R.C.Poundyal Vs. Union of India [1993] INSC 76 (10 February 1993)
1993 Latest Caselaw 75 SC

R.C. Poundyal Vs. Union of India [1993] INSC 76 (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:

HEAD NOTE:

The Judgments of the Court were delivered by SHARMA, C.J. (dissenting)- 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 representative 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 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 371-F(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 are ultra vires the Constitution and cannot be saved by Article 371-F(f). Alternatively it has been argued that if the provisions of Article 371-F(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 interpretation 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 371-F(f), as 339 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 paramountly. The Chogyal, also described as Maharaja, was a member of the Chamber of Princes entitled 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 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 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 where under the latter assumed the responsibility with respect to the defence, external affairs and communication of Sikkim on the terms detailed in the document dated December 3, 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 break-down 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 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 supplied)

6. The population of Sikkim has been 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 340 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 March 16, 1958, there was an addition of 2 more seats to the Council, one described as Sangha seat earmarked for religious Buddhist Monasteries run by Monks who are Lamas, and another declared as a general seat. Thus, for the first time in 1958 Chogyal, by creating a general seat took note of the presence of the immigrants who were neither Bhutia- Lepchas nor Nepalis and were mostly Indians. He also introduced the Lamas in the Council as he was sure of their support for him, as will be seen later. Appended to the Proclamation, there was a note of the Private Secretary to the Chogyal which has been referred to by the respondents in their arguments in support of the impugned reservations.

The note is in three sub-paras dealing with the Sangha seat, the general seat and the question of parity between the Bhutia-Lepchas and the Nepalis. It has been mentioned in the first sub-para (a) that the Sangha constituted a vital and important role in the life of the community in 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 Sanghas 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 were 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 341 able to arrive at the terms as included in the Tripartite Agreement of May 8, 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, "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 fifth 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 per cent 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 February 5, 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 constituencies including one for the Sangha were to be reserved for Bhutia- Lepchas, and the remaining 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 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 election 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 supplied) 342 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 this Constitution (Thirty-fifth Amendment) Act, 1974, inserting Article 2-A which made Sikkim associate with the Union of India on certain terms and conditions. The amendment came into force in February 1975. On April 10, 1975 the Sikkim Assembly passed another momentous resolution abolishing the institution of Chogyal and declaring that Sikkim would henceforth be a constituent unit of India, enjoying a democratic and fully responsible Government. A request was made in the resolution to the Government of India to take the necessary measures. Accordingly, the Constitution was further amended by the Constitution (Thirty-sixth Amendment) Act, 1975 which became effective in May 1975. As a result of this constitutional amendment Sikkim completely merged in the Union of India.

11. By the Thirty-fifth Amendment of the Constitution, Sikkim was, as mentioned earlier, merely associated with the Union of India by insertion of Article 2-A 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 of the First Schedule of the Constitution under the heading "1. The State". Further, some special provisions were made in a newly added Article 371-F, and strong reliance has been placed on behalf of the respondents on the provisions of clause (f) in Article 371-F as authorising the impugned amended provisions in the Representation of the People Acts.

Article 2-A, 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 reservations in the State legislature were made in the Representation of the People Act, 1950 and the Representation of the People Act, 195 1, 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." 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 newly inserted sub-section (1-A) in Section 7 of the Representation of the People Act, 1950. Dealing further with the Sangha seat it 343 is provided in Section 25-A of the 1950 Act that there would be a Sangha constituency in the State and only Sanghas belonging to Monasteries recognised 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 5-A 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 subsection (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 371-F 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 371-F. I am afraid this argument fails to take into account the 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.

14. Special provisions for any State can certainly be made by an amendment of the Constitution, as is evident by Articles 371 A, 37 1 B, 371 C etc., 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 is 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 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 344 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 2-A 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 protectorate-ship had been there in existence from before under the earlier treaties and by Article 2-A read with Tenth Schedule something more was achieved. This, however, was short of Statehood.

Consequently Sikkim was not enjoying all the 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 2-A, the Tenth Schedule and other related provisions included in the Constitution by the Thirty-fifth Amendment, were omitted from the Constitution. Thus, as a result of the Thirty-sixth Amendment Sikkim became as much a State as any other. Considered in this background, the objection to the maintainability of the writ petitions cannot be upheld.

Further, the challenge by the writ petitioner is to the amendments introduced in the Representation of the People Acts by the Central Act 8 of 1980 as being unconstitutional and not protected by Article 371-F(f) and this point again has to be decided by the Court. If the conclusion be that clause (f) of Article 371-F 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 Constitution Bench of this Court in Mangal Singh v. Union of India' in the following terms:

"The law referred to in Articles 2 and 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 Articles 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 supplied)

16. It would be of considerable help to refer also to several observations made by Gajendragadkar, J. on behalf of the Bench of eight learned Judges of this Court in Berubari Union and Exchange of Enclaves, Re2 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 or by necessary implication impose in that behalf. Article 1(3)(c) does not confer power or authority on 1 (1967) 2SCR 1O9,112: AIR 1967 SC 944 2 (1960) 3 SCR 250: AIR 1969 SC 845 345 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 Article 3? There can be no doubt that foreign territory which after acquisition becomes a part of the territory of India under Article 1(3)(c) is included in the last clause of Article 3(a) and that such territory may, after its acquisition, be absorbed in the new State which may be formed under Article 3(a). Thus Article 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 2-A 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 case2. 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 on a 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 will be that in a part of India, 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 supernatural 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 stands 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 to 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 346 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 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 Hindu Law of Religious and Charitable Trusts by B.K. Mukherjee, 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 church, 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(1-A)(c) of the Representation of the People Act, 1950 allots one seat for Sanghas referred to in Section 25-A.

Section 25-A states that notwithstanding anything contained in Sections 15 and 19, the Sanghas belonging only to such Monasteries as were recognised 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 Gazettes 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 Assembly were held. The case of the writ petitioner is that the reservation in favour of the Sangha based on religion with a separate electorate of the religious monasteries is violative of the basic structure of the Constitution of India, and is 347 not permissible after Sikkim joined India as a full-fledged State. It is further contended that the number of persons actually entitled to exercise the right being considerably very small (about 30 only), their share works out to be disproportionately very high.

21. In reply Mr Parasaran contended that Sangha has played a vital role in the life of the community for a long time in the past, and a body consisting of Lamas and laity Lhade- Medi has contributed towards cultural, social and political development of the people of Sikkim. The Sangha seat was, therefore, introduced in order to provide for their representation. Their interest is synonymous with the interest of the minority communities and this reservation, which is coming from the time of Chogyal, should be maintained. He quoted from the book The Himalayan Gateway by George Kotturan, dealing with the history and culture of Sikkim, which states that the author found the monasteries everywhere looking after the spiritual needs of a small community. The Chogyal also allowed the Lamas to play a role in the administration and this arrangement is, therefore, not 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 Lhade-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 The Himalayan Gateway by George 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 describe 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 incarnation 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) an incarnate of Chogyal Sidkeong who himself was an incarnate Iama. 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. 348 (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 wordly life and only enter the priesthood as a lucrative profession and one which entails no trouble to themselves".

23. 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 Bhutias, Lepchas and Newars, along with a few of the other tribal groups such as Tamangs, 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 1950s.

24. 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 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 supplied)

25. 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 the ocratic 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 basis 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 supplied) 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 Bhutias and Lepchas". The Lamas did not confine their participation only to the administration but also controlled the electorate.

349 At page 78 it is stated that the major portion of the trans- Himalayan trade was in the hands of Marwaris, the aristocracy and some of the Lamas.

26. 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 etc. 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 aboriginal. 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 1, 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 per cent) 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.

27. 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 371-F do not in any way offend 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.

28. 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.

29. Let us first consider Article 15 which prohibits discrimination on the ground of religion. The Buddhist monasteries, which are the beneficiaries of the 350 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 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 of bringing 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 to these monasteries. The selfless services rendered by the Christian missionaries to the helpless sick persons, specially in many underdeveloped 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 modem 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 351 most of the 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 this process the very welfare of the society, which is of prime consideration becomes the casualty.

30. It has to be remembered that if the Constitution is so interpreted as to permit, by an amendment a seat to be reserved in the legislature for a group of religious institutions like the Buddhist monasteries, it will follow that such a reservation would be permissible for institutions belonging to other religions also. There will not be any justifiable 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.

31. The Preamble, which is the key to understanding 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 etc. 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.

32. 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 always to be a Greek Christian and the Vice-President a Muslim Turk: Mr Nariman emphasised on the separate electorate provided by the 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 352 allotted only 70 per cent of the seats in the legislature, and the Turkish Muslims with a population of only 1,22,900, the remaining 30 per cent of seats. In other words the Muslims forming only about 20 per cent of the total population, were allotted 30 per cent 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 Constitution, 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 enamored of, has completely failed to keep the country together.

33. The learned counsel also referred to the provisions contained in Articles 239-A, 240 and 371-A with respect to the Union Territories and State of Nagaland; 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)].

34. Religion not only became the cause of partition of the country, it led to widespread 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 principle 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 353 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 set-back they had suffered, they reiterated 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.

35. 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 weight age 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(1-A)(c) and the other connected amendments must, therefore, be held to be ultra vires.

36. 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.

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, etc. The Advisory Committee was empowered to appoint sub-committees [see B. Shiva Rao's Framing of Indian Constitution, Vol. IL pp. 56-57] 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 Ibid., Vol. II, p. 392] 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 supplied) (Shiva Rao Ibid., p. 412) I think that the Advisory Committee was right in suggesting that the decision against separate electorates was absolutely decisive for all times to come. Sardar Patel, after referring to the suffering and the heavy penalty the nation had to pay on this count, expressed his satisfaction "that there has been unanimity on the point that there should be no more separate electorates and we should have joint 354 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 proposition was going to be moved seriously, and even if it was moved seriously, that it would be taken seriously." (emphasis supplied) (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 amendment 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 supplied) (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 going 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 electorates will give equal opportunity for the Caste Hindus and the Minority communities to come together and work together and produce a better India."(emphasis supplied) (Constituent Assembly Debates, Vol. V, pp. 202-03) Unfortunately, the firm belief of Mr Pillai was not shared when the reservation in question was introduced by amendment three decades later in 1980.

37. 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.

38. 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 separate electorate for the Muslims by a deputation headed by Aga Khan presented to the then Viceroy, Lord Minto, in 355 1906. Lord Minto not only supported him but added that in view of the service that the Muslims had rendered to the Empire, their position deserved to "be estimated not merely on 'their' numerical strength but in respect of the political importance of 'the' community and the service that it had rendered to the Empire". The demand was accepted in 1909 by Minto-Morley Reforms. The matter was again considered in 1919 by the Montague-Chelmsford 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.

39. 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 electorates for the "Depresse