SHARMA - (1.) THE two constitutional questions of vitalimportance which arise in this case are : (i) whether a seat can be earmarked atall in the Legislature of a State after its complete merger in India for arepresentative 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 the Legislative Assembly ofSikkim which merged with India in 1975. They were instituted as writ petitionsunder Article 226 of the Constitution before the Sikkim High court and havebeen later transferred to this court. The main case being Writ Petition No. 4 of1980 registered as Transfer Case No. 78 of 1982 after transfer to this court wasfiled by the petitioner R.C. Poudyal in person and he was conducting this casehimself, and will be referred to as the petitioner or the writ petitioner in thisjudgment. During the course of the hearing of the case, Mr R.K. Jain assistedthe court as amicus curiae and pressed the writ petition on his behalf. TransferCase No. 84 of 1982 was filed by Somnath Poudyal as Writ Petition No. 12 of1980 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. Duringthe hearing, however, the stand taken by his counsel, Mr K.N. Bhat wassubstantially different from the case of the main writ petitioner, and he lentsupport to some of the arguments of the contesting respondents. The case inWrit Petition No. 16 of 1990 of the High court (Transfer Case No. 94 of 1991here) 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. Narimanon behalf of certain other parties. The relevant provisions relating to the impugned reservations are those asincluded in the Representation of the People Acts, 1950 and 1951, by theRepresentation of the People (Amendment) Act, 1980 (Act 8 of 1980 purportedly made by virtue of Article 371-F(f), inserted in the Constitution in1975 by the Constitution (Thirty-sixth Amendment) Act, 1975, andconsequential amendments in the Delimitation of Parliamentary and AssemblyConstituencies Order, 1976. The writ petitioner contends that the impugnedprovisions of the Representation of the People Acts are ultra vires theConstitution and cannot be saved by Article 371-F(/). Alternatively it has been argued that if the provisions of Article 371-F(/) are interpreted as suggested onbehalf of the respondents, the same would be violative of the basic features ofthe Constitution and would, therefore, itself be rendered invalid. Another linewhich was pursued during the argument was that assuming the interpretation ofthe Act and the Constitution as put by the respondents is correct, still thecircumstances do not justify the impugned reservations in the Assembly whichare, therefore, fit to be struck down. The case of the respondents who are challenging the stand of the writpetitioner, is that the constitutional amendment bringing in Article 371-F(f), as339also the relevant amended provisions of the Representation of the People Actsare legal and valid, and having regard to all the relevant circumstances in whichSikkim became a part of the Indian Union, the writ petition of the petitioner isfit to be dismissed.
(3.) FOR appreciating the points arising in the case and the argumentsaddressed on behalf of the parties it will be necessary to briefly consider thehistorical background of and the constitutional position in Sikkim before andafter its merger with India. Sikkim, during the British days, was a princely Stateunder a hereditary monarch called Chogyal, subject to British paramountcy. TheChogyal, also described as Maharaja, was a member of the Chamber of Princesentitled to a gun salute of 15. The provisions of the government of India Act,1935 were applicable and Sikkim thus did not have any attribute of sovereigntyof its own. On the independence of India in 1947 there was a public demand inSikkim for merger with India which was resisted by the Rulers. The statementsmade in paragraph 3(v) in the counter-affidavit of the Union of India,Respondent I, sworn by the Deputy secretary, Ministry of Home Affairs, isilluminating. It has been inter alia said that there was a strong and clearlyexpressed sentiment on the part of the people of Sikkim favouring closerrelations with India and growth of genuine democratic institutions which led tolarge scale agitations demanding merger with India. However, the governmentof 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 Indiawhereunder the latter assumed the responsibility with respect to the defence,external affairs and communication of Sikkim on the terms detailed in thedocument dated 3/12/1950. Chogyal, thereafter, took several stepstowards sharing his power with the people by providing for elections, which willbe dealt with later. The public demand developed into violent demonstrationsleading to complete break-down of law and order, which forced the thenChogyal to request the government of India to assume the responsibility forestablishment of law and order and good administration in Sikkim. Ultimately aformal agreement was signed on 8/05/1973 to which the government ofIndia, the then Chogyal and the leaders of the political parties representing thepeople of Sikkim, were parties. I will have to refer to this agreement in greaterdetail later but it will be useful even at this stage to see one of the clauses of theAgreement which reads as follows: "(1 The three parties hereby recognize and undertake to ensure thebasic human rights and fundamental freedoms of the people of Sikkim. Thepeople of Sikkim will enjoy the right of election on the basis of adultsuffrage to give effect to the principles of one man one vote." (emphasis supplied) The population of Sikkim has been constituted mainly by three ethnicgroups known as Lepchas, Bhutias and Nepalis. People from India also havebeen 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 theBhutias, their influence in the polity was considerably less as Chogyal was aBhutia and with a view to perpetuate his hold, there was a consistent policy foruniting Lepchas and Bhutias as against the rest. On the lapse of Britishparamountcy and in its place the substitution of the protectorate of India,Chogyal in an attempt to assuage the public sentiment, issued a Proclamation340 providing for establishment of a State council of 12 members, allocating 6 seatsto Bhutia and Lepchas and 6 to Nepalis, all to be elected by the voters divided in4 territorial constituencies. Only after a few months a second Proclamation followed on 23/03/1953, adding seats for 6 more members with one of themas 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 vetoany decision by the council and to substitute it by his own. AnotherProclamation which was issued in 1957 again maintained the parity of 6 seatseach for Bhutia-Lepchas and Nepalis. By a further Proclamation dated March 16, 1958, there was an addition of 2 more seats to the council, one described asSangha seat earmarked for religious Buddhist Monasteries run by Monks whoare Lamas, and another declared as a general seat. Thus, for the first time in1958 Chogyal, by creating a general seat took note of the presence of theimmigrants who were neither Bhutia-Lepchas nor Nepalis and were mostlyIndians. He also introduced the Lamas in the council as he was sure of theirsupport for him, as will be seen later. Appended to the Proclamation, there was a note of the Private secretary to the Chogyal which has been referred to by therespondents in their arguments in support of the impugned reservations. Thenote is in three sub-paras dealing with the Sangha seat, the general seat and thequestion of parity between the Bhutia-Lepchas and the Nepalis. It has beenmentioned in the first sub-para (a) that the Sangha constituted a vital andimportant 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 beenstated that the political parties have been demanding one-third of the total seatsin the council to be made available to all persons having fixed habitation inSikkim although not belonging to any of the categories of Bhutias-Lepchas andNepalis, and the Maharaja by a partial concession had allowed one seat for thegeneral 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 theBhutia-Lepchas and Nepalis, without one community imposing itself orencroaching upon the other.;