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

20. The objection of non-justiciability thus out of their way, .he petitioners urge that the provisions in clause (f) of Article 371F enabling G reservation of seats for sections of the people and law made in exercise of that power providing reservation of seats to Bhutias-Lepchas violate fun- _.. __ damental principles of democracy and republicanism under the Indian Constitution and violate the 'one person one vote' rule which, it is urged, is a basic to the republican principle found in Article 170(2) of the Constitution. H

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

A Sri R.K. Jain, learned senior counsel for the petitioners said that apart from the invalidity of the power itself the exercise of the power in-(· the matter of the extent of the reservations made for Bhutias-Lepchas has the effect of whittling down, correspondingly, the value of the votes of the Sikkimese of Nepalese origin and is destructive of the equality principle B and the democratic principle. Clauses (1) and (2) of Article 170 provide:

"170. (1) Subject to the provisions of article 333, the Legis- lative Assembly of each State shall consist of not more than ). five hundred, and not less than sixty, members chosen by direct election from territorial constituencies in the State. c (2) For the purposees of clause (1), each State shall be divided into territorial constituencies in such manner that - the ratio between the population of each constituency and the number of seats allotted to it shall, so far as practicable be the same throughout the State. D Explanation. In this clause, the expression 11 population11 means the population as ascertained at the last preceding census of which the relevant figures have been published:"

This provision incorporates the rule of 'fair and effective repre- ,_. E sentation'. Though the rule 'one person one vote' is a broad principle of democracy, it is more a declaration of a political ideal than a mandate for enforcement with arithmetical accuracy. These are the usual problems that arise in the delimitation of constituencies. In what is called "First-past-the- post" system of elections, the variations in the size and in the voting F populations of different constituencies, detract from a strict achievement of this ideal. The system has the merit of preponderance of "decisiveness" ;>-· over "representativeness 11 •

Commenting on this phenomenon Keith Graham in "The Battle of G Democracy: Conflict, Consensus and the Individual" says :

nThis, in existing systems where voters are electing repre- sentatives, examples of gross inequality between the powers of different votes occur, either because of desparities in constituency size or because of the anomalies produced in H a first-past-the-post system. There was, for instance, an

R.C. POUDYAL v. U.0.1. [VENKATACHALIAH, J.] 977

occasion when one Californian State Senator represented A y six million electors and another one fourteen thousand electors (Portter 1981:114); in February, 1974 constituen- cies in England varied from 96,380 to 25,007 electors (Hansard Society Commission 1976:7); and in the United Kingdom between 1945 and 1976 nine out of ten of the elected governments acquired more than 50 per cent of B the seats, but none acquired 50 per cent of the votes cast (ibid.:9). When the United States Supreme Court asserted that it had jurisdiction in the matter of huge disparities in the value of citizens' votes . it did so, significantly, by referring to the Fourteenth Amendment, which guaran- c tees equal protection of the laws." (Page 55)

21. The concept of political equality underlying a democratic system is a political value. Perfect political equality is only ideological. Indeed, as Rodney Brazier points out in his "Constitutional Refonn: Re-shaping the D British Political System" :

"Inextricably linked in the voting system with unfairness is the supremacy of decisiveness over representativeness. The first-past-the-post system has developed into a mighty engine which can be relied on to produce a government from one of the two principal parties. But in that develop- ment the purpose of gathering a House of Commons which is broadly representative of the electorate has rather faded. This would be possibly not be as important as it is if the elective function worked on the basis of a majority of voters conferring a parliamentary majority on the win- nbg party. Patently, however, it does not do so. Mrs. Thatcher's 144-seat landslide majority in 1983, and her huge 102-seat majority in 1987, were achieved even though on both occasions some 57 per cent of votes were given to other parties. Almost 60 per of voting citizens voted against the Conservative Government. This is by no means a recent phenomenon. Attlee's 146-seat majority in 1945 was won on under 48 per cent of the vote, and indeed no winning party has been supported by half or more of those going to the polls since the general election of 1935. Are the H

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

A virtues of the British electoral system - simplicity, decisive- ness, its ability to produce stable governments, and so on - so self-evident as to justify such distortions of the electoral will? It is really necessary to have voting system predicated either on the representative function, or (as in Britain) on the elective function?" (Page 46) B Again, Brazier in "Constitutional Practice" (Clarendon Press Oxford) says:

"The first-past-the-post system usually has the advantage c of producing a majority government at a general election: it is decisive, simple, and familiar to the electorate. Yet it is also unfair. No one could say that a scheme which gives one political group three per cent of the seats from 22.6 per cent of the national vote, but which gives another party 36 per cent of the seats with a mere eight per cent more of the votes, does anything but violence to the concept of fair play as the British understand it. The present system a!So underpins elective dictatorship in a way that different elec- toral rules, which would return more MPs from third (and perhaps fourth) parties, would undermine. And we speak of 'majority governments' by refercnc1.' to seats won in the House, but no government has been returned with a majority of the popular vote since 1935." (Page 191)

Arend Lijphart in "'Democracy in Plural Societies" observes :

F "Formidable though the classic dangers are of a plurality of sovereign states, these have to be reckoned against those inherent in the attempt to contain disparate communities within the framework of a single government. In the field of peace research, there is a similar tendency to frown on peace which is achieved by separating the potential enemies-- significantly labeled "negative" peace--and to strive for peace based on fraternal feeling within a single integrated and just society: "positive" peace. (P. 47)

The problem of equality of the value of votes is further complicated by a progressive rural depopulation and increasing urbanisation. In the

R.C. POUDYAL v. U.0.1. [VENKATACHALIAH, J.] 979

work "Legislative Apportionment : Key to Power" (Howard D. Hamilton) A the learned author says :

"But even the right to vote, and its exercise does not in itself insure equal voice in the affairs of government.

Today--morc than 175 years after the nation was founded- B the votes of millions of citizens are worth only one-half, one quarter and even one-one hundredth the value of votes of others because of the unfair formulas by which we elect the Unites States Congress and the legislatures of the forty- cight states. As our population grows and moves con- c tinuously toward urban centres, the ballots of millions become less and less equal to the votes of others. Our system of representative government is being sapped at its roots.n

11 Who arc the second-class citizens in this under - repre- sented majority? They arc the millions living in our towns D and cities, says the United States Conference of Mayors, pointing to the fact that the 59 per cent of all Americans who were living in urban centers in 1947 elected only 25 percent of the state legislators." (Page 74) E Gordon E. Baker writing on 11 0ne Person, One Vote : 11 Fair and Effective Representation?" [Representation and Misrepresentation - Rand McNally & Co. Chicago] says:

"While population inequality among legislative districts is hardly new, its has become a major source of controversy primarily in the twentieth century."

"A statistical analysis of the New Jersey Senate by Professor Ernest C. Reock, Jr., revealed that "The average relative population deviation rose from 27.7. per cent in 1791 to 80.0 per cent in 1922. The ratio between the largest and smallest counties - only 7.85 at the beginning of that period - reached 33.51 at the end. The minimum percentage of the state's population residing in counties electing a majority of the Senate dropped from 41.0 per cent to 15.9 per cent." (PP. 72-3) H

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

A 22. Sri Jain, however, relied upon the decision in BA. Reynolds v. M.O. Sims, 377 US 506 at 527 in which it was observed : y "Undoubtedly, the right of suffrage is a fundamental matter in a free and democratic society. Especially since the right to exercise the franchise in a free and unimpaired manner B is preservative of other basic civil and political rights, any allege infringement of the right of citizens to vote must be carefully and meticulously scrutinized."

"Legislators represent people, not trees or acres. Legis- c lators are elected by voters, not farms or cities or economic interests. As long as ours is a representative form of govern- ment, and our legislatures are those instruments of govern- ment elected directly by and directly representative of the people, the right to elect legislators in a free and unim- paired fashion is a bedrock of our political system." D "And, if a State should provide that the votes of citizens in one part of the State should be given two times, or five times, or 10 times the weight of votes of citizens in another part of the State, it could hardly be contended that the right to vote of those residing in the disfavored areas had not been effectively diluted. It would appear exordinary to suggest that a State could be constitutionally permitted to enact a law providing that certain of the State:s voters could vote two, five or 10 times for their legislative repre- sentatives, while voters living elsewhere could vote only onc:e. 11

Even so, Chief Justice Warren observed:

"... We realize that it is a practical impossibility to arrange legislative districts so that each one has an identical number of residents, or citizens, or voters. Mathematical exactness or precision is hardly a workable constitutional require- ment." (p.536)

"... So long as the divergences from a strict population sta11d- H ard are based 011 legitimate considerations incident to the

R.C POUDYAL v. U.0.1. [VENKATACHALIAH, J.] 981

effectuation of a rational stale policy, some deviations from A y the equal-population principle are constitutional(y pennis- ' sible with respect lo the apportionment of seats in either or both of the two houses of a bicameral state legislature." (p.537)

(emphasis supplied) B

23. Section 24 of the Australian Constitution rcquires_that "the House of Representatives shall be composed of members directly chosen by the people of Commonwealth". The High Court of Australia considered the principle of Reynolds v. Sims, (supra) somewhat inapposite in the Australian C - context. Jn Allomey General (CTH) Ex.. Rel. Mckinlay v. The Common- wealth, [1975] 135 CLR 1 at p.22 Barwick CJ observed :

"lt is, therefore, my opinion that the second paragraph of s.24 cannot be read as containing any guarantee that there shall be a precise mathematical relationship between the D number of members chosen in a State and the population of that State or that every person in Australia or that every elector in Australia \vill have a vote, or an equal vote. 11

Mason, J. said : E "The substance of the matter is that the conception of

- equality in the value of a vote or equality as between electoral divisions is a comparatively modern development for which no stipulation was made in the system of democratic representative government provided for by our F Constitution." (p.62)

24. It is true that the right to vote is central to the right to participa- tion in the democratic process. However, there is less consensus amongst theorists on the propriety of judicial activism in the voting area. In India, the Delimitation Laws made under Article 327 of the Constitution of India, G are immune from the judicial test of their validity and the process of allotment of seats and constituencies not liable to be called in question in any court by virtue of Article 329(a) of the Constitution. But the laws providing reservations are made under authority of other provisions of the Constitution such as those in Art. 332 or clause (!) of Article 371F which H

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

A latter is a special provision for Sikkim.

25. The rationale and constitutionality of clause (I) and the other provisions of the electoral laws impugned in these petitions are sought to be justified by the respondents on grounds that first, a perfect arithmetical equality of value of votes is not a constitutionally mendated imperative of B democracy and, secondly, that even if the impugned provisions make a departure from the tolerance limits and the constituationally permissible latitudes, the discriminations arising are justifiable on the basis of the historical considerations peculiar to and characteristic of the evolution of Sikkim's· political institutions. This, it is urged, is the justification for the c special provisions in clause (I) which was specifically intended to meet the special situation. It is sought to be pointed out that throughout the period when the ideas of responsible-Government sprouted in Sikkim, there has - been a vigilant political endeavour to sustain that delicate balance between Bhutias-Lepchas on the one hand and the Sikkimese of Nepalese origin on the other essential to the social stability of that mountain-State. Clause (I) of Article 371F was intended to prevent the domination of the later Nepali immigrants who had, in course of time, outnumbered the original in- habitants. What Article 371-F(I) and the electoral laws in relation to Sikkim seek to provide, it is urged, is to maintain this balance in the peculiar historical setting of the development of Sikkim and its political institutions.

26. So far as the 'Sangha' is concerned it is urged that though it was essentially a religious institution of the Buddhists, it however occupied a unique position in the political, social and cultural life of the Sikkimese society and the one seat reserved for it cannot, therefore, be said to be based - F on considerations 'only' of religion. In the counter-affidavit filed by the Sikkim Tribal Welfare Association, certain special aspects of the position of the 'Sangha' in Sikkim's polity ar,e emphasised. Reference to and reliance has been placed on the extracts from "The Himalayan Gateway" (History and Culture of Sikkim) in which the following passages occur:

G "The reservation for the Sangha is the most unique feature of the political set up in the State. It is a concession to continuity and is admittedly short term. Before the revolu- tion the Buddhist Sangha of the Lamas wielded immense power, both religious and political. The people have come H to have great faith in their wisdom and justice. They are

y R:C. POUDYAL v. U.O.l. [VENKATACHALIAH, J.] 983

universally respected and still command considerable in- A fluencc with a section of the people who would be called v· poor and politically backward. The presence of onle of their representatives in the Assembly could possibly give the illiterate masses a greater faith in its delibera- tions."(P.149) B > "Finally lamaism is a social organisation. The lamas (to a lesser extent the nuns) are arranged in a disciplined hierar- -'( chy. They arc a section of society which performs for the whole society its religious functions; in return the rest of society should give material support to the lamas .... " (PP. c - 192- 193)

"It is calculated that about ten per cent of the combined Bhutia-Lepcha population arc monks. Could there be any- thing more telling for the spiritual heritage of the people. According to tradition the second son of every Bhutia D household is to be called to the Sangha - the order of Buddhist monks. No matter where one goes, one can come across a monastery called Gompa. For a. small state like Sikkim in which the Buddhist Bhutia - Lepcha population hardly exceed thirty thousands, there are more than thirty famous monasteries. In fact most of the prominent hilitops of th_e country are cro\vned with a monastery shrine or a

- temple. Apart from these at every village there is a Gornpa or a village monasto,ry with a resident lama looking after the spiritual needs of a small community. Frequently, Chor- ten, the lamaist version of the 01 iginal Buddhist stupa, arc also seen." (pp. 112-3) -'-._ "Life in the countryside centres round the monastery of the Buddhist monks, the lamas. Birth, death, sickness - all arc occasions for the lamas to he called in for the performance of appropriate ceremonies. Just putting up a prayer flag even nceJs the attendance of lamas."(p. 115) ;. Since the rulers \Vere also monk-incarnates constantly in transaction with the high Lamas of Tibet and the Deb- Raja of Bhutan, Lhese monks were used as emissaries, H

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

A medioators, and settlers of various state affairs. In internal administration also, the monks held important positions. They were appointed to the State Council, they managed the monastery estates, administered justice and even helped the laity in fighting against the enemies. Though economically dependent, they were very much influential both in the court and in public life. In fact, it was these ( clergymen who managed the affairs of the state in col- laboration with Kazis." (p. 18, 19)

27. As is noticed earlier Article 2 gives a wide latitude in the matter of prescription of terms and conditions >ubject to which a new territory is admitted. There is no constitutional imperative that those terms and con- ditions should ensure that the new State should, in all rcpects, be the same as the other States in the Indian Union. However, the terms and conditions - should not seek to establish a form or system of Government or political and governmental institutions alien to and fundamentally different from those the Constitution envisages.

Indeed, in "Constitutional Law of India", [Edited by Hidayatullah, J. published by the Bar Council of India Trust], it is observed : E "Foreign territories, which after acquisition, become a part of the territory of India under Article 1(3) (c) can be admitted into the Union of India by a law passed under Article 2. Such territory may be admitted into the Union of India or may be constituted into new States on such - F terms and conditions as Parliament may think fit. Such territory can also be dealt with under clause (a) or (b) of Article 3. 17zis n1eans that for adniitting into the Indian Union or establishing a ne1v State, a par/iantenta1y law is necessary and the new State so admitted or established G cannot clainz coniplete equality with other Indian States, because Parlianzenl has poiver to adntit or establish a nelv State "on such tenns and conditions as ii thinks fit". (Vol. I, Page 58)

H (Emphasis supplied]

R.C. POUDYAL v. U.0.1. [VENKATACHALIAH, J.] 985

28. Jn judicial review of the vires of the exercise of a constitutional power such as the one under Article 2, the significance and importance of Y the political components of the decision deemed fit by Parliament cannot be put out of consideration as long as the conditions do not violate the constitutional fundamentals. Jn the interpretation of constitutional docu- ment, "words are but the framework of concept and concepts may change more than words themselves". The significance of the change of the con- cepts themselves is vital and the constitutional issues arc not solved by a mere appeal to the meaning of the words without an acceptance of the line of their growth. It is aptly said that 'the intention of a Constitution is rather to outline principles than to engrave details'. c - Commenting on the approach appropriate to a Constitution, a learned author speaking of another federal document says (The Australian Law Journal, Vol. 43 at p.256) :

"A moment's reflection will show that a flexible approach D is almost imperative when it is sought to regulate the affairs of a nation by powers which are distributed, not always in the most logical fashion, among two or more classes of political agencies. The difficulties arising from this premise are much exacerbated by the way in which the Australian E Constitution came to be formed : drafted by many hands, then subjected to the hazards of political debate, where the achievement of unanimity is often bought at the price of - compromise, of bargaining and expediency."

29. An examination of the constitutional scheme would indicate that F the concept of 'one person one vote' is in its very nature considerably -..(_ tolerant of imbalances and departures from a very strict application and enforcement. The provision in the Constitution indicating proportionality of representation is necessarily a broad, general and logical principle but not intended to be expressed with arthmetical precision. Articles 332 (3A) G • and 333 are illustrative instances. The principle of mathematical propor- tionality of representation is not a declared basic requirement in each and -" - every part of the territory of India. Accommodations and adjustments, having regard to the politcal maturity, awareness and dcgrcss of political development in different parts of India, might supply the justification for H

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

' ~ A even non-elected Assemblies wholly or in part, in certain parts of the country. The differing degrees of political development and maturity of y various parts of the country, may not justify standards based on mathemati- " ·~ cal accuracy. Articles 371A, a special provisions in respect of State of Negaland, 239A and 240 illustrate the permissible areas and degrees of B departure. The systemic deficiencies in the plenitude of the doctrine of full and effective representation has not been understood in the contitutional ' philosophy as derogating from the democratic principle. Indeed, the argu- ment in the case, in the perspective, is really one of violation of the equality ')'. principle rather than of the democratic principle. The inequalities in representation in the present ·case are an inheritance and compulsion from c the past. Historical considerations have justified a differential treatment.

Article 371F (t) cannot be said to violate any basic feature of the -T ,. Constitution such as the democratic principle. .~ ~~

D 30. From 1975 and onwards, when the impugned provisions came to ii be enacted, Sikkim has been emerging from a political society and monar- chical system into the mainstream of a democratic way of life and an ~ industrial civilisation. The process and pace of this political transformation is necessarily reliant on its institutions of the past. Mere existence of a E Constitution, by itself, does not ensure constitutionalism or a constitutional culture. It is the political maturity and traditions of a people that import ~ ~ meaning to a Constitution which otherwise merely embodies political hopes ,. and ideal~. The provisions of clause (t) of the Article 371F and the consequent changes in the electoral laws were intended to recognise and accommodate the pace of the growth of the political institutions of Sikkim -.. r

F and to make the transition gradual and peaceful and to prevent dominance " of one section of the population over another on the basis of ethnic loyalties ~ and identities. These adjustments and accommodations reflect a political expediencies for the maintenance of social equilibrium. The political and • social maturity and of economic development might in course of time enable the people of Sikkim to transcend and submerge these ethnic apprehensions and imbalances and might in future --- one hopes sooner --- usher-in a more egalitarian dispensation. Indeed, the impugned provisions, .... in their very nature, contemplate and provide for a transitional phase in the political evolution of Sikkim and are thereby essentially transitional in character.

y I R.C POUDYAL v. U.0.1. JVENKATACHALIAH, J.] 987

It is ltuc that the rescm1tion of scats of the kind and the extent A ~ brought about by the impugned provisions may not, if applied to the y existing States of the Union, pass the Constitutional muster. But in relation to a new territory admitted to the Union, the terms and conditions are not such as to fall outside the permissible constitutional limits. Historical considerations and compulsions do justify inequality and special treatment. B In Lachhman Dass etc. v. State of Punjab & 01'., !(JR 1963 SC 222 this court said :

'( "The law is now well settled that while Article 14 prohibits discriminatory legislation directed against one individual or class of individuals, it does not forbid reasonable clas- c ·- sification, and that for this purpose even one person or group of persons can be a class. Professor Willis says in his Constitutional Law p.580 "a law applying to one person or one class of persons is constitutional if there is sufficient y basis of reason for it... .... And if after reorganisation of D States and integration of the Pepsu Union in the State of Punjab, different laws apply to different parts of the State, that is due to historical reasons, and the< bar. always been recognised as a proper basis of classification under Article 14." E .·-. In State of Madhya Pradesh v. Bhopal Sugar Industries Ltd., [1%4] 6 SCR 846 at 850 this court said:

- "......The Legislature has always the power lo make special laws to attairi particular objects and for that purpose has authority to select or classify persons, objects or transac- tions upon which the Jaw is intended to operate. Differen- -( tial treatment becomes unlawful only when it is arbitrary or not supported by a rational relation with the object of the statute. ......where application of unequal laws is reasonably justified for historical reasons, a geographical classification founded on those historical reasons would be upheld." ,I.

< We are of the view that the impugned provisions have been found in the wisdom of Parliament necessary in the admission of a strategic border· H

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

A State into the Union. The departures are not such as to negate fundamental principles of democarcy. We accordingly hold and answer contentions (b), (c) and (d) also against the petitioners. y Re : Contentions (e) and (f)

B 31. Sri Jain submitted that clause (0 of Article 371F would 1equire that wherever provisions for reservation of seats are considered ner.essary for the purpose of protecting the rights and interests of different s•!ctions of the population of Sikkim, such reservations are to be made for all such y sections and not, as here, for one of them alone. This contention ;gnores c that the provision in clause (0 of Art. 371 F is merely enabling. If reserva- tion is made by Parliament for only one section it must, by implication, be construed to have exercised the power respecting the other sections in a negational sense. The provision really enables reservation confined only to a particular section. D

32. Sri Jain contended that Bhutias and Lepchas had been declared "'I" as Scheduled Tribes under the Constitution [Sikkim Scheduled Tribes) Order, 1978 and that the extent of the reservation in their favour would necessarily be governed by the provisions of Article 332(2) of the Constitu- tion which requires that the number of seats to be reserved shall bear, as E nearly as may be; the same proportion to the total number of sea.ts in the Assembly as the population of the Schedule Tribes in the State bears to )-' the total population of the State. But, in our opinion, clause (0 of Article

F 371F is intended to enable, a departure from Art. 332(2). This is the clear operational effect of the non obstante clause with which Article 371F opens. - Sri Jain pointed out with the help of certain demographic statistics that the degree of reservation of 38% in the present case for a population of 20%, is disproportionate. This again has to .be viewed in the historical >- development and the ·rules of apportionment of political power that ob- G tained between the different groups prior to the merger of the territory in India. A parity had been maintained all through.

We are of the opinion that the provisions in the particular situation and the permissible latitudes, cannot be said to be unconstitutional.

H Re : Contention (g)

R.C. POUDYAL v. U.O.l. [VENKATACHALIAH, CJ.] 989

The C011tention is that the reservation of one seat in favour of the A 'Sangha' which is Bhuddhist Lamaic religious monasteries, is one purely y based on religious considerations and is violative of Articles 15(1) and 325 of the Constitution and offends its secular principles. The reservation of one seat for the 'Sangha', with a special electorate of its own, might at the first blush appear to resuscitate ideas of separate electorates considered B pernicious for the unity and integrity of the country.

The Sangha, the Buddha and the Dharma are the three fundamental :.( postulates and symbols of Buddhism. In that sense they are religious institutions. However, the literature on the history of development of the political institutions of Sikkim adverted to earlier tend to show that the c - Sangha had played an important role in the political and social life of the Sikkimese people. It had made its own contribution to the Sikkimese culture and political development. There is material to sustain the con- clusion that the'Sangha' had long been associated itself closely· with the y political developments of Sikkim and was inter-woven with the social and political life of its people. It view of this historical association, the provisions in the matter of reservation of a seat for the Sangha recognises the social and political role of the institution more than its purely religious identity. In the historical setting of Sikkim and its social and political evolution the provision has to be construed really as not invoking the impermissible idea of a separate electorate either. Indeed, the provision 'i bears comparison to Articles 333 providing for representation for the Anglo-Indian community. So far as the provision for the Sangha is con- - cemed, it is to be looked at as enabling a nomination but the choice of the nominee being left to the 'Sangha' itself. We are conscious that a separate electorate for a religious denomination would be obnoxious to the fun- F damental principles of our secular Constitution. If a provision is made -( purely on the basis of religious considerations for election of a member of that religious group on the basis of a separate electorate, that would, indeed, be wholly unconstitutional. But in the case of the Sangha, it is not merely a religious institution. It has been historically a political and social G institution in Sikkim and.the provisions in regard to the seat reserved admit to being construed as a nomination and the Sangha itself being assigned ).. the task of and enabled to indicate the choice of its nominee. The provision. can be sustained on this construction. Contention (g) is answered accord- ingly. H

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

A 33. For the foregoing reasons, all the petitions are di,missed without any order as to costs.

S.C. AGRAWAL, J. With due deference to my learned brethren for . whom I have the highest regard, I regret my inability to concur fully with the views expressed in either of these judgments. It has, therefore, become B necessary for me to express my views separately on the various question5 that arise for consideration.

These cases arise out of Writ Petitions which were originally filed 'f' under Article 226 of the Constitution in the High Court of Sikkim and have c been transferred to thi' Court for disposal under Article 139A of the Constitution. They involve challenge to the validity of the provisions in- serted in lhe Representation of the People Act, 1950 (hereinafter referred to as the '1950 Act') and the Representation of the People Act, 1951 - (hereinafter referred to as the '1951 Act') by the Election Laws (Extension D to Sikkim) Act, 1976 (10of1976) (hereinafter referred to as the '1976 Act') and the Representation of the People (Amendment) Act, 1980 (Act No. 8 of 1080) (hereinafter refrerred to as the '1980 Act'), whereby (i) twelve seats out of thirty-two seats in the Legislative Assembly of Sikkim have been reserved for Sikkimese of Bhutia-Lepcha origin; and (ii) one seat has E been reserved for Sanghas and election to the seat reserved for Sanghas is required to be conducted on the basis of a separate electoral roll in which only the Sanghas belonging to monasteries recognised for the purpose of elections held in Sikkim in April, 1974 for forming the Assembly for Sikkim are entitled to be registered.

F For a proper appreciation of the questions that arise for considera- tion, it is necessary to briefly refer to the historical background in which the impugned provisions were enacted.

Sikkim is mainly inhabited by Lepchas, Bhutias and Nepalese. Lep- G chas are the indigenous inhabitants. Bhutias came from Kham in Tibet some time during fifteenth and sixteenth centuries and one of the chieftains was crowned Chogyal, or religious and secular ruler, in 1642. Lepchas and Bhutias are Buddhists. By the end of the last century, Sikkim became a ""· British protectorate and it continued as such till 1947 when British rule H came to an end in India. During this period, while it was British protec-

R.C. POUDYAL v. U.O.l. [AGRAWAL, J.] 991

!orate, there was immigration of Nepalese on a large scale and as a result, A ' y by 1947, Sikkimese of Nepali origin out-numbered other people in a ratio · or 2:1. After the end of the British rule in 1947, Sikkim came under the protection of the Government of India. On December 3, 1950, the Maharaja of Sikkim entered into a treaty with "the President of India whereby it was agreed that Sikkim shall continue to be a Protectorate of B India and subject to the provisions of the Treaty, shall enjoy autonomy in regard to its internal affairs.

On December 28, 1952, the Ruler of Sikkim issued a Proclamation to make provision for election of members of the State Council. The said C - Proclamation envisaged twelve elected members in the Council out of which six were to be Bhutia-Lepcha and six were to be Nepalese. On March 23, 1953, another Proclamation known as the State Council and Executive Council Proclamation, 1953, was issued. It provided for a State - Council consisting of eighteen members (a President to be nominated and y· appointed by the Maharaja twelve elected members and five nominated members). Out of the elected members six were to be either Sikkimese Bhutia or Lepcha and the remaining six were to be Sikkimese Nepalese. By Proclamation dated March 16, 1958, the strength of the Council was raised to twenty. The six seats for nominated members were retained and wi1ile maintaining the reservation of six seats for Bhutias and Lepchas and ~six scats for Nepalese, it was provided that there shall be one general seat and one seat shall be reserved for the Sangha. It was provided that voting for the seat reserved for the Sangha will be through an electoral college of - the Sanghas belonging to monasteries recognised by the Sikkim Darbar (Ruler of Sikkim). F Certain adaptations and modifications in the laws relating to election ~ to and composition of the Sikkim Council were made by the Proclamation dated December 21, 1966 (known as the Representation of Sikkim Subjects Regulation, 1966) issued by the Chogyal (Ruler) of Sikkim. Under the said Proclamation, for the purpose of election to the Sikkim Council, Sikkim was divided into five territorial constituencies, one General Constituency G and one Sangha Constituency. The General Constituency was to comprise ~- the whole of Sikkim and the Sangha Constituency was to comprise the Sanghas belonging to the monasteries recognised by the Sikkim Darbar. It was also declared that, besides the President who was to be appointed by the Chogyal, the Sikkim Council was to consist of twenty-four rnen.bers out H

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

A of which seven were to be Bhutia-Lepcha and seven were to be Sikkimese- Ncpali who were to be elected from five territorial constituencies; three y members were to be elected from the general constituency out of whi~h one seat was to be a General seat, the second from the, Scheduled Castes as enumerated in the Second Schedule annexed to the Proclamation, and the third from Tsongs; and the Sangha Constituency was to elect one member through an electoral college of the Sanghas. Six seats were to be filled in by nomination made by the Chogyal at his discretion.

On May 8, 1973, a tripartite agreement was entered into by the Chogyal of Sikkim, the Foreign Secretary to the Government of India and the leaders of the political parties representing the people of SiklOm, whereby it was agreed that the people of Sikkim would enjoy the right of election on the basis of adult suffrage to give effect to the principal of one - man one vote and that there shall be an Assembly in the Sikkim and that the said Assembly shall be elected every four years and the elections shall' D be fair and free, and shall be conducted under the superv/Sion of a ~ representative of the Election Commission of India, who shall be appointed for the purpose by the Government of Sikkim. Para (5) of the said agree- ment provided as under :

"(5) The system of elections shall be so organised as to E 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 section of the population - F acquires a dominating position due, mainly to its ethnic origin, and that the rights and interests of the Sikkimese Bhutia Lepcha origin and of the Sikkimese Nepali, which includes Tsong and Scheduled Caste Caste origin, are fully protected".

G This tripartite agreement was followed by Proclamation dated February 5, 1954 issued by Chogyal of Sikkim. The said Proclamation known as the Representation of Sikkim Subjects Act, 1974, provided that "' for the purpose of election to the Sikkim Assembly, Sikkim wouldl be divided' into thirty-one territorial constituencies and one Sangha con- H stituency and the Sangha constituency would comprise the Sanghas belong-

R.C. POUDYAL v. U.0.1. [AGRAWAL, J.] 993

ing to monasteries recognised by the Chogyal of Sikkim. The Assembly was A ~· to consist of thirty-two elected members. Sixteen Constituencies were to be reserved for Sikkimese of Bhutia-Lepcha origin, out of which one was reserved for the Sangha. The remaining sixteen constituencies were to be reserved for Sikkimese of Nepali, including Tsang and Scheduled Caste, origin out of which one constituency was to be reserved for persons belonging to the Scheduled Castes notified in the Schedule annexed to the B Proclamation. The elections to the thirty-one territorial constituencies were ':>( to be held on the basis of adult suffrage and the Sangha constituency was to elect one member through an electoral college of the Sanghas and a member of the electoral college for the Sanghas was not eligible to vote for any other constituency. C - Elections for the Sikkim Assembly were held in accordance with the Representation of Sikkim Subjects Act, 1974 in April 1974. The Sikkim Assembly thus elected, passed the Government of Sikkim Bill, 1974, and Y after having received the assent of the Chogyal of Sikkim the said Bill was D notified as the Government of Sikkim Act, 1974. As stated in the Preamble, lhe said Act was enacted to provide "for the progressive realisation of a fully responsible Government in Sikkim and for further strengthening its close relationship with India". Section 7 of the said Act relating to elections to the Sikkim Assembly gave recognit,ion to paragraph 5 of the tripartite y agreement dated May 8, 1973 in sub-s. (2) wherein it was provided : E

"(2} The Government of Sikkim may make rules for the - purpose of providing that the Assembly adequately repre- sents the various sections of the population, that is to say, while fully protecting the legitimate rights and interests of F 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 Sikkim mainly by reason of its ethnic origin". G Section 30 of the said Act made provision for association with the Government of India for speedy development of Sikkim in the social, ·economic and political fields. By section 33 of the said Act, it was declared that the Assembly which had been formed as a result of the elections held in April, 1974 shall be deemed to be the first Assembly duly constituted H

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

A under the said Act.

In order to give effect to the wishes of the people of Sikkim for ·-.,--· strengthening Indo-Sikkim cooperation and inter-relationship, the Con- stitution of India was amended by the Constitution (Thirty- Fifth Amend- ment) Act, 1974, as a result of which Article 2-A was inserted and Sikkim B was associated with the Union on the terms and conditions set out in the Tenth Schedule inserted in the Constitution by the said amendment.

It appears that on April 10, 1975, the Sikkim Assembly unanimously '-,: passed a resolution wherein, after stating that .the activities of the Chogyal c of Sikkim were in violation of the objectives of the tripartite agreement dated May 8, 1973 and that the institution of Chogyal not only does not promote the wishes ·and expectations of the people of Sikkim but also - impeded their democratic development and participation in the political and economic life of India, it was declared and resolved : "( 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".

It was ;urther resolved : E "1. The Resolution contained in part "A" shall be submitted to the people forthwith for their approval.

2. The Government of India is hereby requested, after the people have approved the Resolution contained in part "A" - F to take such measures as may be necessary and appropriate to implement this Resolution as early as possible". ~· In accordance with the said Resolution, a special opinion poll was conducted by the Government of Sikkim on April 14, 1975 and in the said poll, 59, 637 votes were cast in favour and 1496 votes were cast against the G Resolution out of a total electorate of approximately 97,000.

In view of the said resolution adopted unanimously by the Sikkim 4'. Assembly which was affirmed by the people of Sikkim in special opinion. poll, the Constitution was further amended by the Constitution (Thirty- H Sixth Amendment) Act, 1975 whereby Sikkim was included as a full-

R.C. POUDYAL v. U.0.1. [AGRAWAL, J.] 995

fledged State in the Union and Article 371-F was inserted whereby special A provisions with respect to the State of Sikkim were made. By virtue of v Clause (b) of Article 371-F the Assembly of Sikkim formed as a result of the elections held in Sikkim in April 1974 was to be deemed to be the Legislative Assembly of the State. of Sikkim duly constituted under the Constitution and under Clause ( c) the period of five years for which the B Legislative Assembly was to function was to be deemed to have com- menced on the date of commencement of the Constitution (Thirty-Sixth Amendment) Act, 1975. Clause (t) of Article 371-F empowers Parliament ~ to make provision for reservation of seats in the Legislative Assembly of the State of Sikkim for the purpose of protecting the rights and interests of the different sections of the population of Sikkim. c - Thereafter Parliament enacted the 1976 Act to provide for the extension of the 1950 Act and the 1951 Act to the State of Sikkim and introduced certain special provisions in the 1950 Act and the 1951 Act in· y· their application to Sikkim. Many of those provisions were transitory in nature being applicable to the Sikkim Assembly which was deemed to be D the Legislative Assembly of the State of Sikkim under the Indian Constitu- tion. The only provision which is applicable to future Legislatures of Sikkim is that contained in Section 25-A which reads as under :

"25-A. Conditions of registration as elector in Sangha Con- E stituency in Sikkim-Notwithstanding anything contained in sections 15 and 19, for the Sangha Constituency in the

- State of Sikkim, only the Sanghas belonging to monasteries, recongised for the purpose· of the elections held in Sikkim in April 1974, for forming the Assembly for Sikkim, shall F 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". G In exercise of the powers conferred on him by Cl. (1) of Article 342 of the Constitution of India, the President of India promulgated the Con- stitution (Sikkim) Scheduled Tribes Order, 1978 (C.0.11} on June 22, 1978 and it was prescribed that Bhutias >.nd ·Lepchas shall be deemed to be Scheduled Tribes in relation to the State of Sikkim. H

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

A Since the 1976 Act did not make provision for fresh elections for the Legislative Assembly of Sikkim and the term of the said Assembly was due T. to expire; the Representation of the People (Amendment) Bill, 1979 wa> introduced in Parliament on May 18, 1979 to amend the 1950 Act and the: 1951 Act. While the said Bill was pending before Parliament, Lok Sabha B was dissolved and the said Bill lapsed.

Thereafter the Legislative Assembly of Sikkim was also dissolved on August 13, 1979 and fresh elections for the Assembly were to be ·held. The Representation of the People (Amendment) Ordinance, 1979 (No.7 of 1979) was, therefore, promulgated by the President on September 11, 1979 C whereby certain amendments were introduced in the 1950 Act and the 1951 Act. Elections for the Sikkim Legislative Assembly were held in October, 1979 on the b~is of the amendments introduced by the said Ordinance. Thereafter, the 1980 Act was enacted to replace the Ordinance. By the 1980 Act, sub-s. (1-A) was inserted in Section 7 of the 1950 Act and it reads as under : D '(1-A). Notwithstanding anything contained in sub-s.(l), the total number of seats in the Legislative Assembly of the State of Sikkim, to be constituted at any time after the. commencement of the Representation of the People (Amendment) Act, 1980 to be filled by persons chosen by E direct election from assembly constituencies shall be thir- ty-two, of which -

(a) twelve seats shall be reserved for Sikkimese of Bhutia- Lepcha origin; F (b) two seats shall be reserved for the Scheduled castes of that State; and

(c) one seat shall be reserved for the Sangh as referred to in Section 25-A. G Explanation : In this sub-s. 'Bhutia' includes Chumbipa, Dopthapa, Dukpa, Kagatey, Sherpa, Tibetan, Tromopa· and Yolmo'.

Similarly, the following provision was inserted in Section 5-A of the H 1951 Act:

R.C. POUDYAL v. U.0.1. [AGRAWAL, J.] 997

"(2) Notwithstanding anything contained in Section 5, a A person shall not be qualified to be chosen to fill a seat in the Legislative Assembly of the State of Sikkim, to be constituted at any time after the commencement of the Representation of the People (Amendment) Act, 1980 unless - B (a) in the case of a seat reserved for Sikkimese of Bhutia- Lepcha origin, he is a person either of Bhutia or Lepcha origin and is an elector for any assembly constituency in the State other than the constituency reserved for the Sanghas; c (b) in the case of a seat reserved for the Scheduled Castes, 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

(d) in the case of any other seat, he is an elector for any assembly constituency in the State."

The petitioners in these cases are Sikkimese of Nepali origin and they are challenging the validity of Section 25-A introducted in the 1950 Act by the 1976 Act and sub-section (1-A) of Section 7 of the 1950 Act and sub-s. (2) of Section 5-A of the 1951 Act which were introduced by the 1980 Act insofar as they relate to :

(1) Reservation of 12 seats out of 32 seats in the Sikkim F Legislative Assembly for Sikkimese of Bhutia-Lepcha origin; and

(2) Reservation of one seat for Sanghas. I G The petitioners have not challenged the validity of the Constitution (Thirty Sixth Amendment) Act, 1975 whereby Artitle 371-F was inserted in the Constitution.

In Transferred Cases Nos. 78 of 1982 and 84 of 1982, the case of the petitioners is that Article 371-F should be construed in a manner that it is H

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

consistent with the general philosophy of the Constitution particularly • democracy and secularism and they have challenged the provisions of the 1976 Act and the 1980 Act providing for reservation of 12 seals in the Legislative Assembly of Sikkim for Sikkimese of Bhutia and Lepcha origin and reservatio.n of one seat for Sanghas on the ground that the said. provisions fall outside the ambit of Article 371-F and are violative of the B provisions contained in Articles 332, 14 and 15 and 325 of the Constitution. In the alternative, the case of the petitioners is that if Article 371-F is given a wider construction, it would be unconstitutional being violative of the y basic features of the Constitution. The petitioners in Transferred Cases Nos. 93 and 94 of 1991 have taken a different stand. Instead of challenging c the reservation of seats for Sikkimese of Bhutia and Lepeha origin as well as Sanghas, they have relied upon clause (I) of Article 371-F to claim similar reservation of seals in the Assembly for Sikkimese of Nepali origin.

Before I proceed to deal with contentions urged by the learned counsel on behalf of the petitioners in these matters, it is necesary to deal with the submissions of Shri K. Parasaran appearing for the State of Sikkim and the learned Attorney General appearing for the Union of India that the matters in issue being political in nature are not justiciable. lt has been urged that admission of Sikkim as a Slate of Indian Union constitutes acquisition of territory by cession in international law and the terms and conditions on which the said cession took place as contained in Article 371-F, are intended to give effect to the tripartite agreement dated May 3, 1973 which was political in nature. It is further urged that under Article 2 of the Constitution, Parliament is empowered by law to admit into Union - of India and establish new States on such terms and conditions as it thinks fit and that Article 371-F prescribing the terms and conditions on which the Stale of Sikkim was admitted into the Union .of India is a law under Article 2 of the Constitutions and merely because it was introduced in the Constitution by the Constitution (Thirty- sixth Amendment) Act enacted under Article 368 of the Constitution, by way of abundent caution, is of no consequence and that it does not alter the true character of the law. The submission is further that sine~ the terms and conditions on \vhich Sikkin1 was admitted in Union of India, are political in nature, the s~id terms and conditions cannot be made the subject matter of challenge before this Court because the law is well settled that couns do not adjudicate upon questions which are political in nature.

R.C. POUDYAL v. U.O.l. [AGRAWAL, J.] 999

The political question doctrine has been evolved in the United States A to deny judicial review in certain fields. The doctrine received a set back V in the case of Baker v. Carr., [1962] 369 US 186, wherein Brennan, J ., rejecting the contention that the challenge to legislative apportionment raises a non-justiciable political question, has observed :

".... The nonjusticiability of a political question is primarily B a function of the separation of po\vers. Much confusion results from the capacity of the "political question" label to obscure the need for case-by-case inquiry. Deciding whether a matter has in any measure been committed by the Constitution to another brach of government, or c - whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution".

(pp. 210-211) D

xx xx xx xx 1 Yet it is error to suppose that every case or controversy ' ••••

which touches foreign relations lies beyond judicial con- E gnizance. Our cases in this field seen1 invariably to show a discriminating analysis of the particular question posed, in terms of the history of its management by the political branches, of its susceptibility of judicial handling in the light of its nature and posture in the specific case, and of the possible consequences of judicial action." F

xx xx xx

11 ••• Prominent on the surface of any case held to involve a G political question is found a textually demonstrable con- stitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it: or the impo'5ibility of deciding without an initial policy determination of a kind H

1000 SUPREME COURT REPORTS [1993] 1 S.C.R.

A clearly for nonjudicial discretion; or the impossibility of deciding without an initial policy determination of a kind clearly for·nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without ex- pression lack of the respect due coordinate branches of government; or an unusual need for unquestioning ad- B herence to a political decision already made; or the poten- tiality of embarrassment from multifarious pronoun- cements by various departments on one question. Unless one of these formulations is inextricable for the case at bar, there should be no dismissal for non-justiciability on the c ground of a political question's presence'. {p. 217)

In Powell v. McConnack, 395 US 490, after reiterating the obse1va- tions of Brennan, J. In Baker v. Carr (Supra),Warren, CJ has stated - II 'In order to determine whether there has been a textual D commitment to a co-ordinate department of the Govern- ment, we must interpret the Constitution. In other words, we must first determine what power the Constitution con- fers upon the House through Art. I, 5, before we can determine to what extent, if any, the exercise of that powe1 E is subject to juciicial review....If examination of 5 disclosed that the Constitution gives the House judicially unreview- able power to set qualifications for memebership and to judge whether prospective menibers meet those qualifica- tions, further review of the House determination might well be barred by the political question doctrine. On the other - F hand, if the Constitution gives the House power to judge only whether elected members possess the three standing qualifications set forth in the Constitution, further con- sideration would be necessary to determine whether any of the other formulations of the political question doctrine G are inextricable from the case at bar". (p. 516)

In A.K Roy v. Union of India, [1982] 2 SCR 272, Chandrachud, CJ, has thus explained the doctrine as applicable in the United States : ·

"The doctrine of the political question was evolved in the H United States of America on the basis of its Constitution

R.C. POUDYAL v. U.0.1. [AGRAWAL, J.] 1001

which has adopted the system of a rigid separation of A powers, unlike ours. In fact, that is one of the principal -.,,.,.. reasons why the U.S. Supreme Court had refused to give advisory opinions. In Baker v. Carr, Brennan, J. said that the doctrine of political question was "essentially a function of the separation of powers". There is also a sharp dif- ference in the position and powers of the American Presi- B dent on one hand and President of India on the other. The President of the United States exercises executive power in his own right and is responsible not to the Congress but ' to the people who elect him. In India, the executive power of the Union is vested in the President of India but he is c - obliged to exercise it on the aid and advice of his Council of Ministers. The President's "satisfaction" is therefore nothing but the satisfaction of his Council of Ministers in whom the real executive power resides. It must also be y 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 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 the phrase "political question" has become "a little more than a play of words". (pp. 296-297) F I. In Madhav Rao v. Union of India, (1971] 3 SCR 9, it was contended ,.(_ that in-recognising or de-recognising a person as a Ruler the President exercises "political power" which is a sovereign power and that the relevant covenants under which the rights of the Rulers were recognised were 'political agreements'. Rejecting the said contention, Shah, J. (as the G learned Chief Justice then was) speaking for the majority, observed -

........ "The functions of the Slate arc classified. as legislative, judicial and executive : the executive function is the residue which does not fall within the other two functions. Con- H

-y 1002 SUPREME COURT REPORTS [1993] 1 S_C.R.

A stilutional mechanism in a democratic policy does not contemplate existence of any function which may qua the citizens be designated as political and orders made in exercise whereof arc not liable to be rested for their validity before the lawfully constituted courts" (p.75)

B Similarly, Hedge, J. has stated -

"There is nothing like a political power under our Constitu- tion in the matter of relationship between the executive and the citizens. Our Constitution recognises only three powers c viz. the legislative power, the judicial power and the execu- tive power. It docs not recognise any other power. (p.169)

In State of Rajasthan v. Union of India, [1978] 1 SCR 1, Bhagwati, J. as the learned Chief Justice then was, has observed :

D "It will, therefore, be seen that merely because a question has a political colour, the Court cannot hold its hands in despair and declare 'judicial hands off'. So long as a ques- tion arises whether an authority under the Constitution has acted within the limits of its power or exceeded it, it can E certainly be decided by the court. Indeed, it would be its constitutional obligation to do so." (p.80)

Relying upon these observations and after taking note of the decisions in Baker v. Carr (supra) and Powell v. McComwck (supra), F Vcnkataramiah, J., as the learned Chief Justice then was, in S.P. Gupta v. Union of India, 11982) 2 SCR 365 has laid down : )-- "In our country \vhich is governed by a written Constitution also many questions which appear to have a purely political colour arc bound to assume the character of judicial ques- G tions. In the State of Rajasthan & Ors. etc. etc. _v. Union of India etc. etc., (supra) the Government's claim that the validity of the decision of the President under Article 356(1) of the Constitution hcing political in character was not justiciable on that sole ground was rcjected~_by this H Court." (p. 1248)

R.C. POUDYALv. U.0.1. [AGRAWAL,J.] 1003

The same view has been reiterated by Verma, J. speaking for the A majority in Mrs. Sarojini Rama~wami v. Union of India & Ors., Writ Petition ,..,.,, (Civil) No. 514 of 1992 decided on August 27, 1992.

Sikkim was not admitted in the Indian Union on the basis of any treaty or agreement between the Chogyal of Sikkim and the Government B of India. It was so admitted in pursuance of the unanimous resolution that was passed by the Assembly of Sikkim on April 10, 1975, after the said resolution had been approved by majority of the people of Sikkim at the :>(' special opinion poll conducted on April 14, 1975. The said resolution does not contain any terms and conditions on which the people of Sikkim wanted to join the Indian Union except sta,ting that "Sikkim shall henceforth be a c - Constituent unit of India enjoying a democratic and fully responsible Government". The Tripartite Agreement of May 8, 1973 was also not an agreement containing terms and conditions for admission of Sikkim in the Indian Union. It contains the framework for "establishment of a fully y responsible Government in Sikkim with a more democratic Constitution". D This agreement was implemented by the enactment of the Government of Sikkim Act, 1974. It cannot, therefore, be said that Article 371- F contains a political element in the sense that it seeks to give effect to a political agreement relating to admission of Sikkim into the Indian Union. E It is, however, urged that a law made under Article containing the 1' terms and conditions on which a new State is admitted in the Indian Union

-- is, by its very nature, political involving matters of policy and, therefore, the terms and conditions contained in such law are not justiciable. In this context, emphasis is laid on the words 11 on such terms and conditions as it thinks fit" in Article 2 and it is contended that Parliament has complete freedom to lay down the terms and conditi1,ns for admission of a new State F

-z in the Indian Union and such terms and conditions are outside the scope of judicial review. I find it difficult to subscribe to this proposition. It is no doubt true that in the matter of admission of a new Stale in the Indian Union, Article 2 gives considerable freegom lo Parliament to prescribe the G terms and conditions on which the new State is being admitted in the Indian Union. But at the same time, It cannot be said that the said freedom '•. ),.. is without any constitutional limitation. In may view the power conferred on Parliament under Article 2 is circumscribed by the overall constitutional scheme aud Parliament, \vhile prescribing the terms and conditions on H

'"1 1004 SUPREME COURT REPORTS [1993] I S.C.R.

A which a new State is admitted in the Indian Union, has to act within the said scheme. Parliament cannot admit a new State into the Indian Union on terms and conditions which derogate from the basic features of the y Constitution. It cannot make a law permitting the said State to continue as a monarchy because it would be in derogation to the republican form of B Government established under the Constitution. Similarly it would not be permissible for Parliament to prescribe that the new State would continue to have an autocratic form of administration when the Constitution en- visages a democratic form of Government in all the States. So also it would not be open to Parliament to provide that the new State would continue to y be a theocratic State in disregard of the secular set up prevailing in other c States. To hold otherwise would mean that it would be permissible for Parliament to admit to the Union new States on terms and conditions enabling those States to be governed under systems which are inconsistent - with the scheme of the Constitution and thereby alter the basic feature of the Constitution. It would lead to the anomalous result that by an ordinary D !?.w enacted by Parliament under Article 2 it would be possible to bring -.,., about a change which cannot be made even by exercise of the constituent power to amend the Constitution, viz., to alter any of the basic features of the Constitution. The words "as it thinks fit" in Article 2 of the Constitution • cannot, therefore, be construed as empowering Parliment to provide terms E and conditions for admission of a new State which are inconsistent with the basic features of 1he Consritution. The said words can only mean that within the framework of the Conslitution, it is permissible for Parliamenl r

F to prescribe terms and conditions ·on which a new State is admitted in the Union.

With regard to the power conferred on Parliament under Articles 2 - and 3 of the Constitution, this Court in Mangat Singh v. Union of India, [1967] 2 SCR 109, has laid down - -/}.. ' .... Power with which the Parliament is invested by Arts. 2 G and 3, is power to admit, establish, or form new Stales which conform to the democratic pattern envisaged by the Constitution; and the power which the Parliament may exercise by law is supplemental, incidental or consequential ~ to the admission, establishment pr formation of a State as i-1 contt:n1platcd by the t:onstitulion, and is not po\ver to

R.C. POUDYALv. U.0.1. [AGRAWAL, J.] 1005

override the constitutional scheme". P.112 A In this context, it may also be mentioned that Article 2 of the Constitution is modelled on Section 121 of the Commonwealth of Australia Constitution Act which provides :

"S. 121 The Parliament may admit to the Commonwealth B or establish new States, and may upon such admission or establishment make or impose such terms and conditions, including the extent of representation in either House of Parliament, as it thinks fit." c - This provision has not yet been used and there has been no occasion for the Courts to construe this provision. A learned Commentator on the Australian Constitution has, however, expressed the view that under Sec- tion 121 "no terms and conditions could be imposed which are inconsistent Y with the provisions of the Constitution, e.g., nothing could be done to D prevent the Judicature chapter of the Constitution from applying to the new State' (R.D. Lumb : The Constitution of the Commonwealth of Australia (1986) 4th Ed. p. 736)

I am, therefore, of the view that while admitting a new State in the EI 'TUnion, Parliament, while making a law under Article 2, cannot provide for terms and conditions which are inconsistent with the scheme of the Con-

-- stitution and it is open to the Court to examine whether the terms and conditions as provided in the law enacted by Parliament under Article 2 are consistent with the constitutional scheme or not. This would mean that power conferred on Parliament under Article 2 is not wider in ambit than ,.,i. the amending power under Article 368 and it would be of little practical '-significance to treat Article 371-F as a law made under Article 2 of the Constitution or introduced by way of amendment under Article 368. In either event, it will be subject to the limitation that it cannot alter any of the basic features of the Constitution. The scope of the power conferred G by Article 371-F, is therefore, subject to judicial review. So also i:; the law , that is enacted to give effect to the provisions contained in Article 371-F. ..>.. "The contention, raised by Shri Parasaran as well as the learned Attorney General, that such an examination is outside the scope of judicial review, cannot, therefore be accepted. H

1006 SUPREME COURT REPORTS [1993] 1 S.C.R.

A Shri Parasaran and the learned Attorney General have laid emphasis on the use of the expression "notwithstanding an)1hing in this Constitution" which precedes clauses (a) to (p) of Article 371-F. The submission is that -y as a result of the said non-obstante clause in Article 371-F, it is permissible for parliament to enact a law in derogation of the other provisions of the Constitution while giving effect to clauses (a) to (p) of Article 371-F and B the said law would not be open to challenge on the ground that it is violative of any of the other pro,,sions of the Constitution. There is no doubt that the non-obstante clause in a statute gives overriding effect to the y provisions covered by the non-obs/ante clause over the other pro'"sions in the statute to which it applies and in that sense, the 11011-obrtante clause c used in Article 371-F would give overriding effect to clauses (a) to (p) of Article 371-F over other provisions of the Constitution. But at the same time, it cannot be ignored that the scope of the non-obstante clause in - Article, 371-F cannot extend beyond the scope of the legislative power of Parliament under Article 2 or the amending power under Article 368. As D pointed out earlier, the legislative power under Article 2 dues not enable ~ Parliament to make a law providing for terms and conditions which are inconsistent with the Constitutional scheme and in that sense, the said

E power is not very different from the amending power under Article 368, which does not extend to altering any of the basic features of the Constitu- tion. The non-obstante clause in Article 371-F, has therefore, to" be so construed as to conform to the aforesaid limitations or othef\'"se Article r - 371-F would be rendered unconstitutional. A construction which leads to such a consequence has to be eschewed. This means that as a result of the non-obstantc clause in Article 371-F, clauses (a) to (p) of the said Article have to be construed to permit a departure from other provisions of the --- F Constitution in respect of the matters covered by clauses (a) to (p) provided the said departure is not of such a magnitude as to have the effect , .... of altering any of the basic features of the Constitution. In order to avail the protection of Arlicle 371-F, it is necessary that the law should not tran'!lcc'd the abovementioned limitation on the scope of the 11011-obstallte , G clause. .. --~,'<f;~ ...<, This takes me to the question whether the impugned provisions contained in the 1976 Act and the 1980 Act make such a departure from H Lhe provisions of the Constitution as to render them inconsistent with the ..,• I

R.C. POUDYAL v. U.0.1. [AGRAWAL, J.] 1007

Constitutional scheme and have the effect of altering any of the basic A y features of the Constitution. As indicated earlier the challenge to the impugned provisions relates to two matters, viz., (i) reservation of twelve seats for Sikkimese of Bhutia-Lepcha origin; and (ii) reservation of one seat for Sanghas.

With regard to the reservation of twelve seats for Sikkimese of Bhutia B and Lepcha origin under sub-s.(1-A) inserted in Section 7 of the 1950 Act x by Act No. 8of1980, Shri R.K Jain, the learned Senior counsel, appearing as amicus curiae for the petitioner in T.C. No. 78 of 1982, has advanced a two-fold argument. In the first place, he has urged that the reservation of c - seats for Sikkimese of Bhutia-Lepcha origin without making a correspor,d- ing reservation for Sikkimese of Nepali origin is violative of the right to equality guaranteed under Article 14 of the Constitution. The other con- tention turns on the extent of such reservation. Shri Jain has submitted that y Bhutias and Lepchas have been declared as Scheduled Tribes under the Constitution (Sikkim) Scheduled Tribes Order, 1978 dated June 22, 1978 D and reservation of seats for Scheduled Tribes in the Legislative Assembly of a State is governed by Article 332 of the Constitution. Shri Jain has '' referred to Cl. (3) of Article 332 which prescribes that the number of seats reserved for the Schedueled Castes or the Scheduled Tribes in the Legis- lative Assembly of any State under Cl. (1) shall bear, as nearly as may be, T the same proportion to the total number of seats in the Assembly as the E population of the Scheduled Castes in the State or of the Scheduled Tribes

-- in the State. Shri Jain has pointed out that according to the 1971 census, the total population was about 2,09,843 out of which Bhutias and Lepchas were around 51,600 and according to 1981 census, the total population was around 3,16,385 out of which Bhutias and Lepchas were around 73,623 . F ..{___ The submission of Shri Jain is that keeping in view the fact that Bhutias and Lepchas constitute about 25% of the total population, reservation of twelve out of thirty-two seats in the Legislative Assembly for Bhutias and Lepchas, which constitute 38% of the total number of seats in the Assemb- ly, is far in excess of the ratio of the population of Bhutias and Lepchas to G the total population of Sikkim and, therefore, the aforesaid reservation of ;.. twelve scats for Bhutias and Lcpchas is violative of Clause (3) of Article 332 of the Constitution. Shri Jain has contended that the said provision for reservation is destructive of Democracy which is a basic feature of the H

1008 SUPREME COURT REPORTS [1993] 1 S.C.R.

A Constitution. In support of the aforesaid submission, Shri Jain has placed reliance on the decision of the U.S. Supreme Court in Reynolds v. Sims, y [1964] 377 us 533.

In my view, both these contentions of Shri Jain cannot be accepted. The reservation of seats for Bhutias and Lepchas is necessary because they B constitute a minority and in the absence of reservation they may not have any representation in the Legislative Assembly. Sikkimese of Nepali origin constitute the majority in Sikkim and on their ·awn electoral strength they X can secure representation in the Legislative Assembly against the un- reserved seats. Moreover, Sikkimses of Bhutia ahd Lepcha origin have a c distinct culture and tradition which is different from that of Sikkimese of Nepali origin. Keeping this distinction in mind Bhutias and Lepchas have been declared as Scheduled Tribes under Article 342 of the Constitution. - The said declaration has not been questioned before us. The Constitution in Article 332 makes express provision for reservation '?f seats in they D Legislative Assembly of a State for Scheduled Tribes. Such a reservation which is expressly permitted by the Constitution cannot be challenged on the ground of denial of right to equality guaranteed under Article 14 of the Constitution.

E The second contention relating to the extent of the reservation of seats for Bhutias and Lepchas is based on the provisions of Article 332 (3) T of the Constitution. Clause (3) of Article 332 postulates that the number of seats reserved for Scheduled Castes or Scheduled Tribes in the Legis- lative Assembly of rhe State shall bear, as nearly as may be, the same proportion to the total number of seats in the Assembly as the population - F of the Sched•1led Castes or the Scheduled Tribes in the State bears to the total population of the State. The said provision has, however, to be )- considered in the light of Clause (f) of Article 371-F which provides - ·

"(f) 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 Legislative Assembly of the State of Sikkim whcih 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

R.C. POUDYAL v. U.O.l. [AGRAWAL, J.] 1009

eleciion to the Legislative of the State of Sikkim." A y This provision empowers Parliament to make provision prescribing the number of seats in the Legislative Assembly in the State of Sikkim which may be filled in by candidates belonging to the different sections of the population of Sikkim with a view to protect the rights and interests of those sections. The non-obstante clause in Article 371-F enables Parliament B to make a departure from the ratio contemplated by Articly 332 (3) within X. the limitation which is inherent in the power conferred by Article 371-F, i.e., not to alter any of the basic (eatures of the Constitution. It is, therefore, necessary to examine whether in providing for reservation of twelve seats _,__ out of thirty-two seats for Bhutias and Lepchas Parliament has acted in c disregard of the said limitation. While examining this question, it has to be borne in mind that Lepchas are the indigenous inhabitants of Sikkim and Bhutias migrated to Sikkim long back in fifteenth and sixteenth centuries y and they follow the same faith (Budhism). They have a culture which is distinct from that of Nepalese ahd others who migrated to Sikkim much D later. Since the proportion of Nepalese in the population. of Sikkim was much higher than that of Bhutias and Lepchas, it became necessary to provide for reservation of seats for Bhutias and Lepchas in the State ' Council of Sikkim when representative element through elected members was introduced in the administration of Sikkim in 1952. Ever since then, ~f E till Sikkim was admitted as a new State in the Indian Union, there was reservation of seats for Bhutias and Lepchas in the Sikkim Council which

- later became the Sikkim Assembly. Since the Ruler of Sikkim was of Bhutia origin following the Budhist faith, there was reservation of seats in the Sikkim Council and Sikkim Assembly for Sikkimese of Nepali origin on the same lines as Bhutias and Lepchas an<l in such reservations a parity was F ..J..._ maintained between the seats reserved for Sikkimese of Bhutia-Lepcha origin on the one hand and Sikkimese of Nepali origin on the other. On the date when Sikkim was admitted in the Indian Union, Sikkim Assembly was consisting of thirty-two elected members out of which sixteen seats (including one Sangha seat) were reserved for Sikkimese of Bhutia-Lepcha G origin and sixteen scats (including one seat for Scheduled Castes) were ;.. reserved for Sikkimese of Nepali origin. This parity in the reservation of seats in the Sikkim Council and Sikkim Assembly between Sikkimese of Bhutia and Lepcha origin and Sikkimese of Nepali origin was with a view H

1010 SUPREME COURT REPORTS (1993] 1 S.C.R.

A to ensure that neither of two sections of the population of Sikkim acquires a dominating position due mainly to their _ethnic origin. This was expressly provided in para 5 of the Tripartite Agreement of May 8, 1973 and Section 7(2) of the Government of Sikkim Act, 1974. Clause (t) of Article 371-F seeks to preserve the said protection which was envisaged by Clause (5) of B the Tripartite Agreement because it also provides for protecting the rights and interests of the different sections of population of Sikkim. The im- pugned provision contained in clause (a) of sub-section (1-A) of s.7 of the 1950 Act by providing for reservation of twelve seats for Sikkimese of X Bhutia-Lepcha origin seeks to give this protection in a more limited manner by reducing the ratio of the seats reserved for Sikkimese of Bhutia c and Lepcha origin from 50% prevalent in the Assembly in the former State of Sikkim to about 38% in the Assembly for the State of Sikkim as constituted under the Constitution of India. It would thus appear that by providing for reservation to the extent of 38% of seats in the Legislative Assembly for Sikkimese of Bhutia-Lepcha origin Parliament has sought to -'( D strike a balance between protection to the extent of 50% that was available to them in the former State of Sikkim and the protection envisaged under Article 332(3) of the Constitution which would have entitled them to reservation to the extent of 25% seals in accordance with the proportion of their population to the total population of Sikkim. It is argued that this E departure from the provisions of Article 332(3) derogates from the prin- y ciple of one man, one vote enshrined in the Constitution and is destructive of Democracy which is a basic feature of the Constitution. This argument proceeds on the assumption that for preservation of Democracy, the prin- ciple of one man, one vole is inviolable and it fails to take note of the - 11oll-obstante clause in Article 371-F which when read with clause (t) of F Article 371-F envisage that Parliament may, while protecting the rights and interests of the different sections of the population of Sikkim (which would ,~ include Sikkimese of Bhutia-Lepcha origin), deviate from the provisions of the Constitution, including Article 332.

G The principle of one man, one vote envisages that there should be parity in the value of votes of electors. Such a parity though ideal for a representative democracy is difficult to achieve. There is some departure " in every system following this democratic path. In the matter of delimitation H of constituencies, it often happens that the population of one constituency

R.C. POUDYAL v. U.0.1. [AGRAWAL, J.] 1011

differs from that of the other constituency and as a result although both A y the constituencies elect one member, the value of the vote of the elector in the constituency having lesser population is more than the value of the vote of the elector of the constituency having a larger population. Take the instance of Great Britain. There a statutory allocation of seats between England, Scotland, Wales and Northern Ireland whereunder Scotland is to B have not less than 71 seats; Wales not less than 35 and Northern Ireland

17. It has been found that Scotland is over represented to the extent of 14 seats and Wales to the extent of 5 seats and England is under-represented to the extent of 14 seats. The justification that has been offered for these ineqalities is that constituencies in sparsely populated areas such as the • Highlands would otherwise be inconveniently large geographically. Prof. c Wade has questioned this justification (H.W.P. Wade : Constitutional Fundamentals, The Hamlyn Lectures, 32nd series, 1980, p.5). He has pointed out that within the constituent counties of the United Kingdom, )r there are great inequalities in the size of individual constituencies and that the smallest constituency contains only 25,000 voters and the largest 96,000, D nearly four times as many. He has referred to the Report of the Blake Commission on Electoral Reforms (1976) wherein it is recommended that' the discrepancy should never exceed two to one, and has observed - "this is surely the maximum which should be regarded as tolerable" (p.7). Criticising the existing state of affairs, Prof. Wade has said - E 'f "The British Parliament, addicted though it is to the pursuit ·- of equality in so many other ways, does not seem interested in equality of representation between voters any more than between the different parts of the United Kingdom. Since 1948 it has insisted rigidly on the principle of one man, one F ..(__ vote. When will it accept the correlative principle one vote, one value?" (p.8)

The matter of apportionment of seats in the State Legislatures has come up for consideration before U.S. Supreme Court in a number of G cases. In Reynolds v: Sims (supra), the Court, while examining the said matter on the touch-stone of the equal protection clause, has held that the equal protection clause requires that the seals in both houses of a bicameral State Legislature be apportioned on a population basis and that such deviations from the equal population principle are constitutionally H

1012 SUPREME COURT REPORTS [1993] I S.C.R.

A permissible so long as such deviations are based on legitimate considera- tions incident to the effecuation of a rational state policy. Chief Justice y Warren, expressing the views of six members of the Court, .has observed -

".......We realize that it is a practical impossibility tq arrange legislative districts so that each one has an identical number B of residents, or citizens, or voters. Mathematical exactness or precision is hardly a workable constitutional require- ment." (p.577)

xx xx xx c ".....So long as the divergences from a strict population standard are based on legitimate considerations incident to the effectuation of a rational state policy, some devia- tions from the equal-population principle are constitution- ally permissible with respect to the apportionment of seats D in either or both of the two houses of a bicameral state legislature". (p.579)

Variance to the extent of 16% has been upheld by the Court. (Se": Mahan v. Howell, 410 US 315.

E The High Court of Australia, in Attorney General (CTH) Ex. Rel. Mckinlay v.. The Commonwealth, [1975] 135 CLR I has considered the issue in the context of Section 24 of the Australian Constitution which provides that "the House of Representatives shall be composed of members directly chosen by the people of the Commonwealth". It was argued that the words F "chosen by the people of Commonwealth" required each electoral division within a State so far as practicable to contain the same number of people or, alterantively, the same number of electors. The said contention was > rejected and it was held (by Majority of six to one) that Section 24 of the Constitution did not require the number of people or the number of G electors in electoral divisions to be equal. The decisions of the U.S. Supreme Court on apportionment were held to be inapplicable in the context of the Australian Constitution. Barwick C.J., has observed :

"It is, therefore, my opinion that the second paragraph of s.24 cannot be read as containing any guarantee that there J-1 sh.all be a precise mathematical relationship between the

R.C. POUDYAL v. U.0.1. [AGRAWAL, J.] 1013

numbers of members chosen in a State and the population A of that State or that every person in the Australia or that every elec~orin Australia will have a vote, or an equal vote.' (p.22)

Similarly, Mason, J., as the learned Chief Justice then was, has stated: B "The substance of the matter is that the conception of equality in the value of a vote or equality as between electoral divisions is a comparatively modern development for which no stipulation was made in the system of democratic representative government provided for by our c Constitution." (p.62)

In this regard, the scheme of our Constitution is that under Article 327 Parliament is empowered to make a law relating to delimitation of con- stituencies and under Article 329 (a) the validity of such a law or the allotment of seats to such constituencies cannot be called in qucstion_i_n any court. In exercise of the power conferred on it under Article 327 Parliament has enacted the Delimitation Act, 1962 .which provides for constitution of a Delimitation Commission to readjust on the basis of the latest census figures the allocation of seats in the House of the People to the several States, the total number of seats in the Legislative Assembly of each State and the division of each State into territorial constituencies for the purpose of elections to the House of People and to the State Legislative Assembly. In Section 9(1) of the said Act it is prescribed that the Commis- sion shall delimit the constituencies on the basis of the latest census figures but shall have regard to considerations referred to in_ clauses («) to (d). F Clause (a) requires that all constituencies shall, as far as practicable, be geographically compact areas, and in delimiting them regard shall be had to physical features, existing boundaries or'administrative units, facility of communication and public convenience. Clause (b) requires that every assembly constituency shall be so delimited as to fall wholly within on parliamentary constituency. Clauses (e) and (d) relate to location of con- G stituer.:ies in which seats are reserved for Scheduled Castes and Scheduled Tribes. This shows that population, though important, is only one of the factors that has to be taken into account while delimiting constituencies which means that there need not be uniformity of population and electoral strength in the matter of delimitation of constituencies. In other words, H

1014 SUPREME COURT REPORTS (1993] 1 S.C.R.

A there is no insistence on strict adherence to equality of votes or to the principle one vote-one value. 1'

In clause (3) of Article 332, the words "as nearly as may be" has been used. These words indicate that even in the matter of reservation of seats for Scheduled Castes and Scheduled Tribes it would be permissible to have deviation to some extent from the requirement that number of seats reserved for Secheduled Castes or the Scheduled Tribes in the Legislative Assembly of any State shall bear the same proportion to the total number of seats as the population of the Scheduled Castes or the Scheduled Tribes in the State in respect of which seats are so reserved, bears to the total population of the State. The non-obstante clause in Article 371-F read with clause {f) of the said Article enlarges the filled of deviation in the matter of reservation of seats from the proportion laid down in Article 332(3). The only limitation on such deviation is that it must not be to such an extent as to result in tilting the balance in favour of the Scheduled Castes or the D Scheduled Tribes Tribes for whom the seats are reserved and thereby convert a minority in majority. This would adversely affect the democratic functioning of the legislature in the State which is the core of repre- sentative Democracy. Clause (a) of sub-s. (1-A) of s.7 of the 1950 Act provides for reservation of twelve seats in an Assembly having thirty-two E seats, i.e., to the extent of about 38% seats for Sikkimese of Bhutia-Lepcha origin. The said provision does not, therefore, transgress the limits of the power conferred on Parliament under Article 371-F(f) and it cannot be said that it suffers from the vice of unconstitutionality.

The other challenge is to the reservation of one seat for Sanghas. F With regard to this seat, it may be mentioned that Section 25-A of the 1950 Act makes provision for an electoral roll for the Sangha constituency ')... ~

wherein only the Sanghas belonging to monasteries recognised for the purpose of elections held in Sikkim, in Aprii 1974 for forming the Assembly for Sikkim, are entitled to be registered. Clause (c) of sub- s.(2) of s. 5-A G of the 1951 Act prescribes that a person shall not be qualified to be chosen to fill a seat in the Legislative Assembly of Sikkim to be constituted at any time after the commencement of the 1980 Act unless, in the case of the seat reserved for Sanghas. he is an elector of the Sangha constituency. The aforesaid prmisions indicate that for the one seat in the Legislative As- H semblv of Sikkim which is rcscn·ed for Sanghas. a separate electoral roll

R.C. POUDYAL v. U.0.l. [AGRAWAL, J.] 1015

has to be prepared under Section 25-A of the 1950 Act and only the A Sanghas belonging to monasteries recognised for the purpose of elections Y held in April 1984 for forming the Assembly for Sikkim are entitled to be registered in the said electoral roll and, in view of Section 5-A(2)(c), no person other than an elector for the Sangha constituency is qualified to be chosen to fill the said reserved scat for Sanghas. B

To assail the validity of these provisions Shri Jain has urged that the )( provision in s.7(1-A)(c) of the 1950 Act is violative of the right guaranteed under Article 15(1) of the Constitution inasmuch as by reserving one seat for Sanghas (Budhist Lamas), the State has discriminated against a person c - who is not a Budhist on the ground only ofreligion. Shri Jain has also urged the provisions contained in S.25-A of the 1950 Act and S.5-A(2)(c) of the 1951 Act are violative of Article 325 of the Constitution inasmuch as these provisions provide for election to the seat reserved for Sanghas on the basis of a separate electoral roll in which Sanghas alone are entitled to be )r D registered and exclude others from being registered as electors on that electoral roll on the ground only of religion. The submission of Shri Jain is that these provisions arc inconsistent with the concept of secularism which is a basic feature of the Constitution.

E The reservation of one seat for Sanghas and election to the same 'T" through a separate electoral roll of Sanghas only has been justified by Shri Parasaran on the basis of historical reasons. He has argued that the Sangha ==- has played a vital role in the life of community since the earliest known history of Sikkim and have also played a major part in deciding important issues in the affairs of the State. It has been pointed out that Lhade-Medi, F a body consisting of the Lamas and laity, has contributed towards cultural, c --'... social and political development of the poeple of Sikkim and that the Sangha seal was introduced in order of provide for the representation of a section which was responsible for the presevation of the basic culture of the Sikkimese Bhutias and Lepchas including some sections of the Nepali G community of Sikkim who are Budhists. It has been submitted that their interests are synonymous ·with the interests of the minority communities of Sikkim and that as such a seat for the Sangha has always been nominated and later reserved in the Sikkim State Council and the State Assembly respectively. H

1016 SUPREME COURT REPORTS [1993] l S.C.R.

A Clause (1) of Article 15 prohibits discrimination by the State against any citizen on the ground only of religion, race, caste, sex or any of them. Clause (3), however, permits the State to make special provision for women and children. Similarly, Clause (4) permits the State to make special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes. B Clauses (3) and (4) do not, however, permit making of special provisions in derogation of the prohibition against discrimination on the ground of religion. This Court has laid down that this constitutional mandate to the ¥.. Stale contained in Article 15(1) extends to political as well as to other rights and any law providing for elections on the basis of separate elec- c torates for member. of different religious communities offends against this clause. (See Nain Suklt Das a11d Anr. v. Tlte State of Uttar Pradesh and Others, [1953] SCR 1184). - D Similarly Article 325 requires that there shall be one general electoral roll for every constituency for election to either House of Parliament or to the house of either House of Legislature of a State and precludes a person being rendered ineligible for inclusion in any such roll or lo be included in any special electoral roll for any such constituency on the grounds only of religion, race, caste, sex or any of them. The provisions which permit E election on the basis of separate electorates are, those contained in Clauses (a), (b) and (c) of Clause (3) of Article 171 relating to Legislative Council of a State. The said provisions provide for separate electorates of members of municipalities, district boards and local authorities Cl. (a), graduates of universities Cl. (b), and teachers Cl. (c). They do not provide for prepara- - F tion of separate electoral rolls on the ground of religion. The question for consideration is whether the impugned provisions providing for reservation ).._ of one seat fm Sanghas, preparation of a special electoral roll for the Sangha constituency in which Sanghas alone can be registered as electors and a person who is an elector in the said electoral roll alone being eligible G to contest for the Sangha seat, can be held to be violative of the provisions of Articles 15(1) and 325 on the ground that in relation to one seat reserved for Sanghas in the Legislative Assembly of the State of Sikkim a person whu is a non-Budhist is being discriminated on the ground of religion only and similarly in the preparation of the special electoral roll for Sangha H constituency a person who is a non-Budhist is rendered ineligible for

R.C. P.OUDYAL v. .U.0.1. [AGRAWAL, J.] 1017

inclusion in the said electoral roll on the ground only of religion. For this A purpose it is necessary to construe the words "on grounds only of religion ... " . "( in Articles 15(1) and 325. In this context, it may be pointed out that sub-s.(1) of s.298 of the Government of India Act, 1935 contained the words "on grounds only of religion, place of birth, discent, colour, .... ". In Punjab Province v. Dau/at Singh and Ors., (1946) FCR _1 the provisions of B s. 13-A of the Punjab Alienation of Land Act, 1900 were challanged as contravening sub- s.(l) of s. 298 of the Government of India Act, 1935. In the Federal Court, Beaumont J., in his dissenting judgment, has taken view '>· , . that in applying the terms of sub-s. (1) of Section 298, it was necessary for the Court to consider the scope and object of the Act which was impugned so as to determine the ground on which such Act is based. This test was c - not accepted by· the Judicial Committee of the Privy Council. Lord Thankerton, delivering the opinion of the Judicial Committee has ob- served:-

'>-- "Their Lordship are unable to accept this as the correct test. In their views, it is not a question of whether the impugned Act is based only on one or more of the grounds specified in S. 298, sub-S. 1, but whether its operation may result in a prohibition only on these grounds. The proper test as to whether there is a contravention of the sub-section is to ascertain the reaction of the impugned Act on the 'r personal right conferred by the sub-section, and, while the

-- scope and object of the Act may be of assistance in deter- mining the effect of the operation of the Act on a proper construction of its provisions, if the effect of the Act so determined involves an infringement of each personal right, object of the however laudable, will not obviate the --'..__ prohibition of sub-s.1". (p.18)

In State of Bombay v. Bombay Education Society and Others, [1955] 1 SCR 568, this Court, in the context of Article 29(2) wherein also the G

- ,..'>- expression "on grounds only of religion, .... " has been used, has accepted the test laid down by the Judicial Committee of the Privy Council in Punjab Province v. Daulat Singh and Others (supra).

I may, in this context, also refer to the decision of this Court in The H

1018 SUPREME COURT REPORTS [1993] 1 S.C.R.

A State of Madras v. Srimatlti Champakam Dorairajan, [1951] SCR 525, wherein, the question was whether there was denial of admission to Srinivasan, one of the petitioners, on the ground only of caste. It was found y that the. denial of admission to the said petitioner, who was a Brahmin and had secured higher marks than the Anglo-Indian and Indian Christians but could not get any of the seats reserved for the said communities for no B ; fault of his except that he was a Brahmin and not a member of the s'lid communities, could not but be regarded as made on ground only of his caste. (p.532) x T!/e validity of the impugned provisions has, therefore, to be con- c sidered by applying the aforesaid test of effect of operation of the said ... provisions.