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R.C. POUDYAL & ANR V. UNION OF INDIA & ORS [1993] INSC 77 (10 February 1993)

VENKATACHALLIAH, M.N. (J) VENKATACHALLIAH, M.N. (J) SHARMA, L.M. (CJ) VERMA, JAGDISH SARAN (J) REDDY, K. JAYACHANDRA (J) AGRAWAL, S.C. (J)

CITATION: 1993 AIR 1804 1993 SCR (1) 891 1994 SCC Supl. (1) 324 JT 1993 (2) 1 1993 SCALE (1)489

ACT:

Representation of People Act, 1950:

Sections 7(1-A) and 25A (As inserted by Election Laws Extension to Sikkim) Act, 1976 and Representation of People (Amendment) Act, 1980-Constitutional validity of.

Representation of People Act, 1951:

Section 5A(2) (As inserted by the Representation of People (Amendment)) Act, 1980-Constitutional validity of.

Sikkim Assembly-Reservation of 12 seats out of 32 seats for Sikkimese of "Bhutia-Lepcha" origin-Whether violative of Articles 14, 170(2) and Clause (f) of Article 371-F-Whether violative of Indian Constitutionalism-Whether violative of Principle of Republicanism-Extent of reservation of seats- Whether disproportionate and violative of Article 332(3).

Reservation of one seat in favour of 'Sangha' (Buddhist Lamaic Religious Monastries) with provision for election on the basis of separate electoral roll-Whether based on pure religious distinction-Whether violative of Articles 15(1) and 325-Provision of reservation of Sangha seat-Whether to be construed as a nomination.

Constitution of India, 1950:

Articles 1(3) (c), 2, 3, and 4.

Admission of a new State into Indian Union-Power of Parliament to impose terms and conditions-Constitutional limitations on power of Parliament-What are-Terms and conditions of admission of new State-Justiciability of- Doctrine of Political question-Applicability of.

Expression "as it thinks fit" in Article 2-Meaning of.

892 Articles 15 and 325:

State Legislature-Reservation of seats in favour of 'sangha' (Buddhist Lamaic Religious Monastries) with provision for maintenance of separate electoral roll-Whether violative of Articles 15 and 325.

Article 371-F-Non-obstante clause-Scope and effect of.

Clause (f)-Whether violative of Basic Features of Democracy- Whether violates 'one person one vote' rule enshrined in Article 170(2)-Whether enables departure from Article 332(3).

Article 332-State Legislature-Reservation of seats for Scheduled Castes and Scheduled Tribes-Clause (3)-Words 'As nearly as May be'-Scope of-Whether permit deviation from prescribed proportion of Reservation.

Words and Phrases:

'Democratic Republic'-'Democracy' and 'Democratic'-Meaning of.

HEADNOTE:

On May 8, 1973, a tripartite agreement was executed amongst the Chogyal (Ruler) of Sikkim, the Foreign Secretary to the Government of India and the leaders of the political parties representing the people of Sikkim which envisaged right of people of Sikkim to elections on the basis of adult suffrage, contemplated setting up of a Legislative Assembly in Sikkim to be reconstituted by election every four years and declared a commitment to free and fair elections to be overseen by a representative of the Election Commission of India. Para (5) of the said agreement provided that the system of elections shall be so organised as to make the Assembly adequately representative of the various sections of the population The size and composition of the Assembly and of the Executive Council shall be such as may be prescribed from time to time, care being taken to ensure that no single section of the population acquires a dominating position due mainly to its ethnic origin, and that the rights and interests of the Sikkimese Bhutia Lepcha origin and of the Sikkimese Nepali, which includes Tsong and Scheduled Caste origin. are fully protected. This agreement was effectuated by a Royal Proclamation called the Representation of Sikkim Subjects Act, 1974, issued by the Ruler of' Sikkim. It directed the formation of Sikkim Assembly consisting of 32 elected members 31 to be elected from territorial constituencies and One Sangha constituency to elect one member through on electoral college of 893 Sanghas. Consequently, elections for the Sikkim Assembly were held in April 1974. The Sikkim Assembly so elected and constituted passed the Government of Sikkim Act, 1974.

Section 7 of the said Act gave recognition to paragraph 5 of the tripartite agreement dated May 8, 1973. 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 an "Associate State" with the Union of India. On 10th April, 1975, the Sikkim Assembly passed a resolution abolishing the institution of Chogyal and declared 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. By an opinion poll the said resolution was affirmed by the people of Sikkim. Accordingly, the Constitution was further amended by the Constitution (Thirty-Sixth Amendment) Act, 1975 whereby Sikkim became a full-fledged State in the Union of India and Article 371-F was inserted in the Constitution which envisaged certain special conditions for the admission of Sikkim as a new State in the Union of India. Clause (f) of the said Article empowered Parliament to make provision for reservation of seats in the Sikkim Assembly for the purpose of protecting the rights and interests of the different sections of the population of Sikkim.

Thereafter Parliament enacted the Election Laws (Extension to Sikkim) Act, 1976 which sought to extend, with certain special provisions, the Representation of the People Act, 1950 and the Representation of the People Act, 1951 to Sikkim. Further, the Bhutia-Lepchas were declared as Scheduled Tribes in relation to the State of Sikkim by a Presidential Order issued under 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 consequential reservation in the State Legislature were made in the Representation of People Act, 1950 and Representation of People Act, 1951 by the 1976 Act and the Representation of People (Amendment) Act, 1980. Twelve seats out of thirty-two seats in the Sikkim Assembly were reserved for Sikkimese of Bhutia-Lepcha origin; and one seat was reserved for Sanghas, election to which was required to be conducted on the basis of a separate electoral roll in which only the Sanghas belonging to monasteries recognised for the purpose of elections held in Sikkim in April, 1974 were entitled to be registered.

894 The petitioners, Sikkimese of Nepali origin, filed petitions challenging the reservation of 12 seats for Sikkimese of "Bhutia-Lepcha" origin and one seat for "sangha".

Objections as to the maintainability of the writ petitions were taken on behalf of the State of Sikkim and the Union of India on the grounds : (a) that a law made under Article 2 containing the terms and conditions on which a new State is admitted in the Indian Union is, by its very nature, political involving matters of policy and, therefore, the terms and conditions contained in such a law are not justiciable on the political question doctrine; (b) in view of the non-obstante clause in Article 371-F, Parliament can enact such a law in derogation of the other provisions of the Constitution and the said law would not be open to challenge on the ground that it is violative of any other provisions of the Constitution.

On behalf of the petitioners it was contended (1) that the reservation of one seat in favour of the 'Sanghal (Bhuddhist Lamaic Religious Monasteries) is purely based on religious considerations and is violative of Articles 15(1) and 325 of the Constitution and offends the secular principles; the said reservation based on religion with a separate elec- torate at the religious monasteries is violative of basic structure of the Constitution; (2) that the provisions in clause (f) of Article 371-F enabling reservation of seats for sections of the people and law made in exercise of that power providing reservation of seats for Bhutias-Lepchas violate fundamental principles of democracy and republicanism under the Indian Constitution; (3) the reservation of seats for Sikkimese of Bhutia-Lepcha origin without making a corresponding reservation for Sikkimese of Nepali origin is violative of the right to equality guaranteed under Article 14 of the Constitution; (4) in view of the Constitution (Sikkim) Scheduled Tribes Order, 1978 declaring Bhutias-Lepchas as Scheduled Tribes, the extent of reservation of seats is disproportionate and violative of Article 332 (3) of the Constitution. and (5) that this departure from the provisions of Article 332(3) derogates from the principle of one man, one vote enshrined in Article 170(2) of the Constitution.

On behalf of the respondents it was contended (1) that although basically the monasteries are religious in nature, yet 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. Viewed in 895 this background they should not be treated as merely religious institutions for the purposes of reservation; (2) since the Constitution permits nomination to be made in the legislatures, the creation of a separate electorates for the Sangha seat cannot be objected to; (3) that the constitutional amendment bringing in Article 371F(f), as also the relevant amended provisions of the Representation of the People Acts are legal and valid because a perfect arithmetical equality of value of votes is not a constitutionally mandated imperative of democracy and secondly, that even if the impugned provisions made 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 evaluation of Sikkim's political institutions.

Dismissing the petitions, this Court,

HELD : By the Court (i) The questions raised in the petitions pertaining to the terms and conditions of accession of new State are justiciable. [975B] (ii) Clause (f) of Article 371-F of the Constitution of India, is not violative of the basic features of democracy.

[986C] (iii) That impugned provisions providing for reservation of 12 seats, out of 32 seats in the Sikkim Legislative Assembly in favour of Bhutias Lepchas, are neither unconstitutional as violative of the basic features of democracy and republicanism under the Indian Constitution nor are they violative of Articles 14, 170(2) and 332 of the Constitution. The impugned provisions are also not ultra vires of Clause (f) of Article 371-F.

[986E-H, 987A-H, 988A] (iv) The extent of reservation of seats is not violative of Article 332(3) of the Constitution. [987A-B, 988A] (v) The reservation of one seat for Sangha to be elected by an Electoral College of Lamaic monasteries is not based purely on religious distinctions and is, therefore, not unconstitutional as violative of Articles 15(1) and 325 of the Constitution. [989A-H] Quaere (i) Whether the terms and conditions of admission of a new State are justiciable? 896

1. The power to admit new States into the Union under Article 2 is, no doubt, in the very nature of the power, very wide and its exercise necessarily guided by political issues of considerable complexity many of which may not be judicially manageable. But for that reason, it cannot be predicated that Article 2 confers on the Parliament an unreviewable and unfettered power immune from judicial scrutiny. The power is limited by the fundamentals of the Indian constitutionalism and those terms and conditions which the Parliament may deem fit to impose, cannot be inconsistent and irreconcilable with the foundational principles of the Constitution and cannot violate or subvert the Constitutional scheme. Therefore, if the terms and conditions stipulated in a law made under Article 2 read with clause (f) of Article 371-F go beyond the constitution- ally permissible latitudes, that law can be questioned as to its validity. Consequently it cannot be said that the issues are non-justiciable.

[974D-F, 975B-E] A.K. Roy, v. Union of India, [1982] 2 S.C.R. 272; Madhav Rao v. Union of India, [1971] 3 S.C.R. 9 and State of Rajasthan v. Union of India, [1978] 1 S.C.R. 11, referred to.

Vinod Kumar Shantilal Gosalia v. Gangadhar Narsingdas Agarwal & Ors., [1982] 1 S.C.R. 392, Held inapplicable.

Marbury, v. Madison 1 Cr. 5 U.S. 137, 170 (1803); Martin v.

Mott, 12 Wheat 25 US 19 (1827); Ware v. Hylton, 3 Dail. 3 U.S. 199 (1796); Luther v. Borden, 7 How. 48 U.S. 1 (1849);

Baker v. Carr 369 U.S. 186; Powell v. McCormack, 395 U.S.

486 and Japan Whaling Ass'n v. American Cetacean Society 478 (1986) U.S. 221, referred to.

A.K. Pavithran, Substance of Public International Law Western and Eastern, First Edition, 1965 pp. 281-2; The Constitution of the United States of American Analysis and Interpretation and Congressional Research Service Liberty of Congress 1982 Edn. p.703, referred to.

2. Article 2 gives a wide latitude in the matter of prescription of terms and conditions subject to which a new territory is admitted. There is no constitutional imperative that those terms and conditions should ensure that the new State should, in all respects, be the same as the other 897 States in the Indian Union. However, the terms and conditions should not seek to establish a form or system of Government or political and governmental institutions alien to and fundamentally different from those the Constitution envisages. [984C-D] Constitutional Law of India, Edited by Hidayatullah, J., referred to.

3. In judicial review of the vires of the exercise of a constitutional power such as the one under Article 2, the significance and importance of the political components of the decision deemed fit by Parliament cannot be put out of consideration as long as the conditions do not violate the constitutional fundamentals. In the interpretation of a constitutional document, 'words are but the framework of concepts and concepts may change more than words themselves'. The significance of the change of the concepts themselves is vital and the constitutional issues are not solved by a mere appeal to the meaning of the words without an acceptance of the line of their growth. It is aptly said that "the intention of a Constitution is rather to outline principles than to engrave details". [985A-C] 43 Aust. Law Journal, p.256, referred to.

4. Article 371-F cannot transgress the basic features of the Constitution. The non obstante clause cannot be construed as taking clause (f) of Article 371-F outside the limitations on the amending power itself. The provision of clause (f) of Article 371-F and Article 2 have to be construed harmoniously consistent with the foundational principles and basic features of the Constitution. [974H, 975A] Mangal Singh & Anr. v. Union of India, [1967] 2 S.C.R. 109, relied on.

Per S. C Agrawal, J. (Concurring)

1. While admitting a new State in the Union, Parliament, while making a law under Article 2, cannot provide for terms and conditions which are inconsistent with the scheme of the Constitution and it is open to the Court to examine whether the terms and conditions as provided in the law enacted by Parliament under Article 2 are consistent with the constitutional scheme or not. Power conferred on Parliament under Article 2 is not wider in ambit than the amending power under Article 368 and it would be of little practical significance to treat Article 371-F as a law made under Article 2 of the Constitution or introduced by way of 898 amendment under Article 368. In either event, it will be subject to the limitation that it cannot alter any of the basic features of the Constitution. The scope of the power conferred by Article 371-F, is therefore, subject to judicial review. So, also is the law that is enacted to give effect to the provisions contained in Article 371-F.

[1005E-H] Baker v. Carr, 1962 (369) U.S. 186 and Powell v. McCormack, 395 U.S. 490, referred to.

A.K Roy v. Union of India, [1982] 2 S.C.R. 272; Madhav Rao v. Union of India, [1971] 3 S.C.R. 9; State of Rajasthan v. Union of India, [1978] 1 S.C.R. 1; S.P. Gupta v. Union of India, [1982] 2 S.C.R. 365 and Mrs. Sarojini Ramaswami v. Union of India & Ors., Writ Petition (Civil) No. 514 of 1992 decided on August 27, 1992, referred to.

2. It is not doubt true that is the matter of admission of a new State in the Indian Union, Article 2 gives considerable freedom to Parliament to prescribe the terms and conditions on which the new State is being admitted in the Indian Union. But at the same time, it cannot be said that the said freedom is without any constitutional limitation. The power conferred on Parliament under Article 2 is circumscribed by the overall constitutional scheme and Parliament, while prescribing the terms and conditions on which a new State is admitted in the Indian Union, has to act within the said scheme. Parliament cannot admit a new State into the Indian Union on terms and conditions which derogate from the basic features of the Constitution. To hold otherwise would mean that it would be permissible for Parliament to admit to the Union new States on terms and conditions enabling those State to be governed under systems which are inconsistent with the scheme of the Constitution and thereby alter the basic features 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 to the Constitution, viz., to after 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 899 new State is admitted in the Union. [1003G-H, 1004A, C-E] Mangal Singh v. Union of India, [1967] 2 S.C.R. 109, referred to.

R.D. Lumb, The Constitution of Commonwealth of Australia, (1986) 4th Edn. p. 736, referred to.

3. 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 cannot be ignored that the scope of the non-obstante clauses in 371-F cannot extend beyond the scope of the legislative power of Parliament under Article 2 or the amending power under Article 368. Therefore, the non-obstalite clause has to be so construed as to conform to the aforesaid limitation or otherwise Article 371-F would be rendered unconstitutional. A construction which leads to such a consequence has to be eschewed. Thus as a result of the non-obstante clause in Article 371-F, clauses (a) to (p) of the said Article have to be construed to permit a departure from other provisions of the constitution in respect of the matters covered by clauses (a) to (p) provided the said departure is not of such a magnitude as to have the effect of altering any of the basic features of the Constitution.

[1006B-G]

4. It cannot be said that Article 371-F contains a political element in the sense that it seeks to give effect to a political agreement relating to admission of Sikkim into the Indian Union. [1003D] Per L.M. Sharma, CJ. (Concurring)

1. The courts are not only vested with the jurisdiction to consider and decide the points raised in these writ petitions, but are under a duty to do so. If steps are taken to grant legitimacy to a state of affairs repulsive to the basic features of our Constitution, the Courts are under a duty to judicially examine the matter. [925C, H]

2. There is a vital difference between the initial acquisition of additional territory and the admission of the same as a full-fledged State of the Union of India similar to the other States. [921G] 900

3. Special provisions for any State can certainly be made by an amendment of the Constitution, as is evident by Article 371A 371 B, 371C at cetera, but it is not permissible to do so in derogation of the basic features of the Constitution. So far the power of sovereignty to acquire new territories is concerned, there cannot be any dispute. The power is inherent, it was, therefore, not considered necessary to mention it in express terms in the Constitution. It is also true that if an acquisition of new territories is made by a treaty or under an agreement the terms of the same will be beyond the scrutiny of the courts.

The position, however, is entirely different when new territory is made part of India, by giving it the same status as is enjoyed by an existing State under the Constitution of India. The process of such a merger has to be under the Constitution. No other different process adopted can achieve this result. And when this exercise is undertaken, there is no option, but to adopt the procedure as prescribed in conformity with the Constitution. At this stage the Court's jurisdiction to examine the validity of the adopted methodology cannot be excluded. [921H, 922A-C]

4. So far the present case is concerned the decision does not admit of any doubt that when the Thirty-Sixth Amendment of the Constitution was made under which Sikkim joined India as a full-fledged State like other States, power of amendment of the Constitution was invoked, and this had to be done only consistent with the basic features of the Constitution. 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.

[922D, H, 923A] Mangal Singh & Anr. v. Union of India, [1967] 2 S.C.R.109, referred to.

5. It is true that in case of acquisition Article 2 comes into play but that is only at the initial stage when the new territory joins and becomes the territory of India under Article 1(3) (c). In the present case the power under Article 2 was not exercised at any point of time.

Initially, Sikkim joined India as an Associate State by Article 2A introduced in the Constitution by an amendment.

When further steps of its complete merger with India were taken, the methodology under Article 3 was not available in view of the observations in Berubari case. Correctly assessing the situation, fresh steps for amendment of the Constitution once more were taken and Sikkim was granted the status of a full Statehood at par with the other States by the Thirty-Sixth Amendment of the Constitution. Once this 901 was done it had to be consistent with the basic features of the Constitution. [924E-G] The Berubari Union and Exchange of Enclaves, [1960] 3 S.C.R.

250, relied on.

Quaere (ii) Whether the impugned provisions providing for reservation of Sangha seat with provision for separate electoral roll and Sangha constituency are unconstitutional? Per M.N. Venkatachaliah (For himself, J.S. Verma and KJ.

Reddy, JJ.).

1. A separate electorate for a religious denomination would be obnoxious to the fundamental principles of our secular Constitution. If a provision is made purely on the basis. of religious considerations for election of a member of that religious group on the basis of a separate electorate, that would, indeed, be wholly unconstitutional.

But in the case of the Sangha, it is not merely a religious institution. The literature on the history of development of the political institutions of Sikkim tend to show that the Sangha had played an important role in the political and social life of the Sikkimese people. It had made its own contribution to the Sikkimese culture and political development. Thus, there is material to sustain the conclusion that the 'Saughal had long been associated itself closely with the political developments of Sikkim and was inter-woven 10th the social and political life of its people. In view of this historical association, the provisions in the matter of reservation of a seat for the Sangha recognises the social and political role of the institution more than its purely religious identity. The provision can be sustained on this construction. [989C-H, 990A]

2. In the historical setting of Sikkim and its social and political evolution the provision has to be construed really as not invoking the impermissible idea of a separate electorate either. Indeed, the provision bears comparison to Article 333 providing for representation for the Anglo- Indian community. It is to be looked at as enabling a nomination but the choice of the nominee being left to the 'Sangha' itself [989E-F] Per S. C Agrawal, J. (Dissenting)

1. The impugned provision providing for a separate electoral roll for 902 Sangha Constituency contravenes Article 325 and reservation of one seat for Sanghas contravenes Article 15(1). Article 371-F does not permit a departure from the principle contained in Articles 325 and 15(1) while applying the Constitution to the newly admitted State of Sikkim. Clause (f) of Article 371-F, cannot be construed to permit reservation of a seat for Sanghas and election to that seat on the basis of a separate electoral roll composed of Sanghas only. Consequently, clause (c) of sub-section (1-A) of Section 7 and Section 25-A of the 1950 Act and the words 'other than constituency reserved for Sanghas' in clause (a) of sub-section (2) of Section 5-A and clause (c) of sub- section (2) of Section 5-A of the 1951 Act are violative of the provisions of Articles 15(1) and 325 of the Constitution and are not saved by Article 371-F of the Constitution. The said provisions, are however, severable from the other provisions which have been inserted in the 1950 Act and the 1951 Act by the 1976 Act and the 1980 Act and the striking down of the impugned provisions does not stand in the way of giving to the other provisions. [1023H, 1024A-B, D-E]

2. Since only a Buddhist can be a Sangha, the effect of the reservation of a seat for Sanghas and the provision for special electoral roll for the Sangha Constituency %,herein only Sanghas are entitled to be registered as electors, is that a person who is not a Buddhist cannot contest the said reserved seat and he is being discriminated on the ground only of religion. Similarly, a person who is not a Buddhist is rendered ineligible to be included in the electoral roll for Sangha Constituency on the ground only of religion. The historical considerations do not justify this discrimination. [1018E-G] 2.1. 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 that 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 with regard to reservation of one seat for Sanghas and the election to the said seat on the basis of a special electoral college composed of Sanghas alone cannot, therefore, be justified on the basis of historical considerations and the impugned provisions are violative of the Constitutional mandate contained in Article 15(1) and Article 325 of the Constitution. [1019D-E] 903 Nain Sukh Das and Anr. v. The State of Uttar Pardesh and Ors., [1953] S.C.R. 1184; Punjab Province v. Daulat Singh and Ors., 1946 F.C.R. 1; State of Bombay v. Bombay Education Society and Ors., [1955] 1 S.C.R. 568 and The State of Madras v. Srimathi Champakam Dorairajan, [1951] S.C.R. 525, relied on.

3. In so far as clause (1) of Article 15 is concerned express provision has been made in clauses (3) and (4) empowering the State to make special provisions for certain classes of persons. Sanghas, as such, do not fall within the ambit of clauses (3) and (4) of Article 15 and therefore, a special provision in their favour, in derogation of clause (1) of Article 15 is not permissible.

[1020C]

4. Article 325 is of crucial significance for maintaining the secular character of the Constitution. Any contravention of the said provision cannot but have an adverse impact on the secular character of the Republic which is one of the basic features of the Constitution. The same is true with regard to the provisions of clause (1) of Article 15 which prohibits reservation of seats in the legislatures on the ground only of religion. [1023A-B] Smt.

Indira Gandhi v. Raj Narain, [1976] 2 S.C.R. 347 and Kesa- vanalida Bharati v. State of Kerala, [1973] Supp. S.C.R. 1, referred to.

5. It is no doubt true that the impugned provisions, relate to only one seat out of 32 seats in the Legislative Assembly of Sikkim. But the potentialities of mischief resulting from such provisions cannot be minimised. The existence of such provisions is bound to give rise to similar demands by followers of other religions and revival of the demand for reservation of seats on religious grounds and for separate electorates which was emphatically rejected by the Constituent Assembly. It is poison which, if not eradicated from the system at the earliest, is bound to eat into the vitals of the nation. It is, therefore, imperative that such provision should not find place in the statute book so that further mischief is prevented and the secular character of the Republic is protected and preserved.

[1023C-E] Kedar Nath Bajoria v. The State of West Bengal, [1954] 5 S.C.R. 30, referred to.

904 Shiva Rao, Framing of India's Constitution, Select Documents, Vol.II, p.412 and Constituent Assembly Debates, Vol. V. p. 202, 224, 225, referred to.

Per L.M. Sharma, C.j (Dissenting)

1. The provisions of Section 25A of the Representation of the People Act, 1950 are ultra vires the Constitution. The provisions of. Section 7(1A)(c) and the other connected amendments are also ultra vires the Constitution. [941B, 935G] The Buddhist Monasteries, which are the beneficiaries of the reservation, are admittedly religious institutions. If the entire Constitution is considered harmoniously along with all the other materials, relevant in law for this purpose including the 'Enacting History', there is no escape from the conclusion that any weightage at the poll in favour of a group on the ground of religion is strictly prohibited and further, that this is a basic feature, which is not amenable to amendment. [931D, 935G] B.K. Mukherjee, Hindu Law of Religious and Charitable Trust;

George Kotturan, The Himalayan Gatewa); J.C. White, Sikkim and Bhutan Twenty One Years on the North East Frontier 887- 1908; J.S. Lall, The Himalaya Aspects of change, 1981;

Geoffrey Georer, Himalayan Village and A.C. Sinha, Politics of Sikkim A Sociological Study referred to.

3. 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. And all this may ultimately change the very complexion of the legislatures. The effect that only one seat has been reserved today for the Monasteries in Sikkim is the thin edge of the wedge which has the potentiality, to tear apart, in the course of time, the very foundation, which the democratic republic is built-upon. All this is prohibited as being abhorrent to the basic features of the Constitution. [932H, 933A-D] 3.1. Today a single seat in the legislature of one State is not conspicuously noticeable and may not by itself be capable of causing irreparable damage, but this seed of discord has the potentiality of developing into a deadly monster. It is true that some special rights have been envisaged 905 in the Constitution for handicapped classes but this has been done only to offset the disadvantage the classes suffer from, and not for bringing another kind of imbalance by making virtue out of minority Status. The Constitution, therefore, has taken precaution to place rigid limitations on the extent to which this weightage 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 main-stream 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. [955D-H]

4. There is also another serious flaw in the reservation for the Sangha rendering the same to be unconstitutional.

By the impugned provisions of the 1950 Act, a special electorate has been created for this seat which is highly abhorrent to the fundamental tenets of the Constitution.

[935H, 936A] 4.1. From the entire scheme of the Constitution, it is clear that its basic philosophy eloquently rejects the concept of separate electorate in India. This conclusion is reinforced by the historical background, the celebrations of the Advisory Committee, and the discussion which took place in the Constituent Assembly before giving final shape to the Constitution. There is no reason for assuming that while inserting Article 371 F(f) in the Constitution there was a complete reversal of faith on this basic and vital matter, which was otherwise also not permissible. It follows that consistent with the intention of the rest of the Constitution the provision regarding the delimitation of the Assembly constituencies in Article 371 F(f) has to be interpreted in the same sense, as the expression has been used in the other provisions. Clause (f) of Article 371F neither by its plain language nor intendment permits separate electorates and any attempt to give a different construction would not only be highly artificial and speculative but also would be violative of a basic feature (if the Constitution. [940G-H. 941A] B. Shiva Rao's Framing of Indian constitution, Vol. II, pp. 56-57, 392, 906 412, referred to.

Constituent.Assembly Debates, Vol. V, P.225, 224, 202, referred to.

5.There is no parallel between the nominations permitted by the Constitution to be made In the legislatures and the creation of a separate electorates for the Sangha. After the establishment of a democratic government at every level in the country in one form or the other, nomination under the Constitution amounts to exercise of a power to induct a member in the legislature by an authority, who ultimately represents the people, although the process of the representation may be a little involved. So far a handful of the Buddhist Monasteries in Sikkim are concerned, they cannot be said to represent the people of Sikkim in any sense of the term. Allotting a seat in the legislature to represent these religious institutions is bad enough by itself-, and then, to compound it by vesting the exclusive right in them to elect their representative to occupy the reserved seat is to aggravate the evil. This cannot be compared with any of the provisions in the Constitution relating to nominations. [940D-F] Quaere (iii) Whether the impugned provisions providing for reservation of twelve seats in favour of Bhutia-Lepchas are unconstitutional? Per M.N. Venkatachaliah (For himself, J.S. Verma and KJ.

Reddy, JJ.).

1.Article 371F(f) cannot be said to violate any basic feature of the Constitution such as the democratic principle. [986C] 1.1.The provisions of clauses (f) of Article 371 F and the consequent changes in the electoral laws were intended to recognise and accommodate the pace of the growth of the political institutions of Sikkim and to make the transition gradual and peaceful and to prevent dominance of one section of the population over another on the basis of ethnic loyalties and identities. These adjustments and accommodations reflect a political expediencies for the maintenance of social equilibrium. 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. The impugned provisions have been found in the wisdom of Parliament necessary in the admission of a new State into the Union. The departures are not such as to negate fundamental principles. of democracy. Thus, the provisions in the particular situa- 907 tion and the. permissible latitudes, cannot be said to be unconstitutional.

[986E-H, 987H, 988A, H] 1.2. 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 inequality and special treatment [987A-B] Lachhman Dass etc. v. State of Punjab & Ors., A.I.R. 1963 S.C. 222 and State of Madhya Pradesh v. Bhopal Sugar Industries Ltd., [1964] 6 S.C.R. 846, referred to.

2. 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. The principle of mathematical proportionality of representation is not a declared basic requirement in each and every part of the territory of India. The systemic deficiencies in the plenitude of the doctrine of full and effective representation has not been understood in the constitutional philosophy as derogating from the democratic principle. The inequalities in repre- sentation in the present case are an inheritance and compulsion from the past. Historical considerations have justified a differential treatment.

[985G-H, 986A-B] Reynolds v. Sims, 377 U.S. 506 and Attorney General (CTH) Ex. Rei. Mckinlay v. The Commonwealth, 135 C.LR. (1975) 1, referred to.

2.1. Article 170 incorporates the rule of 'fair and effective representation'.Though the rule 'one person one vote' is a broad principle of democracy, it is more a declaration of a political ideal than a mandate for enforcement with arithmetical accuracy. These are the usual problems that arise In the delimitation of constituencies.

In what is called "First past- the-post' system of elections, the variations in the size and in the voting populations of different constituencies, detract from a strict 908 achievement of this ideal. The system has the merit of preponderance of 'decisiveness" over "representativeness".

[976E-F] Keith Graham, The Battle of Democracy. Conflict, Consensus and the Individual, referred to.

2.2. The concept of political equality underlying a democratic system is a political value. Perfect political equality is only ideological. [977D] Rodney Brazier, Constitutional Reform Reshaping the British Political System, referred to.

Brazier, Constitutional Practice (Clarendon Press (Word), referred to.

Lijphart, Democracy in Plural Societies' Howard D. Hamilton, Legislative Appointment: Key to Power; Gordon E. Baker, One Person, One Vote: Fair and Effective Representation? (Representation and Misrepresentation Rand McNally & Co.

Chicago), referred to.

3. The contention that clause (f) of Article 371 F would require that whichever provisions for reservation of seats are considered necessary for the purpose of protecting the rights and interests of different sections of the population of Sikkim, such reservations are to be made for all such sections and not, as here, for one of them alone ignores that the provision in clause (f) of Article 371 F is merely enabling. If reservation is made by Parliament for only one section it must, by implication, be construed to have exercised the power respecting the other sections in a negational sense. The provision really enables reservation confined only to a particular section. [988B-C]

4. Clause (f) of Article 371 F is intended to enable, a departure from Article 332(2). This is the clear operational effect of the non obstante clause with which Article 371 F opens. [988F]

5. Mere existence of a Constitution, by itself, does not ensure constitutionalism or a constitutional culture. It is the political maturity and traditions of a people that import meaning to a Constitution which otherwise merely embodies political hopes and ideals. [986E] Per S.C. Agrawal, J. (Concurring) 909

1. Clause (a) of sub-section (1-A) of Section 7 of the 1950 Act which provides for reservation of 12 seats in an Assembly having 32 seats for Sikkimese of Bhutia-Lepcha origin does not transgress 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.

[1014E]

2. The reservation of seats for Bhutias and Lepchas is necessary because they constitute a minority and in the absence of reservation they may not have any representation in the Legislative Assembly. Sikkimese of Nepali origin constitute the majority in Sikkim and on their own electoral strength they can secure representation in the Legislative Assembly against the unreserved seats. Moreover, Sikkimese of Bhutia and Lepcha origin have a distinct culture and tradition which is different from that of Sikkimese of Nepali origin. Keeping this distinction in mind Bhutias and Lepchas have been declared as Scheduled Tribes under Article 342 of the Constitution. The Constitution in Article 332 makes express provision for reservation of seats in the Legislative Assembly, of a State for Scheduled Tribes. Such a reservation which is expressly permitted by the Constitu- tion cannot be challenged on the ground of denial of right to equality guaranteed under Article 14 of the Constitution.

[1008B-D]

3. Clause (3) of Article 332 has to be considered in the light of clause (f) of Article 371-F. 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 Constitution.

[1008E-F, 1009B] 3.1. 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 of 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. [1010C-D]

4. The principle of one man, one vote envisages that there should be parity in the value of votes of electors. Such a parity though ideal for a representative democracy is difficult to achieve. There is some departure in every system following this democratic path. In the matter of delimitation of 910 constituencies, it often happens that the population of the one constituency differs from that of the other constituency and as a result although both the constituencies elect one member, the value of the vote of the elector in the constituency having lesser population is more than the value of the vote of the elector of the constituency having a larger population. [1010G-H, 1011A] Reynolds v. Sims, (1964) 377 U.S. 533; Mahan v. Howell, 410 U.S. 315 and Attorney General (CTH) Er. Rel. Mckinlay v.

The Commonwealth, 135 C.L.R. [1975] 1, referred to.

H.W.R. Wade: Constitutional Fundamentals, The Hamlyn Lectures, 32nd Series, 1980, p.5, referred to.

4.1. Provisions of Delimitation Act, 1962 show that population, though important, is only one of the factors that has to be taken into account while delimiting constituencies which means that there need not be uniformity of population and electoral strength in the matter of delimitation of constituencies. In other words, there is no insistence on strict adherence to equality of votes or to the principle one vote-one value. [ 1013H, 1014A] 4.2. The words "as nearly as may be" in clause (3) of Article 332 indicate that even in the matter of reservation of seats for Scheduled Castes and Scheduled Tribes it would be permissible to have deviation to some extent from the requirement that number of seats reserved for Scheduled Castes or the Scheduled Tribes in the Legislative Assembly of any State shall bear the same proportion to the total number of seats as the population of the Scheduled Castes or the Scheduled Tribes in the State in respect of which seats are so reserved, bears to the total population of the state.

The non-obstante clause in Article 371-F read with clause (f) of the said Article enlarges the field of deviation in the matter of reservation of seats from the proportion laid down in Article 332 (3). The only limitation on such deviation is that it must not be to such an extent as to result in tilting the balance in favour of the Scheduled Castes or the Scheduled Tribes for whom the seats are reserved and thereby convert a minority into majority. This would adversely affect the democratic functioning of the legislature in the State which is the core of representative democracy. [1014B-D] 4.3. The non-obstante clause in Article 371-F when read with clause (f) of Article 371-F envisages that Parliament may, while protecting the rights 911 and interests of the different sections of the population of Sikkim deviate from the provisions of the Constitution, including Article 332. [101 OF]

5. In view of the vast differences in their numbers the Sikkimese of Nepali origin can have no apprehension about their rights and interests being jeopardised on account of reservation of 12 seats for Sikkimise (of Bhutia-Lepcha origin in the Legislative Assembly composed of 32 seats.

Therefore, it cannot be said that reservation of seats for Sikkimese of Nepali origin was required in order to protect their rights and interests and in not making any provision for reservation of seats for Sikkimese of Nepali origin Parliament has failed to give effect to the provisions of clause (f) Article 371-F of the Constitution. [1025E-H] Per L.M. Sharma, CJ. (Dissenting)

1. The impugned provisions are ultra vires the Constitution including Article 371F(f). [954E]

2. The problem of Bhutia-Lepcha Tribe is identical to that of the other Tribes of several States where they are greatly out-numbered by the general population, and which has been effectively dealt with by the provisions for reservation in their favour included in Part XVI of the Constitution. It cannot be justifiably suggested that by subjecting the provisions of the reservations to the limitations in clause (3) of Article 332, the Tribes in India have been left unprotected at the mercy of the overwhelming majority of the general population. The reservations in Part XVI were considered adequate protection to them. Therefore, adequate safeguard in favour of the Bhutia Lepchas was already available under the Constitution and all that 'was required was to treat them as Tribes like the other Tribes which was done by a Presidential Order issued under Article 342.

Therefore. 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) ill the Representation of the People Act, 1950 and Section ;A 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 [948F-H, 949A-C]

3. Clause (f) permits the Parliament to take only such steps which would be consistent with the provisions of the Constitution coming from before, so that Sikkim could completely merge with India and be placed it 912 par with the other States. This conclusion is irresistible if the facts and circumstances which led to the ultimate marger of Sikkim in India are kept in mind. 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. [946E-F, 953C] 3.1. The choice of the candidate and the right to stand as a candidate at the election are 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, too 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 of the Constitution it will amount to a huge fraud perpetrated against the people. [950E-G] 3.2. The very purpose of providing reservation in favour of a weaker class is to aid the elemental principle of democracy based on one-man. one-vote to succeed. The disproportionately excessive reservation creates a privileged class, not brought to the same plane with others but put on a higher pedestal, causing unhealthy competition, creating hatred and distrust between classes and fostering divisive forces. [950H, 951A] 3.3. The unequal apportionment of the role in the polity of the country assigned to different groups tends to foster unhealthy rivalry impairing the mutual feeling of goodwill and fellowship amongst the people, and encouraging divisive forces. [955B] 3.4. As explained by the Preamble the quality of democracy envisaged by the Constitution does not only secure the equality of opportunity but of status as well, to all the citizens. This equality principle is clearly brought out in several Articles in the different parts of the Constitution, including Part XVI having special provisions relating to certain classes. The sole objective of providing for reservations in the Constitution is to put the principle of equal status to work So far the case of inadequate representation of a backward class in State services is con- cerned, the problem is not susceptible to be solved in one stroke; and consequently the relevant provisions are kept flexible permitting wider discretion so as to attain the goal of adequate proportionate repre- 913 sentation. The situation in respect to representation in the legislature is entirely different. As soon as an election takes place in accordance with the provisions for proportionate representation, the objective is achieved immediately, because there is no problem of backlog to be tackled. On the earlier legislature disappearing, 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.

[952B, F-H, 953A-B]

4. A perusal of the Agreement dated 8th May, 1973 dearly 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.

[945A-B]

CIVIL ORIGINAL JURISDICTION: Transfer Case (C) No. 78 of 982 etc. etc.

(Under Article 139A of the Constitution of India.) Vepa Sharathy, Attorney General, G. Ramaswamy, Additional Solicitor General, R.K. Jain, B.N. Bhat, K. Lahiri, K.

Parasaran, A.K. Ganguli. 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.

N. Bhat for the appearing Parties.

The Judgments of the Court were delivered by SRARMA, CJ. The two constitutional questions of vital importance which arise in this case are : (i) whether a seat can be earmarked at all in the Legislature of a State after its complete merger in India for a repre- 914 sentative of a group of religious institutions to be 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 the hearing, however, the stand taken by his counsel, 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 contesting respondents. The case in Writ Petition No.

16 of 1990 of the High Court (Transfer Case No. 94 of 1991 here) is similar to that in Transfer Case No. 93 of 1991.

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.

3. 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 consequential amendments in the Delimitation of Parliamentary and Assembly Constituencies Order, 1976. The writ petitioner contends that the impugned provisions of the Representation of the People Acts arc ultra times of' the Constitution and cannot be saved by Article 37IF(f). Alternatively it has been argued that if the provision,; of Article 371F(f) are interpreted as suggested on behalf of the respondents, the same would be violative of the basic features of the Constitution and would, therefore, itself be rendered invalid. Another line which was pursued during the argument was that assuming the inter- 915 pretation of the Act and the Constitution as put by the respondents is correct, still the circumstances do not justify the impugned reservations in the Assembly which are, therefore, fit to be struck down.

4. The case of the respondents who are challenging the stand of the writ petitioner, is that the constitutional amendment bringing in Article 371F(f), as also the relevant amended provisions of the Representation of the People Acts are legal and valid, and having regard to all the relevant circumstances in which Sikkim became a part of the Indian Union the writ petition of the petitioner is fit to be dismissed.

5. For appreciating the points arising in the case and the arguments addressed on behalf of the parties it will be necessary to briefly consider the historical background of and the constitutional position in Sikkim 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 latter assumed the responsibility with respect to the defence, external affairs and communication of Sikkim on the terms detailed in the document dated 3.12.1950. Chogyal, thereafter, took several steps towards sharing his power with the people by providing for elections, which will be dealt with later. The public demand developed into violent demonstrations leading to complete breakdown of law and order, which forced the then Chogyal to request the Government of India to assume the responsibility for establishment of law and order and good administration in Sikkim. Ultimately a formal agreement was signed on May 8, 1973 to which the Government of India, the then 916 Chogyal and the leaders of the political parties representing the people of Sikkim, were parties. I will have to refer to this agreement in greater detail later but it will be useful even at this stage to see one of the clauses of the Agreement which reads as follows:- "(1) The three parties hereby recognize and undertake to ensure the basic human rights and fundamental freedoms of the people of Sikkim.

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." (emphasis added)

6. The population of Sikkim has bee., constituted mainly by three ethnic groups known as Lepchas, Bhutias and Nepalis. People from India also have been going to and settling in Sikkim but their number was small before 1973.

Although the population of Nepalis has been far larger than the Lepchas and the Bhutias, their influence in the polity was considerably less as Chogyal was a Bhutia and with a view to perpetuate his hold, there was a consistent policy for uniting Lepchas and Bhutias as against the rest. On the lapse of British paramountcy and in its place the substitution of the protectorate of India, Chogyal in an attempt to assuage the public sentiment, issued a Proclamation providing for establishment of a State Council of 12 members, allocating 6 seats to Bhutia and Lepchas and 6 to Nepalis, all to be elected by the voters divided in 4 territorial constituencies. Only after a few months a second Proclamation followed on March 23, 1953, adding seats for 6 more members with one of them as President of the Council to be nominated by the Maharaja, i.e., Chogyal.

Thus the total number rose to 18. Maharaja, however, reserved his right 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 917 the Chogyal which has been referred to by the respondents in their arguments in support of the impugned reservations.

The Note is in three sub-paras dealing with the Sangha seat, the general seat and the question of parity between the Bhutia-Lepchas and the Nepalis. It has been mentioned in the first sub-para (a) that the Sangha constituted a vital and important role in the life of the community in Sikkim and had played a major part in taking of decisions by the Councils in the past. In sub-para (b) it has been stated that the political parties have been demanding one-third of the total seats in the Council to be made available to all persons having fixed habitation in Sikkim although not belonging to any of the categories of Bhutias-Lepchas and Nepalis, and the Maharaja by a partial concession had allowed one seat for the general people. The last sub-para declares the desire of the Maharaja that the Government of Sikkim should be carried on equally by the two groups of the Bhutia-Lepchas and Nepalis, without one community imposing itself or encroaching upon the other.

7. 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 constituencies, 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 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 nominated by the Chogyal as before. It appears that it was followed by another similar Proclamation in 1969, which has not been placed before us by the parties.

8. In spite of the establishment of the Sikkim Council, the ultimate power to govern remained concentrated in the hands of Chogyal, who besides having the right to nominate 6 members in the Council, reserved to himself the authority to veto as also of taking final decision in any matter. The people could not be satisfied with this arrangement, and as said earlier, there was widespread violent demonstrations and complete collapse of law and order which forced the Chogyal to approach the Government of India to take control of the situation. The 3 parties namely the Chogyal, the people of Sikkim represented by the leaders of the political parties, and the Government of India were ultimately able to arrive at the terms as included in the Tripartite Agreement of 8.5.1973 and the authority of Chogyal was considerably reduced. The preamble in the agreement specifically mentioned that the people of Sikkim had decided to adopt, 918 "A system of elections based on adult suffrage which will give equitable representation to all sections of the people on the basis 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 protected." Strong reliance has been placed on the above paragraph on behalf of the respondents in support of their stand that the Bhutia-Lepchas who contribute to less than one-fourth of the total population of the State, are entitled to about 40% of the seats in the Council as allowed by the impugned provisions.

9. 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. It directed the formation of Sikkim Assembly consisting of 32 elected members 31 to be elected from 31 territorial constituencies and one Sangha constituency to elect one member through an electoral College of Sanghas. The break- up of the 32 seats is given in section 3, directing that 16 constitutencies including one for the Sangha 919 were to be reserved for Bhutia-Lepchas, and the reamining 16 including one for Tsongs and another for the Scheduled Castes for Nepalis. As a result the general seat disappeared. A further Act was passed the same year in the month of July by the newly constituted 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 not below the prescribed age and was not otherwise disqualified under the Act was entitled to be registered as voter at any future election.

10. 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. 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." (emphasis added) Ultimately a special opinion poll was conducted by the Government of Sikkim and an unambiguous verdict was returned by the people in favour of Sikkim's joining and becoming a part of the Indian Union. 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 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, 920 as mentioned earlier, merely associated with the Union of India by insertion of Article 2A on the terms and conditions set out separately in a schedule added as the Tenth Schedule. Certain amendments were made in Articles 80 and 81 also. By the Thirty-Sixth Amendment of the Constitution, a full merger of Sikkim with Union of India was effected by adding Sikkim as Entry 22 in the First Schedule of the Constitution under the heading "1. The State'. Further, some special provisions were made in a newly added 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. Article 2A, the Tenth Schedule, and certain other provisions in some of the Articles were omitted.

12. 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 consequential 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 not consistent 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.-- (1)..........................................

(2)...........................................

(3) 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." 921 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. Dealing further with the Sangha seat it is provided in section 25A of the 1950 Act that there would be a Sangha constituency 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.

Consequently amendments were made by inserting 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 it has been urged that the admission into the Union of India is permissible without a constitutional amendment and the terms and conditions of such admission are not open to scrutiny by the courts.

Article 371F must, therefore, be respected, and the impugned amendments of the Representation of the People Acts must be held to be legally valid on account of the provisions of clause (f) of Article 371F. I am afraid this argument fails to take into account the vital difference between the initial acquisition of additional territory and the admission to the same as a full-fledged State of the Union of India similar to the other States.

14. Special provisions for any State can certainly be made by an 922 amendment of the Constitution, as is evident by Articles 371A. 371B, 371C et cetera, but it is not permissible to do so in derogation of the basic features of the Constitution.

So far the power of sovereignty to acquire new territories is con territories is concerned, there cannot be any dispute. The power is inherent, it was, therefore, not considered necessary to mention it in express terms in the Constitution. It is also true that if an acquisition of new territories is made by a treaty or under an agreement the terms of the same will be beyond the scrutiny of the courts.

The position, however, is entirely different when new territory is made part of India, by giving it the same status as is enjoyed by an existing State under the Constitution of India. The process of such a merger has to be under the Constitution. No other different process adopted can achieve this result. And when this exercise is undertaken, there is no option, but to adopt the procedure as prescribed in conformity with the Constitution. At this stage the court's jurisdiction to examine the validity of the adopted methodology cannot be excluded.

15. So far the present case in concerned the decision does not admit of any doubt that when the Thirty-Sixth Amendment of the Constitution was made under which Sikkim joined India as a full-fledged State like other States, power of amendment of the Constitution was invoked, and this had to be done only consistent with the basic features of the Constitution. As mentioned earlier when Sikkim became associated with India as a result of the Thirty-Fifth Amendment of the Constitution, it did not become a State of the Union of India. A special status was 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 923 a State as any other. Considered in this background, the objection to the maintainability of the writ petitions cannot be upheld. Further, the challenge by the writ petitioner is to the amendments introduced in the Representation of the People Acts by the Central Act 8 of 1980 as being unconstitutional and not protected by Article 371F(f) and this point again has to be decided by the Court.

If the conclusion be that clause (f) of Article 371F permits such amendments the further question whether clause (f)) itself is violative of the basic features of the Constitution will have to be examined. In my view the position appears to have been settled by the Constituted Bench of this Court in Mangal Singh and Anr. v. Union of India, [1967] 2 SCR 109, at page 11.2 in the following terms :- "The law referred to in Arts. 2 & 3 may therefore alter or amend the First Schedule to the Constitution which sets out the names of the States and description of territories thereof and the Fourth Schedule allotting seats to the States in the Council of States in the Union Parliament. ............ 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.

(emphasis added)

16. It would be of considerable help to refer also to several observations made by Gajendragadkar, J. on behalf of the Bench of 8 learned Judges of this Court in Re: The Berubari Union and Exchange of Enclaves: [1960] 3 SCR 250, although the facts of that case were not similar to those before us. Dealing with the treaty making power of a sovereign State the learned Judge observed at pages 283-284 of the report that it is an essential attribute of sovereignty that a State can acquire foreign territory and in case of necessity cede the parts of its territory in favour of the foreign State, but this power is of course subject to the limitations which the Constitution of the State may either expressly of by necessary implication impose in that 924 behalf Article 1 (3) (c) does not confer power or authority in India to acquire territories, and what the clause purports to do is to make a formal provision for absorption and integration of any foreign territories which may be acquired by virtue of its inherent rights to do so. In this background Articles 1, 2, 3 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). In the present case the power under Article 2 was not exercised at any point of time. Initially, as pointed out earlier, Sikkim joined India as an Associate State by Article 2A introduced in the Constitution by an amendment.

When further steps of its complete merger with India were taken, the methodology under Article 3 was not available in view of the observations in Berubari case. Correctly assessing the situation, fresh steps for amendment of the Constitution once more were taken and Sikkim was granted the status of a full Statehood at par with the other States by the Thirty-Sixth Amendment of the Constitution. Once this was done it had to be consistent with the basic features of the Constitution.

17. If we assume that the stand of the respondents as mentioned earlier on this aspect is correct, the result %ill be that in a part of India, 925 joining the nation later, a different rule may have to be allowed to prevail. This is not a fanciful hypothesis.

Even during this last decade of the present century there are Tribes, in isolation from the rest of the world, maintaining a social order of primitive nature completely oblivious of the long strides of civilisation through history. In case of illness, the treatment is entrusted to the witch doctor and the trial of an alleged crime is left to certain persons supposed to be having super-natural powers employing bizzare methods for decision on the accusation. Without any regard for human dignity, women accused of being possessed of witchery are burnt alive and many such customs are followed which are highly abhorrent to every concept of justice, liberty, equality and every other quality for which our civilisation stand,, today. If steps are taken to grant legitimacy to a state of affairs repulsive to the basic features of our Constitution, the Courts are under a duty to judicially examine the matter.

18. Mr. Parasaran, in the course of his argument fervently appealed lo this Court to decline to consider the questions raised by the petitioner on merits, on the ground that the issues are political. He proceeded to contend, in the form of a question, that if one of our neighbouring countries (he discreetly omitted to identify it) wishes to join India on certain conditions inconsistent with the philosophy of our Constitution, should we deny ourselves the opportunity of forming a larger and stronger country, 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 926 a duty to do so.

20. On the merits of the writ petitions let us first consider the position with respect to Sangha seat. It is not in dispute that the reserved seat is earmarked for the representative of a number of Buddhist Monasteries to be elected by an electoral college of Lamas in which the entire population of Sikkim excepting the registered Buddhist Priests, have been denied any say. For the purpose of explaining Sangha, Mr. Parasaran has referred to the book on Hindu law of Religious and Charitable Trusts by B.K. Muk- herjee, dealing with Buddhism and stating that Buddhism was essentially a monastic religion and the Buddhist Order or congregation of monks was known by the name of Sangha and this Sangha together with Buddha and Dharma (sacred law) constituted three jewels which were the highest objects of worship among the Buddhists. With a view to show that the Sangha could be given an exclusive voting right to a seat reserved for this purpose, further reliance was placed on a passage saying that the Sangha was undoubtedly a juristic person and was capable of holding property in the same way as a private person could. Further as a corporation the Sangha enjoyed a sort of immortality and was consequently fit to hold property for ever. In other words, Sangha also described as a Buddhist congregation has, like the Christian Chruch, a corporate life and a jural existence. Maths were founded by Adi Shankaracharya and other Hindu ascetics on the model of these Buddhist vihars. Now, coming to the impugned provision of the Act it will be seen that section 7(1A)(c) of the Representation of the People Act, 1950 allots one seats for Sanghas referred to in section 25A.

Section 25A states that notwithstanding anything contained in sections 15 and 19, the Sanghas belonging only to such Monastries as were recongnised for the purpose of elections held in April 1974 for forming the Assembly for Sikkim, shall be entitled to be registered in the electoral roll.

The Election Commission has to prepare or revise the same in consultation with the Government of Sikkim. Before Sikkim joined India, Buddhism was the State religion. The Gazetteer 1864 of Sikkim stated that "Lamas or Tibetan Buddhism is the State religion of Sikkim". The position continued till 1974 when the elections for Constituent As- sembly were held. The case of the writ petitioner is that the reservation in favour of the Sangha based on religious with a separate electorate of the religious monasteries is violative of the basic 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 927 entitled to exercise the right being considerably very small (about 30 only). their share works out to be disproportionately very high.

21. In reply Mr. Parasaran contended that Sangha has played a vital role in the life of the community for a long time in the past, and a body consisting of Lamas and laity Lhade- Medi has contributed towards cultural, social and political development of the people of Sikkim. The Sangha seat was, therefore, introduced in order to provide for their representation. Their interest is synonymous with the interest of the minority communities and this reservation, which is coming from the time of Chogyal, should be maintained. He quoted from the Book 'the Himalayan Gateway' by George Kotturan, dealing with the history and culture of Sikkim, which states that the author found the monasteries everywhere looking after the spiritual needs of a small community. The Chogyal also allowed the Lamas to play a role in the administration and this arrangement is, therefore, not fit to be disturbed. The learned counsel explained the position in his own way as asserting that in substance the reservation is not in favour of a religious body and it is not based solely on religious consideration.

The Buddhist priests were rendering useful service to the people and the reservation must, therefore. be upheld as valid and the fact that they belong to a particular religious body should be ignored.

22. Similar was the approach of the Attorney General and Mr. Nariman but no further light was thrown during their arguments. Mr. Phur Ishering Lepcha who was added later in these cases as a party-respondent on an intervention application, filed his written argument inter alia stating that Sangha is a distinct identity which has played a very vital role in the life of the community since the earliest known history of Sikkim and has played a major part in deciding the important issues. The Lhadi-Medi, a body consisting of all the Lamas and laity has contributed towards cultural,, social and political development of the people of Sikkim, and the reservation in favour of Sangha was introduced in order to provide for the representation of' a section which was responsible for the basic culture of the Sikkimese Bhutia-Lepchas including some sections of the Nepali community of Sikkim. Reliance has been placed on many passages from the book 'Himalyan Gateway' by Georage Kotturan, referred to earlier. In substance the stand taken in the argument by Mr. Parasaran and supplemented by his written submissions, has been re-emphasised by Phur Ishering Lepcha. The excerpts from the book give the history of Buddhism, and 928 described how the religion got modified from time to time under the guidance of many Saints going to Sikkim from India. It is further stated that the culture of Sikkim under the Chogyal was essentially religious and the patron saint of Sikkim Lhatsum Chhembo, believed to be an incarna- tion of an Indian Saint, is according to the traditional belief, incarnated more than once; and that the late 12th Chogyal of Sikkim, Palden Thondup Namgyal (referred to in the book as 'Present Chogyal') was (according to the belief) and incarnate of Chogyal Sidkeong who himself was an incar- nate Lama. There is a list of Monasteries of Sikkim as given at page 481 which indicates that the separate electorate contains only a little more than 30 Sanghas.

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 was diminishing and fewer and fewer young boys were being sent by their families as novices for the priesthood. The last Chogyal, who was himself an incarnate Lama was greatly concerned at this loss of interest and set up a training school for attracting more novices. Fresh impetus in a different way was also given to the "Buddhist revival' through the presence of a renowned teacher and mystic from Tibet. All this was happening quite late probably in 19.50s.

Reliance has also been placed on 'Himalayan Village', a book by Geoffrey Gorer which at pages 192-193 reads thus "Finally lamaism is a social Organisation. The lamas (to a 929 lesser extent the nuns) are arranged in a disciplined hierarchy. They are a section of society which performs for the whole society its religious functions; in return the rest of society should give material support to the lamas. In Tibet this social aspect is extremely important, the lamas possess the greater part of the temporal power and are also as a group an exploiting class; the monasteries own land and the peasants attached to the land are practically monastery serfs.

The lower-ranking lamas also work for the benefit of those of higher rank and are possibly as much exploited as the peasants, but they have, at least in theory, the possibility of rising to the higher ranks, which possibilities are completely shut out from the laymen. In Sikkim, as far as I can learn, the social influence of the lamas is considerably less;".

(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 ruler is not only the secular head of the State, but also an incarnate lama with responsibility to rule the subjects in accordance with the tenets of the "Choos" the Dharma. 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)." (emphasis added) This book goes on to record how the Buddhist Monasteries having the patronage of the Chogyal came to wield authority in Sikkim. The Monks, however, "Were drawn from the high- born Bhotias and Lepchas". 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 930 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, indicate that "their existence was primitive in nature so much so that every tribe had a priest doctor; who neither knew or practised the healing art, but was a pure exorcist;

all bodily ailments being deemed the operations of devils, who are cast out by prayers and invocations". On the question as to who are the early settlers in Sikkim there is serious controversy, the other view being that so far the Bhutias are concerned they could not be treated as aboriginals. I do not think anything turns on the question as to the order in which the different sections of the population settled in Sikkim and I, therefore, do not propose to consider the affidavits filed by the parties on this aspect. From the records, however, it is clear that a seat in the Council was allotted to the Sanghas for the first time in 1958 and the Lamas manning the Sanghas are drawn from the minority section of the population (less than 25%) belonging to Bhutia and Lepcha tribes. The reason given by the different respondents in support of the reservation of the Sangha seat is the historical background showing that the Lamas, besides performing the religious rites and discharging the religious and spiritual duties were rendering social service and with the patronage of Chogyal were permitted to take part in the administration.

It is argued that although the Chogyal might have disappeared, the participation by these Buddhist Monks in the administration should not be denied. The issue is whether this is permissible after Sikkim joined India as a full-fledged State.

931

24. It is firmly established and needs no elaboration that an amendment of the Constitution which violates the basic features of the Constitution is not permissible. It has been contended on behalf of the respondents that the provisions of clause (f) of Article 371F do not in any way offence any of the basic features and since the clause permits the impugned reservations in the Representation of the People Acts, they have to be. upheld.

25. So far the reservation of Sangha seat is concerned, the question is whether this violates Article 15 as also several other provisions of the Constitution; and further whether these constitutional provisions are unalterable by amendment. If they are basic in nature they will have to be respected and clause (f) must be construed not to have violated them in spite of the non-obstante clause with which 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 the spiritual needs of the people and looking after the ritual side of the Buddhist religion, they are also trying to do all what their religion expects, from them. The concern for the people and the society stands high on the agenda of Buddhism, and for that matter, of all religions. But it is only in the capacity of Monks that they have been trying to help a minority section' of the people of Sikkim and that is their true identification.

The position could have been different if the reservation had been in favour of a social group devoted to public service, which for identification had led to 032 religious groups including these Monks as well. But that is not so. The position is just the other way. The attempt of the respondents is to defend reservation in favour of a particular religious body and by way of justification for the same to bring in the element of social service. They forget that the role of the Sanghas in rendering social service to a section of the public is not a feature special for these Monasteries. The self-less services rendered by the Christian Missionaries to the helpless sick persons, specially in many under-developed parts of the world, and to the badly injured soldiers in the war; or, for that matter, the all round care of the society which has been taken by the innumerable Hindu Maths and temples trusts) in the different parts of India for ages cannot be ignored. A very large number of charitable institutions run by Hindu and Muslim religious bodies have been always helping the people in many ways. Learned and selfless religious saints and leaders have made significant contributions in establishment of civilised society for centuries and history shows that this has been done through the instrumentality of religious institutions and organisations. Similar is the position with respect to the other religions in India. The positive role religion has played in lifting humanity from barbaric oblivion to the present enlightened and cultured existence should not be belittled. But, at the same time, it cannot be forgotten that religion has been from time to time, misused to bring on great misfortunes on mankind. In modern times, therefore, social and political thinkers do not hold unanimous view on the question of the desirability to allow religion to influence and control politics and the State instrumentality. The difference in the two 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 933 a group of religious institutions like the Buddhist Monasteries, it will follow that such a reservation would be permissible for institutions belonging to other religions also. There will not be any justifiable reason available against a similar provision for the Christian Missionary institutions in the country on the ground of their services, to the cause of upliftment of Adivasis, their contribution in the field of education, and their efforts for medical assistance to the underprivileged; or, for the innumerable other religious institutions of Hindus, Muslims, Sikhs and other religions providing invaluable relief to the helpless.

And all this may ultimately change the very complexion of the legislatures. The effect that only one seat has been reserved today for the Monasteries in Sikkim is the thin edge of the wedge which has the potentiality, to tear apart, in the course of time, the very foundation, which the democratic republic is built-upon. In this background the question to ask is whether all this is prohibited as being abhorrent to the basic feature of the Constitution. I have no hesitation in answering the issue in the positive. Now let us have a brief survey of the relevant provisions of the Constitution.

28. The Preamble, which is the key to understand the Constitution, emphasises by the very opening words, the democratic nature of the Republic guaranteeing equality of status to all which the people of India had resolved to constitute by adopting, enacting and giving to themselves the Constitution. The personality of the Constitution is developed in Part III dealing with the Fundamental Rights, and the framers of the Constitution, even after including Article 14 ensuring equality before law, were not satisfied unless they specifically prohibited religion as a ground for differential treatment. The freedom of propagation of religion and the right to manage religious affairs et cetera were expressly recognised by Articles 25 to 28 but when it came to deal with the State, the verdict was clear and emphatic that it must be free from all religious influence.

29. Mr. Nariman claimed that a prohibition against discrimination on the ground of religion is not a basic feature of a democratic State. He placed strong reliance on the constitutions of several countries with special emphasis on the Constitution of Cyprus. The argument is that although Cyprus is an independent and sovereign republic with a democratic Constitution, the seats in the legislature are divided between the Greek population following the Greek-Orthodox Church and the Muslim Turkish community.

There is a division even at the highest level, the President 934 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 belonging to all the religious communities had decided to agree on some arrangement like the people of Cyprus. by adopting a constitution providing for sharing of power on religious basis, the Constitution of Cyprus could have been relevant.

There was a sustained effort on the part of the Indian National Congress and of' several other political and social groups, by and large representing the people who remained in divided India and proceeded to frame the present Constitu- tion, to avoid the partition of the country on the basis of religion, but they could not succeed. Unfortunately the struggle for maintaining the unity of the country was defeated by religion used as a weapon. The country was visited by a grave national tragedy resulting in loss of human life on a very big magnitude. Religious fundamentalism triumphed, begetting and encouraging more such fundamentalism. In the shadow of death and destruction on an unprecedented scale the making of the Constitution was taken up. The Constitution of Cyprus or any other constitution framed in circumstances different from those obtaining in this country, therefore cannot be relevant for understanding the basic philosophy and ethos of our Constitution. Although it is not strictly relevant for the decision in the present case, it may be noted that this patchwork Constitution of Cyprus of which the parties represented by Mr. Nariman seem to be so enamoured of, has completely failed to keep the country together.

The learned counsel also referred to the provisions contained in Articles 239A, 240 and 371A with respect to the Union Territories and 935 State of Naggaland; and Article 331 permitting the President to nominate one or two members of Anglo Indian Community to the House of People if he is of the opinion that the Community is not adequately represented in the House. I do not see how these Articles can be of any help to the respondents in the present case. None of these provisions are linked with any particular religion at all. There should not be any misapprehension that an 'Anglo Indian' has to be a Christian [see the definition of the expression in Article 366 (2)].

30. Religion not only became the cause of partition of the country, it led to wide-spread bloodshed which continued even later and in which people belonging to the different communities died in very large numbers. The people of India are 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 the Constitution.

31. If we proceed to consider the entire Constitution harmoniously along with all the other materials, relevant in law for this purpose including the 'Enacting History, there is no escape from the conclusion that any weightage at the poll in favour of a group on the ground of religion is strictly prohibited and further, that this is a basic feature, which is not amenable to amendment. The provisions of section 7 (1A)(c) and the other connected amendments must, therefore, be held to be ultra vires.

32. There is also another serious flaw in the reservation for the 936 Sangha rendering the same to be unconstitutional. By the impugned provisions of the 1950 Act, a special electorate has been created for this seat which is highly abhorrent to the fundamental tenets of the Constitution. Much thought was bestowed in the Constituent Assembly on the question whether separate electorate could be permitted under the Constitution. An Advisory Committee was constituted on January 24, 1947 for determining the fundamental rights of citizens, minorities, et cetera. The Advisory Committee was empowered to appoint sub-committees see B. Shiva Rao's Framing of Indian Constitution, Vol. II, pp. 56-571 and accordingly a Sub-Committee on Minorities was appointed on February 27, 1947, to consider and report, inter alia, on the issue whether there should be joint or separate electorates. The Sub-Committee by a majority of 28 to 3 decided that there should be no separate electorates for election to the legislatures. Shiva Rao's Vol. II, p 3921 The Report of the Sub-Committee was accepted by the Advisory Committee and the following observations were made :- "The first question we tackled was that of separate electorates; we considered this as being of crucial importance both to the minorities themselves and to the political life of the country as a whole. By an overwhelming majority, we came to the conclusion that the system of separate electorates must be abolished in the new Constitution. In our judgment, this system has in the past sharpened communal differences to a dangerous extent and has proved one of the main stumbling blocks to the development of a healthy national life. It seems specially necessary to avoid these dangers in the new political conditions that have developed in the country and from this point of view the arguments against separate electorates seem to us absolutely decisive.

We recommend accordingly that all elections to the Central and Provincial Legislatures should be held on the basis of joint electorates." (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 937 to come. Sardar Patel, after referring to the suffering and the heavy penalty the nation had to pay on this count, expressed his satisfaction "that there has been unanimity on the point that there should be no more separate electorates and we should have joint electorates hereafter. So this is a great gain". Replying to the Debate Sardar Patel expressed his views in the following words :- "I had not the occasion to hear the speeches which were made in the initial stages when this question of communal electorates was introduced in the Congress; but there are many eminent Muslims who have recorded their views that the greatest evil in this country which has been brought to pass is the communal electorate. The introduction of the system of communal electorates is a poison which has entered into the body politic of our country.

Many Englishmen who were responsible for this also admitted that. But today, after agreeing to the separation of the country as a result of this communal electorate, I never thought that that proposition was going to be moved seriously, and even if it was moved seriously, that it would be taken seriously.

(emphasis added) (Constituent Assembly Debates; Vol. V, p.

225) I, however, find that the impugned amendment was made without bestowing serious thought and the respondents are supporting the same so determinedly that it has become necessary for this Court to consider the proposition 'seriously'. Pandit Govind Ballabh Pant, opposing an amend- ment moved by B. Pocker Sahib Bahadur of the Muslim League providing for separate electorate for Muslims, expressed his indignation thus We all have had enough of this experience, and it is somewhat tragic to find that all that experience should be lost and still people should hug the exploded shibboleths and slogans." (emphasis added) 938 [Constituent Assembly Debates; Vol. V, p.224] Shri V.I. Muniswami Pillai, on this occasion reiterated these sentiments and said with a sigh of relief :- "...Sir, which I would like to tell this House is that we got rid of the harmful mode of election by separate electorates. It has been buried seven fathom deep, never more to rise in our country. The conditions that were obtaining in the various provinces were the real cause for introducing the system of separate electorates. The Poona Pact gave us both the separate and joint electorates but now we have advised according to this report that has been presented here that the Depressed Classes are doing to enjoy joint electorates. It is hoped, Sir, that, in the great Union that we are all envisaging that this Country will become in the years to come, joint elector ates will give equal opportunity for the Caste Hindus and the Minority communities to come together and work together and produce a better India." [Constituent Assembly Debates; Vol. V,p.202] Unfortunately, the firm belief of Mr. Pillai was not shared when the reservation in question was introduced by amendment three decades later in 1980.

It will be helpful, for appreciating the reference by Sardar Patel to the opinions of even Englishmen in his reply and to the Poona Pact by Shri 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" 939 numerical strength but in respect of the political importance of "the" community and the service that it had rendered to the Empire". The demand was accepted in 1909 by Minto Morley Reforms. The matter was again considered in 191.9 by the Montague-Chenisford Committee. Their report disapproved the idea of separate electorates by stating that such electorates "were opposed to the teaching of history :

that they perpetuated class division : that they stereotyped existing relations; and that they constituted a very serious hindrance to the development of the self-governing principle". Sardar Patel was, in his reply, presumably referring to these expressions and similar other opinions:

Unfortunately, however, the principle of communal electorates was adopted for the Muhammadans in the country and in Punjab for Sikhs.

34. Having, thus succeeded in introducing this highly undesirable system of separate electorates on the basis of religion, the British rulers proceeded to extend the same with a view to divide the people further by proposing separate elector ate.% for the "Depressed Classes" in 1932 under the, Communal Award of Prime Minister Ramsay MacDonald. By that time the leadership of the country was in the hands of Mahatma Gandhi, who fully realised the dangerous fall-out of the proposed measure. Rejecting the suggestion of the British Prime Minister to accept the same even for a temporary period, he staked his life for fighting out the menace by deciding to go on fast unto death. The rulers conceded and backed out, and the matter was sorted out by the famous Yarvada Pact. Separate electorate for the Muslims, however, could not be undone, and was given effect to in the Government of India Act, 1935, ultimately leading to the partition of the Country.

35. In this background the Debate in the Constituent Assembly took place, and the recommendations of the Advisory Committee in favour of joint electorate both at the Central and the State levels were accepted. It is significant to note here that in the original draft Constitution there was no express pro-vision declaring that the elections to the Parliament and to the State legislatures would be on the basis of joint electorates and the matter had been left to be dealt with by auxiliary legislation under Articles 290 and 291 of the draft Constitution Shiva Rao, Framing of India's Constitution, Vol. IV, p. 1411. On a deep deliberation on the issue it was realised that any provision for separate electorates would be a deadly virus for the health of the nation. The Constituent Assembly considered it right 940 to reject the idea once for all and not leave the. matter to be dealt with later. Accordingly Article 325 adopted in the following terms:- "325. No person to be ineligible for inclusion in, or to claim to be included in a special, electoral roll on grounds of religion, race, caste or sex There shall be one general electoral 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 con- stituency 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, to compound it by vesting the exclusive right in them to elect their representative to occupy the reserved seat is to aggravate the evil. I do not think this can be compared with any of the provisions in the Constitution relating to nominations.

From the entire scheme of the Constitution, it is clear that its basic philosophy eloquently rejects the concept of separate electorate in India. This conclusion is reinforced by the historical background referred to above, the delebrations of the Advisory Committee, and the discussion which took place in the Constituent Assembly before giving final shape to the Constitution. I do not discover any reason for assuming that while inserting Article 371F(f) in the Constitution there was complete reversal of faith on this basic and vital matter, which was otherwise also not permissible. It follows that consistent with the intention of the rest of the Con- 941 stitution the provision regarding the delimitation of the Assembly constituencies in Article 371F(f) has to be interpreted in the same sense, as the expression has been used in the other provisions. Clause (f) of Article 371F neither by its plain language nor intendment permi