffrage and the Sangha constituency was to elect one member through an electoral college of the Sanghas and a member of the electoral college for the Sanghas was not eligible to vote for any other constituency. 93. Elections for the Sikkim Ass....
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....o impeded their democratic development and participation in the political and economic life of India, it was, declared and resolved : "The institution of the Chogyal is hereby abolished and Sikkim shall henceforth be a constituent unit of India, enjoying a democratic and fully responsible Government". It was further resolved : "1. The Resolution contained in part A" shall be submitted to the people forthwith for their approval. 2. The Government of India is hereby requested, after the people have approved the Resolution contained in part "A" to take such measures as may be necessary and appropriate to implement this Resolution as early as possible". 97. In accordance with the said Resolution, a special opinion poll was conducted by the Government of Sikkim on April 14, 1975 and in the said poll, 59, 637 votes were cast in favour and 1496 votes were cast against the Resolution out of a total electorate of approximately 97,000. 98. In view of the said resolution adopted unanimously by the Sikkim Assembly which was affirmed by the people of Sikkim in special opinion poll, the Constitution was further amended by the Constitution (Thirty Sixth Amendment)....
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....to the State of Sikkim. 101. Since the 1976 Act did not make provision for fresh elections for the Legislative Assembly of Sikkim and the term of the said Assembly was due to expire, the Representation of the People (Amendment) Bin, 1979 was introduced in Parliament on May 18, 1979 to amend the 1950 Act and the 1951 Act. While the said Bill was pending before Parliament, Lok Sabha was dissolved and the said Bill lapsed. 102. Thereafter the Legislative Assembly of Sikkim was also dissolved on August 13, 1979 and fresh elections for the Assembly were to be held. The Representation of the People (Amendment) Ordinance, 1979 (No.7 of 1979) was, therefore, promulgated by the President on September 11, 1979 whereby certain amendments were introduced in the 1950 Act and the 1951 Act. Elections for the Sikkim Legislative Assembly were held in October, 1979 on the basis of the amendments introduced by the said Ordinance. Thereafter, the 1980 Act was enacted to replace the Ordinance. By the 1980 Act, sub- s. (1-A) was inserted in Section 7 of the 1950 Act and it reads as under : "(1-A). Notwithstanding anything contained in sub-s.(1), the total number of seats in the Legislativ....
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.... 84 of 1982, the case of the petitioners is that Article 371-F should be construed in a manner that it is consistent with the general philosophy of the Constitution particularly democracy and secularism and they have challenged the provisions of the 1976 Act and the 1980 Act providing for reservation of 12 seats in the Legislative Assembly of Sikkim for Sikkimese of Bhutia and Lepcha origin and reservation of one seat for Sanghas on the ground that the said provisions fall outside the ambit of Article 371-F and are violative of the provisions contained in Articles 332, 14 and 15 and 325 of the Constitution. In the alternative, the case of the petitioners is that if Article 371 F is given a wider construction, it would be unconstitutional being violative of the basic features of the Constitution. The petitioners in Transferred Cases Nos. 93 and 94 of 1991 have taken a different stand. Instead of challenging the reservation of seats for Sikkimese of Bhutia and Lepcha origin as well as Sanghas, they have relied upon clause (f) of Article 371-F to claim similar reservation of' seats in the Assembly for Sikkimese of Nepali origin. 107. Before I proceed to deal with contentions ur....
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....mitted, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution". (pp. 210-211) xx xx xx xx "....Yet it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial congnizance. Our cases in this field seem invariably to show a discriminating analysis of the particular question posed, in terms of the history of its management by the political branches, of its susceptibility of judicial handling in the light of its nature and posture in the specific case, and of the possible consequences of judicial action." (pp. 211-212) xx xx xx "...Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it. or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of deciding without an initial policy determination of a kind clearly for- nonjudicial discretion; or th....
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....of India on the other. The President of the United States exercises executive power in his own right and is responsible not to the Congress but to the people who elect him. In India, the executive power of the Union is vested in the President of India but he is obliged to exercise it on the aid and advice of his Council of Ministers. The President's "satisfaction" is therefore nothing but the satisfaction of his Council of Ministers in whom the real executive power resides. It must also be mentioned that in the United States itself, the doctrine of the political question has come under a cloud and has been the subject matter of adverse criticism. It is said that all that the doctrine really means is that in the exercise of the power of judicial review, the courts must adopt a 'prudential' attitude, which requires that they should be wary of deciding upon the merit of any issue in which claims of principle as to the issue and claims of expediency as to the power and prestige of 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". (pp. 296-297) 110. In Madhav Rao v. U....
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....stitution being political in character was not justiciable on that sole ground was rejected by this Court." (p. 1248) 114. The same view has been reiterated by Verma, J. speaking for the majority in Mrs. Sarojini Ramaswami v. Union of India & Ors., Writ Petition (Civil) No. 514 of 1992 decided on August 27, 1992. 115. Sikkim was not admitted in the Indian Union on the basis of any treaty or agreement between the Chogyal of Sikkim and the Government of India. It was so admitted in pursuance of the unanimous resolution that was passed by the Assembly of Sikkim on April 10, 1975, after the said resolution had been approved by majority of the people of Sikkim at the special opinion poll conducted on April 14, 1975. The said resolution does not contain any terms and conditions on which the people of Sikkim wanted to join the Indian Union except stating that "Sikkim shall henceforth be a Constituent unit of India enjoying a democratic and fully responsible Government". The Tripartite Agreement of may 8, 1973 was also not an agreement containing terms and conditions for admission of Sikkim in the Indian Union. It contains the framework for "establishment of a fully responsible Gover....
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....issible for Parliament to admit to the Union new States on terms and conditions enabling those States to be governed under systems which are inconsistent with the scheme of the Constitution and thereby alter the basic feature of' the Constitution. It would lead to the anomalous result that by an ordinary law enacted by Parliament under Article 2 it would be possible to bring about a change which cannot be made even by exercise of the constituent power to amend the Constitution, viz., to alter any of the basic features of the Constitution. The words "as it thinks fit" in Article 2 of the Constitution cannot, therefore, be construed as empowering Parliament to provide terms and conditions for admission of a new State which are inconsistent with the basic features of the Constitution. The said words can only mean that within the framework of the Constitution, it is permissible for Parliament to prescribe terms and conditions on which a new State is admitted in the Union. 117. With regard to the power conferred on Parliament under Articles and 3 of the Constitution, this Court in Mangal Singh v. Union of India, [1967] 2 SCR 109, has laid down "....Power with which the P....
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....ions contained in Article 371-F. The contention, raised by Shri Parasaran as well as the learned Attorney General, that such an examination is outside the scope of judicial review, cannot. therefore be accepted. 120. Shri Parasaran and the learned Attorney General have laid emphasis on the use of the expression "notwithstanding anything in this Constitution" which precedes clauses (a) to (p) of Article 371-F. The submission is that as a result of the said non-obstante clause in Article 371-F, it is permissible for parliament to enact a law in derogation of the other provisions of the Constitution while giving effect to clauses (a) to (p) of Article 371-F and the said law would not be open to challenge on the ground that it is violative of any of the other provisions of the Constitution. There is no doubt that the non-obstante clause in a statute gives overriding effect to the provisions covered by the non-obstante clause over the other provisions in the statute to which it applies and in that sense, the non-obstante clause used in Article 371-F would give overriding effect to clauses (a) to (p) of Article 371- F over other provisions of the Constitution. But at the same time, it....
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....e of Nepali origin is violative of the right to equality guaranteed under Article 14 of the Constitution. The other contention turns on the extent of such reservation. Shri Jain has submitted that Bhutias and Lepchas have been declared as Scheduled Tribes under the Constitution (Sikkim) Scheduled Tribes Order, 1978 dated June 22, 1978 and reservation of seats for Scheduled Tribes in the Legislative Assembly of a State is governed by Article 332 of the Constitution. Shri Jain has referred to Cl. (3) of Article 332 which prescribes that the number of seats reserved for the Scheduled Castes or the Scheduled Tribes in the Legislative Assembly of any State under Cl. (1) shall bear, as nearly as may be, the same proportion to the total number of seats in the Assembly as the population of the Scheduled Castes in the State or of the Scheduled Tribes in the State. Shri Jain has pointed out that according to the 1971 census, the total population was about 2,09,843 out of which Bhutias and Lepchas were around 51,600 and according to 1981 census, the total population was around 3,16,385 out of which Bhutias and Lepchas were around 73,623. The submission of Shri Jain is that keeping in view the....
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....ate bears to the total population of the State. The said provision has, however, to be considered in the light of Clause (f) of Article 371-F which provides "(f) Parliament may, for the purpose of protecting the rights and interests of the different sections of the population of Sikkim make provision for the number of seats in the Legislative Assembly of the State of Sikkim which may be filled by candidates belonging to such sections and for the delimitation of the assembly constituencies from which candidates belonging to such sections alone may stand for election to the Legislative of the State of Sikkim." 125. This provision empowers Parliament to make provision prescribing the number of seats in the Legislative Assembly in the State of Sikkim which may be filled in by candidates belonging to the different sections of the population of Sikkim with a view to protect the rights and interests of those sections. The non-obstante clause in Article 371-F enables Parliament to make a departure from the ratio contemplated by Article 332 (3) within the limitation which is inherent in the power conferred by Article 371-F, i.e., not to alter any of the basic features of the Con....
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....r protecting the rights and interests of the different sections of population of Sikkim. The impugned provision contained in clause (a) of sub-section (1-A) of s.7 of the 1950 Act by providing for reservation of twelve seats for Sikkimese of Bhutia-Lepcha origin seeks to give this protection in a more limited manner by reducing the ratio of the seats reserved for Sikkimese of Bhutia and Lepcha origin from 50% prevalent in the Assembly in the former State of Sikkim to about 38% in the Assembly for the State of Sikkim as constituted under the Constitution of India. It would thus appear that by providing for reservation to the extent of 38% of seats in the Legislative Assembly for Sikkimese of Bhutia-lepcha origin Parliament has sought to strike a balance between protection to the extent of 50% that was available to them in the former State of Sikkim and the protection envisaged under Article 332(3) of the Constitution which would have entitled them to reservation to the extent of 25% seats in accordance with the proportion of their population to the total population of Sikkim. It is argued that this departure from the provisions of Article 332(3) derogates from the principle of one m....
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....the discrepancy should never exceed two to one, and has observed "this is surely the maximum which should be regarded as tolerable" (p.7). Criticising the existing state of affairs, Prof. Wade has said "The British Parliament, addicted though it is to the pursuit of equality in so many other ways, does not seem interested in equality of representation between voters any more than between the different parts of the United Kingdom. Since 1948 it has insisted rigidly on the principle of one man, one vote. When will it accept the correlative principle one vote, one value?' (p.8) 127. The matter of apportionment of seats in the State Legislatures has come up for consideration before U.S. Supreme Court in a number of cases. In Reynolds V. Sims (supra), the Court, while examining the said matter on the touch-stone of the equal protection clause, has held that the equal protection clause requires that the seats in both houses of a bicameral State Legislature be apportioned on a population basis and that such deviations from the equal population principle are constitutionally permissible so long as such deviations are based on legitimate considerations incident to the effect....
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....visions is a comparatively modern development for which no stipulation was made in the system of democratic representative government provided for by our Constitution." (p.62) In this regard, the scheme of our Constitution is that under Article 327 Parliament is empowered to make a law relating to delimitation of constituencies and under Article 329 (a) the validity of such a law or the allotment of seats to such constituencies cannot be called in question in any court. In exercise of the power conferred on it under Article 327 Parliament has enacted the Delimitation Act, 1962 which provides for constitution of a Delimitation Commission to readjust on the basis of the latest census figures the allocation of seats in the House of the People to the several States, the total number of seats in the Legislative Assembly of each State and the division of each State into territorial constituencies for the purpose of elections to the House of People and to the State Legislative Assembly. In Section 9(1) of the said Act it is prescribed that the Commission shall delimit the constituencies on the basis of the latest census figures but shall have regard to considerations referred to in cla....
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....ss the limits of the power conferred on Parliament under Article 371-F(f) and it cannot be said that it suffers from the vice of unconstitutionality. 131. The other challenge is to the reservation of one seat for Sanghas. With regard to this seat, it may be mentioned that Section 25-A of the 1950 Act makes provision for an electoral roll for the Sangha constituency wherein 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. Clause (c) of sub- s.(2) of s. 5-A of the 1951 Act prescribes that a person shall not be qualified to be chosen to fill a seat in the Legislative Assembly of Sikkim to be constituted at any time after the commencement of the 1980 Act unless, in the case of the seat reserved for Sanghas, he is an elector of the Sangha constituency. The aforesaid provisions indicate that for the one seat in the Legislative Assembly of Sikkim which is reserved for Sanghas. a separate electoral roll has to be prepared under Section 25-A of the 1950 Act and only the Sanghas belonging to monasteries recognised for the purpose of elections held in April 198....
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.... against any citizen on the ground only of religion, race, caste, sex or any of them. Clause (3), however, permits the State to make special provision for women and children. Similarly, Clause (4) permits the State to make special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes. Clauses (3) and (4) do not, however, permit making of special provisions in derogation of the prohibition against discrimination on the ground of religion. This Court has laid down that this constitutional mandate to the State contained in Article 15(1) extends to political as well as to other rights and any law providing for elections on the basis of separate electorates for members of different religious communities offends against this clause. (See Nain Sukh Das and Anr. v. The State of Uttar Pradesh and Others, [1953] SCR 1184). 135. Similarly Article 325 requires that there shall be one general electoral roll for every constituency for election to either House of Parliament or to the house of either House of Legislature of a State and precludes a person being rendered ineligible for inclusion in any suc....
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....mittee has observed:- "Their Lordship are unable to accept this as the correct test. In their views, it is not a question of whether the impugned Act is based only on one or more of the grounds specified in S. 298, sub-S. 1, but whether its operation may result in a prohibition only on these grounds. The proper test as to whether there is a contravention of the sub-section is to ascertain the reaction of the impugned Act on the personal right conferred by the sub-section, and, while the scope and object of the Act may be of assistance in determining the effect of the operation of the Act on a proper construction of its provisions, if the effect of the Act so determined involves an infringement of each personal right, object of the however laudable, will not obviate the prohibition of sub-s.1". (p.18) In State of Bombay v. Bombay Education Society and Others, [1955] 1 SCR 568, this Court, in the context of Article 29(2) wherein also the expression "on grounds only of religion........ has been used, has accepted the test laid down by the Judicial Committee of the Privy Council in Punjab Province v. Daulat Singh and Others (supra). 136. I may, in this context, also refe....
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....p of the functioning of the State after its admission into the Indian Union. In this regard, it may be pointed out that the reason for the reservation of one seat for Sanghas, as set out in cl. (a) of the note that was appended to the Proclamation of March 16, 1958, was as follows :- "(a) It has long been felt that, as the Monasteries and The Sangha have constituted such a vital and important role in the life of the community since the earliest known history of Sikkim, and have played a major part in the taking of decisions in the Councils of the past, there should be a seat specifically reserved for The Sangha in the Sikkim Council. It is for this reason that a seat has been provided specifically for their representation". 140. This shows that the reservation of one seat for Sanghas in Sikkim Council and subsequently in the Sikkim Assembly was in the context of the administrative set up in Sikkim at the time wherein Sanghas were playing a major part in the taking of decisions in the Council. The said reason does not survive after the admission of Sikkim as a new State in the Indian Union. The continuation of a practice which prevailed in Sikkim from 1958 to 1976 with r....
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....me to be adopted in the Constitution. 143. Under the British Rule, separate electorates, for Muslims were provided by the Indian Councils Act, 1909. The Communal Award announced in 1932 provided for separate electorates for Muslims, Europeans, Sikhs, Indian Christian and anglo-Indians. By it, separate electorates were sought to be extended to the depressed classes also. This was opposed by Mahatma Gandhi who undertook fast unto death and thereupon the said proposal was given up. The Congress Working Committee in its resolution adopted in Calcutta in October 1937 declared the communal award as being 'anti- national, anti-democratic and a barrier to Indian freedom and development of Indian unity'. The Congress felt that separate electorates was a factor which led to the partition of the country. When the Constitution was being framed, the question whether there should be joint or separate electorates was first considered by the Advisory Committee constituted by the Constituent Assembly to determine the fundamental rights of citizen, minorities etc. The advisory Committee in its report dated August 8, 1947 has stated : "The first question we tackled was that of sep....
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....ngress; 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 proposition was going to be moved seriously, and even if it was moved seriously, that it would be taken seriously." [Constituent Assembly Debates; Vol. V, p. 255] 147. The Constituent Assembly rejected the move and approved the recommendation of the Advisory Committee. But in the original Draft Constitution there was no express provision to the effect that elections to the Parliament and to the State Legislatures shall be on the basis of the joint electorates for the reason that electoral details had been left to auxiliary legislation under Articles 290 and 291 of the Draft Constitution. Subsequently it was felt that provision regarding joint electorates is of such fundamental importance that it ou....
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....eserve the secular character of the Republic. 150. Having found that the impugned provision providing for a separate electoral roll for Sangha Constituency contraveness Article 325 and reservation of one seat for Sanghas contravenes Article 15(1) and Articles 325 and 15(1) are of crucial importance to the concept of Secularism envisaged in the Constitution it becomes necessary to examine whether Article 371-F permits a departure from the principle contained in Articles 325 and 15(1) while applying the Constitution to the newly admitted State of Sikkim. I am unable to construe the provisions of Cl (f) of Article 371-F-as conferring such a power clause (f) of Article 371-F which empowers Parliament to make provision for reservation of seats in the Legislative Assembly of Sikkim for protecting the rights and interest of the different sections of the population of Sikkim, must be considered in the context of clause (5) of the tripartite agreement of May 8, 1973. The 'different sections' contemplated in clause (f) of Article 371-F are Sikkimese of Bhutia-Lepcha origin on the one hand and Sikkimese of Nepali origin on the other and the said provision is intended to protect and....
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....ian Union, there has been large influx of outsiders in Sikkim as a result of which the original residents of Sikkim including Sikkimese of Nepali origin have been vastly out numbered by settlers coming to Sikkim from other parts of the country. In my view, there is no substance in these contentions. According to the figures of 1971 census Sikkimese of Nepali origin were 1,40,000 whereas Sikkimese of Bhutia-Lepcha origin were 51,600 and as per per the figures of 1981 census the corresponding figures were 2,24,481 and 73,623 respectively. This shows that the ratio of Sikkimese of Nepali origin and Sikkimese of Bhutia-Lepcha origin is about 3:1. In view of the vast difference in their numbers the Sikkimese of Nepali origin can have no apprehension about their rights and interests being jeopardised on account of reservation of twelve seats for Sikkimese of Bhutia-Lepcha origin in the Legislative Assembly composed of thirty-two seats. As regards the apprehension that the Sikkimese of Nepali origin would be out-numbered by the settlors from other parts of the country I find that no material has been placed by the petitioners to show that the number of settlors from other parts of the cou....