R.C. POUDYAL AND ANR. ETC. ETC. v. UNION OF INDIA AND ORS. ETC. ETC.

a group of religious institutions like the B.uddhist 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 provid- ing 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 c foundation, which the democratic republic is built-upon. In this back- ground 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. D

28Copy pinpoint28. 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 E III dealing with the Fundamental Rights, and the framers of the Constitu- tion, even after including Article 14 ensuring equality before law, were not satisfied unless they specifically prohibited religion as a ground for dif- ferential treatment. The freedom of propagation of religion and the right to manage religious affairs et cetera were expressly recognised by Articles F 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. -(

29Copy pinpoint29. 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 G en.phasis on the Constitution of Cyprus. The argument is that although Cyprus is an independent and sovereign rer,ublic with a democratic Con- stitution, the seats in the legislature are divided between the Greek popula- tion following the Greek-Orthodox Church and the Muslim Turkish community. There is a division even at the highest level, the President H

934 SUPREME COURT REPORTS IJ 993 J 1 S.C.R. A always to be a Greek Christian and the Vice-President a Muslim Turk. Mr. Nariman emphasic.ed on the separate electorate provided by Cyprus Con- stitution 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 B following Greek-Orthodox Church was in 1983, 5,28,700 but was allotted only 70% of the s,cats 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 c erroneous assumption that fundamental features of all constitutions are same or similar. The basic philosophy of a constitution is related lo various clements 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 D decided to agree on some arrangement like the people of Cyprus, hy 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- E tion, to avoid the partition of the country on the basis of religion, hut 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, hegetting and en- couraging more such fundamentalism. In the shadow of death and destruc- F tion on an unprecedented scale the making of the Constitution was taken up. The Constitution of Cyprus or any other constitution framed in cir- cumstances different from those ol.itaining in this cour1try, thcrforl.! 1cannot he relevant for understanding the basic philosophy and <:thos of our Constitution. Although it is not strictly relevant for the decision in the G present case, it may be noted that this patchw1irk 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 pro\~sion~ contained in H Articles 239A, 240 and 371A \vith respect to the Union T erritorics and

R.C. POUDYAL 1·. U.0.1. [SHARMA, O.J 935

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) J.

~ 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. C 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 lo 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 destrust and hatred between the main communities of the country on the basis of religion was created, arc 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 >Cl back they had suffered, they reilctrated 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. F

31Copy pinpoint31. 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 G strictly prohibited and further, that this is a basic feature, which is not amenable to amendment. The provisions of section 7 (IA)(c) and the other connected amendments must, therefore, be held to be ultra vires.

32Copy pinpoint32. There is also another serious flaw in the reservation for the H

936 SUPREME COURT REPORTS [1993] 1 S.C.R.

A 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 Constitu- tion. Much thought was bestowed in the Constituent Assembly on the question whether separate electorate could be permitted under the Con- stitution. An Advisory Committee was constituted on January 24, 1947 for 8 determining the fundamental rights of citizens, minorities, et cetera. The Advisory Committee was empowered to appoint sub-committees [sec B. Shiva Rao's Framing of Indian Constitution, Vol. II, pp. 56-57] and accord- ingly a Sub-Committee on Minorities was appointed un February 27, 1947, to consider and report, i11ter alia, on the issue whether there should be joint c 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 392] The Report of the Sub-Committee was accepted by the Advisory Committee and the following observations were made:-

D "The first question we tackled was that of separate elec- torates; 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, wc came to the conclusion that the system of separate E electorates must be abolished in the new Constitution. In our judgment, this system has in the past sharpe11ed com- nm11a/ differe11ces to a da11gero11s extellt a11d has proved 011e of the mai1t 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 . F in the country and from this point of view the arg11me1tts 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. 1' G (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

R.C. POUDYAL v. U.0.1. [SHARMA, CJ.] 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 :- B "! 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 c - to pass is the communal electorate. 17te introduction of the system of communal electorates is a poison which has entered into the body politic of our country. Many Eng- lishmen who were responsible for this also admitted that. But today, after agreeing to the separation of the country D 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) E

(Constituent Assembly Debates; Vol. V, p. 225)

- I, however~ find that the impugned amendment was made without bestow- ing serious thought and the respondents are supporting t'..e 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. Packer 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) H

938 SUPREME COURT REPORTS [1993] 1 S.C.R.

A [Constituent Assembly Debates; Vol. V, p.224]

Shri VJ. Muniswami Pillai, on this occasion reiterated these sentiments and Y said with a sigh of relief :-

"... Sir, which I would like to tell this House is that we got B rid of the harmful mode of election by separate electorates.' It has been buried seren fathom deep, never more to rise in our coull/ry. 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 c both the separate and joint electorates but now we have ad,ised accoding 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 cmisaging that this Country will become in the years to come, -joint electorates will give equal opportunity D 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.202J E Unfortunately, the firm bdicf 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 - F 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. 'r

33Copy pinpoint33. 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 G was to introduce separate de ct orates with weight age for the Muslims. The occassion 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 \iew of the service that the Muslims had rendered to the H Empire, their position deserved to "be estimated not merely on "their"

R.C. l'OUDYAL ». U.0.1. !SHARMA, CJ.) 939

numerical >trength but in respect of: the political importance of "the'' A community and the service that it had rendered to the Empire". The demand ;.,as accepted in 1909 by Minto Morley Reforms. The matter was again considered in 1919 by the Montague-ChenLsford Committee. Their report disapproved the idea of separate electorates by stating that such clcctorntcs "were opposed to the teaching of history: that they perpetuated class divi~ion : that they stereotyped existing relations; and that they B constituted a very serious hindrance to the development of the self-govern- ing principle". Sardar Patel was, in his reply, presumably referring to these expressions and similar other opinions.' u_,.fortunately, however, the prin- ciple of communal electorates was adopted for the Muhammadans in the country and in Punjab for Sikhs. c '4. Having, thus succeeded in introducing this highly undersirable 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 'Depressed Classes" in 1932 under the Coinmunal 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 Ministor 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 famou• Yarvada Pact. Separate electorate for the Muslims, however, could not be undone, and was given effect to in the Government of India Act, 1935, ultim•tcly leading lo the partition of the Country. F

35Copy pinpoint35. In this back1tround " the Debate in the Constituent Asscmblv. 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 provision declaring that the elections to the Parliament and lo the Stale legislatures would be on the basis o[ joint electorates and the G 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. 141J. 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 H

940 SUPREME COURT REPORTS [19931 1 S.C.R.

A 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:- ·-r "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 B 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- c stituency on grounds only of religion, race, caste, sex or any or them."

36Copy pinpoint36. 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 ""f D any parallel between the two. After the establishment of a democratic government at every level in the country in one from or the other, nomina- tion 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. E 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 i~ them to elect their representative to occupy the reserved seat is to · F 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 G 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 .Ji. inserting Article 371F(t) in the Constitution there was complete reversal of faith on this basic and vital matter, which was otherwise also not permis- H sible. It follows that consistent with the intention of the rest of the Con-

R.C. POUDYAL v. U.0.1. [SHARMA, Cl.] 941 --- stitution the provision regarding the delimitation of the Assembly con- A °').-- stituencies 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 permits separate elec- torates and any attempt to give a different construction would n5JI only be highly artificial and speculative but also would be violative of a basic B feature of the Constitution. I, accordingly, hold that the provisions of section 25A of the Representation of the People Act, 1950 are also ultra vires the Constitution and this furnishes another ground to strike down -{ section 7 (lA) (c).

37Copy pinpoint37. So far the reservation of 12 seats in favour of the Bhutia- Lepchas c • is concerned, the ground relied upon by the respondents for upholding the same is the historical background coupled with the 5th term under the head BASIC RIGHTS in the Tripartite agreement of the 8th May, 1973, which reads as follows:- ~ "(5) The system of elections shall be so organised as to D make the Assembly adequately representative of the various sections of the population. The size and composi- tion 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 sectio11 of the population E --( acquires a dominating position due mainly to its ethnic origin, and 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."

It is further said that in view of this Tripartite Agreement the Proclamation F dated 5.2.1974 was made reserving 16 constituencies out of the total -< number of 32 in favour of Bhutia-Lepchas, and when the Government of Sikkim Act, 1974 was passed, which came into force on 4.7.1974, the follO\ving provision was included in section 7:-

"7. (I) For the purpose of elections to the Sikkim Assembly, G Sikkim shall be divided into constituencies in such manner ,,._ as may be determined by law.

(2) The Government of Sikkim may make rules for the purpose of providing that the Assembly adequately repre- H

942 SUPREME COURT REPORTS (1993) 1 S.C.R.

A sents the various sections of the population, that is to say, while fully protecting the legitimate rights and interests of Sikkimese of Lepcha or Bhutia origin and of Sikkimese of Nepali origin and other Sikkimese, including Tsongs and Scheduled Castes no single section of the population is allowed to acquire a dominating position in the affairs of B Sikkim mainly by reason of its ethnic origin.'

In these circumstances the Thirty-Fifty Amendment of the Constitution of India was made which became effective from 23.2.1975 and Sikkim was thus )" Associated with the Union of India. The Thirty-Sixth Amendment of the C Constitution inserting the new Article 371F was thereafter made with clause (!) which reads as follows:-

"(!)Parliament may, for the purpose of protecting the rights and interests of the different sections of the population of Sikkim make provision for the number of seats in the D Legislative Assembly of the State of Sikkim which may be filled by candidates belonging to such sections and for the delimitation of the assembly constituencies from which candidates belonging to such sections alone may stand for election to the Legislative Assembly of the State of Sikkim".

E and clause (k) in the following terms:-

"(k) all laws in force immediately before the appointed day in the territories comprised in the State of Sikkim or any part thereof shall continue to be in force therein until amended or repealed by a competent Legislature or other F competent authority".

The argument is that the impugned provisions of the Representation of the People Acts are thus fully protected by the Thirty-Sixth Constitutional Amendment. G

38Copy pinpoint38. I have not been able to pursuade myself to accept the contention made on behalf of the respondents for several reasons. Before proceeding further it will be useful to have a survey of the relevant circumstances and A. the documents relevant to this aspect at a glance.

39Copy pinpoint39. Chogyal was an autocratic ruler anxious to relain his absolute

R.C. POUDYAL <'. U.0.1. [SHARMA, Cl.] 943

power, while the people were becoming more aware of their rights in the A ~- ·1 changing world. By the middle of this ccr'ury, encouraged by the develop- ments in India which was not only neighboring country but on which Sikkim was solely dependent for its vital needs including defence, they were able to build up a formidable force demanding establishment of a truly democratic government. The materials on record fully establish that in this struggle of power, Chogyal had to heavily rely on Bhutia-Lepchas, who B were close to him as he was one from that group. According to the case -< of the respondents the Bhutia-Lepchas had arrived in Sikkim earlier than the Nepalis and the Nepalis were inducted in the area mainly on account of the policy followed by the British paramountcy. The records also show that protest in vain was made to the British General posted in the area, c long time back when the Nepalis were arriving on the scene. The Bhutia- Lepchas, who were following the Buddhist religion, were paying high respect for the Lamas who were enjoying the patronage of Chogyal. y- Appreciating their usefulness the Chogyal later earmarked a seat for them on the basis of a separate electorate in 1958. When public demand for effective participation in the administration grew stronger, the Chogyal adopted the line of appeasement by establishing a Council where initially 12 members were divided half and half (vide the Proclamation of zSth D,·cember, 1952) between the Bhutia-Lepchas on the one hand and the Nepalis on the other. But soon he appreciated that unless he reserved to ~ himself the right to induct some more nominees of his own, his position would be jeopardised. He, therefore, hurriedly issued another Proclama- tion \vithin 3 months, on the 23rd March, 1953, declaring that 6 more • members would be included in the Council to be nominated by him in his discretion including the President of the Concil. In Article 26 he expressly declared that notwithstanding the provisions of the other Articles he would be retaining his power to veto any decision made by the Council and ---< substitute his own decision therefor.

40Copy pinpoint40. The steps taken by the·Chogyal could not control the demand for democracy and the public agitation gathered more support. Ultim1tely the people came out '1ctorious, not only in getting rid of the Chogyal, but also in their demand for democracy, to be established on the lines as in India. The Chogyal, of course, in his vain attempt to retain his authority, was trying to scuttle away the overwhelming public opinion by one method or the other and \vith that view, was trying to give weightage to Bhutia- Lepchas, to which group he himself belonged and on whose support he H

944 SUPREME COURT REPORTS [1993] 1 S.C.R.

A could count, and in this situation the Tripartite Agreement of 8th May, 1973 came to be executed. The fact that Chogyal was going to be a party to it and was desperately trying to have something in the terms, to build his strategy on, cannot be ignored while assessing the meaning and effect of paragraph 5 of the. Agreement. The Tripartite Agreement desciibed itself in the very opening sentence as envisaging a democratic set up for B Sikkim, and the Chogyal joined the people of Sikkim in declaring that he was also convinced and was in favour of the establishment of a fully responsible Government in Sikkim. The other provisions of the Agreement unmistakably indicate that the intention was to have a democratic govern- ment in Sikkim exactly similar to the one in India. It (Agreement) provided C guarantee of Fundamental Rights, the rule of law and independent judiciary, as also.

"a system o! 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". D (emphasis added)

All the three parties expressly recognised and undertook to ensure the basic human rights and fundamental freedoms of the people and that:- E "the people of Sikkim will enjoy the right of election on the basis of adult suffrage to get effect to the principle of one man one vote. 11

(emphasis supplied) F Equality before law and independence of the judiciary were assured. It further recited that the Chogyal as well as the representative of the people had requested the .Government of India to assume responsibility for the establishment of law and order ancl good administration and "to ensure the further development of a constitutional Government", as also to provide the head of the administration described as Chief Executive to help and achieve the State's objectives. A firm decision was taken to hold fair and free elections under the supervision of a representative of the Election .. ~

Commission of India. The Chief Executive was to be nominated by the Government of India and it was only the passing of the formal order in this regard which was left to the Chogyal. Towards the end of the Agreement

R.C. POUDYAL 1·. U.0.1. \SHARMA, 0.j 945

it was emphasised that the Government of India was solely responsible for the defence and territorial integrity of Sikkim and for the conduct and ., ~ regulation of the external relations whether political, economic or financial, and necessary powers for carrying out these responsibilities were reaf- firmed. A perusal of the document clearly 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 constitu- tional pattern of the Indian Constitution.

41Copy pinpoint41. A question may be raised that since the Agreement included paragraph (5) which has been quoted earlier, does that inject in this Agreement an element incompatible with the Indian Constitution.· in my opinion the answer is in the negative. The safeguard under the scheme envisaged in paragraph (5) was capable of being provided by the Indian Constitution. Many provisions in the different parts of the Constitution D including Part III are relevant in this regard. Their representation of all sections has been the concern of the Constitution also; and with that view provisions have been made for reservation of seats in favour of certain classes in the Parliament and the state Legislatures and some special rights have been given to the minority. In my ·view these constitute adequate guarantee against unfair dominance by the majority. This of course docs not lead to the conclusion that power would be concentrated in the hands of the minority, or that their would be division of the authority in the matter of carrying on the affairs of the State, on mathematically equal terms, between the different groups; because the first will result in the abnegation of democracy itself, and the second will lead to an unworkable situation ending in chaos. The principle of adult suffrage with 011e-ma11-011e-vote m/e, as repeated again and again in the documents referred to above, indicates the concept of democracy which had to be established in Sikkim. In the Proclamation of the 5th February, 1974 total number of 32 seats in the Assembly were divided half and half between the two groups, but it is significant to note that as soon as the Assembly was constituted after election, it immediately modified the provision fixing the parity of seals by declaring in section 6(2) of the Government of Sikkim Act, 1974 that the matter would. be determined by law. The intention that no single section of the population should acquire a "dominating position due mainly to its H

946 SUPRBME COURT REPORTS [1993J l S.C.R.

A ethnic origin" does not mean that the majority held by a particular section would not be allowed to be reflected in the legislature. The word "dominat- ing" indicates something more than merely forming a majoirty. What was intended was to eliminate the chance of a particular section of the popula- tion misusing its position to the prejudice of the legitimate rights of the others. The risk of such an undesirable situation could and should have been eliminated by adopting such methods as provided in the Indian Constitution. It cannot be legitimately contended that the safeguard in this regard under the Indian Constitution is in any way inadequate. If at all, the minority in this country are in certain matters enjoying special benefits not available to the majority-=d this is the reason that repeated attempts have been and are being made by various groups to claim minority status, as is evident by reported cases. The necessary consequence of assuming other- wise would be to hold that under the Constitution applicable to the rest of the country, the minorities here have no protection agains the "dominance" of the majority, and our stand about the rule of law 11Dd equality of status to all in this country is an empty claim made before the world.

42Copy pinpoint42. The further point is as to whether the provisions of clause (f) of Article 371F envisage and authorise the Parliament to exercise its power only in such a manner which. would be consistent with the relevant provisions of the Constitution applicable to the rest of the country if the same is capable of achieving the object with reference to the special conditions of Sikkim; or, that they allow the Parliament to take any decision in this regard, including such measures which would perpetuate the situa- tion obtaining in Sikkim in the past, on the ground of historical background. For the reasons indicated earlier, 1 am of the view that 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 at per with the other States. This conclusion is irresistible if the facts and circumstances which led to the ultimate merger of Sikkim in India are kept in mind. They have been briefly referred to earlier in paragraph 10 above. After the Proclamation of the 5th of February, 1974, Sikkim went to polls. The main representative of the people was Sikkim Congress as was proved by the result of the election. Sikkim Congress winning 31 out of the total of 32 seats. The election manifesto on the basis of which the people almost unanimously H

R.C. POUDYAI. 1·. ll.0.1. ISllARMA. Cl.] 947

voted in favour of Sikkim Congress, imer alia, declared thus :- A 'We also aspire to achieve the same democratic rights and iflstitutions that the people of India has enjoyed for a quarter of century.'

(emphasis added) B Respecting this pledge, solemnly given to the people, the Assembly passed a unanious resolution dated 10.04.1975 and submitted it to the people for their approval. A plebiscite was thus held in which about 64% of the electorate cast their votes. The Resolution was approved by the 62% of the total electorate and only less than 2% went against the same. The State- c ment of Objects and Reasons of the Constitution (Thirty-Sixth Amend- ment) Act, 1975 refers to the unanimous Resolution of the State Assembly, which after taking note of the persistent anti-people activities of the Chogyal decided to abolish the institution of the Chogyal and to make Sikkim a constituent unit of India _in the following terms : D "The institution of the Chogyal is hereby abolished and Sikkim shall henceforth be a constituent unit of India, enjoying a democratic and fully responsible Government."

-....(_. In this background, the Statement of Objects.and Reasons further proceeds to declare :-

"5. Accordingly, it is proposed to include Sikkim as a full-fledged State in the First Schedule lo the Constitution and to allot to Sikkim one seat in the Council of States and one seat in the House of the People. It is also proposed to F ·-<. insert a new article containing the provisions· considered necessary to 111eet the special circu111stances and needs of Sikkim."

(emphasis added) G

43Copy pinpoint43. The intention was clear that the people of Sikkim, by a near unanimous verdict, decided to join India as a full-fledged Slate with the aspiration of participating in the affairs of the country on the same terms applicable to the rest of India. The decision to insert a new Article was considered necessary only the limited purpose lv meet the special cir· H

948 SUPREME COURT REPORTS [1993) 1 S.C.R.

A cumstances and needs of Sikkim. The question is whether a provision for granting a disproportionately higher representation of the Bhutia-Lepchas ...,, in the State legislature was necessary. If it was not, clause (f) of Article 371F must be construed as not protecting the impugned statutory amend- ments.

44Copy pinpoint44. If we examine the different clauses of Article 371F, we find that several additional provisions deviating from the original, have been incor- porated in the Constitution, in view of the special circumstances peculiar to Sikkim. By Article 170 the minimum size of the Assembly of the States .is fV<ed at 60 seats which was too large for a small State like Sikkim with c a total population of only three lacs. This was a special feature which. distinguished it from the other States. The ratio of the number of the representatives to the population did not justify a House of 60 and, therefore, by clause (a) the minimum number was fixed only at 30. For obvious reasons clauses (c) and (e) bad to be inserted in the Article as the y D appointed day with reference to Sikkim could not have been the same as the appointed day with reference to the other States. Clause (d) also became relevant for allotting a seat to the State of Sikkim in the House of the People. So far clause (b) is concerned, the same became necessary for a temporary period for the smooth transition of Sikkim from merely "associate' status to a full-fledged State of the Union. In order to avoi<:I a E bumpy ride during the period that the effect of merger was being constitu- tionally worked out, there was urgent need of special temporary provisions to enables the State functionaries to discharge their duties. If the other clauses are also examined closely it will be manifest that they were neces- sary in view of the special needs of the Sikkim. The point is whether for the protection of the Bhutia-Lepcha Tribe, the safeguards already provided in the Constitution were inadequate so as to call for or justify special provisions of reservation, inconsistent with the Constitution of India as it )r-- stood before the Thirty-Sixth Amendment. 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 H reservations in Part XVI were considered adequate protection to them and

R.C. PO UDY AL 1·. U.0.1. [SHARMA, CJ.] 949

it had not been proved wrong for about three and a half decades before A 1975, when Sikkim merged with India. It must, therefore, be held that the 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. As a matter of fact this position was correctly appreciated in 1978 when the Presidential Order was issued under Article 342 of Part XVI. The interpretation of Article 371.F (t), as suggested on B behalf of the respondents, is inconsistent with the issuance of the said Order. I, therefore, hold that the object of clause (t) was not to take care of this problem and it did not authorise the Parliament to pass the Amend- ment (Act 8 of 1980) inserting section 7(1A) (a)-in the Representation of the People Act, 1950 and section 5A in the Representation of the People c Act, 1951 and other related amendments. They being violative of the constitutional provisions including those in Article 371F (t) are 11/tra vires.

45Copy pinpoint45. The next point is as to whether clause (t) of Article 371F will have to be struck down on the ground of violation of the basic features of the Constitution, if it is interpreted as suggested on behalf of the respon- dents.

46Copy pinpoint46. The Preamble of the Constitution of India emphatically decalres that \Ve \Vere giving to ourselves the Constitution with a firm resolve to cun~litute a sovereign, democratic, republic; with equality of status and of opportunity lo all its citizens. The issue which has direct bearing on the question under consideration is as to what is the meaning of 'democratic rcpuhlic'. The expressions 'dcn1ocracy' and 'democratic' have been used in varying senses in different countries and in many places have been subM jected to denote the state of affairs which is in complete negation of the meaning in which they are understood. During the present century it progressively became more fashionable and profitable to frequently use those terms and accordingly they have been grossly misused. We are not concerned with that kind of so called democracy, which is used as a stepping stone for the establishment of a totalitarian regime, or that which is hypocritically dangled before the people under the name of democracy G h1;.~ is in reality an oligarchical set up concentrating the po\ver in a fe\v. We are also not concerned with f he w: dcr theoretical conception in which the word can be understood. In our Constitution, it refers to denote what it literally means. that is, 'people's powers.' It stands for the actual, active and effective exercise of power by the people in this regard. Schumpetcr gives H

950 SUPREME COURT REPORTS IJ993J l S.C.R.

A a simple definition of democracy as "the ability of a people to choose and · dismiss a governmentn. Giovanni Sartori translates the same idea in institu- tional form and says that democracy is a multi-party system in which the majority governs and respects the right of minority. In the present context it refer5 to the political participation of the people in running the ad- ministration of the government. It conveys the state of affairs in which each B citizen is assured of right of equal participation in the polity. The expres- sion has been used in this sense, both in the Indian Constitution and hy the people of Sikkim as their goal to achieve. The repeated emphasis that was goven to the nile of 011e-ma11-011e-vote in the various documents preceding Sikkim's merger with India, clearly defines the system of government which c the people of Sikkirr. by an overwhelming majority decided to establish and which was exactly the same as under the Indian Constitution. This goal cannot be achieved by merely allotting each person one vote which they can cast in favour of a particular candidate or a special group of persons, selected for this purpose by others, in which they have no say. The result in such a case would be that while one man of this clas; is assigned the strengh of one full vote, others have to be content with only a fraction. If there is 90% reservation in the seats of a House in favour of 10% of the population in the State, and only the remaining 10% of the scats arc left to the majority population, then the principle of adult suffrage as included in Article 326 is sacrificed. By permitting the 90% of the population to vote not only for 10% seats available to them, but also for the 90% reserved scats the basic flaw going to the root of the matter is not cured. The choice of the candidate and the right to stand as a candidate at the election arc 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 freee choice of the candidate. This will only amount to lip service, to thinly veiled to conceal the reality of an oligarchy under- neath. It will be just an apology for democracy; a subterfuge; and if it is permitted to cross the li111it so as to violate the very core of the principle of 011e-ma11-011e-vote, and is not controlled by the constitutional safeguards as included in clause (3) of Article 332 (sec paragraph 12 above) of the G Constitution it will amount to a huge fraud perpetrated against the people. So far the Sangha scat is ccnecrned even this transparent cloak has been shed off. It has to be appreciated that the ,·cry purpose of prO\iding 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 H ,

r R.C. POUDYAL '" U.0.1. jSHARMA, CJ.]

excessive reservation creates a privileged class, nol brought to the same plane with others but put on a higher pedestal, causing unhealthy competi- tion, creating hatred and distrust between classes and fostering devisive forces. This amounts to abnegation of the values cherished by the people of India (including Sikkim), as told by their story of struggle and sufferings culminating into the framing of the Indian Constitution (and the merger of Sikkim as one of the State in 1975). This is not permissible even by an amendment of the Constitution.

47Copy pinpoint47. In a search for constitutions similar to ours, one may look towards Canada and Australia and not to Cyprus. But the Canadian and Australian Constitutions also differ from our Constitution in many respects, including some of the fundamental principles and the basic features. The unalterable fundamental commitments incorporated in a written constitution are like the soul of a, person not amenable to a substitution by transplant or otherwise. And for identifying what they are with reference to a particular constitution, it is necessary to consider, besides other factors, the historical background in which the constitution has. been framed, the firm basic commitments of the people articulated in the course of and by the contents of their struggle and sacrifice preceding it (if any), the thought process and traditional beliefs as also the social ills intended to be taken care of. These differ from country to country. The fundamental philosophy, there- fore, varies from Constitution to Constitution. A Constitution has its own personality and as in the case of a human being, its basic features cannot be defined in the terms of another Constitution. The expressions 'democracy' and 'republic' have conveyed not exactly the same ideas through out the world, and little help can be obtained by referring to another Constitution for determining the meaning and scope of the said expressions with reference to our Constitution. When we undertake the task of self-appraisal, we cannot afford to forget our motto of the entire world being one big family (Vasudhaiva Kutumbkam) and consequent commitment to the cause of unity which made the people suffer death, destruction and devastation on an unprecedented scale for replacing the foreign rule by a democratic government on the basis of equal status for all. The fact that they lost in their effort for a untiled independent country is not relevant in the present context, because that did not shake their faith in democracy where every person is to be !rated equal, and with this firm resolve, they proceeded to make the Constitution. An examination of the provisions of the Constitution does not leave room from any doubt that this H

952 SUPREME COURT REPORTS [1993] 1 S.C.R.

A idea has been kept as the guiding factor while framing the Constitution. 'Democracy' and 'republic' have to be understood accordingly. Let us now examine the Constitution in this light.

48Copy pinpoint48. As explained by the Preamble the quality of democracy envisaged B 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 III dealing with Fundamental Rights, Part IV laying down the Direc- tive Principles of State policy and Part XVI having special provisions relating to certain classes. The spirit pervades through the entire document c as can be seen by the other provisions too. When the question of the qualification for election as President arises, all classes of citizens get same treatment by Articles 58 and 59 (subject to certain qualifications which are uniformly applied) and similar is the position with respect to the Vice- President and the other constitutional functionaries. The protection in Part D III is available to all, and the State has to strive to promote the welfare of the people and the right to adequate means of livelihood, to justice and free legal aid, and to work et cetera with respect to everybody. Certain special benefits are, however, extended or may be extended to certain weaker classes, but this again is for the sake of placing them on equal footing with the others, and not for defeating the cause of equality. So far E the question of equality of opportunity in matter of employment is con- cerned, provisions for reservation of posts are included in favour of back- ward classes who may be inadequately represented in the services. Welfare measures also are permitted on the san1e line, but, when it comes to the reservation of seats in the Parliament or the State Legislature, it is given a F different treatment in Part XVI. Clause (2) of Article 330 and clause (3) of Article 332 lay down the rule for maintaining the ratio, which the population of the class bears to the total population. This is significant. The sole objective of providing for reservations in the Constitution is to put the principle of equal status lo work. So far the case of inadequate repre- sentation of a backward class in State services is concerned, the problem G is not susccptibly to be solved in one stroke: and consequently the relevant provisions are kept flexible permitting wider discretion so as lo attain the goal of adequate proportionate representation. The situation in respect to representation in the legislature is entirely different. As soon as an election takes place in accordance svith the provisions for pre :1~rtionate repre- H sentation, the objective is achieved immediately, b,·-a ,,. there is no prob-

'y. R.C. POlJDYAL i: U.0.1. [SHARMA, Cl.J 953

' lem of backlog to be tackled. On the earlier legislature disappearing, paving the way for new election, the people gei a clean slate before them. ')'.' The excessive reservation in this situation will bring in an imbalance--0f course of another kind-but defeating the cause of equal status all the same. The pendulam 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. I hold that 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 Con- stitution and, therefore, void. c

49Copy pinpoint49. The views expressed above are adequate for the disposal of the present cases, but it may be expedient to examine the matter from one more angle before concluding the judgment. It was very strongly contended ~ by the learned advocates for the respondents that the impugned provisions D should be upheld and the writ petitions dismissed by reason of the histori- cal background of Sikkim. It was repeatedly emphasised that in 'iew of the 5th term of the Tripartite Agreement and in view of the fact that the Sangha seat was created by Chogyal as far back as in 1958, the arrange- ments agreed upon by the parties are not liable to be disturbed. Reference was made to the several Proclamations of Chogyal by the counsel for the E ~ different respondents and intervenors one after the other. In my view the

-- impact of the historical background on the interpretation of the situation is to the contrary. During the period, referred to, the fight between the despotic Chogyal trying to retain his authority and the people demanding installation of a democratic rule was going on. No importance can, there- F fore, be attached to the terms included in the Agreement at the instance -<_ of the ruler or to his Proclamations. On the other hand, what is relevant lo be considered is the demand of the people which ultimately succeeded . If we proceed lo interpret the situation by respecting and giving effect to the acts and omissions of Chogyal in his desperate attempt to cling tc '· power and subvert to the democratic process set in motion by the people, G we may have to re-write the history and deprive the people of Sikkim of ,J.~ what they were able to wrest from his clutches from time to time ultimately ending with the merger. The reservation of the Sangha seat was also one of such anti-people acts. So far the Note to the Proclamation of 16 May, 1968 is concerned if it has to be enforced, the Nepalis shall also be entitled H

954 SUPREME COURT REPORTS (1993) 1 S.C.R. )!

A to reservation of equal number of seats as the Bhutia-Lcpchas and same i number of seats should be earmarked for nomination by the authority in power. Actually Mr. Bhatt appearing for some of the respondents seriously y' • pressed before us the claim of Nepalis for reservation in their favour. This ' entire line of thought is wholly misconceived. We can not ignore the fact that as soon as the Assembly vested with effective authority was constituted < B it proceeded to undo what is being relied upon before us on behalf of the lli respondents. When they passed the historic resolution dated April 10, 1975, discussed earlier in detail, the 5th terms of the Agreement was given up, and when the people were invited to express. their opinion by holding a )- plebiscite, they gave their verdict, unburdened by any such condition, by a c near unanimous voice. I presume that this was so because it was known that the in-built safeguards of the Indian Constitution were adequate for taking care of; this aspect. This is a complete answer to such an argument. --= The history, so far it may be relevant, condemn• in no uncertain terms the 7J excessive reservation in favour of the Bhutia-Lepchas and the Sangha. The t Thirty-Sixth Amendment in the Constitution has to be understood in this 1' D light.

50Copy pinpoint50. My conclusion, therefore, is that the impugned provisions arc ultra vires the Constitution including Article 371F (f}. Consequently the present Sikkim Assembly constituted on the basis of the election, held E under the impugned provisions has to be declared illegally constituted. )-- Therefore, the concerned authorities must take fresh and immediate steps under the law consistent with the Constitution as applied to the rest of the

F country. The writ petitions are accordingly allowed with costs payable to the writ petitioners. - .::.~:

51Copy pinpoint51. Before fmally closing, I would like to say a few words in the light J.'o f--- ")--- of the opinion of my learned Brothers as expressed in the majority judg- ment disagreeing with my conclusions. In view of this judgment all the petitions have now to be dismissed, but I want to emphasize that what has been held therein is that the Parliament has not exceeded its Constituent /

and Legislative Powers in enacting the impugned provisions and conse- 1" quently the writ petitions have to be dismissed. This does not mean that ~ the Parliament is ·bound to give. effect to the discriminatory provisions by reason of the historical background in which Sikkim joined India. It is within the 'wisdom' (to borrow the expression from paragraph 30 of the

R.C. l'OUDYAL v. ;U.0.1. [SHARMA, CJ.] 955

majority judgment) of the Parliament to take a decision on the issue and A ~ as hinted in the same paragraph, the present situtation hopefully may be a · transitory passing phase. The provisions in clause (f) of Article 371F have heen, in paragraph 31 of the judgment, described as 'enabling', that is, not obligatory. It, therefore, follows that although this Court has not jurisdic- tion to strike down the impugned provisions, it is perfectly within the B domain of the Parliament to undo, what I prefer to call, 'the wrong'. 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. The reservation of a seat for -the Sanghas and creation of a separate electorate have a still greater pernicious portent. Religion, as it c has come to be understood, does not mix well \vith governance; the resultant explosive compound of such an illsuited combination has proved to he lethal for the unity of the nation only a few decades ago leading to '("·the partition. The framing of our Constitution was taken up immediately · thereafter. Our country has suffered for a thousand years on account of D Lhis dangerous phenomenon resulting in large scale internecine struggles and frequent blood spilling. 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 in the Constitution for handicapped classes but this has been done only to off-set the disadvantage the classes suffer from, a~d not for bringing another kind of imbalance by making virtue out of minority status. The Constitution, thcrdorc, 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 lcgislalurcs and excluding r\.:!ligion as the basis of discrimination. To ignore these lin1ilations is to encourage small groups '1n<l classes - \vhich are in good nun1hcr in our country 0n one basis or the other - to stick to an<l rely on their special status as n1e1nhers of separate groups and classes and not to join th.c mainstream of the nation and be ).__ identified as Indians. It is, therefore, absolutely essential that religion, disguised by any mask and concealed \vithin any cloak must be kept out of j the field exclusively reserved for the exercise of the State powers. To my H

956 SUPREME COURT REPORTS [1993] 1 S.C.R.

A mind the message has been always clear and loud and now it remains for the nation to pay heed to and act through its elected reprcsentafr;es.

VENKATACHALIAH, J. These petitions under Article 226 of the Constitution of India --- which where originally filed in the High Court of Sikkim and now withdrawn by and transferred to this Court under Article B 139-A ---raise certain interesting and significant issues of the constitutional limitations on the power of Parliament as to the nature of the· terms and conditions that it could impose under Article 2 of the Constitution for the admission of the new States into the Union of India. These issues arise in 'r the context of the admission of Sikkim into the Indian Union under the c Constitution (36th Amendment) Act, 1975 as the 22nd State in the First Schedule of the Constitution of India.

2. Earlier, in pursu_ance of the resolution of the Sikkim Assembly - passed by virtue of its powers under the Government of Sikkim Act, 1974, D expressing its desire to be associated with the political and economic ")' institutions of India and for the representation of the people of Sikkim in India's Parliamentary system, the Constitution [35th Amendment] Act, 1974 had come to be passed inserting Article 2A which gave the State of Sikkim the status of an 'Associate State'; but later Sikkim became, as aforesaid, an integral part of the Indian Union as a full-fledged State in E the Union by virtue of the Constitution (36th Amendment) Act, 1975, ~- which, however, provided for special provisions in Article 371-F to accom- modatc certain historical incident_s of the evolution of the political institu- lions of Sikkim. It is the contitutionality of the incidents of this special status, particularly in the matter of reservation of seats for various ethnic - F and relgious gourps in the Legislative Assembly of the State that have been assailed as "unconstitutional" in these petitions. >--

3. Sikkim is a mountain-State in the North-East of India of an area ~

of about 7200 sq. km. on the Eastern Himlayas. It has a population of about · four lakhs. Sikkim is of strategic location bounded, as it is, on the West by G Nepal, on the North by Tibet, on the East by Bhutan and on the Southern and Western sides by the State of West Bengal in the Indian Union. It lies astride the shortest route from India to Tibet. The State is entirely moun- ~ tainous. Covered with dense forests, it lies in the Northern-most Areas in Lachen and Lachung. Mountains rise to 7000 m and above Kanchenjunga H (8,579 m) being World's Third Highest Peak. Sikkim has several hundred

\ R.C. POUDYAL v. U.0.l. [VENKATACHALIAH, J.] 957

varieties of orchids and is frequently referred to as 'botanist's paradise'. A ("India 1991" page 930). y

4. To the historian, Sikkim's history, lore, culture and traditions are a fascinating study. The early history of this mountainous land is lost in the mists of time. But it is said that in 1642, Phuntsog Namgyal became the B first Chogyal, the spiritual and temporal Ruler in the Namgyal dynasty which ruled Sikkim till it joined the mainstream of Indian polity in 1975.

-< The main inhabitants of Sikkim are. the Lepchas, the Bhutias and the later immigrants from Nepal. The Lepchas were the original indigenous inhabitants. The Bhutias are said to have come frotn Kham in Tibet during c - the 15th and 16th centuries. These people of Tibetan origin are called Bhutias -- said to be a derivative from the word "Bod" or "Tibet" -- and as the tradition has it took refuge in the country after the schism in Tibet in 15th and 16th centuries. One of their Chieftains was crowned the 'Chogyal' of Sikkim -r in 1642. It would appear that Sikkim was originally quite an extensive country but is stated to have lost large chunks of its territories to Nepal and Bhutan D and finally to the British. Lepchas and Bhutias are Buddhists by religion.

Sikkim was a British protectorate till 1947 when the British paramountancy lapsed whereafter under a Treaty of the 3rd December, E 1950 with India, Sikkim continued as a protectorate of India. Over the past ~ century, there was large migration into Sikkim of people of Nepalese origin. The influx was such that in the course of time, Sikkimese of Nepalese origin

- constituted almost 2/3rd of Sikkim's population. There has been, accord- ingly, a clamour for protection of the original Bhutias-Lepchas now an ethnic majority from the political voice and expression being sub-merged by the later immigrants from Nepal. -<.

5. These ethnic and demographic diversities of the Sikkimese people; apprehensions of ethnic dimensions owing to the segmental pluralism of the Sikkimese society and the imbalances of opportunities for political expression are the basis of -- and the claimed justification for -- the insertion of Article 371-F. The phenomenon of deep fragmentation, socic- ,...._ tal cleavages of pluralist societies and recognition of these realities in the evolution of pragmatic adjustments consistent with basic principles of democracy are the recurrent issues in political organisation. H

958 SUPREME COURT REPORTS [1993J 1 S.C.R.

A In his "Democracy in Plural Societies", Arend Lijphart makes some significant observations at Page 16. :

"A great many of the developing countrics--particularly those in Asia and Africa, but also some South American countries, such as puyana, Surinam, and Trinidad--are B beset by political problems arising from the deep divisions between segments cif their populations and the absence of a unifying consensus. The theoretical literature on political development, nation-building, and democratization in the new states t reals this fact in a curiously ambivalent fashion. c On the one hand, many writers implicitly refuse lo acknow- ledge its importance.

"Such communal attachments are what Cliffor Geertz calls "primordial'' loyalties, which may be based on language, D religion, custom, region, race, or assumed hlood ties. The subcultures of the European consociational democracies, which are religious and ideological in nature and on which, ~n two of the countries, linguistic divisions are superim- posed, may also be regarded as primordial groups-if one is willing to view ideology as a kind of religion." E "At the same time, it is imperative to be alert to qualitative and quantitative differences within the broad category of

F plural societies: diffcrene~s between different kinds of segmental cleavages and differences in the degree to which a society is plural. - The second prominent characteristic of non-Western politics is the hrcakdown of democracy. After the initial opliit1ism concerning the democratic prospects of the newly independent countries, based largely on the G democratic aspirations voiced by their political lca<lcrs: a mood of disillusionment has set in. And, according to many observers, there is a direct connection bct\vecn the two fundamental features of non-Western politics: a plural society is incapable of sustaining a den1ocralic govcrn- H ment.n

R.C. POUDYAL v. U.0.1. [VENKATACHALIAH, J.] 959

Pluralist societies are the result of irreversible movements of history. A They cannot be washed away. The political genius of a people should be able to evolve within the democratic system, adjustments and solutions.

6. Pursuant to Article 371-F and the corresponding conseqential changes brought about in the Representation of the People Act, 1950, B Representation of the People Act, 1951, as amended by the Election Laws (Extension to Sikkim) Act, 1976 and the Representation of the People . (Amendment) Act, 1980,r 12 out of the 32 seats in the Sikkim Assembly arc reserved for the Sikkim.!se of "Bhutia-Lepcha" origin and one seat for the "Sangha", Buddhist Lamaic monasteries the election to which latter being on the basis of a separate Electoral roll in which only the "Sanghas" c - belonging to the Lamaic monasteries recognis~d for the purposes of elec- tions held in Sikkim in April, 1974, are entitled to be registered.

These reservations of seats for the ethnic and religious groups are assailed by the petitioners who are Sikkimese of Nepali origin as violative D of the fundamentals of the Indian constitutionalism and as violative of the principles of republicanism and secularism forming the bedcrock of the Indian constitutional ethos. The basic contention is that Sikkim citizen is as much as citizen of the Union of India entitled to all the Constitutional guarantees and the blessings of a Republican Democracy. E ·-1.

7. It is necessary here to advert to the movement for the estab- lishment of a responsible Government in Sikkim and of the evolution of its

- political institutions.

By a Royal Proclamation of 28th December, 1952, State Council was F set-up in which out of the 12 elected members, 6 were to be Bhutias-Lep- chas and the other 6 Sikkimese of Nepalese origin. Sikkim was divided into four constituencies with the following break-down of the distribution of seats between Bhutias-Lepchas and the Nepalis :

(i) Gangtok Constituency 2 Bhutia-Lepcha 1 Nepali G

(ii) North-Central Constituency 2 Bhutia -Lepcha 1 Nepali A (iii) Namchi Constituency 1 Bhutia -Lepcha 2 Nepalis

(iv) Pemayangtse Constituency 1 Bhutia-Lepcha 2 Nepalis H

960 SUPREME COURT REPORTS (1993] 1 S.C.R.

A By "the State Council and Executive Council Proclamation, 1953" dated 23rd March, 1953, a State Council of 18 members consisting of 12 y elected members, 5 nominated members and a President to be nominated by the Maharaja was constituted. Out of the 12 elected members, again 6 were to be Bhutias-Lcpchas and the other 6 of Nepalese origin. Clauses 1, 2 and 3 of ihe Proclamation read : B "L This Proclamation may be cited as the State Council and Executive Council Proclamation, 19~3, and shall come into operation immediately on its publica\ion in the Sikkim Government Gazette. c

2. There shall be constituted a State Council for the State of Sikkim. -

3. The State Council shall consist of :-

D (a) A president who shall be nominated and appointed by the Maharaja;

(b) Twelve elected members, of whom six shall be either Sikkim Bhutia, or Lepcha and the remaining six shall be Sikkim Nepalese; and, E (c) Five members nominated by His Highness the Maharaja in his discrction.

In 1958, the strength of the council was increased to 20. The break · up of the its composition was as under : F (1) Seats reserved for Bhutia & Lepchas - 6

(2) Seats reserved for Nepalis - 6

(3) General scat -1 G (4) Seat reserved for the Sangha -1

(5) Nomination by His Highness -6

By the "Representation of Sikkim Subjects Regulation, 1966" dated H 21.12.1966 promulgated by the then Chogyal, the State Council was to

R.C. POUDYAL v. U.0.1. [VENKATACHALIAH, J.j 961

consist of territorial constituencies as under : A y 1. Bhutia-Lepchas - 7

2. Sikkimese Nepalese - 7

3. The Sanghas - 1

4. Scheduled Caste - 1

5. Tsang - 1 B

6. General seat - 1

7. Nominated by the Chogyal - 6

Total = 24 c - 8. The year 1973 saw the culmination of a series of successive political movements in Sikkim towards a Government responsible to the people. On 8th May, 1973, a tripartite agreement was executed amongst the Ruler of Sikkim, the Foreign Secretary to the Government of India and the political parties representing the people of Sikkkim which gave expansion to the D increassing popular pressure for self-Government and democratic institu- tions in Sikkim. This tripartite agreement envisaged the right of poeple of Sikkim to elections on the basis of adult suffrage. It also contemplated the setting up of a Legislative Assembly in Sikkim to be re-constituted by election every four years. The agreement declared a commitment to free and fair elections to be overseen by a represenatative of the Election E Commission of India. Clause 5 of the Tripartite agreement said :

- "(5) 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 composi- F tion of the Assembly and of the Executive Council shall be such as may he prescribed fron1 time to Lime, 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 Blmtia Lepcha origin and of the Sikkimese Nepali, which G includes Tsang and Scheduled Caste origin, are fully protected."

This agreement was effectuated by a Royal Proclamation called the Representation of Sikkim Subjects Act, 1974. The reservations of seats H

962 SUPREME COURT REPORTS [1993] 1 S.C.R.

A under this dispensation were as under :

"3. The Assembly shall consist of thirty-two elected mem- bers. A(i) Sixteen Constituencies shall be reserved for Sikkimese of Bhutia Lepcha origin. B A(ii) Out of these sixteen constituencies, one shall be reserved for the Sangha.

B(i) The remaining sixteen constituencies shall be reserved for Sikkimese of Nepali, including Tsong and Scneduled c - Caste, origin.

B(ii) Out of the above-mentioned sixteen constituencies of · reserved for Sikkimese of Nepali origin, one constituency shall be reserved for persons belonging to the Scheduled D Castes notified in the Second Schedule annexed hereto."

9. The Sikkim Assembly so elected and constituted, passed the Government of Sikkim Act, 1974 "for the progressive realisation of a fully responsible Government in Sikkim and for further strengthening close ties with India". Para 5 of the Tripartite agreement dated 8.5.1973 was incor- E porated in Section 7 of the said Act.

Sections 30 and 33 of the said Act further provided :

"30. For the speedy development of Sikkim in the social, economic and political field, the Government of Sikkim - F may--

(a) request the Govornment of India to include the planned development of Sikkim v.1thin the ambit to the Planning Commission of India while that Commission is preparing plans for the economic and social development of India and to appropriately associate officials from Sik- kim in such \vork;

(b) request the Government of India to provide facilities for students from Sikkim in institutions for higher learning and for the employment of people from Sikkim in the public

R.C. POUDYAL i: U.0.1. [VENKATACHALIAH, J.j 963

services of India (including All - India Services), at par with those available to citizens of India; y (c) seek participation and representation for the people of Sikkim in the political institutions of India."

"33. The Assembly whcih the has been formed as a result of the elections held in Sikkim in April, 1974, shall be deemed to be the first Assembly duly constituted under this Act, and shall be entitled to exercise the powers and perform the functions conferred on the Assembly by this Act." c - 10. Article 2A of the Constitution introduced by the Constitution (35th Amendment) Act, 1974 was the Indian reciprocation of the aspira- tions of the Sikkimese people and Sikkim was given the status of ati "Associate State" with the Union of India under terms and conditions set out in the 10th Schedule inserted in the Constitution by the said Constitu- D tion (35th Amendment) Act, 1974.

11. The year 1975 witnessed an uprising and dissatisfaction of the people against the Chogyal. The Sikkim Assembly, by an unanimous resolu- tion, abolished the institution of "Chogyal" and declared that Sikkim shall E thenceforth be "a constituent unit of India enjoying a democratic and fully rl'sponsible (il1\·crnn1ent''. The resolution also envisagc<l an opinion-poll on

- the matter. Its resolution was endorsed by the people of Sikkim in the opinion-poll conducted on 14.4.1975. The Constitution (36th Amendment) Act, 1975 came to be passed gi,fog statehood to Sikkim in the Indian polity. F Article 2A was repealed. Article 371-F introduced by the. 36th Constitu- tional Amendment, envisaged certain special conditions for the admission of Sikkim as a new State in the Union of India. Certain legislative measures for amendments to the Electoral Laws considered necessary to meet the special situation of Sikkim, were also brought into force. Clause (f) of Article 371F reads : G

"(f) Parliament may, for the purpose of protecting the rights and interests of the different sections of the population of Sikkim, make pro\1sion for the numbef of seats in the Legislative Assembly of the State of Sikkim which may be H

964 SUPREME COURT REPORTS (1993) 1 S.C.R.

A filled by candidates belonging to such secuons and for the delimitation of the assembly constituencies from which candidates belonging to such sections alone may stand for election to the Legislative Assembly of the State of Sikkim.'

The Election Laws (Extension to Sikkim) Act, 1976 sought to extend, B with certain special provisions, the Representation of the People Act, 1950 and the Representation of the People Act, 1951 to Sikkim.

Section 25A of the said Act provides :

''25-A. Conditions of registration as elector in Sangha Con- c stituency in Sikkim - Notwithstanding anything contained in sections 15 and 29, for the Sangha Constituency in the State of Sikkim, only the Sanghas belonging to monasteries, - recognised for the purpose of the elections held in Sikkim in April, 1974, for forming the Assembly for Sikkim, shall D be entitled to be registered in the electoral roll, and the said electoral roll shall, subject to the provisions of sections 21 to 25, be prepared or revised in such manner as may be directed by the Election Commission, in consultation with the Government of Sikkim."

E By the "Representation of the People (Amendment) Ordinance, 1979" promulgated by the President of India on 11.9.1979, amendments

- were introduced to the Representation of the People Act, 1950 and the Representation of the People Act, 1951 to enable fresh elections to the ' Sikkim Assembly on certain basis considered appropriate to and in con- F formity with the historical evolution of the Sikkim's political institutions. The Ordinance was later replaced by Representation of the People. (Amendment) Act, 1980 by which sub-section (1-A) was inserted in Section 7 of the Representation of the People Act, 1950. That sub-section provides:

"(1-A). Notwithstanding anything contained in sub-s. (1), G the total number of seats in the Legislative Assembly of the State of Sikkim, to be constituted at anytime after the commencement of the Representation of the People (Amendment) Act 1980 to be filled by persons chosen by direct election from assembly constituencies shall be thir- H ty-two, of which -

R.C. POUDYAL v. U.0.1. [VENKATACHALIAH, J.] 965

(a) twelve seats shall be reserved for Sikkimese of Bhutia- A y Lepcha origin;

(b) two seats shall be reserved for the Scheduled Caste of that State; and

(c) one seat shall be reserved for the Sangh as referred to B in Section 25-A.

Explanation : In this sub-s. 'Bhutia' includes Chumbipa, Dopthapa, Dukpa, Kagatey, Sherps, Tibetan, Tromopa and Yolmo. 11 c - Section 5-A was also introduced in the Representation of the People Act, 1951. Sub-section (2) of Section 5A provides :

"5A (2) Notwithstanding anything contained in Section 5, '7( a person shall not be qualified to be chosen to fill a seat in D the Legislative Assembly of the State of Sikkim, to be constitued at any time after the commencement of the Representation of the People (Amendment) Act, 1980 unless -

--{ (a) in the case of a seat reserved for Sikkimese of Bhutia- E Lepcha origin, he is a person either of Bhutia or Lepcha origin and is an elector for any assc1nbly conslitu1:ncy in - the State other than the constituency reserved for the Sanghas'

(b) in the case of a seat reserved for the Scheduled Castes, F he is a member of any of those castes in the State of Sikkim and is an elector for any assembly constituency in the State;

(c) in the case of a seat reserved for Sanghas, he is an elector of the Sangha constituency; and G (d) in the case of any other seat, he is an elector for any ...J... assembly constituency in the State."

12. Petitioners assail the constitutionality of the provisions for reser- vation of seats in favour of Bhutias-Lepchas and the "Sangha". H

966 SUPREME COURT REPORTS [1993] l S.C.R.

A On the contentions urged in support of the petitions, the points that fall for consideration, are the following :

(a) Whether the questions raised in the petitions pertaining as they do to the terms and conditions of accession of new territory are governed by rules of public international law B and are non-justiciable on the "political questions doctrine'i'?

(h) Whether clause (!) of Article 371 F of the Constitution of India, introduced by the Constitution (36th Amend- c ment) Act, 1975 is violative of the basic features of democracy?

(c) Whether Seeton 7(1A) and Section 25A of the Repre- sentation·of the People Act, 1950 [as inserted by Election Laws (Extension to Sikkim) Act, 1976) and Representation D of the People (Amendment) Act, 1980 respectively and Section 5A(2) of the Representation of the People Act, 1951 [as inserted by the Representation of the People (Amendment) Act, 1980) providing for reservation of 12 seats, out of 32 seats in the Sikkim Legislative Assembly in favour of Bhutias-Lepachas, are unconstitutional as viola- E tive of the basic features of democracy and republicanism under the Indian Constitution?

( d) Whether the aforesaid provisions and the reservations made thereunder are violative of Article 14, 170(2) and 332 - F .of the Constitution? Whether they violate 'one person one vote' rule? Or are these differences justified in the histori- cal background of Sikkim and are incidental to the-political events culminating in the cession of Sikkim?

(e) Whether the reservatio11 of 12 seats out of 32 seats reserved for Bhutias-Lcpchas is ultra vires of clause (l) of Article 371-F in that while that provision enabled the protection of the rights and interests of different· sections of population of Sikkim and for the number of seats in the Legislative Assembly which mav he filled by the candidates belonging to such sections, the in1rugned provisions pro-

R.C. POUDYAL v. U.0.1. (VENKATACHALIAH, J.] 967

vide for one section alone, namely, the Bhutias-Lepchas. A (t) Whether, at all events in view of the Constitution (Sik- kim) Scheduled Tribes Order, 1978 declaring Bhutias and Lepchas as a Schedule Tribe, the extent of reservation of seats is disproportionate and violative of Article 332(3) of the Constitution which requires that the number of seats B to be reserved shall bear as nearly as may be, the same proportion to tbe total number of the seats in the Assembly as the population of the Secheduled Tribe in the State bears to the total population of the State. c (g) Whether the reservation of one seat for Sangha to be elected by an Electoral College of Lamaie monasteries is based purely on religious distinctions and is, therefore, unconstitutional as violative of Articles l'S(l) and 325 of the Constitution and as violative of the principle of ~ecularism? D

Re : Contention (a)

13. The territory of Sikkim was admitted into the· Indian Union by an act of voluntary cession by the general consent of its inhabitants ex- E pressed on a Referendum. Referring to the acquisition of title to territory by cession, a learned author says :

"(!)Title by Cession- Title to territory may also be acquired by an act of cession, which means, the transfer of sovereignty over State territory by the owner (ceding) State F to the acquiring State. It rests on the principle that the right of transferring its territory is a fundamental attribute of the sovereignty of a State."

"Plebiscite - The method of plebiscite in certain cases was adopted by the Treaties of Peace after the First World War, G and it had the buyanl blessing of President Wilson who told the Congress: "No peace can last or ought to last, which does not recognise and accept the principle that govern- ment drive all their just powers from the consent of the governed, and that no right anywhere exists to hand peoples H

968 SUPREME COURT REPORTS [1993] l S.C.R.

A about from sovereignty as if they were property." Article 26 of the Constitution of France (1946) provides that no new territory shall be added to France without a plebiscite.

In certain cases, cession may be made conditional upon the result of a plebiscite, which is held to give effect to the B principle of self-determination. In other words, no cession shall be valid until the inhabitants have given their consent to it by a plebiscite. It is often only a technicality, as in Outer Mongolia, in 1945, and in South-West Africa, in

1946. As Oppenheim observes, it is doubtful whether the c law of nations will ever make it a condition of every cession that it must be ratified by a plebiscite."

[See : Substance of Public International Law Western and Eastern: A.K. Pavithran First Edition, 1965 at pp. 281-2]

D Sri Parasaran urged that the rights of the inhabitants of a territory becoming part of India depend on the terms subject to which the territory is admitted and Article 2 confers wide powers on the Parliament. Sri Parasaran urged that the considerations that guide the matter are eminently political and are outside the area of justiciability. Sri Parasaran said that the in- habitants of a territory can claim and assert only those rights that the suc- E ceeding sovereign expressly confers on them. Sri Parasaran relied upon the following observations of Chief Justice Chandrachud in VinodKumar Shan- ti/al Gosalia v. Gangadhar Narsingdas Agarwal & Ors., [1982] 1 SCR 392:

"Before considering t\te merits of the respective conten- F tions bearing on the effect of the provisions of the Ad- ministration Act and the Regulation, it is necessary to reiterate a well-settled legal position that when a new territory is acquired in any manner -- be it by consent, annexation or cession following upon a treaty -- the new "sovereign" is not bound by the rights which the residents of the conquered territory had against their sovereign or by the obligations of the old sovereign towards his subjects. The rights of the residents of a territory against their state of sovereign come to an end with the conquest, annexation or cession of that territory and do not pass on to the new environment. The inhabitants of the acquired territory

R.C. POUDYAL v. U.0.!. [VENKATACHALIAH, J.] 969

bring with them no rights whcih they can enforce against the new State of which they become inhabitants. The new state is not required, by any positive assertion or declara- tion, to repudiate its obligations by disowning such rights. The new state may recongnise the old rights by re-granting them which, in the majority of cases, would be a matter of contract or of executive action; or, alternatively, the recongnition of old rights may be made by an appropriate statutory provisions whereby rights which were in force immediately before an apvointed date are saved. Whether the new state has accepted new obligations by recognising old rights, is a question of fact depending upon whether c one or the other course has been adopted by it. And, whether it is alleged that old rights are saved by a statutory provision, it becomes necessary to determine the kind of rights which are saved and the extend to which they are 11 saved. D But, we are afraid these observations are inapposite in the present context as the situation .is different here. What the argument overlooks is that the petitioners are not seeking to enforce such rights as vested in them prior to the accession. What they seek to assert and enforce, are the rights which the Indian Constitution confers on them upon the accession of their E territory into the Indian Union and as arising from the conferment on them of Indian citizenship. In the present cases the question of recognition and enforcement of the rights which the petitioners, as residents of the ceded territory had against their own sovereign or by the obligations of the old sovereign its people, do not arise. F

The principal questions are whether there are any constitutional limitations on the power of Parliament in the matter of prescription of the terms and conditions for admission of a new State into the Union of India; and if so, what these limitations are. G

14. Articles 2 and 4 of the Constitution provide :

"2. Parliament may by law admit into the Union, or estab- lish, ne\v States on such tern1s and conditions as it thinks fit." H

970 SUPREME COURT REPORTS [1993] 1 S.C.R.

A "4. (1) Any law referred tu in article 2 or article 3 shall contain such provisions for the amendment of the First Schedule and the Fourth Schedule as may be necessary to give effect to the provisions of the law and may also contain such supplemental, incidental and consequential provisions (including provisions as to representation in B Parliament and in the Legislature or Legislatures of the State or States affected by such law) as Parliament may deem necessary.

(2) No such law as aforesaid shall be deemed to be an c amendment of this Constitution for the purpose of article 368.

Can the Parliament in imposing terms and conditions in exercise of power under Article 2 stipulate and impose conditions inconsistent with the basic and fundamental principles of Indian Constitutionalism? Or is it ~ imperative that the newly admitted State should be treated exactly similar to the States as at the time of the commencement of the Constitution? If not, what is the extent of the permissible departure and latitude and do the conditions in clause (f) of Article 371-F and as expressed in the electoral laws as applicable to Sikkim go beyond these constitutionally permissible limits? These are some of the questions.

15. The learned Attorney-General for the Union of India and Sri Parasaran sought to contend that the terms and conditions of admission of a new territory into the Union of India are eminently political questions which the Court should decline to decide as these questions lack adjudica- tive disposition. This political thickets doctrine as a restraint on judicial power has been the subject of forensic debate, at once intense and inter- J>- esting, and has evoked considerable judicial responses.

16. In "The Constitution of the United States of America" (Analysis G and Interpretation; Congressional Research Service: Library of Congress 1982 Edn. at p.703), the following statement of the law on the subject occurs:

"It may be that there will be a case assuredly within the H Court's jurisdiction presented by the parties with standing

R.C. POUDYAL v. U.0.1. [VENKATACHALIAH, J.] 971

in which adverseness and ripeness will exist, a case in other A words presenting all the qualifications we have considered making it a justiciable controversy, which the Court will nontheless refuse to adjudicate. The "label" for such a case is that it presents a "political question".

Tracing the origins and development of this doctrine, the authors B ·• refer to the following observations of Chief Justice Marshall in Marbury v. Madison, 1 Cr. 5 US 137, ?70 (1803) :

''The province of the court is, solely, to decide on the rights of individuals, not IC\ inquire how the executive, or executive c - officers, perform duties in which they have a discretion. Questio11s in their 11atura/ politica~ or which are, by the constitution and laws, submitted to the executive ca11 11ever be made i11 this court.'

(emphasis supplied) D The authors further say : 11 But the doctrine was asserted even earlier as the Court in Ware v. Hylton, 3 Dall. 3 US 199 (1796) refused to pass on the question whether a treaty had been broken. And in E Martin v. Mott, 12 Wheat. 25 US 19 (1827) the Court held that the President acting under congressional authorization - had exclusive and unreviewable power to determine when the militia should be called out. But it was in Luther v. Borden, 7 How. 48 US 1 (1849) that the concept was first enunciated as a doctrine separate from considerations of interference with executive functions. 11

17. Prior to the decision of the Supreme Court of the United States in Baker v. Carr, 369 US 186 the cases challenging the distribution of political power through apportionment and districting, weighed-voting, and restrictions on politiciil action were held to present non-justiciable political questions. The basis of this doctrine was the "seeming conviction of the courts that the issues raised were well beyond the judicial responsibility". In Baker v. Carr, the Court undretook a major rationalisation and formula- tion of the 'political question doctrine' which led to considerable narrowing H

972 SUPREME COURT REPORTS [1993] 1 S.C.R.

A of its application. The effect Baker v. Carr., and the later decision in Poweel v. McConnack, 395 US 486 is that in the United States of America certain controversies previously immune from adjudication were held justiciable Y and decided on the merits. The rejection of the political thickets arguments in these cases marks a narro,ving of the operation of the doctrine in other B areas as well.

In Japan Whaling Ass'n v. American Cetacean Society, 478 [1986] US 221 the American Supreme Court said :

c "We address first the .Japanese petitioners' contention that the present actions arc unsuitable for judicial review be- cause they involve foreign relations and that a federal court, therefore, lacks the judicial power to command the Secretary of Con1merce, an Executive Branch official, to dishonor and repudiate an international agreement. Rely- ing on the political question doctrine, and quoting Baker v. Carr., 369 US 186, 217 7 L Ed. 2d 663, 82 S Ct. 691 (1969), the Japanese Petitioners argue that the danger of "embar- rassment from multifarious pronouncements by various departments on one question" bars any judicial resolution of the instant controversy." (Page 178)

"We disagree. Baker carefully pointed out that not every matter touching on politics is a political question, id., at F 209, 7 L Ed. 2d 663, 82 S.Ct. 691, and more specifically, that it is "error to suppose that every case of controversy which touches foreign relations lies beyond judicial cog- nizance." Id., at 211, 7 L Ed. 2d 663, 82 S Ct. 691. 171e political question doctrine excludes from judicial review those controversies tt:fzich revolve around policy choices and value detenninations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch. 17ie Judiciary is panicularly ill-suited to make such decisions, us "courts are fundamentally underequipped to fonnulate national policies or develop standards for matters not legal in nature." (P. 178)

R.C. POUDYAL v. U.O.I. [VENKATACHALIAH, J.] 973

''As Baker plainly held, however, the courts have the authority to constme treaties and executive agreenients, and it goes without saying that interpreting congressional legislation is a recuning and accepted task for the federal courts. It is also evident that the challenge to the Secretary's decision not to certify Japan for harvesting whales in excess of !WC B quotas presents a purely legal question of statutory inter- pretation. The Court must first determine the nature and scope of the duty imposed upon the secretary by the Amendments, a decision which calls for applying no more than the traditional rules of statutoty construction, and then applying this analysis to the particular set of facts presented c below. We arc cognizent of the interplay between these Amendments and the conduct of this Nation's foreign relations, and we recognize the premier role which both Congress and the Executive play in this field. But under the Constitution, one of the Judiciary's characteristic roles is to D interpret Statutes, and we cannot shirk this responsibility merely because our decision may have significant political overtones." (PP. 178-9)

(emphasis supplied) E

18. Our Court has received and viewed this doctrine with a cautious reservation. lnA.K Roy v. Union of India, [1982] 2 SCR 272 at 296-7, Chief Justice Chandrachud recognised that the doctrine, which was essentially a function of the separation of powers in Ameri<;a, was to be adopted cautiously and said : F

"It must also be mentioned that in the United States itself, the doctrine of the political question has come under a cloud and has been the subject matter of adverse criticism. It is said that all that the doctrine really means is that in the exercise of the power of judicial review, the courts must G adopt a 'prudential' attitude, which requires that they should be wary of deciding upon the merit of any issue in which claims of principle as to the issue and claims of expediency as to the power and prestige of courts are in sharp conflict. The result, more or less, is that in America If ,

974 SUPREME COURT REPORTS [1993) l S.C.R.

A the phrase "political question' has become "a little more than a play of words". y There is further recognition of the limitation of this doctrine in the pronouncement of this Court in Madhav Rao v. Union of India, [1971) 3 SCR 9 and State of Rajasthan v. Union of India, [1978) 1 SCR 1. B

19. It is urged for the respondents that Article 2 of the Constitution empowers the Parliament, by law, to admit into the Union new States "on ) such terms and conditions as it finds fit" and that these considerations involve complex questions of political policy and expdience; of internation- C al-relations; of security and defence of the realm etc. whcih do not possess and present judicially manageable standards. Judicial response to these questions, it is urged, is judicial restraint.

The validity of clause (f) of Article 371 F introduced by the Constitu- D tion (36th Amendment) Act, 1975 is assailed on the ground that the said clause provides for a reservation which violates 'one person one vote' rule "" which is essential to democracy which latter is itself a basic feature of the Constitution. 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 E necessarily guided by political issues of considerable complexity many of which may not be judicially manageable. But for that reason, it cannot be t-- 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 incon- -- F sistent and irrecouciliable with the foundational principles of the Constitu- tion and cannot violate or subvert the Constitutional scheme. This is not ~ to say that the conditions subject to which a new State or territory is admitted into the Union ought exactly be the same as those that govern all other States as at the time of the commencement of the Constitution. G It is, however, urged that Article 371F starts with a non obstante clause and therefore the other provisions of the Constitution do not limit the power of impose conditions. But Article 371-F cannot transgress the basic features of the Constitution. The non obstante clause cannot be ·"' H construed as taking clause (f) of Article 371F outside the limitations on the

R.C. POUDYAL v. U.0.l. [VENKATACHALIAH, J.] 975

amending power itself. The provisions of c'.ause (f) of Article 371-F and A y Article 2 have to be construed harmoniously consistent with the founda- tional principles and basic features of the Constitution. Whether clause (f) has the effect of destroying a basic feature of the Constitution depends, in turn, on the question whether reservation of seats in the legislature based on ethnic group is itself destructive of democr2tic principle. Whatever the B merits of the contentions be, it cannot be said the issues raised are non-justiciable.

In Mangal Singh & Anr. v. Union of India, [1967] 2 SCR 109 at 112 this Court said : c - "... 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 D to the admission, establishment or formation of a State as contemplated by the Constitution, and is not power to override the constitutional scheme 11 •

Even if clause (f) of Article 371 Fis valid, if the terms and conditions ---{. stripulated in a law made under Article 2 read with clause (f) of Article E 371F go beyond the constitutionally permissible latitudes, that law can be

- questioned as to its validity. The contention that the vires of the provisions and effects of such a law are non-justiciable cannot be accepted.

Contention (a) requires to be and is rejected. F

~ Re : Colltentions (b ), (c) and (d)