B.P.SINGH, J. - (1.) THESE appeals by special leave are directed against the common judgment and order of the Gauhati High Court dated 21 st July, 2003 in Writ Petition (C) No. 6541 of 2001 [WP (C) No.221 (SH)/2002] and Writ Petition (C) No. 6542 of 2001 [WP (C) No.222(SH)/2002] whereby the High Court dismissed the writ petitions filed by the appellants herein.
(2.) APPELLANT Ewanlangki-e Rymbai, a Christian by faith is a member of the Jaintia Scheduled Tribe. The other appellant, namely Elaka Jowai Secular Movement is represented by its Vice Chairman and executive member. In both the writ petitions the constitutional validity of Section 3 of the United Khasi Jaintia Hills Autonomous District (Appointment and Succession of Chiefs and Headmen) Act, 1959 (hereinafter referred to as 'the Act of 1959') has been challenged. The writ petitions also challenged the notice dated August 28, 2001 issued by the Jaintia Hills Autonomous District Council, Jowai declaring the programme for the election of Dolloi in the Elaka Jowai and also the notice dated September 4, 2001 issued by the Secretary, Executive Committee, Jaintia Hills Autonomous District Council, Jowai. Section 3 of the Act of 1959 provides that subject to the provisions of the Act and the Rules made thereunder all elections and appointments of Chiefs and Headmen shall be in accordance with the existing customs prevailing in the Elaka concerned. The notice dated September 4, 2001 announced the programme for the conduct of election for Dolloi in the Elaka Jowai but the notice issued by the Secretary on behalf of the Executive Committee, Jaintia Hills Autonomous District Council, Jowai provided that only the members of the clans mentioned therein could contest the aforesaid election and thereby the persons belonging to the Christian faith were excluded from contesting the said election. The appellants contend that exclusion of Christians from contesting the election is in violation of Articles 14, 15 and 16 of the Constitution of India since they are excluded only on the ground of religion. They further contend that Section 3 of the Act of 1959 which provided that the appointment of the Chiefs or Headmen shall be in accordance with the existing customs prevailing in the Elaka concerned, is also bad. It gives legal sanctity to a customs which itself is in breach of Articles 14 to 16 of the Constitution of India. In sum and sub stance the appellants contend that exclusion of Christians from contesting election for the post of Dolloi in Elaka Jowai is discriminatory and in breach of Articles 14 to 16 of the Constitution of India since their exclusion is merely on the ground of religion. We may notice at the threshold that Jowai District is an autonomous district to which the provisions of Sixth Schedule of the Constitution of India apply in view of the provisions of Article 244(2) of the Constitution of India. The brief historical background in which the aforesaid autonomous district was created may be noticed at this stage :- "(1) On coming into force of the Constitution of India the United Khasi-Jaintia Hills district was formed as one of the tribal areas of Assam by merging the Khasi States with the other areas of the Khasi-Jaintia Hills, boundaries whereof were defined by para 20(2) of the Sixth Schedule to the Constitution (hereinafter referred to as 'the Schedule'). Under para 2(4) of the Schedule, the administration of the aforesaid district vested in the District Council which was clothed with administrative and judicial powers. In view of the demand for creation of an autonomous District comprising the Jowai sub-division of the aforesaid District, the Governor of Assam appointed a Commission to look into the matter and make its recommendation. The report of the Commission was placed before the Legislative Assembly which approved the action proposed to be taken pursuant to the report. Consequently on November 23, 1964 a Notification was issued by the Governor of Assam creating a new autonomous District Council for the Jowai Sub-Division by excluding Jowai Sub-division from the United Khasi-Jaintia Hills Autonomous District with effect from December 1, 1964. Thus the Jowai District came into existence as an autonomous District with effect from December 1, 1964." "(2) As earlier noticed Article 244(2) of the Constitution provides that the provision of the Sixth Schedule shall be applied to the administration of the tribal areas in the State of Assam. The tribal areas in Assam are governed not by the relevant provisions of the Constitution which apply to the other Constituent States of the Union of India but by the provisions contained in the Sixth Schedule. These provisions purport to provide for a self-contained code for the governance of the tribal areas forming part of Assam and they deal with all the relevant topics in that behalf." "(3) Paragraph 1 of the Sixth Schedule provides for the formation of an autonomous district and further provides that if there are different scheduled tribes in an autonomous district, the Governor may by public notification divide the area or areas inhabited by them into autonomous regions. Paragraph 2 provides for the constitution of a District Council for each autonomous district. Similarly for each autonomous region a separate Regional Council is provided. The administration of an autonomous district insofar as it is not vested under the schedule in any Regional Council within such district, is vested in the District Council for such district. The administration of an autonomous region is vested in the Regional Council for such region. Sub-paragraph (6) of paragraph 2 empowers the Governor to make rules for the first constitution of District Councils and Regional Councils in consultation with the existing Tribal Councils or other representative tribal organizations within the autonomous districts or regions concerned. Paragraphs 3 to 17 make provision for the administration of the autonomous districts and the regions. Paragraph 3 in particular provides that the District Council for an autonomous district in respect of all areas within the district except those which are under the authority of Regional Councils, if any, shall have power to make laws with respect to the matters enumerated therein which provide inter alia "for the appointment or succession of Chiefs or Headmen". The laws made under this paragraph are required to be submitted forthwith to the Governor and, until assented to by him, shall have no effect." (4) In exercise of powers conferred upon him by sub-paragraph (6) of paragraph 2, the Governor framed rules called "the Assam Autonomous Districts (Constitution of District Councils) Rules, 1951". The Rules provide, inter alia, for the constitution of an Executive Committee consisting of the Chief Executive Members as the head and two other members to exercise the executive functions of the District Council." "(5) After the coming into the existence of Jowai District as an autonomous District the Jowai Autonomous District Act, 1967 was enacted. The provisions of this Act were made applicable to the Jowai Autonomous District and the Rules of 1951, as amended from time to time, were made applicable. The Act, Rules and Regulations framed under the United Khasi-Jaintia Hills District Council as listed in Appendix I were also made applicable to the Jowai Autonomous District till such time the Jowai Autonomous District Council made its own laws. Appendix I includes the United Khasi Jaintia Hills Autonomous District (Appointment and Succession of Chiefs and Headmen) Act, 1959 (hereinafter referred to as 'the 1959 Act') which was made applicable to the Jowai District Council." "(6) Section 2 (a), (b) and (g) of the 1959 Act are as follows :- "2. Definition. In this Act, unless the context otherwise requires, the following expressions shall have the meanings hereby respectively assigned to them, that is to say :- (a) "Chief" means a Sylem, a Lyngdoh, a Dolloi, a Sirdar or a Wahadadar as the case may be, of any Elaka. (b) "Custom" with reference to any Elaka means any rule regarding the appointment of a Chief or Headman for that Elaka which having been continuously and uniformly observed for a long time, has obtained the force of law in that Elaka (g) "Elaka" means any administrative unit in the District specified in Appendixes I, II and III or any other administrative unit to be constituted and declared as such by the Executive Committee " Section 3 reads as follows - "3 Elections and Appointment of Chiefs and Headmen. - Subject to the provision of this Act and the Rules made thereunder all elections and appointments of Chiefs or Headmen shall be in accordance with the existing customs prevailing in the Elaka concerned " "(7) All appointments of Chiefs are made subject to the approval of the District Council which may confirm such appointments under terms and conditions which it may by Rules, from time to time, adopt" "(8) Under Appendix III Jowai has been specified as an Elaka, headed by a Chief who would be a Dolloi Apart from challenging the constitutional validity of Section 3 of the Act of 1959, appellants also challenge the validity of the notice issued by the Secretary of Executive Ccmmittee of Jowai District dated September 4, 2001 which is reproduced below - "OFFICE OF THE JAINTIA HILLS AUTONOMOUS DISTRICT COUNCIL, JOWAI NOTICE DATED JOWAI, THE 4TH SEPT 2001 This is Public Notice that the Executive Committee, Jaintia Hills Autonomous District Council, Jowai after thorough investigation and scrutinisation has decided that the following Clans has the right to stand for the election of the Dolloiship in the Elaka Jowai JUDGEMENT_139_JT4_2006Html1.htm JUDGEMENT_139_JT4_2006Html2.htm The Executive Committee has decided those who can contest for the Dolloiship should be only those who are from the Niam Tynrai Niamtre (Non Christians) who will practice the indigenous religion within the Raij Jowai. Sd/- E.M . Lyngdoh Secretary, Executive Committee Jaintia Hills Autonomous District Council, Jowai"
(3.) IT is not disputed before us that Dolloi performs Administrative as well as religious functions and a Christian cannot perform the religious functions which are performed by Dolloi. However, the appellants have impunged Section 3 of the Act of 1959 and the notifications issued on the following grounds:- i) The Notification issued is a law within the meaning of Article 13 (3) (a) of the Constitution of India. ii) Being a law preventing a person belonging to a particular religion from contesting election to a public post is violative of Articles 14, 15 and 16 of the Constitution of India, and therefore, void. iii) Section 3 which provides for the election and appointment of Dolloi in accordance with custom is void since the customs itself clearly discriminates on the ground of religion. A custom must give way to fundamental right and any custom which offends the fundamental rights of a citizen must be held to be invalid. On the other hand learned counsel appearing for the respondents submitted that there is no violation of Articles 14, 15 and 16 of the Constitution of India since reasonable classification is permissible in law and the exclusion of Christians from contesting the election is not only on the ground of religion, but on the ground that they are unable to perform religious functions of the office of Dolloi. It is further submitted that indeed the provisions only serve to conserve the tribal culture which itself is a fundamental right guaranteed under Article 29 of the Constitution of India. In substance, the impugned law and the notifications do not incur the wrath of Articles 14 to 16 of the Constitution, on the contrary, they enjoy the protection of Article 29 of the Constitution of India.;