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

It is not disputed that Sangha, (Budhist order' or congregation of - monks) has an important place in Budllism. Sangha together1with the Buddha and Dharma (sacred law) constituted the three Jewels which were D the highest objects of worship among the Buddhists and a monk at the time -< i= of his ordination had to declare solemnly that he had taken refuge in jll Buddha, Dharma and Sangha. [B.K. Mukherjea on 'The Hindu Law of Religious and Charitable Tursts', Tagore Law Lectures : Fifth Ed. (1983), p.18]. In Sikkim, Lamaistic Buddhism was the official religion and Sanghas E (Bhudhist Lamas) staying in the Budhist monasteries played an important role in the adminstration. Since only a Budhist can be a Sangha, the effect y of the reservation of a seat for Sanghas and the provision for special

F electoral roll for the Sangha constituency wherein only Sanghas are entitled to be registered as electors, is that a person who is not a Budhist cannot contest the said reserved seat and he is being discriminated on the ground only of religion. Similarly a person who is not a Budhist is rendered -- ineligible to be included in the electoral roll for Sangha constituency on the ground only of religion. >- The historical considerations to which reference has been made· by G Shri Parasaran do not, in my view, justify this discrimination of non-Bud- hists because the said consider alions which had significance at the time when Sikkim was governed by the Chogyal who professed Lamaistic Bud- ... hism and ran the administration of Sikkim in accordance .with the tenets ..i... of his religion, can no longer have a bearing on the set up of the functioning H of the State after its admission into the Indian Union. In this regard, it may

R.C. POUDYAL v. U.O.l. [AGRAWAL, J.) 1019

be pointed out that the reason for the reservation of one seat for Sanghas, A ..,.-~:;:ho~~, i~ ~~, r:ia:~:~~;~,: :~at was appended to the Proclamation of 9 "(a) It has long been felt that, as the Monasteries and The Sangha have constituted such a vital and important role in the life of the community since the earliest known history B 1)f Sikkim, and have played a major part in the taking of decisions in the Councils of the past, there should be a seat specifically reserved for The Sangha in the Sikkim Council. It is for this reason that a seat has been provided specifically for their representation". c - This shows that the reservation of one seat for Sanghas in Sikkim Council and subsequently in the Sikkim Assembly was in the context of the administrative set up in Sikkim at the time wherein Sanghas were playing '>" major part in the taking of decisions in the Council. The said reason does D not survive after the admission of Sikkkim as a new State in the Indian Union. The continuation of a practice which prevailed in Sikkim from 1958 to 1976 with regard to reservation of one seat for Sanghas and the election to the said seat on the basis of a special electoral college composed of Sanghas alone cannot, therefore, be justified on the basis of historical .considerations and the impugned provisions arc violative of the Con- E "( stituional mandate contained in Article 15 (1) and Article 325 of the Constitution.

- The next question which arises for consideration is whether the departure as made by the impugned provisions from the provisions of Articles 15(1) and 325 of the Constitution is permitted by Article 371-F of F ~the Constitution. It has already been pointed out that Article 371-F, whether it is treated as having been inserted in the Constitution by way of an amendment under A•ticle 368 or by way of terms' and conditions on which Sikkim was admitted into the Indian Union under Article 2, does not permit alteration of any of the basic features of the Constitution. G Although the expression 'Secular' did not find a place in the Constitution > prior to its insertion in the Preamble by Constitution (Forty-Second Amendment) Act, 1976, but the commitment of the leaders of our freedom struggle during the course of freedom movement which find• expression in the .various provisions of the Constitution leaves no room for doubt that H

!02o SUPREME COURT REPORlS [1993) 1 S.C.R.

A secularism is one of the basic features of the .Constitution~ It was so held in the Kesavananda Bharati case, [1973) Supp. SCR 1 [Sikri, CJ. at pp. 165-6; Shela! and Grover, JJ. ai p.280; Hegde and Mukharjea, JJ. at p314 and Khanna J. at p.685] and in Smt. Indira Gandhi v. Raj Narain, [1976) 2 f.. i. .SCR 347 [Mathew, at 'p5o3 and Chaildrachud, J. at p. 659). The matter B has now been placed beyond controversy by incorporating the expression "secular' in the Preamb.Ie by the Constitution (Forty- second Amendment) Act, 1976.

In so far as clause (1) of Article 15 is concerned express provision has been made iii clauses (3) and (4) empoweriag the State to make special C ·· provisions for certain classes of persons. Sanghas, as such, do not fall within the ambit of clauses (3) and ( 4) of Article 15 and therefore, a special provision in their favour, in derogation of clause (1) of Article 15 is not permissible. Article 325 also does not postulate any departure from the prohibition with regard to ·special electoral roll .contained therein. This is D borne out by the background in which Article 325 came to be adopted in the constitution. . . .

Under the British Rule, separate electorates, for Muslims were provided by the Indian Councils Act, 1909. The Communal Award an- . E nounced in 1932 provided for separate electorates for Muslims, Eropeans, Sikhs, Indian Christian and ·anglo-Indians. By it, separate electorates were sought to be extended to the depressed classes also. This was opposed by Mahatma Gandhi who undertook fast unto death and thereupon the said proposal was given ilp. The Congress Working Committee in its resolution .~·

. , F adopted in Calcutta in October 1937 declared the communal award as , being "anti-national, anti-democratic and a barrier to Indian freedom and devel..Jpment of Indian unity'. The Congress felt that separate electorates was a factor which led to the partition of the country. When· the Constitu- tion._was being framed, the question whether there should be joint or separate electorates was first considered by the Advisory Committee con- , . . - ( G stituted by the Constituent Assembly to determine the fundamental rights . of citizen, minorities: etc. The advisory Committee in its report dated AugUst 8, 1947 has stated - --·-- 'The first question we tackled was that of separate elec- H torates; we considered this as being of crucial importance

R.C. POUDYAL v. U.0.1. [AGRAWAL, J.] 1021

both to the minorities themselves and to the political life of the country as a whole. By an overwhelming majority, we came to the conclusion that the system of separate electorates must be abolished in the new Constitution. In our judgment, this system has in the past sharpened com- munal differences to a danagerous extent and has proved one of the main stumbling blocks to the development of a healthy national life. It seems specially necessary to avoid these dangers in the new political conditions that have developed in the country and from this point of view the arguments against separate electorates seem to us ab- c - solutely decisive.

We recommend accordingly that all elections to the Central and Provincial Legislatures should be held on the basis of 11 joint elector_ates.

[Shiva Rao, Framing of India's Constitution, Select Documents, Vol.II, D p.412] ,. When the report of the Advisory Committee came up for considera- tion before the Constituent Assembly, Shri Muniswami Pillai, expressing Y his satisfaction with the report, said : E

"One great point, Sir, which I would like to tell this hou'e

- is that we got rid of the harmful mode of election by separate electorates. It has been buried seven fathom deep, never more to rise in our country." F [Constituent Assembly Debates, Vol. V p. 202]

An amendment was moved by Shri B. Packer Sahib Bahadur belong- ing to Muslim League lo the effect that all the elections to the Central and Provincial Legislatures should, as far as Muslims arc concerned, be held on the basis of separate electorates. The said amendment was opposed by G most of the members. Pandit Govind Ballabh Pant, speaking on the said ,,> occasion, stated -

"... So, separate electorates are not only dangerous to the State and to society as a whole, but they are particularly H

1022 SUPREME COURT REPORTS [1993] 1 S.C.R.

A harmful to the minorities. We all have had enough of this experience, and it is somewhat tragic to find that all that experience should be lost and still people should hug the exploded shibboleths and slogans."

[Constituent Assembly Debates; Vol. V, p.224] B Sardar Patel in his reply to the debate was more emphatic. He said:~

"I had not the occasion tohear the speeches which were made in the initial stages when this question of communal c electorates was introduced in the Congress; but there are many eminent Muslims who have recorded their views that the greatest evil in this country which has been brought to - pass is the communal electorate. The introduction of the system of communal electorates is a poison which has entered into the body politic of our country. Many English- D men who were responsible for this also admitted that. But today, after agreeing to the separation of the country as a result of this communal electorte, I never thought that proposition was going to be moved seriously, and even if it was moved seriously, that it would be taken seriously." E )' [Constituent Assembly Debates; Vol. V, p. 255]

The Constituent Assembly rejected the move and approved the recommendation of the Advisory Committee. But in the original Draft - Constitution there was no express provision lo the effect that elections to F the Parliament and to the State Legislatures shall be on the basis of the joint electorates for the reason that electoral details had been left to >- auxiliary legislation under Articles 290 and 291 of the Draft Constitution. Subsequently it was felt that provision regarding joint electorates is of such fundamental importance that it ought to be mentioned expressly in the G Constitution itself. Article 289-A was, therefore, inserted to provide that all elections to either House of Parliament or the Legislature of any State shall be on the basis of the joint electorates. [Shiva Rao : Framing of India's .;.,_ Constitution, Select Documents, Vol. IV p. 141]. Article 289-A, as proposed by the Drafting Committee, was substituted during the course of H debate in the Constituent Assembly and the ·said provision, as finally

R.C. POUDYAL v. U.0.1. (AGRAWAL, J.] 1023

adopted by the Constituent Assembly was numbered as Article 325. A

l( This would show that Article 325 is of crucial significance for main- taining the secular character of the Constitution. Any contravention of the said provision cannot but have an adverse impact on the secular character of the Republic which is one of the basic features of the Constitution. The same is true with regard to the provisions of clause (1) of Article 15 which B prohibits reservation of seats in the legislatures on the ground only of religion.

"" It is no doubt true that the impugned provisions, relate to only one seat out of 32 seats in the Legislative Assembly of Sikkim. But the poten- c - tialities of mischief resulting from such provisions cannot be minimised. The existence of such provisions is bound to give rise to similar demands by followers of other religions and revival of the demand for reservation of seats on religious grounds and for separate electorates which was emphati- ~ cally rejected by the Constituent Assembly. It is a poison which, if not D eradicated from the system at the earliest, is bound to eat into the vitals of the natio'1. It is, therefore, imperative that such provision should not find place in the statute book so that further mischief is prevented and the secular character of the Republic is protected and preserved. While deal- ing with fundamental liberties, Bose J ., in Kedar Nath Bajaria v. The State E of West Bengal, [1954] 5 SCR 30, has struck a note of caution : y "If we wish of retain the fundamental liberties which we

-- have so eloquently proclaimed in our Constitution and remain a free and independment people walking in the democratic way of life, we must be swift to scotch at the F outset tendencies which may easily widen, as precedent is .-(_ added to precedent, into that which in the end will be the negation of freedom and equality". (p.52)

Similar caution is called for to preserve the secular character o(the Republic. G

Having found that the impugned provision providing for a separate > electoral -roll for Sangha Constituency contraveness Article 325 and reser- vation of one seat for Sanghas contravenes Article 15(1) and Articles 325 and 15(1) are of crucial importance to the concept of Secularism envisaged H

1024 SUPREME COURT REPORTS (1993] 1 S.C.R.

A in the Constitution it becomes necessary to examine whether Article 371-F permits a departure from the principle contained in Articles 325 and 15(1) ....,,, while appiying the Constitution to the newly admitted State of Sikkim. I am unable to construe the provisions of Cl (f) of Article 371-f.as conferring such a power clause (f) of Article 371-F which empowers Parliament to B make provision for reservation of seats in the Legislative Assembly of Sikkim for protecting the rights and interest of the different sections of the population of Sikkim, must be considered in the context of clause (5) of the tripartite agreement of May 8, 1973. The 'different sections' con- ;,/ templated in clause (f) of Article 371-F are Sikkimese of Bhutia-Lepcha origin on the one hand and Sikkimese of Nepali origin on the other and c the said provision is intended to protect and safeguard the. rights and interests of these sections. Clause (f) of Article 371-F, in my view, cannot be construed to permit reservation of a seat for Sanghas and election to - that seat on the basis of a separate electoral roll composed of Sanghas only.

D It must, therefore, be held that clause (c) of sub-s.(1-A) of s.7 and --( Section 25-A of the 1950 Act and the words "other than constituency reserved for Sanghas" in clause (a) of sub-s.(2) of s.5-A and clause (c) of sub-s.(2) of s.5-A of the 1951 Act are violative of the provisions of Articles 15(1) and 325 of the Constitution and are not saved by Article 371-F of the E Constitution. The said provisions, in my view, are however, severable from the other provisions which have been inserted in the 1950 Act and the 1951 y Act by the 1976 Act and the 1980 Act and the striking down of the

F impugned provisions does not stand in the way of giving effect to the other provisions.

I would, therefore, strike down s.25-A inserted in the 1950 Act by -- the Act 10of1976 and the provisions contained in clause (c) of sub-s.(1-A) which has been inserted in Section 7 of the 1950 Act by Act 8 of 1980, the j words "other than the constituency reserved for the Sanghas" in clause (a) of sub-s.(2) as well as clause (c) of sub-s.(2) inserted in Section 5-A of the G 1951 Act by Act 8 of 1980 as being unconstitutional.

In Transferred Cases Nos. 93 and 94 of 1991, Shri KN. Bhatt and _..._ Shri K.M.K Nair, the learned counsel appearing for the f ;titioners therein have not assailed the validity of the provisions with regard to reservation H of seats for Sikkimese of Bhutia and Lepcha origi~. They have. however,

R.C. POUDYAL v. U.0.1. [AGRAWAL, J.] 1025

urged that Clause (f) of Article 371-F imposes an obligation on Parliament A to make provision for protection of the rights and interests of Sikkimese of y Nepali origin also and that while making reservation for protection of rights and interest of Sikkimese of Bhutia-Lepcha origin, Parliament was also required to provide for similar reservation of seats for Sikkimese of Nepali origin to protect the rights and interests of Sikkimese of Napalis origin. In B this regard, it has been submitted that reservation for seats in the Sikkim Council and subsequently in Sikkim Assembly for Sikkimese of Nepali origin had been there since the elective element was introduced in 1952. It ~ was also urged that after Sikkim was admitted in the Indian Uni<>n, there has been large influx of outsiders in Sikkim as a result of which the original c - residents of Sikkim including Sikkimese of Nepali origin have been vastly out numbered by settlers coming to Sikki_m from other parts of the country. In my view, there is no substance in these contentions. According to the figures of 1971 census Sikkimese of Nepali origin were 1,40,000 whereas Sikkimese of Bhutia-Lepeha origin were 51,600 and as per per the figures ).-- of 1981 census the corresponding figures were 2,24,4Sl and 73,623 rcspec- D tively. This shows that the ratio of Sikkimese of Nepali origin and Sikkimese of Bhutia-Lepcha origin is about 3:1. In view of the vast differnce in their numbers the Sikkimese of Nepali origin can have no apprehension about their rights and interests being jeopardised on account of reservation of twelve seats for Sikkimese of Bhutia-Lepcha origin in the Legislative E y Assembly composed of thirty-two seats. As regards the apprehension that the Sikkimese of Nepali origin would be out-numbered by the settlors from

- other parts of the country, I find that no material has been placed by the petitioners to show that the number of settlors from other parts of the country into Sikkim is so large that Sikkimese of Nepali origin are being F out-numbered. The figures of the 1971 and-1981 census, on the other hand, indicate to the contrary. According to the 1971 census in the total popula- -..\ tion of 2,09,843 the Sikkimese of Nepali origin were about 1,40,000, i.e., about 67%, and according to the 1981 census in the total p9pulation of 3,16,385 Sikkimese of Nepali origin were 2,24,4Sl, i.e., about 70%. In these circumstances, it cannot be said that reservation of scats for Sikkimese ef G Nepali origin was required in order lo protect their rights and interests and in not making any provision for reservation of seats for Sikkimese of Nepali .>- origin Parliament has failed to give effect to the provisions of clause (f) Article 371-F of the Constitution. H

1026 SUPREME COURT REPORTS (1993] 1 S.C.R.

A For the reasons abovementioned, these cases have to be partly allowed and it is declared that Section 25-A introduced in the 1950 Act bx Act no. 10 of 1976, Clause (c) of sub-s.(lA) introduced in Section 7 of they 1950 Act by Act no. 8 of 1980, the words "other than constituency reserved for the Sanghas"in clause (a) of sub-s.(2) introduced in Section 5-A of the B 1951 Act by Act no.8of1980 and clause (c) of sub-s.(2) introduced in s.5-A 'of the 1951 Act by Act no.8 of 1980 are unconstitutional rnd avoid.

T.N.A. Petitions dismissed. :,(.