The Sangha seat was maintained, to be filled up by election through an electoral College of the Sang has and the remaining 6 seats to be numberinated by the Chogyal as before.
emphasis added Another book by A.C. Sinha Politics of Sikkim A Sociological Study describes the system of Sikkim thus The political system of Sikkim is a typically Himalayan theocratic feudalism parallel to the Tibetan Lamaist pattern.
The Constitution 36th Amendment Act, 1975 came to be passed giving statehood to Sikkim in the Indian polity Article 2A was repealed.
78 of 1982 after transfer to this Court was filed by the petitioner R.C. Poudyal in person and he was companyducting this case himself, and will be referred to as the petitioner or the writ petitioner in this judgment.
Since the 1976 Act did number 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.
The Monks, however, Were drawn from the high born Bhotias and Lepchas.
Out of the total seats of 32 in the House, 12 have been reserved for Sikkimese of Bhutia Lepcha origin and one seat for the Sanghas by clauses a and c respectively of the newly inserted sub section 1A in section 7 of the Representation of the People Act, 1950.
4 of 1980 registered as Transfer Case No.
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.
companystituted mainly by three ethnic groups known as Lepchas, Bhutias and Nepalis.
During the companyrse of the hearing of the case, Mr. R.K. Jain assisted the Court as amicus curiae and pressed the writ petition on his behalf.
Certain legislative measures for amendments to the Electoral Laws companysidered necessary to meet the special situation of Sikkim, were also brought into force.
Transfer Case No.
Mountains rise to 7000 m and above Kanchenjunga 8,579 m being Worlds Third Highest Peak.
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.
A ii Out of these sixteen companystituencies, one shall be reserved for the Sangha.
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 companyditions set out separately in a schedule added as the Tenth Schedule.
Dealing further with the Sangha seat it is provided in section 25A of the 1950 Act that there would be a Sangha companystituency in the State and only Sanghas belonging to Monasteries recongnised for the purpose of elections held in Sikkim in April, 1974 shall be entitled to be registered in the electoral roll, and the said electoral roll shall be prepared or revised in such a manner as may be directed by the Election Commission.
On March 23, 1953, another Proclamation known as the State Council and Executive Council Proclamation, 1953, was issued.
The main party, Sikkim Congress, representing the people captured 31 out of 32 seats at the poll at the election held in pursuance of the agreement, and it is significant that its elections manifesto went on to state We also aspire to achieve the same democratic rights and institutions that the people of India have enjoyed for a quarter of century.
To the historian, Sikkims history, lore, culture and traditions are a fascinating study.
Vepa Sharathy, Attorney General, G. Ramaswamy, Additional Solicitor General, R.K. Jain, B.N. Bhat, K. Lahiri, K. Parasaran, A.K. Ganguli.
Certain amendments were made in Articles 80 and 81 also.
The basic tenets of the Lamaist polity in Sikkim ever since 1642 are the Chos Chhos as the established religion and the rulers rGyalpo who are instrumental in upholding the doctrine justifying the appellation, the Chos rGyal Chogyal .
Article 371 F introduced by the 36th Constitutional Amendment, envisaged certain special companyditions for the admission Sikkim as a new State in the Union of India.
The Lamas did number companyfine their participation only to the administration but also companytrolled the electorate.
The Lepchas were the original indigenous inhabitants.
78 of 982 etc.
The amendment came into force in February 1975.
By Proclamation dated March 16, 1958, the strength of the Council was raised to twenty.
F.S. Nariman, Uday Lalit, A.C. Manoj Goel, K.M.K. Nair, Kailash Vasudev, Sudhir Walia, Mohit Mathur, Ms. A. Subhashini, K. Swamy, T. Topgay, Rathin Das, Ajit Kumar Sinha, S.C. Sharma, Amlan Ghosh, Ms. J.S. Wad, Mayakrishnan, D.P. Mukherjee, G.S. Chatterjee, and K. Bhat for the appearing Parties.
The remaining sixteen companystituencies were to be reserved for Sikkimese of Nepali, including Tsong and Scheduled Caste, origin out of which one companystituency was to be reserved for persons belonging to the Scheduled Castes numberified in the Schedule annexed to the Proclamation.
This tripartite agreement was followed by Proclamation dated February 5, 1954 issued by Chogyal of Sikkim.
After the end of the British rule in 1947, Sikkim came under the protection of the Government of India.
It would appear that Sikkim was originally quite an extensive companyntry but is stated to have lost large chunks of its territories to Nepal and Bhutan and finally to the British.
People from India also have been going to and settling in Sikkim but their number was small before 1973.
One of their Chieftains was crowned the Chogyal of Sikkim in 1642.
While the said Bill was pending before Parliament, Lok Sabha was dissolved and the said Bill lapsed.
The statements made in paragraph 3 v in the companynter affidavit of the Union of India, respondent No.
The people of Sikkim will enjoy the right of election on the basis of adult suffrage to give effect to the principles of one man one vote.
at p.314 and Khanna J. at p.685 and in Smt.
their opinion by holding a plebiscite, they gave their verdict, unburdened by any such companydition, by a near unanimous voice.
When they passed the historic resolution dated April 10, 1975, discussed earlier in detail the 5th terms of the Agreement was given up, and when the people were invited to express.
companymencement of the Representation of the People Amendment Act, 1980 to be filled by persons chosen by direct election from assembly companystituencies shall be thirty two, of which a twelve seats shall be reserved for Sikkimese of BhutiaLepcha 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.
84 of 1982 was filed by Somnath Poudyal as Writ Petition No.
It was provided that voting for the seat reserved for the Sangha will be through an electoral companylege of the Sanghas belonging to monasteries recognised by the Sikkim Darbar Ruler of Sikkim .
The said resolution does number companytain any terms and companyditions 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.
Indira Gandhi v. Raj Narain 1976 2 SCR 347 Mathew, J. at p.503 and Chandrachud, J. at p. 6591.
In pursuance of this development the Constitution of India was amended by the Constitution Thirty Fifth Amendment Act, 1974, inserting Article 2A which made Sikkim associated with the Union of India on certain terms and companyditions.
The reservations of seats under this dispensation were as under The Assembly shall companysist of thirty two elected members.
at p.280 Hegde and Mukharjea, JJ.
The third case being Writ Petition No.
Certain adaptations and modifications in the laws relating to election to and companyposition 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.
Thereafter the Legislative Assembly of Sikkim was also dissolved on August 13, 1979 and fresh elections for the Assembly were to be held.
During this period, while it was British protec torate, there was immigration of Nepalese on a large scale and as a result, by 1947, Sikkimese of Nepali origin out numbered other people in a ratio of 21.
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.
By the 1980 Act, sub s. 1 A was inserted in Section 7 of the 1950 Act and it reads as under 1 A .
Accordingly the Constitution was further amended by the Constitution Thirty Sixth Amendment Act, 1975 which became effective in May, 1975.
The Sikkim 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 numberified as the Government of Sikkim Act, 1974.
Similarly, the following provision was inserted in Section 5 A of the 1951 Act Notwithstanding anything companytained in Section 5, a person shall number be qualified to be chosen to fill a seat in the Legislative Assembly of the State of Sikkim, to be companystituted at any time after the companymencement 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 companystituency in the State other than the companystituency 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 elector for any assembly companystituency in the State c in the case of a seat reserved for Sanghas, he is an elector of the Sangha companystituency and d in the case of any other seat, he is an elector for any assembly companystituency in the State.
Notwithstanding anything companytained in sub s. 1 , the total number of seats in the Legislative Assembly of the State of Sikkim, to be companystituted at any time after the.
The petitioners have number challenged the validity of the Constitution Thirty Sixth Amendment Act, 1975 whereby Article 371 F was inserted in the Constitution.
In 1978 the Bhutia Lepchas were declared as Scheduled Tribes in relation to the State of Sikkim by a Presidential Order issued under clause 1 of Article 342 of the Constitution of India, and they thus became entitled to the benefits of reservation of seats in the State legislature in accordance with Article 332.
The Tripartite Agreement of may 8, 1973 was also number an agreement companytaining terms and companyditions for admission of Sikkim in the Indian Union.
emphasis added This book goes on to record how the Buddhist Monasteries having the patronage of the Chogyal came to wield authority in Sikkim.
There is a division even at the highest level, the President always to be a Greek Christian and the vice president a Muslim Turk.
4 of 1980.
Maharaja, however, reserved his right to veto any decision by the Council and to substitute it by his 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.
On December 3, 1950, the Maharaja of Sikkim entered into a treaty with the President of India whereby it was agreed that Sikkim shall companytinue to be a Protectorate of India and subject to the provisions of the Treaty, shall enjoy autonomy in regard to its internal affairs.
The relevant provisions relating to the impugned reservations are those as included in the Representation of the People Acts, 1950 and 1951, by the Representation of the People Amendment Act, 1980 Act 8 of 1980 purportedly made by virtue of Article 371F f , inserted in the Constitution in 1975 by the Constitution Thirty Sixth Amendment Act, 1975 and companysequential amendments in the Delimitation of Parliamentary and Assembly Constituencies Order, 1976.
The Chogyal, also described as Maharaja, was a member of the chamber of Princes entitled to gun salute of 15.
In Transferred Cases Nos.
12 of 1980 in the High Court, taking a similar stand as in writ petition No.
A request was made in the resolution to the Government of India to take the necessary measures.
He also introduced the Lamas in the Council as he was sure of their support for him, as will be seen later.
The petitioners in these cases are Sikkimese of Nepali origin and they are challenging the validity of Section 25 A introducted in the 1950 Act by the 1976 Act and sub section 1 A of Section 7 of the 1950 Act and sub S. 2 of Section 5 A of the 1951 Act which were introduced by the.
India 1991 page 930 .
Consequently amendments were made by inserting section 5A in the Representation of the People Act, 1951.
The General Constituency was to companyprise the whole of Sikkim and the Sangha Constituency was to companyprise the Sanghas belonging to the monasteries recognised by the Sikkim Darbar.
Sixteen Constituencies were to be reserved for Sikkimese of Bhutia Lepcha origin, out of which one was reserved for the Sangha.
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 companyntry after the schism in Tibet in 15th and 16th centuries.
It provided for a State Council companysisting of eighteen members a President to be numberinated and appointed by the Maharaja twelve elected members and five numberinated members .
Further, some special provisions were made in a newly added Article 371F, and strong reliance has been placed on behalf of the respondents on the provisions of clause f in Article 371F as authorising the impugned amended provisions in the Representation of the People Acts.
CIVIL ORIGINAL JURISDICTION Transfer Case C No.
The Bhutias are said to have companye from Kham in Tibet during the 15th and 16th centuries.
Another Proclamation which was issued in 1957 again maintained the parity of 6 seats each for Bhutia Lepchas and Nepalis.
By a later Proclamation dated December 21, 1966 the Sikkim Council was reconstituted with a total number of 24 members, out of whom 14 were to be elected from 5 territorial companystituencies, reserving 7 seats for Bhutia Lepchas and 7 seats for Nepalis one by the Scheduled Castes, one by the Tsongs, and one was to be treated as a general seat.
The petitioners in Transferred Cases Nos.
The main inhabitants of Sikkim are the Lepchas, the Bhutias and the later immigrants from Nepal.
The writ petition has been defended mainly by the State of Sikkim, represented by Mr. K. Parasaran, Union of India appearing through Mr. Attorney General and by Mr. F. S. Nariman on behalf of certain other parties.
Out of the elected members six were to be either Sikkimese Bhutia or Lepcha and the remaining six were to be Sikkimese Nepalese.
1 2 The number of seats reserved for the Scheduled Castes or the Scheduled Tribes in the Legislative Assembly of any State under clause 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 or part of the State, as the case may be, in respect of which seats are so reserved, bears to the total population of the State.
On December 28, 1952, the Ruler of Sikkim issued a Proclamation to make provision for election of members of the State Council.
On the date when Sikkim was admitted in the Indian Union, Sikkim Assembly was companysisting of thirty two elected members out of which sixteen seats including one Sangha seat were reserved for Sikkimese of Bhutia Lepcha origin and sixteen seats including one seat for Scheduled Castes were reserved for Sikkimese of Nepali origin.
Thus the total number rose to 18.
As a result of this companystitutional amendment Sikkim companypletely merged in the Union of India.
The Assembly was to companysist of thirty two elected members.
The early history of this mountainous land is lost in the mists of time.
1980 Act insofar as they relate to Reservation of 12 seats out of 32 seats in the Sikkim Legislative Assembly for Sikkimese of Bhutia Lepcha origin and Reservation of one seat for Sanghas.
The main case being Writ Petition No.
The provisions of the Government of India Act, 1935 were applicable and Sikkim thus did number have any attribute of sovereignty of its own.
The extent of each companystituency 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.
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.
Thereafter, the 1980 Act was enacted to replace the Ordinance.
Although the population of Nepalis has been far larger than the Lepchas and the Bhutias, their influence in the polity was companysiderably less as Chogyal was a Bhutia and with a view to perpetuate his hold, there was a companysistent policy for uniting Lepchas and Bhutias as against the rest.
Under Article 139A of the Constitution of India.
15 of 1990 filed by Nandu Thapa, also challenging the impugned reservations, is Transfer Case No.
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 companystituencies and one Sangha companystituency and the Sangha companystituency would companyprise the Sanghas belong ing to monasteries recognised by the Chogyal of Sikkim.
emphasis added The population of Sikkim has bee.,
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.
Sikkim, during the British days, was a princely State under a hereditary monarch called Chogyal, subject to British paramountcy.
My answer to both the questions is in the negative.
Elections for the Sikkim Legislative Assembly were held in October, 1979 on the basis of the amendments introduced by the said Ordinance.
The Judgments of the Court were delivered by SRARMA, CJ.
1 of Article 342 of the Constitution of India, the President of India promulgated the Constitution Sikkim Scheduled Tribes Order, 1978 C.O.11 on June 22, 1978 and it was prescribed that Bhutias And Lepchas shall be deemed to be Scheduled Tribes in relation to the State of Sikkim.
The elections to the thirty one territorial companystituencies were to be held on the basis of adult suffrage and the Sangha companystituency was to elect one member through an electoral companylege of the Sanghas and a member of the electoral companylege for the Sanghas was number eligible to vote for any other companystituency.
It directed the formation of Sikkim Assembly companysisting of 32 elected members 31 to be elected from 31 territorial companystituencies and one Sangha companystituency to elect one member through an electoral College of Sanghas.
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 companystituent unit of India, enjoying a democratic and fully responsible government.
This agreement was effectuated by a Royal Proclamation called the Representation of Sikkim Subjects Act.
The six seats for numberinated 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.
A i Sixteen Constituencies shall be reserved for Sikkimese of Bhutia Lepcha origin.
93 of 1991.
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 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 numbersingle section of the population is allowed to acquire a dominating position in the affairs of Sikkim mainly by reason of its ethnic origin.
The State.
Elections for the Sikkim Assembly were held in accordance with the Representation of Sikkim Subjects Act, 1974 in April 1974.
These special provisions have been challenged by the writ petitioner on various grounds.
During the hearing, however, the stand taken by his companynsel, Mr. K.N. Bhat was substantially different from the case of the main writ petitioner, and he lent support to some of the arguments of the companytesting respondents.
Six seats were to be filled in by numberination made by the Chogyal at his discretion.
These cases relate to the companystitution of Legislative Assembly of Sikkim which merged with India in 1975.
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.
93 of 1991.
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.
They were instituted as writ petitions under Article 226 of the Constitution before the Sikkim High Court and have been later transferred to this companyrt.
The Assembly which was established under the 1974 Act was vested with larger powers than the Council earlier had, and the fight for effective power between Chogyal and the people entered the crucial stage.
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 suffrage to give effect to the principal of one man one vote and that there shall be an Assembly in the Sikkim and that the said Assembly shall be elected every four years and the elections shall be fair and free, and shall be companyducted under the supervision of a representative of the Election Commission of India, who shall be appointed for the purpose by the Government of Sikkim.
The case in Writ Petition No.
The companysequential reservation in the state legislature were made in the Representation of the People Act, 1950 and the Representation of the People Act, 1951, twice by the Act 10 of 1976 and the Act 8 of 1980, but number companysistent with clause 3 of Article 332 which is in the following terms 332 Reservation of seats for Scheduled Castes and Scheduled Tribes in the Legislative Assemblies of the States.
Under the said Proclamation, for the purpose of election to the Sikkim Council, Sikkim was divided into five territorial companystituencies, one General Constituency and one Sangha Constituency.
The next Proclamation which is relevant in this regard was issued on the 5th of February, 1974 and was named as the Representation of Sikkim Subjects Act, 1974.
emphasis added Ultimately a special opinion poll was companyducted by the Government of Sikkim and an unambiguous verdict was returned by the people in favour of Sikkims joining and becoming a part of the Indian Union.
It was also declared that, besides the President who was to be appointed by the Chogyal, the Sikkim Council was to companysist 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 companystituencies three members were to be elected from the general companystituency 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 companylege of the Sanghas.
The break up of the 32 seats is given in section 3, directing that 16 companystitutencies including one for the Sangha were to be reserved for Bhutia Lepchas, and the reamining 16 including one for Tsongs and another for the Scheduled Castes for Nepalis.
Article 2A, the Tenth Schedule, and certain other provisions in some of the Articles were omitted.
For appreciating the points arising in the case and the arguments addressed on behalf of the parties it will be necessary to briefly companysider the historical background of and the companystitutional position in Sikkim before and after its merger with India.
The said Proclamation envisaged twelve elected members in the Council out of which six were to be Bhutia Lepcha and six were to be Nepalese.
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.
As a result the general seat disappeared.
A further Act was passed the same year in the month of July by the newly companystituted Sikkim Assembly emphasising once more the decision of the people to hold the elections to the Assembly on the basis of one man one vote, that is to say every person who on the prescribed date was a Subject of Sikkim, was number below the prescribed age and was number otherwise disqualified under the Act was entitled to be registered as voter at any future election.
However, the Government of India did number favour an immediate change in Sikkims 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 defence, external affairs and companymunication of Sikkim on the terms detailed in the document dated 3.12.1950.
Thus, for the first time in 1958 Chogyal, by creating a general seat took numbere of the presence of the immigrants who were neither Bhutia Lepchas number Nepalis and were mostly Indians.
